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La mer a toujours ete battue par deux grands vents contraires: le vent du large, qui souffle vers la terre, est celui de la liberri; le vent de la terre vers le large est porteur des souverainetes. Le droit de la mer s'est toujours trouve au coeur de leurs affrontements.The history of international law since the Peace of Westphalia is in significant measure an account of the territorial temptation. The bonds of family, clan, tribe, nation, and faith; the need to explore, to trade, and to migrate; the hope for broader cooperation to confront common challenges—all in time came to be subordinated in the international legal order to the insistent quest for supremacy of the territorial state. At least in theory. At least on land.The sea yields a different story. It wasn't always so. And perhaps it isn't necessarily so. But in fact the law of the land and the law of the sea developed in very different ways. If the history of the international law of the land can be characterized by the progressive triumph of the territorial temptation, the history of the international law of the sea can be characterized by the obverse; namely, the progressive triumph of Grotius's thesis of mare liberum and its concomitant prohibition on claims of territorial sovereignty. That triumph reflected not only the transitory nature of human activity at sea, but a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others at sea.

The disagreements among states bordering the South China Sea pose extraordinarily complex legal issues. Sovereignty over small islands that lie at some distance from the continental and insular coasts that surround the sea is contested. So are the maritime entitlements generated by these features. Notably, rocks that cannot sustain human habitation or economic life of their own generate no entitlement to an exclusive economic zone (EEZ) and continental shelf beyond a twelve-mile territorial sea, which may be the case for many of the disputed islands. Yet another series of questions relates to the delimitation of overlapping maritime entitlements, including the relative effect to be accorded entitlements generated by these small islands vis-à-vis those generated by the continental and insular coasts that surround the South China Sea.

Lance Paul Larsen v. The Hawaiian Kingdom. At .Permanent Court of Arbitration Tribunal, February 5, 2001.In Larsen v. The Hawaiian Kingdom Lance Paul Larsen, a resident of the state of Hawaii, sought redress from the Hawaiian Kingdom for its failure to protect him from the United States and the State of Hawaii. The parties, who agreed to submit their dispute to arbitration by the Permanent Court of Arbitration (PCA), shared similar goals and wished the Arbitral Tribunal (Tribunal) to address the question of the international legal status of Hawaii.

Streletz, Kessler and Krenz V. Germany. App. Nos. 34044/96,35532/97, & 44801/98.49 ILM 811 (2001), available at .K.-H. W. V. Germany. App. No. 37201/97. 49 ILM 773 (2001), available at .European Court of Human Rights, Grand Chamber, March 22, 2001.In a landmark judgment, Streletz, Kesslerand Krenz v. Germany, die European Court of Human Rights (ECHR) unanimously held that criminal prosecution of the leaders of the German Democratic Republic (GDR) for ordering to kill individuals attempting to flee the GDR is compatible with the principle nullum crimen sine lege and consequently with the prohibition on retroactive criminal laws under the European Convention on Human Rights. In a second judgment, K.-H. W. v. Germany, with three of the seventeen judges dissenting, the Court affirmed this holding as applied to the criminal responsibility of a low-ranking soldier.

Metalclad Corporation v. Mexico. ICSID Case No. ARB(AF)/97/l. 40 ILM 36 (2001), available at .NAFTA Chapter 11 Arbitral Tribunal, August 30, 2000.Mexico v. Metalclad Corporation. 2001 B.C.S.C. 664, available, at .Supreme Court of British Columbia, May 2, 2001.In 1993, Metalclad Corporation purchased the Mexican company Confinamiento Tecnico de Residuos Industriales, S.A. de C.V. (COTERIN) in order to build and operate a hazardous-waste transfer station and landfill in Guadalcazar, San Luis Potosi. Although the federal government of Mexico and the state government of San Luis Potosi had granted COTERIN permits to construct and operate the landfill, the municipality of Guadalcazar denied a municipal construction permit, and the governor of San Luis Potosi subsequently declared an area encompassing the landfill to be an ecological reserve.

Since the founding of the United Nations, the number of treaties and the matters they address have expanded vastly. It is increasingly common to find the same subjects addressed in complementary global, regional, and bilateral treaties. Many of these treaties contain provisions on the settlement of disputes regarding the interpretation or application of that treaty itself. Only some of those provisions establish compulsoryjurisdiction. These circumstances suggest an increasing probability that a dispute will arise between states under the substantive provisions of two complementary treaties with dispute settlement clauses, only one of which provides for compulsory arbitration or adjudication either in general or with respect to that dispute.

