Christopher C. Joyner
International law is the body of customs, principles, and rules recognized as effectively binding legal obligations by sovereign states and other international actors. International law stems from three main sources: treaties and international conventions, customs and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the lawmaking process of the international community. Resolutions of international organizations, the United Nations in particular, may also affect the growth of the so-called customary international law that is synonymous with general principles of international law. The present system of international legal rules is based on the premise of state sovereignty. It is within the discretion of each state to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international agency such as the United Nations is free to ratify any convention adopted by that agency.
American history confirms that the functions of international law and U.S. foreign policy are inextricably intertwined. The rules of modern international law are in great part products of negotiations in which U.S. diplomats played important roles, and U.S. foreign policy is in great part dependent on the rules of international law for its operation. The willingness of the U.S. government to employ international law as an instrument of foreign policy arises from the historical experience that shapes the political attitudes of the American people. Its vast size and abundant natural resources allowed the United States to grow into an economic power that rivaled its European peers. The United States was permitted to develop internally, in large measure without external distractions. Throughout the first half of the twentieth century, save for the interruption of World War I, the United States remained mainly on the sidelines, contributing little to expanding or modernizing the rules of international inter-course. After World War II, however, the United States emerged as a global superpower. Coincident with this newfound responsibility, and with the onset of Cold War rivalry with the Soviet Union, the United States asserted greater prominence in shaping the direction of international law—a role that became more salient over time.
To appreciate how international legal rules function in the making and performance of U.S. foreign policy, it must be understood that both tangible and intangible factors impose constraints on policymakers. The essence of these constraints lies within the nature of the international system.
CONSTRAINTS ON U.S. FOREIGN POLICY
The international system imposes structural constraints on the ability of American decision makers to create legal rules favorable to U.S. national interests. The enduring feature of the international system is its decentralization. There are no central institutions to legislate standards or to ensure their enforcement. Nor does a common political culture exist in which to anchor an agreed-upon body of norms for governing the behavior of states. The upshot for U.S. foreign policy is a highly competitive international system in which there is constant expectation of violence and conflict and little expectation that either international law or appeals to normative principles will significantly influence the resolution of contentious issues.
A decentralized international system does not mean that U.S. foreign policy operates in a legal vacuum or under conditions of global anarchy. While there is no world government, and universally enforceable laws and common values are lacking, rules affecting the conduct of U.S. foreign policy do matter, and such rules lend greater predictability and more certainty to international transactions. These legal rules indicate the limits of permissible behavior, the norms for interstate conduct, and the ways and means of settling disputes. To the extent that the U.S. government subscribes to these legal rules, it becomes obligated to perform certain duties to those ends. That is, the United States as a sovereign, independent state is affected by legal principles contained in fundamental legal constructs. For its foreign policy to function the United States must be diplomatically recognized by other governments. In its foreign affairs, the government must accept and exercise certain rights and duties under international law, which are motivated by pragmatism and reciprocity. These rights and duties ensure that governments can deal with one another in a systematic, orderly fashion. The United States has the rights, inter alia, to recognize other states and to secure its national territorial integrity, sovereignty, and independence, by forcible self-defense if necessary. The United States also has corresponding obligations, key among which are not to intervene militarily into the affairs of other states, not to pollute the air, water, or land such that it causes trans-boundary harm, and to abide by international agreements made with other states or international actors. Although constrained by the world system, the United States is able to perform critical legal functions that ensure its survival as a legal entity in interstate relations.
A second structural constraint flows from the fact that the world system is a self-help system. The United States, like all governments, ultimately relies upon itself to accomplish foreign policy objectives. To do otherwise risks being manipulated by other governments. Similarly, the self-help principle impresses upon U.S. officials the need to bring policy goals and national resources into balance. International law strives to facilitate that. The pursuit of excessive goals, without adequate resources to attain them, can enervate a government and diminish its ability to respond effectively to future challenges. For the United States the tragedy of the Vietnam War remains a constant reminder of that truth.
A third structural constraint rests in the hierarchical character of the international system. The equality of states implicit in the legal principle of sovereignty is a political fiction. The notion of sovereignty dates back to the Treaty of Westphalia in 1648 and the origins of modern states. As a political construct, the sovereignty principle affirms that no legal authority exists above the state except that which the government voluntarily accepts. The reality of twenty-first-century international relations is markedly different. Sovereignty remains more a matter of degree than an absolute condition. States are inherently unequal, and the resources they use to exercise power in their international dealings are distributed unequally around the world. As the lone super-power state in the early twenty-first century, the United States has access to more resources, possesses greater capabilities, and can exercise greater power than any other state. In this context international law defines permissible ways and means that the U.S. government may employ those resources and capabilities in its foreign relations.
Despite systemic constraints, an international society does exist. International legal rules do affect the structure of that society—its institutions, actors, and procedures for transnational activity; the assumptions on which the society was founded; the status, rights, responsibilities, and obligations of states within this society; and the various relations between those states. Through its foreign policy the United States maintains, establishes, changes, and terminates relationships with other international actors—all through international legal means. Although international law may be primitive, the United States employs it to formalize, regulate, and regularize interstate relationships. For the United States most of the time, its foreign policy is constructed in a way that preserves international order, so that government policymakers might pursue the best perceived course for U.S. national interests, both foreign and domestic. Such international order depends on a framework of agreed presumptions, customs, commitments, expectations, and sanctions that all states, including the United States, accept to regulate international society. International law furnishes the rules for relations between states, sets standards for the conduct of governments within this international system, and facilitates establishment of multilateral institutions toward these ends. In these regards the United States has become the chief state architect and purveyor of international legal rules in the twenty-first century.
LAW AND U.S. FOREIGN POLICY APPROACHES
Public attitudes in the United States toward the utility of international law have shifted with its government's perceptions of how the United States best fits into the world scene. At the same time, government officials do not agree to international legal rules in a political void—domestic political considerations and national interests figure prominently, and often preeminently, in negotiating legal instruments. Historically, the propensity of U.S. government officials for creating legal rules was caught in the tension between two opposing policy approaches—isolationism and internationalism. Up until 1940 these approaches were more or less cyclical throughout American history. Since then the East-West ideological rivalry of the Cold War, escalating international economic interdependence, and ever-increasing technological globalization have combined to render the internationalist approach politically, commercially, and legally imperative for the United States.
Isolationism reflects the belief that the United States should avoid getting involved in the political affairs of other states. This rejection of foreign political involvement was not meant to imply that the United States should ignore the rest of the world. Indeed, diplomatic and commercial contacts were critical for the United States as it developed throughout the nineteenth and early twentieth centuries. In these respects, international legal rules and multilateral instruments assumed cardinal importance in rendering American foreign policy practical and effective. Instead, from the isolationist perspective, American national interests are best served by withdrawing from the rest of the world, or at least remaining detached from events elsewhere. In this regard, international legal rules play only a minimal role. Less international involvement abroad results in less interest in world affairs and fosters the perception that the United States has little need to be bound by international law.
Isolationism draws its inspiration from George Washington's Farewell Address of 1796, in which he admonished Americans to "steer clear of permanent alliance with any portion of the foreign world." This tendency to avoid foreign involvement was fueled by the fact that, save for the War of 1812, the United States was never physically endangered by foreign military attack, and a sense of physical security from the threat of foreign intervention prevailed. Later, the horrors of the Civil War fostered a less militaristic attitude within the American political culture. When combined, these attitudes contributed to the isolationist impulse and a relative indifference to international legal concerns. Among the major isolationist foreign policy decisions that heavily impacted on principles of international law are the Monroe Doctrine (1823), the refusal to join the League of Nations (by the U.S. Senate's rejection of the Treaty of Versailles in 1919), the neutrality laws of the 1930s, and the legacy of the Vietnam syndrome, that is, the reluctance to commit American troops abroad.
The internationalist perspective sees the protection and promotion of U.S. national interests through pursuit of a legally based, activist, global foreign policy. Internationalists argue that the United States cannot escape the world. Events in other places inevitably encroach upon U.S. interests, and policy rooted in the retreat from global involvement is self-defeating. Thus, the United States has a stake in the general nature of the international system, and its government must be willing to become actively involved in world affairs on a regular basis. To bolster this contention, internationalists point to the Great Depression of the 1930s, the rise of Hitler in Europe, the outbreak of World War II, and the expansion of communism in the war's aftermath. Hence, the United States must be involved in world affairs. To this end, international law provides proven conduits for integrating U.S. national interests into constructive foreign policy opportunities. American national interests are best served by remaining active internationally and by negotiating legal rules that promote foreign policy goals as they foster international order. Evidence that internationalism best serves U.S. national interests is seen in the preeminent place of the United States since 1945 in establishing the United Nations, the North Atlantic Treaty Organization (NATO), and many other international organizations; in promoting the Marshall Plan and the Helsinki Human Rights Agreement; in U.S. involvement in armed conflicts in Korea, Vietnam, the Persian Gulf, Bosnia, and Kosovo; and in vigorous support of a massive expansion of U.S. international trade relations. In all of these areas, the ways in which the United States employed international legal rules proved critical for implementing its foreign policy in ways acceptable to international society.
The war in Vietnam frayed American confidence about internationalism in general and the containment doctrine in particular. The tremendous human, financial, and political costs traumatized the American people, gave rise to a domestic antiwar movement, and undermined the faith of Americans in their government. More than 58,000 American lives were lost, and four million Vietnamese on both sides were killed or injured. Over eleven years the war cost the United States approximately $150 billion to fight and lose. Consequently, since 1975 American attitudes have been ambivalent toward activist internationalism. On the one hand, the realization persists that as the world's only superpower, the United States retains a special responsibility for maintaining international peace and security. But, on the other hand, the American people are profoundly reluctant to support long-term commitments of American blood and treasure abroad to defend other states, especially those with little strategic value to the United States. American government officials therefore are wary about sending U.S. forces abroad and have done so only in selected cases. They are fully aware that a high political price can be incurred for American soldiers coming home in body bags—namely, defeat in the next general election.
Isolationism and internationalism have both shaped the course of American foreign policy and determined the relative degree of importance that international law has assumed in policy formulation. Both approaches are joined in the conviction that international law should be used to serve and protect the institutions and ideals of the American experience. The approaches differ, however, on how to achieve these national ambitions. Isolationism aims to insulate the American experience from the corruption of foreign influences and protect U.S. sovereignty from burdensome international commitments. The isolationist approach attributes little utility to international law, except insofar as it segregates the United States from extraterritorial commitments and facilitates the government's foreign relations to secure needed resources and sustain trade relations. Conversely, internationalism works to attain U.S. policy goals by promoting a more stable global environment for the United States, which opens the door to foreign opportunities to fulfill American political, economic, and legal interests. To these internationalist ends, international law assumes a more fundamental, more comprehensive place in U.S. foreign policy. International legal rules become channels for closer, more regularized international contact as well as regulatory standards that encourage such cooperation. Regardless of the approach taken, consideration of and regard for international legal rules remain important in the process and formulation of American foreign policy.
AMERICAN POLITICAL CULTURE
American political culture determines how individual policymakers regard the place and authority of international law in U.S. foreign policy. Political culture, which embraces fundamental attitudes and practices of American society, draws from two main sources. One is historical experience. Americans are products of their past. The second is the national belief system, that is, the ideas and ideologies held by the American people. The relevance and status of international law in the making of U.S. foreign policy derive from the American people's self-image, their norms and values, and the ways in which American political culture influences their perceptions of international relations. This national outlook, which might be called the American ideology, inculcates an American style in world affairs and helps to explain why and how international legal rules are integrated into U.S. foreign policy actions.
Understanding the sets of beliefs that comprise the American ideology is critical for appreciating why, where, and how much legal considerations figure into the process and patterns of American foreign policymaking. This national ideology emanates from four sets of core American self-perceptions and values, namely, the predispositions toward exceptionalism, legalism, liberalism, and pragmatism. When evaluating how these elements of American political culture affect policymakers, one must remember that each element influences personal attitudes, though in various ways and to differing degrees. A person's attitudes toward some international event can invite struggle over the priority between these elements and engender conflicted feelings over which policy appears most appropriate for U.S. interests. Similarly, a person's strength of convictions toward these elements can change over time, relative to perceptions, circumstances, and particular events.
A principal set of core elements in the American ideology that affects feelings about international law's role in U.S. foreign policy originates from a sense of exceptionalism, often expressed as self-virtuosity. That is, Americans seem to be self-confident to the degree that they and their political culture are admired and thought special by the rest of the world. To early Americans the New World was a gift from God, which settlers transformed out of wilderness into the most prosperous and advanced society in history. Traditional perceptions of history reinforce this conclusion: Americans conquered native, "uncivilized" peoples, survived a brutal civil war, moved westward and secured the continent, established a country founded on private, free-enterprise capitalism and democratic principles, rescued Europe from the evils of nazism in World War II, and saved the world from communist domination in the four decades thereafter. In the American mind, these profound accomplishments make the United States the envy of the world and correspondingly reinforce the sense of being uniquely special. Americans thus are prone to view the United States as having evolved into an exceptional country that is not merely different from, but actually superior to, all other states.
Exceptionalists admit that the United States has a certain moral responsibility for the fate of people living in other countries. As such, they advocate international activism and interventionism in a wide variety of global situations. They do not concede to any clear, universally accepted international code of foreign policy behavior. Their chief belief is that the United States should advance principally American values in its foreign policy.
Belief in American exceptionalism has sometimes bred U.S. unilateralism in foreign affairs. That is, integral to Americans' belief that their country's experience has produced the best social and political order in history is the predilection of the United States to act alone in addressing foreign concerns. This go-it-alone tendency in U.S. foreign policy represents the rejection of a balance-of-power approach for promoting national security in international relations. Given the geography and natural assets of the United States, national security was once largely assumed, making efforts at multilateral collaboration unnecessary. After World War II, the rise of the United States to superpower status exaggerated its self-perceived virtuosity in world affairs, which generated more acts of unilateralism in its foreign relations and international law attitudes.
Another facet of American self-virtuosity arises in the tendency to engage in messianism abroad. American foreign policy sometimes takes up crusadelike causes for ends that are perceived as just and noble. U.S. policymakers conclude that they must bring the benefits of American ideals and institutions to other, less fortunate, peoples. Such feelings blend the traits of the American self-image of political, moral, and ideological superiority to produce within the American political culture a tendency to engage in messianic campaigns. There emerges a missionary-like compulsion in U.S. foreign policy ambitions to recreate the world in the American image, to establish models of governance grounded in American values and democratic institutions, by force if necessary. Such attitudes can foster a sense of paternalism. More ominously, they breed resentment from other societies who see the United States as attempting to impose its cultural values and political lifestyle upon them. In the extreme, such a doctrine of internationalized manifest destiny can become the political rationalization for unlawful U.S. intervention. Witness, during the second half of the twentieth century, U.S. involvement in Iran (1953), Guatemala (1954), Cuba (1961), the Dominican Republic (1965), Chile (1973), Nicaragua (1981–1984), Grenada (1983), Panama (1989), and Serbia (Kosovo) (2000).
The clearest historical statement of American unilateralism remains the Monroe Doctrine in 1823. This declaration by President James Monroe came in reaction to U.S. concern over the possibility of European interference into affairs of newly independent Latin American countries. The doctrine proclaimed that the United States would not tolerate European intervention into the Western Hemisphere, and, in return, the United States pledged not to interfere in European affairs. The Roosevelt Corollary, articulated by President Theodore Roosevelt in his annual message to Congress on 6 December 1904, expanded the scope of the doctrine by making the United States the self-appointed policeman of the Western Hemisphere, thereby providing a unilateral justification for increased intervention into the affairs of Latin American countries.
Important to realize is that neither the Monroe Doctrine nor its Roosevelt Corollary drew validity from any U.S. legislative pronouncement, nor from any international treaty instrument. Nor was the reach of jurisdiction or application of either doctrine ever precisely defined by specific law or fiat. Indeed, both doctrines were applied historically on an ad hoc basis, in circumstances defined only by perceptions of U.S. policymakers, to explain the rationale for interventionist actions. From 1850 to 1935, both doctrines were held out as pillars of U.S. foreign policy and were invoked periodically to justify unilateral interventions taken in the name of defending the Americas from European intrusions. For example, in the first three decades of the twentieth century, the United States intervened militarily on some sixty occasions in several small Caribbean and Central American states. In all these cases, little diplomatic consideration or formal concern was expressed by the U.S. government about the international legal implications of these interventions or the critical attitudes of other states.
Although largely repudiated with the rise of Pan Americanism during the administration of President Franklin Roosevelt during the 1930s, the legacy of the Monroe Doctrine persisted in modern times. Involvement of the Central Intelligence Agency in overthrowing the Arbenz government in Guatemala in 1954 and the Allende government in Chile in 1973, U.S. complicity in the 1961 Bay of Pigs invasion and in blockading Cuba during the missile crisis in 1962, the 1965 invasion of the Dominican Republic, the 1983 invasion of Grenada, and the 1989 invasion of Panama attest to the continued influence of U.S. unilateralist behavior in the Western Hemisphere.
Legalism—the tendency to profess legal grounds for U.S. foreign policies—is a second core belief underpinning the American ideology. The inclination to embrace legalism springs from rejection of the balance-of-power approach as the means for preserving U.S. national security and from the liberal assumptions that people are rational human beings who loathe war and prefer the peaceful settlement of disputes. In modern times U.S. foreign policy clearly contributed to the creation of a global system of institutions and legal rules that allow states to settle their disputes without resource to use of force. This legalism perspective is well embodied in active U.S. participation in international rule-making and in the multitude of contemporary international institutions that the United States has joined and in great part has been responsible for establishing. Paramount among these is the United Nations, which was envisaged through the political initiative of the United States at Dumbarton Oaks in 1944 and San Francisco in 1945. The United States was also the main architect for designing and negotiating the International Bank for Reconstruction and Development (the World Bank) and the International Monetary Fund to reconstruct the post–World War II international economic order. From 1987 to 1994 the United States assumed the leading role in negotiating the World Trade Organization, which effectively rewrote the 1947 General Agreement on Tariffs and Trade in an effort to provide legal rules, inclusive of mandatory dispute settlement, for international commercial transactions. At the end of the twentieth century the United States assumed an intensely active internationalist role as it participated in more than one thousand intergovernmental organizations, most of which were conceived through U.S. political initiatives and were sustained with substantial U.S. financial support. In this regard it is critical to appreciate that nearly all of these international organizations were empowered to negotiate and create new legal rules, both for internal administration and as international regulations. As a global superpower with worldwide interests, the United States remained intimately involved in that norm-creating process through these global institutions.
For the United States, the rule-making facet of legalism rests in the critical legal principle of a government pledging its willingness to abide by international agreements to which it has voluntarily committed itself. This legal principle, known as pacta sunt servanda and drawn from the domestic practice of contract law, asserts that treaties made in good faith between governments are binding. While no meaningful police or judicial mechanisms are available to enforce international agreements, state practice clearly indicates that all governments, including the United States, overwhelmingly abide by their treaty obligations for two fundamental reasons: first, it is in their national interests to do so; second, abrogation of treaty commitments absent legitimate justification deprives a government of its political and legal credibility with the rest of the international community. The United States, like all states, honors its treaty obligations principally because those rules benefit American foreign policy interests. To spotlight this point, in 2001 the United States was party to more than five thousand international agreements, of which more than five hundred were prominent multilateral conventions. If treaty-based legal rules were nugatory for U.S. foreign policy, why pursue the painstaking political effort to negotiate, ratify, and consolidate such an impressive array of international instruments into legally binding obligations? The answer is plain: international legal agreements are not worthless. These rule-making documents well serve U.S. national interests, and upholding their obligations provides the United States with greater constructive opportunities and legal latitude in its relations with other states.
Legalism places heavy burdens on U.S. foreign policy, especially when considerations are given to the use of military force internationally. By rejecting the power-politics approach, policy-makers cannot assert national security self-interests as the only justification for engaging in armed conflict abroad. Instead, U.S. foreign policy actions may be dressed in legal principles to explain the bases for those decisions. Several examples demonstrate this pronounced tendency to justify the grounds for military action in legal terms, including resort to using the United Nations as an umbrella of legitimacy to prosecute the Korean War in 1950 and the Gulf War in 1991, citing a request by the Organization of Eastern Caribbean States as partial legal justification for the 1983 invasion of Grenada, and use of NATO to sanction the lawfulness of U.S. action in Bosnia in 1994–1995 and in Kosovo in 2000.
The American resort to legalism contains a proclivity toward moralism. Moralistic assertions may be used to explain how international legal rules and institutions are integrated into U.S. foreign policy outcomes. This American sense of morality in its international relations rests on two presumptions. First, the belief persists that the conduct of states can be judged by moral standards. Second, there is the assumption that American morality supplies the universal standard for making those judgments. By definition, American foreign policy actions are presumed morally right and legally justifiable. Thus, when flawed policy initiatives occur, they are not attributed to "American" values that guide the policy action. Rather, such fallacies are rationalized as resulting from leadership deficiencies, information failures, bureaucratic miscommunications, or organizational lapses.
Americans often justify political goals and foreign policy actions in moral terms and evaluate outcomes of events through a prism of moralistic values. This occurs when the government seeks to explain to the American public why foreign assistance for some state might be necessary. Numerous examples of such cases can be found during the Cold War, as the United States often asserted moral principles to justify aid to prodemocratic governments aimed at suppressing communist insurgencies in Greece in 1947, Lebanon in 1958, the Dominican Republic in 1965, El Salvador in 1981–1984, and Grenada in 1983. One might also add the decision to send military and food aid during the widespread famine in Somalia in late 1992. U.S. participation in massive refugee relief efforts similarly rests on pillars of moral values, well illustrated in the tragedies that gripped Bosnia (1992–1994), Burundi (1993), Rwanda (1994), and Kosovo (2000).
Idealism, or the vision that advocates that international peace is desirable and possible, also remains salient as a theme in American legalism. American idealists believe that violence and conflict represent human failures that can be overcome through education. Idealists find clear, accepted moral values in international agreements such as the United Nations Charter and the Universal Declaration of Human Rights. They are closely aware of moral claims by other governments and tend to advocate greater access for peoples in other countries to civil rights and liberties, health care, housing, and education. Idealists emphasize the importance of applying the principle of self-determination in U.S. foreign policy to peoples abroad and are more likely to advocate multilateral than unilateral action in world affairs. The integration of idealism with legalism's proclivity for establishing institutional structures served as the catalyst for the United States—through President Woodrow Wilson—to assume the leading role in establishing the League of Nations in 1919 and for supporting the United Nations in 1945. Idealism also fostered the rapid promotion and acceptability of human rights law in U.S. foreign policy programs and treaty commitments.
U.S. foreign policy at times assumes an approach of idealistic legalism to seek means of attaining international peace and cooperation. Such ambitions are seen in the nation's leadership in several disarmament conferences throughout the twentieth century, among them the Hague Peace Conferences of 1899 and 1907, Washington Naval Conference of 1922, Geneva Conference of 1922, London Conferences of 1930 and 1935, and Kellogg-Briand Pact of 1928, in which sixty-two contracting parties, including the United States, renounced the use of war as an instrument of national policy.
Idealism furnishes the bedrock of international humanitarian law, which governs the use of armed force and the treatment of individuals during armed conflict. International humanitarian law is designed to reduce and limit suffering of individuals in war. It thus extends the principles and protections of human rights to the rules governing armed conflict. In substantial part, such international humanitarian law is the product of U.S. foreign policy. In 1907, the Second Hague Peace Conference adopted Hague Convention IV, Respecting the Laws and Customs of War on Land, which remains the core legal statement on the law of land warfare. These regulations originated in the code of principles set out in 1863 by Francis Leiber, a U.S. physician during the American Civil War, to provide Union troops with rules of conduct on the battlefield. In reacting to the horrors of World War I, the United States in 1929 played a pivotal part in drafting two Geneva conventions that codified protections for prisoners of war and ameliorated conditions of sick and wounded soldiers in the field. The experiences of World War II reaffirmed the need to broaden the 1929 accords, and in 1949 in Geneva four major conventions were adopted that codified more comprehensibly legal rules for the protection of victims of war. Although drafted under the aegis of the International Committee of the Red Cross, the United States assumed the lead role in revising and developing these agreements, which dealt with the wounded and sick in the field and at sea, treatment of prisoners of war, and the protection of civilians. The four Geneva conventions of 1949 represent the most important codification of international humanitarian law protecting armed forces and civilian victims of armed conflict. As such they have been ratified by virtually every state in the world.
Idealism also underpins modern international criminal law, the main goal of which is to make accountable persons accused of committing atrocities and gross violations of human rights law. International criminal law descends substantially from American jurisprudential values and U.S. foreign policy initiatives. The trials in 1945 by the International Military Tribunal at Nuremberg, which prosecuted twenty-two German Nazi officials for committing acts of genocide, crimes against humanity, war crimes, and crimes against the peace during World War II, were innovations of and productions by American lawyers. So, too, were the Tokyo War Crimes Trials during 1947–1948 that prosecuted Japanese war leaders and industrialists. In reaction to "ethnic cleansing" in Bosnia during 1992–1993, the United States diplomatically steered the UN Security Council into the May 1993 establishment of the International Criminal Tribunal for the Former Yugoslavia (the Hague Tribunal). With U.S. diplomatic and financial support, this court emerged as a credible institution for investigating, prosecuting, and punishing persons accused of committing genocide, crimes against humanity, and war crimes against persons in the former Yugoslavia (mainly Bosnia). By 2001 the Hague Tribunal had publicly indicted one hundred persons for alleged atrocities, and nineteen had been convicted. Among those in custody and being tried was Slobodan Milosevic, former president of the Republic of Yugoslavia. In 1994 the United States again acted through the UN Security Council to create a special tribunal to try and prosecute persons accused of committing similar offenses in Rwanda. By 2001 the International Criminal Tribunal for Rwanda had indicted at least fifty-five persons, had fifty-one cases in progress, and found eight individuals guilty, including former Prime Minister Jean Kambanda, the first head of state ever convicted of such crimes. The United States also actively participated in the 1998 Rome negotiations that produced the Convention for the International Criminal Court. Ironically, while this instrument was the product of considerable American jurisprudential influence, the U.S. government continued to have strong reservations about the convention text. In particular, American objections centered on the fact that no provision existed for the United States to veto in the Security Council a particular case coming before the court and the possibility that U.S. troops abroad might be made subject to the court's jurisdiction on trumped-up charges.
