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Universal International Law

Published online by Cambridge University Press:  27 February 2017

Jonathan I. Charney
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Extract

In this shrinking world, states are increasingly interdependent and interconnected, a development that has affected international law. Early international law dealt with bilateral relations between autonomous states. The principal subjects until well into this century were diplomatic relations, war, treaties and the law of the sea. One of the most significant developments in international law during the twentieth century has been the expanded role played by multilateral treaties addressed to the common concerns of states. Often they clarify and improve rules of international law through the process of rendering them in binding written agreements. These treaties also promote the coordination of uniform state behavior in a variety of areas. International organizations, themselves the creatures of multilateral treaties, have also assumed increasing prominence in the last half of this century. They contribute to the coordination and facilitation of contemporary international relations on the basis of legal principles.

Type
Research Article
Information
American Journal of International Law , Volume 87 , Issue 4 , October 1993 , pp. 529 - 551
Copyright
Copyright © American Society of International Law 1993

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References

1 There is today a wide range of views on how real these threats are and what actions should be taken to combat them. See Christopher D. Stone, Beyond Rio: “Insuring” against Global Warming, 86 AJIL 445, 446, 447 (1992). In the instant article I examine whether international law is constitutionally capable of establishing uniform universal rules that might be necessary to deal with these threats. Stone, for example, assumes that it cannot do so. Id. at 469. I argue that his assumption is incorrect.

2 See generally The New Nationalism and the use of Common Spaces: Issues in Marine Pollution and the Exploitation of Antarctica (Jonathan I. Charney ed., 1982) [hereinafter The New Nationalism].

3 Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil Des Cours 9, 45, 46, 130 (1989 IV) [hereinafter International Law]; Oscar Schachter, International Law in Theory and Practice, 178 Recueil des Cours 9, 32 (1982 V); Michael Akehurst, A Modern Introduction to International LAW 21–23 (Brian Chapman ed., 3d ed. 1977); J. L. Brierly, The Law of Nations 45–49 (Humphrey Waldock ed., 6th ed. 1963). Henkin recently argued that sovereignty is inapposite to international law. See Louis Henkin, The Mythology of Sovereignty, ASIL Newsletter, Mar.-May 1993, at 1.

4 Henkin, International Law, supra note 3, at 45, 66, 72, 130; Akehurst, supra note 3, at 22; Brierly, supra note 3, at 47; see also Gennady M. Danilenko, The Theory of International Customary Law, 31 Ger. Y.B. Int’l L. 9, 44 (1988); David Kennedy, A New Stream of International Law Scholarship, 7 Wis. Int’l L.J. 1, 30–32 (1988); Schachter, supra note 3, at 37 n.26, 43; Anthony A. D’amato, The Concept of Custom in International Law 187, 193, 197 (1972).

5 See Henkin, International Law, supra note 3, at 50, 57, 59, 62; Danilenko, supra note 4, at 43; Schachter, supra note 3, at 36–38; Ted L. Stein, The Approach of a Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int’l L.J. 457 (1985); Prosper Weil, Towards Relative Normativity in International Law?, 77 AJIL 413, 434, 437 (1983). Contra Jonathan I. Charney, The Persistent Objector Rule and the Development of Customary International Law, 56 Brit. Y.B. Int’l L. 1 (1985).

6 Myres S. McDougal, Law and Peace, 18 Denver J. Int’l L. 1, 8–10 (1989); Anthony D’Amato, Is International Law Really “Law”?, 79 Nw. U. L. Rev. 1293 (1985); Julius Stone, Visions of World Order 10–14 (1984); Ian Brownlie, The Reality and Efficacy of International Law, 52 Brit. Y.B. Int’l L. 1 (1981); Louis Henkin, How Nations Behave 25–27, 88–98 (1979); Myres S. McDougal, Harold D. Lasswell & W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Va. J. Int’l L. 188, 188–89 (1968); Hans Kelsen, Pure Theory of Law 214–17 (2d rev. ed. 1960, Max Knight trans. 1967) (1934); Wolfgang Friedmann, The Changing Structure of International Law 79–95 (1964); H. L. A. Hart, The Concept of Law 222–25 (1961); Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1 (1946).

Others deny that the international legal system is a system of law. Christian Wolff, Jus gentium methodo scientifica pertractatum (Joseph H. Drake trans., Carnegie ed. 1934) (1764); The Austinian Theory of Law 155 (W. Jethro Brown ed., 1906); John Austin, The Province of Jurisprudence Determined 1–31, 138–39, 201 (Weidenfeld & Nicolson 1954) (1832). For a general discussion of the arguments for and against recognizing that public international law is the product of a legal system, see McDougal, supra, at 10.

Kant appears to be on both sides of the issue. On the one hand, he writes that a state of nature exists among nations that cannot be replaced by universal law that would endure. Immanuel Kant, The Metaphysics of Morals, §61, at 156–57 (Mary Gregor trans., 1991) (1797). On the other hand, he does describe various rights of nations (or states) in regard to neutrality and retaliation, and rules for the conduct of war, peace treaties and treaties of alliance. Id. §§53–60, at 150–57.

