The American Convention on Human Rights entered into force in 1978. To date, 18 OAS member states, out of 31, have ratified it. Included among the states parties to the Convention are all the Central American Republics as well as Panama, Mexico, the Dominican Republic and Haiti. The five Andean Pact nations have ratified, as have Jamaica, Barbados and Grenada. Argentina is the latest state to become a party; it did so on September 5, 1984, and thus became the first and, to date, only Southern Cone country to do so. The others—Chile, Paraguay and Uruguay—have not ratified; nor have Brazil, the United States, Suriname and a number of English-speaking Caribbean states.

For centuries the law of the sea operated efficiently on the basis of customs that had developed through uniform and consistent state practice and that were considered, in most instances, to be obligatory. It was not until the late 19th century that the evolution of the international community suggested the wisdom of codifying the existing and emerging customary norms. Although the early codification efforts were conducted by learned societies established for such purposes, the resulting studies eventually led to several multilateral treaty negotiations, including the Hague Codification Conference of 1930 and the three United Nations Conferences on the Law of the Sea. The fruits of this evolution from the predominance of custom towards universal treaty law are found principally in the Geneva Conventions of 1958 and, more recently, in the United Nations Convention on the Law of the Sea of 1982.

Pursuant to the recent four to one Judgment by a Chamber of the International Court of Justice in the Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada and the United States are to share Georges Bank. Canada has jurisdiction over approximately one-sixth of the Bank, including the resource-rich “Northeast Peak” and most of the “Northern Edge,” and the United States the remaining area. Since Georges Bank is one of the world’s most productive fishing grounds, and this was consequently a case about fish more than a traditional continental shelf delimitation, the Judgment means that these North American neighbors may have to work out cooperative arrangements for the conservation and management of the shared living resources of Georges Bank. The question naturally arises as to how this outcome was reached, and why it purports to fulfill the fundamental norm of the law of delimitation of maritime boundaries—namely, to achieve an “equitable result.”

The International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) is the most important of the general instruments (as distinguished from specialized instruments such as those pertaining to labor or education) that develop the fundamental norm of the United Nations Charter—by now accepted into the corpus of customary international law—requiring respect for and observance of human rights and fundamental freedoms for all, without distinction as to race. It has been eloquently described as “the international community’s only tool for combating racial discrimination which is at one and the same time universal in reach, comprehensive in scope, legally binding in character, and equipped with built-in measures of implementation.”

The Permanent Court of International Justice (PCIJ) was established in 1922. Article 36, paragraph 2 of its Statute reads:

1. (a) the interpretation of a treaty;

2. (b) any question of international law;

3. (c) the existence of any fact which, if established, would constitute a breach of an international obligation;

4. (d) the nature and extent of the reparation to be made for the breach of an international obligation.

How adequate is functionalism as a comprehensive theory of international politics and law? In its classic version, functionalism posits that, as economic and technological interdependence grows, diplomacy and the elaboration of international legal rules will be shaped increasingly by functional concerns and less and less by ideology and “high politics.” While such a trend is evident in some areas of international relations, such as the European Community, it is less so in others. In many negotiations and disputes around the globe, even though the issues may be amenable to a functional approach and resolution, states continue to give great weight to ideological and political considerations in their diplomacy and legal stances. Proponents of functionalism have assumed that the growing tide of functional links and relationships eventually will dominate international relations and render political and ideological conflicts less significant, if not mostly irrelevant. But in many cases, the reverse has happened. International organizations set up for functional purposes have been inundated by political and ideological rivalries, and international legal issues of a functional character have been seized upon by states to advance their ideological and political objectives. Cuba’s policy towards the law of the sea serves as a case study of this problem.

On October 12, 1984, a five-member Chamber of the International Court of Justice rendered its decision in the maritime boundary dispute between the United States and Canada in the Gulf of Maine area. The Chamber delimited the continental shelves and 200-nautical-mile fisheries zones by setting one line between the two countries off the East Coast of North America. The Chamber’s Judgment, which under Article 27 of the Statute of the Court is considered as if it were rendered by the full 15-member Court, is likely to attract considerable comment. We will resist the temptation to add our views to that substantive commentary, leaving analysis for the time being to others not so closely associated with the case.

