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Groundwork for International Law

Published online by Cambridge University Press:  20 January 2017

Anthony D’Amato
Anthony D’Amato*
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International law is a system; its environment is the field of international relations. Although the word system is often used generically, it has a formal meaning in “general systems theory,” an interdisciplinary methodology that grew out of cybernetics research in the 1970S. Since then, general systems theory has proved to be a significant heuristic in hundreds of disparate research areas. In describing international law from the viewpoint of an autopoietic system (to be defined shortly), this article intends not just to reexamine the foundations of international law but also to help litigators and negotiators make their international-law arguments sounder and more persuasive.

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Research Article
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American Journal of International Law , Volume 108 , Issue 4 , October 2014 , pp. 650 - 679
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Copyright © American Society of International Law 2014

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References

1 See James R. Crawford, International Law As An Open System (2002).

2 See Ludwig Von Bertalanffy, Perspectives on General System Theory (Edgar Taschdjian ed., 1975); John H. Miller & Scott E. Page, Complex Adaptive Systems (2007).

3 For an expansion of this argument, see D’Amato, Anthony, Is International Law Really ‘Law’?, 79 N W. U. L. Rev. 1293 (1985)Google Scholar.

4 See Albert Laszlo Barabasi. Linked: the New Science of Networks (2002).

5 Niklas Luhmann has gone so far in his general systems analysis of law as to build his model of a legal system entirely upon communications and then defining law as communication. See Niklas Luhmann, Law As A Social System (2004).

6 Humberto R. Maturana & Francisco J. Varela, Autopoiesis and Cognition (1973).

7 No one knows what life is (are viruses alive?). See Erwin Schrodinger, What Is Life? (1967).

8 For an extended argument with emphasis upon the internal organization of the international legal system, see D’Amato, Anthony, International Law as an Autopoietic System, in Legitimacy in International Law 335 (von Bogdandy, Armin & Wolfrum, Ruüdiger eds., 2008)Google Scholar.

9 For an acclaimed, jargon-free history that adopts the top-down perspective, see 3 Fernand Braudel, the Perspective of the World: Civilization & Capitalism 15th–18th Century (1979).

10 The term norm is not used in a rigorous sense here. Similar words with varying shades of meaning can be found in modern languages that refer generally to verbal rules, directives, standards, guidelines, and imperatives, either expressed or implied. The term law refers to those norms, rules, directives, principles, standards, or guidelines that are capable of shaping or channeling human behavior. I defend this use of the term law and expand upon its implications for theories of adjudication in D’amato, Anthony, Jurisprudence: A Descriptive and Normative Analysis of Law 5–55 (1984)Google Scholar.

11 The international legal system should not be confused with majority rule or democratic procedures. The system is not a parliament. (If it were, we would have world government and not international law.) If an analogy to democracy is desired, we can say that the system approaches Rousseau’s conception of the general will. See Jean Jacques Rousseau, the Social Contract (Maurice Cranston trans. & ed., 1968).

12 See Shaffer, Gregory & Ginsburg, Tom, The Empirical Turn in International Relations Scholarship, 106 AJIL 1 (2012)CrossRefGoogle Scholar.

13 Supra note 1.

14 Schachter, Oscar, The Invisible College of International Lawyers, 72 NW. U. L. Rev. 217 (1977)Google Scholar.

15 The Clark-Sohn proposal for transitioning into a world democracy falters on the issue of proportionate representation. Not only would other nations balk a giving the United States as much as, say, 20 percent of the votes in the new World Parliament, but the United States would balk at being outvoted by the rest of the world’s roughly 80 percent vote. Yet, if a world democracy cannot be achieved by peaceful means, it is totally unrealistic to expect one to emerge after a nuclear war. See Grenville Clark & Louis Sohn, World Peace Through World Law (1958).

16 A striking example is the opinion of the International Court of Justice (ICJ) in the Anglo-Norwegian Fisheries case, Fisheries (UK v. Nor.), 1951 ICJ Rep. 116 (Dec. 18). The court listed as a “consideration” in delimiting the Norwegian coastline “certain economic interests peculiar to a region.” Id. at 133. The factor was sharply criticized because it seemed to tilt international jurisdictional law in favor of needy and developing nations. Judge McNair, dissenting, wrote that “the manipulation of the limits of territorial waters for the purpose of protecting economic and other social interests has no justification in law.” Id. at 169 (McNair, J., dissenting). However poorly worded this element of the judgment may have been, a better interpretation would be that the Norwegian coastline is so jagged, with hundreds of small islands and drying rocks, that many conflicts would surely arise if foreign fishing vessels were allowed to circulate in those waters. The decision in favor of Norway was thus more conducive to peace than the British position.