7 Kent Greenawalt, Conflicts of Law and Morality 64, 69 (1989); Thomas M. Franck & Steven W. Hawkins, Justice in the International System, 10 Mich. J. Int’l L. 127, 129 (1989); A. John Simmons, Moral Principles and Political Obligations 57–100 (1979); John Rawls, A Theory of Justice 11, 17, 333–49 (1971); John Locke, Two Treatises of Government 287–96, 342, 348–67 (Peter Laslett ed., 2d ed. 1967) (1690).

Brierly analyzes the classical theories advanced for the moral obligation to abide by law in discussing the obligation of states to abide by public international law. James Leslie Brierly, The Basis of Obligation in International Law and Other Papers 1–67 (Hersch Lauterpacht & C. H. M. Waldock eds., 1958) [hereinafter Obligation]. This essay was originally published in French. J. L. Brierly, Le Fondement du caractere du droit international, 23 Recueil des Cours 463 (1928 III). He argues that the basis of individuals’ obligation to abide by domestic law is the same as states’ obligation to abide by international law. Brierly, Obligation, supra, at 56–65. For his review of the consent theory, see id. at 9–18.

8 Greenawalt, supra note 7, at 159–73, 194; Steven J. Burton, Review Essay: Law, Obligation, and a Good Faith Claim of Justice, 73 Cal. L. Rev. 1956, 1964 (1985); Joseph Raz, Authority and Consent, 67 Va. L. Rev. 103, 237–42, 245 (1981); Tony Honoré, Must We Obey? Necessity as a Ground for Obligation, 67 Va. L. Rev. 39, 44–50 (1981); John Finnis, Natural Law and Natural Rights 14–15 (1980); Simmons, supra note 7, at 147–56; J. C. Smith, Legal Obligation 140–49 (1976); Rawls, supra note 7, at 334; Brierly, Obligation, supra note 7, at 3–9. Kant argues that the duty to obey exists even if it is not just. Kant, supra note 6, §46, at 125.

9 Greenawalt, supra note 7, at 121–49; Simmons, supra note 7, at 104–44.

10 Greenawalt, supra note 7, at 94–111; Simmons, supra note 7, at 47–53; Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 3 (Clarendon Press 1907) (1789); Jeremy Bentham, A Fragment on Government, ch. I, sec. 43, at 56 (J. H. Burns & H. L. A. Hart eds., 1988) (1891). See also arguments of ethical egoists (hedonists): David P. Gauthier, Moral Dealing 4 (1990); David P. Gauthier, Morals by Agreement 349–50 (1986). See further Oscar Schachter, Towards a Theory of International Obligation, 8 Va. J. Int’l L. 300 (1968) (identifying 13 theories put forward as potential bases of obligation in international law).

11 Henkin, International Law, supra note 3, at 85; Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures 4–44 (1984); Henkin, supra note 6, at 25–26, 49–68, 320–21; D’Amato, supra note 4, at 172; Friedmann, supra note 6, at 88–93; Oliver Lissitzyn, The International Court of Justice 5–6 (1951).

12 See Henkin, supra note 6, at 92–99; Brierly, supra note 3, at 55–56; Henry Manning, The Nature of International Society 106–07 (1962); Brierly, Obligation, supra note 7, at 56–67. See generally Rosalyn Higgins, Conflict of Interests: International Law in a Divided World (1965); Philip C Jessup, Diversity and Uniformity in the Law of Nations, 58 AJIL 341 (1964); Oliver Lissitzyn, International Law in a Divided World, Int’l Conciliation, No. 542, March 1963; C. Wilfred Jenks, The Common Law of Mankind (1958). Brierly argues that state sovereignty is a rhetorical concept. States exist as juridical persons only because there is an international community that imposes obligations on its members. Since statehood exists only in the context of a community of states, the absolute independence and sovereignty of states is impossible. Brierly, supra, at 19–36.

13 See Akehurst, supra note 3, at 15.

14 Henkin, supra note 6, at 47–49; see also Brierly, Obligation, supra note 7, at 54.

A recurring theme in multilateral treaties and the resolutions of intergovernmental organizations is the commitment of states to the rules of international law. See, e.g., United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Preamble, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983); Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Preamble, Arts. 31, 43, 53, 1155 UNTS 331, reprinted in 8 ILM 679 (1969); Conference on Security and Co-operation in Europe [CSCE], Final Act, Aug. 1, 1975, sees. 1(a)(1), l(a)(10), 73 Dep’t St. Bull. 323 (1975), reprinted in 14 ILM 1292, 1296 (1975) [hereinafter Helsinki Final Act]; Draft Declaration of the Rights and Duties of States, Preamble, Arts. 2, 9, 13, 14, in Report of the International Law Commission to the General Assembly, 1949 Y.B. Int’l L. Comm’n 286, 286–89; Declaration on the Establishment of a New International Economic Order, GA Res. 3201, UN GAOR, 6th Spec. Sess., Supp. No. 1, at 3, UN Doc. A/9559 (1974). The UN General Assembly and Commission on Human Rights have promoted international rules with respect to human rights violations. See, e.g., International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171, reprinted in 6 ILM 368 (1967) (human right to civil and political liberty); Universal Declaration of Human Rights, GA Res. 217, UN Doc. A/810, at 71 (1948) (recognition of equal and inalienable rights of all individuals). See generally Howard Tolley, Jr., The U.N. Commission on Human Rights (1987).

