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New Approaches to the Study of International Law*

Published online by Cambridge University Press:  28 March 2017

Richard A. Falk
Richard A. Falk*
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Extract

International law is both a contemplative academic subject and an active ingredient of diplomatic process in world affairs. The failure to maintain the clarity of this distinction accounts for considerable confusion about the nature and function of international law in the world today. An international lawyer is also a citizen of a nation-state who often holds strong views as to preferred courses of foreign policy. One way for him to vindicate these views is to demonstrate their compatibility or incompatibility with governing rules of international law. Confusion arises in scholarly settings whenever the adversary presentation of views is not distinguished from the scholarly assessment of opposing lines of adversary presentation.

Type
Research Article
Information
American Journal of International Law , Volume 61 , Issue 2 , April 1967 , pp. 477 - 495
Copyright
Copyright © American Society of International Law 1967

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Footnotes

*

I should like to acknowledge with gratitude the support given by the Center of International Studies of Princeton University enabling me to prepare this essay. A somewhat longer version will appear as a chapter in a book entitled New Approaches to International Relations, under the editorship of Morton A. Kaplan, and scheduled for publication by St. Martin’s Press in 1967. The volume, in turn, arose from a series of papers given at the Harris Conference at the University of Chicago, June 1–4, 1966.

References

1 Myres S. McDougal has made the useful distinction between “theories of” and “theories about” international law to call attention to this dual r61e. McDougal, “Some Basic Theoretical Concepts About International Law: A Policy-Oriented Framework of Inquiry,” 4 Journal of Conflict Resolution 337-354 (1960).

2 The Legality of U. S. Participation in the Defense of Vietnam,'’ Department of State, Office of Legal Adviser, March 4, 1966, reprinted in 60 A.J.I.L. 565 (1966); see also Congressional Record, March 10, 1966, pp. 5274-5279, and 54 Dept. of State Bulletin 474 (1966).

3 The letter to President Johnson, dated Feb. 14, 1966, -was signed by Professors William W. Bishop, Jr., Richard B. Baxter, Myres S. MeDougal, Louis B. Sohn, and Neill H. Alford, Jr.; it may be found in the Congressional Record, Feb. 23, 1966, pp. 3694-3695. An earlier letter supporting the legality of U. S. action was sent to the President after it had been circulated by Professor E. Ernest Goldstein and signed by thirty-one professors of international law; see Congressional Record, Appendix, Jan. 27, 1966.

4 These counter-arguments concern the charges of breaking faith with the Geneva Agreements of 1954, the degree and nature of North Vietnamese infiltration, the relationship between the Viet-Cong and Hanoi, the claims of American intervention in South Viet-Nam, and so on; legal issues include allegations of violations of the laws of war, disproportionate use of force in self-defense, and armed attack against North Viet-Nam.

5 Cf. Walter C. Schiffer, The Legal Community of Mankind (1954).

6 Among the most influential critics of a legalistic-moralistic approach to foreign policy have been George F. Kennan and Hans J. Morgenthau. See Kennan, American Diplomacy 1900-1950, pp. 95-96 (1951); Morgenthau, In Defense of the National Interest 101, 102, 144 (1951).

7 For an extreme articulation of the notion that legal order is constituted by complementary norms, see Myres S. McDougal, “The Ethics of Applying Systems of Authority: The Balanced Opposites of a Legal System,'’ in Harold D. Lasswell and Harlan Cleveland (eds.), The Ethic of Power 221-240 (1962).

8 See, e.g., Myres S. McDougal, “International Law, Power, and Policy: A Contemporary Conception,” 82 Hague Academy Recueil des Cours 132-260 (1953); also Falk, The Role of Domestic Courts in the International Legal Order 21-52 (1964).

9 Some interesting material on the rôle of national decision-makers is to be found in H. C. L. Merillat (ed.), Legal Advisers and Foreign Affairs (1964); of. also Richard B. Bilder,'’ The Office of the Legal Adviser: The State Department Lawyer and Foreign Affairs,” 56 A.J.I.L. 633 (1962).