Idealistic traits in U.S. foreign policy have generated support within the American public for humanitarian military intervention in situations where gross human rights atrocities or flagrant acts of genocide are perpetrated. Led by the Clinton administration, from 24 March to 10 June 1999, NATO conducted an air campaign against the Federal Republic of Yugoslavia. NATO aircraft flew more than 38,000 combat sorties against targets in Kosovo, Serbia, and Montenegro. Geostrategic and Realpolitik concerns clearly motivated the United States to act, especially the belief that ethnic conflict within Kosovo could destabilize the Balkans and inflame tensions between Greece and Turkey. Criticism was leveled at the Clinton administration for sketchy legal rationales proffered to justify NATO's military attacks, which caused severe collateral damage and civilian deaths. Nevertheless, strong evidence suggests that Serbian forces were undertaking a wide range of human rights and humanitarian law violations throughout Kosovo under the guise of "ethnic cleansing." An estimated six to ten thousand Kosovar Albanians were victims of mass murder, and more than 250,000 Kosovars were displaced and forced to flee to Albania, Macedonia, and Montenegro. The Clinton administration contended that a cardinal objective of NATO in its military action was to deter Belgrade from launching an all-out offensive against its own civilians. In this sense, the NATO bombing campaign took on the character of a humanitarian intervention, motivated by both moral and idealistic concerns. Strictly speaking, the lawfulness of U.S.–NATO action remains suspect because it was taken neither in self-defense to a military attack by Serbia nor legitimized by the approval of the UN Security Council. Still, it is reasonable to infer that the U.S.–NATO action may have saved thousands of Kosovar Albanian lives and might be considered an act of anticipatory humanitarian intervention.
A third critical ingredient in American ideology is a belief in the political and economic values associated with liberalism. Dominant as an American political philosophy, liberalism stipulates that the rights of the individual supersede rights of the government, and as such, the individual must be protected by law. Such notions, which are enshrined in the Declaration of Independence and the Constitution's Bill of Rights, proclaim the Lockean notions of protection of individual liberty, private property, and the rule of law.
Belief in principles of liberalism imbues Americans with antagonism toward authoritarian governments that suppress the civil and political rights of their citizens. This can be seen in Woodrow Wilson's principle of self-determination (1919); Jimmy Carter's human rights policy (1976–1980); the Clinton administration's efforts to restore democracy in Haiti and to use military force if necessary to overthrow the military junta (1994); and the anticommunist impulse, especially during the 1950s and 1960s, toward the Soviet Union and Eastern Europe, when communist governments were viewed as enslaving their populations under the control of a police state. Americans believe in individual rights and democratic principles, and the U.S. government often seeks to translate those beliefs into policies abroad.
During the 1990s these beliefs gave rise to the democratic peace theory, a notion of democratic idealism. Liberals argue that democratic states are less likely to wage war against each other, the fundamental proposition in the democratic peace theory. Democracies are more lawabiding and pacific because democratic norms and culture inhibit the leadership from taking actions that might precipitate war. Democratic leaders must listen to multiple voices that tend to restrain decision makers, and citizens of democracies share a certain kinship toward one other. All of these factors work together, the thinking goes, to diminish the possibilities of war. Promoting democracy fosters peace, political stability, and greater cooperation and collaboration in solving problems. Integrating this notion into its foreign policy, the Clinton administration successfully used economic and political incentives to promote democracy in Russia as well as states in Latin America, Eastern Europe, and Asia. By the beginning of the twenty-first century more states than ever before were nominally democracies.
Since revelations of the Holocaust in 1945, the protection of human rights has emerged as a major concern of international law. World attention to human rights has intensified because of television coverage of the horrors of gross violations, increasing efforts of nongovernmental organizations to promote concern for human rights abroad, and growing awareness that human rights violations are a major source of international instability. For the United States, the contemporary realm of human rights law flows directly from both the government's evolving experience in protecting the civil rights and liberties of its citizens and the goal of extending those protections to peoples everywhere. Many human rights norms are modeled after rights, liberties, and protections incorporated into U.S. constitutional law, American jurisprudence, and the national welfare system instituted during the mid-1930s under the administration of Franklin D. Roosevelt. Not surprisingly, the American people tend to support foreign policies that champion and enforce such human rights standards. To codify such standards, U.S. foreign policy has strived to create global human rights law through the adoption of prominent international legal agreements, to which most states have become lawfully obligated. As a consequence, the United States has assumed a leading role in promoting the negotiation and promulgation of human rights instruments. Yet a paradox persists here for U.S. foreign policy and international human rights law. On the one hand, the United States, more than any other government, is responsible for initiating, engineering, and bringing into force most of these agreements. On the other hand, the political concerns of some U.S. government officials that these treaties might be used to interfere into domestic affairs have prompted partisan isolationist impulses that continue to preclude a number of them from being ratified into U.S. law. Even so, the United States can take credit for substantially contributing to the codification of global human rights law and became a contracting party to several core instruments: the 1948 Genocide Convention (132 contracting parties); the 1966 Convention on the Elimination of All Forms of Racial Discrimination (157 contracting parties); the 1966 International Covenant on Civil and Political Rights (147 contracting parties); and the 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (124 contracting parties). Although actively participating in negotiations leading to their promulgation, at the turn of the century the United States remained outside legal obligations associated with a number of other important human rights treaties, including the 1951 Convention Relating to the Status of Refugees (137 contracting parties); the 1966 Covenant on Economic, Social, and Cultural Rights (147 contracting parties); the 1973 Convention on the Prevention and Punishment of the Crime of Apartheid (101 contracting parties); the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (168 contracting parties); and the 1989 Convention on the Rights of the Child (191 contracting parties). Each of these treaties includes specific human rights protections that have generated ideological preferences in the U.S. Senate for isolationism, exceptionalism, and pragmatism—considerations that supersede that of codifying idealism and moralism into legal obligations binding American policy.
Even though democracy and respect for human rights have prominent stature as American political values, the application of such norms to U.S. foreign policy remains inconsistent. Throughout the Cold War years, a state's human rights record had little to do with whether it received foreign aid from the United States, which sought to aid anticommunist governments even if they were oppressive to their own people. Witness, for example, U.S. support for the Somoza regime in Nicaragua, the shah in Iran, the Marcos government in the Philippines, and the white minority government in South Africa even during the Carter administration, the strongest proponent of a U.S. foreign policy grounded in human rights considerations.
There likewise persists among Americans a strong aversion to military intervention into another state's affairs even to install a democratic regime or to protect principles of human rights. Americans appear quick to champion human rights rhetorically, but they abhor taking action to implement or guarantee them for peoples in other states. This penchant is a legacy of the Vietnam War and the manifest disinclination to send troops abroad. American policymakers usually rule out U.S. military intervention undertaken to protect the human rights of peoples elsewhere because of the high political costs that casualties would produce at home for the administration. This socalled Vietnam syndrome explains in large part the readiness of the Clinton administration to quit Somalia abruptly in 1993 and its unwillingness to send U.S. troops to suppress gross genocidal atrocities being perpetrated in Bosnia during 1991–1994, Rwanda in 1994, and Sierra Leone in 1999. In the same vein, the Clinton administration downplayed human rights abuses in the People's Republic of China in favor of consistently supporting renewal of its most-favored-nation trade status, as well as in supporting the admission of China into the World Trade Organization. Clearly the strategic implications for the United States of a secure economic relationship with China overrode moralistic concerns that advocate stronger protection for human rights for its population.
As instilled in the American political culture, liberalism also assumes an economic dimension. This aspect takes the form of laissez-faire capitalism, which, like liberal democracy, concentrates on the free will of the individual. Key values earmarking the U.S. brand of capitalism turn on the profit motive, private property, and the free market as a means of guaranteeing rewards for persons who earn their way. Sustained U.S. commitment to capitalism during the Cold War years worked to define socialism under the former Soviet Union and its communist satellites as dysfunctional and menacing to the world economy. Pursuit of capitalism by the United States also coalesced with American economic and political supremacy after World War II to facilitate its ability to assert the leading role in constructing the postwar world economic order. Critical was the U.S. capacity for proposing and legally assembling core international treaties and institutions, which have continued to regulate international economic relations. Put tersely, the American conviction in the liberal values of capitalism bolsters the U.S. emphasis on international trade and commerce and generates pronounced impacts for the role that international law must perform in U.S. foreign policy.
The United States emerged as the world's economic superpower during the last half of the twentieth century. It did so by realizing that international trade with other states and foreign multinational corporations would be essential to its continued economic well-being and prosperity and by negotiating bilateral treaties of friendship, navigation, and commerce with nearly every state in the international community. In addition, the national economies of states devastated by World War II, especially those of Europe, had to be rebuilt. To this end the United States assumed the lead role as early as 1944 in proposing and negotiating the Bretton Woods agreement, which established a new monetary order and created the International Monetary Fund and the International Bank for Reconstruction and Development (the World Bank) to advance and regulate the world economy. In late 1947 the United States successfully promoted negotiation of the General Agreement on Tariffs and Trade (GATT), which became effective on 1 January 1948. Initially signed by twenty-three countries accounting for four-fifths of world trade, this multilateral trade agreement prescribed fundamental principles to guide international commercial transactions among most states: free, nondiscriminatory trade; unconditional use of the most-favored-nation clause; reciprocity and mutual advantage in trade relations; reduction of tariffs; and elimination of protective barriers. These principles became the cornerstones of U.S. trade goals in the postwar economic order, and by 1993 the GATT had attracted 130 states as contracting parties.
From 1947 to 1993 the United States played the pivotal role in the GATT's multilateral trade conference negotiations (called "rounds"). The 1986–1994 Uruguay Round produced the most ambitious trade liberalization policies yet, and led to creation of the World Trade Organization (WTO), an institution proposed and strongly supported by the United States in its foreign economic policy. On 1 January 1995 the GATT was replaced by the WTO. Charged with monitoring and regulating international commerce, in 2001 the WTO had 142 members, accounting for 90 percent of world trade. The organization serves as a forum for administering trade agreements, conducting negotiations, and settling trade disputes; it also has the power to enforce provisions of the GATT and to assess trade penalties against countries that violate the accord. WTO rules, which cover commerce in goods, trade in services, intellectual property rights, dispute settlement, and trade policy reviews, consist of sixty agreements that run thirty thousand pages in length. While critics might grumble about diminished sovereignty, U.S. foreign policy clearly benefits from the WTO's legal guarantees of nondiscriminatory free trade and the mandatory legal process created for settlement of disputes between member states. From 1995 through 2001 the United States brought fifty-seven complaints to the WTO and had to answer forty-nine complaints by other countries. In cases actually decided by the WTO litigation process, the United States prevailed sixteen times and lost sixteen times. In twenty-seven cases, disputes were resolved to U.S. satisfaction without litigation. Critical to appreciate is that the U.S. government complied with WTO juridical processes and its arbitral panels' rulings, irrespective of the outcome. In these dispute situations, U.S. foreign policy allocates greater import to the rule of law than to pragmatic self-interest or belief in the virtues of America's economic might.
The GATT and the WTO strengthen and make more stable the international trading system that has fostered unprecedented global economic growth since the 1950s. More than any other government, the United States has been the architect of that system. While the lawfulness of its foreign trade policy might be tested at times through multilateral institutions, the United States is willing to accept that price to preserve economic order and support for the liberal principles of international commerce. To this end, U.S. foreign policy-makers cede preference to the long-term benefits of international legalism and liberalism over the costs that would be incurred by national exceptionalism and isolationism.
The regional dimension of U.S. economic policy exists in the North American Free Trade Agreement (NAFTA), which entered into force for the United States, Canada, and Mexico on 1 January 1994. The agreement, which exceeds two thousand pages, established schedules for reducing tariff and nontariff barriers in nearly all of twenty thousand product categories. NAFTA also expanded foreign investment opportunities and other financial transactions among the three states. While many uncertainties persist over the economic impacts of NAFTA, one obvious reality is the much freer flow of goods, services, and investments among the three member countries. Once again, U.S. foreign policy operates through agreed-upon international legal conduits to attain liberal economic goals of freer, nondiscriminatory trade relations with its neighbors. In a world of accelerating globalism and economic interdependence, the creation, implementation, and respect for international economic law becomes increasingly necessary for the United States.
U.S. foreign policy sometimes uses economic instruments as sanctions against other states. Throughout the Cold War, strategic embargoes were levied against trade with communist bloc countries in Eastern Europe as well as the Soviet Union, China, Vietnam, North Korea, and Cambodia. With the end of the Cold War the United States continued to apply its own legislative sanctions against certain states, namely, Cuba, Iran, Iraq, and Libya, and cooperated with the UN Security Council in imposing economic sanctions against a number of other governments. The U.S. economic embargo of Cuba reflected a policy steeped in liberal, ideologically messianic ambitions to install democracy in that country. At the same time, the sanctions stood as a symbol of U.S. unilateralism, driven by forces of self-virtuosity. A number of measures, including the 1996 Helms-Burton Act, applied sanctions against Cuba and foreign companies doing business with the Castro government. These sanctions represented the effort by the United States to link trade relations to the nature of the Cuban government in order to pressure the Cuban people to overthrow Castro in favor of democracy. But this policy was condemned by the UN General Assembly, Organization of American States, Canada, and several European governments. While the goal of turning Cuba into a democracy may have seemed admirable, the means used appeared counterproductive.
The fourth core belief set in the American national ideology is pragmatism, that is, resort to an applied practical approach to foreign policy decisions. It stems from the realization that Americans built a country out of the wilderness, created their own government institutions, and achieved more economic and ideological success than any other people in modern history. American pragmatism thus resembles an engineering approach to foreign policy problem solving. U.S. involvement is often viewed as working to make things politically stable and morally right. The assumption is that right answers do exist for world problems, and the U.S. response contains those right answers. Complications arise in international relations when other governments do not perceive these problems in the same way as the United States. As a consequence, the preferred American approach in seeking solutions for law-related foreign policy issues is to deconstruct the problem, much as an engineer would use a blueprint to break tasks down into sub-problems. A mechanical solution is then devised for each legal component of a problem, while all the time keeping in mind the political implications. It bears mentioning that in this process one runs the risk of losing sight of the problem's larger legal context in order to protect perceived political interests inherent in each sub-problem. When this occurs, the result can be the substitution of means for ends and the tendency to improvise solutions that are unlikely to lead to resolution of the greater problem.
Resort to pragmatism means that legal situations are dealt with on an individual basis, as opposed to long-term planning. Pragmatist policymakers tend to evaluate policies based on whether they solve the problem, rather than on what is legally permissible, ethically required, or even morally acceptable. In this regard, reliance on pragmatism invites U.S. decision makers to assert a strong realist approach in foreign policy. The theory of realism involves application of power politics to international relations. Realists are generally skeptical about human nature and are willing to accept that governments will inevitably act aggressively in their foreign policy. Hence, governments must pursue and protect their national interests, including use of force if deemed necessary. Realists advocate the prudent management of economic and military power. In sum, for U.S. foreign policy realists, the main objectives that the government should advance in its international relations are its military security and economic prosperity, that is, its national interests. Legal considerations are pushed aside, save insofar as they contribute to securing military security and economic objectives. Hence, when such realist tendencies occur, the likelihood arises that foreign policy decisions might compromise or circumvent international legal rules for the sake of obtaining perceived direct political gains. To attain greater short-term benefits for U.S. national interests, a strictly pragmatic approach might conclude that international legal commitments should be short-circuited or overridden. Unilateralist political ambitions are given higher value than multilateral legal obligations.
Resort to pragmatic foreign policies by the United States frequently occurs in situations involving the use of force abroad, which often produce fundamental conflicts with legalism, especially in terms of moral constraints and idealistic principles. When that occurs, historical experience suggests that pragmatism usually prevails. This can be seen in the American attitude toward policies of intervention abroad and government rationales devised to politically support those actions. To put this into legal perspective, international law holds that military intervention by one state into the territory of another state is flatly prohibited, except under four special circumstances: (1) if there is a treaty agreement permitting such intervention between the two states; (2) if the intervention comes at the genuine invitation of the legitimate government of a state; (3) if the intervention is undertaken as part of a collective security action involving an international organization; and, more controversially, (4) if the intervention is done for humanitarian purposes. Throughout most of its history, the United States chose not to rely on these legal justifications to substantiate the legitimacy of its intervention actions abroad.
Historically, the legal logic used by the United States to support foreign intervention is couched in the articulation of presidential doctrines. These policy proclamations, which significantly shape U.S. legal attitudes toward the permissibility of international intervention, are greatly influenced by pragmatic motivations but increasingly assume ideological traits irrespective of relevant legal considerations. The Monroe Doctrine and its Roosevelt Corollary were historically the most widely applied of these doctrines. The Cold War markedly affected U.S. policy attitudes and resurrected American willingness to engage in military intervention abroad. Consequently, during the last half of the twentieth century the U.S. perception of aggression (that is, legally impermissible intervention) became framed in terms of evaluating and containing radical communist regimes throughout the Third World generally and the Western Hemisphere in particular. U.S. policymakers believed radical influence upon the domestic politics or governmental structure of a state produced regional instability and therefore plowed fertile ground for that country to become a victim of communist aggression. Concerns about the threat of communist expansion worldwide resurrected and reactivated the fundamental policy motive contained in the Monroe Doctrine—intervention for self-defense—and fostered its application through a number of post–World War II policy doctrines.
The first doctrine of the post–World War II era, the Truman Doctrine, was asserted in 1947 and committed the United States to a global policy aimed at stopping the spread of communism. The Truman Doctrine was designed specifically to send $400 million to help Greece and Turkey put down communist insurgencies that threatened those governments' stability. The lawfulness of this aid was not at issue, nor did the United States intervene militarily. The scope of U.S. anticommunist assistance was expanded in January 1957 when President Dwight D. Eisenhower formally asked Congress to authorize the use of armed force to assist any country that requested help against communist aggression. In March 1957, Congress ratified the Eisenhower Doctrine, which became the legal rationale for U.S. intervention into the Middle East, where radical nationalism had sharpened in the aftermath of the Suez crisis of 1956. The Eisenhower Doctrine assumed Realpolitik policy objectives and affirmed U.S. determination to become the leading power in the region. The U.S. government invoked the Eisenhower Doctrine only twice, and in neither case was it in response to external aggression. In April 1957, Washington dispatched emergency aid to Jordan, which was threatened by an abortive coup. In January 1958, U.S. marines landed in Lebanon to support the Chamoun government, which was in the midst of a civil war. Importantly, in both cases, U.S. assistance had been formally invited by the legitimate government in power, making the action lawful notwithstanding the obvious Realpolitik ramifications.
The administration of President Lyndon B. Johnson produced a new intervention doctrine for U.S. foreign policy. The Johnson Doctrine derived from the episode in April 1965 when the United States sent 21,000 troops into the Dominican Republic to restore civil order on the pretext of preventing a "second Cuba" from emerging in the hemisphere. The principal legal rationale for the action was self-defense (more accurately, exaggerated national security concerns) against the perceived threat of communism being established in the Dominican Republic. Shortly thereafter, this doctrine was applied globally to shore up justification for U.S. military assistance to the government of South Vietnam in the face of the communist aggression of North Vietnam and China.
The Vietnam War imbroglio produced a new doctrine for U.S. foreign policy toward regions threatened by communist aggression. By the late 1960s, the enormous costs of the conflict in lives and dollars, coupled with the eruption of strong domestic antiwar sentiment, demonstrated to the Nixon administration the need to shift the American approach to military assistance. The new policy, articulated in 1969, aimed to transfer immediate self-defense responsibilities to the South Vietnamese indigenous forces. While the United States would continue to bear responsibility for deterring nuclear and conventional war, the burden for deterring localized conflicts would shift to the countries involved. This so-called Nixon Doctrine was later broadened to encompass the entire globe. As with other American doctrines, considerations of international law were largely omitted from the policy calculus. The change in military assistance policy was not done in response to international criticisms of U.S. military intervention into Vietnam or the widely reported American violations of the laws of war. Rather it was done to counter domestic public discontent and to produce more opportunity for an early withdrawal of U.S. forces from Southeast Asia. These were actions motivated by pragmatism and Realpolitik, not for reasons of legalism or moral commitment.
The administration of President Jimmy Carter revived the expansion of U.S. military commitment to the Middle East. On 29 December 1979 the Soviet Union invaded and seized control of Afghanistan. The Carter administration reacted by withdrawing the SALT II Treaty from Senate consideration, increasing aid to Pakistan, cutting off grain sales to the Soviet Union, and calling for a boycott of the 1980 summer Olympic Games in Moscow. More provocative was the president's proclamation in January 1980 that warned the Soviets to halt their expansion into the Middle East. In effect, Carter declared that the Soviet invasion of Afghanistan threatened the Persian Gulf and Indian Ocean oil supply pipelines and asserted that the United States would act alone if necessary to protect Middle East oil from Soviet takeover. Thus, the Carter Doctrine identified the continued flow of oil from the Persian Gulf as a paramount strategic interest of the United States, to be defended with U.S. military force if necessary. In so doing, it broke with the Nixon Doctrine, which called for partnership in preference to the unilateral approach in the Truman, Eisenhower, and Johnson doctrines. The United States in this case responded to an unlawful act of foreign intervention by asserting the strategic necessity—as opposed to the predicate of lawfulness—of military assistance to a victim state. Again, preeminence was given to motivations of American exceptionalism and pragmatism over normative elements found in policies of legalism, liberalism, and moralism.
Finally, during the 1980s, President Ronald Reagan articulated his own policy dictum to reinforce the central theme of halting the spread of communism. The Reagan administration expanded military and economic assistance to friendly Third World governments battling leftist insurgencies and actively supported guerrilla movements and other opposition forces in countries with leftist governments. This policy, which became known as the Reagan Doctrine, was applied with particular zeal in Latin America. Central to these efforts was supplying military and economic aid to the government of El Salvador in its civil war against the Farabundo Marti National Liberation Front and in organizing, funding, and training the contras, a guerrilla force of 15,000 who sought to overthrow the Marxist Sandinista government in neighboring Nicaragua. Support for such "freedom fighters" was also extended to Angola, Afghanistan, and Cambodia to assist those irregular forces in their struggles against totalitarian leftist regimes. In these ways the Reagan Doctrine can be viewed as a natural corollary of the Nixon Doctrine, albeit one whose permissibility under international law is seriously in question. Such assistance to rebel insurgents is generally viewed as unlawful intervention into the internal affairs of another state and is prohibited under international legal rules, irrespective of the ideological character of the ruling government.
Other U.S. policies highlight the salience of pragmatism over legalism. For example, even though the Reagan administration was adamant about not dealing with terrorists, in 1985 it agreed to sell weapons to Iran in the hope that this might persuade Islamic fundamentalists holding hostages in Lebanon to release them. Interestingly, the monies from the arms sales went to support of the contras in their war against the Nicaraguan Sandinistas. Similarly, the invasion of Grenada in 1983 (on the pretext of rescuing one thousand American medical students on the island) and the bombing of Libya in 1986 (on the pretext of acting in self-defense against Libya for its bombing of a West Berlin discotheque) further eroded the respect for law by the Reagan administration in its foreign policy. Although praised by Congress and the American pubic, these actions were widely condemned by the international community for their shaky legal underpinnings. Propelled by ideological concerns, U.S. foreign policy was characterized by American pragmatism, self-virtuosity, and unilateralism exercised at the expense of the legal, moral, and liberal considerations that embody the fundamental legal principle of noninterference in the internal affairs of other states. Throughout the Cold War years, presidential doctrines articulated policies in which international legal considerations were conspicuously omitted, as unilateralist ideology assumed paramount importance.
Since the end of the Cold War, pragmatism in U.S. foreign policy has remained ascendant over legal and moral considerations when issues of using armed force are involved. Even so moral, liberal, and legal considerations have been integrated more and more to explain and justify U.S. rationales for using armed force abroad. There has evolved the need to advocate normative arguments for American actions to foster greater international acceptance of the lawfulness of that policy.
For President George H. W. Bush, the invasion of Panama and the Gulf War were principal U.S. actions involving use of force. In December 1989, U.S. armed forces intervened militarily into Panama in Operation Just Cause. The Bush administration provided three pragmatic reasons, grounded in nationalist considerations, to justify the action: to keep the Panama Canal open; on grounds of self-defense, to protect the lives of U.S. citizens living there; and to apprehend the self-proclaimed "maximum leader," General Manuel Noriega, so that he could be put on trial for alleged violations of U.S. narcotics laws. One liberal objective was given in support of the action: to restore democracy in Panama. None of these directly relate to international law, and, in fact, a joint communiqué of reservations and understandings appended to the Panama Canal Treaties of 1977 flatly renounces any right of the United States to intrude into the internal affairs of Panama. The legal rule of nonintervention into Panama was overridden for perceived pragmatic short-term objectives of U.S. policy interests, to protect the canal and to seize Noriega.
