On April 28, 1983, the Soviet Union became the first maritime country of consequence and the largest sea power signatory to the 1982 United Nations Convention on the Law of the Sea to enact legislation implementing the provisions of that instrument regulating the innocent passage of foreign warships. The stature of the Soviet Union within the framework of the Convention and the policy changes embodied in the 1983 legislation confer a special importance on these new Rules, whose text and interpretation will become a standard emulated by other countries. The present article examines the text of the Rules against the background of previous Soviet legislation, the 1982 Convention and its negotiating history, and the application of the Rules.

The International Court of Justice formed its first Chamber for dealing with a particular case in 1982; its second, in 1985; and, in 1987, its third and fourth ad hoc Chambers. This article examines what appears to be an accelerating trend toward recourse to ad hoc Chambers in the light of the provisions of the Statute and Rules of the Court and of its pertinent practice to date. The discussion seeks to elucidate four principal questions:

1. • What is the subject matter that such a Chamber may properly dispose of?

2. • Must such a Chamber be representative of the main forms of civilization and of the principal legal systems of the world?

3. • How many judges shall constitute an ad hoc Chamber?

4. • Shall the parties to the case have a voice in determining the composition of the Chamber as well as in the number of judges constituting it?

Finally, this article appraises the record and potential of recourse to Chambers for dealing with a particular case.

At the “Shamrock Summit” on March 18, 1985, President Ronald Reagan and Prime Minister Brian Mulroney exchanged instruments of ratification bringing the United States-Canada Pacific Salmon Treaty into force. The event ended 14 years of bilateral negotiations, culminating in a treaty that represents a balance of the fishing and conservation interests of four U.S. states, 24 U.S. treaty Indian tribes, one province and one territory.

The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”

Many governments are reluctant to submit disputes voluntarily to the International Court of Justice for binding adjudication. Only a few disputes are brought to the Court with the current agreement of all the parties. When that happens, no matter what the technical basis for the Court’s jurisdiction may be—a compromis, compulsory jurisdiction, or a compromissory clause in a substantive international agreement or an optional protocol—the Court’s jurisdiction is unlikely to be questioned. When the respondent state does not wish the dispute to be submitted to the Court, however, the applicant state must compel adjudication by relying on jurisdiction founded upon the respondent state’s consent given in the past. Consent may be found in declarations accepting the compulsory jurisdiction of the Court provided for in Article 36(2) of its Statute. Alternatively, such consent may be found under Articles 36(1) or 37, which permit jurisdiction to be based on compromissory clauses.

The refusal of the United States to consider itself bound by the recent decision in the Case Concerning Military and Paramilitary Activities in and against Nicaragua, coupled with the earlier termination of its adherence to Article 36(2) of the Statute of the International Court of Justice, has sparked a small storm of controversy and concern. Part of this concern involves how the United States, presumably a law-abiding and law-respecting nation, could possibly bring itself to snub the International Court of Justice and, by extension, the ideal of international law. Another part of this concern involves the likely consequences of the United States move on the vitality of the Court as the focal institution of a slowly evolving system of international law. A less obvious concern, but arguably one of paramount importance, calls into question the wisdom of insisting that the ICJ retain its optional compulsory jurisdiction. It is this less obvious concern that we propose to discuss here.

At first glance, the question of the customary character of the Geneva Conventions of August 12, 1949 for the Protection of Victims of War might appear academic. After all, the question arises infrequently in view of the universal acceptance of the Conventions as treaties (they are binding on even more states than the Charter of the United Nations). That the matter may have practical importance, however, was recently brought home by its consideration by the International Court of Justice (ICJ) in the merits phase of Military and Paramilitary Activities in and against Nicaragua. Moreover, in numerous countries where customary law is treated as the law of the land but an act of the legislature is required to transform treaties into internal law, the question assumes importance if no such law has been enacted. Failure to enact the necessary legislation cannot affect the international obligations of these countries to implement the Geneva Conventions; but invoking a certain norm as customary rather than conventional in such situations may be crucial for ensuring protection of the individuals concerned.

South Asia is now poised for a nuclear arms race. Pakistan has learned how to make enriched uranium—the material that destroyed Hiroshima— and has been buying the electronic switches and hollow steel spheres used for implosion. It has tested, successfully, an implosion bomb with a dummy core. On the Indian side, Prime Minister Rajiv Gandhi has been saying that India could make an atomic bomb “in a matter of several weeks” and “could have done so for the past ten or eleven years.”

