In 1972 a historic attempt to create the world’s first international legal regime banning the development and possession of an entire class of weapons of mass destruction (WMDs) culminated in the conclusion of the Biological Weapons Convention (BWC). Crippled by key compromises made by the great powers in pursuit of various self-interested security objectives in the context of the Cold War, the Convention is fundamentally flawed. Although the BWC purports to oudaw the development and possession of all biological weapons, deadlier and more sophisticated biological weapons than were imaginable in 1972 can now be and have been produced, as evidenced in October 2001 by two letters sent to the Capitol Hill offices of Senators Tom Daschle and Patrick Leahy. These letters reportedly contained direatening notes and a dangerous and sophisticated form of “weapons-grade” anthrax spores. Even though both die sender of these letters and the source of the anthrax remain unknown, the technical sophistication of the spores led some experts to suggest that the attacker was supported by a U.S. “biodefense” laboratory or an advanced foreign-state-run biological weapons (BW) facility because the spores could not have been produced by an amateur working in his basement.

Many commentators argued that a central problem with the government’s actions after the attacks of September 11, 2001, was executive unilateralism. For example, in criticizing President George W. Bush’s initial effort to establish military commissions to try terrorists, Professors Neal Katyal and Laurence Tribe argued that, “in the absence of an emergency that threatens truly irreparable damage to the nation or its Constitution, that Constitution’s text, structure, and logic demand approval by Congress if life, liberty, or property are to be significantly curtailed or abridged.” These commentators therefore invited the courts to play a “democracy-forcing” role to prompt greater congressional participation, through, in particular, the application of “clear statement” requirements. In Hamdan v. Rumsfeld, the Supreme Court accepted this invitation. In holding that the military commission system that President Bush had established to try terrorist detainees was invalid, the Court relied on what it believed to be restrictions in the Uniform Code of Militaryjustice (U.C.M.J.), a statute that is of course subject to amendment by Congress. Thus, as Justice Stephen Breyer and other Justices noted in a concurrence, “Nothing prevents the President from returning to Congress to seek the authority he believes necessary.”

Hamdan v. Rumsfeld seemed a promising example of a special form of judicial role. Abstaining from deploying its ultimate power to judge the constitutionality of an action of a political branch, the United States Supreme Court used statutory construction to give a strong nudge in a direction favorable to human rights. It negated a questionable and controversial policy—President George W. Bush’s unilateral establishment of military commissions to try terrorist suspects by means of reduced procedures—and essentially remanded the matter to Congress. The initial fruits of that remand, the Military Commissions Act (MCA), came as a disappointment. The Act cuts back on judicial review of the treatment of prisoners at Guantánamo and other U.S. detention sites overseas; it limits certain key protections available to the accused in a military commission proceeding, as compared to courts-martial; and it takes a crabbed view of the requirements of common Article 3 of the Geneva Conventions—at least as applied to the actions of U.S. agents. Nonetheless, further judicial and congressional reconsideration is certainly possible—and highly desirable.

To know where we are, we have to see ourselves from a distance. Otherwise the remarkable becomes commonplace.

I see the Military Commissions Act of 2006 from a temporal distance, specifically from the era of state-terror regimes in Latin America during which I served for eight years (1976 -1983) as a member of the Inter-American Commission on Human Rights, a principal arm of the Organization of American States (OAS). Those were the years in which governments scattered across the South American continent and the Central American isthmus, anticipating the policy views announced by United States Vice President Dick Cheney in an interview on “Meet the Press” in 2001, decided to go to what Cheney called the “dark side,” or, in the case of those who had long made that side their principal area of operations, decided to move a larger proportion of their respective peoples into it. Throughout the period, reports about the hell on earth my six colleagues and I exposed (in the somewhat stilted idiom official agents are driven to adopt) would appear episodically in the American press. Their implicit subtext was that these horrors were perpetrated by brutes as alien to American life as the venues where they operated.

The International Law Commission (ILC) of the United Nations held its fifty-eighth session in Geneva from May 1 to June 9, and from July 3 to August 11, 2006. This was the final year of the Commission's most recent five-year term (or quinquennium), and it finished work on several topics by completing sets of draft articles on diplomatic protection, principles on international liability for transboundary harm, “guiding principles” on unilateral acts, and conclusions on fragmentation of international law. The Commission also completed its first reading of articles on transboundary aquifers; continued its work on reservations to treaties, responsibility of international organizations, and the effect of armed conflict on treaties; began its consideration of the obligation to extradite or prosecute and the expulsion of aliens; and added a variety of new topics to its long-term program.

