Contemporary practice of the United States relating to international law

American Journal of International Law

Volumn 95, Issue 3, 2001, Pages 626-651

  Murphy, Sean D ^a  

^a NONE

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EID: 0035623618     PISSN: 00029300     EISSN: None     Source Type: Journal    
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References (150)

1. See International Law Commission, Report on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, at 124, UN Doc. A/55/10 (2000) [hereinafter ILC Draft Articles on State Responsibility]. Separately, the ILC has sought to elaborate rules on liability for injuries arising from acts not prohibited by international law. See id. at 273. For information on the ILC and its work, see 〈http://www.un.org/Iaw/ilc/index.htm〉.
2. Draft Articles on State Responsibility: Comments of the Government of the United States of America (Mar. 1, 2001) [hereinafter U.S. Comments] (on file at GWU). The ILC edited and interspersed the United States' comments with the comments of other states in State Responsibility: Comments and Observations Received from Governments, UN Doc. A/CN.4/515 (2001) [hereinafter Comments and Observations].
3. ILC Draft Articles on State Responsibility, supra note 1, at 134, Arts. 41-42.
4. See U.S. Comments, supra note 2, at 7-8; Comments and Observations, supra note 2, at 52-53.
5. ILC Draft Articles on State Responsibility, supra note 1, at 135, Art. 43.
6. See U.S. Comments, supra note 2, at 8-9; Comments and Observations, supra note 2, at 64.
7. ILC Draft Articles on State Responsibility, supra note 1, at 129, Art. 23, states: "The wrongfulness of an act of a State not in conformity with its international obligations to another State is precluded if and to the extent that the act constitutes a countermeasure directed towards the latter State under the conditions set out in articles 50 [47] to 55 [48]." The numbers in brackets correspond to the numbers of the articles as adopted on first reading.
8. See U.S. Comments, supra note 2, at 2; Comments and Observations, supra note 2, at 76.
9. See U.S. Comments, supra note 2, at 2-6; Comments and Observations, supra note 2, at 76-77.
10. ILC Draft Articles on State Responsibility, supra note 1, Art. 51 (1), provides that countermeasures shall not involve any derogation from obligations (a) to refrain from the threat or use of force as embodied in the UN Charter; (b) for the protection of fundamental human rights; (c) of a humanitarian character prohibiting any form of reprisals against persons protected thereby; (d) arising under other peremptory norms of general international law; and (e) to respect the inviolability of diplomatic or consular agents, premises, archives, and documents.
11. ILC Draft Articles on State Responsibility, supra note 1, Art. 52, provides: "Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question."
12. The United States argued that these provisions contravene customary international law, which permits an injured state to take countermeasures prior to seeking negotiations with the responsible state, and also permits countermeasures during negotiations. See Air Services Agreement of March 27, 1946 Between the United States of America and France, 18 R.I.A.A. 417, 443-44 (1978) (it is not "possible, in the present state of international relations, to lay down a rule prohibiting the use of countermeasures during negotiations").
13. U.S. Comments, supra note 2, at 3-5 (citations omitted); see Comments and Observations, supra note 2, at 81-83.
14. See State Responsibility: Titles and Texts of the Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by the Drafting Committee on Second Reading, UN Doc. A/CN.4/L.602 (2001).
15. Id., Arts. 41-42.
16. Id., Art. 43.
17. Id., Arts. 50-55 bis. Article 52 on proportionality was not altered as proposed by the United States.
18. Hanssen was thereafter indicted by a federal grand jury on charges that he had spied for the Soviet Union and Russia for more than fifteen years. See James Risen, Former F.B.I. Agent Indicted in Spy Case, N.Y. TIMES, May 17, 2001, at A18 . On July 6, Hanssen pleaded guilty as part of an agreement whereby he was spared the death penalty in exchange for providing information on his espionage activities. See Brooke A. Masters, Hanssen Admits Spying, Avoids Death Penalty, WASH. POST, July 7, 2001, at A2.
19. 1 Hanssen was thereafter indicted by a federal grand jury on charges that he had spied for the Soviet Union and Russia for more than fifteen years. See James Risen, Former F.B.I. Agent Indicted in Spy Case, N.Y. TIMES, May 17, 2001, at A18 . On July 6, Hanssen pleaded guilty as part of an agreement whereby he was spared the death penalty in exchange for providing information on his espionage activities. See Brooke A. Masters, Hanssen Admits Spying, Avoids Death Penalty, WASH. POST, July 7, 2001, at A2.
20. U.S. Dep't of State Press Release on Expulsion of Russian Intelligence Officers (Mar. 22, 2001), at 〈http:// www.state.gov〉.
21. See Vernon Loeb & Susan B. Glasser, Bush Backs Expulsion of 50 Russians, WASH. POST, Mar. 23, 2001, at A1.
22. Government of Russia Press Release on Handover of List of Four U.S. Moscow Embassy Staff Members Declared Persona Non Grata (Mar. 27, 2001) (unofficial translation from the Russian), at 〈http://www.russianembassy.org〉. Further, Russian officials stated that forty-six additional U.S. diplomats would be required to leave Russia before the summer. See Patrick E. Tyler, Russia Expels 4 Americans and Vows "Other Measures," N.Y. TIMES, Mar. 24, 2001, at A4.