Schachter, supra note 3, at 34, also argues that states have accepted the system. Thus, the United Nations Charter, which enjoys virtually universal participation, acknowledges this commitment. UN Charter, Preamble, Arts. 1(1), 13(1)(a). There is probably no state that has failed to issue a statement or to join in a document committing itself to be bound by international law.

15 Henkin, supra note 6, at 46, 70, 86; Friedmann, supra note 6, at 86.

16 Hart, supra note 6, at 89–96; Hans Kelsen, General Theory of Law and State 366–68 (1946).

17 Thomas M. Franck, Legitimacy in the International System, 82 AJIL 705, 758 (1988); Burton, supra note 8, at 1958; Schachter, supra note 3, at 25–26; D’Amato, supra note 4, at 41, 191; Kelsen, supra note 6, at 214-17; Kelsen, supra note 16, at 369–70. H. L. A. Hart, supra note 6, at 230, does not believe that there is a rule of recognition in public international law.

18 International Court of Justice, Statute Art. 36(2); Restatement (Third) of the Foreign Relations Law of the United States §102 (1987) [hereinafter Restatement].

19 Vienna Convention on the Law of Treaties, supra note 14, Arts. 34–38. See Jonathan I. Charney, The Antarctic System and Customary International Law, in International Law for Antarctica 55, 63–68 (Francesco Francioni & Tullio Scovazzi eds., 1987).

20 Vienna Convention on the Law of Treaties, supra note 14, Arts. 53, 64, 71.

21 Thomas M. Franck, The Power of Legitimacy Among Nations 202, 187–88 (1990); Franck, supra note 17, at 705, 756; Brierly, Obligation, supra note 7, at 21. Pacta sunt servanda may be a required doctrine of every legal system. Maurice Mendelson, Are Treaties Merely a Source of Obligation?, in Perestroika and International Law 81, 81 (W. E. Butler ed., 1990); Henkin, International Law, supra note 3, at 51; Brierly, supra note 3, at 53.

22 Gennady M. Danilenko, International Jus Cogens: Issues of Law-Making, Eur. J. Int’l L., No. 1, 1991, at 42, 48–57; Henkin, International Law, supra note 3, at 59–61; R. A. Mullerson, Sources of International Law: New Tendencies in Soviet Thinking, 83 AJIL 494, 504 (1989); Mustapha Kamil Yaśseen, Réflexions sur la détermination du “jus cogens,” in L’Elaboration du droit international public 204 (1975); Statement by M. K. Yasseen, Chairman of the Drafting Committee, United Nations Conference on the Law of Treaties, Official Records, First Session 471, 472, UN Doc. A/CONF.39/11, UN Sales No. E.68.V.7 (1969) [hereinafter Official Records]. Contra Antonio Cassese, International Law in a Divided World 178 (1986); Statement of the representative of France, Official Records, supra. Second Session 93, 94–95, UN Doc. A/CONF.39/11/Add.1, UN Sales No. E.70.V.6 (1970); Statement of the Swiss delegation, id. at 123; Statement of the representative of Venezuela, Official Records, supra, First Session 444.

23 Henkin, International Law, supra note 3, at 61–62; Cassese, supra note 22, at 170–71; Schachter, supra note 3, at 74–82; Michel Virally, The Sources of International Law, in Manual of Public International Law 116, 143–48 (Max Sørensen ed., 1968); Grigorii Ivanovich Tunkin, Theory of International Law 190 (1974).

24 See South West Africa (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 296 (July 18) (Tanaka, J., diss, op.); Schachter, supra note 3, at 79–82; Virally, supra note 23, at 144–46; Bin Cheng, General Principles of Law Applied by International Courts and Tribunals 390 (1953); Daniel Patrick O’Connell, International Law 12–13 (2d ed. 1970); Alfred von Verdross, Les Principes généraux du droit dans la jurisprudence internationale, 52 Recueil des Cours 191, 204–06 (1935 II).

25 See text at notes 7–10 supra.

26 See Henkin, International Law, supra note 3, at 61–62; Restatement, supra note 18, §102 reporters’ note 7; Schachter, supra note 3, at 77; Virally, supra note 23, at 146–48; Humphrey Waldock, General Course on Public International Law, 106 Recueil des Cours 1, 50, 57 (1962 II). Cf. V. S. Vereshchetin & G. M. Danilenko, Cultural and Ideological Pluralism and International Law, 29 Ger. Y.B. Int’l L. 56, 64–65 (1986).

27 See sources cited supra note 26; Cassese, supra note 22, at 174.

28 Tunkin, supra note 23, at 195–203.

29 See Factory at Chorzów (Ger. v. Pol.), 1928 PCIJ (ser. A) No. 17, at 27–29, 61 (Sept. 13); Effect of awards of compensation made by the U.N. Administrative Tribunal, 1954 ICJ Rep. 47, 53 (Advisory Opinion of July 13). See also Restatement, supra note 18, §102 reporters’ note 7; Cassese, supra note 22, at 171; Schachter, supra note 3, at 77; Virally, supra note 23, at 148; Waldock, supra note 26, at 58–60.

30 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20); The S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Sept. 7); The Paquete Habana, 175 U.S. 677 (1900); Danilenko, supra note 4; Restatement, supra note 18, §102; Schachter, supra note 3, at 35–36.

