It is not too much to say that the municipal law of every civilized state recognizes certain rights as belonging to every individual, including the right to property, the violation of which constitutes a tort. Municipal law also very generally recognizes certain duties as attached to every individual the breach of which, coupled with consequent damages to another, is a tort. Thus, a tort is sometimes defined as a private or civil wrong or injury, and sometimes as the breach of a legal duty.

In recent years, many nations have made claims of extended maritime jurisdiction or exclusive control for various purposes, and sometimes have claimed sovereignty over areas of sea far beyond the three-mile territorial sea traditionally claimed by many nations. A primary objective of many of these claims has been control over fishing in coastal waters, with the purpose of reserving for the exclusive use of fishermen of the coastal state the fish resources in the waters claimed, or of controlling the activities of foreign fishermen and possibly exacting fees for the privilege of continued fishing. The nature of most claims of authority to regulate the taking of fish in coastal waters is such as to exclude foreign fishermen, such claims having as their basic purpose unconditional right of exclusion. What rights exist for displaced fishermen exist as a matter of comity, i.e., friendship between friendly nations, and as such form no basis for claims of legal right to recompense (although the governments of fishermen who are expelled without a phase-out period may justifiably respond in like unfriendly manner, enacting restrictive tariffs or similar economic handicaps). Several countries have made provision in their own laws for recognition of “traditional” or “historic” fishing for foreign fishermen on a basis of reciprocity, i.e., their fishermen would have similar rights in the exclusive fisheries zone of the foreign nation whose fishermen were permitted to continue fishing. Most such laws have been very recent. The problem is not new, however. Problems of access to the North Atlantic fisheries embroiled the United States and Great Britain immediately after the Revolutionary War, and were not resolved until 1910 by action of the Permanent Court of Arbitration at The Hague. Pelagic sealing inflamed relations between the United States and other nations in the late 19th century, requiring arbitration for settlement.

The requirement for international standards for rescue and return of distressed astronauts rapidly assumed importance in the first years of the space age, paralleling development of the technology necessary to sustain man in outer space and to permit re-entry of spacecraft through the earth’s atmosphere. The need increased in the early 1960’s when both the United States and the Soviet Union announced inauguration of space flight programs to send men to the moon and return them to earth. It was recognized that, in the continued absence of any firm international consensus on this subject, international friction could be caused by disagreement over procedure to be followed, the nature and extent of states’ obligations, or by differences in interpreting or applying legal principles in the event earth or space rescue and return operations became necessary. These conditions (possible unintentional misunderstanding during manned flight emergencies, swift developments in astronautical science and technology that made manned space flight a reality, and the importance of astronauts in terms of national prestige and subsequent status as “envoys of mankind”) combined to encourage international agreement upon standards for rescue and return by way of direct discussion among states, informal agreement, and, ultimately, conclusion of formal conventions governing this activity; and they discouraged reliance by nations upon principles or practices derived from custom and precedent.

What was the geopolitical scale of the Sykes-Picot agreement (May 1916)? What did the British and French mid-level officials who drew lines on its maps imagine as the territorial scope of their negotiations? This essay claims that the Sykes-Picot agreement cannot be understood strictly as the beginning of a story about territorial division in the Middle East, but also as an end of a story of perceived regional potency. Rather than a blueprint for what would later become the postwar division of the region into artificially created independent states, the Sykes-Picot agreement was still based on a powerful vision of a broad region that is open for a range of developmental possibilities. This forgotten regional aspect of the Middle East’s colonial history should be revisited today in view of the disintegration of its more obvious legacies. Perhaps the significance of the Sykes Picot agreement is not strictly the enduring impact of its “lines in the sand” but rather the light it sheds on the roots of a more regional oriented system.

In The Boundaries of International Law: A Feminist Critique (Boundaries),1 amidst observations about masculine bias in treaty law, co-authors Christine Chinkin and Hilary Charlesworth queried the masculine configuration, i.e., the gender of jus cogens or peremptory norms. A peremptory norm is “accepted and recognized by the international community . . . as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character.”2 Interrogating whether jus cogens privileged the experiences of males over that of females, they challenged jus cogens’ presumed universality and its intended utility. Accepted peremptory norms, they averred, exerted a silencing, deleterious impact on core feminine values such as sexual equality or freedom from gender discrimination.3 Decades after the Vienna Convention on the Law of Treaties’ (VCLT) codification of jus cogens, the International Law Commission (ILC) reified a non-exhaustive list of peremptory norms that explicitly excluded gender-based discrimination.4 This essay proposes a “jus cogens redux” to revive Chinkin and Charlesworth's question by peering at several threads in the thwarted conversations about whether freedom from gender discrimination rises to peremptory norm status. The conversational threads lay tattered by positive law's reliance on enumerated treaty provisions and accepted precepts of customary international law. They are frayed by normative law's philosophical, moralists’ approach. Neither the positivist law nor the normative law's concepts of how to determine jus cogens values grapples with gender or gender minorities. By default, each retains a masculine approach that configures the gender of jus cogens as “non-female.”