The establishment of maritime boundaries between neighboring states is a matter of increasing interest and concern in international relations. Although states have had to deal with territorial sea and other maritime boundaries in years past, the extension of fisheries jurisdiction and claimed economic zones out to 200 nautical miles and the rapid advance in the technology of hydrocarbon development on the continental shelf have created a problem of totally new dimensions. These developments have given rise to many new boundaries between opposite and adjacent states which require delimitation and have made many potential boundaries more important to the states concerned.

In a parable drawn from The Trial, Franz Kafka once etched the following chilling profile:

Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe. From its inception a mere quarter of a century ago, the Court has construed the European Community Treaties in a constitutional mode rather than employing the traditional international law methodology. Proceeding from its fragile jurisdictional base, the Court has arrogated to itself the ultimate authority to draw the line between Community law and national law. Moreover, it has established and obtained acceptance of the broad principle of direct integration of Community law into the national legal orders of the member states and of the supremacy of Community law within its limited but expanding area of competence over any conflicting national law.

The ninth session of the Third United Nations Conference on the Law of the Sea met in New York from February 27 to April 4, and in Geneva from July 28 to August 29, 1980. In addition, the Drafting Committee met for 3 weeks in June in New York.

In 1976 the United States Congress established the Coastal Energy Impact Program (CEIP) for the purpose of giving financial assistance to those coastal states of the United States off whose shores resource development was being conducted on the outer continental shelf. The program was designed to alleviate the burden that offshore development was said to have placed on those coastal states. The enacting legislation stipulated that the states must comply with certain requirements of the Act in exchange for the distribution of federal funds. Although these funds were to be provided partly in the form of grants distributed on the basis of various statutory formulas, the largest amount of the grants was to be divided on the basis of adjacency. Thus, a coastal state would receive additional funds if the activity on the outer continental shelf took place in the area determined to be “adjacent” to that state. As a result, the geographical description of the areas “adjacent” to each coastal state had a direct impact on the amount of funds each state would realize from the program. Statutory provisions and the regulations required that adjacency be determined on the basis of lateral boundaries drawn in the ocean seaward from the coastal state. Those boundaries might already have been established on the basis of interstate agreements or court decisions. In the absence of such delimitations, the Assistant Administrator for Coastal Zone Management of the Department of Commerce National Oceanic and Atmospheric Administration was called upon to establish the “lateral seaward boundaries” on the basis of the international law applicable to lateral boundary delimitations. The “lateral seaward boundaries” so established by the Assistant Administrator would have no legal significance other than for CEIP purposes.

On November 29 and 30, 1971, Iran occupied three islands, which were nominally under British protection, in the Persian Gulf. As a result of Britain’s failure to prevent the occupation, the Government of the Libyan Arab Republic, on December 7, 1971, announced the nationalization of all of the interests and properties in Libya of BP Exploration Company (Libya) Limited (BP), a subsidiary of British Petroleum Company Limited. On September 1, 1973, on the fourth anniversary of the military takeover of Libya led by Colonel Muammar el-Qaddafi, the Government of Libya announced the nationalization of 51 percent of the interests and properties in Libya of nine international oil companies. Approximately 5½ months later, on February 11, 1974, on the eve of the opening of the Washington conference of major oil-importing nations, the Government of Libya announced the nationalization of the remaining 49 percent of the interests and properties in Libya of three of those nine companies: Texaco Overseas Petroleum Company (TOPCO), a subsidiary of Texaco Inc.; California Asiatic Oil Company (CALASIATIC), a subsidiary of Standard Oil Company of California; and the Libyan American Oil Company (LIAMCO), a subsidiary of Atlantic Richfield Company.

