Commenting on the papers in this symposium is paradoxically a difficult task. The authors are remarkably distinguished and one can only learn from what they write. Indeed, I have learned much from them (especially from Dean David Leebron’s splendid clarification of several aspects of linkage, a paper that shows that he should have been an Oxford philosopher if only he had not been such a successful legal scholar). Yet it is easy for an invited commentator to be overwhelmed by despair because the authors write for the most part as if in a research vacuum. There is little attempt at relating what they write to the enormous literature on the problem of linkage.

European Communities—Measures Concerning Meat and Meat Products. WTO Doc. WT/DS26/AB/R & WT/DS48/AB/R.

World Trade Organization Appellate Body, January 16, 1998.

This report of the Appellate Body of the World Trade Organization (WTO) is both the most recent development in a long-running trade battle between the United States and the European Communities and the first dispute to be addressed under a new Uruguay Round agreement concerning food safety measures.

As public international law expands into new domains formerly excluded from its province, it will, for its “formal” sources, have to depend more and more on treaties as the nearest substitute for international legislation.

That a wrong done to an individual must be redressed by the offender himself or by someone else against whom the sanction of the community may be directed is one of those timeless axioms of justice without which social life is unthinkable. The most primitive form of redress which insisted on an eye for an eye and a tooth for a tooth was not really reparation at all, but retaliation pure and simple, treated as a substitute for reparation. Measures of individual retaliation are no longer permissible in municipal law and impartial tribunals are entrusted with the duty of determining the nature and the extent of the reparation for a given wrong according to the law of the land.

International law has tried to follow parallel lines of development in this respect but has failed to keep pace with municipal law, largely because of its inherent difficulties. Reprisals, which are no better than individual retaliation, continued till even the other day to be acknowledged as a legitimate mode of reparation. The Covenant of the League of Nations, while imposing restrictions on resort to war, left uncertain the right of nations to make use of force short of war, suggesting thereby that the legality of reprisals might remain untouched. The Charter of the United Nations forbids the use of force except in certain contingencies and the implication of the relevant provision may well be that reprisals are still legal as long as they do not involve the use of force.

The Iran-United States Claims Tribunal has been called “the most significant arbitral body in history”; its awards, “a gold mine of information for perceptive lawyers.” In a recent international commercial arbitration, however, an arbitrator reportedly stated that decisions of the Tribunal, although on point, were not persuasive because the Tribunal, after all, involves a special type of arbitration. This arbitrator is not alone. A lecturer at the Hague Academy of International Law, speaking on international commercial arbitration, reportedly did not refer to the Tribunal’s jurisprudence because he did not find it relevant to his work for the same reason. Viewed as a gigantic experiment in international dispute resolution rather than merely a claims settlement device for this particular group of disputes, the Tribunal thus appears (at least to some) to yield decisions of unclear precedential value. Millions of dollars have been spent on its operation and hundreds of awards rendered, yet an apparently not uncommon perception is that the work of this, in some respects unique, institution is not applicable elsewhere.

The object of the present article is to survey the problems and to assess the achievements and prospects of the codification of international law within the United Nations in the light of the experience of the first five years of the activity of the International Law Commission. The Charter, in Article 13, imposes upon the General Assembly the obligation to “initiate studies and to make recommendations … for the purpose of encouraging the progressive development of international law and its codification.” In pursuance of that article the General Assembly set up the International Law Commission and adopted a Statute regulating its functions and organization. The first session of the Commission took place in 1949. Since then, it has been meeting in yearly sessions lasting between eight and eleven weeks.

The United Nations Sub-Commission on the Prevention of Discrimination and the Protection of Minorities has an interest which is belied by its subordinate position in the international hierarchy. Apart from the intrinsic interest of the work in which it is engaged—work at the very heart of some of the most hotly debated issues in the United Nations—the Sub-Commission, because of the manner of its composition, possesses certain characteristics which differentiate it significantly from most other United Nations organs. Like the now defunct Sub-Commission on Freedom of Information and of the Press which was created at the same time, it consists, in theory, at least, of experts acting in their individual capacity, an arrangement which—because it gave its members a degree of independence not possessed by representatives of governments—would, it was hoped, permit them to contribute to the solution of certain problems in ways not possible to the latter. How has this arrangement worked in practice, if at all? Does the Sub-Commission really act as a body of independent experts, or are its decisions motivated by the same kind of political considerations which motivate its superior bodies? Why has it so singularly failed to make any contribution towards the protection of minorities? “What have been its successes and what is its future?

