If, as Lao-tse said, nature is not anthropomorphic, some fellow creatures nonetheless seem to share the better angels of our character; among these animals, none is grander than the African elephant. Elephants live in close-knit “families” of about ten members that seem to do just about everything synchronously—feeding, walking, resting, drinking or mud wallowing. Each unit has a matriarchal structure: it is headed by the oldest female and consists of younger females and their calves, as male calves tend to leave the family and strike out on their own when they reach sexual maturity between the ages of 10 and 15. Fighting is rare.

In January 1989, in the follow-up to the Conference on Security and Co-operation in Europe (the so-called Helsinki process), the United States signed the Vienna Declaration, in which it recognized “that the promotion of economic, social, cultural rights … is of paramount importance for human dignity and for the attainment of the legitimate aspirations of every individual.” To that end, the United States in signing the declaration undertook, inter alia, to guarantee “the effective exercise” of economic, social and cultural rights and to consider acceding to the International Covenant on Economic, Social and Cultural Rights. These undertakings seem to warrant renewed consideration of proposals that have been made at various times over the past quarter of a century for the United States to ratify the Covenant on Economic, Social and Cultural Rights.

What justifies asking American readers to take time in 1990 to review German international law during the Third Reich, which ended in 1945? First, it is a dramatic story. People who hold certain views on international law are dismissed, exiled, imprisoned and even hanged. The penalties for disagreement are far more severe than tenured faculty members of the 1990s would even dream. Second, the peculiarities of the period enable one to develop some hypotheses about the interactions in the law among people, institutions, ideas and policies in a way that is starker and clearer than the path one must try to trace in calmer times when movements are more gradual and subtle. It is in a sense a not-to-be-repeated laboratory test of how far a ruthless regime can impose a radical change in thinking on a community of legal scholars. The very repulsiveness of some of the concepts enables one to distance oneself from them and regard them as objects of disinterested scrutiny. Finally, the period is widely ignored, even in Germany, in the literature on the history of international law and in many other subsequent studies that seem to demand some reference to events and writings of that time. Although a few highly useful works have appeared, mostly on limited aspects of the scene, the field is clearly understudied. It is perhaps most strikingly so in the work of those authors who since 1945 have not mentioned what they themselves wrote in the period 1933-1945. In general, the German legal community has only recently started to investigate what happened to law in that period.

The recent decisions of the International Court of Justice and various arbitral tribunals with respect to the delimitation of maritime boundaries between states raise certain fundamental problems of jurisprudence. Among these are the legal consequences emanating from the proposition that each boundary is a unicum, that is to say, it is unique or monotypic; the part to be played by equity in the delimitation process; the role of equidistance; the legal consequences of the demise of natural prolongation and the emergence of the distance criterion or principle; the notion of a properly structured system of equity; and the proper function of the Court or tribunal in dealing with these matters.

On January 2, 1988, President Ronald Reagan of the United States and Prime Minister Brian Mulroney of Canada signed the landmark comprehensive Free Trade Agreement (FTA) between the two countries that already enjoyed the largest bilateral trade relationship in the world. The FTA was subsequently ratified by the legislatures of both countries, if only after a bitterly fought election on the subject in Canada. On January 1, 1989, the FTA formally came into effect.

To what extent are international legal rules formally applicable, and practically relevant, to a prolonged military occupation? The question has assumed prominence because of the exceptional duration of the occupation by Israel of various territories that came under its control in the war of June 5–10, 1967. The situation there has had two classic features of a military occupation: first, a formal system of external control by a force whose presence is not sanctioned by international agreement; and second, a conflict of nationality and interest between the inhabitants, on the one hand, and those exercising power over them, on the other. In highlighting these features, the Palestinian uprising, or intifada, which began in Gaza and the West Bank in December 1987, has added urgency to the question of the law applicable to prolonged occupations.

The Iran-United States Claims Tribunal has been called “the most significant arbitral body in history”; its awards, “a gold mine of information for perceptive lawyers.” In a recent international commercial arbitration, however, an arbitrator reportedly stated that decisions of the Tribunal, although on point, were not persuasive because the Tribunal, after all, involves a special type of arbitration. This arbitrator is not alone. A lecturer at the Hague Academy of International Law, speaking on international commercial arbitration, reportedly did not refer to the Tribunal’s jurisprudence because he did not find it relevant to his work for the same reason. Viewed as a gigantic experiment in international dispute resolution rather than merely a claims settlement device for this particular group of disputes, the Tribunal thus appears (at least to some) to yield decisions of unclear precedential value. Millions of dollars have been spent on its operation and hundreds of awards rendered, yet an apparently not uncommon perception is that the work of this, in some respects unique, institution is not applicable elsewhere.