In November 2005, the U.S. media reported that the Central Intelligence Agency was operating secret detention facilities in a handful of foreign countries, including two in eastern Europe, and that detainees were often transferred between those facilities and states known to engage in torture. The news that terrorism suspects may have been denied their human rights in member states of the Council of Europe caused concern within the Council and triggered several responses. Within days of the media reports, the Council's Parliamentary Assembly appointed a rapporteur to investigate the extent to which member states were participating in the CIA program. The rapporteur, in turn, asked the Venice Commission to prepare a legal opinion on the member states’ related international obligations. On the basis of that opinion, and the rapporteur's finding that a fair number of member states had acquiesced or participated in the CIA program, the Parliamentary Assembly adopted a resolution and a recommendation intended to safeguard against such conduct in the future. Separately, the secretary general of the Council invoked his authority under Article 52 of the European Convention on Human Rights (ECHR) to survey member states on relevant aspects of their domestic legal systems, including whether those systems contain controls on foreign state conduct deemed to infringe ECHR rights.

European Communities—Measures Affecting the Approval and Marketing of Biotech Products. WT/DS291/R, WT/DS292/R, & WT/DS293/R. At <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.

World Trade Organization Panel, September 29, 2006 (adopted November 21, 2006).

In what was by far the longest panel report in the World Trade Organization’s history, a WTO panel ruled last September that various parts of the European Communities’ regulatory regime for the approval and marketing of “biotech products” (that is, products that contain, or are made from or with, genetically modified organisms (GMOs)) violated the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The panel report was not appealed and was adopted by the WTO Dispute Settlement Body on November 21, 2006.

In recent years, a heated international debate has developed regarding the production and consumption of food made from or with GMOs. Among the key players in this debate, the United States, supported by many companies who have developed GMO-based products, has pushed for their acceptance; by contrast, the European Communities (EC) and its member states, backed by consumer groups and other activists, have tried to restrict their use through various regulations.

Public Committee Against Torture in Israel v. Government of Israel. Case No. HCJ 769/02. At <http://elyonl.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf>.

Supreme Court of Israel, sitting as the High Court of Justice, December 13, 2006.

In Public Committee Against Torture in Israel v. Government of Israel1 Targeted Killings) the Supreme Court of Israel, sitting as the High Court of Justice, examined the legality of Israel's “preventative targeted killings” of members of militant Palestinian organizations. The Court's unanimous conclusion reads:

“Aerial Security Law.” Case No. 1 BvR 357/05. 115 BVerfGE 118. Available at <http://www.bundesverfassungsgericht.de>.

Bundesverfassungsgericht (Federal Constitutional Court of Germany), February 15, 2006.

On February 15,2006, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) held the Aerial Security Act to be unconstitutional. This act authorized the use of military force against any aircraft intended to be used for the killing of human beings, if the use of such force was the only means to avert an immediate danger. The Court based its ruling on two grounds: first, that the federal level of government had no legislative power to enact such a law, and second, that the act's authorization of military force infringed upon the guarantee of human dignity as embodied in Article 1(1) of the German Constitution, or Basic Law (Grundgesetz).

On January 5, 2003, a small airplane circled over the Frankfurt banking district. For a few moments people saw themselves confronted with a terror attack, recalling 9/11 and the pictures of the burning World Trade Center. The police evacuated several buildings and two Air Force fighter jets arrived before it was established that the pilot was not a terrorist but merely a mentally confused person. A year later, in January 2004, the federal government proposed a draft federal Aerial Security Act. The government argued that the attacks of 9/11, along with the Frankfurt incident, made clear that in order to protect against such attacks, it was necessary to clarify the roles of the federal and state (Länder) governments. “This draft is meant to achieve that aim … and to establish quick and efficient mechanisms for information gathering and decision.”

Natural Resources Defense Council v. Environmental Protection Agency. 464 F.3d 1.

United States Court of Appeals for the District of Columbia Circuit, August 29, 2006.

In Natural Resources Defense Councilv. Environmental Protection Agency, the U.S. Court of Appeals for the District of Columbia Circuit held that certain decisions of the parties acting under the international legal regime to protect the ozone layer are not “law” with which EPA must comply under the Clean Air Act. In dicta, the court suggested that holding the decisions to be “‘law’ would raise serious constitutional questions in light of the nondelegation doctrine, numerous constitutional procedural requirements for making law, and the separation of powers” (p. 9).

The purpose of the international ozone regime—in particular, the Vienna Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances That Deplete the Ozone Layer—is to protect stratospheric ozone, which intercepts harmful ultraviolet radiation from the sun. Unlike oxygen (O2), ozone (O3) is unstable: when a chlorine or bromine compound reaches the stratosphere, it sets off chemical chain reactions that destroy thousands of ozone molecules. As industrial production of such compounds has increased, stratospheric ozone has been depleted, allowing more ultraviolet radiation to reach the Earth, where it causes skin cancer and cataracts, reduces agricultural productivity, and harms the environment. The ozone regime reduces ozone-depleting substances (ODS) in the stratosphere by phasing out their production.