17 This statement is almost, but not quite, tautological. The reason it is almost a tautology is that we would probably not be interested in biological systems that appeared for a short time and then perished. Indeed, we could hardly call them—or have enough time to call them—”systems.” the biological systems that are interesting to us are just those that have managed to endure for a significant period of time—by reproduction, by fission (as in the case of amoebas), or just by various survival mechanisms that prolong their future (as in the case of successful political entities). They are interesting because they are the survivors of the Darwinian struggle: they are here; their competitors are not. A system is not necessarily aware, however, of its survival imperative. A system may be unconscious, as in the case of genes. See Richard Dawkins, the Selfish Gene (1976). In their case we simply infer a “blind” goal of survival based on the evidence that the successful genes are those that have managed to locate themselves in phenotypes (such as human bodies) that are successful reproducers. Even if a human being is just a gene’s way of creating another gene, the luckier genes are those that happen to choose humans who make a dedicated effort to survive—at least to the point of reproduction. See Matthew Ridley, Evolution (1993). Compare Susan Oyama, Evolution’s Eye (2000). See also Richard Dawkins, the Blind Watchmaker (1996).

18 Diplomatic immunity is referred to in Indian epics such as Ramayana (between 3000 and 2000 BC), See http://en.wikipedia.org/wiki/Ramayana, and Mahabharata (around the fourth century BC), See http://en.wikipedia.org/wiki/Mahabharata.

19 Likewise, in fractional reserve banking, if too many depositors want to cash out, the bank will be bankrupted.

20 See Stuart A. Kauffman, the Origins of Order: Self-Organisation and the Selection in Evolution 33–67 (1993).

21 See Fisheries, supra note 16. Another example: a “hardened” nuclear missile site on the side of a mountain is more stable from a system-preserving viewpoint than an above-ground site that might be forced to fire in anticipation of an enemy’s counterforce strike. See Thomas Schelling, the Strategy of Conflict (1960); Thomas Schelling, Arms and Influence (1966).

22 See Fisheries, supra note 16.

23 See infra, Proposition 6.

24 This statement assumes that not every rule infraction is punished by resort to war. As I have tried to show else where, rule infractions are punished by reciprocal (“tit-for-a-different tat”) rule violations. See D’Amato, supra note 3.

25 Sometimes just a decision either way can favor stabilization. Most decisions by international arbitral tribunals cause an end to controversy simply because each side accepted the possibility of total loss before they agreed to arbitrate. In addition, decisions regarding boundary disputes tend to be stabilizing if only for the reason that the decision is localized between the litigating parties, with little or no precedent value for all the other states.

26 Developments since the American Civil War include the Hague Convention on the Pacific Settlement of International Disputes, Oct. 18, 1907, 36 Stat. 2199, 1 Bevans 577, TS No. 536; League of Nations Covenant; Kellogg-Briand Pact (Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 LNTS 57); and UN Charter.

27 Recall that one of the main arguments for repealing Prohibition in the early 1930s was that the law was so widely ignored that disrespect for the law and criminality were spreading to other areas of social interaction.

28 Wright, Quincy, The New Law of War and Neutrality, in Varia Juris Gentium: Festschrifft for Jean Pierre Adrien Francois 412, 414 (1959)Google Scholar.

29 In Which Norms Matter? Revisiting the “Failure” of Internationalism, 51 Int’l Org. 31, 52–53 (1997), Jeffrey Legro cites an assistant chief of the British army general staff who argued in 1940, when Britain was considering the use of chemical warfare against Germany, that “such a departure from our principles and traditions would have the most deplorable effects not only on our own people but even on the fighting services. Some of us would begin to wonder whether it really mattered which side won.”