In my full-length article U.S. Law Enforcement Abroad, I argued that government-sponsored abduction from foreign countries was not only distasteful, but contrary to international law and U.S. constitutional law. Though I acknowledged that the reported decisions here and abroad did not, on the whole, support my argument, I suggested that these decisions were out of step with contemporary international law and current American views of due process of law. I expressed skepticism about many of the defenses of the practice that had been raised by American officials and had too often, in my judgment, been accepted by American courts. In particular, I urged that no great faith be placed in assertions by the U.S. Government that abduction of persons who ended up in American custody were carried out solely by the police of the foreign country, that the United States had no knowledge of or participation in torture, or that the foreign country really consented to the operation, though it could not say so publicly.

In the October 1989 issue of this Journal, I wrote a brief essay concerning the U.S. Constitution and law enforcement abroad. I called attention to the case of Fawaz Yunis, a Lebanese national who was arrested on the high seas by U.S. officers and brought to the United States for trial on charges of aircraft hijacking and hostage taking. Within the space constraints of the Journal’s issue commemorating two centuries of the Constitution, I was able to discuss only one of the questions illustrated by the Yunis case—the question of jurisdiction over crimes committed by aliens abroad. My conclusion, in brief, was that a general reliance on passive personality as the basis for jurisdiction—i.e., the U.S. nationality of victims of the offense—was of doubtful validity under the Constitution, but that jurisdiction based on legislation enacted in implementation of international conventions widely adhered to probably was constitutional. The Yunis case raises two other issues that I believe are of continuing interest: (1) to what extent do the constitutional and statutory restraints on U.S. law enforcement officers apply abroad? and (2) does the so-called Ker-Frisbie rule, according to which a court in the United States may try a person brought before it for a crime over which it has jurisdiction—regardless of how the accused came to be before the court—remain valid and persuasive in the last decade of the 20th century? I want to explore these questions here, bearing in mind that the two questions are related to each other, as well as to the question of jurisdiction to prescribe discussed in the earlier article. Before embarking on the analysis, I want to set forth again in somewhat greater length the saga of Fawaz Yunis, as well as that of two other persons recently seized abroad by authority of the United States for trial in the United States.

So mocked the Honorable John Crosbie in the Canadian House of Commons in 1982 before he became the Canadian government minister with responsibility for the Canada-France negotiations respecting St. Pierre and Miquelon.

Only a few hours after ordering the U.S. military forces to Panama on December 20, 1989, President Bush explained that General Manuel Noriega had declared “a state of war with the United States and publicly threatened the lives of Americans in Panama.” This, he said, had been followed by the murder of an unarmed American serviceman by Noriega’s forces and beatings and harassment of others. He added that, as General Noriega’s “reckless threats and attacks upon Americans in Panama” had created an “imminent danger to the 35,000 American citizens in Panama,” he as President was obligated “to safeguard the lives of American citizens.”

In the fall of 1867, a powerful British expeditionary force, dispatched from India under the command of Field-Marshall Lord Napier and conveyed by over 250 ships, began deploying on the Red Sea coast of Africa. Its mission: rescue two British emissaries and their several assistants who, together with a brace of other Europeans, had been imprisoned by the volatile Ethiopian Emperor Theodore.

A common assumption underlying nearly every book or essay on the global environment is that the present generation owes a duty to generations yet unborn to preserve the diversity and quality of our planet’s life-sustaining environmental resources. This duty is sometimes said to be an emerging norm of customary international law, including the more recently treaty-generated custom of the “common heritage of mankind.” Professor Edith Brown Weiss lists three different approaches one might take in response to an asserted environmental obligation to future generations: the “opulent” model, which denies any such obligation and permits present extravagance and waste; the “preservationist” model at the other extreme, which requires the present generation to make substantial sacrifices of denial so as to enhance the environmental legacy; and the “equality” model—favored by Professor Weiss—which says we owe to future generations a global environment in no worse condition than the one we enjoy.