23. Government of Russia Press Release on Handover of List of Four U.S. Moscow Embassy Staff Members Declared Persona Non Grata (Mar. 27, 2001) (unofficial translation from the Russian), at 〈http://www.russianembassy.org〉. Further, Russian officials stated that forty-six additional U.S. diplomats would be required to leave Russia before the summer. See Patrick E. Tyler, Russia Expels 4 Americans and Vows "Other Measures," N.Y. TIMES, Mar. 24, 2001, at A4.
24. Exchange with Reporters on Capitol Hill, 37 WEEKLY COMP. PRES. DOC. 489 (Mar. 23, 2001).
25. 22 U.S.C. §3301-3316 (1994); see Exec. Order No. 13,014, 3 C.F.R. 211 (1996).
26. 22 U.S.C. §3305.
27. Id. §3305 (a).
28. Id. §3305 (a), (b).
29. Id. §3313.
30. False Claims Act, 31 U.S.C. §§3729-3731 (1994).
31. United States ex rel. Wood v. American Inst. in Taiwan, C.A. No. 98-1952, 14, 18 (D.D.C. Feb. 28, 2001). For application of the Foreign Sovereign Immunities Act, 28 U.S.C. §§1330, 1602-1611 (1994), to AIT's Taiwan counterpart, see Millen Indus., Inc. v. Coordination Council for N. Am. Affairs, 855 F.2d 879 (D.C. Cir. 1988).
32. See Elisabeth Rosenthal & David E. Sanger, U.S. Plane in China After It Collides with Chinese Jet, N.Y. TIMES, Apr. 2, 2001, at A1. According to published reports, the EP-3E Aries II contained sophisticated intelligence-gathering equipment and was a variant of the U.S. Navy's P-3 patrol craft. The missions of the EP-3E Aries II include reconnaissance, surveillance, and antisurface and antisubmarine warfare.
33. See John Pomfret, U.S., Chinese Warplanes Collide over S. China Sea, WASH. POST, Apr. 2, 2001, at A1; Erik Eckholm, China Faults U.S. in Incident; Suggests Release of Crew Hinges on Official Apology, N.Y. TIMES, Apr. 4, 2001, at A1.
34. See John Pomfret, U.S., Chinese Warplanes Collide over S. China Sea, WASH. POST, Apr. 2, 2001, at A1; Erik Eckholm, China Faults U.S. in Incident; Suggests Release of Crew Hinges on Official Apology, N.Y. TIMES, Apr. 4, 2001, at A1.
35. See Guy Gugliotta, U.S. Expects Return of Plane, Crew, WASH. POST, Apr. 2, 2001, at A14; David E. Sanger, Powell Sees No Need for Apology; Bush Again Urges Return of Crew, N.Y. TIMES, Apr. 4, 2001, at A1.
36. See Guy Gugliotta, U.S. Expects Return of Plane, Crew, WASH. POST, Apr. 2, 2001, at A14; David E. Sanger, Powell Sees No Need for Apology; Bush Again Urges Return of Crew, N.Y. TIMES, Apr. 4, 2001, at A1.
37. See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at 〈http://www.fmprc.gov.cn/eng/ 9607.html〉 ("The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas."); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at 〈http://www.chinaembassy.org/eng/9585.html〉 ("The surveillance flight conducted by the US aircraft overran the scope of 'free overflight' according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus, the US plane's actions posed a threat to the national security of China."); see also Christopher Drew, Old Tactics May Pull the Rug from the U.S. Claim to Plane, N.Y. TIMES, Apr. 4, 2001, at A1. Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that "all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight . . ." and that "[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . ." Article 87 provides that "[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight . . . ." Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); GREENE HAYWOOD HACKWORTH, 2 DIGEST OF INTERNATIONAL LAW, §172, at 408-23 (1941); The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. INT'L L. COMM'N, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or "forced to land" in the territory of a contracting party shall enjoy "the privileges which are customarily accorded to foreign ships of war." The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3. In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Charles Lane, Past Actions Undercut U.S. Case, Lawyers Say, WASH. POST, Apr. 6, 2001, at A28.
38. See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at 〈http://www.fmprc.gov.cn/eng/ 9607.html〉 ("The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas."); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at 〈http://www.chinaembassy.org/eng/9585.html〉 ("The surveillance flight conducted by the US aircraft overran the scope of 'free overflight' according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus, the US plane's actions posed a threat to the national security of China."); see also Christopher Drew, Old Tactics May Pull the Rug from the U.S. Claim to Plane, N.Y. TIMES, Apr. 4, 2001, at A1. Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that "all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight . . ." and that "[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . ." Article 87 provides that "[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight . . . ." Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); GREENE HAYWOOD HACKWORTH, 2 DIGEST OF INTERNATIONAL LAW, §172, at 408-23 (1941); The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. INT'L L. COMM'N, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or "forced to land" in the territory of a contracting party shall enjoy "the privileges which are customarily accorded to foreign ships of war." The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3. In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Charles Lane, Past Actions Undercut U.S. Case, Lawyers Say, WASH. POST, Apr. 6, 2001, at A28.
