The world community is not on the brink of Armageddon because of a paucity of legal answers. Legal institutions exist. Moreover, any problem, without respect to the identity of the decision-maker, may be solved “legally”: by impartial assessment of the facts and formulation of a decision by reference to the parties’ commitments as well as to overriding community policies. Most frequently the real problem is not in arriving at an answer in law, but in enforcing an answer in law. In the final analysis, law is not only, as the Legal Eealists contend, what the courts say 2 but also what the sheriff does. Law comprises not only the verbal pronouncements of authoritative organs, but also the established patterns of behavior of the individuals composing society.

On the night of December 28, 1968, eight Israeli helicopters took part in an attack on the Beirut International Airport. Israeli commandos descended from six of the helicopters (the other two hovered above) that had landed either on runways or at the hangars of the airport. All commercial aircraft belonging to Arab airlines were destroyed by explosives being placed in the nose-wheel well and in the undercarriage well of each plane. The attack resulted in the destruction of 13 planes whose worth has been estimated to be $43.8 million. Additional damage has been reported done to hangars and other airport installations. Lebanese sources report that two Israeli commandos were injured by gunfire from airport guards. There was no loss of life.

The requirement for international standards for rescue and return of distressed astronauts rapidly assumed importance in the first years of the space age, paralleling development of the technology necessary to sustain man in outer space and to permit re-entry of spacecraft through the earth’s atmosphere. The need increased in the early 1960’s when both the United States and the Soviet Union announced inauguration of space flight programs to send men to the moon and return them to earth. It was recognized that, in the continued absence of any firm international consensus on this subject, international friction could be caused by disagreement over procedure to be followed, the nature and extent of states’ obligations, or by differences in interpreting or applying legal principles in the event earth or space rescue and return operations became necessary. These conditions (possible unintentional misunderstanding during manned flight emergencies, swift developments in astronautical science and technology that made manned space flight a reality, and the importance of astronauts in terms of national prestige and subsequent status as “envoys of mankind”) combined to encourage international agreement upon standards for rescue and return by way of direct discussion among states, informal agreement, and, ultimately, conclusion of formal conventions governing this activity; and they discouraged reliance by nations upon principles or practices derived from custom and precedent.

A cartoon published last year in a Boston newspaper showed two passengers on an aeroplane, one turning to the other to say, “Uh-oh, the stewardesses have changed into their Cuban costumes.” Seventy-five successful hijackings of aircraft of United States and foreign registration in the past nineteen months have dampened this light-hearted approach to the subject. In recent months a bantering remark to a member of a flight crew as to the prospects for a side trip to Cuba has earned more than one passenger a delayed flight, a conversation with an agent of the Federal Bureau of Investigation, or an appearance in court on charges ranging from disturbing the peace to attempted aircraft piracy. For some passengers the hijacking of an aircraft may be a colorful interlude in the routine course of air travel; for the flight crew, the carrier, and the Federal Aviation Administration, it is a nightmare, a vicious form of Russian roulette in which the fate of the hijacker is inconsequential in comparison with the potential cost in lives of passengers and crew, not to speak of the value of the aircraft itself.

There are regrettably few cases in international law that go into the question of the proof necessary to establish a customary rule binding upon the defendant state. And from those few cases, notably those decided by the World Court, most writers have drawn pessimistic conclusions as to the proof needed for custom because of the Court’s apparent insistence, in Professor Palk’s words, upon “some tangible evidence of consent on the part of the state that is bound.” A showing of consent is a very difficult proposition. Many legal disputes arise precisely because neither side has previously consented to the same rule. As Lauterpacht argued, to say that prior consent must be shown in order to reach a legal conclusion in any given international dispute is tantamount to rejecting the possibility of the existence of the vast majority of the rules of international law. But then, how can we explain the World Court’s reasoning in the Asylum, Right of Passage, and Fisheries Cases in which the element of consent on the part of the defendant states seemed to play such a vital role in the Court’s reasoning concerning the existence of binding rules of law?

In recent years, scholarly attention has increasingly focused on the lawmaking effect of General Assembly resolutions. The citation of previous resolutions in later resolutions of the General Assembly is one potentially significant aspect of this question, yet there has been no examination of it in legal literature. Anyone familiar with the Assembly’s work knows that the phenomenon is pervasive. 1,149 resolutions, just over half of the 2,247 passed in the first twenty-one sessions of the General Assembly, refer to previous resolutions, and the cited resolutions have been invoked an average of 2.68 times. More important from a legal standpoint is the fact that a very few resolutions have been cited much more often than the average. Resolution 1514 (XV) was cited in 95 subsequent resolutions in the first six sessions following its passage, and Resolution 217(111) was cited 75 times in its first nineteen years. Seven resolutions have been referred to on more than sixteen occasions since their approval by the General Assembly, and seven have been cited more than twice in each session since passage. A consideration of the legal relevance of this phenomenon seems worth pursuing, and any such inquiry must begin first of all with an over-all theoretical analysis of General Assembly resolutions as a source of international law.