30 The United States developed such a weapon, but it has never been used. The weapon is a flashlight-sized emitter of intense laser beams that can be directed against enemy soldiers’ eyes, causing blindness. Any use of such a weapon would be the opposite of forward-looking homeostasis. With many veterans blinded, and given the years of suffering and anger that would result, the seeds for a new war would have already been planted—the absolute opposite of what Wright advocated.

31 For example, dating is a contract in which the consideration is furnished by an exchange of promises; a breach is potentially devastating and heartbreaking to the young person who is “stood up.” But if a court enforced one dating contract, it might have to enforce millions of them.

32 Louis Henkin, How Nations Behave 47 (2d ed. 1979).

33 Wright, Quincy, The Outlawry of War and the Law of War, 47 AJIL 365, 368 (1953)CrossRefGoogle Scholar.

34 Between the end of World War I and the Japanese attack on Pearl Harbor on December 7, 1941, the United States declared its status as one of neutrality. When the Luftwaffe was bombing London in 1940 and 1941 and was threatening to defeat Great Britain, however, President Roosevelt decided to ship munitions and food to the latter. Under international law these shipments violated the principle of neutrality. Note that Proposition 9, infra, makes it clear that the status of neutrality is controlled not by the state professing to be a neutral but by the international community assessing that state’s claim. Hence, Roosevelt’s shipments to Great Britain meant that Germany was now free to intercept and, if necessary, even to sink those shipments. This situation exemplifies the statement in the text that a nation’s practices could lead to war. But it is an even more instructive example of the international legal system’s involvement in interstate controversies even when one of its rules appears to have been violated. Roosevelt actually folded into his foreign policy the rule of neutrality, which the United States was violating by its shipments to Great Britain. Those shipment provided Hitler with the provable claim that the United States had violated its neutrality with respect to Germany—a claim that, if asserted, would have been equivalent to a declaration of war. But that appears to be precisely what Roosevelt wanted. He had promised the American people that he would not send their boys to a foreign war. But it would have been different if an Axis power had declared war on the United States. Hitler had arrived at the same conclusion. Thus, no matter how much he was provoked by U.S. shipments of contraband, he refrained from declaring that the United States had violated the neutrality laws, which would be tantamount to asserting that a state of war existed between Germany and the United States.

35 After researching recent studies by political scientists and historians, I calculated (informally, as summarized here) that the average state since the fourteenth century has spent slightly less than 3 percent of its temporal existence in a condition of war with one or more other states (“war” being defined as total annual battlefield deaths of at least one thousand persons). Since World War II, the prevalence of wars (excluding, by definition, civil wars) has dramatically declined from the average of the preceding five centuries. I started with the statistics in Small, Melvin & Singer, J. David, Resort to Arms: International and Civil Wars 1816–1980 (2d ed. 1982)Google Scholar. I added the lifetimes of all the nations throughout that period (the maximum was 165 years), using the charts on pages 167– 73. Next, I added the number of years each nation was involved in an interstate war, using the charts on pages 82–95 (for example, if two states had a war lasting five years, then I used the total of ten war-years). Then I divided the second total by the first, which resulted in .0388, with the consequence that the average nation spent 3.9 percent of its lifetime between the years 1816 and 1980 engaged in an interstate war. Note that two world wars are included in this period of time. For the prior period 1495–1816, Iused the statistics in Jack S. Levy, War in the Modern Great Power System, 1495–1975, at 81–92 (1983) and combined them with the Small-Singer totals. Political scientists have not calculated the figures from 1980 to the present, but ordinary observation indicates that rare wars like the ten-year Iraq-Iran war, the very brief Persian Gulf War, and wars in central Africa involved only a small number of the 193 nations extant during this time period and not many total years of war, generating a comparatively small number of war-years. Dividing, in turn, by the number of nations between 1980 and 2012, times the number of years (32 years), the overall prevalence of war in the life of a nation during this period would work out, with a high degree of confidence, to well below the 3 percent calculated overall for the earlier centuries.

36 See Ludwig Von Mises, Human Action 159–61 (4th ed. 1963).

37 If we disregard the identity of the parties, then, under Coase’s theorem, war is a lose-lose proposition, whereas free trade is win-win. See Rosen, Andrew A., D’Amato’s Equilibrium: Game Theory and a Re-evaluation of the Duty to Prosecute Under International Law, 37 N.Y.U. J. Int’l L. & Pol. 79 (2004)Google Scholar.

