Throughout history, decisions to go to war have been made by a handful of individuals in powerful positions. American constitutionalists from James Madison’s day through our own have tried to establish a better system of deciding for war, by shifting the locus of responsibility from one person to a broadly representative group. The Persian Gulf crisis has shown all too vividly what dangers lie in the persistence of processes that put awesome amounts of force at the disposition of single individuals, and how much is at stake in developing and nurturing structures of deliberation and accountability.

Out of the long catalog of international law issues pertaining to prisoners of war, civilians and diplomats currently affected by the Persian Gulf crisis, I have selected for brief discussion a few that merit special attention.

Students of the concept of erga omnes trace its antecedents to the early recognition of the right of humanitarian intervention, which they often attribute to Grotius. Professor Hersch Lauterpacht asserted that Grotius’s writings contained “the first authoritative statement of the principle of humanitarian intervention— the principle that exclusiveness of domestic jurisdiction stops when outrage upon humanity begins.” However, some of the other principal works on international law before the Peace of Westphalia (1648) reveal that the concept of community interests, and the modern right of humanitarian intervention it spawned, is pre-Grotian, that it appeared in the writings of Suárez and figured prominently in those of its true progenitor, the earlier Gentili.

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.

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.

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.

Our intramural, often scholarly, but not always polite, debates about the legitimacy of invasions directed against more-or-less brutal authoritarian governments demonstrate how one’s preferred conception of the nature of law can affect one’s conclusions about its contents.

The celebrants of what I will call the classical view display the following characteristics: while recognizing that states can establish and alter norms through both explicit agreements normally expressed in written texts and implicit agreements manifested in practice, they tend in their epistemology toward a rather strict separation of these two processes; when attempting to identify norms arising from explicit agreements, they presume that the parties had an original intention which can be discovered primarily through textual analysis and which, in the absence of some unforeseen change in circumstances, must be respected until the agreement has expired according to its terms or been replaced by mutual consent; when attempting to identify norms arising from implicit agreement, they rely primarily on relatively formal manifestations of consent, deemphasize the relative power of states, and imply a high threshold below which alleged norms are entirely without legal character.

In this case before a Chamber of the International Court of Justice, El Salvador and Honduras, by a Special Agreement dated May 24, 1986, requested that the Chamber delimit the land frontier and determine the legal status of certain islands and waters in the general area of the Gulf of Fonseca. The gulf, located on the Pacific coast of Central America, is bordered by El Salvador, Honduras and Nicaragua. Nicaragua filed an application for permission to intervene in the case on November 17, 1989, pursuant to Article 62 of the Statute of the Court, which permits a state to request intervention if the state considers “that it has an interest of a legal nature which may be affected by the decision in the case.”

The unanimous judgment of the European Court of Human Rights in the Soering case, handed down on July 7, 1989, holds that Great Britain’s extradition of the applicant to the United States to stand trial for capital murder, an offense punishable under the applicable Virginia law by “death, or imprisonment for life,” would violate the prohibition against “inhuman or degrading treatment or punishment” in the European Convention on Human Rights. Aside from its effect on the future ability of the United States (and many other countries) to obtain the extradition from Council of Europe countries of persons charged with offenses carrying the death penalty, the judgment in Soering has implications of a far wider nature for international criminal law, the law of state responsibility, the jurisprudence of the European Convention, and international human rights law in general. Some of these implications are obvious and immediate; others are more speculative and long range. Like the proverbial pebble thrown in the pond, Soering will cause ripples for some time to come.

The dispute arose out of a 1985 settlement of litigation between Vincente Chuidian, a Philippine national, and the Philippine Export and Foreign Loan Guarantee Corporation (Guarantee Corporation). As part of the settlement, the state-owned Philippine National Bank (Bank) issued a letter of credit to Chuidian on behalf of the Guarantee Corporation. After the Government of President Aquino took office in 1986, the Presidential Commission on Good Government (Commission) was formed and “charged with recovering ‘ill-gotten wealth’ accumulated by Marcos and his associates.” The Commission was authorized to enjoin acts that might frustrate its efforts. Raul Daza, a member of the Commission, instructed the Bank not to pay on the letter of credit issued to Chuidian, claiming that the Commission suspected that the settlement had been fraudulently entered into to prevent the revelation of facts concerning Marcos’s involvement in Chuidian’s business enterprises.

Ali Boureslan, a naturalized U.S. citizen of Lebanese descent, was employed by the Arabian American Oil Co. (Aramco) as a cost engineer. Boureslan began his tenure with Aramco in 1979 in its Houston, Texas, office, but a year later he requested and received a transfer to the company’s offices in Saudi Arabia. Boureslan alleged that in the ensuing four years he was the victim of racial and religious harassment from his immediate supervisor. He was finally dismissed on June 16, 1984, for allegedly poor work performance.