In rejavor. In re Munyeshyaka.French Cour de cassation, Criminal Chamber, March 26, 1996.In Re Munyeshyaka. 1998 Bull, crim., No. 2, at 3.French Cour de cassation, Criminal Chamber, January 6, 1998.In the Javor case, certain Bosnian victims of the policy of “ethnic cleansing” that took place in Bosnia and Herzegovina, who were refugees in France, tried to rely on the universal jurisdiction of the French courts in order to file a criminal complaint (plainte avec constitution departie civile) with an investigating magistrate (juge d'instruction) against their Serb torturers.

Mugesera v. Minister of Citizenship and Immigration.Immigration and Refugee Board (Appeal Division) of Canada, November 6, 1998.In its landmark ruling of September 2, 1998, in the Akayesu case, the International Criminal Tribunal for Rwanda (ICTR) reviews the background of genocide in that country, noting in particular the role that hate propaganda played in preparing the tens of thousands of “willing executioners” who participated in the crimes of April to July, 1994. According to the Rwanda Tribunal, the “most notorious” propaganda agent was “a certain Leon Mugesera,” an extremist pamphleteer who gave a public speech in November 1992 calling for the extermination of the Tutsi. Mugesera fled Rwanda in the weeks following die incident. With the help of a network of aid workers, academics and diplomats that he had nurtured over many years, he was able to flee to Canada and obtain permanent resident status there.

United States—Import Prohibition of Certain Shrimp and Shrimp Products.World Trade Organization, Appellate Body, October 12, 1998.In May 1996, the United States effectively prohibited imports of shrimp and shrimp products from all countries that do not require commercial shrimp trawlers to use turtle-excluder devices (TEDs) to permit endangered species of sea turtles to escape from trawling nets to avoid drowning. In January 1997, India, Malaysia, Pakistan and Thailand requested that the WTO Dispute Settlement Body establish a panel to determine whether this import ban, among other things, violates the prohibition on quantitative restrictions in Article XI of GATT (1994). The United States maintained that its import ban was permitted under the exceptions set forth in paragraphs (b) and (g) of GATT Article XX. Four turtle species that migrate in and out of waters subject to the complaining parties’ jurisdiction are listed as endangered under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and are covered by the relevant U.S. regulation.

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction.International Court of Justice, December 4, 1998.On May 10, 1994, Canada filed an amended declaration accepting the jurisdiction of the International Court of Justice (ICJ). New paragraph 2(d) excluded “disputes arising out of or concerning conservation and management measures taken by Canada with respect to vessels fishing in die NAFO Regulatory Area, as defined in the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, 1978, and the enforcement of such measures.” Two days later, the Canadian Coastal Fisheries Protection Act (CFPA) and implementing regulations were amended to authorize the enforcement under certain circumstances of conservation measures applicable to foreign fishing vessels in the high seas areas to which the reservation adverted.

Prosecutor v. Delalic. No. IT-96-21-T.International Criminal Tribunal for the former Yugoslavia, Nov. 16, 1998.On November 16,1998, a trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) issued its judgment in the Čelebići case against four defendants. The chamber found the de facto commander of the Čelebići prison camp liable under the principle of command responsibility for various acts of torture and illtreatment at the camp. It also found two other accused guilty of grave breaches of the Geneva Conventions and violations of the laws or customs of war for their actions at the camp. A fourth accused, indicted only under the principle of command responsibility, was found not guilty on all counts owing to the lack of a superior-subordinate relationship. Those accused convicted of multiple offenses were ordered to serve their sentences concurrently.

Public Prosecutor v. Ashby. Judgment No. 161/98.Court of Trento, Italy, July 13, 1998.On February 3, 1998, a U.S. Marine EA-6B aircraft, redeployed at Aviano air base as part of Operation Deliberate Guard in support of the multinational Stabilization Force (SFOR) in Bosnia, was on a low-level training mission over northern Italy when it severed the wires of the cable car at the Cermis ski resort near Cavalese, causing the deaths of twenty people. Because the exercise of criminal action is mandatory under Article 112 of the Italian Constitution, the public prosecutor decided that he had to institute preliminary investigations immediately, with a view to determining whether to prosecute. On July 13, 1998, an Italian judge, in a preliminary hearing, rejected the prosecutor's request that seven U.S. servicemen stand trial for the cable-car accident. The judge found that, under Article VII, paragraph 3(a) (ii) of the NATO Status of Forces Agreement (NATO SOFA), the United States, as the sending state, had the primary right to exercise jurisdiction over the case and that jurisdiction had not been waived. Accordingly, the judge dismissed the case.

