During the last two decades, we have frequently heard about a “crisis” in the kingdom of international law. Without engaging in semantics, one can understand the word “crisis” in its normal dictionary meaning as “a turning point in the progress of anything”; more, “a state of affairs in which a decisive change for better or worse is imminent.” However, these connotations are not necessarily present in the minds of those who apply the term to international law. They intend rather to refer to the weakness to which it is condemned, to its subordinate role and fragile existence; even international lawyers may speak of its “ambiguity.” In some instances, they point to the prevalence of a sense that “resort to legal arguments by policy-makers may be detrimental to world order and thereby counterproductive for the state that uses such arguments.” Thus, a picture of gloom is painted and the world almost consigned to lawlessness in international relations.

The global multilateral trading system and its centerpiece, the General Agreement on Tariffs and Trade (GATT), are facing a new challenge from a quite unexpected quarter. The GATT is under attack by some in the environmental community who charge that international free trade blindly fosters the exploitation of natural resources. The GATT is depicted as a sinister charter that allows “big business” a free hand to plunder the bounty of the natural world. In certain environmentalists’ view, “free trade can destroy the environment.” Thus, a segment of the large and influential environmentalist lobby has joined the growing coalition of interests seeking to scuttle what is left of international free trade.

Trade is not an end in itself; rather, it is a means to an end. The end is environmentally sustainable economic development. So viewed, there are legitimate constraints on trading patterns and practices that are necessary to ensure that the “instrument of trade” leads to environmentally sustainable development. Measures needed to protect the environment cannot be forsworn simply because they may adversely affect free trading relationships.

In United States v. Alvarez-Machain, the Supreme Court sustained the jurisdiction of a U.S. court to try a Mexican national, charged with various counts of conspiracy, kidnaping and the murder of a U.S. drug enforcement agent in Mexico, even though his presence in the United States was the result of abduction rather than extradition pursuant to the Extradition Treaty between the United States and Mexico. The Court did not hold, as widely reported in the media, that the Treaty permits abduction, that abduction is legal, or that the United States had a right to kidnap criminal suspects abroad. On the contrary, the Court acknowledged that the abduction may have been a violation of international law. It stated, “Respondent and his amici may be correct that respondent’s abduction was ’shocking’ and that it may be in violation of general international law principles.”

On June 15, 1992, the United States Supreme Court confronted what the Permanent Court of International Justice termed in The Lotus to be “the first and foremost restriction imposed by international law upon a State: … that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” Contrary to popular criticism, the Court did not challenge that proposition. But it did apply, without adequate analysis, an antiquated doctrine that permits a defendant to be tried regardless of the unlawfulness of the seizure. In so doing, it ignored altogether the issue of presidential constitutional power to conduct such seizures. And it placed the issue squarely before Congress.

Using the United Nations Convention on the Law of the Sea of 1982 as a root stock, it is possible to generate a fundamentally new international law of the sea. This regeneration will not be the product of yet another diplomatic negotiation among the representatives of the governments of states. It will be brought about by a much more direct and efficient method. It requires nothing more nor less than a reconceiving of the theoretical basis of the law of the sea.

On May 19, 1992, President George Bush transmitted to the Senate for advice and consent to ratification the Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean, with Annex, signed at Moscow on February 11, 1992. An accompanying report by Secretary of State James A. Baker III, dated May 14, 1992, stated, in major part:

On May 22, 1992, the United Nations General Assembly admitted three new members—Slovenia, Bosnia and Hercegovina, and Croatia—all of them, in the past, constituent republics of Yugoslavia. Since June 1991, these three republics—as well as Macedonia—have seceded from the Yugoslav federation, which leaves only the two remaining republics—Serbia and Montenegro—to claim the name of Yugoslavia, as well as its rights and international status, including membership in the United Nations.