Law Among Nations

Law Among Nations
An Introduction to Public International Law

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Law Among Nations
An Introduction to Public International Law
Tenth Edition
GERHARD VON GLAHN

University of Minnesota-Duluth
JAMES LARRY TAULBEE

Emory University
First published 2013, 2010, 2007 by Pearson Education, Inc.
Published 2016 by Routledge

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Credits and acknowledgments borrowed from other sources and reproduced, with
permission, in this textbook appear on appropriate page within text.
ISBN: 9780205855773 (pbk)
Library of Congress Cataloging-in-Publication Data

Von Glahn, Gerhard
Law among nations : an introduction to public international law / Gerhard von Glahn, James
Larry Taulbee. — 10th ed.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978-0-205-85577-3
ISBN-10: 0-205-85577-6
1. International law. I. Taulbee, James Larry, II. Title.
KZ3185.V6 2013
341—dc23
2011049530
In memory of Gerhard von Glahn (1911–1997)
Viro benignitatis doctrinaeque
To
Ryan, Jake, McKinlee, Kohen, and Walker
May their world be more peaceful than our collective past.
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BRIEF CONTENTS
Contents ix
Preface xiii
Abbreviations xvii
PART I The Law of Nations 1

CHAPTER 1 The Nature of International Law 2
CHAPTER 2 Development of Law Among Nations 24
CHAPTER 3 Sources of the Law 50
CHAPTER 4 International Agreements 72
CHAPTER 5 International Legal Process 101
CHAPTER 6 The Relationship Between International and Municipal Law 117
PART II Subjects of International Law 137

CHAPTER 7 Subjects of International Law: Recognition 138
CHAPTER 8 Rights and Duties of International Legal Persons 178
PART III The Allocation of Competence in International Law 207

CHAPTER 9 Nationality 208
CHAPTER 10 Principles of Jurisdiction 233
CHAPTER 11 State Responsibility: Responsibility for Injuries to Aliens 271
CHAPTER 12 The Law of the Sea 299
CHAPTER 13 Jurisdiction Over Air Space and Outer Space 338
CHAPTER 14 Agents of International Intercourse Immunities 363
vii
viii Brief Contents
PART IV International Law and the Individual 403

CHAPTER 15 The Individual and International Law: Human Rights 404
CHAPTER 16 International Criminal Law 436
PART V Process and Issues 479

CHAPTER 17 Adjudication 480
CHAPTER 18 International Law and Protection of the Environment 508
CHAPTER 19 International Economic Law 540
PART VI Law and the Use of Force 575

CHAPTER 20 The Use of Force 576
CHAPTER 21 International Humanitarian Law: War Crimes 613
CHAPTER 22 War Crime Tribunals 645
Subject and Name Index 675

Index of Cases 694
CONTENTS
Preface xiii Beyond Article 38 of the Statute 67

Abbreviations xvii Suggested Readings 71
CHAPTER 4
PART I The Law of Nations 1 International Agreements 72
CHAPTER 1 Types of Agreements 72
The Nature of International Law 2 What Makes a Treaty Valid? 78
The Nature of the Law 3 Formation of Treaties 79
Visions of International Politics 10 Special Problems 91
Why Do States Obey International Law? 15 Validity of Treaties 92
Extralegal Factors That Promote Suggested Readings 99

Compliance 18
Suggested Readings 22 CHAPTER 5
International Legal Process 101
CHAPTER 2 Diplomatic Correspondence:
Development of Law Among Nations 24 Government-to-Government Claim
or Negotiation 103
Early Development of International Law 24
Sanctions and Centralized
From Medieval to Early Modern Europe 26 Enforcement 113
The Impact of Westphalia (1648) 33 Suggested Readings 116
The Nineteenth Century 35
International Law As “International” Before CHAPTER 6
World War I 37 The Relationship Between International and
Twentieth Century 38 Municipal Laws 117
Suggested Readings 48 Monism and Dualism: What Is the
Relationship Between International and
CHAPTER 3 Domestic Law? 118
Sources of the Law 50 Applying International Law 118
Civil Code States and the
International Treaties (Conventions) 51
European Union 133
International Custom 53
Suggested Readings 134
ix
x Contents
PART II Subjects of International CHAPTER 10