The Protection of Trading Interests Act, passed by the United Kingdom Parliament on March 20, 1980, is one of the most remarkable pieces of legislation to emerge in recent years from that body. It effects a significant shift in British policy relating to the control of international restrictive practices, and is of considerable interest to international lawyers. The aim of the Government in introducing the measure was, in the words of the Secretary of State for Trade, “to reassert and reinforce the defences of the United Kingdom against attempts by other countries to enforce their economic and commercial policies unilaterally on us.” This aim is secured, in general terms, by a combination of three measures. Firstly, an extension of the power of the British Government to forbid compliance by British citizens and businesses with orders of foreign authorities, where those orders have extraterritorial effect and prejudice British trading interests. Secondly, a prohibition on the enforcement by United Kingdom courts of foreign judgments involving the award of multiple damages and of certain other judgments touching upon the control of restrictive practices. Thirdly, the establishment of a right for British citizens or businesses against whom foreign courts have awarded multiple damages to recover the noncompensatory element from the original plaintiff by an action in a United Kingdom court.

On December 11, 1977, the Swiss Government opened for signature two Protocols to the four Geneva Conventions of 1949 on the Protection of War Victims. Forty-four governments signed either one or both Protocols on that day, and, by September 1979, 62 governments had signed one or both Protocols. The Protocols entered into force on December 7, 1978, and by October 1980, were in force for 15 states. One of these Protocols develops the law applicable in international armed conflicts, and the other expands the protections currently accorded to the victims of noninternational armed conflicts by Article 3 common to the 1949 Conventions. Together the Protocols represent many years of effort, first by the International Committee of the Red Cross, and more recently by more than one hundred governments assembled in conference. During more than 8 months of conference sessions over 4 years, these governments struggled to correct the perceived deficiencies in the law and to develop and articulate new rules to improve the protections available to the victims of armed conflicts. Each government drew on its own experiences, and the result may reasonably be thought to be the composite reaction by the international community to the perceived inhumanities of wars during the past quarter century. Since we shall probably have to wait at least another quarter century before new efforts are made to develop the law further, it would seem appropriate to begin to analyze the two new Protocols and to draw some conclusions about them. This article, written by an active participant in the Geneva conference, attempts to contribute to this process by analyzing a few of the more significant developments in the law contained in Protocol I, that is, the Protocol dealing with international armed conflicts.

The continuous stream of resolutions of the UN General Assembly and much academic writing on the subject notwithstanding, the present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects; this is true in particular for expropriations in the context of North-South (still better described as “West-South”) relations, to which this article is primarily, but not exclusively, addressed. International courts have had no occasion to rule on fundamental issues of expropriation law in the past decades, even though these issues have been relevant to various disputes settled out of court. Eventually, however, the courts will be confronted with cases involving expropriation of alien property: given the continuing and rising importance of foreign investment, the parties involved probably will not invariably prefer negotiated settlements. It must also be recalled here that customary law has occasionally served as a reference standard in treaties and contracts. If an expropriation case were brought before an international tribunal, it could not simply rule that the law governing expropriation of alien property is in dispute and therefore no law at all is applicable. The very notion of international law precludes an argument that acknowledges the existence of “gray areas” in that law: a court could not rule that some law exists, but that it cannot be identified by judicial means.

Until quite recently the doctrine of act of state had long occupied a quiet backwater of English jurisprudence. Some cases of the last few years, however, have indicated that this doctrine may assume considerable importance in the future. In this respect the English experience is similar to that of the United States, where act of state cases were relatively rare and received little attention for many years before Sabbatino. This coincidence should cause little surprise for, as the cases in both nations make clear, there are common underlying causes. Act of state doctrine developed in an era when governments confined themselves to a narrow range of activities. Nowadays, however, the doctrine is being strained to cope with the activities of states whose governments own and develop natural resources, and engage in international trade, while maintaining an approach to property and contractual rights vastly different from that of the United Kingdom and the United States.

Agreements providing for the arbitral settlement of disputes arising out of contracts between foreign sovereigns and private contracting parties have become a permanent feature of transnational commerce.

This particular favor for the arbitral, as opposed to the judicial, settlement of state contract disputes is attributable to a number of reasons, some of which are conventional and others the consequence of contemporary developments. Traditionally, arbitration has proved attractive because of the special expertise that it may provide and lack of publicity, which may increase the willingness of the losing party to comply with the award.

