The Judgment of June 27, 1986 of the International Court of Justice provides convincing evidence of the high judicial quality of the Court and its Members. The really exceptional wealth of legal issues considered, carefully weighed and balanced, and decided in this case will long be a source of study for international lawyers. The present summary observations can examine only selected issues.

Before undertaking a systematic and analytical exposition of the project relating to the establishment of an arbitral court of justice as approved by the Committee of Examination B and referred to the First Subcommission of the First Commission, it may be useful to devote a few lines, by way of introduction, to the Permanent Tribunal of Arbitration created in 1899 by the First Conference and alongside which it is proposed to establish an arbitral court of justice.

Although careful scholarly treatment of the history of international law is now thriving, within U.S. courts that history now begins with one eighteenth-century treatise published in Neuchâtel, Switzerland, in 1758 and published in translation for modern readers under the aegis of the Carnegie Endowment for International Peace in 1916. This treatise is Emer de Vattel’s Droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. My aim in this article is to appraise the elevation of Vattel to vaunted originalist heights in U.S. law. The claim that Vattel’s theory of the law of nations completely represents how the Founding Fathers (Founders) understood the law of nations should be rejected as a matter of history.

The International Court of Justice (ICJ) has mostly emphasized substance over form and developed a pragmatic, flexible, objective, and fact-based analytical approach to jurisdiction. That is until a recent series of judgments veering towards jurisdictional formalism. However, to truly reflect its designation as the “World” Court, the UN's principal judicial organ must surely adjudicate some of the “big cases” with global security implications and involving important obligations erga omnes beyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacy capital.1 As a corollary, accepting this role might entail that the Court interpret its jurisdiction in a flexible and progressive manner, which had always been its mantra up until recently, so that the “big cases” have a chance of getting their foot in the door and being litigated.

A new approach

Ius Constitutionale Commune en América Latina (ICCAL) constitutes a new approach to constitutionalism in the region. It has transformative aims and draws its energy from the perception of unacceptable conditions of a systematic nature. Like many legal concepts it refers both to positive law as a well as to the legal discourse connected to it. In terms of positive law, it is above all based upon the American Convention on Human Rights and other inter-American legal instruments, the concordant guarantees of national constitutions, the constitutional clauses opening up the domestic legal order to international law as well as pertinent national and international case law. In terms of legal discourse it is characterized by a disciplinary combination of national and international legal scholarship, a comparative mindset, and a methodological orientation towards principles.

The proponents of this approach set a stark accent on rights and the transformation of political and social realities but reject plebiscitary presidentialism and the centralization of power as a transformative strategy. Accordingly, the separation of powers and independent institutions are accorded great weight. ICCAL supports the regionally secured realization of the central promises of national constitutions, the embedding of the national legal orders in a larger context, and the transformation of society through law.

The United Nations’ handling of the allegations that its peacekeepers in Haiti are responsible for the largest number of cholera cases and deaths in the world is a public relations as well as public health disaster. Even those likely to be skeptical of mono-causal accounts of mass torts or who see that case unsympathetically— as an incident where “ungrateful” nationals turn on their humanitarian benefactors—cannot possibly be content with how the United Nations has handled this crisis to date. How does one begin to justify a situation in which it takes the United Nations fifteen months to respond to credible allegations of malfeasance, perhaps even recklessness, with a two-sentence response from its top lawyer that asserts simply, without explanation, that the claims of thousands of victims are just “not receivable” because they implicate “political” or “policy” concerns? How can the United Nations expect anyone to sympathize with its position where, according to the United Nations’ own account of when it is liable for the actions of its peacekeepers, it seems to be saying that the United Nations is responsible only for the small torts of its agents (such as traffic accidents) but not for large ones that cause the deaths of 8,500 and counting?

Public international law and comparative law have so far been regarded as largely distinct fields, with little to no overlap between them. The degree of separation between the two disciplines is rendered in particularly stark relief by the absence in practice or scholarship of any real inquiry into the relationship between comparative law on the one hand and customary international law and general principles of international law on the other. Some eminent international lawyers go so far as to claim that it would be both unnecessary and unrealistic to have recourse to comparative law in the context of the identification of customary international law and general principles of law, pointing to the case law of the Permanent Court of International Justice and the International Court of Justice, which, according to them, “show[s] a clear disinclination towards the use of the comparative method.”