Law 137 Principles of Jurisdiction 233
Principles of International Jurisdiction 235
CHAPTER 7
Extradition 246
Subjects of International Law:
Recognition 138 Common Elements of Extradition Treaties 249
The Community of Nations 138
International Juridical Personality 139
CHAPTER 11
Contemporary Practice 169
State Responsibility: Responsibility for
State Succession 172 Injuries to Aliens 271
Circumstances Precluding Wrongfulness 273
The Rainbow Warrior 273
CHAPTER 8
Mixed Claims Commissions 284
Rights and Duties of International Legal
Persons 178 Responsibility of States for the Actions of Rebels
and Insurgent Governments 296
Traditional Views 178
Rights of States 178
The Rights of Existence and Independence 179
CHAPTER 12
The Right of Equality 181 The Law of the Sea 299
The Right of Immunity 182
Some Notes on “Lawmaking” at the
State Immunity 185 International Level 300
Act of State Doctrine 196 General Principles 301
Rights of International Organizations 198 Basic Principles 302
Duties of States 200 Maritime Boundaries and Jurisdictional
Suggested Readings 204 Principles 306
High Seas 325
A Note on Regimes and the Idea of the Global
PART III The Allocation of Commons 331
Competence in International Suggested Readings 334
Law 207
CHAPTER 13
CHAPTER 9 Jurisdiction Over Air Space and Outer
Nationality 208 Space 338
Meaning of Nationality 208 National Airspace 338
Right of the State to Confer Nationality 209 Air Hijacking 343
Suggested Readings 230 Telecommunications 356
Contents xi
Outer Space 359 CHAPTER 16

Suggested Readings 362 International Criminal Law 436
Crimes Against Humanity and Genocide 438
CHAPTER 14
Piracy 449
Agents of International Intercourse
Immunities 363 Peacetime Hostage Taking 459
Terrorism 470
Diplomatic Agents 363
Inter-American Convention Against
Diplomatic Privileges and Immunities 375
Terrorism 475
Agents of International Organizations:
Conclusion 475
Privileges and Immunities 390
Consular Agents 395
PART V Process and Issues 479

PART IV International Law and the
CHAPTER 17
Individual 403
Adjudication 480
CHAPTER 15 Advantages and Disadvantages of
The Individual and International Law: Adjudication 481
Human Rights 404 International Adjudication 483
The Individual: From Object to Subject 404 Arbitration 483
Restrictions on the Jurisdiction of States Over Judicial Settlement 488
Their Nationals 405 Suggested Readings 507
Theory and Practice 406
The United Nations and Human Rights 407
CHAPTER 18
International Covenant on Civil and Political International Law and Protection of the
Rights 409 Environment 508
International Covenant on Economic, Social, and
Cultural Rights 410 The Environment and Traditional International
Law 509
Other Human Rights Instruments 410
The Limits of the Liability/Traditional Law
Implementation 414 Framework 511
Commission on Human Rights/Human Rights Regimes and the Law 512
Council 416
Organizations and Regimes 518
Regional Human Rights Initiatives 418
The Earth Summit (Rio Conference) 523
Human Rights and Territorial Asylum 423
Treaties 526
U.S. Practice and Human Rights
Conventions 430 Conclusion 538
Suggested Readings 434 Suggested Readings 539
xii Contents
CHAPTER 19 Early Development of the Law of War 614

