international law

n.
A set of rules generally regarded and accepted as binding in relations between states and nations. Also called law of nations.

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Law governing relations of nations with one another. It arises principally from international agreements or from customs that nations adopt. In a broader sense, international law includes periodic cash flow () 1 1 + = Σ i t t n both public law and private law. The public law regulates political relations between nations. The private law is the comity nations grant to each other’s laws in enforcing rights arising under foreign law.

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A set of rules generally recognized by civilized nations as governing their conduct towards each other and towards each other's citizens. How far international law may be thought to differ from municipal (national) law depends on whether one takes a positivist or a naturalist view. For positivists, law is the command of a sovereign backed by force. Since the international system is an anarchy, with no supreme authority, international law is necessarily deficient. Naturalists take a different view, believing that positive law consists in the recognition and codification of other sources of law, such as custom, which do not rely upon a sovereign for their authority.

It is certainly true that custom and general principles as sources of international law have a strong flavour of the medieval natural law tradition about them, and the acceptance of the views of expert publicists only slightly less so. Thomas Aquinas, summing up the European naturalist position in the thirteenth century, had argued that the world as created by God was orderly or law-governed. This made it possible for the physical world to be understood through mathematics and the strict deductive processes of theoretical reasoning. But because of the imperfection of man following the Fall, human affairs were afflicted with contingency or uncertainty. Practical reason, which concerned human conduct, was therefore a much less clear-cut business than theoretical reason. Yet the two were loosely analogous. Thus, law could be ascertained by a quasi-deductive process of reasoning from first principles such as ‘Do unto others as you would be done by’; such practical reasoning called for skill and judgement in which expert jurists might have an advantage over sovereigns or statesmen; and laws and customs widely adopted by differing peoples ( jus gentium) were good evidence of the success of human practical reason in discovering natural law.

By the early modern period, custom, general principle, and the views of expert publicists had yielded international law on the use of force—to name only one area—in which states were generally content to acquiesce. There was general agreement within Christendom on the reasons for which a prince might go to war (jus ad bellum) and the right conduct of war once begun (jus in bello).

Subsequently, a general substitution of statute and other written forms of municipal law has led to a strong preference for convention as a source of international law. Treaties create international law, but commit only those states that are signatories to them. The term convention is more often applied to multilateral treaties with large numbers of signatories, and it is worth noting that even now, with an abundance of conventions, the source of law is often not what at first appears. Where non-signatories acquiesce in the provisions of a convention these may come to be regarded as customary international law, binding upon all states.

Such conventions now cover a wide range of subjects including territory, the sea, the responsibilities of states, human rights, treaties, dispute settlement, and the use of force. International law relating to territory covers not only the demarcation of frontiers, but airspace and outer space. The 1982 Convention on the Law of the Sea provides law relating to shipping, coastlines, territorial waters, exclusive economic zones, and rights to resources on and under the deep sea bed. Law relating to the responsibilities of states to each other's citizens covers both the care of refugees and asylum seekers and the expropriation and compensation of multinational corporations.

Until recently only states were subjects of international law, but individuals now have rights specifically recognized. Typical of the transition from customary to conventional international law is the fact that freedom from slavery, established as customary international law by 1815, has been secured under conventions only in the present century. Again, since 1945 the European Convention on Human Rights and the United Nations Universal Declaration on Human Rights (which is not a convention) have gone some way to committing states to provision of a broader range of human rights. The United Nations Charter, which does have the force of law, suggests suitable rights without conferring them on individuals; the final act of the Helsinki Conference on Security and Co-operation in Europe, which does not, is more specific.

The ways in which states may accede to, abrogate, and interpret treaties is covered by the 1969 Vienna Convention on the Law of Treaties, which came into force in 1980. Legal procedures for the settlement of disputes between states range from the exercise of good offices by a third party, through mediation and conciliation, to formal arbitration. Under the 1899 Convention on the Pacific Settlement of International Disputes and subsequent conventions states have been able to submit disputes for settlement, but the process depended on the consent of both parties. Only since the formation of the Permanent Court of International Justice 1922 and its successor, the International Court of Justice in 1946, has there been a court to which a state could unilaterally bring a complaint against another state.

