The International Law Commission held its fifty-fifth session in Geneva from May 5 to June 6, and from July 7 to August 8, 2003, under the chairmanship of Enrique Candioti of Argentina. The Commission elected Roman Kolodkin of the Russian Federation, Constantin Economides of Greece, Teodor Melescanu of Romania, and Michael Matheson of the United States to fill the vacancies resulting from the death of Valery Kuznetsov of the Russian Federation, the election of Bruno Simma of Germany and Peter Tomka of Slovakia to the International Court of Justice, and the resignation of Robert Rosenstock of the United States.

In two recent cases—Atkins v. Virginia and Lawrence v. Texas—amicus briefs urged the U.S. Supreme Court to use international materials to expand the scope of domestic constitutional rights. In a footnote in Atkins and three paragraphs in Lawrence, the Court may have signaled a willingness to listen. Some applaud the beginning of a positive trend. Others—notably Justice Antonin Scalia in dissent in the two cases—condemn the entire project as illegitimate.

Rather than seeking an immediate answer to the question whether international materials should be determinative of domestic rights, this essay makes an indirect approach by asking: if we are to undertake a serious project of using international materials in this way, what would that project look like? Identifying the nature of the project may suggest whether it is the sort of thing we want to undertake, and what the scope of its impact is likely to be.

Is international law “irrelevant” to constitutional interpretation in the United States? How could that be? The arguments for categorical ignorance of international law in constitutional adjudication play on exaggerated fears: fear of foreign domination, fear of judicial activism, fear of the unknown. The claim of irrelevance depends on a false dichotomy between excluding international law fromjudicial consideration and allowing foreign institutions to control constitutional meaning. The more sensible inquiry would ask how international law has informed constitutional interpretation in the past, and how it should be used in the future.

The preceding contributions to this Agora investigate the discernible trend in Supreme Court decisions of citing international legal materials in support of a conclusion about domestic constitutional law. Discussion of this rather limited use of international law—far short of the notion that “[i] nternational law is part of our law”—implicates a deeper set of questions about democracy, sovereignty, and sources of law: Is recourse to international sources a fundamental affront to notions of democratic self-rule, or is it the natural development of a maturing legal system—one moving toward new understandings of sovereignty and popular sovereignty appropriate to an increasingly interconnected web of transnational legal relations? I will argue here for the latter position, and from this perspective the occasional illustrative citation to international norms in the course of a conventional constitutional law opinion is an invitation to broader thought more than a fire bell in the night.

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.