10 Fisher, “Bringing Law to Bear on Governments,” 74 Harvard Law Review, 1130- 1140 (1961).

11 For a general analysis, see Wolfgang Friedmann, “United States Policy and the Crisis of International Law,” 59 A.J.I.L. 857-871 (1965). It is generally true that Communist states have not even bothered to put forth serious legal arguments to support their positions in international disputes.

12 A perceptive stress on communication as a function of international law is found in the recent work of William D. Coplin. See his “International Law and Assumptions About the State System,” 17 World Politics 617-634, and his book: The Functions of International Law: An Introduction to the Role of International Law in the Contemporary World (1966).

13 Cf. Leo Gross, “The Peace of Westphalia, 1648-1948,” 42 A.J.I.L. 20-40 (1948). See also Richard N. Rosecrance, Action and Reaction in World Politics 17-191 (1963). It is, of course, important to distinguish legal doctrine from political behavior. Despite a doctrinal insistence upon territorial sovereignty, frequent examples exist of intervention by the powerful in the affairs of the weak.

14 For a relevant argument on this issue see the Steel Seizure Case: Youngstown Sheet and Tube Company v. Sawyer, 343 TT. S. 579 (1952).

15 Linus C. Pauling and others v. McNamara, 331 P. 2d 796 (1964); Pauling v. McElroy, 278 F. 2d 252 (1960).

16 Emilio Eminente v. Lyndon Baines Johnson, McNamara, Busk, No. 19,802, U. S. Court of Appeals for the District of Columbia (1966). Briefs for both sides have been submitted to the court, but no decision has been rendered as yet.

17 For full documentation see Lyman M. Tondel, Jr. (ed.), Hammarskjö20 Friedmann, The Changing Structure of International Law 60-71 (1964).

18 See Falk, “The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki,” 59 A.J.I.L. 759-793 (1965); for the complete text of the court's decision, see Falk, and Mendlovitz, Saul H. (eds.), The Strategy of World Order: Toward a Theory of War Prevention, Vol. I, pp. 314–353 (1966).Google Scholar

19 For one attempt to redefine the scope of law in world affairs to include actors other than nation-states, see Quincy Wright, “Toward a Universal Law of Mankind,” 63 Columbia Law Review 440-460 (1963).

20 Friedmann, The Changing Structure of International Law 60-71 (1964).

21 For some very preliminary considerations, see Falk, ‘’ Operation Stanleyville: A Lesson in Third World Politics,” The Correspondent 63-73 (Winter, 1965).

22 See Edward McWhinney, ‘ ‘ Soviet and Western International Law and the Cold War in the Era of Bipolarity,” 1 Canadian Yearbook of International Law 40-81 (1963).

23 The official U. S. justification claims collective self-defense against an armed attack by North Viet-Nam. One difficulty with this argument is that the pattern and stakes of conflict resemble more closely a civil war. If the conflict is treated as a civil war, then there is no legal basis for bombing North Viet-Nam, even if the factual basis is prior intervention on behalf of the Viet-Cong. Counter-intervention may be permissible, but not when it takes place outside the territorial limits of the political entity enduring the civil war.

24 Relevant patterns of strategic thinking can be adapted to the analysis of the operation of international law in crisis situations; see especially Thomas C. Schelling, The Strategy of Conflict (1960).

25 For a clear account of traditional processes of law-creation, with some attention to recent developments, see Clive Parry, The Sources and Evidences of International Law (1965).

26 For the background of traditional thinking, see the title essay in James L. Brierly, The Basis of Obligation in International Law (1958).

27 E.g., Jenks, Law, Welfare and Freedom 83-100 (1963).

28 E.g., Oscar Schachter, “The Relation of Law, Politics and Action in the United Nations,” 109 Hague Academy Recueil des Cours 171-200 (1963); Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations 1-10 (1963; Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966).