The Gulf War of 1991 was the first major military conflict involving U.S. intervention after the Cold War. Importantly, it came not as a unilateral U.S. response to Iraq's aggressive conquest of Kuwait in August 1990. Rather, American military action was taken as part of a collective responsibility, formally approved in seventeen resolutions by the UN Security Council in order to force Saddam Hussein's forces to quit their unlawful occupation of the Persian Gulf sheikdom. Sponsored by the United States, Security Council Resolution 678, adopted on 29 November 1990, asserted that unless Iraq unconditionally withdrew from Kuwait and released all foreigners by 15 January 1991, UN member states would be allowed to "use all necessary means to restore the international peace and security in the area." On 16 January, UN efforts to deal with Iraq culminated in a U.S.-led coalition of twenty-eight countries instigating an intense air attack against Iraq. On 23 February a massive ground assault was launched to eject Iraqi troops forcibly from Kuwait. Four days later the war ended.
While American motivations for prosecuting the war against Iraq were more strategic than moral—that is, to maintain secure access to oil resources in the Persian Gulf, to prevent Iraq from controlling nearly one-half of the world's known oil reserves, and to preclude Iraq from building up a military machine that included weapons of mass destruction—a strong case can be made for the lawfulness of its action. The United States might have acted unilaterally to oust Saddam Hussein, but it did not. Resort to the Security Council (and obtaining its concurrence) was essential for substantiating the legitimacy of the U.S. use of force. In this instance U.S. military intervention was implemented legitimately through multilateralism (through an international coalition) and attained the aims of moralism (to reverse aggression) as well as liberalism (to install greater respect for democracy and human rights) and legalism (to proceed through universally accepted UN procedures for dealing with aggressor states).
At the time, many analysts even agreed that the Gulf War served well the prospects for a "new world order." In the succeeding years, such an order did not come to pass, as violence between states became supplanted by the rise of violence between ethnic and tribal groups within states. To appreciate the tragedy of this point, one only has to think of the civil wars in Somalia (1992–1993), Burundi (1993), Rwanda (1994), Bosnia (1992–1995), Sierra Leone (1999–2000), Serbia-Kosovo (1999), and the Congo (2000–2001) that killed or displaced more than five million people over a decade.
Pragmatism affects U.S. foreign policy in several ways. It alleviates the requirement that American decision makers only make policy that is grounded in strict legal principles or ideological tenets. Policy is not wedded to philosophical or moral stricture. It can be decided with greater flexibility, based mainly on political perceptions as opposed to rigid normative considerations. Further, U.S. foreign policy tends to be reactive rather than proactive. In its international dealings the United States reacts to certain events as they occur rather than anticipating that they will occur. In this sense pragmatism contributes to the American tendency to prefer short-term national goals over long-term international solutions—an approach that invites inconsistency in foreign policy actions. Pragmatism can also blind policy-makers to the more idealistic sides of liberalism, especially with regard to respect for human rights. One only has to recall that the United States has supported a number of governments that had egregious human rights records in the treatment of their own citizens, to wit, Anastasio Somoza in Nicaragua, Rafael Trujillo in the Dominican Republic, Fulgencio Batista in Cuba, the shah in Iran, Duarte in El Salvador, Ferdinand Marcos in the Philippines, and the minority white government in South Africa.
One can similarly conclude that when vital interests are perceived to be at stake, U.S. officials sometimes bend legal rules to justify their policies rather than conform their actions strictly to the letter of the law. In 1998 the Clinton administration fired cruise missiles against Iraq in retaliation for Saddam Hussein's refusal to permit UN inspections of suspected chemical and biological weapons facilities. More missiles were fired in 1998 against Sudan and Afghanistan in response to those governments' alleged complicity in the bombings of the U.S. embassies in Kenya and Tanzania. American claims that their actions were motivated by lawful considerations of self-defense are suspect, and the evidence of these governments' complicity is not well founded. More likely, these attacks were acts of military reprisal against those states, acts that are impermissible under the rules of modern international law.
On certain national security issues, international law provides the preferred practical recourse in U.S. foreign policy. Two critical areas of intense U.S. involvement stand out: the threat of transnational terrorism and the preclusive strategy of arms control. Regarding international terrorism, such violence has become a regular event in modern times, with Americans and their property frequent targets. Between 1981 and 2000 the number of terrorist attacks worldwide remained relatively consistent, with 9,170 incidents, including 422 attacks in 2000. While domestic terrorism—such as the bombs that seriously damaged the World Trade Center in 1993 and destroyed the Alfred P. Murrah federal building in Oklahoma City in 1995—is a matter for American civil authorities, concern over transnational terrorism has escalated in U.S. foreign policy priorities. These worries not only pertain to conventional problems such as bombing and kidnapping but also to the possibility that terrorists might use chemical, biological, or nuclear weapons against a city in the United States.
Accordingly, the United States has assumed the leading role in establishing specific prohibitions against such violent acts through the negotiation of special international legal agreements. Chiefly toward this end, American negotiators, beginning in 1970, have proposed international legal instruments that stipulate not only the unlawful nature of terrorist acts but also the fundamental requirement for governments to prosecute persons who perpetrate such acts, or at least extradite accused offenders to those states who will. Outstanding among U.S.-inspired agreements to outlaw and prosecute criminal acts of transnational terrorism are the following instruments: the 1963 Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft (171 contracting states); the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (173 contracting states); the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (174 contracting states); the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents (107 contracting states); the 1979 International Convention Against the Taking of Hostages (75 contracting states); the 1980 Convention on the Physical Protection of Nuclear Materials (69 contracting states); the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (53 contracting states) and its protocol to suppress unlawful acts against the safety of fixed platforms on the continental shelf (49 contracting states); and the 1991 Convention on the Marking of Plastic Explosives for the Purpose of Detection (67 contracting states). Importantly, though, the United States by 2001 had yet to become a contracting party to the 1998 International Convention for the Suppression of Terrorist Bombings (24 contracting states) or the 1999 Convention for the Suppression of the Financing of Terrorism (3 contracting states). Through these legal means, U.S. foreign policy sought to integrate the moral aspiration of protecting innocent people with a pragmatic approach that provides diplomatically available international channels for political cooperation and legal prosecution of persons accused of such offenses.
To regulate the use of force and weapons systems in interstate relations, U.S. foreign policy has assumed a highly pragmatic approach. The end goal of policy might appear idealistic (to promote international peace and national security through disarmament), but the means taken are clearly more realistic in their intent and application (to negotiate instruments for arms control guided by President Reagan's maxim of "trust but verify"). The United States has thus employed diplomacy to create legal rules so as to promote greater order and stability in interstate relations, thereby contributing to its own national security. Nowhere is this strategy more apparent than in efforts to control the use and spread of weapons of mass destruction globally and, more particularly, in its bilateral relationship with the former Soviet Union, now Russia. To assist in curbing proliferation of various weapons, the United States was instrumental in drafting, negotiating, and promoting numerous international agreements.
Through negotiation of international legal instruments, the U.S. government has put limitations on the types and power of weapons permissible in national arsenals. What makes the U.S.-led negotiation of these agreements even more impressive is that many states have become legally obligated to most of them, simply because they realize these limitations best serve their national interests. The United States is party and legally obligated to all of the following: The 1963 Limited Test Ban Treaty, which bans tests in the atmosphere, outer space, and under water (124 contracting parties); the 1968 Nonproliferation Treaty, which prohibits selling, giving, or receiving nuclear weapons (189 contracting states); the 1971 Seabed Arms Control Treaty, which bans placement of nuclear weapons in or under the deep seabed (99 contracting states); the 1972 Biological and Toxin Weapons Convention, which bans the production and possession of biological weapons (143 contracting states); the 1972 Strategic Arms Limitation Talks Treaty (SALT I), which limits the number and types of U.S. and Soviet nuclear weapons; the 1972 Anti-Ballistic Missile Treaty, the pact between the United States and Soviet Union that sets limits on antiballistic missile testing and deployment; the 1976 Environmental Modification Convention, which bans modification of the environment as a form of warfare (66 contracting states); the 1979 SALT II Treaty, which limits the number and types of U.S. and Soviet strategic weapons; the 1987 Intermediate-Range Nuclear Forces (INF) Agreement, which eliminates all U.S. and Soviet missiles with ranges between 500 and 5,500 kilometers; the 1987 Missile Technology Control Regime, which limits transfer of missiles or missile technology (25 contracting states); the 1991 Strategic Arms Limitation Talks agreement (START I), which reduces strategic nuclear forces between the United States and the Soviet Union, Belarus, Kazakhstan, Russia, and the Ukraine; the 1992 Chemical Weapons Convention, which bans possession of chemical weapons after the year 2005 (143 contracting states); and the 1993 START II agreement that reduces U.S. and Russian strategic nuclear forces.
Notable exceptions cloud U.S. practice and highlight the force of pragmatic realism over multilateral legalism. The U.S. Senate in 1999 rejected the Comprehensive Nuclear Test Ban Treaty (77 contracting states), largely for reasons of partisan politics and to ensure that the ability to test nuclear weapons would be available to the United States so as to maintain nuclear parity with other states. Nor has the United States contracted to the Convention on the Prohibition of Anti-Personnel Mines (117 contracting states), because of the deterrent value of landmines for protecting U.S. troops in South Korea. Unilateral exceptionalism, ostensibly on pragmatic security grounds, reemerged in the presidency of George W. Bush. The Bush administration indicated that it would withdraw from the 1972 Anti-Ballistic Missile Treaty with Russia so that the United States may go forward with testing and deployment of a space-based missile system to protect America from an attack by a "rogue state" armed with nuclear missiles. Moreover, the Bush administration announced in 2001 that the United States opposed a UN treaty to limit the international sale of small arms, because the accord would constrain the legitimate weapons trade and infringe on the right of American citizens to bear arms. The fact that the United States is the leading exporter of such weapons, selling $1.2 billion of the estimated $6 billion worldwide total, seems a more pragmatic explanation of that policy decision.
Such international legal agreements demonstrate the American recourse to legalism, but they are steeped in motives of pragmatism and realism. A treaty in and of itself cannot prevent the use of any weapon by any party, no more than domestic laws can prevent a person from using a handgun to rob a bank or commit murder. Still, multilateral agreements articulate rules and norms that states are expected to follow in their conduct. If all contracting parties adhered to all these legal rules all of the time, the possibility of these weapons being used would be considerably reduced, and the prospects for obtaining international peace and security would be greatly enhanced. Once again, the motivations for U.S. foreign policy emerge as a national blend of realistic pragmatism and idealistic legalism, the success of which ultimately rests in the political will of the involved governments.
The blend of pragmatism with recourse to multilateral legalism is also well illustrated in issues concerning conservation of natural resources and protection of the biosphere. As the greatest industrial superpower in history, the United States consumes 35 percent of the world's energy resources and emits nearly 25 percent of the world's carbon dioxide. American economic consumption at home generates serious environmental repercussions abroad. Since 1960 the U.S. government, along with other states and international organizations, has grown more attuned to how burgeoning industrial output affects its own air, water, and land area, as well as how international legal agreements might best be fashioned to minimize the corrosive impacts of industrialization on the earth's environment beyond the limits of national jurisdiction. To these ends more than five hundred multilateral agreements have been concluded on conservation and protection of the biosphere, many done with vigorous U.S. participation in UN-sponsored conferences. The obligatory presumption underpinning these instruments is that governments and individuals must use the biosphere responsibly, on the theory that it belongs to no one individually and to everyone collectively. These views are crystallized in multilateral agreements negotiated as legal regimes to govern national activities in global common areas, that is, in those spaces such as the oceans, Antarctica, and the atmosphere. Importantly, the United States is formally obligated to most of these legal regimes.
The legal status of the world's oceans has been a legal concern for four hundred years, though more recent attention has focused on how best to use them without causing pollution, resource depletion, or harm to living creatures. The first global effort to codify the oceans' legal status came in 1958 with the promulgation of the four 1958 Geneva Conventions on the Law of the Sea. The United States assumed the pivotal role in drafting these agreements. When advances in technology overwhelmed the relevance of these instruments, the United Nations in 1973 convened a complex, protracted series of negotiations to recodify ocean law. Again, the United States assumed the central role in these negotiations, which in 1982 produced the UN Convention on the Law of the Sea. This framework convention seeks to regulate issues of offshore territorial jurisdiction, ownership of the continental shelf region, exploration and exploitation of living and nonliving resources in the ocean and on the deep seabed, as well as protection of the marine environment. The convention defines coastal zones, establishes an International Seabed Authority to regulate mining on the ocean floor beyond the limits of national jurisdiction, and provides for sharing revenues derived from such operations.
For modern ocean law, the 1982 convention rules the waves for most nations. Yet the United States has remained resistant to becoming a party to this agreement, principally because of the deep seabed issue. The United States possesses the most advanced seabed mining technology and would contribute the most dues to the authority's operations, which would likely most benefit developing countries. On these grounds some U.S. senators argued vigorously during the 1980s against the treaty, although since the treaty entered into force in 1994, those objections have largely waned. In this respect the U.S. role in the modern law of the sea inculcates an ideological struggle in the American mind between the benefits of international legalism versus unilateral exceptionalism, as well as the virtues of economic liberalism versus international socialism. The irony is that, over the course of nearly a decade, the United States contributed more legal wherewithal and technical insights to the negotiation of this convention than any other government. In the end, the fundamental issue came down to that of sovereign self-interest versus international common interest, and in this case, sovereign self-interest appears to have won out.
Nevertheless, U.S. foreign policy was essential for forging many other treaties that contributed to more orderly use of ocean space. Among these were the 1946 International Convention for the Regulation of Whaling; the 1969 International Convention on Civil Liability for Oil Pollution Damage; the 1973 International Convention for the Prevention of Pollution from Ships, with its protocol of 1978 (MARPOL 73/78) and six annexes; the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, with its 1996 protocol; the 1966 Load Line Convention; the 1974 Safety of Life at Sea Convention; and the 1972 International Convention on the International Regulations for Preventing Collisions at Sea. In addition, the United States figured mightily in the negotiation of two other major ocean conservation documents, the 1993 UN Food and Agriculture Organization Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas; and the 1995 Agreement for the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
In the case of Antarctica, the United States remains key as the contributor to forming new rules for administering the legal regime there. The Treaty on Antarctica was largely an American inspiration and culminated on 1 December 1959 from a special negotiating conference of twelve states in Washington, D.C. The United States also emerged as the critical influence in producing three other agreements that comprise the modern Antarctic Treaty System. These are the 1972 Convention on the Conservation of Antarctic Seals, which protects Antarctic seals from being harvested; the 1980 Convention on the Conservation of Antarctic Marine Living Resources, designed to conserve krill, fish, birds, and other marine life in the Southern Ocean; and the 1991 Protocol to the Antarctic Treaty on the Protection of the Antarctic Environment, which establishes the norms, rules, and procedures that Antarctic Treaty contracting parties must apply to their activities in the region. Each instrument was negotiated and entered into force with full U.S. concurrence, because protection of the environment and conservation of Antarctic resources are perceived as best serving long-term U.S. national interests. In this regard, elements of pragmatism stand out in U.S. policy. But what also stands out is the important proclivity toward multilateral legalism that is idealistically intended to secure environmental protection and resource conservation in the region. For U.S. interests to be best protected, other governments concerned with Antarctic matters must be likewise legally bound. Only multilateral agreements, as opposed to exceptionalist, unilateral initiatives, can suitably attain that purpose.
A quartet of instruments comprises the regime for regulating the protection of the atmosphere by eliminating or stabilizing anthropogenic emissions of substances that threaten its environment. The first of these, the 1985 Vienna Convention for the Protection of the Ozone Layer, was instigated and promoted mainly by the United States. This treaty aims to protect human health and the environment against the adverse effects of modification of the ozone layer. Its 1987 Montreal Protocol, which entered into force with strong support from the U.S. government, was negotiated to institute precautionary measures to control global emissions of substances that deplete the ozone layer. The UN Framework Convention on Climate Change, a product of the 1992 Earth Summit at Rio de Janeiro, seeks to regulate the level of greenhouse gases contaminating the atmosphere in order to avoid creating climate changes that impede economic development worldwide. Its companion instrument, the 1997 Kyoto Protocol, was negotiated as a means to implement the framework global warming convention. Even though U.S. industry is responsible for producing 25 percent of the world's greenhouse gas emissions, the administration of George W. Bush indicated in 2001 that it would not participate further in negotiations on the Kyoto Protocol, mainly because the economic price paid by U.S. industry was considered unfairly too high, especially given that India and China were not participating and developing countries were exempt from the protocol's restrictive terms.
By 2001 the United States had not accepted the 1992 Convention on Biological Diversity, which aims to conserve and promote sustainable use of biodiversity resources. Although 180 other states had ratified this accord, the United States rejected it on grounds that it encourages "equitable sharing of benefits" arising out of the use of genetic resources and "appropriate" transfer of technology, while taking into account rights over such resources. The legal logic here supposes that, as the largest developer of biotechnology industries, the United States stands to lose most from these obligations. These costs are seen as not worth the price of legal agreement. Nor had the United States contracted to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, ostensibly because critical terms in the agreement were left vague and open to interpretation. Rejection of the Basel Convention more likely came because U.S. industry is the world's largest exporter and importer of precious-metal wastes and scrap and would be severely affected by the accord's legal restrictions.
An attitude of exceptionalism for the world's largest consumer and greatest polluter cannot produce benefits for the planet's environment. To correct this, the United States has contracted to three important agreements: the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which seeks to protect certain species from overexploitation by a system of import-export permits; the 1979 Geneva Convention on Long-Range Transboundary Air Pollution, which aims to limit the discharge of air pollutants, especially sulfur dioxide, that cause distant damage in other states; and the 1992 UN Convention to Combat Desertification, which strives to halt spreading desert lands.
U.S. foreign relations depend on legal order, operate within a legal framework, and require legal principles and concepts that influence policy and limit choices. To be sure, the United States derives benefits from international legal rules and agreements with other states. Legal rules keep international society functional, contribute to economic order and political stability, and provide a basis for common ventures and mutual intercourse. Given that international law serves to limit the actions of all governments, it therefore enhances the security and independence of the United States in its dealings with other states. International legal rules establish common standards where they are deemed by states to be desirable and make more predictable what behavior to expect from states in their relations with each other. That is no less true for the United States in this age of globalization and increasing interdependence.
But international law also limits the freedom of the United States to act in its foreign affairs. The United States is obligated to certain restraints, irrespective of what its government might like to do when the time comes to act. Political arrangements legitimized by formal agreements are more difficult to unravel or modify. The predictability of state behavior established by international law means that the United States is not free to be disorderly or promote changes on its own whim. To foster the security and independence of its own territory and limit the conduct of other governments, the United States must accept corresponding limitations on its own behavior. To secure the confidence accrued from law, the United States must consent to being restricted in its ability to frustrate the expectations of other states. U.S. foreign policy therefore evolves in tandem with how international legal rules are regarded. Each successive administration builds its foreign policy on the legal framework constructed by its predecessors. Since World War II, U.S. foreign policy has moved slowly but perceptibly away from pragmatic, nationalist principles toward a more legalist, international doctrine. With the end of the Cold War, this tendency has accelerated. In the early twenty-first century, U.S. foreign policy was moving toward more universal values, bound by increasing legal commitments in formal multilateral agreements.
For American foreign policy, international law is most effective in regulating the rapidly expanding range of functional relations between the United States and other international actors. Such functional interstate relations are considered to be "low politics" (trade, communications, rules of diplomacy) and are motivated by a combination of idealism, moralism, and pragmatism. National security issues, however, retain their critical importance as pragmatic considerations, though increasingly the tendency has been to negotiate arms control agreements whenever possible, as opposed to seeking a straightforward balance of power amongst military adversaries. For the United States the restraint of legal rules appears least effective when applied to "high politics," meaning its national security relations between sovereign states. Under these circumstances, realism and pragmatism are prone to fostering American unilateralism in foreign dealings. Yet the wide range of arms control agreements, environmental regulations, and rules for war negotiated through U.S. leadership suggests that recourse to international legal solutions to deal with "high politics" issues retains great sway for U.S. foreign policy as well.
The American experience demonstrates that international law best serves those who make it work over the long term. As the body of rules for the international relations game, international law provides the formal ways and means for communicating to U.S. policymakers the perceived international consensus on policy questions and legal issues. Thus, the United States employs international law in its foreign policy and contributes to its creation. This explains why, with few exceptions, the United States formally recognizes and agrees to respect fundamental rules and principles intended to guide its foreign policy behavior. For the preeminent actor in international relations at the dawn of the twenty-first century, it cannot be otherwise.
Ambrose, Stephen E. Rise to Globalism: American Foreign Policy Since 1938. 8th ed. New York, 1997. Among the best treatments of U.S. diplomacy during the Cold War years and since.
Arend, Anthony C., and Robert J. Beck. International Law and the Use of Force: Beyond the U.N. Charter. London, 1993.
Bailey, Thomas A. A Diplomatic History of the American People. 10th ed. New York, 1980. The best-written history of U.S. diplomacy.
Barkun, Michael. Law Without Sanctions. New Haven, Conn., 1968.
Brierly, James. The Law of Nations. 6th ed. Oxford, 1976.
Brownlie, Ian. Principles of International Law. 4th ed. Oxford, 1990.
Cingranelli, David Louis. Ethics, American Foreign Policy, and the Third World. New York, 1993.
Cohen, Stephen D. The Making of United States International Economic Policy. 5th ed. West-port, Conn. 2000. Definitive study of U.S. policymaking for trade agreements.
Devine, Donald J. The Political Culture of the United States: The Influence of Member Values on Regime Maintenance. Boston, 1972. Insights on political culture's impact on policymaking.
Falk, Richard A. Law in an Emerging Village: A Post Westphalian Perspective. Ardsley, N.Y., 1998.
Ferrell, Robert H. American Diplomacy: The Twentieth Century. New York, 1988.
Forsythe, David P., ed. The United States and Human Rights: Looking Inward and Outward. Lincoln, Neb., 2000.
Gaddis, John Lewis. The United States and the End of the Cold War: Implications, Reconsiderations, and Provocations. New York, 1992. Useful reflections on the future of U.S. foreign policy.
Goldstein, Judith, and Robert O. Keohane, eds. Ideas and Foreign Policy: Beliefs, Institutions, and Political Change. London and Ithaca, N.Y., 1993.
Gruber, Lloyd. Ruling the World: Power Politics and the Rise of Supranational Institutions. Princeton, N.J., 2000.
Hermann, Margaret G., and Charles W. Kegley, Jr. "Rethinking Democracy and International Peace." International Studies Quarterly 39 (1995): 511–533.
——. "Democracies and Intervention." Journal of Peace Research 38 (2001): 237–245.
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Hsiung, James C. Anarchy and Order: The Interplay of Politics and Law in International Relations. Boulder, Colo., 1997.
Jentleson, Bruce W. American Foreign Policy: The Dynamics of Choice in the 21st Century. New York, 2000.
Jentleson, Bruce W., ed. Perspectives on American Foreign Policy: Reading and Cases. New York, 2000.
Joyner, Christopher C. "The United States Action in Grenada: Reflections on the Lawfulness of Invasion." American Journal of International Law 78 (1984): 131–144. Succinct treatment of intervention as U.S. policy.
——. "The United States and the Genocide Convention." Indian Journal of International Law 27 (1987): 441–482. Scrutiny of U.S. interests and legal concerns in the genocide treaty.
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——. "International Law and the Conduct of Foreign Policy." In Shirley Scott and Anthony Bergin, eds. International Law and Australian Security. Canberra, Australia, 1997.
——. "The Reality and Relevance of International Law in the Twenty-First Century." In Charles W. Kegley, Jr., and Eugene Wittkopf, eds. The Global Agenda: Issues and Perspectives. New York, 2001.
Joyner, Christopher C., and Anthony Clark Arend. "Anticipatory Humanitarian Intervention: An Emerging Legal Norm?" Journal of Legal Studies 10 (2000): 27–60. Examines international law and U.S. policy in Kosovo.
Joyner, Christopher C., and Michael Grimaldi. "The United States and Nicaragua: Reflections on the Lawfulness of Contemporary Intervention." Virginia Journal of International Law 25 (1985): 621-689. A useful critique of the lawfulness of U.S. policy toward Nicaragua.
Joyner, Christopher C., and Christopher Posteraro. "The United States and the International Criminal Court: Rethinking the Struggle between National Interests and International Justice." Criminal Law Forum 10 (1999): 359–385. Why the U.S. opposes the ICC.
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——. How Nations Make Peace. New York, 1999.
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Kegley, Charles W., and Eugene Wittkopf. American Foreign Policy: Pattern and Process. 5th ed. New York, 1996. One of the best texts on U.S. foreign policy.
——. World Politics. 8th ed. Boston, 2001. Leading academic text on international relations.
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Newsome, David C. The Public Discussion of Foreign Policy. Bloomington, Ind., 1996. Thoughtful treatment of public opinion and U.S. foreign policy.
Pangle, Thomas L., and Peter J. Ahrensdorf. Justice Among Nations: On the Moral Basis of Power and Peace. Lawrence, Kan., 1999.
Perkins, Dexter. Hands Off: A History of the Monroe Doctrine. Boston, 1941. The authoritative history of the Monroe Doctrine.
——. The American Approach to Foreign Policy. Cambridge, Mass., 1962. A historian's history of U.S. foreign policymaking.
Russett, Bruce. Grasping the Democratic Peace: Principles for a Post–Cold War World. Princeton, N.J., 1993. Excellent assessment of democratic peace theory.
Schlesinger, Arthur. "Foreign Policy and the American Character." Foreign Affairs 62 (1983): 1–16.
Slomanson, William R. Fundamental Perspectives on International Law. Belmont, Calif., 2000. Leading text on international law.
