One of the more remarkable developments in international law in the mid-1990s is not what it appears to be. The massive and sudden proliferation of bilateral investment treaties (BITs), now constituting a network of more than thirteen hundred agreements involving some 160 states, appears to reflect die triumph of liberal economics in the sphere of international investment. In fact, however, it constitutes only a momentary convergence of nationalist interests. If the BITs are to construct the liberal international investment regime they seem to promise, then they must be modified in important and substantial ways.

In its June 1997 review of the state of the global environment and the implementation of Agenda 21, five years after the United Nations Conference on Environment and Development (UNCED), the UN General Assembly drew a rather gloomy picture. While acknowledging that some progress toward sustainable development had been made, for example, in curbing pollution and slowing the rate of resource degradation in a number of countries, the Assembly’s report noted that, overall, trends tended toward continued deterioration. Not surprisingly, therefore, the report also reiterated Agenda 21’s call upon, inter alia, multilateral development banks (MDBs) to ensure that development funding “contribute to economic growth, social development and environmental protection in the context of sustainable development.” The report, in short, enjoined MDBs to strengthen their commitment to sustainable development.

On February 17, 1992, police found the body of Ruth Dickie in her apartment in Arlington County, Virginia. She had been stabbed to death and her assailant had attempted to rape her. Six months later, Angel Francisco Breard was apprehended in the course of an attempted rape in Washington, D.C., and also became a suspect in Dickie’s murder, for which he was subsequendy indicted. As summarized in the appellate review of Breard’s conviction by the Supreme Court of Virginia,

The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.

In Paraguay v. United States, the International Court of Justice entered the following Order: The Court “[i]ndicates the following provisional measures: The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order.”

Among the puzzling aspects of the Breard episode was the Clinton administration’s claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard’s execution lay exclusively in the hands of the Governor of Virginia. The ICJ’s Order provided that “[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings.” The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, there would be no authority in the federal Government to require a postponement of the execution. As the administration explained to the Supreme Court:

Article 36(1) of the Vienna Convention on Consular Relations provides that (a) “[nationals . . . shall have the same freedom with respect to communication with and access to consular officers,” and that (b) “[t]he said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.” In Breard v. Greene, the Supreme Court nearly recognized that, under the Convention, the individual petitioner had actionable rights that had been violated. The Court concluded, however, that the rights were “defaulted” when not pursued in the state courts, that the errors would not be prejudicial, and that the subsequendy enacted federal Antiterrorism and Effective Death Penalty Act limited the petitioner’s “ability to obtain relief based on violations of the Vienna Convention.”

The U.S. Government’s position asserting nonjusticiability of the treaty claims raised by Paraguay in the domestic and international lawsuits is disturbing. The Government’s amicus filings at the court of appeals and the Supreme Court denied that Paraguay’s claims belonged in federal court (or indeed in any court at all); at die International Court of Justice, the United States admitted a treaty violation but denied the competence of that tribunal to enter a judicial remedy. At one or another phase of these proceedings, the U.S. Government pressed a variety of arguments that (if accepted) would rule out virtually any judicial consideration of a treaty-based claim. The haste with which the Supreme Court denied a stay in Breard’s case foreclosed adequate consideration of the justiciability of such claims in domestic courts and also effectively barred Paraguay from achieving the relief it sought on the international plane.

In 1968 the United States Supreme Court decided Zschernig v. Miller, a foreign relations case that has been characterized as unique. An Oregon probate statute provided for escheat of a decedent’s property in preference to a nonresident alien’s claim to inherit it unless the alien’s country (1) allowed United States citizens to inherit under similar circumstances, (2) allowed U.S. citizens to receive payment here of funds inherited there, and (3) gave foreign heirs the right to receive the proceeds of Oregon estates without confiscation. Residents of then East Germany, who were the heirs of an Oregon decedent, challenged the constitutionality of the statute. The Supreme Court struck down the statute, finding that Oregon probate and appellate judges were basing their decisions on “foreign policy attitudes, the freezing or thawing of the ‘cold war.’”