38 This is an extension of Hohfeld’s table of jural opposites. See Wesley Hohfeld, Fundamental Legal Conceptions As Applied in Judicial Reasoning and Other Legal Essays (1923); Balkin, Jack M., The Hohfeldian Approach to Law and Semiotics, 44 U. Miami L. Rev. 1119 (1990)Google Scholar.

39 The argument of treaties participating in custom formation was perhaps first made in Anthony D’amato, the Concept of Custom in International Law 103–66 (1971). Since then, the argument appears to have become a standard view among scholars and the ICJ. See also infra note 68.

40 Although it may seem counterintuitive, international law allows either side in a civil war to call in other states for military assistance, on condition that the civil war has progressed far enough within the state that the de facto identity of its government is in doubt.

41 Thus, the international procedure is unlike domestic criminal law, which typically prescribes maximum sentences for various criminal acts, leaving it to the would-be lawbreaker to calculate exactly the maximum cost in the cost/benefit calculation.

42 For a very brief essay on this subject, see D’Amato, Anthony, Is International Law Part of Natural Law?, 9 Vera Lex 8 (1989)Google Scholar. A natural-law approach might begin with Pufendorf. What he says of persons seems to apply as well to states within the international community: “[A]ll the advantages that attend human life today derive from men’s mutual assistance.. .. [I]n order to be safe, it is necessary for him to be sociable. .. . The laws of this sociality, laws which teach one how to conduct oneself to become a useful. .. member of human society, are called natural laws.” Pufendorf, Samuel, On the Duty of Man and Citizen According to Natural Law 34–35 (Tully, James ed., Silverthorne, Michael trans., 1991)Google Scholar.

43 Ludwig Wittgenstein, Philosophical Investigations, para. 109 (1953).

44 At the present time, Crimea, Kosovo, and Palestine are state-like entities that are not part of the international legal system.

45 The entitlements include the following: the inviolability of its borders; ambassadorial immunity; freedom to use the high seas, to send satellites into outer space, and to claim for itself a territorial sea, an underlying continental shelf, and an exclusive economic zone; and protection of the laws of war, rules regulating the conduct of hostilities, and rules regarding the exertion of extraterritorial jurisdiction. Other rules and entitlements of various kinds arise in relation to the following (among other topics): international servitudes; succession of states; international rivers, lakes, canals, and straits; polar regions; rights and duties of states in outer space; nationality and status of ships; piracy; slavery; international traffic in narcotics; nationality and statelessness; rights of aliens; rights of citizens abroad; asylum; extradition; international communications, including satellites and the Internet; human rights; diplomatic and consular privileges and immunities; status and privileges of international organizations; status of armed forces on foreign territory; limits of criminal jurisdiction; enforcement of foreign judgments and commercial arbitrations; treaties (entry into force, modification, termination); pacific blockade; reprisals; arms shipments; and relations between belligerents and neutrals.

46 The “will” and “consent” theories have a long historical lineage in international law scholarship, but they arguably are more rhetorical than analytic. This topic is, of course, beyond the range of the current discussion.

47 Louis Jaffe, Judicial Aspects of Foreign Relations 90 (1933).

48 A state’s consent is required, however, in the area of prescriptivism— often called “special custom” or “local custom.” For analysis, see D’Amato, Anthony, The Concept of Special Custom in International Law, 63 AJIL 211 (1969)CrossRefGoogle Scholar.

49 This notion was advanced by Soviet writers at the height of the Cold War and criticized at the time by U.S. writers; today, after the dissolution of the Soviet Union, a considerable minority of U.S. scholars of international law have taken up the self-serving consent theory in an attempt to prepare the way for lawless behavior by the United States on the international scene. A great deal of the American notion of “domesticating” international law, associated with writers such as Philip Trimble and John Carter, appears to be dedicated to this proposition. For my debate with Trimble on the issue of “domestication,” see International Law Anthology 400 –10 (Anthony D’Amato ed., 1994).

50 Kopelman, Elizabeth, The Modern Machiavelli: Legitimacy, Conflict and Power in the International Legal Order, 43 Ucla L. Rev. 139, 156 (1995)Google Scholar.

51 Here, again, the analogy to a hive of bees is suggestive. The hive “organism” does not exist unless all the individual bees come together in one place and work cooperatively. In physics, ice is an aggregate phenomenon; separated molecules of water, no matter how cold in temperature, do not exhibit the characteristic of ice.

