The advisory opinion handed down by the International Court of Justice on December 15, 1989, Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, has revived the topicality of the possible dual application of the Court’s advisory procedure. This procedure, provided for in Article 96 of the Charter, is governed by Articles 65-68 of the Statute of the Court.

This was written shortly after the gulf war of 1990-1991 came to an end. The collective action taken under the aegis of the United Nations has been hailed as a vindication of international law and of the principle of collective security. At the same time, it has also been perceived by many as still another example of the dominant role of power and national self-interest in international relations. A plausible case can be made for each of these views. An optimist may conclude in the rosy glow of the desired outcome that law and power have happily converged in this case. Even so, the massive devastation of civilian life during the war and the threat of renewed violence are troubling features. The promise of a new world order based on the rule of law still seems far from fulfillment, but there is renewed hope that the UN Charter will be taken seriously as an instrument of collective responsibility.

Less than twenty years ago, a large majority of the United Nations General Assembly declared the customary international law of expropriation dead. Eighty-six governments supported a resolution holding that a state expropriating foreign property “is entitled to determine the amount of possible compensation and the mode of payment, and … any disputes which might arise should be settled in accordance with the national legislation of [that] State.” Scholars cited this and other General Assembly resolutions as evidence that international law no longer required full compensation for the expropriation of foreign property. This view had sufficient support to precipitate an acrimonious dispute in the preparation of the Restatement (Third) of the Foreign Relations Law of the United States, which reaffirmed only in its later drafts the traditional “Hull formula.”

Should the Persian Gulf war of 1990-1991 be characterized as an “international enforcement action” of the United Nations Security Council or as a campaign of collective self-defense approved, encouraged, and blessed by the Security Council?

This is not simply a nice and rather metaphysical legal issue, but an extremely practical one. The question it presents is whether the control and direction of hostilities in the gulf, their termination, and the substance of the settlement they produce were handled by the Council as the Korean War was handled, that is, as a campaign of collective self-defense, or as the United Nations’ first “international enforcement action.” According to some international lawyers, characterizing the gulf war as a Security Council “enforcement action” under the untried procedures of Articles 42-50 of the Charter would in effect eviscerate Article 51, make the exercise of each state’s “inherent” right of self-defense subject to the permission of the Security Council, threaten the veto power of the permanent members of the Security Council, and thus lead to extremely grave and perhaps insoluble political difficulty. It could even destroy the United Nations.

In his recent book The Power of Legitimacy Among Nations, Thomas Franck defines “legitimacy” as it applies to the rules applicable among states. “Legitimacy,” he writes, “is a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process.

In adopting Resolution 678 of November 29, 1990, implicitly authorizing the use of force against Iraq in response to Iraq’s August 2, 1990 invasion and subsequent occupation of Kuwait, the United Nations Security Council made light of fundamental UN Charter precepts and thereby flirted precariously with “generally accepted principles of right process.” It eschewed direct UN responsibility and accountability for the military force that ultimately was deployed, favoring, instead, a delegated, essentially unilateralist determination and orchestration of world policy, coordinated and controlled almost exclusively by the United States. And, in so doing, it encouraged a too-hasty retreat from the preeminently peaceful and humanitarian purposes and principles of the United Nations. As a consequence, it set a dubious precedent, both for the United Nations as it stands today and for the “new world order” that is claimed for tomorrow.

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.

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.

While in the United States, Scott Nelson saw a printed advertisement recruiting employees for the King Faisal Specialist Hospital (Hospital) in Riyadh, Saudi Arabia. The recruitment was conducted by an independent corporation, Hospital Corporation of America (HCA), which had contracted with Saudi Arabia to recruit employees for the Hospital. Nelson submitted an application, was interviewed by Hospital officials in Saudi Arabia, returned to the United States, and signed an employment agreement in Miami, Florida. As a monitoring systems engineer, he was responsible for electronic monitoring and control systems capabilities and the modification of existing equipment and installation of new equipment.

Plaintiffs, two Panamanian corporations and a Swiss bank, brought an action against the Republic of Argentina and Banco Central de la República Argentina (Banco Central) for breach of obligations arising out of the issuance of certain bonds. The defendants moved to dismiss for lack of subject matter jurisdiction and lack of personal jurisdiction under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1602-1611 (1988)) (FSIA). In the alternative, defendants moved for dismissal under the doctrine of forum non conveniens. The district court denied the motions and held that: (1) the acts of the defendants in issuing, and breaching the payment obligations under, certain bonds were commercial, and the failure to pay on those bonds, which contemplated payment in New York, constituted a direct effect in the United States even though the plaintiffs were non-U.S. entities; (2) the aggregate of the defendants’ contacts with the United States, together with the promise to pay the plaintiffs in New York, satisfied the minimum contacts requirement under the due process clause; and (3) the defendants had not made a sufficient showing to justify a dismissal of the case on the grounds of forum non conveniens.

Max Witzemann had been sentenced to a prison term for counterfeiting in 1982. According to that nonappealable decision, he had imported counterfeit U.S. dollar notes into Germany in 1981. On the basis of the decision, the Hauptzollamt sought to collect customs duties and turnover taxes on the import of the forged notes. Witzemann refused to pay, pleading that the collection of customs duties and import turnover taxes violated Articles 9 and 12-29 of the EEC Treaty, which concern the customs union.