The Vietnam “war” was fought to preserve the balance of power between the non-Communist and Communist worlds. To the extent the global power equation ever rested on the outcome of that struggle, it cannot be judged a success for our side. In the process, however, another balance has also been altered, perhaps far more significantly: that between Congress and the Presidency in the conduct of foreign relations. Some would say that the Administration’s failure to win in Vietnam, together with the backwash of Watergate, created the opportunity for a long overdue redress in the constitutional balance of power between the branches. Others argue that the result has been to cripple the Executive’s ability to respond to the challenges of our era and to perform America’s role as leader of the free world. None would deny that the rules relating to the conduct of foreign relations have been fundamentally altered or restored to something nearer the classic intent of the Constitution’s framers.

The Foreign Sovereign Immunities Act of 1976 (the Act) took effect on January 19, 1977, some six months after the entry into force of the European Convention on State Immunity (the Convention). Both instruments are of direct interest to the financial community since they dispel vestigial fictions concerning the public debt of foreign sovereigns and extend to the borrowings of foreign sovereigns the restrictive doctrine of immunity generally applicable to contracts concluded by foreign states.

The International Court of Justice is the principal judicial organ of the United Nations and its judgments are usually considered highly persuasive as to propositions of international law. Thus, when the ICJ formulates a rule of international law giving binding force to a unilateral declaration of a state’s future intentions, statesmen may be expected to refer to that formulation for guidance whenever they consider the possibility of issuing a declaration of future policy. Moreover, the ability of the ICJ to support its formulation of a rule of international law in terms of the international legal order and legal logic affects the perceptions of statesmen as to the probity of the Court, as well as the willingness of states to refer real cases to it. The Judgment of the ICJ in the Nuclear Tests cases raised both these issues in a particularly pointed way.

When the representatives of thirteen major OECD oil-importing countries met in Washington, D.C. in February 1974 to discuss cooperation in the energy field in order to meet the challenge posed by the OAPEC oil embargo, the outlook for successful negotiations was far from bright.

On August 10, 1976, Greece addressed a communication to the President of the Security Council requesting an urgent meeting of the Council on the ground that “following recent repeated flagrant violations by Turkey of the sovereign rights of Greece in the continental shelf in the Aegean, a dangerous situation has been created threatening international peace and security.” On the same day, by unilateral application, Greece instituted proceedings in the International Court of Justice against Turkey in “a dispute concerning the delimitation of the continental shelf appertaining to Greece and Turkey in the Aegean Sea, and concerning the respective legal rights of those States to explore and exploit the continental shelf of the Aegean.” Also on the same day Greece filed a request for interim measures of protection asking the Court to direct that both Greece and Turkey

Central to claims made for the long “Consensus Definition” of aggression now embodied in UN General Assembly Resolution 3314, is that it has “accomplished its main purpose of depriving a potential aggressor of the possibility of using juridical loopholes and pretexts to unleash aggression.” To this Soviet theme the Senegalese representative added the prophecy that “there would no longer be any loopholes in international law of which an aggressor could take advantage.”

This article examines one of the recurring problems in the law of the sea—the treatment of islands in the delimitation of the continental shelf between opposite and adjacent states—in light of developments at the Third UN Conference on the Law of the Sea, in particular, the adoption of “equitable principles” as the standard for delimitation of the continental shelf and exclusive economic zone between adjacent and opposite states. On the assumption that the content of these equitable principles may be derived from contemporary state practice in maritime delimitations, this state practice is used as a basis for the construction of an analytical model of the continental shelf problem of islands. This model relies primarily on an island's relative location and secondarily on its relative size with respect to the delimiting states. It provides a framework for determining how an island should be treated in a given delimitation. Though the model is, out of necessity, based upon state practice in continental shelf delimitations, the premises underlying the model are not so limited and thus the general principles derived from this analysis will have an important bearing on the new problem of the delimitation of the exclusive economic zone.

