Suchergebnisse

First, I am deeply appreciative of this honor, especially in the presence of so many who encouraged me along the way. I would like to acknowledge previous Hudson honorees who are present, including Charlie Brower, Edie Brown Weiss, and Bernie Oxman. Thanks to Catherine, Patrick, and the Allen & Overy law firm for sponsoring this event.

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunal to interpret the provision of the 1982 United Nations Convention on the Law of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention's compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute settlement. Its availability has been critical in enabling certain states to ratify the Convention and would be an indispensable condition of eventual U.S. ratification. For these reasons, the Award's treatment of the military activities exception transcends the South China Sea dispute. On balance, the Award articulates a sound approach to the military activities exception, entailing valid legal criteria and objective factual determinations. Even in the procedural posture of nonappearance by the respondent, China, the Award gave the respondent the benefit of the exception in a "quintessentially military situation," thereby alleviating concerns that an UNCLOS dispute settlement organ might intrude upon military activities excluded from its jurisdiction.

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate changes in the international law of sovereign immunity, as can innovative lawsuits prompting national courts to reexamine theories of immunity. The International Court of Justice should refrain from interfering with the ability of national institutions to provide remedies for wrongful conduct of the type involved in Germany's suit against Italy.

TheAmerican Journal of International Law(AJIL) stands in dialectical tension between itsAmerican and its internationalidentities. At its founding, and in periodic reassessments on the occasion of anniversaries or changes of leadership, its editors in chief have offered their understandings of the place for thisJournalat the intersection of American and international life. One of our predecessors wrote in theJournal'ssixth decade of "a dual function, both that of laying international law material before American readers, and that of placing American viewpoints on international law before the rest of the world." Poised at the threshold of a new century, we can take this opportunity for reflection in the image of Janus on both our American (internationalist) origins and our increasingly international (yet in some senses still American) future.

When the current phase of our conflict with Iraq began in March 2003, much was unknown. Our political leaders based the case for war on the conviction that Iraq possessed weapons of mass destruction (WMD) that had not been eliminated despite twelve years of grinding sanctions. Congress voted in October 2002 to authorize renewed use of military force against Iraq, acting on the basis of representations by the Bush Administration that Iraq had been actively concealing WMD stockpiles and programs from the United Nations inspectors who had a mandate to verify the complete destruction of Iraq's WMD capability. Facts were alleged; evidence was proffered; inferences were drawn from the record, or from Iraq's failure to rebut what the record seemed to show. The factual premises for this war turned out to be, in a word, mistaken. Whether the case was overstated, misstated, knowingly misrepresented, or deliberately falsified was a point of debate in the campaign season of 2004. The tale is dismaying but all too familiar. We can recognize a pattern established by the Mexican-American, Spanish-American, and Indochina Wars: The President of the United States goes to Congress with an assertion of an outrage that cannot be ignored and that requires a prompt and decisive forcible response. Congress accepts the Executive's claim without much inquiry into whether the factual premises are well founded and approves the initiation of combat. War ensues; the world is transformed; the facts, however, turn out to be different from how they were portrayed when Congress acted.

Among "jurisconsults of recognized competence in international law" and "most highly qualified publicists of the various nations," no one in the second half of the twentieth century did more than Oscar Schachter to influence both the theory and the practice of international law, especially the law of the United Nations Charter. When the centennial of the American Society of International Law arrives in two years, we will have occasion to reflect on his contributions to this Journal and many other endeavors of the Society, across a long and vigorous life.