The State Immunity Act 1978 (the Act) came into force in the United Kingdom on November 22, 1978. Preceded by much-noted and bold decisions of the Judicial Committee of the Privy Council, and of the Court of Appeal, the Act puts an end to the old British doctrine of absolute immunity and endorses the restrictive doctrine.

Within our own generation no less than 70 countries have attained political independence and joined the international community of nation states. Third World countries now command a preponderant majority in the United Nations and other world bodies, yet it is trite knowledge that the attainment of political independence and the proliferation of nation states in the Third World have had little impact on the world economic power structure. Access to the corridors of the United Nations and other international bodies has not necessarily assured effective participation in the shaping and restructuring of the world economic system. After the first flush of exhilaration over political independence, developing countries have now grasped the sobering fact that sovereignty is not synonymous with economic self-sufficiency or development and that the rich industrialized countries still substantially control the production and distribution of the world’s resources. An analysis of European direct investment in Africa shows that by the end of 1967 the former metropolitan powers still dominated investments in their former colonies. (The percentage of the total foreign investments in these African countries held by the former imperial powers is illustrated in table 1.)

The existence of a significant relationship between the concept of the balance of power and international law would be regarded as improbable by most modern international lawyers. They would think of the balance as a wholly obsolete conception and, in any case, as a part of international policy, or worse, part of cynical Realpolitik rather than of law. Earlier generations of jurists, however, did see international equilibrium either as an integral part of the system of rules of the law of nations or at least as a necessary precondition to the existence of such a law. Such a view of the interrelationship was never unanimous; indeed, there were in the past many legal observers who saw the balance of power as an obstacle to the development of an international legal order based on something more moral than force alone. This article is devoted to a study of the relationships between those two concepts as seen by the publicists who created the corpus of international law, principally during the period from the Peace of Westphalia in 1648 to the outbreak of World War I in 1914. It is not a study of the balance of power at large—a topic to which volumes might be dedicated—but only of that idea’s relationship with law.

The seventh session of the Third United Nations Conference on the Law of the Sea met in Geneva from March 28 to May 19, 1978, and resumed in New York from August 21 to September 15, 1978.

In domestic legal systems procedures exist for taking account of the interests of others when unilateral decisions affecting them are made. These procedures take such forms as the granting of injunctive relief and the requirement for impact statements. International law lacks comparable mechanisms. If governments consider the effects of their proposed decisions on other countries, they generally do so as a result of relatively unstructured intergovernmental consultations. The utility of such consultations has been recognized by decisionmakers of high rank, and a few studies of consultative practices in specialized fields have recently appeared. The present study examines the practice of prior consultation in a setting in which one might expect it to thrive, if it ever does: that of a political-military alliance among states with widely shared values and with a common (though not necessarily uniform) apprehension about a possible external threat to those values.

The U.S. Foreign Sovereign Immunities Act of 1976 (the Act), which became effective on January 19, 1977, sought to codify the substantive law of sovereign immunity in the United States, while also modifying it in certain respects. An even more important goal was to make the application of such law more uniform, fair, and hence predictable, by relieving the Department of State of the responsibility to determine claims of such immunity, and remitting them exclusively to judicial determination, preferably in federal courts. Now, 2 years after it first took effect, it is appropriate to review the roughly two dozen cases that have applied and interpreted the Act, as well as certain questions that have otherwise arisen in practice, in order to ascertain whether (and, if so, where) significant uncertainties remain and amendment of the Act may be in order. Further, the taking effect of the new State Immunity Act 1978 in the United Kingdom on November 22, 1978, has provided an opportunity to see what others have learned from our experience. It also demonstrates the extent to which they have diverged from our design, suggesting the ultimate utility of a broad international convention on the subject.

The charges that air carriers pay for the use of airports and airways to provide international air service have become a source of recurrent and heated controversy between governments. This controversy largely stems from the rapid rise in user charges over the last decade, but it has been fed by the lack of uniformity practiced by some countries in levying these charges. Thus, the relatively specialized issue of user charges involves some important general concerns of international law, such as international economic cooperation (in the matter of arriving at general agreement on what constitutes reasonable charges), discrimination, and most-favorednation treatment.

Since 1964 the United States has restricted military exports to the Republic of South Africa and to Namibia in compliance with a voluntary arms embargo established by the United Nations. In 1977 the United Nations, with United States support, made this ban mandatory. Shortly thereafter, the Department of Commerce significantly broadened U.S. export restrictions by prohibiting all exports—not merely arms and other military equipment—that the exporter knows or has reason to know are destined for use by the South African military or police.

