Self-defense on the international level is generally regarded, at least by international lawyers, as a legal right defined and legitimated by international law. Governments, by and large, appear to agree. When they have used force, they have nearly always claimed self-defense as their legal justification. Governments disputing that claim have usually asserted that the legal conditions of self-defense were not met in the particular case. However, despite the apparent agreement that self-defense is governed by law, the meaning and validity of that proposition remain open to question. There are some who challenge the basic idea that the security of a state—its self-preservation—can and should be subjected to international law. Others question whether under present conditions the ideal of a rule of law can be applied on the international level to national security decisions. My aim in this essay is to explore some aspects of the problem raised by these challenges to the applicability of international law to claims of self-defense. It is not my intention, I should add, to consider specific interpretations of self-defense.

International commercial arbitration is being enthusiastically promoted throughout the international legal community. Congresses and conferences abound; over three hundred delegates attended the 1988 Tokyo conference of the International Council for Commercial Arbitration. New arbitration journals proliferate. New international arbitration centers compete for business, particularly around the Pacific Rim in such locations as Hong Kong (opened in 1985), Los Angeles (1985), Melbourne (1985) and Vancouver (1986).

On two occasions in the recent past, the International Court of Justice has misstated its own prior holdings by selective quotation. In each instance, the partial quotation was invoked as authority for the opposite of what the previous Court had said. Neither matter was de minimis: in each instance, the issue for which authority was being sought was central either to the case at bar or to an important aspect of the Court’s role. The consequences for the future of international adjudication and the stability of authoritative expectation, which is such an important strut of international law, are serious and merit examination.

How quickly one forgets. On Sunday, July 3, 1988, an Iran Air A300 Airbus, with 290 persons on board, was shot out of the sky by two surface-to-air missiles launched from the U.S.S. Vincennes, a guided-missile cruiser on duty with the United States Persian Gulf/Middle East Force. The first reports from Washington were that the Vincennes had acted in self-defense against hostile Iranian aircraft. Some 12 hours later, the Pentagon admitted that the Vincennes had made a mistake, that the aircraft it saw approaching was a wide-bodięd airliner on a regularly scheduled flight, not an F-14 Tomcat with hostile intent and capability.

On July 3, 1988, the U.S.S. Vincennes, already involved in an exchange of fire with a group of Iranian naval craft (Boghammar boats) in the international waters of the Persian Gulf, shot down an unidentified aircraft that had just departed from the joint military-civilian airfield at Bandar-e Abbas After repeated, unsuccessful efforts by the Vincennes to establish contact with the unidentified aircraft, the captain, believing that his vessel might be attacked within minutes by an Iranian military aircraft sent to assist the gunboats engaged in the surface exchange, ordered the still unidentified aircraft to be fired upon. The aircraft was shot down, and was only afterwards identified as a civil airliner, Iran Air Flight 655. The incident resulted in the deaths of 290 individuals from six nations.

The question whether the United States Government should pay ex gratia compensation to the survivors of those killed in the accidental destruction of Iranian Airlines Flight No. 655 raises some important issues of law and policy. In the following comments, I have attempted to provide a brief overview of the issues involved. …

The flight crew of flight IR655 was properly certificated and qualified for the scheduled international passenger flight in accordance with existing regulations. There was no indication that the flight crew may not have been physically or psychologically fit.

The first thing to learn about any incident or accident involving airplanes is “wait.” The initial reports never have it quite right. This was true about KAL Flight 007, about Pan Am Flight 103, about the bombing of Tripoli and Bengazi, and about Iran Air Flight 655.

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.