39. See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at 〈http://www.fmprc.gov.cn/eng/ 9607.html〉 ("The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas."); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at 〈http://www.chinaembassy.org/eng/9585.html〉 ("The surveillance flight conducted by the US aircraft overran the scope of 'free overflight' according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus, the US plane's actions posed a threat to the national security of China."); see also Christopher Drew, Old Tactics May Pull the Rug from the U.S. Claim to Plane, N.Y. TIMES, Apr. 4, 2001, at A1. Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that "all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight . . ." and that "[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . ." Article 87 provides that "[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight . . . ." Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); GREENE HAYWOOD HACKWORTH, 2 DIGEST OF INTERNATIONAL LAW, §172, at 408-23 (1941); The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. INT'L L. COMM'N, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or "forced to land" in the territory of a contracting party shall enjoy "the privileges which are customarily accorded to foreign ships of war." The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3. In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Charles Lane, Past Actions Undercut U.S. Case, Lawyers Say, WASH. POST, Apr. 6, 2001, at A28.
40. See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at 〈http://www.fmprc.gov.cn/eng/ 9607.html〉 ("The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas."); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at 〈http://www.chinaembassy.org/eng/9585.html〉 ("The surveillance flight conducted by the US aircraft overran the scope of 'free overflight' according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus, the US plane's actions posed a threat to the national security of China."); see also Christopher Drew, Old Tactics May Pull the Rug from the U.S. Claim to Plane, N.Y. TIMES, Apr. 4, 2001, at A1. Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that "all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight . . ." and that "[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . ." Article 87 provides that "[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight . . . ." Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); GREENE HAYWOOD HACKWORTH, 2 DIGEST OF INTERNATIONAL LAW, §172, at 408-23 (1941); The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. INT'L L. COMM'N, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or "forced to land" in the territory of a contracting party shall enjoy "the privileges which are customarily accorded to foreign ships of war." The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3. In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Charles Lane, Past Actions Undercut U.S. Case, Lawyers Say, WASH. POST, Apr. 6, 2001, at A28.
41. See China Ministry of Foreign Affairs Press Release on Solemn Position on the US Military Reconnaissance Plane Ramming into and Destroying a Chinese Military Plane (Apr. 3, 2001), at 〈http://www.fmprc.gov.cn/eng/ 9607.html〉 ("The act of the US side constitutes a violation of the UN Convention on the Law of the Sea (UNCLOS), which provides, among other things, that the sovereign rights and jurisdiction of a coastal State over its Exclusive Economic Zone, particularly its right to maintain peace, security and good order in the waters of the Zone, shall all be respected and that a country shall conform to the UNCLOS and other rules of international law when exercising its freedom of the high seas."); China Ministry of Foreign Affairs Press Release on Spokesman Zhu Bangzao Gives Full Account of the Collision Between US and Chinese Military Planes (Apr. 4, 2001), at 〈http://www.chinaembassy.org/eng/9585.html〉 ("The surveillance flight conducted by the US aircraft overran the scope of 'free overflight' according to international law. The move also violated the United Nations Convention on the Law of the Sea, which stipulates that any flight in airspace above another nation's exclusive economic zone should respect the rights of the country concerned. Thus, the US plane's actions posed a threat to the national security of China."); see also Christopher Drew, Old Tactics May Pull the Rug from the U.S. Claim to Plane, N.Y. TIMES, Apr. 4, 2001, at A1. Under the UN Convention on the Law of the Sea (to which China, but not the United States, is a party), a coastal state has the right to establish an exclusive economic zone to the maximum breadth of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Arts. 55-59, 1833 UNTS 397, 21 ILM 1261 (1982) [hereinafter LOS Convention]. Article 58 provides with respect to overflight of this zone that "all States . . . enjoy . . . the freedoms referred to in article 87 [of the LOS Convention] of navigation and overflight . . ." and that "[i]n exercising their rights and performing their duties under this Convention in the exclusive economic zone, States shall have due regard to the rights and duties of the coastal State . . . ." Article 87 provides that "[t]he high seas are open to all States . . . . [The f]reedom of the high seas . . . comprises . . . : (a) freedom of navigation; (b) freedom of overflight . . . ." Customary and conventional rules also exist regarding the immunity of sovereign vessels, the right of a flag state to exercise penal jurisdiction over persons in service of its vessels in matters of collision on the high seas, and the duty of coastal states to provide safe harbor to vessels in distress. See, e.g., id., Arts. 29-32 (rules applicable to warships in territorial waters, including immunity), Art. 95 (immunity of warships on the high seas), Art. 97 (penal jurisdiction regarding high seas collisions); GREENE HAYWOOD HACKWORTH, 2 DIGEST OF INTERNATIONAL LAW, §172, at 408-23 (1941); The Schooner Exchange v. M'Faddon, 11 U.S. (7 Cranch) 116 (1812); International Law Commission, Draft Articles on Jurisdictional Immunities of States and Their Property, Arts. 5 & 16, 2 Y.B. INT'L L. COMM'N, pt. 2, at 22, 50 (1991). With respect to rules concerning airplanes, see Convention Relating to the Regulation of Aerial Navigation, Oct. 13, 1919, Art. 32, 11 LNTS 173, 195 [hereinafter Paris Convention], which provided that military airplanes authorized to land or "forced to land" in the territory of a contracting party shall enjoy "the privileges which are customarily accorded to foreign ships of war." The Paris Convention was succeeded, however, by the Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295 (Chicago Convention), which simply provides that no military airplanes shall land on the territory of a contracting party without authorization. Id., Art. 3. In 1976, a Soviet defector flew an advanced MiG-25 fighter jet to Japan, which the United States thoroughly inspected and reportedly returned months later in crates. See Charles Lane, Past Actions Undercut U.S. Case, Lawyers Say, WASH. POST, Apr. 6, 2001, at A28.