The use of force is the area most often referred to by those who are sceptical about international law; they forget, perhaps, that municipal law does not stop law-breaking, though it provides generally accepted ways of dealing with it. Under the United Nations Charter of 1945 the use of force by states against one another is illegal, except in self-defence. This has not prevented war, though it may have prevented some wars. Other conventions govern the kinds of weapons which states may use, the treatment of non-combatants and prisoners of war, and the conduct of UN peace-keeping forces.

— Charles Jones

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.

Bibliography

Akehurst, Michael B. A Modern Introduction to International Law. 6th ed. Boston: Allen and Unwin, 1987.

Brierly, James Leslie. The Law of Nations. 6th ed. Edited by Humphrey Waldock. New York: Oxford University Press, 1963.

Brownlie, Ian. Principles of Public International Law. 5th ed. New York: Clarendon Press, 1998.

Butler, William E., ed. International Law and the International System. Boston: M. Nijhoff, 1987.

Corbett, Percy E. The Growth of World Law. Princeton, N.J.: Princeton University Press, 1971.

Fawcett, James E. S. Law and Power in International Relations. London: Faber and Faber, 1982.

Heere, Wybo P., ed. International Law and Its Sources. Boston: Kluwer Law and Taxation Publishers, 1989.

Henkin, Louis. How Nations Behave: Law and Foreign Policy. New York: Praeger, 1968.

Higgins, Rosalyn. Problems and Process: International Law and How We Use It. New York: Oxford University Press, 1994.

Janis, Mark W. An Introduction to International Law. 3d ed. Gaithersburg, Md.: Aspen Law and Business, 1999.

Jessup, Philip C. Transnational Law. New Haven, Conn.: Yale University Press, 1956.

Kaplan, Morton A., and Nicholas deB. Katzenbach. The Political Foundations of International Law. New York: Wiley, 1961.

Lauterpacht, Hersch. The Function of Law in the International Community. Hamden, Conn.: Archon Books, 1966.

Maris, Gary L. International Law: An Introduction. Lanham, Md.: University Press of America, 1984.

McDougal, Myres S., and W. Michael Reisman. International Law in Contemporary Perspective: The Public Order of the World Community. Mineola, N.Y.: Foundation Press, 1981.

Nussbaum, Arthur. A Concise History of the Law of Nations. New York: Macmillan, 1954.

Oppenheim, Lassa. Oppenheim's International Law. 9th ed. Edited by Robert Jennings and Arthur Watts. Essex, England: Longman, 1992.

Restatement (Third) of the Foreign Relations Law of the United States. St. Paul, Minn.: American Law Institute Publishers, 1987.

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This entry is a subtopic of Law.

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.

Bibliography

Primary Sources

Grotius, Hugo. De Jure Belli ac Pacis Libri Tres. Translated by Francis W. Kelsey. Washington, D.C., 1925. Reprint: Indianapolis, 1962.

Vitoria, Francisco de. Political Writings. Edited by Anthony Pagden and Jeremy Lawrance. Cambridge, U.K., 1991.

Secondary Sources

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.

—JAMES MULDOON

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.

Exceptionalism

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

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.

Liberalism

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.

Pragmatism

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.

Conclusion

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.

Bibliography

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— Christopher C. Joyner

This entry contains information applicable to United States law only.

The body of law governing the legal relations between 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 possessing 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 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.

International Court of Justice

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 the Second World War 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. It consists of fifteen judges, each from a different state. The judges are elected by the U.N. General Assembly and the U.N. 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 nonconsenting party adheres to the court's statute, since 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)).

States can accept the court's jurisdiction in several different ways. First, they can consent to jurisdiction on an ad hoc basis, which means that they negotiate a special agreement to let the ICJ decide a particular case at hand. Second, they can adhere to a treaty in which the court's jurisdiction is automatically accepted as one of its conditions (art. 36(1)). This form of acceptance is mainly exercised in disputes that arise out of the interpretation or application of a treaty. Third, states can accept the court's jurisdiction under article 36(2) of the court's statute, known as the Optional Clause. This clause allows states to make a unilateral declaration recognizing "as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes."

