The surprising thing about international law is that nations ever obey its strictures or carry out its mandates. This observation is made not to register optimism that the half-empty glass is also half full, but to draw attention to a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states. That they should do so is much more interesting than, say, the fact that most citizens usually obey their nation’s laws, because the international system is organized in a voluntarist fashion, supported by so little coercive authority. This unenforced rule system can obligate states to profess, if not always to manifest, a significant level of day-to-day compliance even, at times, when that is not in their short-term self-interest. The element of paradox attracts our attention and challenges us to investigate it, perhaps in the hope of discovering a theory that can illuminate more generally the occurrence of voluntary normative compliance and even yield a prescription for enhancing aspects of world order.

The distinction found in certain cases between “self-executing” and “non-self-executing” treaties is a judicially invented notion that is patently inconsistent with express language in the Constitution affirming that “all Treaties … shall be the supreme Law of the Land.” Indeed, such a distinction may involve the most glaring of attempts to deviate from the specific text of the Constitution. For some 40 years after the formation of the Constitution, President George Washington’s recognition in 1796 that “every Treaty [properly ratified]… thenceforward becomes the law of the land” was widely shared. Yet today not all treaties are thought to be capable of operating as supreme federal law of their own effect.

The October 1987 issue of the Journal contains an article written by Hans-Peter Gasser, the Legal Adviser to the Directorate of the International Committee of the Red Cross (ICRC), on the U.S. decision not to ratify Protocol I (on international armed conflicts) to the 1949 Geneva Conventions on the Protection of War Victims. Unfortunately, the Journal did not include any response by the administration, but only the President’s necessarily brief letter of transmittal to the Senate of January 18, 1987, recommending advice and consent to ratification of Protocol II (on noninternational conflicts). The President’s letter of transmittal was not intended to be an exhaustive statement of the U.S. objections to Protocol I, nor does it purport to be such.

Soviet positions on international law and organizations are changing sharply under the influence of the policy of perestroika (restructuring) introduced by General Secretary M. S. Gorbachev. This development was brought to the attention of the American Society of International Law at its Annual Meeting in April 1988 by the noted Soviet international lawyer, G. I. Tunkin.

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.

For the past 7 years, Monroe Leigh has edited this section with the able assistance of his associates at Steptoe & Johnson. His fine eye for accuracy and his fairness remain as standards for “his successors. The Journal acknowledges its great debt to him and to his firm.

In this first decision by the United States Supreme Court on the scope and application of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, better known as the Hague Service Convention, petitioner, a West German company, challenged the respondent’s attempt to serve process on petitioner by serving its wholly owned U.S. subsidiary in accordance with the state’s rules rather than pursuant to the procedures of the Convention. The Circuit Court of Cook County, Illinois, found that the relationship between the German parent and the U.S. subsidiary was such that, under state-law rules of agency, the U.S. subsidiary was the parent’s involuntary agent for service of process. Because service could thus be perfected entirely within the United States, the court held that it was not necessary to follow the procedures of the Hague Service Convention. The Illinois Appellate Court affirmed, and the Illinois Supreme Court denied leave to appeal. The U.S. Supreme Court (per O’Connor, J.) affirmed and held: (1) the Hague Service Convention is “mandatory” and preempts inconsistent state-law methods of service in all cases to which it applies; (2) the Convention applies where there is occasion to transmit a document abroad to charge persons with formal notice of a pending action; and (3) whether it is necessary to transmit a document abroad for such purposes is determined by the forum state’s internal law.

The former majority shareholders of Industria Nacional de Clavos y Alambres de Puas, S.A. (INCA), a large Nicaraguan steel company, sought to recover from Harlow & Jones, Inc. (H & J), a U.S. steel company, the purchase price of a shipment of undelivered steel billets. Following the Sandinista revolution, the Nicaraguan Government had “intervened” in INCA and it, too, demanded the funds that H & J interpleaded into the court. The district court rejected the claim of the Sandinista Government and allocated the funds to the benefit of all parties who held shares in the company prior to the intervention. On cross-appeals by the claimants, a panel of the United States Court of Appeals for the Second Circuit (per Kaufman, J.) affirmed in part and reversed in part, and held: the act of state doctrine does not bar judicial resolution of the dispute over the funds; the actions of the Sandinista Government amounted to a taking without compensation that will not be enforced by the U.S. courts; and the district court’s allocation of pro rata shares for all of the preintervention stockholders, including minority interests, was equitable.