The last eighteen months have witnessed very significant changes in the interpretation and application of the doctrine of sovereign immunity by the English Courts. These changes are important not only as matters of historical and practical interest, but because they address many of the fundamental policy questions in a manner that has been unnecessary in U.S. practice because of the way in which the Tate Letter has channelled the development of the law along certain set patterns.

When President Nixon and Prime Minister Tanaka of Japan, held a summit meeting in Hawaii on August 31-September 1, 1972, doubtless no one expected they were laying the foundation for one of the most curious sovereign immunity cases in the annals of American jurisprudence. The resulting communique, however, which placed the leaders' seal of approval on extensive Japanese purchase commitments in the United States, became the basis for a Japanese claim that half a billion dollars worth of enriched uranium subsequently purchased by ten Japanese utilities from the Atomic Energy Commission (AEC) and stored on its reservation in Oak Ridge, Tennessee enjoyed sovereign immunity from local commercial property taxes. The Japanese claim, apart from posing a diplomatic issue between Japan and the United States, embroiled the Department of State and the AEC (and its successor, the Energy Research and Development Administration (ERDA)) with each other and with the Department of Justice, threatened controversy between Tennessee and Washington, and eventually resulted in the Japanese utilities’ settling the matter for $4.5 million. Although the settlement deprived posterity of a decision on the issue, this unique case remains not simply an entertaining episode but also a useful lesson in defense against claims of sovereign immunity. While the Foreign Sovereign Immunities Act of 1976 was intended substantially to eliminate the role of the Department of State in sovereign immunity disputes, the Act could not have been successfully invoked in this case, even had it been in effect, as related below.

With the failure of the United Nations to control the use of force by states to the degree that many had wished for, the attention of many commenators shifted to what was hoped would be more fertile ground—the protection of human rights, self-determination, and other areas in which the organization might play a supranational role. In discussing the development of the supranational aspect of the organization, attention is invariably directed to Article 2(7) of the Charter which is, of course, the current symbol of sovereignty. Since most visionaries are frustrated by the concept of sovereignty, it is not surprising that this article has received little sympathy on the part of many who are more concerned with ends than means. Yet it is doubtful whether the concept may be dismissed summarily and, since it plays such a key role in so many of the allegedly developing fields of international law, one would do well to consider how Article 2(7), properly interpreted, affects the legal assumption on which supranationalism is based.

The law of the sea has changed, for good or for ill. The Revised Single Negotiating Text (hereinafter RSNT) issued in the spring of 1976 may prove to be the single most important document regarding the law of the sea since the 1958 Geneva Conventions in terms of its influence on state practice, whether by way of an ultimate treaty or otherwise. Important differences will exist regarding the extent to which portions of the text are declaratory of emerging customary international law and regarding the extent to which the text must be changed to be acceptable as a universal treaty or as customary law. Indeed, difficult questions of implementation of its principles in bilateral and other arrangements are already arising. Positions taken at multilateral conferences may differ from the positions taken in other contexts. But the text will not be ignored.

With the arrival of the British Army in August 1969, in aid of the civil power, intercommunal strife in Northern Ireland entered a new phase, which saw the regeneration of the Irish Republican Army (IRA) and the emergence of a guerrilla conflict between the IRA and British Army. In the first half of 1971, 8 civilians, 10 soldiers, and 2 members of the Royal Ulster Constabulary (RUC) had been killed; 454 civilians, 110 soldiers, and 71 policemen had been injured. In July 1971 alone, traditionally a period of acute tension, there had been 86 explosions, 2 soldiers had been shot dead, and 21 persons injured. It was this rising tide of violence that set the scene for the introduction of internment without trial on August 9, 1971.