52 A recent example: President Bush had been conducting a unilateralist foreign policy up to the terrorist atrocities of September 11, 2001. Then he declared a “war on terrorism,” only to find that the interests of the United States changed when the interests of other nations had to be taken into account. Accordingly, within days of the attacks on the World Trade Center and the Pentagon, the United States fully paid its back dues to the United Nations.

53 A no-call, an expression from sports, refers to a situation in which the referee or umpire did an excellent job in not calling a foul, as it only looked like a foul.

54 See supra note 8 for a reference to the internal structure of the international legal system depicted as a decision tree.

55 H. L. A. Hart, the Concept of Law 78–79 (1961).

56 Hans Kelsen, General Theory of Law and State 53–56 (1949). Kelsen rules out morality as a sanction, consigning it to the extralegal realm of social metaphysics. Kelsen goes further: the sanction rule swallows up the primary rule, rendering it logically superfluous. For further discussion of Kelsen’s argument, see Analytic Jurisprudence Anthology 50–55 (Anthony D’Amato ed., 1996).

57 Article 60(1) of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, provides: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.” Article 61 spells out a similar provision for multilateral treaties.

58 I have tried to explain this mechanism in D’Amato, supra note 3. The requirements of necessity and proportionality exist in domestic law, as well as in the international legal system, as a matter of logic. If the actor’s use of force is in self-defense or is otherwise justified, but if the actor goes too far and uses extra force that is unnecessary and disproportionate, then that extra force constitutes a new act of aggression and is illegal (both in domestic law and in international law).

59 Hart, supra note 55, at 79. Hart refers to them as secondary rules, but I think the term metarules is more precise. In 1971, I followed Hart’s nomenclature, but that was before I had thought of “sanction rules,” a category that is distinct from metarules but that might be mistakenly included in Hart’s category of secondary rules. See D’Amato, supra note 3, at 41.

60 See infra Corollary 5.1.

61 For example, the Calvo Clause was a nineteenth-century rule that attempted to dispossess a nation of its right to redress on behalf of its nationals. The rule was eventually defeated by the successful argument that a national has no standing to waive his nation’s claim, even if he is the only beneficiary of the claim. For further discussion, see International Law Anthology, supra note 49, at 312–15.

62 For example, international law arguably allows the deliberate destruction of weapons of mass destruction, as well as the factories producing them, when they are in the hands of unstable or rogue regimes. See D’amato, Anthony, International Law: Process and Prospect 73–85 (2d ed. 1995)Google Scholar (“Use of Force Against Nuclear Installations”).

63 See, e.g., Lawrence, T.J., The Principles of International Law 143–45 (7th ed. 1923)Google Scholar.

64 The original Sputnik I was in orbit twenty-one days before its radio transmitter ceased functioning. Nations rapidly acceded to an emergent rule of customary international law that the sending nation is strictly liable in tort for any damages caused by its artificial satellite reentering the atmosphere and falling to earth.

65 See Cheng, Bin, United States Resolutions on Outer Space: ‘Instant’ International Customary Law?, 5 Indian J. Int’l L. 23, 35–56 (1965)Google Scholar. I took issue with some of Cheng’s reasons, though not his conclusion, in D’amato, supra note 39, at 50, 66, 72.

66 SC Res. 487 (June 19, 1981).

67 For expansion of these summary arguments, see testimony of Anthony D’Amato, The Israeli Air Strike: Hearings Before the Senate Comm. On Foreign Relations, 97th Cong. 85, 88 (1981). See also D’Amato, Anthony, Israel’s Air Strike upon the Iraqi Nuclear Reactor, 77 AJIL 584 (1983)CrossRefGoogle Scholar; D’Amato, Anthony, Israel’s Air Strike Against the Osiraq Reactor: A Retrospective, 10 Temp. Int’l & Comp. L. J. 259 (1996)Google Scholar.