Spanier, John, and Steven W. Hook. American Foreign Policy Since World War II. 14th ed. Washington, D.C., 2000. Very useful historical account of U.S. foreign affairs since 1945.
Spero, Joan Edelman, and Jeffrey A. Hart. The Politics of International Economic Relations. 5th ed. New York, 1996. Authoritative text of international political economy.
Stoessinger, John G. Crusaders and Pragmatists: Movers of Modern American Foreign Policy. 2d ed. New York, 1985.
Wittkopf, Eugene R., and Christopher M. Jones, eds. The Future of American Foreign Policy. 3d ed. New York, 1999. Provocative essays on challenges for U.S. policy abroad.
See also Doctrines; Environmental Diplomacy; Exceptionalism; Human Rights; Humanitarian Intervention and Relief; Internationalism; International Monetary Fund and World Bank; International Organization; Intervention and Nonintervention; Isolationism; The National Interest; Realism and Idealism .
LEGAL RULES FOR U.S. POLICY
The past informs the future. For American foreign policy in the twenty-first century, this realization is critical for assessing what role international legal rules play in making and carrying out U.S. policy objectives abroad. The future of U.S. foreign policy still turns on the costs and advantages of three persistent conflicting impulses: the choices between isolationism and internationalism, realism and idealism, and intervention and nonintervention. International legal issues and concerns lie at the heart of each debate, and American policymakers bear the burden of reconciling these divergent viewpoints in rapidly changing global circumstances. The challenges for American foreign policy are daunting, particularly given the economic, political, and military superpower roles in which the United States is cast. The threats to U.S. security are no less menacing, among them: the proliferation of weapons of mass destruction; the degradation of the planet's environment through natural resource depletion; increased global warming, ozone depletion, and transnational pollution; pervasive poverty and overpopulation; terrorist violence; the rise of intrastate ethnic wars that produce genocidal atrocities and massive violations of human rights; accelerating forces of interdependence and globalization that make economic, technological, and electronic penetration of national borders increasingly facile; and the massive expansion in international commerce, which makes all states increasingly dependent on (and vulnerable to) others for needed goods and services.
The United States, despite its preponderant military, cultural, and economic power, cannot manage, much less mitigate, these global threats alone. Remedies lie in producing multilateral cooperation, collaboration, and commitment of mutual political wills among governments. The policy means for attaining these remedies come through active American diplomacy that strives to elaborate international legal strategies and agreements for meeting those ends. The conclusion is clear: international law is far from being an idealist pipe dream. International legal means are in fact realistic policy instruments that the United States must increasingly exercise if multilateral agreements are to be secured on common solutions and approaches for dealing with common global problems. In a world of intensifying interdependence and globalization, the United States needs international law to protect its fundamental national interests. Similarly, American foreign policy must be formulated in such a way that the United States accepts the norm of state responsibility to uphold its international legal obligations. To do otherwise is to ignore the lessons of U.S. diplomatic history and, more perturbing, to render the world an even more politically, economically, and ecologically complicated place in which to live.
The idea of developing international law through the restatement of existing rules is not of recent origin. In the last quarter of the eighteenth century, Jeremy Bentham proposed a codification of the whole of international law. Since his time, numerous attempts at codification have been made by private individuals, by learned societies and by governments. Enthusiasm for the "codification movement"—the name sometimes given to such attempts—generally stems from the belief that written international law would remove the uncertainties of customary international law by filling existing gaps in the law, as well as by giving precision to abstract general principles whose practical application is not settled.
MODERN ANTECEDENTS OF THE INTERNATIONAL LAW COMMISSION
The intergovernmental effort to promote the codification and development of international law made an important advance with the resolution of the assembly of the League of Nations of 22 September 1924, envisaging the creation of a standing organ called the Committee of Experts for the Progressive Codification of International Law, which was to be composed so as to present the "main forms of civilization and the principal legal systems of the world." This committee, consisting of 17 experts, was to prepare a list of subjects "the regulation of which by international agreement" was most "desirable and realizable" and thereafter to examine the comments of governments on this list and report on the questions which "were sufficiently ripe," as well as on the procedure to be followed in preparing for conferences for their solutions. This was the first attempt on a worldwide basis to codify and develop whole fields of international law rather than simply regulating individual and specific legal problems.
After certain consultations with governments and the League Council, the League Assembly decided, in 1927, to convene a diplomatic conference to codify three topics out of the five that had been considered to be "sufficiently ripe," namely: (1) nationality;(2) territorial waters; and (3) the responsibility of states for damage done in their territory to the person and property of foreigners. Delegates from 47 governments participated in the Codification Conference which met at The Hague, from 13 March to 12 April 1930. Unfortunately, nationality was the only subject for which an international instrument was agreed on. No further experiment in codification was made by the League of Nations after 1930, but on 25 September 1931, the League Assembly adopted an important resolution on the procedure of codification, the main theme of which was the strengthening of the influence of governments at every stage of the codification process.
PROVISIONS OF THE UNITED NATIONS CHARTER
Article I of the UN Charter calls for the adjustment or settlement of international disputes by peaceful means in conformity with the principles of justice and international law. In Article 13, the charter also requires the General Assembly to "initiate studies and make recommendations for the purpose of … encouraging the progressive development of international law and its codification." To help it fulfill this mandate, the General Assembly set up two law commissions.
The International Law Commission was established in 1947 as a permanent subsidiary organ with its own separate statute. It began meeting in 1949 and since that time has completed a significant body of work.
At its 1966 session, the General Assembly established another commission with the specific object of promoting the harmonization and unification of international law in the field of trade. The UN Commission on International Trade Law (UNCITRAL) held its first meeting in 1968.
INTERNATIONAL LAW COMMISSION
Like the judges of the International Court of Justice, the 34 (originally 15) members of the International Law Commission are not representatives of governments. Instead, they are chosen in their individual capacity "as persons of recognized competence in international law" and with due consideration to representation of "the main forms of civilization" and "the principal legal systems of the world." No two members of the commission may be nationals of the same country. They are elected for five-year terms by the General Assembly, from a list of candidates nominated by UN member states.
The members of the International Law Commission do not serve in a full-time capacity on the International Law Commission and need not give up their other professional activities. Until 1997, they met each year, normally in Geneva, for a session of approximately 12 weeks. In 1997, the General Assembly authorized the commission to hold its 50th session in two parts: the first to be held in Geneva from 27 April to 12 June 1998, and the second in New York, from 27 July to 14 August 1998. In 1998 the commission was authorized to convene one 12-week session in 1999, which was held in Geneva. Geneva was again the site in 2000, but the General Assembly saw fit to divide the commission's work into two parts for this, its 52nd session. In 2006, the commission's 58th session was held in two parts, from 1 May to 9 June, and from 3 July to 11 August. The various topics under consideration are usually assigned to individual members, who then serve as special rapporteurs on the item concerned, carry out the necessary studies between sessions, and submit reports to the commission at its annual sessions.
Although the UN Charter does not lay down any principles for determining a desirable "progressive development" of international law, Article 1 of the Statute of the International Law Commission provides that the "Commission shall have for its object the promotion of the progressive development of international law and its codification." From the outset the discussions in the International Law Commission and the General Assembly have made very clear the main considerations involved. The traditional legal norms prevailing at the time of the San Francisco Conference were inherited from an era when world politics was dominated by a handful of Western European nations. As a consequence, international law itself reflected the values and interests of those nations. In essence, therefore, what has been required is an adjustment of the entire international legal order so as to take account of the interests and traditions of a much broader community of nations.
Article 15 of the Statute of the International Law Commission defines "progressive development" as the preparation of draft conventions on subjects which have not yet been regulated by international law, or in regard to which the law has not yet been sufficiently developed in the practice of states. It defines "codification" as meaning the more precise formulation and systemization of rules of international law in fields where there already has been extensive state practice, precedent, and doctrines.
Under the Statute of the International Law Commission, proposals for the progressive development of international law are not formulated by the commission, but are referred to it by the General Assembly, or by members of the United Nations and other authorized agencies. On the other hand, the commission itself may select topics for codification.
Progressive development of international law is a conscious effort towards the creation of new rules of international law, whether by means of the regulation of a new topic or by means of the comprehensive vision of existing rules. Accordingly, the drafters of the statute considered that when the commission is engaged in the progressive development of any branch of law, the consummation of the work could be achieved only by means of an international convention. Thus the statute contemplates that the commission prepares a draft convention, and the General Assembly then decides whether steps should be taken to bring about the conclusion of an international convention.
On the other hand, when the commission's task is one of codification (the mere precise formulation and systematization of existing customary law), the statute envisages two other possible conclusions to its work: (a) simple publication of its report; and (b) a resolution of the General Assembly, taking note of or adopting the report. The statute also lays down the specific steps to be taken by the commission in the course of its work on progressive development and on codification.
Methods of Work
The commission follows essentially the same method for both progressive development and codification. A "special rapporteur" is appointed for each topic; an appropriate plan of work is formulated; where desirable, governments are requested to furnish the texts of relevant laws, decrees, judicial decisions, treaties, and diplomatic correspondence; the special rapporteur submits reports; the commission approves a provisional draft based on those reports in the form of articles, with a commentary setting forth precedents, any divergence of views, and alternative solutions considered. The provisional draft is issued as a commission document and submitted to the General Assembly, and also to governments for their written observations. On the basis of comments received from governments, together with any comments made in the debates of the Sixth Committee of the General Assembly, the special rapporteur submits a further report, recommending the changes in the provisional draft that seem appropriate. The commission then, on the basis of that report and the comments, adopts a final draft. The final draft is submitted to the General Assembly with a recommendation regarding further action.
The General Assembly has from time to time requested the International Law Commission to examine particular texts or to report on particular legal problems. For example, at the specific request of the General Assembly, the commission dealt with the following topics: draft declaration on the rights and duties of states (1949); formulation of the Nürnberg principles (1950); questions of international criminal jurisdiction (1950); the question of defining aggression (1951); reservations to multilateral conventions (1951); draft code of offenses against the peace and security of mankind (1951 and 1954); extended participation in general multilateral treaties concluded under the auspices of the League of Nations (1962); question of the protection and inviolability of diplomatic agents and other persons entitled to special protection under international law (1972); and review of the multilateral treaty-making process (1979). The commission's reports on some of these topics were presented in the form of draft articles with commentaries. Conclusions reached on some other topics did not lend themselves to draft articles.
Scope of the Commission's Work
The General Assembly does not assign all legal issues with which it is concerned to the International Law Commission. Thus, the legal aspect of an agenda item that relates to another sphere of the General Assembly's work is often handled by a special committee set up to study that particular subject. This is the case, for example, with the legal aspects of the peaceful uses of outer space and with many matters of human rights and economic and social development. On occasion, too, the General Assembly has established a special committee to consider certain legal topics that directly affect the conduct of nations in the area of international peace and security and are therefore highly political. Thus, the agenda item entitled "Consideration of principles of international law concerning friendly relations and cooperation among states in accordance with the Charter of the United Nations" was assigned to a special 31-member committee. After eight years of discussion, the committee completed a draft declaration, as requested, in time for the commemorative session to celebrate the UN's 25th anniversary in 1970. The declaration embodies seven principles: the nonuse of force, peaceful settlement of disputes, nonintervention, sovereign equality, the duty to cooperate, equal rights and self-determination, and fulfillment of obligations under the charter.
Another example of a legal topic having a strongly political character is the definition of aggression. The International Law Commission originally was asked to draw up a definition of aggression. The task was taken over by the General Assembly only after the commission had failed to reach agreement. A special committee of the General Assembly draft ed the text of the Definition of Aggression, which was adopted by the General Assembly in 1974.
Another special committee of the General Assembly draft ed the International Convention on the Taking of Hostages, which was adopted in 1979, and still another prepared the draft of what became, after being approved by the General Assembly in 1982, the Manila Declaration on the Peaceful Settlement of International Disputes. A special committee, originally established by the General Assembly in 1977, completed a draft Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, which the General Assembly approved in 1987. The General Assembly also has established an ad hoc committee to recommend practical measures for elimination of the problem of international terrorism. The committee, in 1979, submitted its final report and recommendations to the General Assembly, which welcomed the results achieved. In 1980, the General Assembly established an ad hoc committee on the drafting of an international convention against the recruitment, use, financing, and training of mercenaries. The committee completed its work in 1989. In the same year, the General Assembly adopted a convention on the subject. In 1993, the General Assembly entrusted an ad hoc committee with the task of elaborating an international convention dealing with the safety and security of United Nations and associated personnel, with particular reference to responsibility for attacks on such personnel. The ad hoc committee held its first session in March–April 1994.
In 1996 the General Assembly established an ad hoc committee to elaborate an international convention for the suppression of terrorist bombings and, subsequently, an international convention for the suppression of acts of nuclear terrorism. This mandate continued to be renewed and revised on an annual basis by the General Assembly in its resolutions on the topic of measures to eliminate international terrorism. In December 2001, the ad hoc committee resolved to continue to elaborate a comprehensive convention on international terrorism as a matter of urgency, and to formulate a joint organized response of the international community to terrorism in all its forms and manifestations.
In 2001, the General Assembly established an ad hoc committee for the purpose of considering the elaboration of an international convention against the reproductive cloning of human beings. The ad hoc committee met from 25 February to 1 March 2002 to consider the elaboration of a mandate for the negotiation of such an international convention. Also in 2001, the General Assembly established an ad hoc committee on the scope of legal protection under the Convention on the Safety of United Nations and Associated Personnel, to strengthen and enhance the protective legal regime for United Nations and associated personnel.
Topics Selected for Codification
At its first session, in 1949, the commission considered 25 topics for possible study. It selected 14 of these for codification. The list was only provisional, and it was understood that changes might be made after further study by the commission or in compliance with the wishes of the General Assembly. The list, however, still constitutes the commission's basic long-term program of work.
Topics on which the commission has completed its work and submitted final draft s or reports to the General Assembly include the following: rights and duties of states; ways and means for making the evidence of customary international law more readily available; formulation of Nürnberg principles; the question of international criminal jurisdiction; reservations to multilateral conventions; the question of defining aggression; nationality, including statelessness; law of the sea; arbitral procedure; diplomatic intercourse and immunities; extended participation in general multilateral treaties concluded under the auspices of the League of Nations; law of treaties; special missions; relations between states and international organizations; succession of states in respect of treaties; question of protection and inviolability of diplomatic agents and other persons entitled to special protection under international law; the most-favored-nation clause; succession of states in respect of matters other than treaties; question of treaties concluded between states and international organizations or between two or more international organizations; status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier; jurisdictional immunities of states and their property; nationality in relation to the succession of states; responsibility of states for internationally wrongful acts; and international liability for injurious consequences arising out of acts not prohibited by international law (prevention of transboundary damage from hazardous activities).
The Sixth Committee itself sometimes functions as a codification body. On two occasions, with regard to the topics "Special Missions" and "Draft Convention on the Prevention and Punishments of Crimes against Diplomatic Agents and other Internationally Protected Persons," the Sixth Committee was assigned the finalization of the relevant conventions. The General Assembly subsequently adopted both conventions.
In 1994, the General Assembly, on the recommendation of the Sixth Committee, established an ad hoc committee to elaborate an international convention dealing with the safety and security of UN personnel. The committee's task was to consolidate, in a single document, the set of principles and obligations contained in existing treaties as well as to codify customary international law. The Sixth Committee also convened in New York in 1995 a United Nations Congress on Public International Law as part of the activities of the UN Decade for International Law (1990–1999).
Extended Participation in Multilateral Treaties Concluded Under the Auspices of the League of Nations
The commission's conclusions on the question of extended participation in multilateral treaties concluded under the auspices of the League of Nations were submitted to the General Assembly in 1963. On the basis of those conclusions, the General Assembly decided that it was the appropriate organ of the UN to exercise the functions of the League Council with respect to 21 general multilateral treaties of a technical and nonpolitical character concluded under the auspices of the former world body.
Law of Treaties
The most far-reaching task undertaken by the International Law Commission has been its work on the law of treaties—the laws governing the way in which treaties are to be negotiated, adopted, altered, and abrogated. The commission, which began work on this project in 1949, finally completed it in 1966, after 18 sessions. Throughout this period, the commission regularly submitted provisional draft articles to the General Assembly's Sixth Committee and to individual governments for comment. Accordingly, the final draft of 75 articles adopted by the commission and submitted to the General Assembly's 1966 session included many revisions. At a conference that met in two sessions in Vienna in 1968 and 1969, the Vienna Convention on the Law of Treaties was adopted. It came into force in 1980.
During the preparation of the draft articles on the law of treaties, the commission considered whether the articles should apply not only to treaties between states but also to treaties concluded by other entities, particularly by international organizations. The commission decided to confine its work to treaties between states, but following adoption of the Vienna Convention on the Law of Treaties, it took up, in consultation with the principal international organizations, the question of treaties concluded between states and international organizations or between two or more international organizations.
At a conference that met in Vienna in 1986, the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations was adopted.
In accordance with its 1949 program, the commission worked for a number of years on the codification of the law of the sea. Following a request of the 1954 General Assembly, the commission grouped together the articles that it had previously adopted and submitted a final draft on the law of the sea in 1956. The General Assembly called a special conference on the law of the sea at Geneva in 1958. At that conference, four conventions were adopted: (1) the Convention on the High Seas, which came into force on 30 September 1962; (2) the Convention on the Continental Shelf, on 24 April 1964; (3) the Convention on the Territorial Sea and the Contiguous Zone, on 10 September 1964; and (4) the Convention on Fishing and Conservation of the Living Resources of the High Seas, on 20 March 1966. (See also the chapter on the Law of the Sea.)
Reduction of Statelessness
In 1954, the commission prepared two draft s, one for a convention on the elimination of statelessness and another, which would impose fewer obligations on states, on the reduction of statelessness. General Assembly discussions showed that the first and more sweeping draft had no chance of acceptance. Even the measures on which countries would have to agree in order to reduce the number of stateless persons raised so many problems that two special conferences were eventually required, one in 1959 and one in 1961, to arrive at a Convention on the Reduction of Statelessness. It came into force in 1975.
Diplomatic and Consular Relations
In 1959, the commission adopted final draft articles on diplomatic intercourse and immunities. The General Assembly endorsed the draft s and convened an international conference, which met in Vienna in 1961 and adopted the Vienna Convention on Diplomatic Relations and two optional protocols, one concerning acquisition of nationality and the other compulsory settlement of disputes. The convention adapts to twentieth century requirements the rules for diplomatic intercourse formulated by the 1815 Congress of Vienna, which since that time have essentially governed diplomatic relations. It came into force on 24 April 1964.
Final draft articles on consular relations were submitted by the commission to the General Assembly in 1961. On the basis of these draft s, an international conference, held in Vienna in 1963, adopted the Vienna Convention on Consular Relations and two protocols. It came into force in 1967.
In 1968 and 1969, the General Assembly considered the question of a draft convention on special missions on the basis of draft articles prepared by the commission. On 8 December 1969, the General Assembly adopted the Convention on Special Missions and an optional protocol concerning the compulsory settlement of disputes. The convention, which came into force on 21 June 1985, provides rules applying to forms of ad hoc diplomacy—itinerant envoys, diplomatic conferences, and special missions sent to a state for limited purposes—that are not covered by the Vienna conventions of 1961 and 1963 relating to diplomatic and consular relations among states.
Protection of Diplomats
In 1973, the General Assembly adopted the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, on the basis of draft articles prepared by the commission. The convention's preamble states that crimes against diplomatic agents and other internationally protected persons, jeopardizing their safety, create a serious threat to the maintenance of normal international relations necessary for cooperation among states. It came into force on 20 February 1977.
Relations Between States and International Organizations
On the basis of draft articles prepared by the commission, the Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character was adopted in 1975 by an international conference.
Succession of States
Work on the subject of the succession of states was begun by the commission in 1962. Succession of states deals with cases in which dependent territories gain independence, as well as those involving the transfer of territory and the union, dissolution, and separation of states. In 1967, the commission divided the subject into three subtopics: succession in regard to treaties; in regard to matters other than treaties; and in regard to membership of international organizations.
Subsequently, two conferences were convened by the General Assembly to consider the subject on the basis of draft s prepared by the commission. The first conference, held in April 1977 and resumed in August 1978, adopted the Vienna Convention on Succession of States in Respect of Treaties. The second, which met in March–April 1983, adopted the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts. In 1999 the commission adopted draft articles on the nationality of natural persons in relation to the succession of states.
Jurisdictional Immunities of States and Their Property
The commission completed its work on this topic in 1991 and recommended that the General Assembly convene an international conference to examine the 22 draft articles and conclude a convention. The Sixth Committee examined the draft articles in a working group in 1992 and 1993 in order to resolve differences of views on some of the substantive issues raised. Then, the General Assembly, in resolution 55/150 of 12 December 2000, decided to establish an ad hoc committee on jurisdictional immunities of states and their property, to further the work done, consolidate areas of agreement and resolve outstanding issues undertaken by the International Law Commission at its 43rd session, and also on discussions of the Sixth Committee. The ad hoc committee was convened at United Nations Headquarters from 4 to 15 February 2002, and met again in 2003 and 2004.
International Criminal Court
In 1992 the UN General Assembly requested that the Commission elaborate a Draft Statute for an International Criminal Court, which could prosecute persons for serious crimes under international law. The commission completed the draft statute in 1994, and included crimes under general international law such as genocide, aggression, serious violations of humanitarian law, crimes against humanity, unlawful seizure of aircraft, apartheid, and hostage taking. The Rome Statute of the International Criminal Court was adopted by a diplomatic conference of plenipotentiaries on 17 July 1998. The statute was to remain open for signature in Rome until 17 October 1998, after which it remained open for signature at the UN Headquarters in New York until 31 December 2000. The Rome Statute entered into force on 1 July 2002. As of 14 November 2005, 100 states were parties to the statute.
TOPICS PENDING BEFORE THE GENERAL ASSEMBLY
The commission completed its work on the topic of the diplomatic courier in 1989 and recommended that the General Assembly convene an international conference of plenipotentiaries to examine the draft articles and conclude a convention on the subject. The Sixth Committee of the General Assembly considered the issue in 1990, 1991, and 1992 and decided to return to it at its 49th session in 1995. The 50th session of the General Assembly in 1996 invited governments to submit comments regarding the commission's suggestion to include diplomatic protection as a topic. At its 54th session in 2002, the commission considered the report of a drafting committee on diplomatic protection, adopted amended draft articles and commentaries to the articles.
The following items were on the agenda of the commission at its 58th session (in 2006): diplomatic protection; international liability for injurious consequences arising out of acts not prohibited by international law (international liability in case of loss from transboundary harm arising out of hazardous activities); responsibility of international organizations; shared natural resources; unilateral acts of states; reservations to treaties; expulsion of aliens; effects of armed conflicts on treaties; the obligation to extradite or prosecute (aut dedere aut judicare ); fragmentation of international law: difficulties arising from the diversification and expansion of international law.
UN COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL)
Like the International Law Commission, UNCITRAL is a permanent subsidiary organ of the General Assembly, which elects its members, observing the principle of balance among the geographical regions and the main economic and legal systems of the world.
In contrast to the International Law Commission, whose members serve in their individual capacities, the UN Commission on International Trade Law (UNCITRAL) is composed of the representatives of 60 (originally 29) states. Members serve six-year terms and are eligible for reelection. States not members of UNCITRAL, representatives of United Nations organs (the IMF and the World Bank), and some other international organizations (for example, the Inter-American Development Bank and the former Organization of African Unity, now African Union) may attend its sessions as observers.
The commission holds one regular session a year. As of 14 June 2004, the members of UNCITRAL (and the years their memberships expire) were: Algeria (2010), Argentina (2007), Australia (2010), Austria (2010), Belarus (2010), Belgium (2007), Benin (2007), Brazil (2007), Cameroon (2007), Canada (2007), Chile (2007), China (2007), Colombia (2010), Croatia (2007), Czech Republic (2010), Ecuador (2010), Fiji (2010), France (2007), Gabon (2010), Germany (2007), Guatemala (2010), India (2010), Iran (Islamic Republic of) (2010), Israel (2010), Italy (2004), Japan (2007), Jordan (2007), Kenya (2010), Lebanon (2010), Lithuania (2007), Madagascar (2010), Mexico (2007), Mongolia (2010), Morocco (2007), Nigeria (2010), Pakistan (2010), Paraguay (2010), Poland (2010), Qatar (2007), Republic of Korea (2007), Russian Federation (2007), Rwanda (2007), Sierra Leone (2007), Singapore (2007), South Africa (2007), Spain (2010), Sri Lanka (2007), Sweden (2007), Switzerland (2010), Thailand (2010), The former Yugoslav Republic of Macedonia (2007), Tunisia (2007), Turkey (2007), Uganda (2010), United Kingdom of Great Britain and Northern Ireland (2007), United States of America (2010), Uruguay (2007), Venezuela (2010), and Zimbabwe (2010).
Between sessions, working groups designated by the commission meet on specific topics such as electronic commerce, international contract practices, arbitration, and insolvency law.
A clear understanding of the respective rights and obligations of buyers, sellers, and other commercial parties facilitates the flow of trade from one country to another. When the laws of countries in this field are at variance, impediments may arise. In establishing UNCITRAL, the UN recognized that there was a need for it to play a more active role in removing or reducing legal obstacles to international trade.
UNCITRAL is charged with the task of seeking to resolve differences in national laws by providing texts that may become the basis of international conventions or other agreements. The 1966 General Assembly resolution establishing UNCITRAL invests it with seven specific functions in the furtherance of "progressive harmonization and unification of the law of international trade": coordinating the work of international organizations active in this field; promoting wider participation in existing international conventions, preparing new international conventions; promoting the means of ensuring the uniform interpretation and application of international conventions, collecting and disseminating information on national legislation and legal development in the field of international law; maintaining a close collaboration with UNCTAD; and maintaining liaison with other concerned UN organs and specialized agencies.
