In January 1989, in the follow-up to the Conference on Security and Co-operation in Europe (the so-called Helsinki process), the United States signed the Vienna Declaration, in which it recognized “that the promotion of economic, social, cultural rights … is of paramount importance for human dignity and for the attainment of the legitimate aspirations of every individual.” To that end, the United States in signing the declaration undertook, inter alia, to guarantee “the effective exercise” of economic, social and cultural rights and to consider acceding to the International Covenant on Economic, Social and Cultural Rights. These undertakings seem to warrant renewed consideration of proposals that have been made at various times over the past quarter of a century for the United States to ratify the Covenant on Economic, Social and Cultural Rights.

On January 2, 1988, President Ronald Reagan of the United States and Prime Minister Brian Mulroney of Canada signed the landmark comprehensive Free Trade Agreement (FTA) between the two countries that already enjoyed the largest bilateral trade relationship in the world. The FTA was subsequently ratified by the legislatures of both countries, if only after a bitterly fought election on the subject in Canada. On January 1, 1989, the FTA formally came into effect.

In the October 1989 issue of this Journal, I wrote a brief essay concerning the U.S. Constitution and law enforcement abroad. I called attention to the case of Fawaz Yunis, a Lebanese national who was arrested on the high seas by U.S. officers and brought to the United States for trial on charges of aircraft hijacking and hostage taking. Within the space constraints of the Journal’s issue commemorating two centuries of the Constitution, I was able to discuss only one of the questions illustrated by the Yunis case—the question of jurisdiction over crimes committed by aliens abroad. My conclusion, in brief, was that a general reliance on passive personality as the basis for jurisdiction—i.e., the U.S. nationality of victims of the offense—was of doubtful validity under the Constitution, but that jurisdiction based on legislation enacted in implementation of international conventions widely adhered to probably was constitutional. The Yunis case raises two other issues that I believe are of continuing interest: (1) to what extent do the constitutional and statutory restraints on U.S. law enforcement officers apply abroad? and (2) does the so-called Ker-Frisbie rule, according to which a court in the United States may try a person brought before it for a crime over which it has jurisdiction—regardless of how the accused came to be before the court—remain valid and persuasive in the last decade of the 20th century? I want to explore these questions here, bearing in mind that the two questions are related to each other, as well as to the question of jurisdiction to prescribe discussed in the earlier article. Before embarking on the analysis, I want to set forth again in somewhat greater length the saga of Fawaz Yunis, as well as that of two other persons recently seized abroad by authority of the United States for trial in the United States.

Only a few hours after ordering the U.S. military forces to Panama on December 20, 1989, President Bush explained that General Manuel Noriega had declared “a state of war with the United States and publicly threatened the lives of Americans in Panama.” This, he said, had been followed by the murder of an unarmed American serviceman by Noriega’s forces and beatings and harassment of others. He added that, as General Noriega’s “reckless threats and attacks upon Americans in Panama” had created an “imminent danger to the 35,000 American citizens in Panama,” he as President was obligated “to safeguard the lives of American citizens.”

In the fall of 1867, a powerful British expeditionary force, dispatched from India under the command of Field-Marshall Lord Napier and conveyed by over 250 ships, began deploying on the Red Sea coast of Africa. Its mission: rescue two British emissaries and their several assistants who, together with a brace of other Europeans, had been imprisoned by the volatile Ethiopian Emperor Theodore.

What Professors Tom Farer and Ved Nanda do not seem to understand is the positive implication for the development of human rights resulting from the United States intervention in Panama. Their views are so conditioned by a statist conception of international law that they seem unable to see through the abstraction that we call the “state” to the reality of human beings struggling to achieve basic freedoms. I am not talking about the human rights of American “matrons domiciled in Panama,” as Professor Farer puts it, who were “rescued” in 19th-century expeditionary-force style. Rather, I am talking about the human rights of Panamanian citizens to be free from oppression by a gang of ruling thugs. My focus is on the basic civil liberties and fundamental freedoms of the people of Panama themselves.

On December 9, 1988, the United Nations General Assembly adopted, without a vote, a “Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.” The preparation of this text was started in 1976 within the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the Commission on Human Rights. On the basis of a project prepared by Mr. Erik Nettel of Austria, the Sub-Commission approved a Draft Body of Principles in 1978. After being submitted to the General Assembly’s Third Committee, it was referred to a working group, which considered it in 1980 but could not complete its task. The item was then moved to the Sixth Committee, which entrusted it to an open-ended working group. This working group met during every session of the General Assembly from 1981 until 1988, and slowly progressed toward the completion of its task.

In 1987 I drew attention to a report published in 1986 by a member of the Joint Inspection Unit (JIU) of the United Nations, recommending a number of changes, some of them fundamental, in the presentation by the International Court of Justice of its judgments and advisory opinions. I indicated the principal objections that the Court had expressed on those recommendations, and pointed out that the implementation of some of them could constitute violations of the Charter, of which the Statute of the Court is an integral part. The matter was also the subject of a resolution adopted on April 9, 1987, by the American Society of International Law, reproduced in part in note 30 on page 695 of my Note. It is now possible to bring the story up-to-date and close an unfortunate chapter in the history of the Joint Inspection Unit.