42. See China Ministry of Foreign Affairs Press Release on Solemn Position, supra note 4 ("according to the 1944 Convention on International Civil Aviation and the Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone, the US plane shall not fly over Chinese territorial airspace without prior consent of the Chinese side . . . . In doing so, the US has violated international law and encroached upon China's sovereignty and territorial airspace.")
43. See Colin L. Powell, U.S. Secretary of State, U.S. Dep't of State Press Release on Interview on Fox News Sunday (Apr. 8, 2001), at 〈http://www.state.gov〉 ("We understand what territorial integrity means in the concept of international law, not what some countries claim beyond what we think is appropriate. So we always fly these kinds of missions in ways that are consistent with the common understanding of international law and we will continue to do so."); Colin L. Powell, U.S. Secretary of State, U.S. Dep't of State Press Release on Interview on CBS "Face the Nation" (Apr. 8, 2001), at 〈http://www.state.gov〉 (referring to flights "in international air space over international waters").
44. See Colin L. Powell, U.S. Secretary of State, U.S. Dep't of State Press Release on Interview on Fox News Sunday (Apr. 8, 2001), at 〈http://www.state.gov〉 ("We understand what territorial integrity means in the concept of international law, not what some countries claim beyond what we think is appropriate. So we always fly these kinds of missions in ways that are consistent with the common understanding of international law and we will continue to do so."); Colin L. Powell, U.S. Secretary of State, U.S. Dep't of State Press Release on Interview on CBS "Face the Nation" (Apr. 8, 2001), at 〈http://www.state.gov〉 (referring to flights "in international air space over international waters").
45. See White House Press Release on Letter from Ambassador Prueher to Chinese Minister of Foreign Affairs Tang (Apr. 11, 2001), at 〈http://www.whitehouse.gov〉. Although China had insisted that the United States deliver a dao qian, which is a formal apology conveying an admission of wrongdoing, the language of the letter did not express such an apology. When translating the letter into Chinese, however, the official China news agency used strong terms of profound regret. See Eric Eckholm, Chinese Claim a Moral Victory, Describing a Much Bigger Battle, N.Y. TIMES, Apr. 12, 2001, at A1.
46. See White House Press Release on Letter from Ambassador Prueher to Chinese Minister of Foreign Affairs Tang (Apr. 11, 2001), at 〈http://www.whitehouse.gov〉. Although China had insisted that the United States deliver a dao qian, which is a formal apology conveying an admission of wrongdoing, the language of the letter did not express such an apology. When translating the letter into Chinese, however, the official China news agency used strong terms of profound regret. See Eric Eckholm, Chinese Claim a Moral Victory, Describing a Much Bigger Battle, N.Y. TIMES, Apr. 12, 2001, at A1.
47. See Craig S. Smith, China Releases U.S. Plane Crew 11 Days After Midair Collision, N.Y. TIMES, Apr. 12, 2001, at A1.
48. McKesson Corp. v. Iran, 116 F.Supp.2d 13, 41 (D.D.C. 2000).
49. See Compañia del Desarrollo de Santa Elena, S.A. v. Costa Rica, 15 ICSID REV.-FOREIGN INVESTMENT L.J. 169, as rectified by 15 ICSID REV.-FOREIGN INVESTMENT L.J. 205 (2000) (ICSID Convention tribunal 2000), reprinted in 39 ILM 1317 (2000). The tribunal consisted of L. Yves Fortier (president), Sir Elihu Lauterpacht, and Prosper Weil. The judgment and rectification are available online at 〈http://www.worldbank.org/icsid/cases/awards.htm〉.
50. Compañia del Desarrollo de Santa Elena, S.A. v. Costa Rica, 15 ICSID REV.-FOREIGN INVESTMENT L.J. 169, para. 95.
51. Id., para. 97 (citing, e.g., Sylvania Technical Services v. Iran, 8 Iran-U.S. Cl. Trib. Rep. 298 (1985); Fabiani Case (Fr. v. Venez.), 10 R.I.A.A. 83 (1905); Affaire des Chemins de Fer Zeltweg-Wolfsberg, 3 R.I.A.A. 1795, 1808 (1934); Kuwait v. Aminoil, 66 ILR 518, 613 (1982); Norwegian Shipowners' Claims, 1 R.I.A.A. 307, 341 (1922); Great Britain v. Spain (Spanish Zone of Morocco), 2 R.I.A.A. 615, 650 (1924)).