The Work of UNCITRAL
The commission draws up its own program of work, subject to the approval of the General Assembly. It selects topics that are both intrinsically capable of unification and ripe for final settlement by virtue of a sufficiently close convergence in their treatment among bodies of national law. Three topics have been given priority: the international sale of goods, international payments, and commercial arbitration.
The first treaty elaborated under the auspices of UNCITRAL was the Convention on the Limitation Period on the International Sale of Goods, adopted in 1974 and called the "Limitation Convention." The convention fixes at four years the period of time in which parties to a contract for the international sale of goods may sue under the contract, and it regulates various matters in regard to the commencement, prolongation, and termination of that period.
Other treaties elaborated by UNCITRAL include the UN Convention on the Carriage of Goods by Sea, adopted at Hamburg, Germany, in 1978 (the "Hamburg Rules"), which entered into force in 1992; the UN Convention on Contracts for the International Sale of Goods, adopted in 1980 (the "United Nations Sales Convention"); the 1988 Convention on International Bills of Exchange and International Promissory Notes (the "UNCITRAL Bills and Notes Convention"); the 1991 United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (the "United Nations Terminal Operators Convention"); and the 1995 United Nations Convention on Independent Guarantees and Stand-by Letters of Credit.
A growing area of work for UNCITRAL in the 1990s was model laws, which become the basis or guidelines for national legislation. Model laws have been issued on international credit transfers (in 1992); procurement of goods, construction, and services (1994); electronic commerce (1996); and cross-border insolvency (1997).
UNCITRAL also conducts a substantial training and technical assistance program, designed to disseminate information concerning UNCITRAL legal texts to government officials, legislators, practicing lawyers, judges, traders, and academics.
International law is the law governing states and other participants in the international community. It is formed largely by agreement among the participants, especially states, to create rules applicable to their affairs and is born out of the necessity to coexist and cooperate.
In early human history, large families and tribes exchanged food, concluded alliances, and fought each other often according to a code of conduct. The creation of organized political entities in the eastern part of the Mediterranean Sea, such as Egypt and Babylon, but also on a smaller scale, Greek city-states, resulted in a comparable system, in more organized forms. In the absence of a central authority, rules governing such relations had a contractual nature, developing a real legal system based on treaties. In ancient India and in China, during certain periods, political units also created and applied law governing their mutual relations.
The Roman Empire was born of treaties between Rome and cities in the neighboring area and then developed into a network of legal relations with other peoples. Later, however, Rome affirmed the ambition to govern the other states that it no longer considered as its equals. It also developed the idea of a jus gentium, a body of law designed to govern the treatment of aliens subject to Roman rule and the relations between Roman citizens and aliens, thus a legal system that was based on its domination.
Approximately three hundred years after the fall of the Roman Empire, distinct kingdoms emerged in Europe in the eighth century. Relations between private persons became progressively more frequent and needed the creation of norms to ensure personal security. This evolution led to the development of generally accepted rules between state entities that affirmed their exclusive power over the territory they dominated. In other words they proclaimed their sovereignty. Scholars of the sixteenth and seventeenth centuries, especially Spanish precursors and later the Dutch jurist Hugo Grotius, systematized the generally applied rules and elaborated a broad theory of law to govern the relations between states in times of peace and war. In 1648 the Peace Treaties of Westphalia (1648) ending the Thirty Year's War, which devastated the center of Europe, established a real international system that was progressively reinforced. Indeed, citizens of different countries cooperated in a growing number of fields, and states recognized their needs by exercising protection over them. In the nineteenth century, after the Napoleonic wars, the Final Act of the Congress of Vienna in 1815 reorganized Europe, establishing rules for diplomatic relations and recognizing that sovereign states had common concerns in matters such as navigation on international rivers.
This essentially European system expanded progressively to the Americas and to other parts of the world. Colonial expansion that provoked competition between European powers also involved the application of international legal rules to other parts of the world, even if it was mainly within the context of relations between colonial powers. By the end of the nineteenth century international law applied to the entire world.
Technological developments in fields such as transportation and communication helped the evolution of international law. World War I was a first step toward globalization and at its end states created the first international political organization in order to maintain peace, the League of Nations. With World War II came the failure of that order that generated hostilities in almost every part of the world. In 1945 the United Nations (UN) Charter created a new organization recognizing the primacy of fundamental values of humanity, such as safeguarding peace and protecting human rights. It also created an elaborate machinery for solving disputes among nations. In the following half-century the UN contributed considerably to the development of international law in different fields, such as the international protection of human rights, the law governing the seas, environmental protection, and the economic development of poor countries.
Definition and Scope
International law is mainly composed of rules adopted by states in the form of treaties, but it also contains customary rules resulting from state practice generally accepted by states and recognized as having a binding character. In addition, general principles of law are considered applicable in the relations between states.
Although international law originally only concerned relations between states as sovereign entities, recently other entities have emerged and been recognized as having a role to play in the international system: international intergovernmental organizations, nongovernmental organizations, businesses, and even individual stakeholders.
Sources of International Law
Traditionally, international law identifies its sources in Article 38(1) of the Statute of the International Court of Justice. Although applying only to the court, Article 38 represents the authoritative listing of processes that are deemed capable of creating rules binding on states. It sets out, in order, general or specialized international conventions (i.e. treaties), international custom as evidence of a general practice accepted as law, general principles of law recognized by civilized nations, and, as subsidiary means, international judicial decisions and doctrine. This enumeration is the accepted minimum, but many scholars contend that it does not reflect either the current international practice or the diverse activities that can contribute to the development of a new rule of law. In particular, it omits all texts, other than treaties, that are adopted by international organizations, although they play more than a nominal role in the formation of international law in general and especially in human rights law and humanitarian law.
According to the Vienna Convention on the Law of Treaties of May 23, 1969, generally accepted as the expression of international law related to treaties, a treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single text or in two or more related texts and whatever its particular designation. The last words reflect the variety of terms used for designating a treaty: convention, charter, agreement, covenant, protocol, general act, exchange of letters or notes. The essential criterion of a treaty, whatever its title, is the will of the states to commit themselves. Thus, the often used term the contracting parties designates the states that intend to be bound by a specific treaty. Every state possesses the capacity to conclude treaties.
The consent of a state to be bound by a treaty is expressed by the signature of its duly authorized representative or by the exchange of the text(s) constituting a treaty. As a general rule, treaties that have a major impact on the domestic legislation of the contracting parties are submitted for the approval or ratification of national authorities such as the heads of state of the contracting parties, or of their legislative organ, or both. When the treaty provides for it, states that did not sign the original agreement can become parties by accession.
Unless the treaty prohibits it, contracting parties may make reservations. A reservation is a unilateral statement made by a state, when signing, ratifying, accepting, approving, or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty, in their application to that state. Nevertheless, as stated by the International Court of Justice in its advisory opinion related to the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (May 28, 1951), the object and purpose of a convention can limit the freedom of a state to make reservations. The intention of the treaty's authors to have as many states as possible participate must be balanced by ensuring that the very objective of the treaty is not undermined or destroyed.
One of the fundamental principles of international law is that every treaty in force is binding on the parties to it and must be performed by them in good faith. A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. In principle, a treaty has no retroactive effects, unless a different intention surfaces from it or is otherwise established. It shall be interpreted in good faith in accordance with the ordinary meaning given to its terms and in light of its objective and purpose. A treaty generally does not create either obligations or rights for states that are not parties to it without their consent; however, rules of customary international law in a treaty will have independent force of law.
A treaty may be amended by agreement between its parties. The termination of a treaty or the withdrawal of a party may take place in conformity with the provisions of the treaty concerning its termination or by consent of all parties. If the treaty contains no provision regarding its termination and does not allow for denunciation or withdrawal, it in principle cannot be denounced.
International law contains various rules that may invalidate certain agreements, making their provisions have no legal force. Treaties, for instance, can be invalidated if an error led to a state's consent to be bound by it or the state has been induced by fraud to conclude a treaty. An additional factor that can result in the invalidity of a treaty is the corruption or coercion of a representative of a state. A much discussed principle is that of jus cogens, according to which a treaty is void if at the time of its conclusion it conflicts with a peremptory norm of general international law. Such a norm of general international law must be accepted and recognized by the international community of states as a norm from which no deviation is permitted. Although no treaty has identified any norm as one of jus cogens, there is general agreement that the prohibition of genocide is such a norm. This means that any treaty to commit genocide would be void.
Treaties can be bilateral if only two states conclude them, or multilateral. The number of the contracting parties to multilateral agreements may be very high. Several conventions with a worldwide scope, such as the Convention on Biological Diversity of 1992, are binding on almost all the 189 member states of the UN. The Convention on the Rights of the Child has been accepted by all but two states (the United States and Somalia). The Convention against Genocide has 133 parties as of September 2003.
Treaties may include different parts. Their text generally starts with a list of the contracting parties followed by a preamble that in itself has no binding character but explains the reasons why contracting states accept the obligations imposed by the treaty. The main part of the treaty is divided into articles that sometimes constitute chapters. The technical provisions frequently form one or several annexes to the treaty. They have the same binding character as the main text, but often they can be more easily modified.
A growing proportion of treaties only establish the principles of cooperation between contracting parties and are instead completed at the time of their adoption with additional treaties, generally called additional protocols or simply protocols. The European Convention on Human Rights has thirteen protocols, adopted between 1952 and 2003. Despite the links protocols generally have with the main treaty, legally they are independent from it and the whole of such texts can be considered as a treaty system creating a special regime.
During the last half of the twentieth century a fundamental characteristic of treaties was modified. In conformity with the traditional contracts approach originating with Roman law, treaties were as a rule based on reciprocity. This means the contracting states had to offer advantages equivalent to those that they received from the other contracting parties. The emergence and universal recognition of values common to humanity, such as maintaining peace, protecting human rights, and safeguarding the environment, promoted the drafting and adoption of treaties that include no reciprocity. Thus by virtue of such treaties, the contracting states accept obligations without any direct and immediate counterpart. Such obligations include respecting fundamental rights and freedoms of all persons under the treaty's jurisdiction, protecting biological diversity, and respecting international norms prohibiting the production and use of certain substances or weapons. International conventions prohibiting and punishing genocide and crimes against humanity fall into this category.
Other sources of international law
A large number and wide variety of international legal rules are generated by means other than the explicit consent of states expressed in treaties. Customary law was for centuries the main source of international laws, but essential parts of it, such as the rules governing international treaties themselves, the rules of diplomatic and consular relations, the law of the sea, and a portion of the rules related to international watercourses, have been transformed into treaty rules by the codification process that is much encouraged by the UN. At the same time rules repeated in a significant number of treaties, such as the principle of prevention and the precautionary approach in treaties related to environmental protection, may be considered as having become rules of customary law with a scope much larger than the treaties that include them. A good example is the Martens Clause, repeated or referred to in most treaties related to armed conflicts. According to it, in cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.
In addition, resolutions and recommendations adopted by international institutions or conferences, which formally are not binding on the states that participated in their elaboration, the so-called soft law, can be considered in certain cases as creating customary law when state practice supports it.
Other sources of international law that are not based on the consent of states also play a certain role in interstate relations. When they decide disputes involving states, judicial institutions—whether national or international—cannot avoid applying general principles of law, such as good faith, the prohibition of abuse of rights, rules concerning evidence, and other procedural rules. In addition, equity may inspire such decisions, but most often reference to equity needs the consent of the states who are parties to a dispute.
Until the middle of the twentieth century it was generally held that only states could have rights and duties in international law. They were thus the only subjects of international law who could create the rules of international law (see above) and have official relations with others on equal footing. As persons of international law, they had to possess a defined territory, a permanent population, and an effective government.
Exclusive control over a territory, or sovereignty, is the essence of a state. It means that the state may adopt and enforce laws within that territory and prohibit foreign governments from exercising any authority in its area. Such exclusive jurisdiction has as its corollary the obligation to protect within the territory the rights of other states and to apply the rules of international law. The territory of a state is defined by borders that separate it from other areas. Within the territory, which includes the air space above the land and the earth beneath it, the state is united under a common legal system. Territory also includes a part of the sea adjacent to the coast up to twelve miles out. A state exercises territorial jurisdiction over all people present on its territory, even if they are not its citizens.
A state also requires a permanent population, the human basis of the existence of a state. Who belongs to the state's population is determined by the rules on nationality that the state itself promulgates, in its discretion. The most common ways in which nationality is conferred on a person are by birth, marriage, adoption or legitimization, and naturalization. When a territory is transferred from one state to another, the population of the transferred territory normally acquires the nationality of the annexing state. There are no legal requirements regarding the ethnic, linguistic, historical, cultural, or religious homogeneity of the population of a state. Issues related to lack of homogeneity of the population, such as the rights of minorities and indigenous peoples, are not relevant as criteria to determine the existence of a state. The size of the population and its territory may be very small: Micro-states with areas less than 500 square miles and populations under 100,000, such as Andorra, Grenada, Liechtenstein, Monaco, Antigua, and Barbuda, are considered states. A state exercises personal jurisdiction over its nationals, as well as over the ships and aircraft flying its flag when abroad.
A government's effective control of territory and population is the third core element that brings together the other two into a state. Internally, the existence of a government implies the capacity to establish and maintain a legal order, including respect for international law. Externally, it means the ability to act autonomously on the international level in relations with other states and to become a member of international organizations. The requirement of effective control over territory is, however, not always strictly applied. A state does not cease to exist when it cannot temporarily exercise its authority because its territory is occupied by foreign armed forces or when it is temporarily deprived of an effective government as a result of civil war or similar upheavals. In any case, in principle, international law is indifferent to the internal political structure of a state. A government must only establish itself in fact; the choice of government is a domestic matter to be determined by individual states. International law does not generally delve into the question of whether the population recognizes the legitimacy of the government in power, although this has been changing in recent years with an increasing emphasis on fair elections and democratic institutions.
The notion of effective government is linked with the idea of independence, often termed state sovereignty. Indeed, a government is considered a real one in international law if it is free of direct orders from and control by other governments. International law however, does not investigate the possibility that a state may exist under the direction of another state, as long as a state appears to perform the functions that independent states normally do.
International intergovernmental organizations
The first international organization was created in 1815 for ensuring the freedom of navigation on the river Rhine. Since 1865 with the establishment of the International Telegraphic (present-day Telecommunications) Union and 1874 with the founding of the Universal Postal Union, international organizations have proliferated. After World War I the League of Nations, the first universal institution with a political character, had the task of maintaining peace and intergovernmental cooperation. Since the end of World War II the UN has sought to ensure a more developed form of collective security. Its Charter attempted to provide it with means of action, including the power to discuss any question having an impact on international relations and to act when peace is at stake. States also created independent but related specialized agencies for ensuring cooperation between governments in a number of fields, such as food and agriculture, health, science, education and culture, meteorology, and civil aviation.
During the period following the adoption of the UN Charter states of different regions created organizations with a more limited territorial scope but broad aims, functions and powers: the Organization of American States, Council of Europe, and Organization of African Unity. These three regional organizations also established special systems for the protection of human rights in their respective areas. In addition, specialized organizations for regional cooperation have been instituted for specific purposes, such as defense (the North Atlantic Treaty Organization, otherwise known as NATO) or the economy (the OECD or European Free Trade Association). Altogether there are approximately five hundred international organizations created by states. Most of them are of a traditional nature; they are in essence based on intergovernmental cooperation. Their institutions generally include an assembly with deliberating power, one or more restricted branches for acting in the name of the organization, and a secretariat. Only rarely do states give an organ or organization power to adopt decisions that legally bind their members. The UN Security Council is an example of an international organ that does have such power.
A new type of international organization created a higher level of cooperation, and the term integration is often used to designate it. It implies the transfer of sovereignty from member states to the regional level. The European Union is the most developed model for such organizations. It includes branches composed of persons who are not government representatives, and it can make binding decisions that have a direct legal effect on individuals and companies. Decisions may be taken by a majority vote and the compliance of member states in meeting their obligations is subject to judicial review.
Whatever their legal status might be, it is recognized that intergovernmental organizations have a legal presence in international law, at least as far as their functions require such a status. This means that they can conclude international treaties among themselves or with states, receive and send diplomatic representatives, and enjoy immunities granted to states and state representatives.
Private international organizations, such as Amnesty International, the Human Rights Watch, or Doctors without Borders, play an active role in international affairs. They are generally called nongovernmental organizations (NGOs) because they are not established by a government or by an agreement between states. Instead their members are private citizens and they are usually created as non-profit corporations under the law of a particular state, such as England for Amnesty International. International NGOs have proliferated considerably during the past few decades and are engaged in a broad variety of different areas, ranging from the legal and judicial field, the social and economic domain, human rights and humanitarian relief, women's and children's rights, education, and environmental protection. In the field of international business important NGOs include the International Chamber of Commerce (ICC), the International Air Transport Association (IATA), and international federations of trade unions and employers. All are incorporated under the law of a particular state, with the possibility of creating substructures in other states. There are no standards governing the establishment and status of international NGOs, and this may cause problems because national laws differ from one country to another.
Intergovernmental organizations may agree to grant NGOs a certain consulting or observer status and thereby a limited international standing, but this does not make them directly governed by international law.
The role of NGOs in the international legal system is an informal one, although their representatives may be included in national delegations that participate in international conferences or meetings of intergovernmental bodies. In practice NGOs have four categories of function. They can propose to governments initiatives related to international cooperation. They can participate in law making, by providing the information and expertise intergovernmental bodies need to draft treaties or resolutions. In some cases NGOs attend meetings of contracting states that discuss compliance with multilateral treaties. Finally, they can inform the public of state or interstate activities and of their results or failures, if necessary by organizing campaigns, and thus exercise in this way an influence on governmental policy. Thereby, if NGOs are not subjects of international law, they can be in some situations very effective, especially those recognized as having a high moral standing.
Individuals and companies
Early international law encompassed individuals in three basic ways. First, states had the right to protect their nationals abroad against the misconduct of foreign authorities, invoking the international responsibility of the territorial state, provided such authorities were acting on behalf of the state. Protecting states could and did ask for remedies. That procedure is called diplomatic protection. It may be exercised only by states, under conditions established by international law. Both international responsibility and reparation belong to the sphere of interstate relations. Second, international law also recognized the immunity and privileges of certain categories of individuals representing a foreign state: heads of state, diplomats, and special envoys on mission in a foreign country. Finally, in times of armed conflict prisoners of war, the wounded, and the sick as well as civilian populations were protected by the rules of international humanitarian law. As a result, doctrine generally held that states were the direct participants (subjects) in the international legal system and they could regulate or protect individuals who were not direct participants but could be the object of state regulation or action.
Modern international law first directly recognized individuals when certain acts were deemed criminal as attacks on international society. Initially, piracy and then slave-trading were outlawed. After World War I those responsible for breaches of international obligations related to armed conflicts were personally accused of war crimes; some of the accused were even condemned to death. After the war the creation of the International Labour Organization called for the implicit recognition of certain rights later called economic and social rights. The UN Charter and Universal Declaration of Human Rights proclaimed in 1948 recognized the fundamental rights of individuals. Conventions with a general scope as well as in specific fields, both at a worldwide level and within regional frameworks, further developed such norms. Recent evolution further developed norms concerning the direct criminal responsibility of individuals under international law.
Present international law thus directly recognizes the rights to individuals and imposes certain duties on them. In terms of rights some of the conventions protecting human rights allow individuals and victims of violations of protected rights to submit their case to specific international jurisdictions. Different nonjudicial systems were also developed to remedy such violations, especially within the framework of the UN. In terms of duties, following the example of the Nuremberg and Tokyo tribunals that judged and condemned the German and Japanese perpetrators of crimes against humanity committed during World War II, international criminal jurisdictions have multiplied. First, they were created for crimes committed in specific areas, such as the former Yugoslavia and Rwanda. Finally, a convention adopted in Rome on July 17, 1998, established a permanent International Criminal Court.
Companies and especially multinational ones may hold more economic and political power than many states, especially within the context of economic globalization. Still, states do not accept them on legally equal footing. As such, they generally do not benefit from the protection of human rights and as a rule they are not criminally responsible before international tribunals. States and international bodies have tried to find a compromise by establishing partnerships with corporations and by formulating codes of conduct of a recommended nature.
In summary, states do not recognize individuals, NGOs, and companies as equal subjects of international law or even as having, like intergovernmental organizations, a specific international legal status corresponding to their functions. Nonetheless, they exercise a real influence on the behavior of states in areas such as economy and policy, especially within the context of sustainable development and globalization. Referred to as the international civil society, they are, however, progressively accepted as important players in international relations.
Some historians and observers take a further step and, given the growing number and expanding complexity of economic and other relations, use the term stakeholders to include all those who are concerned with a particular legal situation. If no one has so far suggested that international law should recognize the new category in legal terms, states as well as international bodies increasingly accept their existence and potential role in the international field.
Ethnic Minorities and Indigenous Peoples
The status and protection of ethnic, linguistic, or cultural minorities in international law emerged in Europe after World War I. After World War II certain rights were granted to such groups, but states were reluctant to take steps that might increase the danger of claims to independence and secession. Owing to efforts made by international bodies such as the UN General Assembly and the Council of Europe, progress was made toward the better protection of minority rights. Such rights are most often conceived of as a category of human rights, to be exercised by the individual belonging to a minority, rather than as rights attributed to a collective entity or group.
Indigenous peoples were virtually unmentioned in international law several decades ago. Although historically important differences may exist between such groups and minorities, from a legal perspective the distinction is not easy to make. International conferences and institutions, however, progressively proclaim and recognize the rights of indigenous and local communities. The question of the international legal standing of indigenous groups is, in fact, a question of the specific rights attributed to them by states. They are not subjects of international law, but actors contributing to the formation of international rules of law.
In conclusion, it may be stated that international law is undergoing a transformation, progressively recognizing the role and place of nonstate actors and the need to implement norms protecting fundamental values, such as peace, human rights, and the environment.
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INTERNATIONAL LAW.SOURCES OF INTERNATIONAL LAW
INSTITUTIONALIZATION, EXTENSION, AND CODIFICATION
THE LAWS OF WAR (INTERNATIONAL HUMANITARIAN LAW)
International law comprises those rules and processes that are produced by states to regulate their mutual behavior, or that have arisen to regulate international transactions by states, private organizations, and individuals. Persons used to the certainties of municipal (that is, national or domestic) law are puzzled by several features characteristic of international law. No single authority acts as legislator or interpreter of the law. No court exercises compulsory jurisdiction over breaches in the law; sanctions are more often applied by the offended states, sometimes in the form of reprisal. And the sources of international law are not restricted to easily identifiable legislation issuing from an agreed-upon political process. Further, international law seems often ineffective, and surely some of the most catastrophic and murderous transgressions against it occurred during the bloody twentieth century. But Immanuel Kant (1724–1804) recognized that conflict and strife not only challenge the law, they also create it, as states attempt to solve the problems they have caused. And so the twentieth century saw not only the greatest crimes against, but also the greatest extensions of, international law in the areas most troubling to its success: the (as yet) incomplete creation of international cooperative authority in the League of Nations (1919), the United Nations (1945), and the European Union (1993); the establishment of a permanent Court of Arbitration (1899), which developed into the permanent International Court of Justice (ICJ, 1945), and a permanent International Court of Criminal Justice (ICC, 2003); the writing down (codification) of legal custom and the specification of the law's sources; and finally the expansion of the laws of war, which restricted the permitted methods of fighting as they widened the scope of recognized human rights.
The "Martens Declaration" in the preamble to the Hague Regulations (1899)
[I]n cases not included in the Regulations … populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.
The sources of international law are enumerated in Article 38 of the Statute of the International Court of Justice
- Treaties between states are by far the most unambiguous and numerous sources. The League of Nations began the requirement of publicly registering treaties, and its successor the United Nations has recorded more than twenty-five thousand.
- Custom, that is, the actual practices of states or collective actors, is the original form of international law, before it was written down. Custom is wider than treaties, because it applies to all actors in the international community, not just to those who have explicitly agreed to a written rule, for example, by ratifying a treaty. And custom changes over time, so it is naturally controversial. Some rules, such as the Geneva Conventions of 1949, which originally applied only to signatories, have since been accepted as customary and are taken to apply to everyone.
- "The general principles of law recognized by civilized nations" is the third source. In the seventeenth century, the Dutch jurist Hugo Grotius (1583–1645) laid the foundations of international law in his De Jure Belli Ac Pacis (1625; The rights of war and peace) , and through the eighteenth century these principles were known as natural law. In the first international codification of the laws of war at the First Hague Convention (1899), the Russian jurist Fyodor F. Martens called them "the laws of humanity." In the early twenty-first century they are known as jus cogens (compelling law). By any name they refer to principles basic to all law and human action and that are thus prior to and superior to positive, written law.
- Judicial decisions also make international law. These may be judgments by the permanent courts (ICJ, ICC), by special tribunals such as the International Military Tribunals after World War II or by national courts, since most international law cases are tried in national venues.
- "The most highly qualified publicists of the various nations" also help determine law by discovering the patterns of custom or interpreting law, practices, and public opinion.
- Equity, that is, basic principles of fairness, may also play a role in deciding cases in international law.
The world wars before 1945, the civil wars thereafter, and the mass death caused by them all have driven international law to change in broadly three ways: it has become institutionalized, extended, and codified.
