To discuss the history of international economic law since the American Journal of International Law was first published in 1907 requires the author to project categories common to the parlance of 2006 back to times when theywere unknown. So far as it appears, the term did not become current until after World War II. Its scope is controversial. According to one definition, it encompasses “the total range of norms (directly or indirectly based on treaties) of public international law with regard to transnational economic relations.” A wide variety of international law rules have been said to have a financial impact somewhere. For practical purposes, in this essay I define international economic law as the international law regulating transborder transactions in goods, services, currency, investment, and intellectual property. I exclude from the inquiry issues of private international law, as well as of economic warfare.

Few, if any, branches of international law have undergone such dramatic growth and evolution as international human rights in the one hundred years since the founding of the American Society of International Law. This branch of international law did not really come into its own until after World War II. Before then, what today we would broadly characterize as human rights law consisted of diffuse or unrelated legal principles and institutional arrangements that were in one way or another designed to protect certain categories or groups of human beings. Included in this mix prior to World War I were state responsibility for injuries to aliens, international humanitarian law (as we know it today), the protection of minorities, and humanitarian intervention.

The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the “obsession with territory” has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines—across mountains, deserts, rivers, and human settlements—where mere politicians had never succeeded. The doctrines on territorial sovereignty emanating from these decisions suggested a bright future for law. Yet a more pessimistic appraisal would see a darker image, one characterized by war—interstate, colonial, and civil—and territorial settlement whose lines have reflected power and politics, but surely not norms. Adjudications could be viewed as a sideshow for addressing small-scale conflicts, the results dictated more by a desire to appease both parties than by reasoning toward some principled solution.

Sanchez-Llamas v. Oregon, 126 S.Ct. 2669.

United States Supreme Court, June 28, 2006.

In Sanchez-Llamas v. Oregon, a majority of the U.S. Supreme Court held that suppression of evidence is not an appropriate remedy for violations of Article 36 of the Vienna Convention on Consular Relations and that U.S. states may apply their regular procedural default rules to bar claims brought under Article 36. The Court reached the latter conclusion despite contrary reasoning by the International Court of Justice (ICJ).

Article 36(1)(b) of the Vienna Convention provides that when one party country arrests nationals of another party country, it shall inform the foreign nationals without delay that they have the right to have their consulate notified of the arrest, and to communicate with the consulate. Article 36(2) adds that these rights “shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.” The United States ratified the Vienna Convention in 1969, along with a protocol to the Convention providing that disputes between nations arising under the treaty could be heard in the ICJ.

Hamdan v. Rumsfeld. 126 S.Ct. 2749.

United States Supreme Court, June 29, 2006.

In Hamdan v. Rumsfeld, the U.S. Supreme Court found that the military commissions established by President George W. Bush were unauthorized by law and inconsistent with both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. Rejecting jurisdictional challenges to its resolving the legality of the tribunals, the Court found the military commission proceedings against Hamdan to violate the “uniformity” requirement of the UCMJ, under which military commissions must be governed by the same standards as courtsmartial except where impracticable. The Court also found the tribunals to violate the Geneva Conventions as incorporated by Article 21 of the UCMJ, because the commissions did not qualify as “regularly constituted courts” as required under Common Article 3.

Mara'Abe v. Prime Minister of Israel. Case No. HCJ 7957/04. At <http://elyonl.court.gov.il/eng/home/index.html> (English translation).

Supreme Court of Israel, sitting as the High Court of Justice, September 15, 2005.

In Mara ‘abe v. Prime Minister of Israel, the Israeli Supreme Court held that the routing of a portion of Israel's “security fence” in the northern West Bank violated international humanitarian law. The Supreme Court, sitting as the High Court of Justice, ordered the Israeli government to consider alternative paths for the barrier. The Mara'abe decision expanded on the Court's earlier ruling in Beit Sourik Village Council v. Israel, in which the Court ordered the rerouting of another segment of the obstacle. Mara ’abe also revealed some of the Israeli Court's views on Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory— the 2004 advisory opinion of the International Court of Justice (ICJ) holding that construction of the barrier anywhere in occupied territory violates international law.

Jones v. Ministry of Interior of the Kingdom of Saudi Arabia. Case No. [2006] UKHL 26. At <http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm>.

House of Lords, June 14, 2006.

The House of Lords handed down judgment in Jones v. Ministry of Interior of the Kingdom of Saudi Arabia on June 14, 2006. The case concerns an action in damages brought by Jones and three other applicants, all UK citizens, falsely accused of involvement in bombings in Riyadh in 2001 and 2002. The four allege that they were repeatedly tortured while in prison in Saudi Arabia and that they suffered severe psychological and physical harm as a result. Seeking aggravated and exemplary damages from Saudi Arabia's Ministry of the Interior and the Saudi officials allegedly responsible, the applicants filed claims of, inter alia, torture, assault and battery, trespass to the person, and unlawful imprisonment. In the proceedings before the Court of Appeal, Saudi Arabia claimed immunity on its own behalf and on that of its officials. The Court of Appeal agreed with the former but denied the latter; all the involved parties appealed the decision. The House of Lords agreed with Saudi Arabia by upholding state immunity in civil proceedings brought against a state and its officials in a different country for alleged torture.

Case No. 1231 [2003]. 1416 Saibansho JIHŌ 6. At <http://www.courts.go.jp>.

Saikō Saibansho (Supreme Court of Japan), July 21, 2006.

In a decision issued on July 21, 2006, a five-justice panel of the Supreme Court of Japan effectively overturned seventy-eight years of Japanese jurisprudence on foreign sovereign immunity. The holding in Case No. 1231 [2003] serves to limit the ability of foreign governmenrs to claim immunity from the civil jurisdiction of Japanese courts in cases involving commercial and other activities not of a sovereign character.

The case came before the Supreme Court as an appeal from a decision of the Tokyo High Court. The two companies bringing the appeal had sued Pakistan for the nonpayment of amounts owing under a contract entered into between appellants and another company for the purchase of computer equipment.3 Appellants argued that the company purchasing the computers was connected to the Pakistani defense ministry and was therefore an agent of the Pakstani government. Pakistan claimed that it was immune from suit under the doctrine of foreign sovereign immunity. It also denied that the contracting company was its agent.

Germany v. N. Decision No. 2 WD 12.04. At <http://www.bverwg.de>.

Bundesverwaltungsgericht (German Federal Administrative Court), June 21, 2005.

On June 21, 2005, in Germany v. N, the Federal Administrative Court of Germany (Bundesverwaltungsgericht) acquitted a soldier charged with disobeying an order in violation of his military duty of obedience and loyal service. The soldier, a major in the Federal Armed Forces (Bundeswehr), had refused to participate in a military software project that he feared could support Operation Iraqi Freedom. The major based his refusal on his belief that the Iraqi war was illegal and that, as a result, he was permitted to refuse the order under his constitutional right of freedom of conscience.2 The court held that in view of the serious reservations that exist about the legality of Operation Iraqi Freedom and also about Germany's position in that conflict, the soldier's right to freedom of conscience required that he be offered alternative tasks unrelated to a war that he reasonably believed to be illegal.