“Hyperownership” describes in a word the present international legal landscape with respect to genetic material. At issue is who should own or control access to the subcellular genetic sequences that direct the structure and characteristics of all living things, or, in popular usage, nature’s or God’s blueprints for life. Traditionally, genetic material belonged to a global commons or open system. No one exclusively owned this material and countries freely shared it. In sharp contrast, today exclusive ownership and restrictions on the sharing of genetic material are the international norm.

Since the establishment of the World Trade Organization (WTO), commentators have debated the wisdom of replacing the model of political-diplomatic dispute settlement under the General Agreement on Tariffs and Trade (GATT) with a model of legalized dispute settlement. Under the GATT model, a dispute settlement panel report could be given full legal force only if adopted by a consensus of GATT Contracting Parties, including the party that lost the case. Under the WTO model, a report of the panel or the Appellate Body is adopted automatically unless WTO members, including the prevailing member, decide by consensus to block it, which is sometimes referred to as “negative consensus.” Many analysts whose work has focused on the politics of dispute settlement have emphasized the success, political flexibility, and apparent sustainability of the older model and cautioned that the legalized approach might be too cumbersome in various political contexts. Those favoring the legalized approach have emphasized its legitimizing capacity and potential to constrain more powerful WTO members from engaging in unilateral or rule-breaking behavior.

The twenty-first century has witnessed significant challenges to the traditional view that international humanitarian law exclusively regulates the use of force in armed conflict. The death and destruction caused on September 11,2001, reflect the increasingly complex nature of modern conflict. Groups that rely on the benefits of globalization and technological advances to conduct operations across international borders are threatening the maintenance of international order. Their tools of violence range from conventional weapons of war to more modern weapons of mass destruction and potentially asymmetric “cyber attacks.”

The tension between the protection of human rights and the demands of state sovereignty is reflected in the debate on whether state officials should be held responsible in external fora for international crimes committed while in office. This debate involves the interplay between two branches of international law. Firstly, there is the well-established law according immunities to the state and its agents from the jurisdiction of other states (state and diplomatic immunities). This law proceeds from notions of sovereign equality and is aimed at ensuring that states do not unduly interfere with other states and their agents. On the other hand, there are those newer principles of international law that are based on humanitarian values and define certain types of conduct as crimes under international law (international criminal law). One of the challenges in this latter area has been to develop international and national mechanisms by which individuals who commit these crimes may be held responsible. Since states often fail to institute domestic prosecution of their own officials and agents alleged to have committed international crimes, renewed attention has been paid to the possibility of subjecting state agents to prosecution in foreign domestic courts or in international courts. For such prosecution in foreign domestic courts to take place, it will usually have to be shown (1) that those courts have jurisdiction over crimes committed abroad by foreigners against foreigners (i.e..universalorquasi-universal jurisdiction),and (2) that such jurisdiction extends to state agents (i.e., that international law immunities are unavailable). Recent years have seen a significant increase in attempts to institute prosecutions for alleged international crimes in the national courts of states other than that where the acts occurred. However, it has not proved easy to establish the two propositions identified above. Indeed, it has become apparent that the views that states possess universal jurisdiction over international crimes committed abroad and that incumbent and former state officials are subject to foreign domestic prosecution for such crimes are by no means universally held.

Among “jurisconsults of recognized competence in international law” and “most highly qualified publicists of the various nations,” no one in the second half of the twentieth century did more than Oscar Schachter to influence both the theory and the practice of international law, especially the law of the United Nations Charter. When the centennial of the American Society of International Law arrives in two years, we will have occasion to reflect on his contributions to this Journal and many other endeavors of the Society, across a long and vigorous life.

Commentators on the International Court of Justice (ICJ) note that cases of noncompliance with final judgments are very rare. The ICJ registrar Philippe Couvreur, however, recognized that compliance is often hard to determine because judgments are varied, declarations may not reflect actual conduct, effects may only become apparent long after the judgment is given, and the legal or political situation may substantially change after the judgment. In this vein, Judge Jennings asked:

The concept of “common but differentiated responsibilities” (CDR) is receiving increasing recognition in international law. “Common” suggests that certain risks affect and are affected by every nation on earth. These include not only the climate and the ozone shield, but all risk-related global public goods, including peace, public health, and terrorism. In reducing the mutual risks, all nations should “cooperate in a spirit of global partnership.” Responsibilities are said to be “differentiated,” however, in that not all countries should contribute equally. CDR charges some nations, ordinarily the Rich, with carrying a greater share of the burden than others, ordinarily the Poor.