Prosecutor v. Akayesu. Case ICTR-96-4-T.International Criminal Tribunal for Rwanda, September 2, 1998.This pioneering opinion marks the first time an international criminal tribunal has tried and convicted an individual for genocide and international crimes of sexual violence. The case arose out of the massacres of perhaps a million Tutsi in Rwanda in 1994. At least two thousand died in Taba, a rural commune where defendant Jean-Paul Akayesu was mayor. A trial chamber of the International Criminal Tribunal for Rwanda concluded that, although Akayesu may at first have tried to prevent killings, he eventually donned a military jacket and participated in or ordered atrocities. The Tribunal found him guilty of one count each of genocide and incitement to commit genocide and seven counts of crimes against humanity. It acquitted Akayesu of five counts brought under common Article 3 of the 1949 Geneva Conventions and Protocol Additional II to those Conventions on the ground that he was not within the class of perpetrators contemplated by them.

Grant v. South-West Trains, Ltd. Case C-249/96. 1998 All England Law Reports (EC) 193.Court of Justice of the European Communities, February 17, 1998.Are employers within the European Community (EC or Community) forbidden from discriminating against their employees on the basis of sexual orientation? More generally, does the prohibition of “discrimination based on sex” contained in Article 119 of the Treaty of Rome and the Community directive requiring equal pay for men and women (Equal Pay Directive) encompass discrimination on the basis of sexual orientation? In Grant v. South-West Trains, Ltd., the European Court of Justice (ECJ) answered both questions in the negative, rejecting a strongly worded recommendation of the Court's Advocate General.

Prince of Liechtenstein v. Federal Supreme Court. Case 2 BvR 1981/97. 36 Archiv des Volkerrechts 198 (1998).German Federal Constitutional Court (3d Chamber, 2d Senate), January 28, 1998.On January 28, 1998, a chamber of the German Constitutional Court decided that the Court would not deal with a constitutional complaint brought before it by Prince Hans-Adam II of Liechtenstein, Head of State of die Principality of Liechtenstein. In effect, the chamber thus upheld the decisions made by the civil courts rejecting the Prince's attempt to recover a family painting confiscated by Czechoslovakia and currently on loan to a German museum.

United States v. Balsys. 118 S.Ct. 2218.U.S. Supreme Court, June 25, 1998.Resolving a long-open question, the U.S. Supreme Court held in this 7-2 decision that a witness in a domestic proceeding may not invoke the constitutional privilege against self-incrimination if the witness fears that the testimony may be used in a prosecution outside the United States. Although grounded in domestic law, the three opinions in Balsys reveal tension between the judiciary's traditional deference to the political branches in foreign relations matters and its concern over the risk that individuals subject to prosecution abroad will suffer deprivation of liberty because of that deference.

Prefecture of Voiotia v. Federal Republic of Germany. Case No. 137/1997.Court of First Instance of Leivadia, Greece, October 30, 1997.On November 27, 1995, the Prefecture of Voiotia (soudiern Greece) and other claimants, in their individual capacity, brought a claim of indemnity before the Court of First Instance of Leivadia against the German state. The plaintiffs based their claims on atrocities (willful murder and destruction of private property) committed by German occupation forces against the persons and property of die village of Distomo in Voiotia on June 10, 1944. They sought compensation for the material and mental damage suffered as a result of those atrocities, which were specifically described in their briefs. The Greek Foreign Office forwarded the complaint to the German Foreign Office, which rejected and returned it to the Greek Embassy on the grounds that the suit impaired the sovereign rights of the German state. Germany was not represented at trial. The court awarded damages to the individual claimants of 9,448,105,000 drachmas (approximately $30 million).

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria) , Preliminary Objections, Judgment.International Court of Justice, June 11, 1998.On March 29, 1994, Cameroon filed an Application requesting that the Court determine the question of sovereignty over the Bakassi Peninsula and a disputed parcel of land in the area of Lake Chad (principally Darak and its region) and to specify the course of the land and maritime boundary between Cameroon and Nigeria. It also asked the Court to order an immediate and unconditional withdrawal of Nigerian troops from alleged Cameroonian territory in the disputed areas. As the basis of the Court's jurisdiction, Cameroon relied on the declarations made by the parties under Article 36, paragraph 2 of the ICJ Statute.