The January 1959 issue of this Journal carried the famous proposal by Myres S. McDougal and Harold D. Lasswell to build a world public order based on human dignity that would save the world from nuclear Armageddon and protect democratic values. The authors expressed the belief that the democratic countries were responding ineffectively to Marxist-Leninist expansionism because they appealed to international law rules and principles that were asserted or assumed to be universal but, in fact, did not have universal effectiveness. Two dangers existed, therefore: the universal triumph of totalitarianism or nuclear war between blocs led by the United States and the Soviet Union. The proposed world public order would make it possible to escape this horrendous dilemma.

On November 17, 1941, the President signed an Act repealing Sections 2, 3, and 6 of the Neutrality Act of 1939 and authorizing him during the unlimited national emergency proclaimed on May 27, 1941, to arm United States merchant vessels. The repealed provisions had required transfer of title of all goods before export to belligerents and had prohibited American ships from being armed, from trading with belligerent ports, and from passing through combat areas proclaimed by the President. With elimination of the arms embargo by the Act of November 4, 1939, practical elimination of the loan prohibition by the Lend-Lease Act of March 11, 1941, and elimination of the "cash and carry" and "combat area" provisions by the present Act, the experiment in a new type of neutrality which Congress originated in 1935 was practically ended.

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peña-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time—a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.

On November 5, 1982, the Iran-U.S. Claims Tribunal decided a series of nine cases presenting issues of the greatest significance for the future course of that Tribunal’s work. The issue for decision in each case was the effect of a contractual choice-of-forum clause on the Tribunal’s own jurisdiction, an issue likely to arise in a great many cases. Squarely presented were issues pertaining to the relationship between public and private international law, the content of a state’s obligation under international law to maintain an adequate and effective system of local remedies, and the scope of “changed circumstances” as a ground for release from contractual obligations.

European Communities—Measures Affecting the Approval and Marketing of Biotech Products. WT/DS291/R, WT/DS292/R, & WT/DS293/R. At <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.

World Trade Organization Panel, September 29, 2006 (adopted November 21, 2006).

In what was by far the longest panel report in the World Trade Organization’s history, a WTO panel ruled last September that various parts of the European Communities’ regulatory regime for the approval and marketing of “biotech products” (that is, products that contain, or are made from or with, genetically modified organisms (GMOs)) violated the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The panel report was not appealed and was adopted by the WTO Dispute Settlement Body on November 21, 2006.

In recent years, a heated international debate has developed regarding the production and consumption of food made from or with GMOs. Among the key players in this debate, the United States, supported by many companies who have developed GMO-based products, has pushed for their acceptance; by contrast, the European Communities (EC) and its member states, backed by consumer groups and other activists, have tried to restrict their use through various regulations.

Even if conceived of only as a legal text, the array of judicial opinions contained in Nicaragua v. United States constitutes an extraordinary document. It represents a fascinating attempt through judicial inquiry to assess convincingly the relevance of law to an ongoing armed conflict. As such, despite procedural objection to entry upon this terrain by the three dissenting judges, it leads the Court to pronounce specifically upon the core issue of when force can permissibly be used in international relations, as well as the contours of a claimed right of collective self-defense in the setting of interventions and civil strife.

Perhaps the most striking aspect of the Supreme Court’s decision in Zivotofsky v. Kerry (Zivotofsky II), was the open disagreement between Justice Kennedy and Chief Justice Roberts. What Justice Kennedy’s majority opinion, holding that the President has exclusive power to recognize states and governments and that Congress cannot constitutionally impinge on that power by requiring the President to list Israel in the passports of U.S. citizens born in Jerusalem, means for future foreign relations law cases is something of a puzzle. Solving it requires understanding the two competing visions at the case’s center and the fluctuating relationship between the two Justices who hold them.

A decade ago Professor Henkin remarked that “there has been almost no examination at all of the relation between international human rights and the American Constitutional version of human rights.” Since then he has done much to fill this gap in the literature, as has, more recently, a distinguished barrister/scholar from Great Britain. Nevertheless, it may be useful, in this symposium celebrating the bicentennial of the U.S. Constitution, to survey both the contribution it has made to the development of international human rights law and the extent to which the latter has influenced the evolution of U.S. constitutional law.