Many states have accepted the court's jurisdiction under the Optional Clause. A few states have done so with certain restrictions. The United States, for instance, has invoked the so-called self-judging reservation, or Connally Reservation. This reservation allows states a way out of the court's jurisdiction previously accepted under the Optional Clause if they decide not to respond to a particular suit. It is commonly exercised when a state determines that a particular dispute is of domestic rather than international character and thus domestic jurisdiction applies. If a state invokes the self-judging reservation, another state may also invoke this reservation against that state and thus a suit against the second state would be dismissed. This is called the rule of reciprocity and stands for the principle that a state has to respond to a suit brought against it before the ICJ only if the state bringing the suit has also accepted the court's jurisdiction. In 1986, the United States terminated its acceptance of the court's jurisdiction under the Optional Clause after the U.S. government became dissatisfied with U.S.-Nicaragua litigation. Nonetheless, the United States is still a party to many treaties and has consented to the court's jurisdiction with regard to certain treaties automatically because it is a party to these treaties, under article 36(1).

The judgment of the ICJ is binding and cannot be appealed (arts. 59, 60) once the parties have consented to its jurisdiction and the court has rendered a decision. The ICJ statute does not explain how the court's judgment will be enforced. Instead, it relies on the parties to comply with the judgment, and a state's failure to do so violates the U.N. Charter, article 94(2).

Noncompliance can be appealed to the U.N. Security Council, which may either make recommendations or authorize other measures by which the judgment shall be enforced. Recommendations made by the Security Council are not binding on a noncomplying party. Decisions are binding, and can lead to enforcement measures should a party fail to comply. A decision by the Security Council to enforce compliance with a judgment rendered by the court is subject to the veto power of permanent members and thus depends on the members' willingness not only to resort to enforcement measures but also to support the original judgment.

Sources of International Law

Article 38(1) of the ICJ Statute enumerates the sources of international law and states 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 must also view it as obligatory to follow the custom, and 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 U.N. Charter.

U.N. Charter and United Nations

The U.N. Charter and the United Nations as an organization were established on October 26, 1945. The U.N. Charter is a multilateral treaty that serves as the organization's constitution. The U.N. Charter contains a supremacy clause that makes it the highest authority of law on the international plane. The clause states that the U.N. 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 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 (U.N. 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 had its role in supervising the administration of non-self-governing territories. Since all 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 organs 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 make recommendations that encourage the progressive development of international law and its codification (U.N. 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 nonbinding, do have legal character and contribute significantly to the development of international law.

The Security Council, on the other hand, does have the authority to adopt binding decisions, and noncompliance with these decisions constitutes a violation of the U.N. 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 U.N. 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 U.N. 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 resorts to the powers conferred on it under the U.N. Charter for its peacekeeping operations. The General Assembly's role in peacekeeping focuses mainly on providing a forum for public discussion of the issues. The assembly does have the power, however, to bring issues potentially endangering the peace before the Security Council.

In a case where 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 may make appropriate recommendations and authorize the use of armed forces to maintain or restore international peace and security. However, the United Nations has not in general been very effective in preventing hostilities that involve the world's principal powers either directly or indirectly. It has been more effective in dealing with conflicts through the use of its multilateral peacekeeping force.

In addition to its provisions that apply to the peaceful interaction between nations, the U.N. Charter includes a general provision dealing with 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 have nonetheless reached the status of customary international law. Under articles 55 and 56 of the U.N. Charter, member states have an obligation to promote these rights. At the same time, the declaration acknowledges that states can limit these rights as they deem necessary to ensure respect for the rights and freedoms of others.

In 1966, the U.N. 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 U.N. Charter, the Universal Declaration of Human Rights, and the covenants constitute the International Bill of Human Rights. Other U.N. 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 U.N. 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.

See: Ambassadors and Consuls; Arms Control and Disarmament; Genocide; Law of Nations; North American Free Trade Agreement; War.

A body of rules and principles that govern the relations among nations. (See Geneva Conventions and International Court of Justice.)

For a list of words related to international law, see:

• Courts, Legal Bodies, and the Law - international law: body of rules recognized as binding between national states, based on treaties, agreements, and customs; jus gentium
• Diplomacy and Diplomats - international law: set of rules governing interactions of nations

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