In Imperfect Alternatives: Institutional Choice and the Reform of Investment Law, Sergio Puig and Gregory Shaffer introduce comparative institutional analysis to evaluate alternative processes for resolving investment disputes. The impetus for this article is clear: many states view investor-state arbitration as akin to a horse that has bolted from the barn. Wishing to close the stable door, a wide range of states are considering the merits of various reform proposals. Puig and Shaffer's comprehensive and balanced framework for assessing the tradeoffs involved in making different choices is thus a welcome and timely intervention in these (often highly polarized) debates.

The purpose of this article is to suggest new ways to make international law for the environment. The existing methods are slow, cumbersome, expensive, uncoordinated and uncertain. Something better must be found if the environmental challenges the world faces are to be dealt with successfully. Nearly twenty years after the Stockholm Declaration, we still lack the institutional and legal mechanisms to deal effectively with transboundary and biospheric environmental degradation. The 1992 United Nations Conference on Environment and Development presents an opportunity to make progress. Unfortunately, my reading of the situation in late 1991 suggests that there is no political will to take decisions that will give us the tools to do the job.

James Wilford Garner has given us a profound, detailed and highly valuable Report on The Law of Treaties. This report contains, it is true, a rule concerning the validity of a treaty which is in conflict with an earlier treaty. On the other hand, there is no consideration, as far as this writer can see, of treaties which are in conflict with general international law, a problem which has been discussed many times.

The Socialist Federal Republic of Yugoslavia consisted of six republics (Slovenia, Croatia, Serbia, Bosnia-Hercegovina, Montenegro and Macedonia) and two autonomous regions (Kosovo and Vojvodina). Its overall population was recently estimated as 23.69 million. There were 8.14 million Serbs, 4.43 million Croats, 1.75 million Slovenes, 1.73 million Albanians, 1.34 million Macedonians and 1.22 million “Yugoslavs,” as well as a variety of other minorities.

Slovenia has a population of 1.94 million, 90 percent of whom are ethnic Slovenes. There are small minorities of ethnic Serbs, Croats and Hungarians.

The rapid and fundamental developments in the last few years on the establishment of individual criminal responsibility for serious violations of international humanitarian law have been such that it is now an appropriate time to assess their principal features.

Following September 11, 2001, the Security Council took a number of important steps in the fight against terrorism. It condemned global terror and recognized the right to self-defense under Article 51 of the UN Charter in responding forcefully to those horrific attacks. Perhaps its most significant action in this area, however, was the adoption of Resolution 1373 which established the Counter-Terrorism Committee (the CTC). Addressing the significance and substance of this Security Council action, this essay reviews the work of the CTC to date, highlighting some of its accomplishments, and then touches upon some of the challenges the CTC will likely confront as it progresses with its mission. How it chooses to confront these challenges will surely have a considerable impact on its future work.

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.

Within the span of only a few months in 1999, the United Nations was faced with one of the greatest challenges in its recent history: to serve as an interim government in Kosovo and East Timor.

In Kosovo, in response to massive attacks on the Kosovar Albanian population, including orchestrated and wide-scale “ethnic cleansing,” the North Atlantic Treaty Organization (NATO) conducted an eleven-week air campaign against Yugoslav and Serbian security forces and paramilitary groups. The campaign resulted in the agreement of the Federal Republic of Yugoslavia to withdraw all Yugoslav and Serbian security forces from the territory. On June 10,1999, one day after the suspension of NATO’s air strikes, the United Nations Security Council adopted Resolution 1244 (1999), establishing the United Nations Interim Administration in Kosovo (UNMIK).

Nearly three decades ago I published in this JOURNAL an article in which I tried to prove that even in international law there exist rules having the character of jus cogens; i.e., norms with which treaties must not conflict. Since my eminent colleague in the International Law Commission, Ambassador Tabibi, mentioned in a meeting of this Commission that the view expressed in my article “foreshadowed the solution” embodied in Article 37 of the Commission’s draft Convention on the Law of Treaties concerning the problem of jus cogens in international law, I feel obliged to defend this draft against the criticism directed against it by the eminent English lawyer, Professor Georg Schwarzenberger.

