The claim by the United States to a right of what has come to be known as “preemptive selfdefense” has provoked deep anxiety and soul-searching among the members of the college of international lawyers. Some have feared that the claim signaled a demand for the prospective legitimation of “Pearl Harbor” types of actions, that is, sudden, massive, and destructive military actions “out of the blue,” by one state against another in the absence of a state of war, with the objective of militarily neutralizing or even eliminating a latent or potential adversary. Since some public intellectuals within the American political system had recommended such a strategy with respect to the People’s Republic of China in the midst of the Cold War, the anxiety could not be dismissed as entirely unfounded or even hysterical. Nor could it be ignored as if it were some sort of exclusively American aberration that could be tolerated as the idiosyncrasy of one state. From the earliest unilateral claims to a continental shelf, a copycat or mimetic dynamic in modern international law has taken shape whenever an enhancement of state power has become available, so that the possibility of similar claims to an expanded notion of preemptive self-defense by many other states could not be excluded. Indeed, while the United States may now have retreated somewhat from its 2002 broad claim to preemption, various other states (including some with nuclear weapons) have adopted the preemptive self-defense claim as their own. If the U.S. claim posed potentially destabilizing consequences for world order, how much more so would proliferation of the claim?

Just over sixty years ago, the international community, seeking to heal the wounds of a brutal war, embarked on a bold legal experiment. For the first time in history, legal mechanisms were invoked to bring to justice the perpetrators of war crimes and crimes against humanity in international tribunals specifically established for that purpose. The trials at Nuremberg and Tokyo were extraordinary and risky; and, above all, unique in their time.

Within the existing framework of international law, is it legitimate for an occupying power, in the name of creating the conditions for a more democratic and peaceful state, to introduce fundamental changes in the constitutional, social, economic, and legal order within an occupied territory? This is the central question addressed here. To put it in other ways, is the body of treaty-based international law relating to occupations, some of which is more than a century old, appropriate to conditions sometimes faced today? Is it still relevant to cases of transformative occupation—i.e., those whose stated purpose (whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule? Is the newer body of human rights law applicable to occupations, and can it provide a basis for transformative acts by the occupant? Can the United Nations Security Council modify the application of the law in particular cases? Finally, has the body of treaty-based law been modified by custom?

In 2005, the International Court of Justice issued three judgments.l In February, the Court upheld an objection to its jurisdiction in Certain Property (Liechtenstein v. Germany). In July, a chamber of the Court issued its judgment on the merits in Frontier Dispute (Benin/Niger). In December, the full Court issued its judgment on the merits in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda).

The domestic and international legal status of warships and military aircraft submerged in United States waters or in international waters has been quite contentious of late. It has resulted in some notable litigation in U.S. courts, a presidential statement on U.S. policy, official lodgings of positions by foreign governments with the United States, a proposed international convention drafted by the United Nations Educational, Scientific and Cultural Organization (UNESCO), and other developments that have previously received notice in the pages of this Journal. In a somewhat surprising turn, Congress, in October 2004, adopted as part of the National Defense Authorization Act for Fiscal Year 2005 a set of provisions known as the Sunken Military Craft Act (SMCA). This essay briefly traces the trajectory of developments in this sector of international law, analyzes the provisions of the SMCA, and offers a critique of the underlying policy and legal assumptions of that statute in light of those developments.