To that small band of faithful followers who are devoted to the unification of private international law, October 9 is a day to be commemorated with fetes and galas replete with jest and jollity. On that splendid day in 1986, the Senate of the United States by a vote of 98-0 gave its advice and consent to the ratification of four private law treaties:

For all their greatness, democracies historically have difficulty in perceiving and deterring totalitarian aggression. William Stevenson reminds us in A Man Called Intrepid that debate raged within the United States as to whether we should enter World War II on the side of England even after the rest of Europe had fallen to the Nazis. The American ambassador to England cautioned against such entry, arguing that England was militarily doomed. President Roosevelt, who had months earlier secretly committed U.S. intelligence assets to British support, felt that he did not have the necessary popular support to enter the war. And the British were so concerned about American indecisiveness that even after Pearl Harbor they executed a covert operation to persuade Hitler to declare war on the United States, which, of course, he did before America entered the war against Germany.

In 1983, President Reagan announced the policy of the United States to accept the normative provisions of the 1982 Convention on the Law of the Sea as reflecting the customary international law of the sea (in matters other than deep seabed mining).

By now everyone in the United States, certainly every lawyer, must be conscious of the tort liability crisis and the consequent liability insurance crisis. Private individuals, businesses, not-for-profit enterprises and even governmental units, from school boards to the federal Government, are finding that the damages they have to pay or their insurance costs are skyrocketing, sometimes catastrophically or even cripplingly; as a result, worthwhile events must be canceled and valuable facilities are idled. Although it may be thought that these mundane concerns cannot affect an international organization—even one, like the United Nations, based in the United States—that surely it can shelter itself with its immunity, this unfortunately is not so. Although the United Nations, like other intergovernmental organizations, does enjoy full jurisdictional immunity, based generally upon its Charter but more specifically on international treaties and even national legislation, there is somewhat less to this protection than meets the uninformed eye. Since their member states expect the organizations they establish to be good international citizens, they have prohibited them from hiding behind their functional immunity for the purpose of evading either contractor tort-related responsibilities. Indeed, they may only use their immunity in order to avoid litigation in a national court or some other inappropriate forum; but if they cannot resolve a dispute, for example with a tort claimant, they must offer some other suitable means of settling the matter, such as by arbitration.

The opinion of the International Court of Justice in the Nicaragua case will be of interest primarily because of its general pronouncements on questions of international law. Its impact on the immediate controversy appears slight; the United States Government has strongly indicated its view that the Court lacked jurisdiction over the controversy, has vetoed subsequent proposed Security Council resolutions on the subject, and is appropriating additional funds for the contested activities, without apparent reference to the Court’s decision. This Comment is limited to the general theoretical and legal issues and will not treat the underlying factual issues, the Court’s disposition of the immediate case or the implications of the opinion for the evolution of the dispute.

This is the second of a two-part report on the UN Group of Governmental Experts on International Co-operation to Avert New Flows of Refugees. The group completed its work in May 1986 when it submitted its report to the Secretary-General for transmittal to the General Assembly. It had held eight sessions in New York, two every spring since April 1983 of mainly 2-week duration each, and had closely followed the Programme of Work adopted at its second session.

On October 25, 1986, the Executive Council of the American Society of International Law decided to divest the Society’s investment portfolio of stocks in all corporations “with direct investments in South Africa.” This action, which was taken by the Council after considerable debate, superseded the Society’s former policy of investing only in corporations with a high ranking under the “Sullivan principles.” The Council’s action is worthy of note in light of recent divestment-related actions, but especially because the resolution of economic considerations was informed by wider issues of law, moral policy making and human rights.

In the wake of the 1984 Judgment of the International Court on jurisdiction and admissibility issues in the Nicaragua case, the United States reviewed the utility and desirability of continued participation in the optional jurisdictional regime established by Article 36(2) of the Statute of the International Court of Justice. The Executive concluded essentially that the experiment initiated by the regime neither had succeeded nor was likely to succeed in the future; that its subscription was ragged and asymmetrical in terms of world politics; that the Court, the custodian of this mode of jurisdiction, had adopted new theories of interpretation that were inconsistent, in the U.S. view, with the thrust of the provision; that the Court itself had changed; and that, in sum, continued United States participation would discriminate against United States interests while contributing nothing to world order. Accordingly, on October 7, 1985, the Secretary of State informed the Secretary-General of the United Nations that the United States was terminating, in accord with the terms of its Declaration and the provisions of the Statute, its adherence to the optional regime under Article 36(2) of the ICJ Statute.

This essay examines the discussion of human rights and domestic jurisdiction by the International Court of Justice in the Nicaragua case. Independently of the final verdict about the lawfulness of U.S. help to the contras under principles of either self-defense or humanitarian intervention, the Court’s views on the relationship among human rights, domestic jurisdiction and intervention are wrong in law. Furthermore, the philosophical assumptions of the Judgment are profoundly disturbing. For the reasons set forth below, I submit that the Court’s approach embodies a backward view of international law and justice that was totally unnecessary to the resolution of the case.

The first session of the new United Nations Committee on Economic, Social and Cultural Rights was held in Geneva in March 1987. The Committee was established to assist the Economic and Social Council (ECOSOC) in fulfilling its responsibilities for monitoring states parties’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights. The Covenant is assuming increasing importance in view of the renewed emphasis by many UN member states on economic, social and cultural rights and because, with a total of 90 ratifications as of March 27, 1987, it now covers well over half of the total UN membership.

Meeting for 10 days in Geneva last September, a group of 15 experts convened by the International Labour Office recommended substantial changes in ILO Convention No. 107, which for nearly 30 years has been the only binding international instrument on the rights of indigenous and tribal peoples. Noting the importance placed on the right to self-determination by indigenous peoples, the experts concluded that the Convention’s original emphasis on integration “no longer reflects current thinking” and should be replaced by the principle of affording these peoples “as much control as possible over their own economic, social and cultural development.” The Organisation’s Board of Governors approved the experts’ report in November, and placed the revision on the agenda for the 1988 General Labour Conference.