52. Compañia del Desarrollo de Santa Elena v. Costa Rica, 15 ICSID REV.-FOREIGN INVESTMENT L.J. 169, paras. 103-04.
53. The Tribunal found that full compound interest was inappropriate, however, since the claimant corporation, while bearing the burden of maintaining the property, had remained in possession of it and had been able to use and exploit it to a limited extent. The Tribunal proceeded to award the claimant $16 million, but without explaining the exact method of calculation. An attorney for the claimant thereafter noted that this award was "mathematically the equivalent of taking the 1978 valuation of US $4,150,000 and applying either a simple interest rate of 13.13 percent (about 50 percent higher than generally prevailing rates) or a compound interest of 6.40 percent (about 30 percent lower than generally prevailing rates)." Kenneth I. Juster, The Santa Elena Case: Two Steps Forward, Three Steps Back, 10 AM. REV. INT'L ARB. 371 (1999).
54. 116 F.Supp.2d at 45-46.
55. Participants in the process included Chevron, Texaco, Freeport McMoran, Conoco, Shell, BP, Rio Tinto, Human Rights Watch, Amnesty International, International Alert, Lawyers Committee for Human Rights, Fund for Peace, Council on Economic Priorities, Business for Social Responsibility, the Prince of Wales Business Leaders Forum, and the International Federation of Chemical, Energy, Mine and General Workers' Unions. See U.S. Dep't of State Press Release on Voluntary Principles on Security and Human Rights: Statement by the Governments of the United States of America and the United Kingdom (Dec. 20, 2000), at 〈http://www.state.gov/www/global/ human_rights/001220_stat_principles.html〉.
56. U.S State Department Fact Sheet on Voluntary Principles on Security and Human Rights (Dec. 20, 2000), at 〈htpp:/www.state.gov/www/global/human_rights/001220_fsdrl_principles. html〉
57. Id.
58. [Editor's Note: UN Secretary-General Kofi Annan in 1999 initiated a UN-sponsored forum for encouraging and promoting good corporate practices in the area of human rights, labor, and the environment, known as the "Global Compact." The forum's Internet site is at 〈http://www.unglobalcompact.org〉.]
59. [Editor's Note: Sullivan Principles for U.S. Corporations Operating in South Africa, 24 ILM 1464 (1985).]
60. U.S. Dep't of State Press Release on Harold Hongju Koh, Assistant Secretary of State for Democracy, Human Rights, and Labor; E. Anthony Wayne, Assistant Secretary for Economic and Business Affairs; and David G. Carpenter, Assistant Secretary for Diplomatic Security, Press Briefing on Voluntary Principles on Security and Human Rights (Dec. 20, 2000), at 〈http://www.state.gov/www/policy_remarks/2000/001220_koh_hr.html〉.
61. See United States v. Bin Laden, 92 F.Supp.2d 225 (S.D.N.Y. 2000); see also Sean D. Murphy, Contemporary Practice of the United States, 93 AJIL 161 (1999), 94 AJIL 366 (2000). Some of the indictees were also charged with acts of terrorism against U.S. forces operating in Somalia in 1993.
62. By the end of 2000, 21 persons were indicted in New York for the embassy bombings. Five were in custody in New York, 3 were in custody in the United Kingdom awaiting extradition, and 13, including Bin Laden, remained at large. See Dan Eggen & David A. Vise, More Indicted in Embassy Attacks, WASH. POST, Dec. 21, 2000, at A15.
63. United States v. Bin Laden, 126 F.Supp.2d 264, 269 (S.D.N.Y. 2000).
64. Id. at 270.
65. Id.
66. 354 U.S. 1 (1957).
67. 7 389 U.S. 258 (1967).
68. 299 U.S. 304 (1936).
69. 126 F.Supp.2d at 273.
70. The Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. §§1801-1829 (1994 & Supp. V 1999), regulates incidents in the United States involving foreign intelligence collection, but does not address the United States' foreign intelligence collection overseas.
71. 126 F.Supp.2d at 273-74 (citing United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980); United States v. United States Dist. Court (Keith), 407 U.S. 297, 315 (1972)).
72. 126 F.Supp.2d at 275.
73. Id. at 274-77.
74. Id. at 277.
75. Id.
76. The court found that the electronic surveillance that preceded this date was unlawful, but found that exclusion of the evidence would be inappropriate "because it would not have the deterrent effect which the exclusionary rule requires and because the surveillance was undertaken in good faith." Id. at 282.
77. See Miranda v. Arizona, 384 U.S. 436 (1966).
78. United States v. Bin Laden, 2001 WL 30061 at *3 (S.D.N.Y.).
79. Id.
80. 428 U.S. 153 (1976).
81. United States v. Bin Laden, 126 F.Supp.2d 290, 294 (S.D.N.Y. 2001).
82. Id. at 294-95.
83. Apr. 24, 1963, 21 UST 77, 596 UNTS 261.
84. 126 F.Supp.2d at 295-96. For a similar outcome in the case of one of the other defendants, a Saudi national, see United States v. Bin Laden, 132 F.Supp.2d 168, 194-97 (S.D.N.Y. 2001).
85. United States v. Bin Laden, 132 F.Supp.2d 168, 181.
86. Id.
87. Id. at 181-82 (citing United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)). In Verdugo-Urquidez, the Supreme Court held that the Fourth Amendment did not apply to the search and seizure by U.S. agents of property owned by a nonresident alien and located abroad. The Court stated in dicta, however, that the Fourth Amendment operates differently than the Fifth Amendment. "The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." 494 U.S. at 264.