Institutionalization has occurred on several levels. International cooperative institutions such as the League of Nations and the United Nations simultaneously uphold and limit the sovereignty of their members, for example, by subjecting them to the human rights provisions of the UN Charter as a condition of joining. Regional security or economic organizations, such as the North Atlantic Treaty Organization or the Western European Union, have also burgeoned since 1945. The European Union, developing from the Organization of European Economic Cooperation (1948), has become so strongly integrated in economic, political, security, citizenship, and legal terms that it constitutes a new kind of federated state. Its various organs, including the European Parliament, European Court of Human Rights, and the European Court of Justice have produced abundant "European law," a subset of international law. Finally, international law is practiced and formed by nonstate institutions. The oldest is the International Committee of the Red Cross (ICRC), a private Swiss organization founded in 1874 to aid wounded soldiers. In order to gain the acceptance and cooperation of suspicious belligerent states, the ICRC had to assume a stance of neutrality and public discretion unique among nongovernmental organizations (NGOs). Its diplomatic savvy and expertise have allowed it to play a leading role in expanding the scope of the laws of war. Since the 1960s other, more partisan NGOs, such as Human Rights Watch or Doctors without Borders, have driven international law forward by providing information on current breaches of the law and by arousing public opinion to demand international intervention and sanctions.
Institutions do not work magic. The Hague Conventions (1899, 1907) did not achieve the disarmament for which they aimed, and the League of Nations and the United Nations have not provided universal security or peace. States have jealously guarded their sovereignty against legal limitations and have been reluctant to risk money or blood to uphold law; the League was famously undercut by the unparalleled, ideologically motivated lawlessness of Italian fascism, German National Socialism, and Soviet communism. But these institutions have all been successful in incrementally expanding the breadth and depth of international law.
The League did so, for example, by anchoring the sanctity of treaties (pacta sunt servanda) in its founding articles, protecting national minorities in treaties with the successor nations in eastern Europe, fostering arbitration of disputes, and creating subsidiary organizations (such as the International Labor Organization and the High Commissioner for refugees) to supervise areas of potential conflict. The League's template was then improved upon by the much more active United Nations. It established the first International Military Tribunal to try war crimes (1945–1946). Its subsidiary organizations create international regulations on everything from children (UN International Children's Emergency Fund, UNICEF) to culture (UN Educational, Scientific and Cultural Organization, UNESCO). The United Nations actively promotes the codification of international law in all areas. It does so partly in response to the huge growth of trade, commerce, communications, and transportation that are now labeled "globalization." Human activity is less constrained by national borders than ever before, and as international commerce, in every sense, grows, so will international law.
One might imagine the enormous spread of international law, especially since 1945, as occurring in three dimensions: spatially, thematically (that is, what sorts of areas are now regulated), and in terms of the subjects of law (that is, states, private organizations, and/or individuals).
As one can see from the ICJ's phrase "principles of law recognized by civilized nations," statesmen and lawyers originally thought of international law as limited to the West. But the law typically tends to expand by analogy. The British, for example, decided in 1900 that the Boer War, which they were fighting in South Africa, should fall under its sway. Whether the limits and protections of international law should apply to colonies was always controversial, but by the 1960s decolonization had solved the problem, as colonies became nation-states, members of the United Nations, and incontrovertibly part of the international community.
Increasingly, international law reached into the uninhabited areas of the earth and beyond. International treaties regulated the Arctic (1933), the Antarctic (1959), the sea floor (1982), and outer space (1976). True to Kant's principle, it was conflicts among nations newly active in these areas that produced the international law to govern them.
The same principle applies to the expansion of international law into new thematic fields. In 1900, international law concerned war, the sea, treaties, diplomacy, merchants, and the recognition and succession of states. By 2000 it focused also on international arbitration, refugees and immigration, trade, organized crime, international organizations, international financial law and taxation, state responsibility, the environment, and human rights.
In the nineteenth century international law was taken to be a law of states; states and their representatives (ambassadors, soldiers) were the only ones who had duties and rights under it. That has now radically changed. Individuals and their welfare are now an important focus of international law. Especially since 1945, the protection of civilians has promoted an astonishing catalog of human rights, most notably in the UN General Assembly's 1948 passage of the Universal Declaration of Human Rights. These go far beyond the minimal right to "life, liberty and security." They include the full panoply of liberal civil-political rights and also the socioeconomic and cultural rights ("to social security," work, a living wage, leisure time, and education) that socialists had put on the human agenda in the mid-nineteenth century. Human rights law is currently one of the most active sectors of international law.
If at the beginning of the twentieth century international law suffered from undercodification, some observers fear that it has become overcodified. They foresee three dangers. Committing the law to writing tends to freeze it, making it less able to respond to changing conditions. One of the advantages to (unwritten) custom was precisely its adaptability. A second problem lies in normativity. International law strives to reflect reality, including real force relations and actual practices. Some legal experts think that since the 1970s, codification has rushed ahead of practice and therefore contains too much "soft" law, that is, injunctions or "oughts" that make the law unlikely to be followed. That produces the third problem: it encourages scofflaws and undermines respect for law in general. This debate has nowhere been stronger than regarding the laws of war.
The Laws of War, now called International Humanitarian Law (IHL), are in many respects the oldest and best-developed part of general international law. IHL has two parts: the law governing when it is permissible to engage in warfare (jus ad bellum), and the law regulating how to fight war (jus in bello). The purpose of jus in bello is "to alleviate, as much as possible, the calamities of war" and to prohibit practices that "uselessly aggravate the sufferings" of soldiers or civilians (Declaration of St. Petersburg, 1868). IHL is not designed to prevent war, to change power relations, or to make fighting war impossible. It must therefore be realistic in its assessment of weaponry and military requirements. Its codification in the nineteenth and twentieth centuries has always involved not just statesmen and lawyers but also military officers. During its centuries-long history IHL has developed principles that are then extended analogously to fit new situations and technologies. Three of the most important are: proportionality (destruction must be proportionate to the military gain), absolute prohibition (not everything goes in war, even in extremis), and discrimination (between soldiers, who are a legitimate target for killing, and civilians, who are not). In the twentieth century the protections of IHL have been extended from an almost exclusive focus on combatants to include civilians, whose increasing rights under international human rights law have steadily narrowed the permitted scope of military action. However, supervision and enforcement remain major problems.
By the time World War I broke out in 1914, IHL consisted of two domains of positive (written) law. The "Geneva" side protected soldiers no longer capable of fighting (the wounded, sick, or captured) and those who ministered to them, including the civilians of the Red Cross. These rules were set down in the Geneva Convention of 1864 and revised in 1906, 1929, and 1949. The "Hague" side regulated armed conflict itself. Since 1945 the tendency has been for Hague and Geneva law to fuse together.
The Hague Regulations Concerning the Laws and Customs of War (1899, 1907) were the first codification of the customs governing warfare, worked out by mostly Western states. Disagreements between large and small, and land and naval, powers restricted the rules' scope. They recognized, some would say too much, the legitimacy of military necessity in annulling legal curbs to destruction, but they limited recourse to that excuse to a few specific circumstances. The rules protected civilians by limiting bombardment and draconian occupation techniques but were silent on reprisals, concentration camps, forced labor, and deportations. The debate about the right of enemy civilians to resist occupation produced a wider definition of a combatant, who could now be a militiaman or civilian volunteer, so long as he or she was part of an organized force, recognizable as an enemy, carrying arms openly, and obeying the laws of war. The preamble underscored the important principle that international law has force even beyond written treaties.
World War I shocked contemporaries by the endless casualties, the terrific mistreatment of occupied civilians, and the use of horrifying new weapons (gas, tanks, submarines, airplanes). Allied propaganda sensationalized the (many) German violations, but the Allied blockade, which broke provisions of the Declaration Concerning the Laws of Naval Warfare (London, 1909), which many observers took to be customary law, starved hundreds of thousands of enemy civilians. The postwar attempt to try war criminals ("Hang the Kaiser") was thwarted by considerations of political expediency and state sovereignty, except in Turkey, where some officials responsible for the Armenian Genocide of 1915–1918 were tried and even executed before the regime of Kemal Atatürk stopped the trials.
Disappointment with the efficacy of international law may have led to a concentration in the interwar years on preventing war rather than refining jus in bello. Both the League of Nations' founding articles and the Kellogg-Briand Pact (1928) reflect that sentiment. Nevertheless, Hague law was extended to cover aerial warfare (1923), prohibit poison gas (1925), and regulate submarines (1936). Attempts were under way to give occupied civilians greater protection under "Geneva" law when World War II began in 1939.
World War II appeared to obliterate IHL. The relatively humane treatment of most prisoners of war on the western European front and the avoidance of gas warfare were two of the few areas in which law appeared to work. Many factors canceled it altogether. National Socialist racial ideology launched a war of extermination in which millions of civilians and Soviet prisoners of war died. The Soviet Union responded with terrific ferocity. The Western Allies' area bombardment of cities was the complex result of an early inability to strike the enemy directly in any other way, retaliation, the desire to protect their own soldiers, and the air forces' military culture reaching back to World War I.
The seeming nadir of IHL led to systematic attempts after 1945 to make it stronger and more effective. Those attempts began immediately with the International Military Tribunals at Nuremberg and Tokyo, which inaugurated the legal concept of "crimes against humanity" and institutionalized the principle of individual responsibility, both for soldiers following illegal orders and for heads of state pursuing murderous policies. The Geneva Conventions of 1949 went further by giving national courts universal jurisdiction and responsibility to pursue and try war criminals regardless of where or against whom the crime was committed.
IHL, responding to the catastrophes of the past and to the interests of the victors, develops unevenly. Nuremberg ignored Allied bombardment and Soviet rapes and massacres. But civilian suffering obviously demanded protection. Immediately after the war the ICRC and then the United Nations pushed to revise the Geneva Convention. In 1949 their efforts produced international consensus extending protections listed in 417 articles to the classic "Geneva" groups: the wounded, sick, and captured combatants, at sea as well as on land. The fourth convention now also covered civilians in enemy hands. Besides universal jurisdiction, the Geneva Conventions contained two other novelties. They required signers to uphold its terms even if their foes violated them, thus rejecting the ancient principle of reciprocity. And the provisions cover not just international, but also domestic "armed conflict" (Common Article 3).
The extension of IHL to noninternational conflict was especially important because the nature of warfare changed after 1945 from predominantly interstate to anticolonial, civil, and guerrilla wars in which civilians were proportionately more victimized than ever before. Because IHL is supposed to apply to real practice, the ICRC proposed further changes and codification to reflect the new kinds of conflict. For the first time Third World nations played an active part in codification. The result was Additional Protocols (AP) 1 and 2 (1977) which nominally modified the Geneva Convention but which actually revised the Hague Regulations. AP 1 broke new ground in three areas. It protected even the enemy's civilians at home by narrowly defining permissible military targets and outlawing indiscriminate attacks (such as area bombing), methods of terror, starvation, and reprisals. It forbade "widespread, long-term and severe damage" to the environment. And it recognized guerrilla fighters as legitimate combatants, dropping the requirement that they always carry arms openly and be uniformed. Especially this last change was controversial and led many Western nations to withhold ratification. Opponents claim the APs make war impossible to fight and give unfair advantages to guerrillas; proponents reply that they simply recognize how wars are fought at the turn of the twenty-first century and that they protect vulnerable civilians. It was easier to reach consensus on the prohibition of land mines, booby traps, some incendiary devices, and fragmentation weapons invisible to X-rays (1981 UN Weapons Convention). However, neither napalm nor atomic weapons have been outlawed. These controversies and the continuing lack of adequate supervision and enforcement mechanisms (despite the establishment of the International Criminal Court) remain challenges to the operation of international law.
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Isabel V. Hull
The article under this heading deals with the nature, scope, and study of international law. Major areas of the field are discussed in Adjudication, article on International Adjudication; Conflict OF Laws; International Legislation. Various international legal problems are analyzed in Diplomacy; Disarmament; Human Rights; International Conflict Resolution; International Crimes; Sanctions, International; Space, Outer, article on Political AND Legal Aspects. Especially relevant to the development of the field are the biographies of Grotius; Kelsen; Moore, John Bassett; SuÁrez; Vattel. Related material can be found under International Organization; International Relations; Public Law; and in the detailed guide under Law.
Two fields of jurisprudence claim the title “international law.” Private international law, also known as conflict of laws, consists of the principles by which national courts decide which of two or more national systems of law should apply to a transaction marked by international elements of place, participation, or subject matter. Apart from treaty, these principles rest solely upon national authority, and the title “international” for this field is therefore in dispute, though the transnational features of the claims involved provide some justification for it. What is more commonly and undisputedly understood by international law is public international law, and it is with this alone that the present article is concerned.
The traditional definition of public international law presents it, in the much quoted words of Brierly ( 1963, p. 1), as “the body of rules and principles of action which are binding upon civilized states in their relations with one another.” There are, unhappily, ambiguities in this hallowed description that rob it of the accuracy expected of definition. It begs essential questions. In what sense, for example, is what we call international law binding upon states? What is the meaning and relevance of “civilized”?
We move nearer to the facts when we describe international law as the complex of rules, principles, standards, and procedures more or less observed by governments in their business with one another. Governments habitually assert that they are scrupulously observing internationally approved norms of official conduct in such business. They even acknowledge a legal obligation so to act. But they also reserve the right to determine for themselves what the rules are. Their submission to impartial adjudication is either by special agreement or, if made in advance, subject to such exceptions as “political disputes” and “domestic jurisdiction.” General also is the tacit reservation of self-preservation as defined by the interested state party, whereas in national systems this plea is subject to judicial scrutiny and limited by the rights of others. We have not yet reached in the international sphere that basic rule of modern legal systems which requires universal submission to impartial determination of what the law is in any given situation.
Such reservations narrow the scope and limit the efficacy of international law. When all these qualifications have been made, however, it remains true that the norms grouped under that title do play a part in shaping the policies and determining the conduct of governments and do serve importantly in the resolution of international conflict. They are invoked in the assertion of title to territory and in support of the authority of states therein, while on the other hand they define responsibilities for injuries to alien persons and enterprises within the national jurisdiction. These norms stipulate the freedom of the high seas and set limits to the maritime jurisdiction of states. They define rights and duties in the air and are being extended to outer space. They regulate diplomatic and consular interchange and the conclusion and effect of treaties. Historically, they have limited the scope and moderated the savagery of war, though the conditions of a nuclear age call for drastic revision of what used to be the most highly elaborated portion of international law.
In our time, more than ever, it is useful for even the most powerful state to make out a broadly respected legal case for any important international action it may wish to take. The “parliamentary diplomacy” that has become so familiar in the multifarious activities of the United Nations and in incessant ad hoc conferences requires constant justification of national policies, and the support of a strong majority reduces the material and other costs of performance. The appeal to law is accordingly a commonplace of international political debate. As for international arbitral and judicial proceedings, these depend for their present limited success, as well as for their promise of increasing efficacy as a substitute for war, upon exhaustive argumentation and reasoned decision couched in international legal terms. The resulting “case law” clarifies and enriches the fund of principles available for the rational disposal of disputes among nations.
References to law binding upon governments abound in the ancient, medieval, and modern literature of East and West alike. Until a relatively recent time these references were essentially exhortations, more or less elaborate and more or less direct, to personal sovereigns, urging them to obey laws imposed by God or nature or the consensus of mankind upon all human beings regardless of rank and position. Their special object was to persuade the sovereign that, vast as his authority might be, he was still subject to jus divinum, jus naturae, and jus gentium (a mixture never clearly analyzed) both in his treatment of those under his own rule and in his dealings with other sovereigns and their peoples. Sovereignty, though the highest human authority, was represented as a divine trust, to be administered under a supreme law.
In the Western world these invocations of divine and natural law and law of nations took on increasing precision and system with the Renaissance. The emergence of independent and powerful nation-states, with their violent rivalries in Europe and their arrogant claims to newly discovered lands and seas, sharpened the need for legal demarcation of rights and duties. More or less coherent essays and treatises, with dominant emphasis on the just occasions and lawful conduct of war, were written by such jurists and theologians as Pierino Belli (1563), Balthazar Ayala (1582), Francisco de Vitoria (1557), Francisco Suárez (1612-1621), and Hugo Grotius (1625). Gradually, in spite of Samuel von Pufendorf’s dogma (1688, book 2, chapter 3, § 23) that natural law is alone binding on the state, the authority of customary practice embodying general consensus became dominant in the mixture. In England, Richard Zouche (1650) made this his chief source. In Neuchâtel, Emer de Vattel did his confused best to keep a foot upon the natural-law foundation; but it was his treatment of such practical matters as maritime rights and duties, the privileges of rulers and their diplomatic agents, contraband, and the general relations of belligerents and neutrals (1758) that won for his work the unrivaled respect that it enjoyed for most of a century. His German contemporary Jo-hann Jakob Moser established (1777-1780) the pure strain of positivism that set the tone for the literature of the subject in the nineteenth century.
Positivism, the doctrine that law is necessarily man-made and that the consent of states, expressed in the form of customary practice or treaty, is the sole basis of international law, has since that time continued to be the prevalent theory underlying the actual conduct of states. It has been reinforced of late by the energetic adherence of the Soviet Union and by the explosive emergence of new states insisting upon independence and the right to question norms established before they became recognized members of the “family of nations.”
Both in the classrooms and in learned treatises, positivism has recently come under heavy attack. Natural law, which has never ceased to have its champions, is recruiting new believers, while the sociological analysis of law-making processes in all their complexity de-emphasizes the role of consent in the international order, as it has de-emphasized the role of command in the national sphere (Hart 1961, chapters 5 and 10). The jurist who approaches his subject from a general study of social processes is likely to regard law as a crystallization of a culture, a communal way of life, deriving its authority from all the factors that hold a community together.
The range of contemporary thought upon international law may be indicated by a brief notice of two contrasting doctrines and some intervening positions.
We begin with the doctrine that asserts the primacy of international law. National law is a subordinate, delegated order, the validity of its content being determined by the international order. State sovereignty is merely the competence assigned by international law to the state. Like the law of the state, the law of the international community is a coercive order, and its rules do not depend for their validity upon the consent of the state to which they are being applied. They are derived from a basic norm, which has been variously stated as pacta sunt servanda, agreements are to be kept (Anzilotti 1923, chapter 2), “States ought to behave as they have customarily behaved” (Kelsen 1945, p. 369), and “The will of the international community must be obeyed” (Lauterpacht 1933, p. 421). Since the legal orders of the states belonging to the international community are derivatives of the international order, their authority has its ultimate source in this basic norm.
The works produced under the banner of international primacy have had the merit of bringing into sharp relief the contradictions inherent in traditional theories of international law, and the best of them present an admirably coherent image of a supranational order at a stage of development at which it could do for a world community what national legal orders do for the best-governed states of our time. Yet, though the doctrine does little more than draw out the logical implications of daily official utterances on the legal aspects of international relations, the image projected is remote from present realities and prospects. One index of this remoteness is the summary rejection of the doctrine by Soviet jurists, for whom state sovereignty is the greatest of the commandments and who insist that national and international law are necessarily separate orders, each with specific character, the former being an order of subordination, the latter an order of coordination among equal subjects (V. I. Lisovskii 1961, pp. 7-8).
At the other end of the scale we find a school that conceives of law as a process that determines how the collective power of a community is in fact applied. Its so-called rules are neither commands nor derivatives of any a priori universal principle or postulate and do not dictate specific decisions. They are principles developed in the life of a community, reflecting its prevalent demands, identifications, and expectations. Their function is to direct the attention of decision makers to factors that should be taken into account (McDougal & Feliciano 1961, pp. 62-63, 96, and passim). The duty of the administrator, legislator, or judge in the national or international order is, then, to examine claims in all their relevant aspects and to make the decision that will go furthest to promote the values of the community which he serves.
This doctrine is criticized on the ground that it unduly reduces the compulsory character of law and endows it with a degree of flexibility that is incompatible with its stabilizing function. It appears to favor a government of men, not of law. The familiar dichotomy is of course false, except insofar as it contrasts the extremes of fixed prescription and personal caprice. Adherents of the “policy-sciences” school rightly observe that no verbal formula can dispense with or escape interpretation varying with time, circumstance, and personality; and they maintain that their approach goes furthest toward decision in full cognizance of community interests and consequences. Perhaps a more substantial objection is that, as a model for decision makers, what they offer amounts to a counsel of perfection. In its insistence upon recondite analysis of contending claims, the doctrine would seem to demand qualities and qualifications that no present mode of selection calls for in the responsible actor.
Between the two schools of thought just sketched stand others, differing among themselves in detail, but united in rejecting, on the one hand, the Olympian view that attributes primacy to the international order and, on the other hand, a suspected trend toward identification of law and behavior. Explicit or implicit here is the dualism, unquestioned until recent times, that separates national and international orders into distinct systems deriving their authority from different sources. The more recent writers in this category start from a re-examination of the relative roles of law and power in the relations of states, make allowance for the transforming effect of environmental change, admit that the legal rule may be a passing balance of shifting interests, but at the same time emphasize its temporarily imperative intent and stabilizing function. The reality of international society or community, which is taken for granted in most theory, is here questioned, and the characterization of the international order as a legal system is accordingly held dubious (de Visscher 1953). “Law in the making” would be a more accurate, yet sufficiently optimistic, description of norms operating in a milieu where subjectively determined national interests still enjoy marked priority over collective values. Insofar as sociological refinement of the tools used by decision makers and their advisers would lead to a more enlightened calculus of interests, the need is admitted. The tendency, however, is to look to a revolution in morals, rather than in legal theory, as the necessary condition of an effective world order.
The Soviet approach
The practical value of theory, in the field of international law as elsewhere, may be measured in terms of the light thrown upon paths of potential development. From this point of view, current Soviet theory, taken at its face value, appears full of promise for the legal integration of a world community. It asserts the development, under Soviet leadership, of a new law of nations implementing the central principle of “peaceful coexistence,” which is presented as a Soviet invention. This principle, as elaborated in the program of the Communist party of the U.S.S.R., has five premises or components, namely (1) renunciation of war as an instrument of settling differences between states and the substitution of pacific means; (2) equality, understanding, and trust among states, with full consideration of one another’s interests; (3) nonintervention in internal affairs and recognition of each people’s right to decide for itself all questions concerning it; (4) strict respect for the sovereignty and territorial integrity of all countries; (5) the development of economic and cultural cooperation on the basis of full equality and mutual advantage (Akademiia Nauk 1951, pp. 11-15; Tunkin 1963, pp. 26-37).
If we add to these, as the same program does, the corollary principle of general and complete disarmament “under strict international control” as the efficient way of securing peaceful coexistence, we have before us on paper the outline of a world order that might well satisfy the most devout idealist.
The program is not, however, generally accepted at its face value. In its insistence upon state sovereignty, implemented in practice as this has been by Soviet opposition to every proposal suggestive of world government, it manifests an insuperable inner contradiction. Since, moreover, it is accompanied by the firm declaration of continued class struggle on an international scale, it is regarded in influential Western quarters not as a manifesto of peace but as a covenant of conflict by all means short, at best, of war. Armed violence is indeed by no means excluded, since international continuance of the class struggle is assured by the avowed policy of encouraging “wars of liberation,” and this holds out the disturbing prospect of unlimited incitement to rebellion. Yet, despite such skepticism, the slogan of “peaceful coexistence” has had sufficient appeal to add another item to the crowded agenda of the United Nations. The General Assembly’s sixth (legal) committee has been given the ambitious task of working out an agreed statement of the “International Law of Peaceful Relations.” Unless the aim is merely a declaration of vague general principles, this would seem to call for a total codification of the law of peace, an enterprise already assigned to the International Law Commission.
A common law of mankind?
Recent developments in the theory and practice of international relations have led some observers to the conclusion that international law has entered a stage of transition—from a system governing states as units engaged in increasingly complex interchange to the common law of a world community (Jenks 1958). The theory dominant in the nineteenth century that made states the sole persons or subjects of international law came under attack by eminent publicists after 1918. Their assertion of rights and duties lodged directly in the individual by the international order was substantiated by the joint Allied tribunals, which in 1946 found enemy officials personally responsible for crimes against humanity. The trend continued in the more recent multilateral declarations and conventions designed to secure the international protection of human rights, even between governments and their own nationals. The simultaneous multiplication of international agencies devoted to the promotion of individual welfare throughout the world pointed in the same direction. The economic sphere witnessed a concurrent growth of common national patterns in the regulation of world-wide private business and a broad movement toward the unification of private law to facilitate the interchange of personnel, goods, and services. More and more, law was becoming transnational (Jessup 1948; 1956). Theory and practice alike seemed to be breaking through the hard crust of the state with a practical assertion of the belief that the purpose of social, economic, and political institutions is, after all, not the grandeur of groups but a better life for individual human beings.
Multifarious as these unifying activities have become, however, it is important not to exaggerate their total effect or to underestimate the resistance that still guards the sanctuary of state sovereignty in East and West alike. Given the existing conflict of ideologies and political objectives, any rapid advance to a common law of mankind interpreted by supranational courts and commissions and enforced by supranational agencies is a remote prospect. Not even the fear of imminent nuclear extinction has sufficed to launch the revolution in the ideas and aims of leaders and of peoples that must precede the organization of a universal legal order backed by a monopoly of force.
The development of international law must then in all probability proceed along conventional lines, the resulting norms depending as hitherto upon the good will of governments and their perception of advantage, rather than upon any powerful supranational enforcement agency.
The “progressive development and codification” called for by article 13 of the United Nations Charter is necessarily a slow and arduous enterprise. Yet there are some encouraging proofs of progress, particularly in the law of the sea, diplomatic and consular intercourse, and outer space. Putting the premium they do on sovereignty, Soviet jurists emphasize the state’s consent as the necessary basis of rules binding upon it. Because consent is more clearly expressed by participation in treaties than in the obscure and debatable growth of rules by usage, they regard treaties as the one efficient method of developing international law and have begun not merely to express but to prove some interest in codification by multilateral convention. Their position here has, in spite of the suspicious posture of representatives of the U.S.S.R. in the early work of the United Nations International Law Commission, found favor among the newly independent nations, to whom codification offers the opportunity of active participation in the law-making process.
