In the discussion of current problems of international organization frequent reference is being made to the action taken by the Council of the League of Nations in 1939 with reference to the membership of the Soviet Union. While the matter may be thought to have interest chiefly for historians, it might serve a useful purpose to reexamine the action taken in 1939 from a legal point of view. It is conceivable that a conclusion on the legal points involved might serve as a basis for removing some of the untoward features of the existing situation.

One of the principal issues of interest to international lawyers in the International Tin Council cases decided by the English courts was whether member states of the International Tin Council (ITC) were secondarily or concurrently liable to third parties for the debts of the organization. This issue may arise when two or more states form an organization with legal personality that can perform functions with legal consequences. In the course of performing these functions, such an organization may incur liabilities to third parties. These third parties may be states, other organizations, individuals or legal persons. The states may be member states of the organization itself or other states, and the individuals and legal persons may be nationals of member states or not. The liabilities may emanate from transactions, such as international agreements between states and the organization, that take place at the international level and may be governed by international law; or they may stem from transactions governed by municipal law, whether between the organization and states, individuals or legal persons. Such liabilities may be contractual, quasi-contractual or delictual.

The U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. has not ended future debate about the scope and impact of the Alien Tort Statute (ATS). But the Kiobel Court did resolve at least one issue with surprising unanimity: both the opinion for the Court by Chief Justice John Roberts and the main concurring opinion by Justice Stephen Breyer refused to interpret the ATS as authorizing universal jurisdiction. All nine justices rejected decades of lower-court precedent and widespread scholarly opinion when they held that the ATS excluded cases involving purely extraterritorial conduct, even if the alleged conduct constituted acts that are universally proscribed under international law.

On December 15, 1997, the United Nations General Assembly adopted the International Convention for the Suppression of Terrorist Bombings (Convention or Terrorist Bombing Convention). The Convention sets forth a broad regime of jurisdiction for international cooperation in connection with the unlawful and intentional use of explosives and other lethal devices, in, into or against various defined public places, with intent to kill or cause serious bodily injury or to cause extensive destruction of the defined public place. It will fill an important gap in international law by expanding the legal framework for states to cooperate in the investigation, prosecution and extradition of persons who engage in such international terrorism. While generally patterned after prior counterterrorism conventions, the Convention contains several important innovations.

The deliberative process by which the International Court of Justice (ICJ) reaches its decisions, although a matter of public record,1 is largely ignored today even by specialists.2 Several reasons account for this situation: the limited availability and somewhat opaque nature of the Court’s published procedures;3 the lack of practical interest in this aspect of the Court’s task;4 the reluctance of judges in the past to discuss, at least in print, any aspect of the Court’s decisionmaking process;5 and the impression held in some quarters that this process is something of a mystery.6 Consequently, few students of the Court have more than a hazy impression of how it makes its decisions.7

In the present essay I compare the 2016 judgment of the International Court of Justice (ICJ) in Nuclear Arms Race (Marshall Islands v. United Kingdom) with the Court's 1966 judgment in South West Africa (Ethiopia v. South Africa; Liberia v. South Africa). A series of similarities between the two judgments are obvious: They are two of the three cases in the history of the Court in which the judges were equally split and the President had to cast his tie-breaking vote. The critique of the judgments has been exceptionally strong, in 2016 as in 1966. The core of the critique, then as now, has practically been the same—the Court retreats into an excessive formalism that protects great powers.

The United States and some other members of the United Nations have been concerned in recent years about the substance of some resolutions of the General Assembly and the procedures by which they were adopted. Their concern was intensified by certain actions at the twenty-ninth session, when the Assembly sustained a ruling of its President with respect to the representation and participation of South Africa in that and future sessions, when it curbed the right of Israel to participate in the debate on the question of Palestine, when it accorded to the representative of the PLO (Palestine Liberation Organization) a treatment usually reserved to the head of a member state, and when it declared by Resolution 3210 (XXIX) of October 14, 1974, “that the Palestinian people is the principal party to the question of Palestine” and invited the PLO “to participate in the deliberations of the General Assembly on the question of Palestine in plenary meetings.”

The final preambular paragraph of the 1969 Vienna Convention on the Law of Treaties affirms “that the rules of customary internationallaw will continue to govern questions not regulated by the provisions of the present Convention;” and Article 4 of the Convention, establishing the nonretroactivity of the Convention by providing that it “applies only totreaties which are concluded by States, after the entry into force of the present Convention with regard to such States,” stipulates that this nonretroactivity is “ [w]ithout prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention.”

The recommendation included in the Final Act of the Second Hague Conference provides for a preparatory committee to elaborate a program and adds: “This committee should further be entrusted with the task of proposing a system of organization and procedure for the Conference itself.”

There is nothing that would please the writer more than to describe the international atmosphere in which the Opium Conference convened and proceeded to its deliberations and conclusions. That, however, must reside in memory for the present.

In 1881–2, during discussions of a committee of the Board of Trade, which was considering the question of a tunnel under the English Channel, the following question was asked: “Is it possible that war would be declared against us, as we might say out of a clear sky, without any previous strain or notice that a quarrel was impending?” To answer this question, the Adjutant-General ordered a special investigation concerning the extent to which wars had been made without previous declaration. The report, when completed, evidenced the surprise of the author at the great number of undeclared wars, and incidentally remarked:

There have been many occasions since the inception of the United Nations when it has been found useful to establish nonmilitary areas. A nonmilitary area is one from which all potential combatants, weapons, military equipment, and military installations are excluded and from which no hostile acts or activities in support of or related to the conduct of military operations may be undertaken. In addition to being of historical interest, demilitarization is again being implemented in Sinai and will almost certainly be resorted to in Namibia and other places in the future. Demilitarization thus gives rise to important questions: By whom may such zones be established? What purposes are they intended to serve? What are the implications for state sovereignty? Do such zones have any status for states not parties to the agreements establishing them or for the United Nations and its agencies? And how effective has the supervisory system been?

Procedural law on the international plane, especially the law applicable to international judicial proceedings, has long tended to be the poor relation of substantive law. In particular, insufficient attention has often been paid to its sources, and to the manner in which it may be created; and confident assertions tending to confuse the Sollen with the Essen, lex lata with lex ferenda, have been made with a frequency not to be expected in other fields of international law. Hence the common temptation to model international procedural norms or rules on what are perceived to be analogous dispositions of municipal procedural law, without taking sufficient account either of the degree of generality, actual or potential, of the municipal law rule, or of the accuracy of the analogy involved in its transfer to the international plane.

Does the United Nations, in Saint Matthew’s words, “strain at a gnat, and swallow a camel”? Ambassador John L. Loeb, Jr., a U.S. alternate delegate to the 38th United Nations General Assembly in 1983, spoke for many in and outside the U.S. Government when, after the end of the session, he charged in the New York Times that “[f]or decades, the United Nations has practiced a double standard.” Ambassador Jeane Kirkpatrick has elaborated the same point, accusing the Organization of being “perverted by politicization.”

There is no doubt but that the President can, with the consent of two-thirds of the Senate, make treaties binding the United States and compelling the House of Representatives, under penalty of sacrificing the good faith of the United States, to make such appropriations or to pass or to refrain from passing such laws as may be necessary to carry them out. The House has objected to being thus coerced on several occasions, but constitutional lawyers have not questioned the power of the President and Senate to act.