68 For a leading case that explicitly uses treaties as a source of customary law, see The Paquete Habana, 175 U.S. 677 (1900). The first full statement of the thesis that treaty rules generate customary rules may have been in D’Amato, Anthony, Treaties as a Source of General Rules of International Law, 3 Harv. Int’l L. J. 1 (1962)Google Scholar. The underlying principle is simple: if states M and N achieve a resolution of their conflicting claims in the absence of a treaty, that resolution becomes part of customary law. If, instead, they anticipate a dispute and sign a treaty to resolve it before it occurs, or sign a treaty after it breaks out that resolves the dispute, either way the resolution forms part of the customary practice of states. For further discussion, see D’Amato, Anthony, Custom and Treaty: A Response to Professor Weisburd, 21 V and. J. Int’l L. 459 (1988)Google Scholar.

69 By contrast, a change in a rule of customary international law involves breaking the existing rule. Further analysis of the problem of creating law out of its violation can be found in D’Amato, supra note 39, at 73–102.

70 Nothing stops nonparties from signing their own treaty in opposition to the one they did not sign. For a proposal and analysis, see D’Amato, Anthony, An Alternative to the Law of the Sea Convention, 77 AJIL 281 (1983)CrossRefGoogle Scholar.

71 An analogy to states in the international legal system is found in the great logician Gottlob Frege’s comment about the game of chess: “It is true that the moves of the game are made in accordance with the rules; but no position of the chessmen and no move expresses a rule; for it is not at all the job of chessmen to express anything; they are, rather, to be moved in accordance with rules.” Translations From the Philosophical Writings of Frege 203 (Peter Geach & Max Black eds., 1952).

72 Hudson, Manley O. (Special Rapporteur), Article 24 of the Statute of the International Law Commission, [1950] 2 Y. B. Int’l L. Comm’n 24, 26Google Scholar, UN Doc. A/CN.4/16 (working paper on “Ways and Means for Making the Evidence of Customary International Law More Readily Available”). For further analysis, see D’AMATO, supra note 39, at 3–20.

73 One of the clearest examples was Iran’s taking of American diplomatic hostages in 1979, an action that was declared illegal by a(rare) unanimous opinion of the ICJ. And yet the agent for Iran presented the court with numerous “legal reasons” why Iran did not violate international law in that case. See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (May 24).

74 The sovereignty of the international system is true even if the theory of autopoiesis is rejected.

75 I first described this rule in 1962 but did not include it in my 1971 book on custom. See D’Amato, supra note 68.

76 Georg Wilhelm Friedrich Hegel, Philosophy of Right (1821).

77 See Charney, Jonathan I., The Persistent Objector Rule and the Development of Customary International Law, 1985 Brit. Y.B. Int’l L. 1 Google Scholar.

78 An analogous objection is the quantum-theory paradox of Schrödinger’s cat—a cat that is both alive and dead when the wave-function collapses. See, e.g., John Gribbin, In Search of Schrö Dinger’s Cat: Quantum Physics and Reality (1984). This “paradox,” however, fails if one considers that the live cat, standing in the experimental contraption, has a different gravitational effect than a cat lying down. Hence the space-time manifold in the vicinity of an alive/dead cat would have to have an indefinite metrical structure. This indefiniteness contradicts the original assumption of a determinate experiment. See Maudlin, Tim, Quantum Non-Locality and Relativity (2d ed. 2002)CrossRefGoogle Scholar. In short, like the example in the text, the background considerations cannot be held constant.

79 S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (Ser. A) No. 10, at 28 (Sept. 7).

80 Id. at 48.

81 See, e.g., Tesón, Fernando R., Humanitarian Intervention: An Inquiry Into Law Andmorality (2d ed. 1997)Google Scholar; D’Amato, supra note 10, at 86–97.

82 To be sure, arguments have been made that humanitarian intervention is a per se violation of Article 2(4). But this argument does not take into account the specialized meanings of “territorial integrity” and “political independence” that can be found defined in treaties hundreds of years old. For the evolution of these terms in diplomatic discourse, see International Law Anthology, supra note 49, at 56–72.

83 See United States v. Belmont, 301 U.S. 324 (1937); United States v. Pink, 315 U.S. 203 (1942).

84 Many forms of control over persons are, of course, unrelated to legal systems: a worker who violates the firm’s rules may be fired; a Catholic who defies the Pope may be excommunicated; and people who violate the rules of etiquette may find themselves never again invited to parties. Other forms of control function by conferring benefits: the army awards medals for bravery and heroism; audiences applaud when an actor or a singer does a good job on stage; and parents give children an allowance if they brush their teeth and keep their rooms clean. Rules of equity, comity, and courtesy are “enforced”by these informal sanctions. An international rule R is a rule of comity if forcible sanctions may not be applied to its violator; otherwise, R is a rule of customary law.