31 Thus, the Restatement, supra note 18, §102(1), describes international law as “accepted … by the international community of states.” This formulation supports the view that the relevant acceptance is that of the community of states, not states individually. See also Brierly, Obligation, supra note 7, at 13.

32 Henkin, International Law, supra note 3, at 59; Danilenko, supra note 4, at 29, 33; Restatement, supra note 18, §102 comment d; Charney, supra note 5, at 1–2 nn.2 & 3; Schachter, supra note 3, at 36; Brierly, Obligation, supra note 7, at 11.

33 Greenawalt, supra note 7, at 66; Simmons, supra note 7, at 64, 77, 80.

34 Henkin, International Law, supra note 3, at 60–61; Schachter, supra note 3, at 35–36; D’Amato, supra note 4, at 271.

35 See, e.g., Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116 (Dec. 18). The ICJ not only found that a system of straight baselines is permitted in international law, but also declared that the law placed limits on the discretion of the coastal state to establish such baselines. They included the requirements (1) that the waters so enclosed have a close dependence on the land domain, (2) that the lines not depart to any appreciable extent from the general direction of the coast, (3) that the coastal population be linked economically to the water areas, and (4) that the end points of the baselines not be located on submerged rocks. None of these requirements was clearly articulated and known to the international community prior to the Court’s declaration. Nevertheless, these rules were found to be public international law.

36 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27); The S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Sept. 7); The Paquete Habana, 175 U.S. 677 (1900); Maurice H. Mendelson, Practice, Propaganda and Principle in International Law, 42 Current Legal Probs. 1, 11–12 (1989); Oscar Schachter, Entangled Treaty and Custom, in International Law at a Time of Perplexity 717, 730, 731 (Yoram Dinstein ed., 1988); Danilenko, supra note 4, at 29; W. Michael Reisman, The Cult of Custom in the Late 20th Century, 17 Cal. W. Int’l L.J. 133 (1987); Schachter, supra note 3, at 63; Anthony D’Amato, The Concept of Human Rights in International Law, 82 Colum. L. Rev. 1110, 1131 (1982).

37 Martti Koskenniemi, The Politics of International Law, Eur. J. Int’l L., No. 1/2, 1990, at 4, 27; Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 108 (1989); Mendelson, supra note 36, at 13; Jonathan I. Charney, Customary International Law in the Nicaragua Case Judgment on the Merits, 1 Hague Y.B. Int’l L. 16 (1988); Peter Haggenmacher, La Doctrine des deux éléments du droit coutumier dans la pratique de la Cour internationale, 90 Revue Générale de Droit International Publique 5 (1986); Schachter, supra note 3, at 64.

Brierly argues that the authority of the International Court to find the law is a nonconsensual source of international law. Persons who put forward arguments based upon state consent to the judicial process are “playing with words” to hide the reality. Brierly, Obligation, supra note 7, at 17–18.

38 David Colson, How Persistent Must the Persistent Objector Be?, 61 Wash. L. Rev. 957 (1986); Charney, supra note 5; Stein, supra note 5; see also Danilenko, supra note 4, at 43; Henkin, International Law, supra note 3, at 50, 57, 59, 62; Schachter, supra note 3, at 36–38.

39 Henkin, International Law, supra note 3, at 57; Charney, supra note 5, at 3; Schachter, supra note 3, at 36.

40 In The Paquete Habana opinion, for example, it is far from clear when the rule in question became international law.

41 See Restatement, supra note 18, §102 comment d & reporters’ note 2, §206 comment a; Charney, supra note 5, at 6; R. P. Anand, New States and International Law 62 (1972); Virally, supra note 23, at 137–39; Georges M. Abi-Saab, The Newly-Independent States and the Rules of International Law: An Outline, 8 How. L.J. 95 (1962); Jorge Castañeda, The Underdeveloped Nations and the Development of International Law, 15 Int’l Org. 38 (1961); Waldock, supra note 26, at 52; Statement of the representative of Italy, 1 United Nations Conference on Succession of States in Respect of Treaties, Official Records, First Session 39, UN Doc. A/CONF.80/16, UN Sales No. E.78.V.8 (1978). See generally Yilma Makonnen, International Law and the New States of Africa (1983); F. V. García-Amador, Current Attempts to Revise International Law—A Comparative Analysis, 77 AJIL 286 (1983); T. O. Elias, New Horizons in International Law (1980); Eduardo Jiménez de Aréchaga, International Law in the Past Third of a Century, 159 Recueil des Cours 1 (1978 I); S. Prakash Sinha, New Nations and the Law of Nations (1967); J. J. G. Syatauw, Some Newly Established Asian States and the Development of International Law (1961).

42 See Danilenko, supra note 4, at 43–65; Restatement, supra note 18, §102 reporters’ note 7; Mark E. Villiger, Customary International Law and Treaties 16 (1985); G. J. H. Van Hoof, Rethinking the Sources of International Law 77–78 (1983); Schachter, supra note 3, at 34–35; Virally, supra note 23, at 148; and Waldock, supra note 26, at 58–60.

43 Restatement, supra note 18, §102 comment d; Charney, supra note 5, at 2; Schachter, supra note 3, at 32, 34–35. See also sources cited supra note 41.

