The combined forces of science and technology have been perfecting a new means of data acquisition which has gone largely unnoticed by the average citizen—a technique so profound in its implications for the improvement of the environment and for the allocation and conservation of natural and human resources that it has been compared to the microscope in its significance and achievement. This new technique is the viewing of the earth’s surface and its surrounding environment by means of sensing devices affixed to a platform orbiting the earth from the near reaches of outer space. Remote sensing by satellite (RSS) has been defined by the UN Working Group on Remote Sensing as a methodology to assist in characterizing the nature and conditions of the natural resources, the natural features and phenomena, and the environment of the earth by means of observation and measurements from space platforms.

After six years of study by its Committee on the Enforcement of Human Rights Law, the sixty-fourth Conference of the International Law Association, held in Queensland, Australia, from August 19 to 25, 1990, approved by consensus a set of standards to assist human rights bodies in monitoring states of emergency. These standards, designated the Queensland Guidelines for Bodies Monitoring Respect for Human Rights during States of Emergency, complement on the enforcement side the substantive norms found in the Paris Minimum Standards of Human Rights Norms in a State of Emergency, adopted by the ILA in 1984.

By the time of the establishment of the American Government the practice of the nations with regard to their mutual obligations had begun to resolve itself into fairly well-defined principles. Among these was one to the effect that one state must prevent the use of its territory and resources for hostile attacks upon its neighbors with which it is at peace. In the beginning this rule was evolved from the relations of neutrality; for the more pressing needs of the time of war tended to crystallize usage applying to it, while other practice was still incoherent. But obviously the law thus defined was only a phase of the general duty of a state to prevent injurious and offensive acts against friendly countries. The obligation is based upon the complete and exclusive control which the sovereign is presumed to exercise over its subject persons and territory. The authority of the sovereign exists alike in time of war and time of peace; and the requirement of the law extends as well to normal relations as to the exceptional conditions of neutrality.

When President Nixon and Prime Minister Tanaka of Japan, held a summit meeting in Hawaii on August 31-September 1, 1972, doubtless no one expected they were laying the foundation for one of the most curious sovereign immunity cases in the annals of American jurisprudence. The resulting communique, however, which placed the leaders' seal of approval on extensive Japanese purchase commitments in the United States, became the basis for a Japanese claim that half a billion dollars worth of enriched uranium subsequently purchased by ten Japanese utilities from the Atomic Energy Commission (AEC) and stored on its reservation in Oak Ridge, Tennessee enjoyed sovereign immunity from local commercial property taxes. The Japanese claim, apart from posing a diplomatic issue between Japan and the United States, embroiled the Department of State and the AEC (and its successor, the Energy Research and Development Administration (ERDA)) with each other and with the Department of Justice, threatened controversy between Tennessee and Washington, and eventually resulted in the Japanese utilities’ settling the matter for $4.5 million. Although the settlement deprived posterity of a decision on the issue, this unique case remains not simply an entertaining episode but also a useful lesson in defense against claims of sovereign immunity. While the Foreign Sovereign Immunities Act of 1976 was intended substantially to eliminate the role of the Department of State in sovereign immunity disputes, the Act could not have been successfully invoked in this case, even had it been in effect, as related below.

Much of the scholarly attention given to the U.S. Supreme Court’s March 2008 decision in Medellín v. Texas has focused on the Court’s supposed ruling as to the presumptive nonself-execution of international agreements entered into by the United States, and the power of the president to implement such agreements without an act of Congress. Less heed has been paid to the impact and implications of the Court’s reasoning and analysis in interpreting the four international agreements at issue in the case: the 1945 United Nations Charter and Statute of the International Court of Justice, and the 1963 Vienna Convention on Consular Relations and its Optional Protocol. Although the Court’s analysis of the self-execution questions is beyond the scope of my contribution to this Agora, I acknowledge that the jurisprudence of treaty interpretation fits uncomfortably with the calculus of an international agreement’s selfexecution into U.S. law. And while it may seem obscure to view the Medellín decision through the lens of treaty interpretation, that is what truly brings its importance into focus, so that its impact may ultimately be seen as clarifying the established norms of U.S. foreign relations law, particularly in the selection of appropriate sources for treaty construction and the deference to be granted to various foreign relations actors and institutions.

Canadian, Finnish and United States producers of wood pulp and two trade associations of such producers, one Finnish and one American, applied to the Court of Justice of the European Communities for annulment of a 1984 decision of the Commission of the European Communities. Under the 1984 decision, the Commission found the applicants to have infringed Article 85 of the EEC Treaty by engaging in concerted actions relating to the prices of wood pulp exports into the European Community (EC). The applicants, whose registered offices were all outside the Community, were ordered to terminate the pricing practices and to refrain in the future from measures having the same object or effect. The Commission fined all but two of the applicants for their past conduct. In this preliminary judgment, the Court held: (1) that the territorial scope of Article 85 of the EEC Treaty applies to the pricing practices of the applicants; (2) that by applying Article 85 to such practices, the EC had not infringed the public international law principles of territoriality and noninterference; (3) that the Commission’s decision is vacated insofar as it concerns the pricing actions of KEA, an association of U.S. wood pulp producers registered as an export cartel under the Webb-Pomerene Act; and (4) that the competition rules in the Free Trade Agreement between Finland and the Community do not preclude the application of the EEC Treaty.

This issue of our Journal highlights “new thinking” by two leading Soviet legal scholars. That, however, is only part of a larger transformation of the climate in which international law and institutions operate. Nowhere has this transformation been more remarkable than at the United Nations.

The unevenness of congressional oversight, the proclivity of executive foreign affairs agencies for violating the law and the traditional responsibility of the courts as the last guardians of the Constitution—all point to the propriety of an active role for the judiciary in ensuring governmental compliance with the law. Specifically, courts should not decline to resolve foreign affairs disputes between Congress and the President because they present “political questions.” The recent case of Lowry v. Reagan illustrates the serious systemic damage wrought by judicial abstention in such disputes.

John Smith, an American citizen, is engaged in a profitable local business in a foreign country. He unexpectedly receives information from a reliable source that the people of the vicinity plan to attack and destroy his establishment within twenty-four hours. Smith at once imparts this information to the local authorities, who take no steps whatever to protect him. The threatened attack occurs and his business is either severely damaged or ruined. It is obvious that we have here a case for diplomatic representations. A foreigner residing in a friendly state has suffered injury to his property at the hands of the nationals of that state, under conditions where national responsibility attaches. The state of residence has failed to meet its international duty of taking adequate steps to afford the resident foreigner the protection of the local law; in other words, it has not been diligent in attempting to prevent the perpetration by its nationals of acts violative of the local law directed against the foreigner and resulting in injuries to his business interests.