88. 132 F.Supp.2d at 181. The court's conclusion may be contrasted with a recent case in the federal district court of Massachusetts. In United States v. Raven, 103 F.Supp.2d 38 (2000), a Dutch citizen was arrested and charged with attempting to smuggle heroin into the United States. While in custody in Belgium, he made Statements to U.S. and Belgian officials regarding the crime, without his Belgian counsel present. After transfer to the United States for trial, he sought to suppress the statements, arguing that his right to counsel under the Fifth and Sixth Amendments was violated. The court in this case ruled that foreign nationals do not benefit from the protections of the U.S. Constitution. Citing Johnson v. Eisentrager, 339 U.S. 763 (1950) and Verdugo-Urquidez, the court said that the Supreme Court's refusal to grant Fourth and Fifth Amendment rights to aliens in those cases suggested that it would also refuse to grant Sixth Amendment rights. Noting that the U.S. officials complied with the laws of Belgium in questioning the defendant, the court denied the motion to suppress.
89. 132 F.Supp.2d at 189-94. For a similar outcome with respect to another defendant, Mohamed Sadeek Odeh, see United States v. Bin Laden, 132 F.Supp.2d 198 (S.D.N.Y. 2001).
90. See Benjamin Weiser, 4 Guilty in Terror Bombings of 2 U.S. Embassies in Africa; Jury to Weigh 2 Executions, N.Y. TIMES, May 30, 2001, at A1.
91. See Colum Lynch & Christine Haughney, Jury Rejects Death for Embassy Bomber, WASH. POST, June 13, 2001, at A1; Benjamin Weiser, Another Convicted Terrorist Is Spared Death Penalty in Bombings, N.Y. TIMES, July 11, 2001, at A17.
92. See Colum Lynch & Christine Haughney, Jury Rejects Death for Embassy Bomber, WASH. POST, June 13, 2001, at A1; Benjamin Weiser, Another Convicted Terrorist Is Spared Death Penalty in Bombings, N.Y. TIMES, July 11, 2001, at A17.
93. [Editor's Note: 494 U.S. 259 (1990).]
94. [Editor's Note: United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974).]
95. Harbury v. Deutch, 233 F.3d 596, 602-04 (D.C. Cir. 2000) (citations omitted).
96. 339 U.S. 763 (1950), cited in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).
97. Harbury v. Deutch, 233 F.3d at 604.
98. Agreement on the Establishment of a Free Trade Area, U.S.-Jordan, Oct. 24, 2000, at 〈http://www.ustr.gov〉 [hereinafter Agreement].
99. See USTR Press Release on U.S. and Jordan Sign Historic Free Trade Agreement (Oct. 24, 2000), at 〈http:// www.ustr.gov〉.
100. Agreement, supra note 1, Arts. 2-4; see also Memorandum of Understanding on Issues Related to the Protection of Intellectual Property Rights Under the Agreement on the Establishment of a Free Trade Area, U.S.-Jordan, Oct. 24, 2000, at 〈http://www.ustr.gov〉.
101. Trade between the United States and Jordan totaled only about $287 million in 1999, an amount of trade that the United States and Mexico exceed on a daily basis. See USTR Press Release, supra note 2; Joseph Kahn, Dual Purpose of a U.S.-Jordan Trade Pact, N.Y. TIMES, Oct. 20, 2000, at A14.
102. The U.S.-Jordan bilateral investment treaty, along with nine other bilateral investment treaties (with Azerbaijan, Bahrain, Bolivia, Croatia, El Salvador, Honduras, Lithuania, Mozambique, and Uzbekistan), was approved by the U.S. Senate on October 18, 2000. See 146 CONG. REC. S10,658-67 (daily ed. Oct. 18, 2000).
103. Agreement, supra note 1, Art. 5.
104. Id.
105. Id., Art. 7.
106. Id., Art. 17; see also Memorandum of Understanding on Transparency in Dispute Settlement Under the Agreement on the Establishment of a Free Trade Area, U.S.-Jordan, Oct. 24, 2000, at 〈http://www.ustr.gov〉.
107. See H.R. 2603, 107th Cong. (2001); S. 643, 107th Cong. (2001).
108. Exec. Order No. 13,141, §1, 64 Fed. Reg. 63,169 (Nov. 16, 1999). For a detailed analysis of the executive order, see James Salzman, Executive Order 13,141 and the Environmental Review of Trade Agreements, 95 AJIL 366 (2001).
109. Exec. Order No. 13,141, supra note 1, §4.
110. Id.
111. Id. §5.
112. Guidelines for the Implementation of Executive Order 13141, Council on Environmental Quality and the United States Trade Representative, 65 Fed. Reg. 79,442, 79,444 (Dec. 13, 2000) [hereinafter Guidelines].
113. Id.
114. Id. at 79,444-45. Appendix D to the guidelines provides details on the structure and content of the environmental review documents.
115. The membership of the committee is set forth in Appendix A to the guidelines.
116. Details of the format for public notification and participation are set forth in Appendix B to the guidelines.
117. Appendix C to the guidelines provides an illustrative list of potential environmental impacts.
118. Guidelines, supra note 5, at 79,446.
119. For information on the summits, as well as for associated documents, see 〈http://www.summit-americas.org/〉.
120. The nine groups focus on agriculture; competition policy; dispute settlement; government procurement; intellectual property rights; investment; market access; services; and subsidies, antidumping, and countervailing duties. For information on the Free Trade Area of the Americas, including the draft agreement, see 〈http:// www.ftaa-alca.org/alca_e.asp〉.
