It is time for a fresh look at the norm of nonintervention in domestic affairs, as applied to nonforcible efforts to influence another state’s internal politics. The existence of such a norm is widely proclaimed, and it is commonly assumed to be a legal obligation rather than a mere practice of comity or aspirational objective. For governments, scholars and international organs alike, the “rule” against interference in internal politics seems to be an article of faith; but despite the frequency of its incantation in international discourse, how the norm applies to nonforcible conduct is inadequately understood.

Plaintiffs, Sperry Corp. and Sperry World Trade Inc. (Sperry), received an award from the Iran-United States Claims Tribunal (Tribunal). Upon payment of the award, the United States deducted 2 percent of the total amount pursuant to a directive license issued by the Secretary of the Treasury regarding recovered claims by U.S. nationals against Iran. When plaintiffs challenged the authority of the Treasury to make the deduction and the United States Claims Court announced a preliminary ruling that concurred with plaintiffs’ position, the Executive persuaded Congress to approve legislation authorizing specified percentages to be deducted by the United States from Tribunal awards to U.S. citizens. Responding to the plaintiffs’ challenge to the constitutionality of the newly enacted statute, the United States Claims Court dismissed the suit and, on appeal, the United States Court of Appeals for the Federal Circuit (per Meyer, J.) reversed and held: that the deduction constitutes a taking without compensation in violation of the Fifth Amendment to the United States Constitution. In September 1988, the United States filed notice of appeal with the Supreme Court.

In 1985 two intelligence agencies of the South Korean Government announced that they had successfully disrupted a North Korean spy ring operating in the United States. Their press release, which was widely publicized in the Korean press, named Chang-Sin Lee as a North Korean agent associated with a spy ring at Western Illinois University, where Lee had been a student. The story was picked up and reported in the United States by six Korean-American newspapers and a public television station. When Lee sued for libel, the defendants relied upon the official report privilege, which gives absolute protection to the accurate republication of official government reports. The district court, holding that the privilege applied and that Lee had not overcome it by showing malice, dismissed the case. Plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, which in a two to one decision reversed (per Ervin, J.) and held: that the official report privilege does not apply to the republication of official reports of foreign governments. Judge Kaufman, sitting by designation, dissented from the majority’s reversal of the district court’s grant of summary judgment.

Defendant Fawaz Yunis, a Lebanese resident and citizen, was charged for his alleged involvement in the 1985 hijacking of a Jordanian civil aircraft in the Middle East. Defendant moved to dismiss the indictment on the ground that, under general principles of international law, the court lacked subject matter and personal jurisdiction over a crime committed by a nonresident alien on foreign soil and that federal law provided no independent basis for such jurisdiction. The United States District Court for the District of Columbia (per Parker, J.) denied the motion to dismiss in part and granted it in part, and held: (1) that those counts of the indictment charging the defendant with violation of section 32(a) of the Destruction of Aircraft Act (18 U.S.C. §32(a) (1986)) (Aircraft Piracy Act) should be dismissed on the ground that this section provided no jurisdiction over aircraft piracy offenses having no connection to U.S. territory; (2) that traditional principles of international law provided sufficient grounds for asserting both subject matter and personal jurisdiction over the other crimes charged; and (3) that the Act for the Prevention and Punishment of the Crime of Hostage Taking (18 U.S.C. §1203 (1986)) (Hostage Taking Act) and section 32(b) of the Aircraft Piracy Act imposed liability for the offenses allegedly committed by the defendant.

Defendants, citizens of the United Kingdom, Bermuda, the Federal Republic of Germany and the United States, were operators of a sailing vessel on the high seas that was registered in the United Kingdom and flying the UK flag. Defendants were indicted for possession of several tons of marijuana, with intent to distribute, following a search and seizure of their vessel by the United States Coast Guard. Initially, the court granted defendants’ request for an evidentiary hearing. However, upon further consideration, the U.S. District Court for the Northern District of California (per Legge, J.) held: that the court had proper jurisdiction, and that defendants’ motions to suppress evidence obtained from the boarding, search and seizure of the vessel and to conduct an evidentiary hearing should be denied.

