The chair of the panel, Professor Alina Miron, asked Professor Oxman to address the following: Undoubtedly the first use of the mechanism of compulsory conciliation under Annex V of the UN Convention on the Law of the Sea by Timor-Leste was a tremendous success, though not devoid of obstacles. What are the lessons that can be learned from this first experience? How different from the judicial mechanisms were the Commission's functions and procedures?

This Commission project is a useful one. It rests on exemplary work by the Special Rapporteur. I would hope that brief mention of a few matters that may benefit from further reflection at this stage could be of some assistance as work on this matter continues.

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.

On the docket of the United States Supreme Court in 2004 is a substantial cluster of cases at the intersection of constitutional and international law. In the previous two Supreme Court Terms, the Court had adverted to sources of law and practice outside the United States, in its treatment of constitutional claims involving the death penalty and same-sex relationships. The apparent willingness of the Court to consider international and foreign authorities in reaching its conclusions on contested issues of constitutional law has raised to new promir nence the debate over the relationship between constitutional and international law. It is not yet clear whether the new (or newly rediscovered) interest of the Court in international sources presages a long-term trend toward a more cosmopolitan constitutional jurisprudence. On the assumption that this represents more than a passing fad, advocates before the Court in die current Term—for example, in the cases involving die “enemy combatant” detainees at Guantanamo Bay—have vigorously pressed arguments concerning international and foreign law in connection with the constitutional issues at stake. The Court's acceptance of quite a few cases raising a mixture of international and constitutional questions for decision in 2004 may signal that the Court is preparing for a new era of engagement with legal developments external to the United States, or, alternatively, that it seeks to limit (or in any event to delimit) the relevance of such developments for the U.S. legal system.

Streletz, Kessler and Krenz V. Germany. App. Nos. 34044/96,35532/97, & 44801/98.49 ILM 811 (2001), available at <http://www.echr.coe.int/Eng/Judgments.htm>.

K.-H. W. V. Germany. App. No. 37201/97. 49 ILM 773 (2001), available at <http://www.echr.coe.int/Eng/Judgments.htm>.

European Court of Human Rights, Grand Chamber, March 22, 2001.

In a landmark judgment, Streletz, Kesslerand Krenz v. Germany, die European Court of Human Rights (ECHR) unanimously held that criminal prosecution of the leaders of the German Democratic Republic (GDR) for ordering to kill individuals attempting to flee the GDR is compatible with the principle nullum crimen sine lege and consequently with the prohibition on retroactive criminal laws under the European Convention on Human Rights. In a second judgment, K.-H. W. v. Germany, with three of the seventeen judges dissenting, the Court affirmed this holding as applied to the criminal responsibility of a low-ranking soldier.

Metalclad Corporation v. Mexico. ICSID Case No. ARB(AF)/97/l. 40 ILM 36 (2001), available at <http://www.worldbank.org/icsid/cases/awards.htm>.

NAFTA Chapter 11 Arbitral Tribunal, August 30, 2000.

Mexico v. Metalclad Corporation. 2001 B.C.S.C. 664, available, at <http://www.courts.gov.be.ca>.

Supreme Court of British Columbia, May 2, 2001.

In 1993, Metalclad Corporation purchased the Mexican company Confinamiento Tecnico de Residuos Industriales, S.A. de C.V. (COTERIN) in order to build and operate a hazardous-waste transfer station and landfill in Guadalcazar, San Luis Potosi. Although the federal government of Mexico and the state government of San Luis Potosi had granted COTERIN permits to construct and operate the landfill, the municipality of Guadalcazar denied a municipal construction permit, and the governor of San Luis Potosi subsequently declared an area encompassing the landfill to be an ecological reserve.