121. Summit of the Americas, 2001, Plan of Action (Apr. 22, 2001), at 〈http://www.americascanada.org/eventsummit/ declarations/plan-e.pdf〉; see Anthony DePalma, Talks Tie Trade in the Americas to Democracy, N.Y. TIMES, Apr. 23, 2001, at A1.
122. Summit of the Americas, 2001, Plan of Action (Apr. 22, 2001), at 〈http://www.americascanada.org/eventsummit/ declarations/plan-e.pdf〉; see Anthony DePalma, Talks Tie Trade in the Americas to Democracy, N.Y. TIMES, Apr. 23, 2001, at A1.
123. Summit of the Americas, 2001, Final Declarations (Apr. 22, 2001) (endnote omitted), at 〈http:// www.americascanada.org/eventsummit/declarations declara-e.asp〉.
124. Dec 10, 1997, 37 ILM 22 (1998); see Clare Breidenich, Daniel Magraw, Anne Rowley, & James W. Rubin, The Kyoto Protocol to the United Nations Framework Convention on Climate Change, 92 AJIL 315 (1998).
125. May 9, 1992, 31 ILM 849 (1992).
126. See [UN Framework Convention on Climate Change] Kyoto Protocol: Status of Ratification, at 〈http:// www.unfccc.de/resource/kpstats.pdf〉 (visited July 20, 2001).
127. See William Drozdiak, Global Warming Talks Collapse, WASH. POST, Nov. 26, 2000, at A1.
128. Id.; Andrew C. Revkin, Treaty Talks Fail to Find Consensus in Global Warming, N.Y. TIMES, Nov. 26, 2000, §1, at 1.
129. U.S. Dep't of State Press Release on Frank E. Loy, Under Secretary of State for Global Affairs and Head of the U.S. Delegation, Statement to the Sixth Session of the Conference of the Parties to the UN Framework Convention on Climate Change (COP 6) (Nov. 25, 2000), at 〈http://www.state.gov/www/policy_remarks/2000/ 001125_loy_cop6.html〉.
130. See Report of the Conference of the Parties on the First Part of Its Sixth Session, paras. 116, 122, UN Doc. FCCC/CP/2000Add.1 (2001).
131. Bush Campaign Press Release on "A Comprehensive National Energy Policy" (Sept. 29, 2000) (on file at GWU).
132. See Douglas Jehl & Andrew C. Revkin, Bush, in Reversal, Won't Seek Cut in Emissions of Carbon Dioxide, N.Y. TIMES, Mar. 14, 2001, at A1.
133. See Amy Goldstein & Eric Pianin, Hill Pressure Fueled Bush's Emissions Shift, WASH. POST, Mar. 15, 2001, at A1.
134. See Eric Pianin, Whitman Has Some Industries Worried, WASH. POST, Mar. 2, 2001, at A13; Eric Pianin & Amy Goldstein, Bush Drops a Call for Emissions Cuts, WASH. POST, Mar. 14, 2001, at A1. In May 2001, the White House requested a scientific study from the National Academy of Sciences (NAS) on whether global warming was a serious problem. On June 6, an NAS panel reaffirmed the mainstream scientific view that the global atmosphere was warming due to human activity. See Katharine Q. Seelye, Panel Tells Bush Global Warming Is Getting Worse, N.Y. TIMES, June 7, 2001, at A1. Nevertheless, President Bush maintained his opposition to the Kyoto Protocol. See David E. Sanger, Bush Will Continue to Oppose Kyoto Pact on Global Warming, N.Y. TIMES, June 12, 2001, at A1.
135. See Eric Pianin, Whitman Has Some Industries Worried, WASH. POST, Mar. 2, 2001, at A13; Eric Pianin & Amy Goldstein, Bush Drops a Call for Emissions Cuts, WASH. POST, Mar. 14, 2001, at A1. In May 2001, the White House requested a scientific study from the National Academy of Sciences (NAS) on whether global warming was a serious problem. On June 6, an NAS panel reaffirmed the mainstream scientific view that the global atmosphere was warming due to human activity. See Katharine Q. Seelye, Panel Tells Bush Global Warming Is Getting Worse, N.Y. TIMES, June 7, 2001, at A1. Nevertheless, President Bush maintained his opposition to the Kyoto Protocol. See David E. Sanger, Bush Will Continue to Oppose Kyoto Pact on Global Warming, N.Y. TIMES, June 12, 2001, at A1.
136. See Eric Pianin, Whitman Has Some Industries Worried, WASH. POST, Mar. 2, 2001, at A13; Eric Pianin & Amy Goldstein, Bush Drops a Call for Emissions Cuts, WASH. POST, Mar. 14, 2001, at A1. In May 2001, the White House requested a scientific study from the National Academy of Sciences (NAS) on whether global warming was a serious problem. On June 6, an NAS panel reaffirmed the mainstream scientific view that the global atmosphere was warming due to human activity. See Katharine Q. Seelye, Panel Tells Bush Global Warming Is Getting Worse, N.Y. TIMES, June 7, 2001, at A1. Nevertheless, President Bush maintained his opposition to the Kyoto Protocol. See David E. Sanger, Bush Will Continue to Oppose Kyoto Pact on Global Warming, N.Y. TIMES, June 12, 2001, at A1.