44 An implicit assumption of the persistent objector rule is that nonparticipating states, regardless of the reason, are bound. Luigi Condorelli, Custom, in International Law: Achievements and Prospects 205 (Mohammed Bedjaoui ed., 1991).

45 See, for example, arguments that the United States has not been sufficiently careful to maintain its persistent objector status with respect to prohibitions on the use of the death penalty. Viktor Mayer-Schönberger, Crossing the River of No Return: International Restrictions on the Death Penalty and the Execution of Charles Coleman, 43 Okla. L. Rev. 677, 683 (1990); Lisa Kline Arnett, Death at an Early Age: International Law Arguments Against the Death Penalty for Juveniles, 57 U. Cin. L. Rev. 245, 260 n.113 (1988).

46 Charney, supra note 5, at 11–16.

47 Id. at 11–14, and references therein.

48 Id. at 15, and references therein. Schachter, supra note 3, at 119, 130–31, argues that South Africa was not a persistent objector to the international law against apartheid because, as a party to the United Nations Charter, it accepted the right of persons to equal treatment under law. See also Cassese, supra note 22, at 179. On the other hand, very substantial denials of civil and political rights to nonwhite persons under the laws of the Government of South Africa and its predecessors have a long and continuous history predating the UN Charter and continuing after its adoption. John Dugard, Human Rights and the South African Legal Order 14–29 (1978). When the human rights implications of the Charter were enunciated in the 1948 Universal Declaration of Human Rights, supra note 14, South Africa refused to endorse them and proceeded to strengthen its discriminatory laws. Dugard, supra, at 46, 53. Under these circumstances, it is difficult to sustain the argument that the Government of South Africa ever knowingly consented to the establishment of legal obligations under the Charter or general international law making its discriminatory laws illegal. Only very recently, after the application of a considerable number of international legal and political sanctions, did South Africa accept these obligations and begin to dismantle its apartheid system.

The Soviet Union persistently objected to the change in the international law of sovereign immunity from absolute immunity to the restrictive rule. Nevertheless, its objections did not protect it from the application of the new law. See Joni F. Charme, The Interim Obligation of Article 18 of the Vienna Convention on the Law of Treaties: Making Sense of an Enigma, 25 Geo. Wash. J. Int’l L. & Econ. 71, 76 n.17 (1991), and references therein.

49 Fisheries case (UK v. Nor.), 1951 ICJ Rep. 116, 131 (Dec. 18); Asylum case (Colom./Peru), 1950 ICJ Rep. 266, 277–78 (Nov. 20) (regional law). See Charney, supra note 5, at 9–11.

50 Weil, supra note 5, at 433–34; Stein, supra note 5, at 459.

51 Stein, supra note 5, at 467–68.

52 Charney, supra note 5, at 22–23.

53 See text at and note 41 supra. Contra note 42 supra.

54 Henkin, International Law, supra note 3, at 52–59; Schachter, supra note 3, at 34–39, 336. See also Mayer-Schönberger, supra note 45, at 683 (peremptory norms exempted); Franck, supra note 17, at 705, 756.

Jiménez de Aréchaga would deny the use of the persistent objector rule to very essential norms, but in exchange would permit groups of states to block their entry into international law. Eduardo Jiménez de Aréchaga, Intervention, in Change and Stability in International Law-Making 27 (Antonio Cassese & Joseph H. H. Weiler eds., 1988).

While Henkin, supra note 3, at 46–47, strongly endorses the general rule that state consent is at the foundation of public international law, he carves out three major exceptions to the general rule. International law that he classifies as constitutional law (e.g., territorial integrity, pacta sunt servanda) or basic law (e.g., principles of property, tort and contract) was part of the international legal system at its origin and not subject to state acceptance or rejection. Id. at 51–53. Jus cogens norms are another class of supreme international law not open to exception (e.g., South Africa could not object to the prohibition on apartheid). Id. at 59–61. Henkin does not express an opinion about havi jus cogens norms become international law. Nevertheless, by establishing categories of exceptions to the general rule, he must necessarily accept the proposition that the international community can legislate for all, consenter and dissenter alike.

55 Henkin, International Law, supra note 3, at 60, 62; Danilenko, supra note 4, at 44; Schachter, Entangled Treaty and Custom, supra note 36, at 717, 734. Cassese would apply the persistent objector rule even in the case of jus cogens norms. Cassese, supra note 22, at 178.

56 Convention on the Law of the Sea, supra note 14, Art. 137(3); Letter from the Group of Legal Experts on the Question of Unilateral Legislation to the Chairman of the Group of 77, in UN Doc. A/CONF.62/77 (1979), 11 United Nations Conference on the Law of the Sea, Official Records 80–82, UN Sales No. E.80.V.6 (1980); Statement of Mr. Nandan (Fiji) as Chairman of the Group of 77, in UN Doc. A/CONF.62/SR.109 (1978), 9 id. at 103, UN Sales No. E.79.V.3 (1980); Mohammed Bedjaoui, Towards a New International Economic Order 233–36 (1979). See Martin A. Harry, The Deep Seabed: The Common Heritage of Mankind or Arena for Unilateral Exploitation?, 40 Naval L. Rev. 207 (1992); Luke T. Lee, The Law of the Sea Convention and Third States, 77 AJIL 541 (1983).