Retribution for the shocking crimes and atrocities committed by the enemy during World War II was made imperative by the overwhelming demands emanating from the public conscience throughout the civilized world. Statesmen and jurists realized that another failure to vindicate the law such as followed World War I would prove their incapacity to make progress in strengthening the international law of the future.1

The pre-Tridentine œcumenical councils of the Roman Catholic church were, as Dr. Francis Wharton has well remarked, international congresses, working toward the establishment of a uniform law for the civilized world. It was a law confined to one set of subjects; but among them were those having to do with the family relation, and which were therefore of the first importance to human society. Each nation of Christendom was represented in these gatherings by its sovereign or political delegates, as well as by its bishops, and it was for each nation, acting through its political departments, to ratify or reject such rules or laws in these respects as the council might propose.

The representation of political sovereignty in the Council of Trent was slight, and in the only œcumenical council since called by Eome — that of the Vatican — it was wholly wanting; Bavaria being the only power (though all European cabinets were consulted) which intimated a willingness to send an official delegate.

The international landscape on the regulation of domestic work is changing dramatically. At the hundredth session of the International Labour Conference (ILC) in June 2011, the International Labour Organization (ILO) adopted the historic Decent Work for Domestic Workers Convention, 2011 (No. 189) and accompanying Recommendation No. 201. These new international labor standards come sixty-three years after the ILO adopted its first resolution on the conditions of employment of domestic workers and forty-six years after its second such resolution, which recalled the "urgent need" for standards "compatible with the self-respect and human dignity which are essential to social justice" for domestic workers. The robust, comprehensive international norms were adopted after two decades in which the ILO's standard setting has been deeply criticized and its tripartite structure repeatedly challenged to become more representative. Since additional critique of the ILO standards system emerged at the ILC's 101st session in 2012, it would be an overstatement to suggest that the new instruments reflect an unequivocally positive trend in standard setting. Even so, they offer a critical realist basis for considering that ILO standard setting remains salient and that international social dialogue remains possible.

Although the United States has relied on the ICJ's doctrine of specially-affected states to claim that it and other powerful states in the Global North play a privileged role in the formation of customary international law, the doctrine itself has never been systematically developed by the ICJ or by legal scholars. This article fills that lacuna by addressing two questions: (1) what makes a state “specially affected”?; and (2) what is the importance of a state qualifying as “specially affected” for the formation of custom? It concludes that a theoretically coherent understanding of the doctrine would give states in the Global South significant power over custom formation.

The Convention on the Law of the Non-Navigational Uses of International Watercourses was adopted by the United Nations General Assembly on May 21, 1997. It was negotiated in the Sixth (Legal) Committee of the General Assembly, convening for this purpose as a “Working Group of the Whole,” on the basis of draft articles adopted by the International Law Commission (ILC). The negotiations in the working group were open to participation by all UN member states, as well as states that are members of specialized agencies of the United Nations. The Convention is divided into seven parts containing thirty-seven articles: Introduction; General Principles; Planned Measures; Protection, Preservation and Management; Harmful Conditions and Emergency Situations; Miscellaneous Provisions; and Final Clauses. An annex sets forth procedures to be used in the event the parties to a dispute have agreed to submit it to arbitration. This Note will focus on key provisions of the Convention and on those that were the subject of controversy during the working group’s deliberations. It assumes that the reader has access to the text.

Ever since the occupation of the West Bank and Gaza began in 1967, the Supreme Court of Israel has entertained petitions challenging actions of the Israeli authorities in those territories. The Court has delivered dozens of judgments in which it addressed questions of international humanitarian law in a situation of belligerent occupation. For a long time the Supreme Court was the sole judicial actor in this sphere. While its judgments were subjected to scrutiny and criticism by academics, no other judicial organs, domestic or international, ruled on the difficult legal issues discussed by the Court. The request for an advisory opinion provided the International Court of Justice (ICJ) with a unique opportunity to address and clarify some of the issues that had previously remained in the exclusive domain of the Supreme Court of Israel. Unfortunately, the Court did not take full advantage of this opportunity. As Judge Rosalyn Higgins noted in her separate opinion, the Court refrained from engaging in a detailed analysis of the law, thereby failing to follow “the tradition of using advisory opinions as an opportunity to elaborate and develop international law.” The opinion is especially weak on questions of international humanitarian law (IHL), which makes it extremely difficult to know what the Court actually decided on these questions.

In June 1994, some twelve years after the conclusion of the Third UN Conference on the Law of the Sea, the UN Secretary-General reported to the General Assembly that informal consultations had led to agreements that appeared to have removed the obstacles to general adherence to the 1982 UN Convention on the Law of the Sea.