Transnational Corporations and Developing Public International Law

In recent years the international community has been developing various international codes of conduct, many of which will contain rules governing the behavior of transnational corporations (TNCs). Most of these rules are being developed with little or no direct TNC participation. Professor Charney argues that because TNCs represent major, independent centers of influence, failure to include them in the codes of conduct negotiations may result in rules that do not accurately reflect the realities of TNC interests and power. If the international community later seeks to convert these rules into legal norms, TNC resistance will probably place costly strains on both the rules and the entire international legal system. Professor Charney concludes that the international community should permit TNCs and other interested power groups to participate directly in the development of international norms applicable to their interests. But he cautions that it would be unwise to give TNCs complete international legal personality because this, too, might place undue strains on the international legal system

Judicial Deference in the Submerged Lands Cases

When the Constitution established three branches of government, it did not create three hermetically sealed areas of responsibility. The executive, legislative and judicial branches are required to govern through a certain degree of accommodation. One area in which the need for accommodation between the judicial branch and the other two branches was recognized at an early stage is cases containing questions bearing on foreign relations.\u27 Under the Constitution it appears that the conduct of the foreign relations is vested in the Executive with a secondary role for the Congress, but that the courts have no role to play in this area. Litigation brought to the courts, however, has been found to demand decisions affecting foreign relations. To avoid breaching the constitutionally required separation of powers in these instances, the Supreme Court has determined that the judiciary should move away from its role as a neutral decision maker . In these instances the courts are either to decide the cases consistent with the wishes of the executive branch or to refuse to decide, thus effectively sanctioning the status quo... It is apparent from the district court\u27s treatment of the deference question that it doubted the appropriateness of judicial restraint in submerged lands cases and that it did not understand the injunction of the Supreme Court. This error is primarily the product of the Supreme Court\u27s failure to identify the factors that require judicial restraint for foreign relations reasons and to test the submerged lands cases against those factors. If the Supreme Court would conduct this examination, this writer submits that it would probably find judicial restraint inappropriate in the submerged lands cases. Part one of this article undertakes that review by delineating the primary subject matter areas in which judicial restraint has been exercised for foreign relations purposes. These areas are: recognition, sovereign immunity, act of state, treaty interpretation and territorial questions. Each area involves a different combination of factors that lead to judicial restraint. By isolating those factors we are able to create a rough yardstick with which other cases, including the submerged lands cases, might be measured

International Agreements and the Development of Customary International Law

It has never been clear, however, which circumstances of negotiation and conclusion of international agreements contribute to new rules of customary law. The issues can be appreciated if one goes beyond generalities and explores the relationship of specific agreements to customary law. Such an examination has been facilitated by the American Law Institute\u27s Restatement of the Foreign Relations Law of the United States (Revised) which contains a contemporary review of a wide range of public and private international law topics. This Restatement represents the views of some of the best international law experts of the United States and abroad. It is also an extremely important contribution to the law in its own right. For these reasons, this article will use the Restatement as a starting point for examination of the function served by international agreements in the development of customary law. This examination shows the difficulties that are presented when international agreements are so used. It may be possible, however, to identify some factors which would help to distinguish those agreements which may appropriately give rise to customary international law and those which may not

Third State Remedies in International Law

This article explores issues arising from third state enforcement of international law. Support for third state remedies may be found in law, practice, and the literature. It is not, however, definitively stablished. Third state remedies may appear at first glance to serve only the desirable goal of promoting rules of international law, but they may also produce negative side effects. The challenge to the international community is to design an effective third state enforcement regime that minimizes undesirable side effects

Developments in International Criminal Law (Foreword)

Many of the contributions to this issue of the Journal focus on several recent historic developments in the field of international criminal law. In July of 1998, the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) concluded an intensive five-week session in Rome by adopting a statute for such a. court. Although the United States voted against the statute, its vote, as several contributions to this issue make clear, does not signal U.S. opposition to an international criminal court as such, but, rather, concern that certain features of the statute produced by the Rome Conference may undermine the achievement of other international goals that the United States believes are no less critical for world order and the international protection of human rights. The United States has been a firm supporter of the two existing international criminal courts-the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)- and its support may prove just as crucial to the success of the ICC