The purpose of this article is to suggest new ways to make international law for the environment. The existing methods are slow, cumbersome, expensive, uncoordinated and uncertain. Something better must be found if the environmental challenges the world faces are to be dealt with successfully. Nearly twenty years after the Stockholm Declaration, we still lack the institutional and legal mechanisms to deal effectively with transboundary and biospheric environmental degradation. The 1992 United Nations Conference on Environment and Development presents an opportunity to make progress. Unfortunately, my reading of the situation in late 1991 suggests that there is no political will to take decisions that will give us the tools to do the job.

William Shakespeare wrote during the Elizabethan Renaissance, a period of revived and intense interest in history. The Life of Henry the Fifth, written in 1599, one of Shakespeare’s histories, is a patriotic, epic portrayal of a phase in the bloody Hundred Years’ War (1337-1453) between England and France. It describes a medieval campaign led by a chivalrous and virtuous king, who could perhaps do wrong but not a great deal of wrong, and in which the few acting in a just cause defeat the many. In this play, Shakespeare relives past glories.

During the last two decades, we have frequently heard about a “crisis” in the kingdom of international law. Without engaging in semantics, one can understand the word “crisis” in its normal dictionary meaning as “a turning point in the progress of anything”; more, “a state of affairs in which a decisive change for better or worse is imminent.” However, these connotations are not necessarily present in the minds of those who apply the term to international law. They intend rather to refer to the weakness to which it is condemned, to its subordinate role and fragile existence; even international lawyers may speak of its “ambiguity.” In some instances, they point to the prevalence of a sense that “resort to legal arguments by policy-makers may be detrimental to world order and thereby counterproductive for the state that uses such arguments.” Thus, a picture of gloom is painted and the world almost consigned to lawlessness in international relations.

In 1989 the United Nations General Assembly voted to convene a Conference on Environment and Development (UNCED) to be held in Rio de Janeiro in June 1992, with the highest possible level of participation. One of the major items on the agenda—many maintain, the highest priority—is a treaty to cope with climate change. Toward that end, the Assembly established the Intergovernmental Negotiating Committee, which was to try to finish drafting an effective framework convention on climate change in time to be signed at the conference.

The much-neglected field of international sports law is changing significantly. From a patchwork of hard and soft law cultivated by the Olympic Movement, a more structured pattern of international administration and dispute resolution is emerging. Trends include the exercise by transnational sports organizations of greater and more uniform authority over athletes and athletic activity; improved mechanisms for resolving disputes and appealing decisions within those organizations; and a modest inclination toward arbitration and adjudication of disputes. Also, attention has shifted within the arena of international sports from political issues to social, economic and organizational issues and toward applying principles of procedural and substantive fairness to resolving disputes. These trends in administration and dispute resolution are interrelated. As the organizations that directly regulate sports activity become more intrusive, they generate expectations and entitlements that require more stable and equitable rules and procedures of enforcement.

The global multilateral trading system and its centerpiece, the General Agreement on Tariffs and Trade (GATT), are facing a new challenge from a quite unexpected quarter. The GATT is under attack by some in the environmental community who charge that international free trade blindly fosters the exploitation of natural resources. The GATT is depicted as a sinister charter that allows “big business” a free hand to plunder the bounty of the natural world. In certain environmentalists’ view, “free trade can destroy the environment.” Thus, a segment of the large and influential environmentalist lobby has joined the growing coalition of interests seeking to scuttle what is left of international free trade.

This analysis of covert operations, as conducted by Western intelligence services, explores the problem of assessing their effects on international order and comity. Despite a tendency of commentators to overlook this form of intervention, the topic is important; in contemporary global relations, covert acts of hostility between nations occur with a high rate of frequency.

The study is organized into three sections. The first presents a “ladder of escalation” for covert operations, one based on a rising level of intrusion abroad as policy makers climb upward from low-risk to high-risk activities. The second section briefly surveys leading ethical, philosophical and practical issues involved in trying to evaluate the effects of secret intelligence activities. And the third section offers a set of guidelines for evaluating the propriety of proposed covert operations.

More than two centuries have elapsed since the signatories of the U.S. Declara^ tion of Independence sought to manifest two radical propositions. The first is that governments, instituted to secure the “unalienable rights” of their citizens, derive “their just powers from the consent of the governed.” We may call this the “democratic entitlement.” The second proposition, perhaps less noted by commentators, is that a nation earns “separate and equal station” in the community of states by demonstrating “a decent respect to the opinions of mankind.” The authors of the Declaration apparently believed that the legitimacy of the new Confederation of American States was not made evident solely by the transfer of power from Britain but also needed to be acknowledged by “mankind.” This we may perceive as a prescient glimpse of the legitimating power of the community of nations.

Trade is not an end in itself; rather, it is a means to an end. The end is environmentally sustainable economic development. So viewed, there are legitimate constraints on trading patterns and practices that are necessary to ensure that the “instrument of trade” leads to environmentally sustainable development. Measures needed to protect the environment cannot be forsworn simply because they may adversely affect free trading relationships.

The degree to which an international treaty is “directly applied” or “self-executing” in a national (municipal) legal system, i.e., to what extent the treaty norms are treated directly as norms of domestic law (“statutelike law”) without a further “act of transformation,” has been debated in an extensive literature for more than a century. This subject is now receiving increased recognition as part of a broader trend acknowledging that understanding an international legal system necessitates understanding the relationship of national legal and political systems to that international system. In connection with treaties, the basic concepts of “monism” and “dualism” have long been used to explain some of the relationships of treaty law to domestic law.

In United States v. Alvarez-Machain, the Supreme Court sustained the jurisdiction of a U.S. court to try a Mexican national, charged with various counts of conspiracy, kidnaping and the murder of a U.S. drug enforcement agent in Mexico, even though his presence in the United States was the result of abduction rather than extradition pursuant to the Extradition Treaty between the United States and Mexico. The Court did not hold, as widely reported in the media, that the Treaty permits abduction, that abduction is legal, or that the United States had a right to kidnap criminal suspects abroad. On the contrary, the Court acknowledged that the abduction may have been a violation of international law. It stated, “Respondent and his amici may be correct that respondent’s abduction was ’shocking’ and that it may be in violation of general international law principles.”

On June 15, 1992, the United States Supreme Court confronted what the Permanent Court of International Justice termed in The Lotus to be “the first and foremost restriction imposed by international law upon a State: … that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” Contrary to popular criticism, the Court did not challenge that proposition. But it did apply, without adequate analysis, an antiquated doctrine that permits a defendant to be tried regardless of the unlawfulness of the seizure. In so doing, it ignored altogether the issue of presidential constitutional power to conduct such seizures. And it placed the issue squarely before Congress.