There remains the vital question of submission to international adjudication. No single step could carry us further toward the rule of law on a world scale than the general establishment of compulsory jurisdiction. This must await a marked reduction in that distrust of the West that underlies the Soviet argument that no impartial adjudication is possible between the sharply opposed systems of communism and capitalism. It must also await the withdrawal by certain Western powers of their unlimited reservation of domestic jurisdiction.
Percy E. Corbett
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Anzilotti, Dionisio (1923) 1955 Corso di diritto internazionale. 4th ed. Padua (Italy): Casa Editrice Dott. Antonio Milani.
Ayala, Balthazar (1582) 1912 De jure et officiis belliciis et disciplina militari. 2 vols. Washington: Carnegie Institution of Washington.
Belli, Pierino (1563) 1936 De re militari et bello tractatus. 2 vols. Oxford: Clarendon.
Brierly, James L. (1928) 1963 The Law of Nations: An Introduction to the International Law of Peace. 6th ed. Oxford: Clarendon.
Francisco De Vitoria (1557) 1917 De Indis et de iure belli relectiones. Edited by Ernest Nys. Washington: Carnegie Institution of Washington.
Hart, Herbert L. A. 1961 The Concept of Law. Oxford: Clarendon.
Jenks, C. Wilfred 1958 The Common Law of Mankind. New York: Praeger.
Jessup, Philip C. 1948 A Modern Law of Nations: An Introduction. New York: Macmillan.
Jessup, Philip C. 1956 Transnational Law. New Haven: Yale Univ. Press.
Kelsen, Hans (1945) 1961 General Theory of Law and State. New York: Russell.
Lauterpacht, Hersch 1933 The Function of Law in the International Community. Oxford: Clarendon.
Lisovskii, Vadim I. 1961 Mezhdunarodnoe pravo i IV sessiia general’ noi assamblei OON (International Law and the Fourth Session of the General Assembly of the United Nations). Moscow: Gosudarstvennoe Izdatel’stvo Iuridicheskoi Literatury.
Mcdougal, Myres S.; and Feliciano, Florentino P. 1961 Law and Minimum World Public Order: The Legal Regulation of International Coercion. New Haven: Yale Univ. Press.
Moser, Johann J. 1777-1780 Versuch des neuesten europdäischen Völkerrechts im Friedens- und Kriegszeiten. 10 vols. in 12. Frankfurt-am-Main (Germany): Varrentrapp & Wenner.
Nussbaum, Arthur (1947) 1954 A Concise History of the Law of Nations. Rev. ed. New York: Macmillan.
Pufendorf, Samuel Von (1688) 1934 De jure naturae et gentium libri octo. 2 vols. Oxford: Clarendon.
SuÁrez, Francisco (1612-1621) 1944 Selections from Three Works of Francisco Suárez. De legibus, ac Deo legislatore, 1612. Defensio fidei catholicae, et apostolicae adversus anglicanae sectae errores, 1613. De tri-plici virtute theologica, fide, spe, et charitate, 1621. 2 vols. Oxford: Clarendon.
Tunkin, G. I. 1963 Printsip mirnogo sosushchestvovaniia: General’ naiia liniia vneshnepoliticheskoi deiatel’nosti KPSS i Sovetskogo Gosudarstva (The Principle of Peaceful Coexistence: The General Line of the CPSS and the Soviet Government’s Activity). Sovetskoe gosudarstvo i pravo 33, no. 7:26-37.
Vattel, Emer DE (1758) 1916 Le droit des gens: Ou, principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains. 3 vols. Washington: Carnegie Institution of Washington.
Visscher, Charles DE (1953) 1957 Theory and Reality in Public International Law. Princeton Univ. Press.
Zouche, Richard (1650) 1911 Iuris et iudicii fecialis, sive, iuris inter gentes, et quaestionum de eodem explicatio, qua quae ad pacem & bellum inter diversos principes ... 2 vols. Washington: Carnegie Institution of Washington. → Volume 1 is a reproduction of the first edition. Volume 2 is an English translation.
note:Although the following article has not been revised for this edition of the Encyclopedia, the substantive coverage is currently appropriate. The editors have provided a list of recent works at the end of the article to facilitate research and exploration of the topic.
International law is the system of rules and principles governing relations at the interstate level. It originally developed in response to the needs of states but in recent times has grown to include international organizations and, to some extent, individuals.
International law as a systematic body of rules began in Europe in the seventeenth century. Before then, and from earliest history, rules existed governing the interrelations of various groups of people (Nussbaum 1958). But the rules were systematized in Europe only when the contacts among peoples became regular and frequent and the idea of a single ruler for all known society foundered. That occurred with the collapse of the Holy Roman Empire during the Thirty Years War (1618–1648). The state system developed in its place, characterized by a number of kingdoms and principalities, each equal to the others, sovereign within its own borders, and subject to no outside sovereign. Hugo Grotius, a Dutchman who lived during this time, wrote a seminal book, De Jure Belli ac Pacis (1620–1625), describing legal rules, derived from natural law, by which these states could achieve peaceful coexistence and, when they failed, how they could conduct their wars with some semblance of humanity. His book popularized international law, and he is generally considered the founder of international law.
The rules and principles Grotius described reflected the characteristics of states. The fundamental notion that states were sovereign and equal became a principle of international law. And because the rulers of states respected that principle as law, they were less likely to wage war or to annex their neighbors. International law helped create the success of the state system and in turn reflected the features of the system.
Grotius derived his rules from natural law, thus suggesting that nature was superior to states. By the nineteenth century, however, theorists abandoned natural law as a source of international law. Instead, they looked at the behavior of the states themselves as the source of international law. International lawyers became positivists, and the state became for international law the ultimate political entity. The rules of international law could guide and could set out regular procedures to ensure the smooth and peaceful conduct of international relations, but they permitted states wide prerogatives. Governments acquiesced in international legal rules because their states benefited from an orderly system of international relations in which they gave up few of the attributes of absolute sovereignty. For example, the rules did not speak to what states did internally, no matter how egregious. Individuals were not considered subjects of international law. Nor did the rules restrain states from the use of force. International law described permissible uses of force, but states could in effect use force whenever they chose.
By the twentieth century pressures for change began to develop. Technological advances in war and communications accounted for movements aimed at restraining states in their use of force and abuse of human beings. People such as Elihu Root, U.S. Secretary of State in Theodore Roosevelt's administration, wanted international law to provide the vehicle for restraint. Governments started experimenting with dispute settlement through arbitration and courts. They formed the League of Nations to help them control states' uses of force. International law and international institutions were being substituted for unbridled state sovereignty. The concept was a radical departure from the past and came about only over the course of half a century and two world wars.
After World War II, governments were willing in theory to contemplate real restraints on their ultimate sovereign prerogatives. The United Nations was created as an entity under international law. Its charter committed states to uphold human rights, to cooperate in solving world problems, to abandon the use of force, and to follow the commands of the organization itself. The idea was to lessen state sovereignty for the good of the whole world community. Thus, the state began to lose its place as the ultimate political entity almost exactly 300 years after its rise.
Certain international legal norms are now theoretically superior to the wills of the states. In other words, a certain amount of natural law now characterizes the system again. In addition, the state is making way for other types of political institutions such as regional arrangements, although if the state should ever become finally obsolete so will international law. The current form of international law and many of its rules and principles presuppose a system of coequal entities without a single sovereign.
While the state system remains intact, however, international law has taken on an increasingly important role in governing the relations of states in an interdependent, technologically linked world. It does this even though international law has never had the institutions typical of domestic law: a legislature for making law, an executive to enforce it, and a judiciary to adjudicate and interpret it. In some respects international law still functions as it did in the nineteenth century because the system benefits the state. Nevertheless, law does get made, enforced, and adjudicated, and social movements are at work putting demands on states to form and live by new norms of international law.
Because of the informal condition in which international law exists, however, some legal thinkers argue it is not law at all but rather moral precepts or mere guidelines. Most prominent of these thinkers was John Austin, who described law as a series of commands backed by sanctions. International law has no overarching authority to issue commands, and the sanctions are irregular. But Austin's criticism depends on his definition of law. If law is defined as behavior or behavioral restraint induced by a sense of obligation, international law, in its sphere, is law. Positivist international lawyers also point out that in the end the states acknowledge that international law is law, and that is the relevant indicator.
International legal rules have two basic sources: custom and treaty. Rules of customary international law are created through practices that states engage in because they believe they have a legal obligation to do so. Treaties are the explicit agreements states make with each other to be bound. As the need for international law has grown, states have relied on treaties as a law-making vehicle more and more. The general multilateral treaty has become a common form of law making for important international concerns. For almost ten years nearly every state of the world attended a conference to negotiate a comprehensive treaty on the law of the sea. Because so many states attended and the treaty was so long in the making, the treaty began to take on the characteristics of customary international law, irrespective of its status as a treaty. A similar conference will convene in 1992 to discuss climate, and suggestions have been made to convene such a conference for trade.
When no rule of custom can be found and no treaty exists, international courts have in some disputes turned to a third source of law—general principles of law. These are principles commonly found in domestic legal systems and can serve to fill any gaps in international law, which suffers from its ad hoc law-making process. Theorists consider general principles a subsidiary source of international law because general principles are not made in a positive sense by all the states of the system, and they may be applied to a state that did not wish to be bound by them. Custom and treaty, however, generally allow states to opt out of a rule, thus reflecting the traditional view that the states are superior to the system of law. In the last thirty years, however, states have accepted that certain principles cannot be derogated from because they are considered peremptory norms or jus cogens. Examples of such norms are the prohibitions on genocide, the slave trade, and the use of force to advance a state's political agenda. With the concept of jus cogens, international law has again taken on some elements of natural law.
Jus cogens also exemplifies the extent to which international law has overcome cultural relativity. As new states emerged in the 1960s, scholars from these states questioned whether international law should be binding on them since it was a European product that had aided in perpetuating colonialism. These criticisms have faded, however, because it became clear that international law also created the thing desired most by newly independent countries—statehood. Moreover, because international law is made by states, the new majority could begin to re-create international law. The process of international law has succeeded to the point of bringing states together in accepting that certain principles are overriding, despite the particular value systems of individual states.
Like the law-making system, the law-adjudicating system in international law depends on states volunteering to use it. The system does have courts, in particular, the International Court of Justice. But no state needs to subject itself to the court unless it wishes to do so. The court does have limited compulsory jurisdiction in the case of states that agree to submit cases to it in advance of disputes arising. Nicaragua brought a case against the United States under such an agreement in 1986. States can also agree on an ad hoc basis to submit disputes to arbitral tribunals. The vast majority of international law is adjudicated informally, however. If a state violates international law, such as when Iraq invaded Kuwait in 1990, most states in the system will pronounce their views regarding the legality of the action. Assessing these evaluations leads to conclusions regarding lawfulness. Thus, states make and adjudicate the law themselves.
States also enforce international law themselves. International law is notorious for being poorly enforced. In fact, however, most international law is in fact observed most of the time. Because the states must agree to the law, they tend to make only the laws they want and are willing to live by. Otherwise they opt out of the rules, as the United States has done for some of the new law of the sea. Law is not so well observed, however, in those areas that make headlines—war, human rights, terrorism—which perhaps accounts for international law's poor reputation for enforcement.
When a rule of international law is violated, the state that is harmed is allowed to take action against the perpetrator. For example, if a fishing treaty between state A and state B is violated because state A's fishermen overfish in state B's waters, state B might be entitled to terminate the treaty and prevent future fishing by state A. This system works to some extent, but states have tried to improve on it in recent decades by, first, giving the United Nations and, in particular, the Security Council authority to police some violations of international law and to expand the ability of domestic institutions in enforcing international law by expanding the concept of universal jurisdiction.
The Security Council has authority to maintain peace. In article 42 of the U.N. Charter, it is given the power to call on member states to contribute troops to fight at the direction of the council. The idea comes very close to having an international police force. It has only been used once, however —in Korea in the 1950s. Other attempts have been stymied by the cold war antagonism of the United States and the Soviet Union, each of which has a veto over invocation of article 42. As a sort of substitute, the Secretary General has regularly sent troops, contributed voluntarily by U.N. members, to serve a peacekeeping role. Peacekeeping troops are not supposed to take enforcement action. But enforcement action may be a possibility again with the end of the cold war. Following Iraq's invasion of Kuwait in 1990, the council ordered worldwide economic sanctions and permitted the use of force, both to enforce the sanctions and to push Iraqi troops out of Kuwait.
Another solution to enforcement has been the widening of universal jurisdiction. To prevent states from interfering in each other's affairs, international law contains principles of jurisdiction defining when and where a state may enforce rules of domestic or international law. In some instances any state may take action. This concept of universal jurisdiction is as old as international law. It was originally developed to handle the problem of piracy. Pirates are defined as persons who commit crimes for profit on the high seas. Generally they do not fly any state's flag, and they act outside the territorial jurisdiction of any state. Typically, the state where the act took place or the state of the pirate's nationality would have jurisdiction, but those categories often do not exist for pirates. The state of the victim might have jurisdiction, but the international system developed the rule that any state may board a vessel that fails to fly a flag and that any state may arrest, try, and punish pirates.
After World War II, universal jurisdiction was expanded to include the concept of crimes against humanity. The victorious allied powers tried German and Japanese individuals, holding them personally responsible for human rights abuses, characterized as crimes against humanity and thus crimes for which any state in the world could take jurisdiction. The Nuremburg and Japanese War Crimes Trials broke new ground in international law by holding that individuals had rights and responsibilities not only under their nation's law but under international law and by expanding the scope of a state's jurisdiction.
Individual responsibility and expanded state jurisdiction are being included today in a variety of treaties, especially related to human rights, narcotics, and terrorism. Customary international law now permits universal jurisdiction over persons who have committed genocide or war crimes. The International Court of Justice has also suggested that important human rights may be enforced by any state regardless of its connection with the violation because the obligation to respect human rights is an obligation owed to all people; it is a right erga omnes.
International law will need these improvements in enforcement. The scope of questions now covered by international law grows annually with the increasing interdependence of the world and the technological advances that bring peoples into conflicting contact. The need to protect the global environment is the newest challenge for international law. States may soon decide they need an international organization to regulate the world trading system. The problems of development, health, communications, education, population, and use of space on earth and in outer space are all new problems in need of attention. Add to them the old problems of war, territorial disputes, governing international organizations, treaties, dispute resolution, refugees, human rights, diplomatic immunity, law of the sea, air space, recognition of new states, and so on, and the growing importance of international law becomes apparent. International law will continue to serve as a means of conducting smooth international relations, its traditional role, but it will also continue to assume new importance as a means of solving problems. In order to achieve this, however, international law must improve its institutions and be accepted by more states, whose own sovereignty will diminish as international law advances.
Abeyratne, Ruwantissa I. R. 1996 "International Politics and International Justice: Unity in Diversity?" International Journal of Politics, Culture and Society 10:291–316.
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Mary Ellen O'Connell
Tradition has assigned the title "father of international law" to the Dutch scholar, lawyer, and diplomat Hugo Grotius (also known as Huig de Groot; 1583–1645), because his De Iure Belli ac Pacis (On the law of war and peace), which appeared in 1625, was the most extensive treatise on international law and relations yet written. Grotius himself recognized that there already existed a number of treatises dealing with aspects of international law and an extensive body of customary practices regulating relations between states, materials such as the law of the sea, treaties, rules of war, and treatises on the just war written by medieval scholars. These concerned relations among the states of Christian Europe, although there was some interest in the nature of relations between Christian and non-Christian, especially Muslim, societies.
A second source of writing on international law consisted of treatises, papal letters, and royal charters accompanying the European overseas expansion that began in the fifteenth century. Initially, these dealt with the legal basis for European possession of the Atlantic islands, Canaries, Azores, Cape Verde, and Madeira, as well as parts of the African mainland. Subsequently, Columbus's voyages generated even more literature about the legitimacy of European possession of the New World, beginning with three bulls that Pope Alexander VI (1492–1503) issued in 1493. These bulls drew a line of demarcation from pole to pole, dividing the New World between the Portuguese and the Spanish, assigning each monarch responsibility for sending missionaries to preach the Christian Gospel and awarding each ruler a monopoly of trade and contact with the region assigned to him.
The basis for Alexander VI's actions was the concept that all mankind formed a single community and that the pope was the judge of all mankind, judging Christians by canon (church) law, Jews by the Law of Moses, and all other people according to the natural law. The natural law consisted of that part of God's eternal law accessible to all mankind by the use of reason. While the specific terms of that law were rarely spelled out, one important element of it was the right to travel freely in peace. The refusal of an infidel society to allow Christian missionaries to enter and preach was therefore a violation of the natural law. The pope could authorize Christian rulers to protect missionaries where necessary, justifying the conquest of infidel societies. The papal conception of an international legal order was a hierarchical one with the pope serving as the ultimate judge in matters of international relations. The most extensive discussion of the Catholic conception of international order was that of the Spanish Dominican theologian Francisco de Vitoria (c. 1485–1546), whose Relectio de Indiis (published 1557; Concerning the American Indians) analyzed all of the arguments for and against the legitimacy of the conquest of the Americas. Vitoria was, however, only one of a number of Spanish authors who responded to the discovery of the New World with a treatise on the legal issues involved.
The Protestant Reformation changed the character of the discussion about international law because the Reformers rejected the papacy and canon law. Furthermore, Protestant scholars distinguished more clearly than did their Catholic counterparts between theological bases for international law and relations and legal ones based on human reason and experience alone. Early Protestant writers included Alberico Gentili (1552–1608), an Italian scholar who eventually became a professor at Oxford, whose De Iure Belli (Concerning the law of war) was a major influence on Grotius's work.
One fundamental difference between Catholic and Protestant writers concerned access to the sea and therefore access to trade between Europe and the New World. The Catholic position was that the pope had the right to judge all mankind, to punish violators of the natural law, to assign jurisdiction over the seas to specific Christian rulers in order to ensure peace among Christian nations, and to support the church's spiritual mission to the newly encountered peoples. Grotius's first work, the anonymously published Mare Liberum (1609; The freedom of the sea), denied that the pope or anyone else had the right to limit access to the sea. In his opinion the sea was open to all who would sail there in peace. Grotius defended the interests of Dutch merchants whose wealth depended upon access to the markets of Asia and America, restricted by papal decision to the Spanish and Portuguese and those whom these nations chose to license, as well as the interests of Dutch fishermen who desired access to the fishing grounds in the waters adjacent to Britain.
Grotius's views drew responses from Portuguese and English lawyers, who defended closing the sea, although they differed about who could do this. The Portuguese scholar Seraphinus de Freitas (d. 1622) wrote the De Justo Imperio Lusitanorum Asiatico (1625; Concerning the legitimate Portuguese Empire in Asia) defending Portugal's claim to a monopoly of trade with Asia based on papal authorization. William Welwood (1578–1622) and John Selden (1584–1654) wrote to defend the right of James I of England (ruled 1603–1625) to ban Dutch fishermen from the waters around the British Isles without royal license. They argued that any ruler could limit access to the adjacent waters but denied that the pope could do so universally. Eventually, European governments agreed that states possessed jurisdiction only over a zone extending three miles from the shore, a line that Cornelius Bynkershoek (1673–1743) defined as the distance that a cannon could fire.
Grotius's major work, On the Law of War and Peace, followed the medieval tradition of seeing mankind as a single community governed by natural law. Grotius did not base his discussion of natural law on theology or philosophy but on the actual practice of human societies as described in the historical record. Thus, while the overall principles of international law sprang from the jus naturale (natural law), there was also a body of specific practices and customs agreed upon by participating nations forming the jus gentium, the law of nations. These two laws formed the basis for a legal structure that would regulate relations among states.
Unlike his predecessors, who saw the papal court as the ultimate venue for settling international disputes, Grotius did not describe any institutions to enforce these laws. He saw each state as sovereign, that is, not subject to any external authority. He also argued, however, that it might be necessary for one state to punish the rulers of another sovereign state because they had violated the natural law. While this would seem to make Grotius a defender of expansion into the New World, in fact he showed little interest in that issue. His interest was in relations among European Christian states, not relations between the Christian and the non-Christian worlds.
The writers on international law who followed Grotius fall into two broad categories. The first continued to employ the term natural law but understood the term differently than Grotius. They argued that the natural law described the law that governed men when they lived in the state of nature, that is, before the formation of organized societies. They identified these societies with individuals living in a state of nature so that each human society was therefore a sovereign entity equal to all other societies, just as each man, regardless of age, strength, and intellect, was equal to every other man. There was then no basis for one society punishing another's violation of the law of nature. This school of thought included Samuel Pufendorf (1632–1694) and Emerich de Vattel (1714–1769).
The second school of international law thinkers was the positivists, who argued that international law was the product of custom and of treaties that states made with one another for the purpose of regulating their relations. This school of thought included Cornelius van Bynkershoek.
These discussions had a limited effect on the practice of European states. The flaw in such discussions was the lack of any external mechanism to enforce the law. What these works did was provide a conceptual framework and a language for creating a legal order among states. Unlike Grotius and his medieval predecessors, however, later proponents of international order restricted it to the European Christian states and did not include non-European states.
These early discussions of international law had one other effect on European thought. The Catholic writers were concerned about the relations between Christian and non-Christian societies. Was the conquest of the New World legitimate? Did the inhabitants of the Americas possess a right to govern themselves and to own property? If so, Europeans had no obvious right to conquer them. Although European thinkers did produce arguments that justified the conquest, arguing that the Indians violated the natural law, for example, they also produced arguments that defended the rights of the Indians to autonomy as well. According to these arguments, Christians could not assert a claim to all infidel lands simply on the grounds that infidels had no right to them. This became one of the bases for subsequent discussions of human rights, that is, the rights possessed by all people by virtue of their humanity.
In the final analysis, the discussion of international law in the early modern world consisted of attempts to create a legal order that would regulate relations among the various states and societies of the world. The goal was to limit, not to abolish, war and to create a framework for peaceful relations among peoples.
See also Grotius, Hugo ; Natural Law ; Rights, Natural .
Vitoria, Francisco de. Political Writings. Edited by Anthony Pagden and Jeremy Lawrance. Cambridge, U.K., 1991.
Brierly, J. L. The Law of Nations: An Introduction to the International Law of Peace. 6th ed. Oxford, 1963.
Bull, Headley, Benedict Kingsbury, and Adam Roberts, eds. Hugo Grotius and International Relations. Oxford, 1990.
Muldoon, James. "The Contribution of the Medieval Canon Lawyers to the Formation of International Law." Traditio 28 (1972): 483–497.
Tuck, Richard. The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant. Oxford, 1999.
INTERNATIONAL LAWa law between european states
a procedural law
right to go to war
pacifism and humanitarianism
In 1795 the French National Convention received a proposal for a declaration on the law of nations. Although it was never formally adopted, the idea of national self-determination on which it was built had already been used in the Revolutionary Wars and became part of the official justification of the early Napoleonic campaigns in France's nearby territories. It is therefore no surprise that in legal terms, the post-Napoleonic restoration sought formally to reinstitute the Droit public de l'Europe (European public law) as the foundation of the diplomatic relations between European powers. Those principles had been articulated as part of the rationalistic natural law in the eighteenth century by the Swiss lawyer Emmerich (Emer) de Vattel in Le droit des gens (1758), but it was left for German public lawyers such as the Göttingen jurisconsult Georg Friedrich von Martens and the Heidelberg professor Johann Ludwig Klüber to link them to the 1815 settlement at Vienna.
The system was founded on the sovereign independence of the European states existing in 1815 and states with populations of European origin (the United States and later the Latin American republics). Those states were assumed to enjoy independence and territorial inviolability, and the law that was binding on them was assumed to emerge from their sovereign will. Although legal theory was divided between adherents of rationalist natural law and the proponents of an emerging historical jurisprudence, neither put seriously to question the foundational nature of European statehood for the legal system. Irrespective of the doctrinal differences regarding the justification of the system, theory and practice agreed on two corollaries.
First, it followed from the independence of European states that they could only be bound by their consent. Thus there emerged a dense network of treaties—approximately sixteen thousand of them—in the period between 1815 and World War I. The treaties were no longer limited to military alliances but extended to the most varied aspects of technical and economic cooperation.
Although by far the largest number of treaties were still bilateral, toward the end of the century, an increasing amount of multilateral ("lawmaking") treaties laying out general rules of conduct and open for ratification by (European) states generally were adopted on matters such as maritime law (Paris Declaration, 1856), humanitarian rules of warfare (Geneva Convention, 1864; Hague Conventions, 1899, 1907), European behavior in Africa (Berlin Act, 1885), and the prohibition of slavery and the slave trade (Act of Brussels, 1890). The internationalization of navigable waterways such as the Rhine and the Scheldt was dealt with at the Vienna Congress and became the object of specific regulation later in the century. The Danube was opened for international navigation in the Peace of Paris, 1856, while the 1885 Berlin Act sought to do the same with the Congo and Niger Rivers. A convention of 1888 and treaties between the United States and Britain and Panama provided for the Panama Canal (1901, 1903). The establishment of the General Postal Union (Bern, 1874; later Universal Postal Union, UPU, 1878) began the move to regulating technical international cooperation within permanent organizations on matters such as the protection of industrial property and artistic works (1883, 1886), on rail transport (1890), radio and telegraphic communications (1906), as well as, for example, on the unification of weights and measures (1875) and health and hygiene (1903, 1907). The experience with the international unions and their secretariats was sometimes articulated in doctrine as "international administrative law" and gave significant support to the movement to permanent institutions and the League of Nations after World War I.