A commentary of the International Law Commission takes the position that the doctrine of the common heritage of mankind made applicable to the deep seabed gives all states a collective interest. As a consequence, a violation would injure all states and thus give them standing to seek remedies under international law. Report of the International Law Commission on the Work of its Thirty-seventh Session, UN GAOR, 40th Sess., Supp. No. 10, UN Doc. A/40/10, reprinted in [1985] 2 Y.B. Int’l L. Comm’n 27, para. 23, UN Doc. A/CN.4/SER.A/1985/Add.1(Part 2).

57 Restatement, supra note 18, §§102, 103; Brierly, supra note 3, at 59–62.

58 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3 (Feb. 20); The S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Sept. 7); The Paquete Habana, 175 U.S. 677 (1900).

59 An important role of the UN General Assembly is to contribute to the development of general international law through plenary sessions and meetings of its committees, other organs and organizations associated with it. See Condorelli, supra note 44, at 179, 189–94.

60 More technical and less fundamental norms still evolve through the traditional process, although these are often developed through the actions of lower-level representatives or technical experts at standing international institutions.

61 International law does not require the specific consent or actual acquiescence of all affected states for the establishment of legal obligations. States are certainly able to become parties to international agreements with mechanisms that enable others to make binding decisions. If they can establish such procedures in international agreements, they must be able to adopt similar decision-making systems for international law in general. The community’s willingness to delegate important decision making authority is strikingly illustrated by the authority of the UN Security Council. The Security Council may take enforcement decisions under chapter VII of the UN Charter in cases of threats to the peace, breaches of the peace and acts of aggression. Decisions by a qualified majority of the 15 members of the Security Council are legally binding on all UN members and they are obliged to encourage nonmembers also to conform to such decisions. UN Charter Arts. 2(4), 2(5), 25, 27, 39–42.

The Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, 15 UNTS 295, permits certain technical decisions to be made that are binding on all state parties except those for which they expressly opt out. But other rules and regulations are binding on the state parties and do not include the right to opt out. Id., Arts. 12, 37, 38, 54, 90. See Louis B. Sohn, “Generally Accepted” International Rules, 61 Wash. L. Rev. 1073, 1074, 1075 (1986); Thomas Buergenthal, Law-Making at the International Civil Aviation Organization 76–85 (1969). For a discussion of a similar decision-making process at the World Health Organization, see F. Gutteridge, Notes on Decisions of the World Health Organization, in Effectiveness of International Decisions 277 (Stephen M. Schwebel ed., 1971).

62 For such an analysis of the Geneva Protocols, see Antonio Cassese, The Geneva Protocols of 1977 on the Humanitarian Law of Armed Conflict and Customary International Law, 3 UCLA Pacific Basin L.J. 55 (1984).

Reisman, supra note 36, is correct in his observation that decision making in multilateral forums can be abused and the results may fail to reflect political, economic or military realities. Sensitive analyses of the results produced by such forums are necessary. Thus, voting majorities that exclude certain groups of states, or fail to reflect geopolitical power or the views of the most interested states, are highly suspect. It appears to me that, as compared to the 1970s and early 1980s, the behavior of many such forums in the 1990s has been driven by an increased desire to reach true consensus among interested states.

63 Cassese, supra note 62, makes a detailed analysis of the votes, the nature of the objections stated, the substance of the norms, and their history in order to reach his opinion on whether a norm has become general international law.

The CSCE process generally requires a consensus for taking decisions. Recently, however, the CSCE states adopted a procedure that allows certain decisions to be taken by a consensus minus one. This option is available when there have been gross and uncorrected violations of CSCE commitments. In such cases the objection of the accused violating state will not block the CSCE decision. This rule was applied for the first time in the CSCE Declaration on Bosnia-Hercegovina (Helsinki, May 12, 1992). See Prague Document on Further Development of CSCE Institutions and Structures (Jan. 31, 1992), reprinted in 31 ILM 987 (1992); Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AJIL 569, 599 (1992).

64 Danilenko, supra note 4, at 37, 38; Rosalyn Higgins, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, in International Law and the International System 21, 21 (W. E. Butler ed., 1987); G. I. Tunkin, The Role of Resolutions of International Organisations in Creating Norms of International Law, in id. at 5, 12, 14, 17; D’Amato, supra note 4, at 104, 162, 165, 271.

65 Sohn, supra note 61, at 1079, 1080.

66 See Haggenmacher, supra note 37.

67 See Hiram E. Chodosh, Neither Treaty Nor Custom: The Emergence of Declarative International Law, 26 Tex. Int’l L.J. 87, 100–05 (1991), and references therein.

68 See Sohn, supra note 61.

69 See generally Frederic L. Kirgis, Jr., Custom on a Sliding Scale, 81 AJIL 146 (1987).

70 See Sohn, supra note 61; Condorelli, supra note 44; Cassese, supra note 62. The latter two authors do not appear to be willing to dispense with proof of state practice in any case. Sohn appears willing to do so.