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained with respect to who gets citizenship and on what terms. Historically, citizenship status has been considered a matter of national self-definition, jealously insulated more as a matter of reflex than justification. Nationality has been equated with identity, in most cases coinciding with ethnic, religious, or other sociocultural community markers, which, in turn, have more or less mapped onto territorial spaces.

The UN Convention on the Law of the Sea (UNCLOS) establishes a legal framework to govern all uses of the oceans. All of the states bordering the South China Sea—Brunei Darussalam, China, Indonesia, Malaysia, the Philippines, and Vietnam—are parties to UNCLOS. Taiwan, which also borders the South China Sea, has taken steps to bring its legislation into conformity with UNCLOS.

The American Society of International Law (ASIL), incorporated by Act of Congress in 1950, was founded in 1906 “to promote the establishment and maintenance of international relations on the basis of law and justice.” As we celebrate the centennial of this, the Society’s principal publication, it is appropriate to examine the present and future prospects of this project. Is it still a compelling aspiration in the era of U.S. superpower-dom?

The founding of the Society and initiation of the Journal (AJIL) must be seen in the context of the then-prevalent American commitment to the idea that a world of international law and international tribunals would be a natural, even historically inevitable, extrapolation of a good American idea. Speaking in 1890 to the first Pan-American Conference, President Benjamin Harrison congratulated the delegates on formulating a hemispheric arbitration agreement. “We rejoice,” he said, “that you have found in the organization of our Government something suggestive and worthy of imitation.” At The Hague in 1907, Secretary of State Elihu Root, the founding president of the ASIL, called for the creation of an international court “which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States.”

Trade and the environment. Trade and workers’ rights. Trade and competition policy. Trade and eighteen million tiny feet. It begins to resemble a question from an IQ test: which of the preceding pairs of issues does not fit? Increasingly, it seems there is no pairing with trade for which some argument cannot be made. The “trade and …” industry is booming.

Antarctic tourism is a rapidly growing industry. From 1958 until 1987, an average of fewer than 1000 tourists visited Antarctica each season. In the 1993-1994 season, the tourists visiting Antarctica outnumbered the scientists for the first time. In recent years (1999-2003), between 13,000 and 15,000 tourists made landings in Antarctica, and during the last season (2003-2004) this number increased by 45 percent to more than 19,500 (see figure 1, p. 764). The estimate of total passengers for the 2003-2004 season, including those not landing, is over 27,000.

The Vienna Convention on the Law of Treaties, the product of two lengthy sessions of the hundred-and-ten-nation conference held in 1968 and 1969 and of preparatory work extending over fifteen years by the International Law Commission, is the first essential element of infrastructure that has been worked out in the enormous task of codifying international law pursuant to Article 13 of the United Nations Charter. The previous codification treaties, the four conventions on the Law of the Sea, the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations and the Convention on the Reduction of Statelessness, did not, despite their intrinsic importance, grapple with the fundamentals of constructing a world legal order.

Should the International Court of Justice (ICJ) “judicially review” Security Council decisions? The question, once fanciful, is now being asked seriously by litigants in and judges on the World Court, nonpermanent members of the Security Council that consider it an “undemocratic” body acting as “a cloak for a new form of imperialism,” and scholars worried about its recent “quasi-legislative” or “quasi-judicial” acts. The recent throng of commentators and advocates includes students of realpolitik warning the Court against any unrealistic attempt to transform the United Nations collective security scheme into a constitutional structure of checks and balances, and legalists grasping hopefully for hints of Marbury v. Madison in recent World Court pronouncements.

The adoption by the International Law Commission (ILC) in 2001 of its articles on state responsibility is an achievement that presents a paradox. This essay is about the form and authority of the articles, and the paradox that they could have more influence as an ILC text than as a multilateral treaty. The essay addresses the questions of the appropriate authority to be given an ILC text, why undue influence may be attributed to an ILC text (particularly by arbitral tribunals), and how an arbitral tribunal should approach interpreting and applying the articles on state responsibility.