Both the rules of sovereign immunity and the law of economic development are undergoing a noteworthy evolution. Both have inspired an abundant literature. Yet, for the most part, the literature in point approaches each subject individually and makes no attempt to consider whether the rules obtaining in one discipline might affect those of the other.

Words mean whatever I say they mean, Humpty-Dumpty rather grandly explained shortly before his accident. Similarly, statutes, perforce, mean whatever those who implement them say they mean.

For more than 20 years the Italian Constitutional Court and the Court of Justice of the European Communities have disputed the proper relation between Community and national law. In S.p.A. Granital v. Amministrazione finanziaria, the Constitutional Court recently adopted a position consistent with the Community Court’s view of the supremacy of Community law. Italian constitutional law doctrines on international law profoundly affected this development and may in turn be altered as the implications of the Constitutional Court’s view of Community law are worked out.

It is now 30 years since the conclusion of the International Convention for the Prevention of Pollution of the Sea by Oil marked the international community’s first serious attempt to cope with the increasing scale of marine pollution. Since then, pollution of the seas by oil, chemicals, nuclear waste and the effluent of urban industrial society has continued to grow and to cause ever more serious damage to the living resources and ecology of the marine environment and to the shores of coastal states. The control, reduction and elimination of marine pollution has become one of the major issues in the contemporary law of the sea and it has proved to be a complex task, requiring the creation of a new and growing body of international law. This process, though in certain respects still incomplete, has reached its potentially most significant stage of codification and development through the provisions of the Law of the Sea Convention of 1982.

The bilateral negotiating process that has been developed to address the central problems of nuclear arms control has evolved to the point that it can be characterized as a proven mechanism for the negotiation of international agreements on these subjects. Even though the process was recently interrupted, and although it by no means represents the only vehicle available for the purpose, history demonstrates that employment of the methodical bilateral process can lead the way, under favorable political conditions, to the resolution of many of the difficult political and technical questions common to the field of nuclear arms control.

Among the more controversial provisions of the Restatement of the Foreign Relations Law of the United States (Revised), are the sections dealing with the act of state doctrine in Tentative Draft No. 4. Section 428 provides: “Subject to §429, courts in the United States will refrain from examining the validity of an act of a foreign state taken in its sovereign capacity within the state’s own territory.” This provision, of course, is based on the Supreme Court decision in Sabbatino. The Court there stated, “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government” even if it is alleged that the taking is contrary to international law.

Three decisions on maritime boundaries in a period of 9 months during 1984-1985 have doubled the body of case law on the delimitation of ocean space. The cases decided by international tribunals prior to 1984 applied only to the continental shelf. The waters overlying the shelf were either part of the high seas or, if subject to coastal state jurisdiction, were left undivided as between neighboring coastal states. However, two of the decisions rendered last year—the decision by a Chamber of the International Court of Justice in the Gulf of Maine case and the one by an ad hoc arbitral tribunal in the Guinea/Guinea-Bissau case—constituted the first judicial determinations of boundaries that divide jurisdiction over both the continental shelf and the water column beyond the territorial sea. The decision by the International Court of Justice in the Libya/Malta Continental Shelf case represented the fourth in a line of cases delimiting the continental shelf alone.

The scope of international law steadily widens. In addition to the traditional concerns of direct relations between states such as warfare and diplomatic immunity, it now includes human rights, labor law and environmental policy, which deal with the relations of a state with its own citizens and territory.

A recent decision of the Court of Appeals for the District of Columbia Circuit, Tel-Oren v. Libyan Arab Republic, is sparking considerable controversy and will undoubtedly be examined at length in law journals. The events in issue occurred March 8, 1978, when 13 heavily armed members of the Palestine Liberation Organization left Lebanon for Israel under instructions to seize and hold Israeli civilians in ransom for the release of PLO members incarcerated in Israel. On the main highway between Haifa and Tel Aviv, they stopped and seized a civilian bus, a taxi, a passing car, and later a second civilian bus, taking the passengers hostage. While proceeding toward Tel Aviv with their hostages gathered in the first bus, the terrorists fired on and killed numerous occupants of passing cars as well as some of their own passengers. They also tortured some of their hostages. At a shoot-out with the police at a police barricade, the terrorists shot more of their hostages and then blew up the bus with grenades. As a result of the terrorists’ actions, 22 adults and 12 children were killed, and 63 adults and 14 children were seriously wounded.