Should all internationally recognized human rights—economic, social, and cultural rights, as well as civil and political rights—be subject to the same individual-complaints procedures? This issue is now before a newly convened working group of the UN Commission on Human Rights. At its first meeting, from February 23 to March 5,2004, the Working Group debated the feasibility of elaborating an optional protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that would provide for the adjudication of individual and group complaints against states under that Covenant. Participating states were in sharp disagreement over the viability of the proposal, however, and the session ended in disarray. Since the Commission has recommended renewal of the Working Group’s mandate for two years, the issue remains open.

On the docket of the United States Supreme Court in 2004 is a substantial cluster of cases at the intersection of constitutional and international law. In the previous two Supreme Court Terms, the Court had adverted to sources of law and practice outside the United States, in its treatment of constitutional claims involving the death penalty and same-sex relationships. The apparent willingness of the Court to consider international and foreign authorities in reaching its conclusions on contested issues of constitutional law has raised to new promir nence the debate over the relationship between constitutional and international law. It is not yet clear whether the new (or newly rediscovered) interest of the Court in international sources presages a long-term trend toward a more cosmopolitan constitutional jurisprudence. On the assumption that this represents more than a passing fad, advocates before the Court in die current Term—for example, in the cases involving die “enemy combatant” detainees at Guantanamo Bay—have vigorously pressed arguments concerning international and foreign law in connection with the constitutional issues at stake. The Court's acceptance of quite a few cases raising a mixture of international and constitutional questions for decision in 2004 may signal that the Court is preparing for a new era of engagement with legal developments external to the United States, or, alternatively, that it seeks to limit (or in any event to delimit) the relevance of such developments for the U.S. legal system.

What did the United States Supreme Court mean when it famously said, “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination”? Perhaps the Court was suggesting that, in an interdependent world, United States courts should not decide cases without paying “a decent respect to the opinions of mankind,” in the memorable words of the Declaration of Independence. The framers and early Justices understood that the global legitimacy of a fledgling nation crucially depended upon the compatibility of its domestic law with the rules of the international system within which it sought acceptance. Their recognition seems both prudent and sensible. Even today, for any nation consciously to ignore global standards not only would ensure constant frictions with the rest of the world, but also would diminish that nation's ability to invoke those international rules that served its own national purposes.

Every impulse to protect the weak and help the infirm is noble. The impulse to use the means at our disposal to liberate a people from a government that poses no imminent or prospective threat to us, but is so despotic, violent, and vicious that those suffering under it cannot shake it off, is also noble. The action that gives effect to that impulse may sometimes be internationally lawful. It may sometimes be feasible. It is often—but not always— misconceived.

Conventional wisdom holds that a lawyer who represents himself has a fool for a client. Perhaps surprisingly, several of the highest profile accused persons before the International Criminal Tribunal for the Former Yugoslavia (ICTY) have received some form of legal training. Less surprisingly, it is precisely those accused who are asserting a right to self-representation. Slobodan Miloševic, for example, has a degree in law and by the end of his trial will have earned himself several years of advocacy experience. Vojislav Šešelj, a professor of law at Belgrade University, was somewhat affronted by the judge's suggestion that he should request legal assistance and exclaimed in open court, “I have never met a better lawyer dian I am in my whole life.” Are these accused fools to want to represent themselves? What about an accused with no legal experience at all who asserts this right in the face of charges of genocide and crimes against humanity? As one accused remarked when clarifying to the court that he did not wish to represent himself, “No. It would be insane if I did that ….”

In the keynote address to the 2003 annual meeting of the American Society of International Law, Justice Stephen Breyer declared that “comparative analysis emphatically is relevant to the task of interpreting constitutions and enforcing human rights.” Justice Breyer concluded that nothing could be “more exciting for an academic, practitioner, or judge than the global legal enterprise that is now upon us.” In a room filled with international lawyers and academics, he received a home court standing ovation.

The International Court of Justice again completed a substantial program of work during 2003, with old and new cases involving the United States figuring prominendy. In a decision that will find Hide favor in official Washington, the Court dismissed Iran's 1992 Oil Platforms case against the United States, but in doing so firmly rejected U.S. positions regarding the scope of self-defense. Libya withdrew its venerable Lockerbie cases against the United States and the United Kingdom, in parallel with its acceptance of responsibility for the Lockerbie bombing and the final lifting of UN sanctions. And Mexico sued the United States, claiming failures of consular notification for fifty-four Mexican nationals sentenced to death in U.S. proceedings, the third such ICJ case against the United States.

In other significant developments, the General Assembly in December asked die Court for an urgent advisory opinion on die legal consequences of the Israeli construction of a wall in occupied Palestinian territory. Malaysia and Singapore brought a new territorial dispute by special agreement; France consented to jurisdiction over a suit by the Republic of the Congo; and the Court rejected requests by Yugoslavia and El Salvador to revise earlier judgments. Finally, the Court elected Judge Shijiuyong of China as its president and Judge Raymond Ranjeva as vice president.