29 The relevant portion of the argument is reprinted and commented upon in Falk and Mendlovitz, The Strategy of “World Order, Vol. Ill , pp. 75-90 (1966); for text of the judgment and a digest of the dissenting opinions, see 61 A.J.IJJ. 116 et seq. (1967).

30 Falk, “The New States and International Legal Order,” a series of lectures delivered at the Hague Academy of International Law in 1966, to be published in its Recueil des Cours. The fifth lecture sets forth the tentative sketch of such a framework.

31 McDougal has recently stated his conception in an “unpublished address” (available in mimeographed form under the title “Jurisprudence for a Free Society“) delivered at the University of Georgia Law School in 1965.

32 E.g., Leo Gross, “Problems of International Adjudication and Compliance with International Law: Some Simple Solutions,” 59 A.J.I.L. 48-59 (1965).

33 Singer, “The Level-of-Analysis Problem in International Relations,” in Klaus Knorr and Sidney Verba (eds.), The International System 77-92 (1961); see also McDougal's analysis in “The Impact of International Law upon National Law: A Policy-Oriented Perspective,” in McDougal and Associates, Studies in World Public Order 157-236 (1960).

34 McDougal's principal writings to date, mostly in collaboration, have been (in addition to the collection of essays cited in the previous note and the Hague lectures cited in note 8): Law and Minimum World Public Order (with Florentine P. Feliciano, 1962); The Public Order of the Oceans (with William T. Burke, 1963); Law and Public Order in Space (with Harold D. Lasswell and Ivan A. Vlasic, 1964).

35 See McDougal, Harold D. Lasswell, and W. Michael Reisman, ‘’ The World Constitutive Process of Authoritative Decision,” scheduled to appear as a chapter in The Future of the International Legal Order, edited by C. E. Black and Falk.

36 For an extreme example, see Hans Kelsen, The Principles of International Law (1944).

37 Friedmann, An Introduction to World Polities 57 (5th ed., 1965).

38 Haas, Beyond the Nation-State (1964).

39 Kaplan, System and Process in International Polities (1958).

40 “International Systems and International Law,” in Knorr and “Verba, op. eit. note 33 above, at 205-237.

41 See Hoffmann's excerpt from his own essay in Hoffmann (ed.), Contemporary Theory in International Relations 40-50 (1960).

42 I have undertaken with Cyril E. Black of Princeton a multi-volume study along these lines under the general title: The Future of the International Legal Order (cited in note 35 above).

43 The Strategy of World Order. Vol. I : Toward a Theory of War Prevention; Vol. II : International Law; Vol. III : The United Nations; Vol. IV: Disarmament and Economic Development (1966).

44 Grenville Clark and Louis B. Sohn, World Peace Through World Law, 3rd ed. (1966).

45 Currie, Selected Essays on the Conflict of Laws (1963).

46 For attempts to carry out this procedure, see Falk, The Role of Domestic Courts in the International Legal Order (1964); idem, “ The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki,” 59 A.J.I.L. 759-793 (1965). I am in the process of making such an analysis of the South West Africa Cases. For the character of phenomenology, see Q. Lauer, Phenomenology: Its Genesis and Prospect (1958); A.-T. Tymieniecka, Phenomenology and Science in Contemporary European Thought (1962). For background, see E. Husserl, Ideen zu einer reinen Phanomenologie und phänomenologischen philosophic (1913); English trans, pub. under title: Ideas: General Introduction to Pure Phenomenology (Collier ed., 1962).

47 In 1966 the Carnegie Corporation awarded the American Society of International Law a grant to support the study of a series of specific civil wars as “cases” to create empirical support for generalizing about the international law of civil war in the contemporary world.

48 This type of analysis is used in the fourth lecture of the series cited in note 30 above. The cases used are the Security Council debates concerning Goa (1961), the TJ.N.'s Stanleyville Operation (1964), and Indonesia's guerrilla activity in Malaysia (1964).