71 In the past, I have emphasized the need for state practice so as to determine the real interests of the state actors and their commitment to the norm in question. Jonathan I. Charney, International Agreements and the Development of International Law, 61 Wash. L. Rev. 971, 990–96 (1986) [hereinafter International Agreements]; Charney, supra note 37. In many situations the decisions taken at international forums will be ambiguous, as will the views of the participating states. The practice of states may then be the better guide. Certainly, if the state practice is inconsistent with the principle adopted at the international forum, that principle would be open to serious question. It is possible, of course, that the expressed commitment of states to a norm can prevail over actions of states inconsistent with the norm but defended by the acting states as consistent with it or exceptions to it. Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 98, 108–09, paras. 186, 207, 208 (June 27). On the other hand, if the articulated norm has little or no influence on actual world behavior, it is not law. Krystyna Marek, Identity and Continuity of States in Public International Law 554 (2d ed. 1968); Kelsen, supra note 16, at 120. See generally Lon Fuller, The Morality of Law (1964); Hart, supra note 6.

72 E.g., Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 ICJ Rep. 15, 66, para. 111 (July 20); Border and Transborder Armed Actions (Nicar. v. Hond.), Jurisdiction and Admissibility, 1988 ICJ Rep. 69, 85, para. 35 (Dec. 20); Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 39, 55, paras. 46, 76 (June 3); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 422–24, paras. 69, 71, 73 (Nov. 26); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246, 293, 294, 297, 299, 302, 303, 339, paras. 91, 94, 106, 107, 111, 112, 122, 123, 230 (Oct. 12); Continental Shelf (Tunis./Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, 38, 47, 74, paras. 24, 46, 100 (Feb. 24); Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 1980 ICJ Rep. 73, 90, 92, 95, paras. 37, 41, 48 (Advisory Opinion of Dec. 20); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3, 31, 33, 41, 43, 44, paras. 62, 69, 90, 94, 95 (May 24); Aegean Sea Continental Shelf (Greece v. Turk.), 1978 ICJ Rep. 3, 32, paras. 76, 77 (Dec. 19); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 47, 55, paras. 96, 121 (Advisory Opinion of June 21); Barcelona Traction, Light and Power Company, Limited (New Application; 1962) (Belg. v. Spain), 1970 ICJ Rep. 3, 32, 38, 46, paras. 34, 54, 87, 88 (Feb. 5); North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 28, 38, 42, paras. 37, 63, 73 (Feb. 20). See also Georges Abi-Saab, Discussion, in Change and Stability in International Law-Making, supra note 54, at 10.

73 International Court of Justice, Statute Art. 38.

74 See generally Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27); Western Sahara, 1975 ICJ Rep. 12 (Advisory Opinion of Oct. 16); Texaco Overseas Petroleum Co. & California Asiatic Oil Co. v. Libyan Arab Republic (Jan. 19, 1977), 17 ILM 1 (1978); Meron, supra note 37, at 86; Higgins, supra note 64, at 21–26; Cassese, supra note 22, at 193–94; Schachter, supra note 3, at 110–32; Christopher C. Joyner, U.N. General Assembly Resolutions and International Law: Rethinking the Contemporary Dynamics of Norm-Creation, 11 Cal. W. Int’l L.J. 445 (1981).

75 D’Amato maintains that they do automatically establish customary law. D’Amato, supra note 36; D’Amato, supra note 4, at 104, 110, 164.

76 Various writers have made similar, but not as broad, suggestions. E.g., Meron, supra note 37, at 86, 93, 113; Schachter, supra note 3, at 127–30, 133; Schachter, Entangled Treaty and Custom, supra note 36, at 717, 722, 732, 734; Jim–nez de Ar–chaga, supra note 54, at 2; Higgins, supra note 64, at 21; Louis B. Sohn, The Law of the Sea: Customary International Law Developments, 34 Am. U. L. Rev. 271 (1985).

77 For support of the view that the facilitation of communication and exchange of views on potential international law norms accelerates the international lawmaking process, see South West Africa (Eth. v. S. Afr.; Liber, v. S. Afr.), Second Phase, 1966 ICJ Rep. 6, 291 (July 18) (Tanaka, J., diss, op.); Condorelli, supra note 44, at 190, 201.

78 Weil, supra note 5, at 438. Certainly, developments subsequent to 1983 show a marked decline in the politicization of international forums. The Cold War ended with the demise of the Soviet Union and, thus, the demise of the bipolar world. The Third World nations, after early overenthusiasm for sovereignty and attempts to create a single power bloc under the banner of the “New International Economic Order,” are more focused on their individual situations. The United States, albeit the remaining superpower, is less ideological and realizes it is constrained by real economic, military and political limits. Furthermore, there is a worldwide convergence toward democratic ideals of governance, free market economics and the protection of fundamental human rights, all of which translates into improved multilateral diplomacy at the United Nations and elsewhere. The effective use of the Security Council after Iraq’s invasion of Kuwait is the most visible example. In addition, the apparent reopening of serious efforts to resolve the problems concerning the deep seabed regime that are an obstacle to widespread adherence to the 1982 Convention on the Law of the Sea is an example of the progress made over the past 10 years. Statement by Ambassador Madeleine K. Albright, United States Permanent Representative to the United Nations (Apr. 27, 1993), USUN Press Release 55-(93) (Apr. 27, 1993), reprinted in US Enters Seabed Negotiations, Oceans Pol’y News, Apr. 1993, at 2; Jonathan I. Charney, The United States and the Revision of the 1982 Convention on the Law of the Sea, 23 Ocean Dev. & Int’l L. 279 (1992); David E. Pitt, U.S. Seeks to ‘Fix’ Mining Provisions of Sea Treaty, N.Y. Times, Aug. 28, 1993, at A3.