On July 28, 1986, the Republic of Nicaragua filed an application instituting proceedings against the Republic of Honduras in the International Court of Justice. Nicaragua alleged that Honduras had allowed armed bands, known as contras, to operate from its territory to the detriment of Nicaraguan sovereignty, that Honduran military forces had directly participated in attacks on Nicaragua and that the Government of Honduras had given material aid and logistical support to the rebels. Nicaragua requested that the Court declare the acts and omissions of Honduras to be violations of international law and order it to desist from all such activities and to make reparations to Nicaragua. Honduras objected to the jurisdiction of the Court and to the admissibility of the Application. The parties subsequently agreed that the Court should first decide these questions before proceeding to the merits. Relying on the Pact of Bogotá for its jurisdictional rationale, the Court unanimously held: that it had jurisdiction and that the Application could be entertained.

Canadian, Finnish and United States producers of wood pulp and two trade associations of such producers, one Finnish and one American, applied to the Court of Justice of the European Communities for annulment of a 1984 decision of the Commission of the European Communities. Under the 1984 decision, the Commission found the applicants to have infringed Article 85 of the EEC Treaty by engaging in concerted actions relating to the prices of wood pulp exports into the European Community (EC). The applicants, whose registered offices were all outside the Community, were ordered to terminate the pricing practices and to refrain in the future from measures having the same object or effect. The Commission fined all but two of the applicants for their past conduct. In this preliminary judgment, the Court held: (1) that the territorial scope of Article 85 of the EEC Treaty applies to the pricing practices of the applicants; (2) that by applying Article 85 to such practices, the EC had not infringed the public international law principles of territoriality and noninterference; (3) that the Commission’s decision is vacated insofar as it concerns the pricing actions of KEA, an association of U.S. wood pulp producers registered as an export cartel under the Webb-Pomerene Act; and (4) that the competition rules in the Free Trade Agreement between Finland and the Community do not preclude the application of the EEC Treaty.

The Inter-American Commission on Human Rights (Commission) brought this action in 1986 against the Government of Honduras in the Inter-American Court of Human Rights. The Commission alleged that Honduras had violated Articles 4, 5 and 7 of the American Convention on Human Rights (Convention) with respect to the 1981 detention and subsequent disappearance of a Honduran student, Angel Manfredo Velásquez Rodríguez. The Court ruled for the Commission and unanimously held: (1) that domestic Honduran legal remedies were ineffective and did not bar the Court’s jurisdiction; (2) that a systematic pattern of disappearances was carried out or tolerated by Honduran government officials from 1981 to 1984; (3) that Honduras had violated the victim’s rights as part of that practice; and (4) that Honduras must therefore compensate the family of the victim and that any agreement on the form and amount of compensation must be approved by the Court. The Court further held, by six to one, that it would decide the form and amount of compensation if Honduras and the Commission were unable to negotiate an agreement within 6 months. Judge Piza filed a dissenting opinion.

In an action brought in the U.S. District Court for the Southern District of New York, plaintiff, the National Petrochemical Co. of Iran (NPC), sought damages against Monnris Enterprises of Dubai, the United Arab Emirates, Rotexchemie Brunst & Co. of Hamburg (Rotex), and Rotex’s Geneva affiliate, Formula S.A., for breach of an agreement to sell chemicals to NPC. Asserting that NPC is a subsidiary of the National Iranian Oil Co., which is in turn owned wholly by the Government of Iran, defendants moved to dismiss on the ground that the United States does not recognize the Khomeini Government of Iran and, hence, that neither Iran nor its instrumentality NPC has standing to sue in U.S. courts. The district court granted the motion, NPC appealed and the U.S. Court of Appeals for the Second Circuit held: (1) that a foreign state may have standing to sue in U.S. courts even if the United States does not recognize its government or have diplomatic relations with it; (2) that an unrecognized government will have standing to sue if the U.S. executive branch has evinced a willingness to permit the plaintiff to litigate its claims in U.S. courts; and (3) that the level of intercourse between the United States and Iran, and a Statement of Interest filed in this case by the United States as amicuš curiae, show that the executive branch is willing to permit NPC to litigate its claims in U.S. courts.