137. See Eric Pianin, Whitman Has Some Industries Worried, WASH. POST, Mar. 2, 2001, at A13; Eric Pianin & Amy Goldstein, Bush Drops a Call for Emissions Cuts, WASH. POST, Mar. 14, 2001, at A1. In May 2001, the White House requested a scientific study from the National Academy of Sciences (NAS) on whether global warming was a serious problem. On June 6, an NAS panel reaffirmed the mainstream scientific view that the global atmosphere was warming due to human activity. See Katharine Q. Seelye, Panel Tells Bush Global Warming Is Getting Worse, N.Y. TIMES, June 7, 2001, at A1. Nevertheless, President Bush maintained his opposition to the Kyoto Protocol. See David E. Sanger, Bush Will Continue to Oppose Kyoto Pact on Global Warming, N.Y. TIMES, June 12, 2001, at A1.
138. See Eric Pianin, U.S. Aims to Pull Out of Warming Treaty, WASH. POST, Mar. 28, 2001, at A1; William Drozdiak & Eric Pianin, U.S. Angers Allies over Climate Pact, WASH. POST, Mar. 29, 2001, at A1. A European Union delegation dispatched to Washington to obtain reconsideration of the decision was unsuccessful. See Eric Pianin, U.S. Rebuffs Europeans Urging Change of Mind on Kyoto Treaty, WASH. POST, Apr. 4, 2001, at A6.
139. See Eric Pianin, U.S. Aims to Pull Out of Warming Treaty, WASH. POST, Mar. 28, 2001, at A1; William Drozdiak & Eric Pianin, U.S. Angers Allies over Climate Pact, WASH. POST, Mar. 29, 2001, at A1. A European Union delegation dispatched to Washington to obtain reconsideration of the decision was unsuccessful. See Eric Pianin, U.S. Rebuffs Europeans Urging Change of Mind on Kyoto Treaty, WASH. POST, Apr. 4, 2001, at A6.
140. See Eric Pianin, U.S. Aims to Pull Out of Warming Treaty, WASH. POST, Mar. 28, 2001, at A1; William Drozdiak & Eric Pianin, U.S. Angers Allies over Climate Pact, WASH. POST, Mar. 29, 2001, at A1. A European Union delegation dispatched to Washington to obtain reconsideration of the decision was unsuccessful. See Eric Pianin, U.S. Rebuffs Europeans Urging Change of Mind on Kyoto Treaty, WASH. POST, Apr. 4, 2001, at A6.
141. See Andrew C. Revkin, 178 Nations Reach a Climate Accord; U.S. Only Looks On, N.Y. TIMES, July 24, 2001, at A1. For a brief analysis of the compromise agreement, see World Wildlife Fund Press Release on Analysis of the Bonn Political Agreement on the Kyoto Protocol (July 27, 2001), at 〈http://www.panda.org/climate/final_deal.doc〉.
142. Paula J. Dobriansky, Under Secretary of State for Global Affairs, Remarks to Resumed Sixth Conference of Parties (COP-6) to the UN Framework Convention on Climate Change (July 23, 2001), at 〈http://www.state.gov/ g/oes/climate/index.cfm?docid=4191〉.
143. Nov. 14, 1979, 823 UNTS 231, 10 ILM 289 (1971). Shortcomings in the UNESCO Convention led to the development by the International Institute for the Unification of Private Law (UNIDROIT) of the Convention on Stolen or Illegally Exported Cultural Objects, June 24, 1995, 34 ILM 1330 (1995). Although the UNIDROIT Convention entered into force in 1998, few states have ratified it.
144. The United States may enter into such agreements pursuant to 19 U.S.C. §2602 (1994). For information on these agreements and protections accorded even in the absence of such agreements, see 〈http:// exchanges.state.gov/education/culprop/〉.
145. Agreement Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy, U.S.-Italy, Jan. 19, 2001 (on file at GWU).
146. 66 Fed. Reg. 7399 (2001).
147. See Guy Gugliotta, U.S., Italy Act to Halt Pillage of Antiquities, WASH. POST, Jan. 20, 2001, at A22.
148. Apr. 24, 1963 21 UST 77, 596 UNTS 261. The Court's jurisdiction is based upon the Convention's Optional Protocol, to which both the United States and Germany are parties. See Optional Protocol to the Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 UST 325, 596 UNTS 487. For background on this case, including the Court's decision on interim measures of protection, see Sean D. Murphy, Contemporary Practice of the United States, 93 AJIL 644 (1999), and William J. Aceves, Case Report: Case Concerning the Vienna Convention on Consular Relations (Federal Republic of Germany v. United States) [LaGrand case], 93 AJIL 924 (1999).
149. LaGrand (Ger. v. U.S.), Provisional Measures, 1999 ICJ PLEADINGS (Mar. 3, 1999), reprinted in 38 ILM 308 (1999). The documents cited on LaGrand are available online at 〈http://wwv.icj-cij.org〉.
150. Verbatim Record, LaGrand (Ger. v. U.S.), ICJ Doc. CR 2000/30 (Nov. 16, 2000).