Second, whether the system was dated from the French Revolution or the Vienna settlement, it followed that those states that were in existence at that "year zero" received a special administrative function. Any changes in the system, including above all the admission of new members, would henceforth be controlled by the existing body of states. This lay the legal foundation for the predominant role of the Quadruple (later Quintuple) Alliance. Although the principle of legitimacy propagated by the Holy Alliance never dominated the Droit public de l'Europe, European affairs were regulated through Great Power consultation in formal congresses and conferences, of which the most notable after the Vienna Congress (1814–1815) were the Congresses of Verona (1822), Paris (1856), and Berlin (1878), the latter two dealing with the perennial "Eastern Question." The technique of collective recognition emerged as the means of entry for Greece (1821–1829) and Belgium (1830) into statehood. It was also used at Berlin (1878) to bring about the statehood of Bulgaria, Romania, and Serbia-Montenegro, and later in Berlin (1885) to lay the groundwork for the recognition of the "Independent State of the Congo" and to agree on some basic rules of European occupation of Africa. However, when the powers contemplated intervention to prevent Spain's South American colonies from attaining independence, the United States responded with the Monroe Doctrine (1823), which consolidated the formal independence of these new territorial units as well as American guardianship over them.
The Droit public de l'Europe sought above all to regulate the interaction between European states both inside and beyond Europe. At its heart stood the formalization of the rules of European diplomacy. The ranking order of diplomatic representatives was regulated at Vienna and in the Aachen Protocol of 1818. The inviolability of diplomatic representatives was agreed on in bilateral treaties with non-European states. The intensification of commercial relations and foreign travel led to the reestablishment of the practice of consular relations after its decline in the Middle Ages. By 1910 the principal European powers had established about fifteen hundred professional consular offices. Instead of diplomatic immunities, the consuls enjoyed "functional" privileges relative to their position. Outside Europe, consular jurisdiction was set up by treaty as a means to extract criminal or civil disputes involving Europeans from local courts.
Scattered interstate arbitration had existed since the Jay Treaty (1794), but the successful 1872 settlement between Britain and the United States of the Alabama case, which had to do with the British violation of its neutrality duties during the U.S. Civil War, gave a great boost to the use of arbitration. The first step toward a permanent jurisdiction was taken at the 1899 Hague Peace Conference, as the Permanent Court of Arbitration was set up as a list of arbiters and a secretariat established in The Hague. The establishment of a real international court had to wait, however, until the setting up of the Permanent Court of International Justice as part of (though formally independent from) the League system in 1922.
The rules agreed to at Vienna aimed to reestablish great-power primacy in Europe. Later, and increasingly after 1848, the Droit public de l'Europe began to be read in view of the emerging principles of nationality and self-determination. The unification of Italy (1860) and Germany (1870–1871) called for a nationalist reading of international law. In Italy, liberal jurists such Pasquale Stanislao Mancini (1817–1888) articulated a "principle of nationalities" as the heart of the law, while German-speaking public lawyers developed complex theories of sovereignty sometimes to challenge (e.g., Adolf Lasson, 1837–1917) but more often to affirm a complex interdependence between domestic jurisdiction and international law (e.g., Georg Jellinek, 1851–1911).
The consolidation of nation-states in Europe supported the understanding of international law as a cultural achievement of European civilization. This is why the emphasis on sovereignty and consent never really undermined international law. On the contrary, liberal jurists and politicians such as the British prime minister William Ewart Gladstone (1809–1898), for example, integrated their nationalism within a cosmopolitan vision of the European nations' shared modernity. This was also visible in the strong support international law gave to the policy of formalizing European rule in the colonies after the 1870s and insisting on native treaties or effective occupation as a condition of formal title.
The scope of application of most international law, however, remained limited to relations between European states acting within Europe or the colonies. Although the "system" itself was not understood as applicable outside Europe, some parts of it were still extended to relations between Europeans and some of the more civilized "Oriental" states such as China, Japan, Siam, Egypt, and the Ottoman Empire. Although the Ottoman Empire was officially approved into the "European family of nations" in the Peace of Paris in 1856, this had little consequence to continuing European encroachments into its decaying realm. Colonial relations between Europeans and "half-civilized" countries were formalized in protectorate treaties and other unequal arrangements such as "capitulation regimes," which provided protection for European traders and travelers. Relations with "uncivilized" or "savage" communities of Africa and the Pacific islands were articulated by principles of natural law or acts (often of taking possession) with a more or less dubious international status.
Although old theories of "just war" were formally incompatible with the view that the sovereignty of European states also included their unrestricted legal right to go to war, diplomats rarely treated warfare as a privilege and constantly invoked legal justifications such as a prior breach of treaty on the adversary's side. Toward the end of the century, lawyers became increasingly critical of "power politics," and formal doctrines such as "selfdefense" and "self-help" were developed in order to regulate the right to wage war (jus ad bellum). Nevertheless, warfare involved the formal equality of the belligerent parties in a way that gave room to a highly developed law of neutrality whose rules were detailed in such instruments as the Declaration of Paris (1856) and especially the 1907 Conventions on rights and duties of neutrals in land and maritime warfare.
After midcentury, unregulated warfare seemed scarcely compatible with European humanitarian and pacifist sentiments. The 1864 Geneva Convention set up procedures for the treatment of wounded soldiers and established the neutrality of the Red Cross. Repeated failures to observe the Convention in the Franco-Prussian War (1870–1871) led finally to the 1899 and 1907 Hague Peace Conferences, which adopted a series of conventions constituting the "Hague Law" on humanitarian rules of warfare. The Hague Conferences were intergovernmental conferences that sought to legislate general rules for the world and thus also provided a precedent to the diplomatic universalism that animated the work of the League of Nations. In addition to military and diplomatic experts, most delegations now for the first time included international lawyers, sometimes (as in the case of France), in key positions.
During the Napoleonic Wars (1803–1815), international law, known as "law of nations," was taught at universities as part of natural law and was widely perceived either as a set of ethical principles providing an abstract justification for great-power diplomacy or simply a collection of the agreements that European states had concluded with each other. By midcentury, however, internationally minded liberal lawyers from Europe, the United States, and South America began to think of international law as part of the modernization of European societies. These lawyers organized themselves into a profession by the establishment of the first international law associations—the Institut de droit international and the Association for the Reform and Codification of International Law (later International Law Association) in 1873. They were instrumental in the launching of the first international law journals such as the Revue de droit international et de législation comparée (Brussels, 1869), Zeitschrift für internationales Recht (Berlin, 1891), the Revue générale de droit international public (Paris, 1894), and the American Journal of International Law (Washington, D.C., 1907). At the same time, the first chairs of international law proper were set up at European universities and the teaching of "the law of nature and of nations" was transformed into teaching of the rules and principles of the "international law of civilized nations." By the end of the century, Vattel's 1758 treatise was replaced by the often many-volumed textbooks, sometimes expressly written as "codes" of international law. These included works by Johann Kaspar Bluntschli (1872) and Franz von Holtzendorff (1885) in Germany; Henry Joseph François Xavier Bonfils (1898, later Bonfils-Fauchille) in France; Pasquale Fiore (1879–1884) in Italy; John George Phillimore (1854–1861), William Edward Hall (1880) and Lassa Francis Lawrence Oppenheim (1905) in Britain; Carlos Calvo (1868) in Argentina; and Fyodor Fyodorovich von Martens (1882) in Russia. Analogous formalization never took place in the United States, where the old overviews by James Kent (1826) and Henry Wheaton (1836) continued to appear in new editions.
Anghie, Antony. Imperialism, Sovereignty, and the Making of International Law. Cambridge, U.K., 2005. See especially chapter 2.
Grewe, Wilhelm. The Epochs of International Law. Translated and revised by Michael Byers. Berlin, 2003. See part 4.
Kennedy, David. "International Law and the Nineteenth Century: History of an Illusion." Nordic Journal of International Law 65 (1996): 385–420.
Koskenniemi, Martti. The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960. Cambridge, U.K., 2002. See chapters 1–2.
Nussbaum, Arthur. A Concise History of International Law. 2nd ed. New York, 1954. See chapter 6.
Ziegler, Karl-Heinz. Vülkerrechsgeschichte: Ein Studienbuch. Munich, 1994. See chapter 9.
The body of law that governs the legal relations between or among states or nations.
To qualify as a subject under the traditional definition of international law, a state had to be sovereign: It needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjects of international law, because they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under international law.
A more contemporary definition expands the traditional notions of international law to confer rights and obligations on intergovernmental international organizations and even on individuals. The united nations, for example, is an international organization that has the capacity to engage in treaty relations governed by and binding under international law with states and other international organizations. Individual responsibility under international law is particularly significant in the context of prosecuting war criminals and the development of international human rights.
Sources of International Law
The international court of justice (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the league of nations (the precursor to the United Nations). The PICJ ceased to function during world war ii and was officially dissolved in 1946. The ICJ is a permanent international court located in the Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office.
The ICJ has jurisdiction only over states that have consented to it. It follows that the court cannot hear a dispute between two or more state parties when one of the parties has not accepted its jurisdiction. This can happen even where the non-consenting party adheres to the court's statute, for mere adherence to the statute does not imply consent to its tribunals. In addition, the court does not have jurisdiction over disputes between individuals or entities that are not states (I.C.J. Stat. art. 34(1)). It also lacks jurisdiction over matters that are governed by domestic law instead of international law (art. 38(1)).
Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law.
Custom Customary international law is defined as a general practice of law under article 38(1)(b). States follow such a practice out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered rules of international law. Thus, the mere fact that a custom is widely followed does not make it a rule of international law. States also must view it as obligatory to follow the custom, and they must not believe that they are free to depart from it whenever they choose, or to observe it only as a matter of courtesy or moral obligation. This requirement is referred to as opinio juris.
Some criticism against customary international law is directed at its subjective character and its inconsistency. States vary greatly in their opinions and interpretations of issues regarding international law. Thus, it is almost impossible to find enough consistency among states to draw a customary international rule from general practice. In addition, even if one state or judge finds that a practice is a rule of customary international law, another decision maker might reach a different conclusion. Altogether, the process of establishing rules of customary international law is lengthy and impeded by today's fast-changing world.
Conventions and Treaties Conventional international law includes international agreements and legislative treaties that establish rules expressly recognized by consenting states. Only states that are parties to a treaty are bound by it. However, a very large number of states voluntarily adhere to treaties and accept their provisions as law, even without becoming parties to them. The most important treaties in this regard are the Genocide Convention, the Vienna conventions, and the provisions of the UN Charter.
UN Charter and United Nations
The UN Charter and the United Nations as an organization were established on October 26, 1945. The UN Charter is a multilateral treaty that serves as the organization's constitution. The UN Charter contains a supremacy clause that makes it the highest authority of international law. The clause states that the UN Charter shall prevail in the event of a conflict between the obligations of the members of the United Nations under the present charter and their obligations under any other international agreement (art. 103).
At its formation, the United Nations had 51 member states. Its membership had increased to 180 states in 1996, including almost all of the world's independent nations. The United Nations is designed to serve a multitude of purposes and is charged with a variety of responsibilities. Among these are peacekeeping; developing friendly relations among nations; achieving international cooperation in solving international problems of an economic, social, cultural, and humanitarian character; and promoting human rights and fundamental freedoms for all human beings without discrimination (UN Charter art. 1).
The United Nations comprises the Trusteeship Council, the General Assembly, the Security Council, the Economic and Social Council, and the ICJ. The Trusteeship Council's role is to supervise the administration of non-self governing territories. Because all of these territories have now gained independence, the last one being Palau in 1993, the Trusteeship Council is no longer functional within the United Nations.
The General Assembly and the Security Council are the components of the organization that are most involved in lawmaking and legislative activities. Their respective authority varies greatly. Although the General Assembly lacks formal legislative authority to adopt resolutions that are binding on its members, it is highly active in the making and development of international law. This organ of the United Nations is required to initiate studies and to make recommendations that encourage the progressive development of international law and its codification (UN Charter art. 13(1)(a)). Within this context, the General Assembly has originated much of the existing international legislation, and some of its resolutions are now accepted as customary international law, such as the universal declaration of human rights. Thus, resolutions adopted by the General Assembly, albeit formally considered non-binding, have legal character and contribute significantly to the development of international law.
The Security Council, on the other hand, has the authority to adopt binding decisions, and non-compliance with these decisions constitutes a violation of the UN Charter. However, this does not give the Security Council a general lawmaking authority, as its subject matter jurisdiction is limited to concerns of international peace and security. According to the UN Charter, article 2(3), all nations are required to settle their disputes by peaceful means in such a manner that international peace, security, and justice are not endangered. Nations are advised to resort to peaceful dispute-settlement mechanisms (art. 33(1)) such as negotiation, mediation, and conciliation. Where these measures fail, the parties must refer to the UN Security Council if their proposed measure would be a threat to peace and security. The Security Council then makes recommendations on further peaceful measures, and it resorts to the powers conferred on it under the UN Charter for its peacekeeping operations. The General Assembly's role in peacekeeping focuses mainly on providing a forum for public discussion of the issues. However, the assembly does have the power to bring issues that potentially endanger the peace before the Security Council.
In some cases, the Security Council fails to exercise its responsibility for maintaining international peace and security, and there is a threat to peace or an act of aggression. The General Assembly or Security Council may make appropriate recommendations and may authorize the threat of economic sanctions or the use of armed forces to maintain or restore international peace and security.
The UN Peacekeeping Forces are employed by the World Organization and may function either as unarmed observer forces, or armed military forces. Their presence in areas of conflict is intended as an incentive to either prevent or reduce the level of conflict. Both parties to a conflict must accept their presence. As of 2001, the number of UN peacekeeping forces per year was the highest in 1993 and 1994 (more than 70,000 each year, during the crisis in Somalia), then subsided until 2001, when it again approached 48,000 following the crisis in Kosovo.
However, the United Nations generally has not been very effective in preventing hostilities that involve the world's principal powers, either directly or indirectly. For example, in 1993, the second UN peace operation, UNOSOM II, was intended to assist in rebuilding Somalia and in disarming warring factions there. It met with stiff resistance, culminating in the public deaths of 18 U.S. troops serving with the operation. When the United States announced its withdrawal, the entire operation began to wind down, while the war continued unabated. Serious debate broke out within the UN over the scope and mission of peacekeeping functions, resulting in a general disengagement in such efforts. Sadly, even efforts to respond to the genocide in Rwanda subsequently failed.
Another area of intense UN deliberations has been the Middle East. In 1990, the UN Security Council imposed comprehensive economic sanctions against Iraq following its invasion of Kuwait. The efforts failed to deter Iraq's then-leader, Saddam Hussein. The following year, the United States led allied forces to expel Iraqi forces from Kuwait during the 1991 Persian Gulf War. Following that conflict, UN Security Council Resolution 687 required Iraq to destroy its arsenal of nuclear, chemical, and biological weapons, and to submit to UN inspection for compliance.
Over the next several years, despite Iraqi efforts to conceal them, such weapons were indeed found and destroyed by UN inspectors. However, the inspectors left in 1998, following U.S. and U.K. air strikes bent on speeding up the process and destroying concealed weapons. When economic sanctions against Iraq failed to punish anyone but the Iraqi people, the UN began a humanitarian "Oil for Food" program, again with little impact. After 12 years of failed economic sanctions against Iraq, the United States petitioned the UN for international support and a coalition of military forces to oust the Hussein regime. The measure was vetoed by several superpowers, which favored the continuance of UN inspections. In early 2003, the United States and the United Kingdom, supported by several other smaller powers, conducted military strikes on Iraq and eliminated Saddam Hussein's regime. After the fact, the UN agreed to assist in peacekeeping while a new Iraqi government was organized and instituted.
The UN Charter includes a general provision that concerns the human rights of the individual. On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights, which defines and enumerates specifically the human rights that the United Nations seeks to protect. Among those are freedom from systematic governmental acts and policies involving torture, slavery, murder, prolonged arbitrary detention, disappearance, and racial discrimination. The declaration guarantees the right to life; to equal protection of the law; to free speech, assembly, and movement; to privacy; to work; to education; to health care; and to participation in the cultural life of the community. Although the Universal Declaration is not a binding instrument of international law, some of its provisions nonetheless have reached the status of customary international law. Under Articles 55 and 56 of the UN Charter, member states have an obligation to promote these rights. At the same time, the declaration acknowledges that states may limit these rights as they deem necessary, to ensure respect for the rights and freedoms of others.
In 1966, the UN General Assembly adopted three covenants that involve human rights: the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social, and Cultural Rights; and the Optional Protocol to the Civil and Political Covenant. Unlike the Universal Declaration, these covenants are treaties that require ratification by member states. The United States is not a party to the covenants.
The human rights provisions of the UN Charter, the Universal Declaration of Human Rights, and the covenants constitute the International Bill of Human Rights. Other UN human rights instruments supplement this bill. The most important ones are the Genocide Convention (1948); the International Convention on the Elimination of All Forms of Racial Discrimination (1965); the Convention on the Political Rights of Women (1953); and the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973). These conventions are legally binding on the parties that have ratified them. Most of the UN member states have ratified at least two: the Genocide Convention and the Racial Convention. The United States has ratified only the Women's Rights Convention and the Genocide Convention.
August, Ray. 1995. Public International Law: Text, Cases, Readings. Englewood Cliffs, N.J.: Prentice-Hall.
Janis, Mark W. 1988. An Introduction to International Law. Boston: Little, Brown.
"Size of UN Peacekeeping Forces: 1947–2001."; "Sanctions Against Iraq"; "Weapons Inspection Program." 2002. Excerpted from Iraq Crisis. Available online at <www.globalpolicy.org/security/peacekpg/data/pcekprs1.htm> (accessed November 20, 2003).
"United Nations Peacekeeping." Available online at <www.una-uk.org/UN&UC/Peacekeeping.html> (accessed November 20, 2003).
Ambassadors and Consuls; Arms Control and Disarmament; General Agreement on Tariffs and Trade; Geneva Conventions, 1949; Genocide; Hague Tribunal; International Court of Justice; Law of Nations; North American Free Trade Agreement; War.
INTERNATIONAL LAW is traditionally under-stood to be the law governing the relations among sovereign states, the primary "subjects" of international law. Strictly speaking, this definition refers to public international law, to be contrasted with private international law, which concerns non-state actors such as individuals and corporations. Public international law originates from a number of sources, which are both created by and govern the behavior of states. Treaties or international agreements are a familiar source of international law, and are the counterpart of domestic contracts, which create rules for the states that accept them. Customary international law, which has fewer analogues in domestic law but which is binding as a matter of international law, originates from a pattern of state practice motivated by a sense of legal right or obligation. Particularly since World War II, international institutions and intergovernmental organizations whose members are states, most notably the United Nations (UN), have become a principal vehicle for making, applying, implementing and enforcing public international law.
The United States is a modified "dualist" legal system, which means that international law does not necessarily operate as domestic law. In fact, both the Congress and the president may violate international law under certain circumstances. Similarly, the Constitution is held superior to international law in the event of an outright conflict, and in such cases the courts will recognize the primacy of domestic legal authorities over international law. Article I, section 8 of the Constitution apportions certain exclusive powers related to foreign relations and international law to the Congress. These include the authority to declare war, to regulate international trade, to establish and maintain an army and navy and to establish rules governing them, and to "define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations." Otherwise, the president, as commander in chief and chief executive, exercises considerable unenumerated powers in such areas as the recognition of foreign states and governments, and is "the sole organ of the nation in its external relations, and its sole representative with foreign nations" (United States v. Curtiss-Wright Export Corp., 1936).
The Constitution likewise gives the president the power to negotiate treaties, subject to Senate advice and consent by a two-thirds majority. In the early 2000s, many of the nation's international agreements were nonetheless concluded as executive agreements, without congressional participation. While treaties, according to Article VI of the Constitution, are the supreme law of the land, U.S. courts make a distinction between "self-executing" treaties that will be applied as rules of decision in domestic litigation and those that will not. Article I, section 10 of the Constitution prohibits the states of the Union from entering into treaties or alliances, or from engaging in most other functions related to the conduct of foreign affairs.
Modern international law is generally taken to originate with the Treaties of Westphalia of 1648, which ended the Thirty Years' War. The system of co-equal sovereign states that resulted, with no authority such as an international legislature or court of general jurisdiction superior to that of the state, required the application of legal approaches different from those found in most municipal legal systems. Early treatments of international law by such writers as Hugo Grotius (1583–1645) were strongly influenced by concepts of natural law and the religious tradition on which it drew. In the nineteenth through the early twenty-first centuries, positivism became the dominant perspective in international law. In contrast to abstract principles of ethics or morality, legal positivism relies on affirmative acts of states to establish the law.
As demonstrated by the references in its Constitution, the United States has both acknowledged the importance of and contributed to the development of international law from the earliest days of the Republic. American contributions have been particularly important in the development of the law of neutrality, the body of law defining the rights and obligations of a third state adopting an attitude of impartiality toward belligerents in armed conflict with each other. During the first century of its existence, the law governing neutrality was among the most important international legal concerns of the new nation, whose commerce was dependent on the freedom to trade with belligerents on both sides of the French Revolution and the Napoleonic Wars.
Washington's Neutrality Proclamation of 1793, followed by the Neutrality Act of 1794, were innovations in the law of neutrality. Before asserting expanded rights as a neutral, the U.S. implicitly acknowledged the need to clarify the obligations associated with that legal status. These authorities stressed the then-new concept of neutral states' duties to regulate certain activities of their citizens. They further contributed to a distinction between acts which neutral governments and their citizens by international law are forbidden to commit, and acts which neutral governments are obliged to suppress. The United States alleged that its rights as a neutral state had been violated in disputes with Britain over its practice of seizing cargoes of U.S. merchant vessels trading with France and impressing U.S. sailors into the British navy, both precipitating factors leading to the War of 1812.During the Civil War, the United States was similarly assertive in pressing the duties of neutral states, most famously in the Treaty of Washington (1871) and the subsequent Alabama arbitration (1872), which established the liability of Great Britain for violating its legal status as a neutral state by allowing private parties under its jurisdiction to build and outfit vessels of war for the Confederacy. Since the late eighteenth century, the U.S. Supreme Court has advanced the development of international law in such areas as the immunity of foreign governments from suit.
The United States also substantially contributed to the use of international arbitration as a mechanism for the peaceful settlement of disputes between states. The Treaty of Amity Commerce and Navigation with Britain, popularly know as Jay's Treaty (1794), designed to address certain unsettled issues remaining after the American War of Independence, contained a number of arbitration clauses that were important developments in international law and practice. In the latter part of the nineteenth century, the United States and Great Britain conducted arbitration over fur seals in the Bering Sea (1893), and the American-Mexican Mixed Claims Commission, established by international convention in 1868, adjudicated more than 200 claims between 1871 and 1876.
In the late 1800s, the United States' approach to international law was influenced by peace movements advocating international arbitration as a mechanism for settling disputes and as an alternative to armed force. These trends bore fruit in the form of the Hague Peace Conferences of 1899 and 1907, of which the former established the Permanent Court of Arbitration. The United States, however, failed to participate in the next major step in the development of international arbitration: the establishment of the Permanent Court of International Justice (PCIJ) under the auspices of the League of Nations in 1920.Although the Senate failed to approve U.S. membership in the League of Nations, the United States signed the agreement establishing the PCIJ. A protocol was adopted in 1929 amending the PCIJ's Statute, the institution's governing instrument, in a manner intended be responsive to the concerns of the U.S. Senate so as to permit U.S. accession. That agreement, however, failed to receive the necessary two-thirds majority in a Senate vote in 1935. Nonetheless, a judge of U.S. nationality served on the court throughout its existence, which terminated at the end of World War II. In the interwar period, the United States also articulated and asserted an international standard of "prompt, adequate and effective compensation" as a remedy for governmental expropriation of foreign nations' property, a matter that continues to be both highly relevant and controversial in the law of foreign investment.
In the latter part of the twentieth century, dominated by the Cold War and the emergence of the United States as a global superpower, the United States continued in its rhetorical commitment to international law as a vehicle for ensuring a stable and peaceful world order. Among other things, it consented to the compulsory jurisdiction of the International Court of Justice the successor to the PCIJ, albeit with significant reservations. However, instances in which the International Court of Justice adjudicated that the United States had violated international law, most notably in mining Nicaraguan ports and supporting the Contra militias, tended to undermine some of the United States' credibility as an adherent to the rule of law. Criticisms have also been directed at the United States' apparent hostility to some major multilateral agreements including the United Nations Convention on the Law of the Sea, the Comprehensive Nuclear Test Ban Treaty, the Convention on the Rights of the Child, the Rome Statute of the International Criminal Court, the Kyoto Protocol on global climate change, and conventions adopted by the International Labor Organization.
With the end of the Cold War in the last decade of the twentieth century, international institutions and international law have become increasingly important. The creation of new intergovernmental national organizations such as the World Trade Organization and the European Bank for Reconstruction and Development, and the reinvigoration of international institutions like the UN Security Council, are evidence of the importance of the rule of law in the new millennium. The United States' reliance on the UN Security Council's prior authorization before initiating hostilities to expel Iraq from Kuwait (1991) was interpreted by many international lawyers as an indicator of a newly enhanced stature for international law and institutions. At the same time, the United States as the sole remaining superpower seems to be searching for an appropriate role for law in its foreign policy for situations such as Kosovo, in which U.S. and NATO intervention was not authorized by the Security Council and rested on an uncertain legal foundation. Two challenges to the application of capital punishment to foreign nationals, initiated by Paraguay and Germany in the International Court of Justice, suggest as well that in the United States international law may play a small role in the face of competing domestic political considerations.
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