On March 13, 1969, the United States Senate by a vote of 83 to 15 consented to the ratification of a treaty described as “the most important international agreement brought before the U. S. Senate since the North Atlantic Pact” and “the most important international agreement limiting nuclear arms since the nuclear age began.” Assuming a timely entry into force, the Treaty on the Non-Proliferation of Nuclear Weapons may delay incarnation of the specter which “haunted” John F. Kennedy:

There is a saying that when a dispute lasts for a long time, it must be about something small; for if it were not, it would be in the interest of the parties to settle it. This, however, is not the case in the boundary dispute between Ecuador and Peru. The dispute is not only one of the major international issues of Latin America, but it is also dangerous, because its long history has clothed it with considerations of national prestige and honor and because it involves a very considerable extent of territory with which neither country is willing to part. Up to the present day, the two countries have attempted to settle their differences through negotiations, treaties, arbitrations and wars—only to revive them again and again. Even the 1942 Protocol of Eio de Janeiro, which seemed finally to have settled the dispute, was declared null and void by Ecuador in 1960.

The termination on January 31, 1968, of the Trusteeship Agreement on Nauru has given rise to a complex situation with regard to Article 86(1) of the United Nations Charter which lays down the rules governing the composition of the Trusteeship Council.

It has been assumed in international adjudication that each state in the litigation should be permitted to have a judge of its own nationality on the bench. This practice of employing national judges in international courts is deeply rooted in the history of arbitration and judicial settlement. Responding to a demand for it, the Committee of Jurists in 1920–1921 embodied the plan in Article 31 of the Statute of the Permanent Court of International Justice. This article was transferred intact to the Statute of the present International Court of Justice in 1945. Whether judges of the nationality of the parties, either in arbitration tribunals or in courts of justice, can be counted upon to be as “independent” as the processes of justice require, and as Article 2 of the present Statute stipulates, is a question of some moment to present-day international justice. It has been suggested as an alternative that a judge on the International Court of the nationality of the litigant should abstain; thus a state with no judge of its nationality on the Court would not be at a disadvantage.

Neither legal authors nor United Nations practice question the conclusion that resolutions of the General Assembly and the Security Council must conform to the U.N. Charter. Faced with a challenge to the legality of a resolution, the majority has never maintained that the acts of U.N. organs have to be complied with when they are inconsistent with the Charter. In such cases the majority has always preferred to deny that a violation of the Charter occurred, often resorting to a liberal, sometimes excessively liberal, interpretation of the provisions of the Charter.

The present study is a comment upon the official position of Communist China on various problems related to its internal waters, the territorial sea, and the high seas through an examination of laws, regulations, and international agreements as well as other official pronouncements. It is based primarily on China’s peacetime attitudes, although occasionally it has been necessary to take into account conditions of hostilities.

In recent years, many nations have made claims of extended maritime jurisdiction or exclusive control for various purposes, and sometimes have claimed sovereignty over areas of sea far beyond the three-mile territorial sea traditionally claimed by many nations. A primary objective of many of these claims has been control over fishing in coastal waters, with the purpose of reserving for the exclusive use of fishermen of the coastal state the fish resources in the waters claimed, or of controlling the activities of foreign fishermen and possibly exacting fees for the privilege of continued fishing. The nature of most claims of authority to regulate the taking of fish in coastal waters is such as to exclude foreign fishermen, such claims having as their basic purpose unconditional right of exclusion. What rights exist for displaced fishermen exist as a matter of comity, i.e., friendship between friendly nations, and as such form no basis for claims of legal right to recompense (although the governments of fishermen who are expelled without a phase-out period may justifiably respond in like unfriendly manner, enacting restrictive tariffs or similar economic handicaps). Several countries have made provision in their own laws for recognition of “traditional” or “historic” fishing for foreign fishermen on a basis of reciprocity, i.e., their fishermen would have similar rights in the exclusive fisheries zone of the foreign nation whose fishermen were permitted to continue fishing. Most such laws have been very recent. The problem is not new, however. Problems of access to the North Atlantic fisheries embroiled the United States and Great Britain immediately after the Revolutionary War, and were not resolved until 1910 by action of the Permanent Court of Arbitration at The Hague. Pelagic sealing inflamed relations between the United States and other nations in the late 19th century, requiring arbitration for settlement.

From the Universal Declaration of Human Eights in 1948, through the adoption of the International Covenants on Human Rights in 1966, and to the Proclamation of Teheran in 1968, the human rights program under the auspices of the United Nations has represented a tremendous collective effort and symbolized the common aspirations of mankind for increasing the protection of all basic human values. This program, as greatly agitated and accelerated by the process of postwar decolonization and the rapid emergence and multiplication of newly independent states, has burgeoned far beyond the contemplation of the founding fathers of the United Nations.

It is common knowledge that the initial time periods for the submission of written pleadings—memorial, counter-memorial, reply and rejoinder—are determined by the Court after consultation with the parties. Similarly, extensions of time limits are granted by the Court at the request of one party and after consultation with the other party or parties. The Court in both respects has been absolutely at the mercy of the parties, the formal orders made by the Court signifying its compliance with their wishes.

The open-endedness of the Continental Shelf Convention renders it vulnerable to misuse as a camouflage for extravagant claims by states seeking to extend their coastal jurisdiction far out into the abyss until, perhaps, they meet in an oceanic thalweg. The definition of the continental shelf in terms of exploitability and the inclusion of “sedentary species” among the “natural resources” of the continental shelf are the two greatest sources of this indeterminacy. Their elimination from the Convention would greatly reduce its fictional elements—the false colors it now provides for grandiose ambitions. On the other hand, the comment which follows does not purport to investigate the basic choice between accepting the exclusive competence of coastal states over sedentary fisheries and general community freedom from such competence. Assuming those issues to be beyond its scope, it is limited to the pragmatic evaluation of including sedentary fisheries within the scope of the continental shelf regime or, alternatively, of restoring a modified version of the Sedentary Fisheries Article which the International Law Commission proposed in 1951.