Leave aside the question whether the indication of provisional measures by the International Court of Justice in the Breard case was binding on the United States as a matter of international or domestic law. Scholars will continue to differ on this question; government decision makers will reach their own conclusions. Leave aside that the state of Virginia violated a solemn treaty obligation, a treaty that the Supreme Court is obliged to uphold as the supreme law of the land. Without denigrating the power of these arguments, a less contentious case can be made for the granting of a stay—a case based less on compulsion than on civility.

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) , Preliminary Objections, Judgment.

International Court of Justice, June 11, 1998.

On March 29, 1994, Cameroon filed an Application requesting that the Court determine the question of sovereignty over the Bakassi Peninsula and a disputed parcel of land in the area of Lake Chad (principally Darak and its region) and to specify the course of the land and maritime boundary between Cameroon and Nigeria. It also asked the Court to order an immediate and unconditional withdrawal of Nigerian troops from alleged Cameroonian territory in the disputed areas. As the basis of the Court's jurisdiction, Cameroon relied on the declarations made by the parties under Article 36, paragraph 2 of the ICJ Statute.

European Communities—Measures Concerning Meat and Meat Products. WTO Doc. WT/DS26/AB/R & WT/DS48/AB/R.

World Trade Organization Appellate Body, January 16, 1998.

This report of the Appellate Body of the World Trade Organization (WTO) is both the most recent development in a long-running trade battle between the United States and the European Communities and the first dispute to be addressed under a new Uruguay Round agreement concerning food safety measures.

United States v. Balsys. 118 S.Ct. 2218.

U.S. Supreme Court, June 25, 1998.

Resolving a long-open question, the U.S. Supreme Court held in this 7-2 decision that a witness in a domestic proceeding may not invoke the constitutional privilege against self-incrimination if the witness fears that the testimony may be used in a prosecution outside the United States. Although grounded in domestic law, the three opinions in Balsys reveal tension between the judiciary's traditional deference to the political branches in foreign relations matters and its concern over the risk that individuals subject to prosecution abroad will suffer deprivation of liberty because of that deference.

In Re Aquarone. 101 Revue Générale de Droit International Public 838 (1997).

Conseil d'Etat (Assemblée), June 6, 1997.

In this case, the French Council of State, sitting in its most authoritative formation, had to pass on a petition by Stanislav Aquarone for review of a judgment of the administrative court of appeal of Lyon, dismissing his request for annulment of die imposition by France of income taxes on his retirement pension for the years 1981-1986, paid by the United Nations. In a carefully crafted opinion, the highest administrative court of France rejected die petition and die claim of immunity from taxation of his retirement pay by Aquarone, a former Registrar of the International Court of Justice and an Australian national now living in Gordes, France.

Prefecture of Voiotia v. Federal Republic of Germany. Case No. 137/1997.

Court of First Instance of Leivadia, Greece, October 30, 1997.

On November 27, 1995, the Prefecture of Voiotia (soudiern Greece) and other claimants, in their individual capacity, brought a claim of indemnity before the Court of First Instance of Leivadia against the German state. The plaintiffs based their claims on atrocities (willful murder and destruction of private property) committed by German occupation forces against the persons and property of die village of Distomo in Voiotia on June 10, 1944. They sought compensation for the material and mental damage suffered as a result of those atrocities, which were specifically described in their briefs. The Greek Foreign Office forwarded the complaint to the German Foreign Office, which rejected and returned it to the Greek Embassy on the grounds that the suit impaired the sovereign rights of the German state. Germany was not represented at trial. The court awarded damages to the individual claimants of 9,448,105,000 drachmas (approximately $30 million).

Alejandre v. Republic of Cuba. 996 F.Supp. 1239.

U.S. District Court, S.D. Fla., December 17, 1997.

On February 24, 1996, the Cuban Air Force deliberately shot down two unarmed civil aircraft piloted by members of the Miami-based organization Brothers to die Rescue. The incident resulted in the loss of four lives and evoked widespread international condemnation. It prompted Congress to enact the controversial Helms-Burton Act on March 12, 1996, tightening the U.S. embargo against Cuba in effect since 1962.