A federal grand jury investigating possible criminal violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. §§ 1961 — 1968 (1982)) (RICO) by former Philippine President Ferdinand Marcos and his wife issued subpoenas requiring the Márcoses to provide handwriting and voice exemplars and fingerprints, and to sign forms authorizing the release of confidential banking records. The Márcoses refused to comply with the subpoenas and were held in civil contempt. On appeal, the U.S. Court of Appeals for the Second Circuit (per Cardamone, J.) affirmed the contempt order and held that (1) the current Government of the Philippines had effectively waived whatever head-of-state immunity the Márcoses might have otherwise enjoyed; (2) United States law governed the Márcoses’ privilege against self-incrimination, rather than the arguably broader provisions of Philippine law; and (3) the trial court had the authority to enforce the grand jury’s order requiring the Márcoses to waive foreign financial secrecy laws.

Plaintiff, a United States citizen employed in Saudi Arabia, brought an employment discrimination suit against defendant, a U.S. corporation, alleging violations of title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e (1982)). The U.S. Court of Appeals for the Fifth Circuit affirmed (per Davis, J.) the district court’s dismissal of the suit for lack of subject matter jurisdiction and held (two to one): (1) that neither the language nor the legislative history of title VII evinces a clearly expressed congressional intent to apply title VII outside U.S. borders; (2) that in the absence of clearly expressed congressional intent to the contrary, the presumption against extraterritoriality controls; and (3) that no “negative inference” extending the reach of title VII should be drawn from its “alien exemption” provision. Judge King’s dissent discussed international law principles not addressed by the majority. The Fifth Circuit subsequently granted on December 23, 1988, the petition for rehearing en banc submitted by plaintiff and various amici, including the Equal Employment Opportunity Commission (EEOC).

Appellants sued President Reagan and other executive branch officials in the U.S. district court to enjoin U.S. military aid to the Nicaraguán resistance forces (contras), alleging that the aid violated the Fifth Amendment to the Constitution, the United Nations Charter and customary international law. The district court, in an unpublished opinion, dismissed the complaint as presenting nonjusticiable political questions. The Court of Appeals for the District of Columbia Circuit (per Mikva, J.), affirming the dismissal on different grounds, held that (1) the trial court’s blanket invocation of the political question doctrine was inappropriate; (2) the statute funding the contras prevails over any earlier obligations under treaties or customary international law; (3) individuals have no private right of action to enforce decisions of the International Court of Justice; (4) adherence to an ICJ judgment rendered under a disputed assertion of compulsory jurisdiction is not required as a matter of jus cogens; and (5) plaintiffs had failed to show that U.S. government support of the contras caused their injuries or was so arbitrary and unreasonable as to violate their Fifth Amendment rights.

On remand after reversal of a prior denial of a motion to reopen deportation proceedings and a final order of deportation, petitioner, a native and citizen of El Salvador, presented a renewed application for political asylum as a refugee under section 208(a) of the Immigration and Nationality Act (8 U.S.C. §1158(a) (1982)) (INA or Act). The Immigration Judge found that petitioner had failed to present a prima facie case for eligibility under section 208(a) of the INA, a prerequisite to reopening his deportation proceedings for a hearing on the merits of the asylum claim, and therefore denied petitioner’s motion to reopen and issued another final order of deportation. Petitioner appealed, and the Board of Immigration Appeals (BIA) affirmed. On petition for review of the BIA’s decision, the U.S. Court of Appeals for the Fourth Circuit (per Winter, J.) reversed the order denying the motion to reopen, remanded the case for determination on the merits of whether petitioner is eligible to be granted political asylum, and held: that petitioner had made a prima facie case that he merits refugee status and thus consideration for political asylum on the basis of his sincere refusal to participate in actions of the Salvadoran Armed Forces condemned by the international community and the likelihood that he would be punished for his refusal to serve with those forces. Judge Murnaghan filed a concurring opinion. On January 5, 1989, the Fourth Circuit granted the Justice Department’s request for a rehearing en banc based on the Department’s position that the decision presented an issue of “exceptional importance” and could have “an enormous potential impact” on U.S. asylum law.