Little scholarly effort has been devoted to consideration of the part actually played by international law in national decision-making. Diplomatic historians have tended to neglect the legal factor. Political scientists have discussed the rôle of law largely in general terms. The effort of international lawyers has been focused on statement of what the law is supposed to be. Some of this attention might usefully be diverted to study of the place of the legal factor in the making of specific decisions. Such studies should make possible more realistic discussion of the question whether the policy-makers are assigning the degree of emphasis to the factor of international law which is best calculated to promote the national interests and values they aim to serve.

What is attempted here is one case study focusing on the legal principles of the United Nations as a restraint and as an incentive to action in the United States reaction to the 1950 Communist attack in Korea. That reaction took two parts: (1) a decision to assist Korea within the framework of the United Nations, and (2) a decision to isolate Formosa from Communist attack by individual American action. After a brief outline of the Charter principles in question, we will consider the way in which each of these decisions was made, together with the domestic and international consequences in each instance.

In some respects, the thirteenth year of the activities of the Permanent Court of International Justice has been in keeping with the tradition associated with that number. Though three sessions of the Court have been held, during part of the year the judges have not been kept busy; and possibly because of general conditions prevailing in the world, the activities of governments with reference to the Court have proceeded at a somewhat slackened pace.

Points 2 and 3 of the Vandenberg Resolution, considered and agreed to on June 11, 1948, stated that it was the sense of the Senate that the United States Government, by constitutional process, should particularly pursue the following objectives within the United Nations Charter:

1. (2) Progressive development of regional and other collective arrangements for individual and collective self-defense in accordance with the purposes, principles, and provisions of the Charter.

2. (3) Association of the United States, by constitutional process, with such regional and other collective arrangements as are based on continuous and effective self-help and mutual aid, and as affect its national security.

Last year in the Stanford Law Review, I described an emerging trend in U.S. courts: litigation isolationism. Through developments in personal jurisdiction, forum non conveniens, international comity, and the presumption against extraterritoriality, I argued, courts have developed increasingly strong tools for avoiding transnational litigation. Decisions advancing litigation isolationism often fail to accomplish their stated goals—typically promoting separation of powers, avoiding interstate friction, and protecting defendants from the inconvenience of U.S. litigation. They also undermine important U.S. interests, often by excluding or dismissing cases that have close ties to the United States. At the end of that article, I cautioned against the continuation of the trend.

In 1903 the United States, by treaty with China, agreed to give China every assistance in the reform of her judicial system, and stated that it would also be prepared “ to relinquish extraterritorial rights when satisfied that the state of the Chinese laws, the arrangements for their administration, and other considerations warrant it in so doing.”

International law, whether customary or conventional, has been assumed to rest ultimately on moral or non-physical sanctions. In speaking of the “sanctity” of international agreements more often than of the “sanctions” upon which their effectiveness may depend, we have placed ultimate faith in the non-coercive means of giving effect to international law and international obligations. The practice of states, however, shows a striking number of instances in which material self-help sanctions have been exercised in time of peace to give effect to international rights.

The International Law Commission held its fifty-sixdi session in Geneva from May 3 to June 4, and from July 5 to August 6, 2004, under the chairmanship of Teodor Melescanu of Romania. The Commission completed its first reading of draft principles on international liability for transboundary harm and draft articles on diplomatic protection, which have now been submitted for comment by states with a view to their completion in 2006. The Commission also continued its work on reservations to treaties, responsibility of international organizations, unilateral acts of states, fragmentation of international law, and shared natural resources. In addition, the Commission decided to start work next year on the effect of armed conflict on treaties and the expulsion of aliens, and to recommend adding a new topic—the obligation to prosecute or extradite—to its long-term program. The following is a summary of where each topic stands and what issues are likely to be most prominent at the Commission's 2005 session.