The bicentennial of the United States Constitution has been marked by much celebration and some stocktaking. The Framers have been fully—if not fulsomely—praised, and there appears to be general enthusiasm about the legacy they left us. However, as regards the constitutional dispositions for the conduct of foreign affairs, there appears to have been little attention to the Framers and little inclination to celebrate what they ordained. Few have taken this occasion to expose how we got where we are from where they were; efforts to take stock have been hampered by uncertainty and shouted down in controversy.

Of the many post war problems of Europe few have presented such difficulty as the problem of Poland’s boundaries with Lithuania. Article 87 of the Treaty of Versailles reads in part, “The boundaries not laid down in the present treaty will be subsequently determined by the Principal Allied and Associated Powers.”

It is a truism that the science of law proper – the science dealing with the United States or the law of Great Britain, one finds the whole science based on the fact of the existence of a political society known as the United States or Great Britain, which formulates, applies and enforces the law which governs these nations in their internal relations. When one enters upon the study of what is called international law, one finds himself expected to accept as a fundamental proposition that there is no political society which formulates, applies and enforces the law which he is told governs all nations in their external relations, and that this law is formulated, applied and enforced among or between the nations. This difference in fundamentals leads to corresponding differences in the derivative notions. Practitioners of law proper take little or no interest in what is called international law. From their point of view, that which is called international law is only a collection of the rules of a highly interesting game, success in which depends largely upon “face ” and personality; nor can it be denied that there is much to justify this opinion. Students of law reflect the attitude of mind of the practitioner, and the great majority of students end their legal education when they finish the courses in national domestic law, giving no consideration to the law which governs the actions and relations of the nations.

Paragraph 16 of Security Council Resolution 687 (April 3, 1991) reaffirmed that “Iraq … is liable under international law for any direct loss, damage, … or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.” This resolution and Security Council Resolution 692 (May 20, 1991) established the United Nations Compensation Commission (UNCC) to administer a system to provide compensation for claims for which Iraq is liable under paragraph 16. The Commission has a Governing Council, composed of the members of the Security Council; panels of commissioners, appointed from time to time to review particular groups of claims; and a secretariat headed by an Executive Secretary. The Commission’s Governing Council first met in Geneva in July 1991 and in the first year of its existence adopted decisional criteria for six categories of claims: Category “A” — claims of individuals for fixed amounts for departure from Iraq or Kuwait; Category “B” — claims of individuals for fixed amounts for death or serious personal injury; Category “C” —claims of individuals for amounts up to $100,000; Category “D” —claims of individuals for amounts above $100,000; Category “E” —claims of corporations; and Category “F” — claims of governments and international organizations.

The diplomatic protection of citizens abroad is a comparatively modern phenomenon in the evolution of the state, in constitutional and in international law. Not until the legal position of the state toward individuals, both its own citizens and aliens, and of states between themselves, had become clearly denned in modern public law, did diplomatic protection become a factor in international intercourse. A discussion of the subject therefore involves a preliminary study of three distinct legal relations, first, between the state and its own citizen; secondly, between the state and aliens resident within it; and, lastly, the relations of states among themselves with respect to their rights over and their international responsibility for delinquencies toward aliens.

It is not clear what there is left for a commentator to say once a symposium has unfolded in such a way as to cancel itself out. But in case others read it differently than I do, I am happy to explain how I think this process occurs across the wonderful though self-canceling pages of the American Journal of International Law symposium on the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and—through valedictory reflection on thoseenter prises—on contemporary international criminal law so far. The self-cancellation process, as I see it, takes place in the move from creation story and doctrinal evolution to impact measurement amidst legacy rhetoric. One might take this result as an index of where things stand (or whether anything stands) in the fascinating emergence of a prestigious enterprise—and what might come next.

When states withdraw from bilateral investment treaties or denounce multilateral treaties related to foreign investment, a range of intersecting questions arise in domestic and international law. Recent developments have demonstrated potential incongruities between domestic and international approaches to investment protection, including as regards the effectiveness of withdrawal and the implications for existing investments. This essay reflects on international and domestic disputes involving the withdrawal of the Russian Federation from participation in the Energy Charter Treaty (ECT) to highlight these interactions. These issues have become particularly pertinent today because more than 1,500 international investment agreements (IIAs) are nearing expiry of their initial term, providing an opportunity for termination. Moreover, some states have begun to terminate or denounce investment treaties, while many more are engaging in a process of renegotiation and reform. The Russian case study also highlights the potentially far-reaching effects of a state simply signing a treaty, even many years after the state has expressed its decision to withdraw from it, and notwithstanding tensions with the domestic legal framework.

The traditional treaty, conceived of as a contract between states, is in decline. Recent climate change negotiations have produced nonbinding instruments such as the Copenhagen and Cancun Accords; the financial crisis prompted governments to negotiate Basel III, a nonbinding framework for global banking regulation; the nonbinding Organisation for Economic Cooperation and Development’s Guidelines for Multinational Enterprises are developed countries’ primary rules governing the conduct of transnational businesses. Clouds loom on the horizon even in those areas in which the treaty’s prominence continues, such as investment and trade law. The World Trade Organization (WTO) has not reached a major agreement among its members since its founding twenty years ago, and some states have withdrawn from bilateral investment treaties or the Convention on the Settlement of Investment Disputes Between States and National of Other States (better known as the ICSID Convention).

Even before its hundredth year anniversary on 16 May 2016, the Sykes-Picot agreement had become a widely cited historical analogy both in the region itself and in Europe and the United States. In the Middle East, it is frequently deployed as an infamous example of European imperial betrayal and Western attempts more generally to keep the region divided, in conflict, and easy to dominate. In Europe and the United States, however, its role as a historical analogy is more complex—a shorthand for understanding the Middle East as irrevocably divided into mutually hostile sects and clans, destined to be mired in conflict until another external intervention imposes a new, more authentic, set of political units on the region to replace the postcolonial states left in the wake of WWI. What is notable about both these uses of the Sykes-Picot agreement is that they fundamentally misread, and thus overstate, its historical significance. The agreement reached by the British diplomat Mark Sykes and his French counterpart, François Georges-Picot, in May 1916, quickly became irrelevant as the realities on the ground in the Middle East, U.S. intervention into the war, a resurgent Turkey and the comparative weakness of the French and British states transformed international relations at the end of the First World War. Against this historical background, explaining the contemporary power of the narrative surrounding the use of the Sykes-Picot agreement becomes more intellectually interesting than its minor role in the history of European imperial interventions in the Middle East.