Since 1982, a select group of states has been engaged in a series of multilateral negotiations to fashion a regime governing the exploration and exploitation of minerals in the Antarctic region. Because of the controversy in the United Nations over whether Antarctica constitutes a portion of the “common heritage of mankind,” these negotiations have attracted increasing publicity, but their modus operandi has been left largely unexamined. The chief purpose of this paper is to analyze the process by which this group of concerned states has pursued national priorities within the decision-making framework and context of the Antarctic minerals negotiations.

In contrast to the withholding practices of certain member states in respect of part of their assessed contributions to the budget of the United Nations, United States withholding began rather recently. U.S. withholding started in 1980 and, until 1985, applied only to specific programs and decisions. Previously, in 1978, the Legal Adviser of the Department of State had concluded in a memorandum of law that Article 17 of the UN Charter “impose[s] a legal obligation on members to pay the amount assessed to them by the General Assembly.” Referring to the U.S. written statement submitted to the International Court of Justice in Certain Expenses of the United Nations, he added: “Accordingly, the General Assembly’s adoption and apportionment of the Organization’s expenses create a binding international legal obligation on the part of State Members to pay their assessed shares.” In his view, there was apparently no possible exception to this obligation.

The ultimate authority of the International Court of Justice flows from the same source as the ultimate authority of all other judicial bodies. Every court’s decisions are an authoritative source of law in a realistic sense only because they are accepted as such by the community whose controversies the court is charged to resolve. In the case of the World Court, it is the community of nations that confers that authority and under the Court’s Statute, its jurisdiction is conferred solely by the consent of the nations whose disputes it is called to adjudicate. It is for this reason that the case Nicaragua v. United States and the actions of both the Court and the United States Government in connection with it are of special importance to those who are concerned with international law.

A hotly debated issue raised in this publication’s October 1986 Agora and, repeatedly, during the drafting of the Restatement of Foreign Relations Law of the United States (Revised) has to do with the relationship between customary international law and federal law in the United States. Most of the debate addressed whether a newly emerged custom would supersede an earlier federal statute or self-executing treaty. The reporters of the Restatement took a strong stand at first, placing custom on the same plane as federal statutes and self-executing treaties: in case of conflict, the latest in time should prevail. Criticism rolled in, and the reporters eventually retreated a bit. The final version says only that since custom and international agreements have equal authority in international law, and both are law of the United States, “arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement.”’

As the chairman of the panel at the 1985 ASIL Annual Meeting on the question “May the President Violate Customary International Law?” I must confess that the issue that originally troubled me when I suggested this topic for discussion remains securely hidden in the shadows of the debate. Yet I think it is of central importance. The reason it has remained obscure, despite its significance, is that it is an extraordinarily difficult intellectual puzzle. My brief purpose here is to bring it into the light, not to try to solve it.

The Judgment of June 27, 1986 of the International Court of Justice provides convincing evidence of the high judicial quality of the Court and its Members. The really exceptional wealth of legal issues considered, carefully weighed and balanced, and decided in this case will long be a source of study for international lawyers. The present summary observations can examine only selected issues.

The American Journal of International Law welcomes short communications from its readers. It reserves the right to determine which letters should be published and to edit any letters printed. Letters should conform to the same format requirements as other manuscripts.

The AJIL Board of Editors is pleased to announce that the Francis Deák Prize for 1987 has been awarded to C. M. Chinkin for her article, Third-Party Intervention before the International Court of Justice, which appeared in the July 1986 issue at p. 495. Ms. Chinkin is a Senior Lecturer in Law at the University of Sydney.

The only significant point of disagreement this author might have with the June 27, 1986 decision on the merits by the International Court of Justice in the case of Nicaragua v. United States of America concerns its failure to hold the United States Government fully responsible for the violations of the laws and customs of warfare committed by the contra forces in Nicaragua. The Court carefully premised this result on the finding that it had insufficient evidence to reach a definitive conclusion on such a delicate matter. Nevertheless, the Court held it established that the U.S. Government largely financed, trained, equipped, armed and organized the contras. Somewhat questionably, in the Court’s estimation, it remained to be proven that the Reagan administration actually exercised operational control over the contra forces.

In a recent issue of the Journal, one finds a largely theoretical discussion of a question that potentially implicates quite serious legal policies and consequences: “May the President violate customary international law?” Despite professorial conjecture, the answer to such a question, which can be documented in actual trends in legal decision, emphatically has been no (i.e., the President is bound by and may not lawfully violate international law).