79 Those who analyze the doctrine of sources of customary international law are often unable to avoid the twin pitfalls of describing a system that either merely reflects the present political views of states on important developments in international law or so reflects the wishes of the individual analyst that it lacks a connection to reality. See Koskenniemi, supra note 37, at 7–15; Kennedy, supra note 4, at 23, 30–33; Haggenmacher, supra note 37. The general international lawmaking process described above appears to lessen those pitfalls. In its greater formality, it closely approaches a legislative process in highlighting and clarifying the norms. As a more open and positive process than customary international lawmaking, it is likely to reflect more accurately the interests of states.

80 See Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 29–30, 32–34, paras. 26–28, 31–34 (June 3); Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can./U.S.), 1984 ICJ Rep. 246, 294–95, paras. 94–96 (Oct. 12); Restatement, supra note 18, at 5; Jonathan I. Charney, The United States and the Law of the Sea after UNCLOS III–The Impact of General International Law, 46 Law & Contemp. Probs. 38, 44–48 (1983). In contrast, no progress was made on fixing the maximum breadth of the territorial sea during and after the UN Conference on the Law of the Sea of 1958 and the second conference of 1960, since no consensus was reached by the participating states.

81 Laura Pineschi, The Antarctic Treaty System and General Rules of International Environmental Law, in International Law for Antarctica, supra note 19, at 187; Restatement, supra note 18, §601 reporters’ note 1, §602 reporters’ note 1; Boleslaw Adam Boczek, The Protection of the Antarctic Ecosystem: A Study in International Environmental Law, 13 Ocean Dev. & Int’l L. 347, 389 (1983); Richard B. Bilder, The Present Legal and Political Situation in Antarctica, in The New Nationalism, supra note 2, at 167, 193–94; G–nther Handl, Territorial Sovereignty and the Problem of Transnational Pollution, 69 AJIL 50, 67 (1975); Co-operation in the Field of Economics, of Science and Technology and of the Environment, pt. 5, Environment, Helsinki Final Act, supra note 14, 14 ILM at 1307.

82 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); Henkin, International Law, supra note 3, at 223–26; Meron, supra note 37, at 95–98; 2 Restatement, supra note 18, Introductory Note to pt. VII, at 144–49; Schachter, supra note 3, at 338.

83 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392, 421, para. 66 (Nov. 26); Fisheries Jurisdiction (UK v. Ice.), Jurisdiction of the Court, 1973 ICJ Rep. 3, 14, 18–20, 21, paras. 24, 36–40, 43, 44 (Feb. 2); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 46–47, paras. 94, 96 (Advisory Opinion of June 21); 2 Restatement, supra note 18, Introductory Note to pt. VII, at 144–46; Charney, International Agreements, supra note 71, at 975–76; Ian Sinclair, The Vienna Convention on the Law of Treaties (2d ed. 1984); Herbert W. Briggs, The Travaux Préparatoires of the Vienna Convention on the Law of Treaties, 65 AJIL 705 (1971); Shabtai Rosenne, The Law of Treaties: A Guide to the Legislative History of the Vienna Convention (1970); Richard D. Kearny & Robert E. Dalton, The Treaty on Treaties, 64 AJIL 495 (1970).

84 See Cassese, supra note 62.

85 These norms have been found in nonbinding resolutions of standing or ad hoc intergovernmental forums and in draft treaties that have not entered into force. The Vienna Convention on the Law of Treaties, the 1982 Convention on the Law of the Sea, the Human Rights Covenants, and the Geneva Protocols all gave rise to general international law prior to their entry into force. See supra notes 60–65.

Arguably, the limitations on the conduct of war contained in Geneva Protocol I constrained the targeting choices by the United States during the air campaign of the Persian Gulf war even though it was not a party to the Protocol. See U.S. Dep't of Defense, Final Report to Congress: Conduct of the Persian Gulf War 95–100 (1992). “Targeting policies … avoided damage to mosques, religious shrines, and archeological sites, as well as to civilian facilities and the civilian population… . When targeting officers calculated the probability, of collateral damage as too high, the target was not attacked….” Id. at 100.

86 See generally United Nations Conference on Environment and Development, 31 ILM 814 (1992), and documents reprinted therein; James Brooke, The Earth Summit: Four of the Varied Faces in the Global Crowd at the Rio Gathering, N.Y. Times, June 11, 1992, at A12; William K. Stevens, Earth Summit Finds the Years of Optimism are Fading Memory, N.Y. Times, June 9, 1992, at C4.

87 Alan Riding, Rights Forum Ends in Call for Greater Role by U.N., N.Y. Times, June 26, 1993, at A3.

88 See Franck, The Power of Legitimacy Among Nations, supra note 21; Franck, supra note 17.

89 Generally, the international system favors a laissez-faire approach, placing the burden on advocates of new law that would restrict the freedoms of states. The S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10 (Sept. 7); Henkin, International Law, supra note 3, at 131, 136.

90 Although some domestic lawmaking systems are similarly opaque, e.g., the English and American common law.