85 Kelsen, supra note 56, at 20.

86 See Franck, Thomas, On Proportionality of Countermeasures in International Law, 102 AJIL 715 (2008)CrossRefGoogle Scholar.

87 For further analysis, see D’Amato, Anthony, The Moral and Legal Basis for Sanctions, 2 Fletcher Forum 19 (1995)Google Scholar.

88 Air Services Agreement of 27 March 1946 (U.S. v. Fr.), 18 RIAA 417 (1978).

89 Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures 72–73, 96–98 (1984).

90 Damrosch, Lori Fisler, Retaliation or Arbitration— or Both? the United States–France Aviation Dispute, 74 AJIL 785, 791–92 (1980)CrossRefGoogle Scholar.

91 After World War I, Germany viewed—with some justification—the Versailles peace treaty as being punitive. Hitler was thus afforded a platform for denouncing the treaty, with disastrous consequences for all. At the end of World War II, the Allies obviously had learned their lesson. Although they insisted on unconditional surrender, no one can plausibly claim that the peace terms they imposed on the defeated Axis powers were punitive. (Indeed, the promise extracted from Churchill by Roosevelt in return for America’s participation in the war was more severe: Great Britain had to dismantle its vast colonial empire.)

92 At this stage in international legal scholarship, however, little research has addressed the critical question of when deterrence becomes punishment. Although many thousands of historical examples exist, they remain buried in archives and newspapers.

93 An entrenched problem with jus cogens is that once you’ve got it, you can’t get rid of it. This argument is expanded in D’Amato, Anthony, It’s a Bird, It’s a Plane, It’s Jus Cogens!, 6 Conn. J. Int’l L. 1 (1991)Google Scholar.

94 For an illustration of the clash between the general international-law rule of command responsibility and the domestic rule of obedience to superior orders in a state’s armed services, see D’Amato, Anthony, Superior Orders vs. Command Responsibility, 80 AJIL 604 (1986)CrossRefGoogle Scholar.

95 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), 1966 ICJ Rep. 6 (July 18).

96 Prosecutor v. Erdemović, Case No. IT-96-22-A, Judgment, Sep. Op. McDonald & Vohrah, JJ. (Oct. 7, 1997).

97 See Alan Watson, International Law in Archaic Rome 20–23 (1993).

98 For a recent critique, see D’Amato, Anthony, Non-state Actors from the Perspective of the Policy-Oriented School: Power, Law, Actors, and the View from New Haven, in Multiple Perspectives on Non-State Actors in International Law (d’Aspremont, Jean ed., 2011)Google Scholar.

99 Myres Smith Mcdougal, Studies in World Public Order 771–78 (1960).

100 Id. In addition to the reasons cited in the text, McDougal attempted to reduce all the rules, axioms, and principles of international law to the single test of “reasonableness.” Then, with that reduction he argued that it was reasonable for the United States to test hydrogen bombs in the Pacific Ocean but unreasonable for the Soviet Union to do so. Unfortunately, his argument may have exposed a central incoherence in his “policy-oriented jurisprudence” that may have served, in part, to discredit it in recent international law scholarship. For an expansion of these arguments, see D’Amato, supra note 39, at 215–29.

101 Fuller, Lon, The Morality of Law 46–49 (rev. ed. 1969)Google Scholar.

102 Some international rules favor states that have geographic advantages. Sovereignty over the territorial sea favors France but not Switzerland. Sovereignty over the continental shelf favors the United States but not Japan. Legal systems do not confuse legal equality with distributive factual equality.

103 It also means “law” in French (droit) and German (Recht).

104 Although Adam Smith was a champion of the free market, he acknowledged in The Wealth of Nations (1776) that law must intrude to protect the market against fraud.

105 As of this writing, the Crimeans, Kurds, and Palestinians constitute protostates. Although not protected by the international rule against state aggression, they are protected by the principle of crimes against humanity.