The combined forces of science and technology have been perfecting a new means of data acquisition which has gone largely unnoticed by the average citizen—a technique so profound in its implications for the improvement of the environment and for the allocation and conservation of natural and human resources that it has been compared to the microscope in its significance and achievement. This new technique is the viewing of the earth’s surface and its surrounding environment by means of sensing devices affixed to a platform orbiting the earth from the near reaches of outer space. Remote sensing by satellite (RSS) has been defined by the UN Working Group on Remote Sensing as a methodology to assist in characterizing the nature and conditions of the natural resources, the natural features and phenomena, and the environment of the earth by means of observation and measurements from space platforms.

In an article published in this Journal in 1932, Professor Edwin Dickinson pointed out that the Supreme Court, in the first thirty years of its existence, dealt with 82 cases which raised questions of international law. The Court and counsel before it repeatedly cited the familiar writers on the law of nations: Grotius, Pufendorf, Bynkershoek, Burlamaqui, Rutherforth, and Vattel. As Dickinson pointed out, “It is an ancient doctrine of the Anglo-American common law that the law of nations is incorporated in and in some sense forms part of the national law.” Largely through decisions based on the principles expressed by the classical writers, the law of nations was early incorporated as part of the law of the United States.

The techniques of ocean management are in a process of continuing and accelerating change as new countries emerge into independence and as new perspectives are adopted toward the control and use of the ocean environment. Two decades ago, as preparations were underway for the First Law of the Sea Conference, all of the ocean space, save for narrow bands of coastal waters, was conceived of as high seas, open to the use of all countries. Little attention was paid to the differences in marine interests and capabilities of the then nearly ninety independent coastal and land-locked states. The preeminence of the major maritime powers and their insistence on maximizing the freedom of the seas meant that few concessions to the special needs and concerns of the less-developed countries were even considered. Freedom of navigation, overflight, fishing, and scientific research beyond narrow territorial limits were major blocks upon which the law of the sea of the latter 1950’s was constructed.

There is no question that there has been confusion about the precise meaning of the terms cease-fire, truce, and armistice. The oldest term is truce, which in the Middle Ages usually had a religious connotation as in the phrase “Truce of God.” Hugo Grotius used truce to mean an agreement by which warlike acts are for a time abstained from, though the state of war continues—“a period of rest in war, not a peace.” If hostilities were resumed after a truce, according to Grotius, there would be no need for a new declaration of war, since the state of war was “not dead, but sleeping.” Truces might be concluded by generals in command of forces or by officers of lower rank. In the absence of agreement to the contrary, it was lawful to rebuild walls or to recruit soldiers during a truce, but actual acts of war were forbidden, whether against persons or property: that is to say, “whatever is done by force against the enemy.” Also forbidden were the bribery of enemy garrisons and the seizure of places held by the enemy. If a truce was violated, the injured party was free to resume hostilities “even without declaring war.” Private acts did not constitute a violation, however, unless there was public command or approval.

During the past decade, a number of scholarly analyses of the United Nations ministate problem have appeared. This concern is understandable because the dilemma of ministate representation goes to the heart of the malaise increasingly gripping the world organization: How to square formal voting power with the realities of international politics? Indeed, no less of an authority than the late Secretary-General U Thant, in his final Annual Report, warned his reluctant audience that the ministate problem “is likely to become more acute in the years to come.”

On September 22, 1976, the United States and the Government of Peru signed an agreement resolving the nationalization of the Marcona Mining Company’s Peruvian branch. The settlement, the intergovernmental negotiations leading up to it, and the expropriation itself are of more than passing interest. The settlement has been characterized by the U.S. Government as providing, when fully implemented, prompt, adequate, and effective compensation through a package—a combination of cash and long term sales relationship—which represents a relatively beneficial arrangement economically and politically for the Government of Peru. These arrangements were the more remarkable for having been concluded with a leading Third World country that has a long history of nationalization of foreign investment. In light of the frequency of expropriations of American-owned property abroad, and of the fact that in one or more ways such expropriations involve issues of the public interest as well as those of private U.S. companies, the Marcona settlement has implications for the handling of other investment disputes.