Accountability for crimes, a theme central to Shakespeare’s plays, is also extraordinarily pertinent to our times. Newspapers have reported on the care taken by the leaders of the former Yugoslavia to order atrocities against “enemy” populations only in the most indirect and euphemistic way. Even the Nazi leaders constantly resorted to euphemisms in referring to the Holocaust. No explicit written order from Hitler to carry out the final solution has ever been found. At the height of their power, the Nazis treated the data on the killing of Jews as top secret. Similarly, a high-ranking member of the former security police told the South African Truth and Reconciliation Commission that written instructions to kill antiapartheid activists were never given; squad members who carried out the killings simply got “a nod of the head or a wink-wink kind of attitude.”

One of the more remarkable developments in international law in the mid-1990s is not what it appears to be. The massive and sudden proliferation of bilateral investment treaties (BITs), now constituting a network of more than thirteen hundred agreements involving some 160 states, appears to reflect die triumph of liberal economics in the sphere of international investment. In fact, however, it constitutes only a momentary convergence of nationalist interests. If the BITs are to construct the liberal international investment regime they seem to promise, then they must be modified in important and substantial ways.

The human rights movement, which has had such a powerful impact on international law and relations in the post—World War II period, has in recent years turned its attention to extradition. Treaties, executive acts and judicial decisions on extradition have all been affected. At the same time, transnational and international crime has increased. The international community has responded by creating new institutions and expanding the network of bilateral and multilateral treaties designed to outlaw transnational crime, promote extradition, and authorize mutual assistance. Inevitably, there is a tension between the claim for the inclusion of human rights in the extradition process and the demand for more effective international cooperation in the suppression of crime, which resembles the tension in many national legal systems between the “law and order” and human rights approaches to criminal justice. As in domestic society, it is necessary to strike a balance between the two so as to establish a system in which crime is suppressed and human rights are respected. This was stressed by the European Court of Human Rights in the leading case on extradition and human rights, Soering v. United Kingdom, when it stated:

Nine years ago, Kenneth Abbott published an article exhorting international lawyers to read and master regime theory, arguing that it had multiple uses for the study of international law. He went as far as to call for a “joint discipline” that would bridge the gap between international relations theory (IR) and international law (IL). Several years later, one of us followed suit with an article mapping the history of the two fields and setting forth an agenda for joint research. Since then, political scientists and international lawyers have been reading and drawing on one another’s work with increasing frequency and for a wide range of purposes. Explicitly interdisciplinary articles have won the Francis Deák Prize, awarded for the best work by a younger scholar in this Journal, for the past two years running; the publication of an interdisciplinary analysis of treaty law in the Harvard International Law Journal prompted a lively exchange on the need to pay attention to legal as well as political details; and the Hague Academy of International Law has scheduled a short course on international law and international relations for its millennial lectures in the year 2000. Further, the American Society of International Law and the Academic Council on the United Nations System sponsor joint summer workshops explicidy designed to bring young IR and IL scholars together to explore the overlap between their disciplines.

In its June 1997 review of the state of the global environment and the implementation of Agenda 21, five years after the United Nations Conference on Environment and Development (UNCED), the UN General Assembly drew a rather gloomy picture. While acknowledging that some progress toward sustainable development had been made, for example, in curbing pollution and slowing the rate of resource degradation in a number of countries, the Assembly’s report noted that, overall, trends tended toward continued deterioration. Not surprisingly, therefore, the report also reiterated Agenda 21’s call upon, inter alia, multilateral development banks (MDBs) to ensure that development funding “contribute to economic growth, social development and environmental protection in the context of sustainable development.” The report, in short, enjoined MDBs to strengthen their commitment to sustainable development.

In the April 1997 issue of the Journal, I reported on three cases in which the response to an action brought in the court of one country led not to an answer, but to a countersuit in another country—for an antisuit injunction, a declaration of nonliability or both. One of the cases I discussed arose out of a controversy between an asbestos manufacturer, CSR, and a group of insurance companies, the Cigna Group, that may or may not have been obligated to defend and indemnify the manufacturer in respect of claims in the United States for product liability. The manufacturer brought suit in federal court in New Jersey, raising both contract and antitrust claims. The insurers, as I reported, succeeded in securing an antisuit injunction in the Supreme Court of New South Wales (a court of first instance), and thereafter in defeating a motion by the manufacturer to stay or dismiss, on grounds of forum non conveniens, the insurers’ action seeking a declaration of nonliability. I thought that outcome was wrong: in my view, the Australian court should not have stepped into the controversy, and the insurers should have brought their challenge to the jurisdiction and suitable venue of the New Jersey court in that court.

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The roots of the modern law of war lie in the 1860s. Developments in this decade began in 1862 when Henry Dunant published Un Souvenir de Solferino, which inspired the conclusion two years later of the first Geneva Convention on treatment of the sick and wounded. Four years later came the first multilateral agreement to ban the use of a particular weapon in war. And in 1863, before either of these agreements had been concluded, the earliest official government codification of the laws of war was promulgated by the United States. This codification was issued as General Orders No. 100, Instructions for the Government of Armies of the United States in the Field, more commonly known as the “Lieber Code.”

Over a very short period, the few decades since the early 1970s, “indigenous peoples” has been transformed from a prosaic description without much significance in international law and politics, into a concept with considerable power as a basis for group mobilization, international standard setting, transnational networks and programmatic activity of intergovernmental and nongovernmental organizations.

On February 17, 1992, police found the body of Ruth Dickie in her apartment in Arlington County, Virginia. She had been stabbed to death and her assailant had attempted to rape her. Six months later, Angel Francisco Breard was apprehended in the course of an attempted rape in Washington, D.C., and also became a suspect in Dickie’s murder, for which he was subsequendy indicted. As summarized in the appellate review of Breard’s conviction by the Supreme Court of Virginia,

A decade ago, my predecessor as Editor in Chief wrote a trenchant critique of what he saw as a tendency of the United States not to give its treaty obligations the weight they deserved. I return to the subject to report that the last ten years have seen an alarming exacerbation of that situation. The mood in the United States about treaty commitments has turned distinctly negative. This has gone so far as to dismay both actual and potential treaty partners of the United States and, in general, all who are concerned about the performance of the country in the realm of international law. Some of the manifestations of this mood can be dismissed as eccentric, at the level of Christian militias’ expressions of anxiety about the prospects of black-painted helicopters dropping United Nations forces into Montana and Idaho. The more worrisome part of it is the prevalence of distaste for treaty commitments in Congress and other influential circles, including the media.

The international law community has heavily criticized the United States’ handling of the Breard case. These criticisms are understandable. Perhaps because of the rush of time, the explanations by the Department of Justice and the Supreme Court for failing to stop Breard’s execution brushed over important issues of domestic and international law. In addition, Virginia’s decision to proceed with the execution, and the federal Government’s decision not to block it, may have reflected insufficient respect for international law and institutions. These decisions may also adversely affect U.S. relations with other nations and weaken consular protection of U.S. citizens abroad. These criticisms, however, tell only part of the story. In particular, they do not consider countervailing considerations grounded in the Constitution’s allocation of authority between the federal and state governments.

The rapid and fundamental developments in the last few years on the establishment of individual criminal responsibility for serious violations of international humanitarian law have been such that it is now an appropriate time to assess their principal features.

In Paraguay v. United States, the International Court of Justice entered the following Order: The Court “[i]ndicates the following provisional measures: The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order.”