In Claim 4, one of several in Case No. Bl before the Iran-United States Claims Tribunal, claimant, the Islamic Republic of Iran, sought to recover from the United States possession of certain military equipment that had been sold to Iran pursuant to contracts forming part of the U.S. “Foreign Military Sales” (FMS) program. In the alternative, Iran sought compensation from the United States in the amount of U.S. $143,290,948, plus interest, for the alleged replacement value of the property at issue. In this partial award, the Full Tribunal held: that the United States was not obliged to deliver the equipment and that Iran’s request for specific performance must be denied, but that the United States was still required to compensate Iran for the value of the properties as of March 26, 1981, the date the United States communicated its decision not to permit their export to Iran. The Tribunal did not make an award of damages at this stage, since neither party had provided evidence as to the value of the goods on that date. American Arbitrators Howard H. Holtzmann and Charles N. Brower each filed an opinion concurring in part and dissenting in pArt. The three Iranian arbitrators concurred in the award, but without filing an opinion.

This decision is the latest of several by arbitral bodies of the International Centre for Settlement of Investment Disputes (ICSID) addressing a claim by Amco Asia Corporation (Amco Asia) against respondent Republic of Indonesia. An ICSID tribunal (First Tribunal) in 1984 rendered an award on the merits in favor of claimant Amco Asia. In 1986 an “ad hoc committee” (Ad Hoc Committee) convened on Indonesia’s request pursuant to Article 52 of the ICSID Convention annulled the 1984 award on the grounds that, with respect to a principal holding, the tribunal had “manifestly exceeded its powers” and “failed to state reasons,” both being grounds for annulment specified in Article 52(1) of the Convention. The Ad Hoc Committee did not disturb certain other holdings of the tribunal. Claimant then resubmitted the dispute, and a second tribunal (Second Tribunal) was constituted pursuant to Article 52(6) of the Convention. The first task of the new tribunal was to determine which holdings of the previous bodies were res judicata and therefore could not be relitigated. The three-member ICSID Second Tribunal held: (1) that holdings of the First Tribunal that had not been annulled by the Ad Hoc Committee were res judicata; (2) that issues as to which the First Tribunal’s holdings had been annulled could be relitigated; and (3) that the Ad Hoc Committee’s reasoning, as distinct from its actual decision of annulment, was not binding on the Second Tribunal.

Beckman Instruments, Inc. (Beckman) brought a claim before the American Arbitration Association (AAA) against the Overseas Private Investment Corporation (OPIC) to recover under insurance policies issued by OPIC certain losses sustained by Beckman in connection with the liquidation of Beckman’s wholly owned subsidiary, Aplar, S.A. (Aplar) in El Salvador. The OPIC insurance policies provided protection against injury directly caused by war, revolution or insurrection. Beckman’s local plant manager and a visiting Beckman engineer were kidnapped in El Salvador, setting in motion a chain of events leading to closure of the subsidiary and liquidation of the assets at a considerable loss to Beckman. OPIC denied Beckman’s claim for recovery of its losses under the OPIC insurance policies. The three-member AAA tribunal held: that the losses sustained by Beckman in connection with the liquidation of Aplar were the direct result of an act of insurrection—the kidnapping—and, consequently, were covered under the OPIC insurance policies, but that Beckman was not entitled to any compensation because the OPIC policies required that amounts received in compensation from other insurance companies and the value of all property recovered be set off against the amount that would otherwise be payable by OPIC.

On January 2, 1988, the President of the United States and the Prime Minister of Canada signed the Canada-United States Free Trade Agreement (FTA). It was implemented by appropriate legislation in both countries and came into force on January 1, 1989. This Agreement is the most comprehensive of a series of projects and treaties on free trade between Canada and the United States over the last 135 years.

A review of the current state of legal regulation in the field of human rights is likely to give the disappointing impression that international legislation is unequal to the task of checking widespread disregard for human dignity. Despite the vast proliferation of instruments setting standards on human rights, imposing obligations as regards the observance of those standards and establishing procedures to deal with breaches of those obligations, violations of human rights continue, their perpetrators apparently undeterred.

The International Law Commission of the United Nations held its 40th session from May 9 to July 29, 1988, under the Chairmanship of Ambassador Leonardo Díaz-González. The Commission adopted 6 articles of the Draft Code of Crimes against the Peace and Security of Mankind and 14 articles on the law of non-navigational uses of international watercourses. Substantial time was devoted to both international liability for injurious consequences arising out of acts not prohibited by international law and the status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier. Reports on jurisdictional immunities of states and their property and state responsibility were introduced by the special rapporteurs for those topics but were not discussed by the Commission owing to lack of time. The remaining substantive item on the Commission’s agenda, relations between states and international organizations (second part of the topic), was not considered at this session. Finally, the Commission once again devoted substantial time to reviewing its procedures and methods of work.