Appellant, Joseph Azar, appealed the district court’s denial of his motion to quash a subpoena obtained by the U.S. Department of Justice at the request of the Minister of Legal Affairs of Trinidad and Tobago. The United States had sought the subpoena to obtain Azar’s Florida bank records as part of a criminal investigation in Trinidad and Tobago. On review, the Court of Appeals for the Eleventh Circuit (per Fay, J.) affirmed the district court’s decision and held that 28 U.S.C. §1782 authorized the judicial assistance sought by the Minister of Legal Affairs even though there was no pending proceeding in Trinidad and Tobago.

Plaintiff Zedan, an American citizen, brought suit in the United States District Court for the District of Columbia against the Kingdom of Saudi Arabia for breach of a contract guaranteeing wages and profits. While performance under the contract occurred in Saudi Arabia, plaintiff alleged that the jurisdictional requirements under the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. §§1330, 1602-1611 (1982)) (FSIA) were satisfied by a recruitment call in California from a representative of the royal overseer of a private Saudi company. The district court granted the Saudi motion to dismiss. On appeal, the United States Court of Appeals for the District of Columbia Circuit (per Silberman, J.) unanimously affirmed and held: (1) that the telephone call did not have the requisite substantiality of contact with the United States; (2) that it was not sufficient to form the basis of a cause of action; and (3) that the alleged breach did not have sufficient direct effect in the United States to satisfy the exceptions to immunity under the FSIA.

Plaintiff, a Haitian seeking asylum in the United States, filed a petition for habeas corpus in the United States District Court for the Northern District of California, to overturn a denial of asylum by both an immigration judge and the Board of Immigration Appeals (BIA). The plaintiff sought asylum under section 101(a)(42)(A) of the Immigration and Nationality Act (8 U.S.C. §1101(a)(42)(A) (1982)) (INA) on the basis of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The district court upheld the BIA decision, which allowed deportation of the plaintiff because the incidents of persecution in Haiti were economically rather than politically motivated. The Court of Appeals for the Ninth Circuit (per Tang, J.) reversed, holding that the plaintiff had demonstrated persecution based on political opinion by showing a pattern of extortion by government officials, and remanded for a determination of whether the plaintiff would be persecuted upon his return to Haiti.

Plaintiff, the United States, brought an action in the U.S. District Court for the Southern District of New York against the Palestine Liberation Organization (PLO) and four individuals seeking an injunction to close the PLO’s Permanent Observer Mission (Mission) to the United Nations as violative of the Anti-Terrorism Act of 1987 (ATA). The district court (per Palmieri, J.) entered summary judgment for defendants and held: (1) the ATA does not require the closure of the PLO’s Mission to the United Nations; (2) the status of the PLO’s Mission, an invitee of the United Nations, is protected by the Agreement Between the United States and the United Nations Regarding the Headquarters of the United Nations (Headquarters Agreement); and (3) Congress did not intend the ATA to supersede the Headquarters Agreement.

Petitioner, International Tin Council (ITC), brought an action to stay an American Arbitration Association arbitration that was initiated by respondent, Amalgamet Inc., and that arose out of petitioner’s refusal to honor three contracts for the purchase of tin from respondent. Petitioner claimed that it was immune from suit in the United States by virtue of its status as an international organization under British law, and, in the alternative, that the arbitration clause in its contract with respondent was unenforceable. The Supreme Court of New York County (per Parness, J.) dismissed the petition, and held that petitioner lacked any basis under U.S. law for immunity from legal process and that petitioner had consented to the arbitration clause providing for arbitration in New York.