Anthony D'Amato

Whales: Their Emerging Right to Life

We have contended in this article that the evolution of the opinio juris of nations has encompassed five, and perhaps six, inexorable qualitative stages: free resource, regulation, conservation, protection, preservation and entitlement. We have argued that assigning whales an entitlement to life is the consequence of an emerging humanist right in international law – an example of the merging of the “is” and the “ought” of the law in the process of legitimization.

The Invasion of Panama Was a Lawful Response to Tyranny

The Grenada and Panama interventions contributed to the momentum of popular sovereignty. Not only did the United States remove tyrannical leaders from those two countries, but more importantly it set an example that has undoubtedly shaken other ruling elites that enjoy tyrannical control in their own countries. For even if some of those entrenched elites regard themselves as secure against popular uprising in their own countries (usually by the application of torture and brutality against political dissidents), they cannot now feel totally insulated against foreign humanitarian intervention. Thus, Grenada and Panama may very well act as catalysts in the current global revolution of popular sovereignty. In this respect, as well as on their own merits, the two interventions underscore the unraveling of statist conceptions of international law. The arguments of Professors Farer and Nanda, struggling to conform to the tautological jargon of statism, already seem anachronistic.

Peace vs. Accountability in Bosnia

Hovering over the peace negotiations in progress in former Yugoslavia is the international community’s determination to bring to trial as war criminals those political and military leaders responsible for atrocities in Bosnia. The question clearly presented is that, however desirable the idea of war crimes accountability might appear in the abstract, pursuing the goal of a war crimes tribunal may simply result in prolonging a war of civilian atrocities. Is it not conceivable that, in return for securing a peace treaty, the UN officials may have extended some assurance to the leaders in former Yugoslavia that, one way or another, war crimes trials will not take place?

The Concept of Special Custom in International Law

General customary international law contains rules, norms, and principles that seem applicable to any state and not to a particular state or an exclusive grouping of states. For example, norms relating to the high seas, to airspace and outer space, to diplomatic immunities, to the rules of warfare, and so forth, apply equally to all states having occasion to be concerned with these areas. Similarly, the facts of a given case may suggest exclusively the application of general custom – such as cases concerning collision on the high seas between ships of different countries, cases involving general principles of international law, cases turning on the construction of treaties under general customary canons of construction, and in general cases where the plaintiff and defendant states could theoretically be interchanged with any other states without affecting the content of the rules of law cited by either side in the dispute. By contrast, special customary international law deals with non-generalizable topics such as title to or rights in specific portions of world real estate (e.g., cases of acquisitive prescription, boundary disputes, and so-called international servitudes), or with rules expressly limited to countries of a certain region (such as the law of asylum in Latin America). The line separating general from special custom is similar to that in English common law, where a particular custom “must apply to a definitely limited though indeterminate class of persons” and to a limited geographic area; if the usage is laid in too wide a geographic area, for example, it is taken out of the realm of custom and must be pleaded as an ordinary claim at law.

The Concept of Human Rights in International Law

In the past ten years, the concept of human rights has become a permanent part of the way we think about relations between nations. International human rights are now a legislative condition of foreign aid, [FN1] have been institutionalized in bureaucratic structures, [FN2] and, perhaps most importantly, have been stamped indelibly in the minds of the public as one of the most important standards by which we measure other countries.

Israel’s Air Strike Upon the Iraqi Nuclear Reactor

The destructive potential of nuclear weapons is so enormous as to call into question any and all received rules of international law regarding the trans-boundary use of force. Many of the old rationales for these rules no longer apply. At the same time, the shared values underlying the rules apply more emphatically than ever, for the stake is global survival. I have tried to suggest some of the questions that must be asked about as apparently “simple” an incident as the Israeli attack on the nuclear reactor in Iraq.

Nicaragua and International Law: The ‘Academic’ and the ‘Real’

Discusses questions about U.S. policy raised by the proceedings of the Nicaragua case. Was the United States within the exercise of its “inherent right of self defense”? Was the matter a political question for resolution by the Security Council and not suitable for adjudication by the International Court of Justice?

War Crimes and Vietnam: The ‘Nuremberg Defense’ and the Military Service Resister

We have attempted to establish first that the international laws of warfare are part of American law, and have argued that these laws, when taken as prohibitions of specific methods of waging war, are a practical and effective means of controlling unnecessary suffering and destruction. Second, we have analyzed these laws as they apply to treatment of prisoners of war, aerial bombardment of nonmilitary targets, and chemical and biological warfare, and have marshalled a portion of the available evidence that American forces commit war crimes in Vietnam. Third, we have discussed the defenses of tu quoque, reprisal, military necessity, superior orders, ignorance of the law, and duress, and have concluded that a service resister can state a valid claim that his service in Vietnam may place him in substantial danger of being responsible for commission of war crimes. Finally, we have maintained that in-service and possibly draft resisters raising a “Nuremberg defense” have standing, and raise questions which are both ripe and justiciable.

Legal Aspects of the French Nuclear Tests

Even at the level of scholarly or diplomatic argumentation it is important to inquire into the competing interests and legal factors involved in the atmospheric tests. This is true not only because differing political expectations or even measures might depend on the consensus as to the legality or illegality of the French tests, but also because the precedential value of the tests will be of greater or less force depending upon whether there is agreement at the time of the tests that France was or was not acting within her international legal rights.

State Responsibility for the Exportation of Nuclear Power Technology

Should nations that export nuclear power plants to developing countries be potentially liable to the people of those countries for catastrophic accidents? Risk of accident can be reduced if international law compels upgrading of safety design and construction of nuclear plants. Both the international law of state responsibility and an international regulatory agency have roles to play.