Two centuries down the road of history, the constitutional ordering of “that vast external realm” remains very much a fuzzy experiment. The national experience has yielded few certain answers to the great question how the foreign relations power is allocated.

In this dispute settlement action in the General Agreement on Tariffs and Trade (GATT), the complainant European Communities (EC) challenged the 1986 Japan-U.S. Arrangement on Semiconductor Trade (Arrangement). The panel of three experts found that (1) export regulations that prevent or quantitatively restrict exports below a minimum price level are inconsistent with GATT Article XI; (2) a complex of Japanese government measures including non-legally binding administrative guidance to prevent semiconductor exports below cost were such export restrictions and, hence, inconsistent with GATT Article XI; (3) the GATT’s provisions on dumping in Article VI neither justify nor forbid such restraints by exporting countries; and (4) the evidence did not show that Japanese actions to improve market access for foreign semiconductors had discriminated in favor of U.S. products.

In 1986 Egypt and Israel agreed to submit for resolution by binding arbitration the boundary disputes involving the location of 14 demarcation pillars along their shared border on the Sinai Peninsula. A five-member tribunal (Tribunal), appointed and empowered under provisions of the 1979 Treaty of Peace Between Egypt and Israel (Treaty), and authorized by the Compromis to adopt only locations proposed by one of the state parties, held (4-1): that the Egyptian position is to be accepted on the most important dispute, the location of the southernmost pillar denoting “Ras Taba on the western shore of the Gulf of Aqaba”; and, with respect to the 13 remaining pillars in an uninhabited desert region, the position of Egypt is to be accepted in nine instances and that of Israel in four. Professor Lapidoth dissented from the decision as to the pillars in the Taba and Ras el Naqb areas.

The successive holders of the office of Secretary-General of the United Nations have displayed considerable boldness and resourcefulness in the exercise of powers not spelled out in the Charter of the Organization but regarded as inherent in the office. Not surprisingly, the majority, but not all, of the numerous instances in which the United Nations Secretary-General has acted under those powers have concerned political questions. This activity, which usually aims either at forestalling potential disputes or at settling or assisting in the settlement of actual ones, has taken on a multiplicity of forms. In fact, just prior to the substantive involvement of the Secretary-General in the Central American situation, which was initiated in November 1986 and constituted yet another example of the use of his inherent powers, a point had been reached where very little room appeared to remain for significant innovation in the use of those powers to promote the settlement of disputes. Nevertheless, that situation gave the UN Secretary-General an opportunity to demonstrate that new ground could still be broken in this respect.

The second session of the International Telecommunication Union’s World Administrative Radio Conference (WARC) on the planning of the geostationary satellite orbit (GSO) for space telecommunications was held in Geneva from August 29 to October 6, 1988. This conference, known as the “Space WARC,” completed a long process of international negotiations. It established a new regulatory regime for satellite telecommunications, the primary commercial use of outer space, that should be effective for at least 20 years.

Considerable ink has been spilt on the subject of 28 U.S.C. §1350, the Alien Tort Statute. My limited purposes here are to address Anne-Marie Burley’s appealing analysis of the statute presented in the last issue of the Journal and to draw attention to significant legislation that casts additional light on the framing of the statute. My comments relate to Oliver Ellsworth, the drafter of section 1350 and the most influential senator in the First Congress, which enacted the Alien Tort Statute.

A recent meeting of governmental and indigenous nongovernmental experts in Geneva paved the way for more direct indigenous participation in United Nations decision making, and challenged the international community to harness multilateral development assistance for the promotion of indigenous peoples’ rights.

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.

In response to a request by Canadian tax authorities under the United States-Canada Double Taxation Convention (Convention), the U.S. Internal Revenue Service (IRS) issued summonses to obtain U.S. bank records concerning certain accounts of respondents, Canadian citizens whose Canadian tax liability was under investigation. Respondents sought to quash the summonses, arguing that because under 26 U.S.C. §7609(b) the IRS is prohibited by U.S. law from using its summons authority to obtain information about a U.S. taxpayer once a case is referred to the Justice Department for prosecution, and because the tax investigation of respondents was part of a Canadian criminal investigation, the IRS should be precluded from using its summons authority to honor the Canadian request under the Convention. Unsuccessful in the district court, respondents prevailed in the U.S. Court of Appeals for the Ninth Circuit, which held that under the “good faith” standard applicable to enforcement of domestic summonses, the IRS may issue a summons pursuant to a Convention request only if it first determines and makes an affirmative statement to the effect that the Canadian investigation has not reached a stage analogous to a Justice Department referral by the IRS. The U.S. Supreme Court (per Brennan, J.) reversed, and held: (1) that if the summons is issued in good faith, it is enforceable regardless of whether the Canadian request is directed toward criminal prosecution under Canadian law; and (2) neither United States law nor anything in the text or the ratification history of the Convention supports the imposition of additional requirements. Justice Kennedy (joined by O’Connor, J.), concurring in part and in the judgment, filed a brief opinion to state his view that it is unnecessary to decide whether Senate preratification materials are authoritative sources for treaty interpretation. Justice Scalia, concurring in the judgment, wrote separately to oppose the use of such materials in treaty construction.