The amendments to the Charter adopted by General Assembly Besolution 1991 (XVIII) A of December 17, 1963, relating to the Security Council entered into force on August 31, 1966. As a result, the number of the non-permanent members was raised from six to ten, bringing the total of members of the Council to fifteen and the word “seven” in paragraphs 2 and 3 of Article 27 was replaced by the word “nine.” The rest of paragraph 3 of Article 27 was left unchanged and the affirmative and concurring votes of the permanent members continue to be required for decisions of the Council “on all other matters,” that is, on all matters other than procedural ones. It is clear from the debates preceding the adoption of the amendments that there was no intention to tamper with this requirement which confers on each of the permanent members the power to cast a “veto,” that is, a negative vote. No attempt has been made to clarify the effect of the absence of a permanent member from the Council upon the adoption of decisions relating to non-procedural matters or the effect of the abstention by a permanent member in the vote on such a decision. Presumably, by tacit accord, it was deemed wiser to leave the proverbial Pandora’s box locked.

The development of various regional organizations may seem a paradox in the light of the present interdependencies of the world community and its increasing common interests. The growing intensity of this interdependence, so forcibly demonstrated by the concept of collective security, calls for a truly universal organization. A regional organization by itself, however extensive and efficient it may be, could hardly meet and resolve global problems, such as control of atomic energy, and subserve the best interests of the world community as a whole.

Signs of inadequacy and crisis in general international law as to the economic ownership interests of aliens have been numerous since World War II. The pages o f the J ournal have recorded and analyzed a number of situations in which the existing legal order is not working well: ineffectual resorts to international adjudication; unilateral disregard of arbitral commitments; national decisions made in the name of international law but of dubious international acceptability; professional frustrations so intense as to have directed prime attention to happenstantial “salvage” operations. In a phase now apparently ended, groups in capital exporting countries have tried time after time to put forward normative formulations of investment codes as new positive law, only to have their efforts ignored in developing countries. Now we seem to be in a new phase, one in which direct investment-receiving, or host, countries, organized into groups or regional arrangements, compact among themselves that a comprehensive normative system shall prevail in each of them as to the legal relationships between foreign investors and each of those countries. Although foreign investment codes for particular states, including systems of prior restraints on entry in some developed countries, are not new, the Andean Foreign Investment Code is, indeed, a new juristic phenomenon. The Editors of the Journal have wished, therefore, to record and analyze preliminarily this new development in transnational investment law, one whose text has been carried in International Legal Materials and considered as to its possible impact in Research Panels organized by the American Society of International Law.

One function of the British Foreign Office has been to promote the universal abolition of slavery, the slave trade, and analogous forms of involuntary servitude. It has been said that “International co-operation for the suppression of the African slave trade was one of the most significant developments of the nineteenth century.” If this is so, it should not be a superfluous task to consider the legal aspects of the principal methods which the prime mover, Great Britain, employed to achieve this effect. The literature of international law contains excellent material on certain features of the problem, but little material on the most productive and decisive phases of the policy. The object of this article is to show what those phases were, without dealing with their political side any more than seems absolutely necessary for clarity.

In its Advisory Opinion of October 23, 1956, in the matter of Judgments of the Administrative Tribunal of the International Labour Organization upon Complaints made against the United Nations Educational, Scientific and Cultural Organization.

The problem of linkage between “nontrade” subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today. It is extensively and harshly debated by political leaders and diplomats, at both the national and the international levels of discourse, and is one of several issues that derailed the WTO Third Ministerial Conference in Seattle in late 1999. It also posed problems for the Fourth Ministerial Conference in Doha, Qatar, in November of 2001, and it threatens to derail the successful functions of the WTO itself.

Republic of South Africa v. Grootboom. Case No. CCT 11/00. 2000 (11) BCLR 1169. Constitutional Court of South Africa, October 4, 2000.

Minister of Health v. Treatment Action Campaign. Case No. CCT 8/02. At <http://www.concourt.gov.za>.

Constitutional Court of South Africa, July 5, 2002.

Two cases decided by the Constitutional Court of South Africa in 2000 and 2002 implement several economic, social, and cultural rights guaranteed by the Constitution of South Africa. The decisions illuminate the role in such reasoning of human rights treaties to which South Africa is a state party or a signatory. They also analyze General Comment No. 3 of die UN Committee on Economic, Social and Cultural Rights (Committee). These cases, Republic of South Africa v. Grootboom, decided October 4,2000, and Minister of Health v. Treatment Action Campaign, decided July 5, 2002, illuminate questions concerning both die jusdciability of economic, social, and cultural rights—at least as incorporated into Soudi Africa's Bill of Rights, sections 7 through 39 of its Constitution—and the concept of “minimum core obligations” as developed by the Committee.