Should the International Court of Justice (ICJ) “judicially review” Security Council decisions? The question, once fanciful, is now being asked seriously by litigants in and judges on the World Court, nonpermanent members of the Security Council that consider it an “undemocratic” body acting as “a cloak for a new form of imperialism,” and scholars worried about its recent “quasi-legislative” or “quasi-judicial” acts. The recent throng of commentators and advocates includes students of realpolitik warning the Court against any unrealistic attempt to transform the United Nations collective security scheme into a constitutional structure of checks and balances, and legalists grasping hopefully for hints of Marbury v. Madison in recent World Court pronouncements.

The popularity of arbitration as a mechanism for settling disputes between transnational contracting parties has led to standardization in many areas of arbitration law and procedure. One important aspect of the arbitral process, however, the practice of awarding compensatory interest, has been left behind in the march toward uniformity. To date, arbitral tribunals have failed to adopt a rational and uniform approach for evaluating interest claims. Consequently, resolving interest claims is often an expensive and time-consuming process, fraught with uncertainty, which typically results in inconsistent arbitral awards. This result is particularly problematic in the international arbitral arena: such claims often involve millions of dollars, and because a lengthy period may elapse between the origin of the dispute and the final award, whether an arbitrator awards interest may be as significant, from a monetary standpoint, as the principal claim itself.

I am writing in response to my friend Louis Fisher's piece (89 AJIL 21 (1995)) on the legality of President Truman's commitment of troops to hostilities in Korea without specific statutory authorization. He makes a persuasive case; however, I believe there is at least equally compelling evidence for a very different conclusion. My full response will soon appear elsewhere,1 but a few brief observations may be of interest to your readers.

By notes exchanged at a signing ceremony in Hanoi, Vietnam, on August 5, 1995, Secretary of State Warren Christopher and Vietnamese Foreign Minister Nguyen Manh Cam confirmed the establishment of diplomatic relations between the United States of America and the Socialist Republic of Vietnam by mutual consent on July 12, 1995.

International Court of Justice, June 30, 1995.

Portugal submitted an Application instituting proceedings against the Commonwealth of Australia before the International Court of Justice on February 22, 1991. Both Portugal and Australia had made declarations accepting the compulsory jurisdiction of the Court pursuant to Article 36, paragraph 2 of the ICJ Statute. Portugal sought a declaration from the Court that Portugal's status with respect to East Timor and the rights of the people of East Timor to self-determination, territorial integrity and unity, and permanent sovereignty over its wealth and natural resources were opposable to Australia. Portugal also sought a declaration that Australia had incurred international responsibility and had caused damage for which it owed reparation to both the people of East Timor and Portugal. Portugal alleged that Australia had incurred this responsibility mainly by negotiating and concluding—not with Portugal, but with Indonesia—a treaty on December 11, 1989, creating a “Zone of Cooperation” in an area of the undelimited continental shelf between East Timor and northern Australia known as the “Timor Gap.”

Loizidou v. Turkey. 310 Eur. Ct. H.R. (ser. A).

European Court of Human Rights, March 23, 1995.

The applicant, a Greek Cypriot woman, stated that since July 20, 1974, Turkish troops had prevented her from returning to land in Northern Cyprus that she owned and had intended to use, inter alia, for her family home. Furdiermore, she alleged that her arrest and detention by Turkish Cypriot policemen for ten hours after she had crossed die cease-fire line in 1989, when participating in a women's march aimed at asserting the Greek Cypriot refugees’ right to return to their homes, violated her human rights. Rejecting in part die preliminary objections raised by the respondent Government, die Grand Chamber of the European Court of Human Rights held that die facts of die case are capable of falling widiin Turkish jurisdiction as a result of die presence of Turkish troops on the territory of Cyprus, so that the European Convention on Human Rights (ECHR) may be applicable to these acts.

U.S. District Court, D.C., August 31, 1995; modified September 15, 1995.

This action involved a constitutional challenge to the 147-year-old extradition statute, 18 U.S.C. §3184, on die ground that it violates the separation of powers. Plaintiffs were two individuals who had been found extraditable to Canada, pursuant to the extradition treaty between die United States and Canada, by a U.S. magistrate judge in the Northern District of Illinois. They brought an action in the District of Columbia against the Secretary of State, the Department of State, and the United States for a judgment declaring the extradition statute unconstitutional, and an injunction against their extradition. Plaintiffs also sought certification of a class consisting of persons who are or will be under threat of extradition from the United States pursuant to the statute, and an injunction against any such extradition. The court held (per Lamberth, J.) that (1) the extradition statute violates the separation of powers and is therefore unconstitutional; (2) the United States is enjoined from taking any further act toward the surrender of the plaintiffs to Canada; and (3) the proposed class is certified, and the United States is enjoined from surrendering anyone under the statute.

The International Law Commission of the United Nations held its forty-seventh session from May 2 to July 20, 1995, under the chairmanship of Pemmaraju S. Rao of India. The Commission continued its work on existing topics and considered aspects of the Draft Code of Crimes against die Peace and Security of Mankind, state responsibility, and liability for injurious consequences arising out of acts not prohibited by international law. The Commission began work on the two new topics of “state succession and its impact on the nationality of natural and legal persons” (“nationality“) and “the law and practice relating to reservations to treaties” (“reservations“) and made a recommendation as to two additional topics for its future agenda.

The Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, established in 1974, had never proposed an amendment to the UN Charter before its decision on March 10, 1995, to recommend deletion of the “enemy states” clauses. This action came, not coincidentally, during a year when the United Nations celebrated its fiftieth anniversary—a time for retrospective and prospective assessment. Amid the hoopla of the anniversary festivities, UN members engaged in serious reflection on ways and means of enhancing the effectiveness of the Organization as it confronts the challenges of a changing world.

The fifty-first session of the UN Human Rights Commission took place in Geneva from January 30 to March 10, 1995, under the genial chairmanship of Musa bin Hitam of Malaysia.’ The Commission showed that great powers are not exempt from critical consideration by the UN human rights machinery, addressing human rights situations involving three permanent members of the Security Council: China, Russia and die United States.

The Commission closed the book on its years of activity concerning South Africa. Indigenous issues assumed a higher profile. The Commission took a cautious look at whether it had a role in the important “gray area” of internal armed conflict. In a controversial move, it created a new Special Rapporteur on human rights and toxic wastes.

During 1994, the total sales value of chemicals exported from the United States exceeded $51 billion, up 15 percent over the previous year and resulting in the chemical sector outpacing all other sectors that finished the year with favorable trade balances. Chemicals leaving the United States were shipped under the control provisions of both the Department of Commerce's Export Administration Regulations (EAR), and the Department of State's International Traffic in Arms Regulations (ITAR). Though this is something of an oversimplification, the EAR basically concerns itself with products that have civilian application, and the ITAR with products of use to the military. Currently, the Commodity Control List of the EAR, overseen by Commerce's Office of Export Licensing within the Bureau of Export Administration, identifies fifty-four chemicals and ten toxins as intermediate agents and precursors to chemical weapons subject to export regulation. The Munitions List of the ITAR, administered by the Office of Defense Trade Controls of the State Department's Bureau of Politico-Military Affairs, identifies twenty-two chemicals as subject to regulation and cautions that this listing is merely illustrative, as any “chemical agent,” defined as “a substance having military application,” is subject to export control.