On December 11, 1979, Anthony C. E. Quainton, Director of the U.S. State Department’s Office for Combatting Terrorism, responded to an inquiry about the International Convention against the Taking of Hostages, in particular its Article 12, by stating that the Convention “does not provide a loophole for members of national liberation movements or anyone else and does not supply a means by which any State Party to the Hostages Convention can escape the prosecute or extradite requirement.”

The largest industry in the United States, India, Austria, Pakistan, Hong Kong, South Korea, and Portugal, among others, is the textile and clothing industry. And perhaps in no other sector of postwar trade, save agriculture, have such persistent cries for protection been raised. Trade in textiles has demanded and received special treatment from national and international authorities since the late 1950’s. It is against this backdrop that some of the more important developments in the international regulation of commercial activities have occurred.

The extent to which foreign sovereigns are entitled to immunity in municipal courts has attracted a vast literature, in recent years especially. The majority view now seems to be that immunity need not extend to commercial transactions entered into by the state, although the precise scope of this “exception” remains unsettled, and the role of international law in “extending” or “withholding” immunity has not yet, perhaps, been clearly analyzed. Indeed, it has been denied that there is any international law rule at all on the subject, a view that would presumably leave each state free to formulate, or negotiate, its own rule.

The United States and Canada agreed, by the Boundary Settlement Treaty of March 29, 1979, to submit their decade-long dispute over the maritime boundary in the Gulf of Maine area to a Chamber of the International Court of Justice (ICJ) or to an ad hoc court of arbitration. The treaty, however, has not yet taken effect because the interrelated Fisheries Agreement, which was concluded on the same day and was to take effect simultaneously, was Unilaterally scrapped by the United States Government on March 6, 1981, on grounds of its allegedly unfair and inflexible provisions. On April 29, the United States Senate unanimously adopted a resolution supporting the Government's position to delink the two treaties and to settle the maritime boundary problem first by a third-party procedure. Whether or not a new fisheries agreement is concluded in the near future, it is expected that the maritime boundary dispute will ultimately be resolved by binding third-party settlement. The purpose of this article is to examine the legal position taken by each Government regarding the maritime boundary issues, and to suggest equitable principles that should govern their resolution.

The Third United Nations Conference on the Law of the Sea (UNCLOS III) is important not only because of the scope and substance of the issues with which it is concerned, but also because it represents a major international experiment in decision making by consensus. Most of the attention it has attracted so far has been focused on the problems, progress, and prospects of the conference as a unique event. Given the magnitude of the matters at stake, not to mention the drama of the proceedings, this is natural enough. In addition, there is the risk of a severe blow to the process of international negotiation in general, and to the United Nations system in particular, should UNCLOS III fail. Only a few writers have so far begun systematically to discuss procedural developments at UNCLOS in terms other than those relating to the success or failure of the conference itself. Jonathan Charney and Bernard Oxman have pointed out the significance of procedural developments and precedents, Robert Eustis has begun the exploration of UNCLOS as a model of multinational negotiation, and Edward Miles has argued that nothing similar to UNCLOS should be tried again. United Nations concern about problems in the process of international negotiation in general is demonstrated by General Assembly Resolution 32/48 (December 8,1977), requesting a report on the techniques and procedures used in the elaboration of multilateral conventions.

After American diplomatic and consular personnel in Iran were taken hostage in that country, the United States Treasury on November 14, 1979 promulgated the Iranian Assets Control Regulations. The regulations were of a sweeping character and, among other things, prohibited the Government of Iran, Iranian governmental entities, and Iran’s central bank from transferring or withdrawing dollar-denominated deposits held with foreign branches and subsidiaries of U.S. commercial banks (as well as deposits with domestic offices) without authorization by the Treasury. Iran’s central bank, Bank Markazi Iran, instituted suits in London and Paris to obtain court orders for withdrawal of its funds, notwithstanding the U.S. “freeze.” Those suits were essentially mooted by the Algeria-United States-Iran declarations and agreements of January 19 and 20, 1981, which provided for transfer of these funds as part of the arrangement to release the American hostages held by the Iranian authorities. While the litigation in London and Paris is now inactive, it raised issues that deserve thought because they are not necessarily unique and may arise again in other situations.