106 The adverse reaction is inevitable if the entitlement remains unchanged. But conversely, if on occasion there are no tangible adverse reactions, then M’s action will signify a change in the entitlement for all states. In that case, N has not given an entitlement over to M; rather, like all other states, it has simply lost a previous entitlement. For an example, see the discussion of Israel’s attack upon the Iraqi nuclear reactor, at Corollary 4.2, supra.

107 Bees are so interdependent that many biologists find it useful to regard the beehive itself as a single sentient organism with detachable cells (the bees). In other words, the hive is a system.

108 The evolutionary appearance of gender (an otherwise awkward means of reproduction) for multicellular species in the animal kingdom may have been due, in part, to higher rates of survival for interdependent male-female pairs than for singlets.

109 Kelsen’s views are analyzed in Weis, Paul, Nationality and Statelessness in International Law 239–45 (2d ed. 1979)Google Scholar. A “chameleon principle” could be a work here: a person, like a chameleon, changes his coloration when he enters into a neighboring state. In his novel Tom Sawyer Abroad, Mark Twain depicted two young balloonists arguing whether they had crossed over the Illinois state line. One of them contended that since their map showed the land below them to be colored green and the land below them was, in fact, green, they must still be floating over Illinois. When they cross the state border eastward into Indiana, he said, they will recognize the territory because it will all be pink.

110 A Kelsenian rule would have stimulated entrepreneurs simply to move to more economically efficient locations in other countries. Movement of people would take the place of movement of goods; however, it is the latter that, according to the doctrine of comparative advantage, increases aggregate world wealth.

111 For a long time Genoa was continental Europe’s chief trading port because many traders who became rich remained to live there, and none of the proximate Italian city-states was powerful enough to control Genoa. This negative example was not lost on other states. A government had to give some benefits to traders to induce them to come home.

112 Fora general analysis of this rule, see D’Amato, Anthony, Domestic Jurisdiction, in 5 Encyclopedia of Public International Law 1090 (Bernhardt, Rudolf & Macalister-Smith, Peter eds., 2003)Google Scholar.

113 The concepts of transparency, translucence, and opacity in interstate relations are examined further in Anthony D’Amato, The Role of the State in the Era of Human Rights, in D’Amato, supra note 49, ch. 10.

114 U.S. Constitution, Amendment X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

115 I have suggested that in the human rights era, a person could be both a “national” of his home state and an “international” of any other state. See D’Amato, Anthony, Human Rights as Part of Customary International Law: A Plea for Change of Paradigms, 25 GA. J. Int’l & Comp. L. 47 (1995/96)Google Scholar. This terminology has definitely not caught on.

116 The example is crude. Far more subtle internal restrictions that can amount to external trade barriers involve internal, selectively imposed income taxes and credits, value-added taxes, the entire field of safety regulation of products, and simply the proliferation of bureaucratic red tape needed to obtain licensing of foreign business activities and products.

117 Charlotte Crane asked me, at a workshop presentation of an early version of this essay, whether the international legal system has evolved a rule prohibiting barriers to free trade. Such a rule would indeed appear to be of fundamental importance in establishing the interdependence of states. To be sure, the European Union is the latest and most important manifestation of the desire of many states for large free-trade zones. Nevertheless, states have not articulated a global principle that would delegitimize the acts of individual states in setting their own tariff rates or engaging in drastic tariff-affecting internal policies such as monetary controls, devaluation, and exchange-rate manipulation. See Paul R. Krugman, Currencies and Crises (1992). It is clear that there is no free-trade norm in customary international law at present. But the principle of reciprocity would appear to predict the emergence of such a norm. The dynamic factor supporting free trade is the rapidly rising global tide of consumer expectations, fueled by information (through television and the Internet) about the living standards of people in developed countries. It is possible that the international system will evolve, in years to come, a norm of free trade. The interdependence of states resulting from such a norm would foster the autopoietic system’s goal of persistence.

118 Whether these human rights norms constitute customary international law is, I believe, a major unsolved question. Some tentative views may be found in D’Amato, supra note 115.

119 See the highly restrictive decision in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). For an argument that international law prior to the nineteenth century was permissive regarding universal jurisdiction of national courts, see Anthony D’Amato & Anthony Colangelo, Amicus Brief of Law of Nations Scholars, Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491).

120 See Colangelo, Anthony, Spatial Legality, 107 NW. U. L. Rev. 69 (2012)Google Scholar.