The fons et origo of much law concerning the continental shelf, the Truman Proclamation of September 28, 1945, declared that in cases where the continental shelf off the coast of the United States extended to the shores of another state or was shared with an adjacent state, the boundary should be determined by the United States and the state concerned “in accordance with equitable principles.” A number of subsequent declarations, such as those of Saudi Arabia and the various coastal sheikhdoms on the Arabian Peninsula, have contained similar statements. In the North Sea Continental Shelf case the International Court of Justice, having found the delimitation provisions of the 1958 Geneva Convention on the Continental Shelf to be inapplicable as between the parties, began its exposition of the basic rules and principles to be applied as follows: “(1) delimitation is to be effected by agreement in accordance with equitable principles.” Although the 1958 Geneva Convention did not explicitly require delimitation to be made in accordance with equitable principles, it has been interpreted as requiring such delimitations. Article 83, paragraph 1 of the Informal Composite Negotiating Text of the Third United Nations Law of the Sea Conference expressly states that the delimitation of the continental shelf between adjacent or opposite states shall be effected by agreement in accordance with equitable principles. Whether or not Article 83, paragraph 1 is eventually accepted, it would seem that notions of equity are likely to continue to play an important part in the determination of continental shelf boundaries.

The phenomenon to which the expression “flags of convenience” is applied dates back to the end of the First World War when certain nontraditional maritime countries, especially Panama, Liberia, and Honduras, started to register foreign-owned vessels under their flags for economic reasons and exercised minimal control over the activities and operations of these vessels. This practice aroused considerable controversy and opposition. The seafarers’ unions were concerned about the low standards alleged to prevail on these vessels and about the loss of job opportunities for seamen from traditional maritime countries. The shipowners from certain European countries, supported by their governments, saw the practice as one that generated serious competition against them, especially because of the virtual tax-free concessions accorded to the owners of flags of convenience vessels.

The Vienna Convention on Succession of States in Respect of Treaties (the Convention), adopted on August 23, 1978, by the United Nations Conference on Succession of States in Respect of Treaties, contains five articles, numbered 41 to 45, forming part VI of the Convention, entitled “Settlement of Disputes.” As this title implies, those articles set forth methods and procedures to be applied for settling disputes relating to the interpretation and application of the Convention. They are complemented by an annex to the Convention, which specifies the modalities of a conciliation procedure that is the subject of Article 42.

Liquid mineral deposits that extend across a national frontier on land territory or a dividing line on the continental shelf between adjacent or opposite states have increasingly attracted attention in international law during the last two decades. Several common deposits of petroleum or natural gas have recently been discovered, and since the early sixties a considerable number of international agreements have been concluded to deal with the problems of those deposits. This development gives rise to certain considerations regarding an emerging legal concept of cooperation between neighboring states, as has already occurred with water resources shared by two or more states.

Although it is not yet clear whether the Third United Nations Conference on the Law of the Sea (UNCLOS III) will succeed in its task of adopting a “convention dealing with all matters relating to the law of the sea,” the drafters of the Informal Composite Negotiating Text (ICNT) produced at the conference’s sixth session decided to incorporate proposals on the final clauses of a future convention in the ICNT. Indeed, even if the conference were to reach consensus overnight on all outstanding substantive issues, problems relating to these final clauses could easily delay—or even jeopardize—the adoption of a new convention: they involve, after all, very complex political and legal questions. It is therefore only right that the conference agreed not to leave these problems to the very end of the negotiating process.

International law, its masters tell us, is “the vanishing point of jurisprudence.” So must be international politics, and all of international relations, for political theory. The recurrent and directing theme in political theory is the problem of order—how it is provided, maintained, altered, and so on. Order resides in orderly relations, that is, patterned and predictable relations, among people, but is abstracted from those relations as any arrangement of norms and institutions that distributes values among people. Among peoples, political theorists favor the alternative premise that anarchy, not order, reigns. By not existing, international order needs no explaining. Evidence to the contrary can be explained away as anomalous or ephemeral, and therefore not of theoretical interest. From this follows the dominance of concern for conflict and disorder and the paucity of theory in the study of international politics.

In a series of articles in this Journal, Professor Robert Wilson drew attention to the incorporation of references to international law in United States statutes, a technique designed to allow recourse to international law by the courts in interpreting and implementing those statutes, and, consequently, to help ensure conformity between international and U.S. law. The purpose of this article is to survey the references, direct and indirect, to international law in the 20th-century statutes of two Commonwealth countries in order to see to what extent similar techniques have been adopted. The choice of the United Kingdom and the Commonwealth of Australia as the subjects of this survey is no doubt somewhat arbitrary (although passing reference will be made to the legislation of Canada and New Zealand). But the United Kingdom, a semi-unitary state whose involvement in international relations has been substantial throughout the century, and the Commonwealth of Australia, a federal polity with substantial legislative power over foreign affairs and defense -whose international role has changed markedly since 1901, do provide useful examples of states with constitutional and legislative continuity since 1901, and (as will be seen) considerable legislative involvement in this field.

The technological advances of the space age have opened the door toward the increasing utilization of the so-called “geostationary orbit” by satellites for telecommunication, broadcasting, and meteorological and other services. More recently, the possible utilization of the geostationary orbit by satellites to transmit solar energy to the earth has been seriously considered. The growing importance of the geostationary orbit reflected in these actual and potential uses, coupled with recent claims of sovereignty advanced by equatorial countries with respect to segments of the orbit, calls for an analysis of its international legal status and for a review of some of the U.S. policy issues.