International Economic Law 540 Law of Noninternational Wars 616
Economic Theory and Economy Law 540 Prisoners of War 619
World War I and the Great Depression 543 Limiting the Means of War 627
Prelude: Modern Economic Theory and Belligerent Occupation 634
Political Economy 545 Fourth Geneva Convention and AP-I 635
The Bretton Woods System 547 Rules of Conflict in the Air 640
The International Monetary Fund 547 Naval Warfare 642
The General Agreement on Tariffs and Suggested Readings 643
Trade 554
The Multilateral Investment Guarantee CHAPTER 22
Agency 573
War Crime Tribunals 645
The Treaty of Versailles and the Commission
of Fifteen 647
PART VI Law and the Use of Leipzig 648
Force 575 Constantinople 649
CHAPTER 20 The International Military Tribunal:
Nuremberg 651
The Use of Force 576
International Military Tribunal for the
The Classic Definition of War 577 Far East 654
Pre-Charter Attempts to Regulate the Use of Trials by National Tribunals 655
Force 579
After Nuremberg 656
The United Nations 582
The Courts: Structure and Organization 658
Terrorism and Self-Defense 591
The International Criminal Court 666
CHAPTER 21
Subject and Name Index 675
International Humanitarian Law:
War Crimes 613 Index of Cases 694
The Laws of War (JUS IN BELLO ):
International Humanitarian Law 613
PREFACE
A
s an introduction to the tenth edition of Law Among Nations, it seems fit-
ting to quote from the preface to the first edition with regard to the purpose
of the book. Professor von Glahn noted that he intended to write “a text
adapted specifically for the typical undergraduate course in international law . . .
using the traditional approach to the subject but incorporating in the actual text,
whenever called for as illustrative materials, abstracts of classic and modern cases.”
He chose the title Law Among Nations to emphasize the essential structure of the
international legal system.
The world has changed markedly since the first edition. The end of the Cold
War; the continuing revolution in communication technologies; the dense web of
financial and other functional linkages between countries that involve individuals
and agencies at every level of society, not just foreign offices, as well the continuing
growth, both formal and informal, of international institutions have added many
dimensions to the idea of “AMONG.” To illustrate this in simple fashion, consider
the factual elements in the following case:
A French court will hear a criminal libel case involving a review, written in
English by a German law professor, of a book published by a Dutch com-
pany, written in English by a French citizen who lives in Israel. The review
appeared on a website based in the United States and moderated by an
American professor of law.1
While a problem in private international law, it nonetheless illustrates per-
fectly the world of the present and its challenges. Even when Professor von Glahn
prepared his last edition (seventh), this would not have been a possibility.
As the world has changed, we have questions about how quickly “law’” may
change to reflect new circumstances. In updating the text, I have taken especial
notice of the problems. In many areas, agreements have proliferated, but many ques-
tions remain about the depth of commitment when governments have to make hard
decisions that may affect powerful domestic interests. In controversial areas such as
human rights, the environments, the law of the sea, and issues associated with the
use of force, I have identified the issues and the ongoing competing arguments.
NEW TO THIS EDITION

Beginning with a discussion in Chapter 2, which addresses the promises and prob-
lems of globalization and the idea of global governance, I have revised the material
in each relevant chapter to reflect these ideas. Through the use of small case studies
1A.Liptak, “Book Review Brings Libel Lawsuit with Global Reach,” The International Herald Trib-
une (February 22, 2011), 3.
xiii
xiv Preface
and references to other chapters, I have also made an effort to point out and con-
nect issues that connect across many dimensions and issue areas in an attempt to
present a dynamic process rather than the “still” pictures that most books reflect.
Most issues do not exist in isolation; they are embedded in broader concerns. The
book continues to evolve in that it focuses upon process in terms of application
as much as “the letter of the law.” In addition, I have increasingly tried to tie the
subject matter closer to mainstream scholarship in international politics.
In response to the reviewers, I have extended the discussion of peaceful resolu-
tion of disputes. I have also tied the procedures more closely to what I see as the
central problem of “process and procedures.” Would we teach a course in some
aspect of domestic law without presuming that students first knew the court struc-
ture, levels of determination, and alternative methods of dispute resolution?
One of the most difficult problems faced in revising a textbook comes from
the temptation to revise by accretion. Texts can rapidly become like river deltas,
slowly expanding in a sprawling manner to fill available space. In updating chapters,
I understand that instructors have their own preferences regarding the appropriate
emphasis on historical background, topics, cases, and political science–international
relations theory. As both a teacher and an author I am very much aware of the
competing demands of making a very complex area of international interaction fit
into a semester course. Appending the word “introduction” actually complicates
rather than simplifies the problems. What in terms of prior knowledge can instruc-
tors expect students to bring with them to the course? I have kept these ideas in mind
as I have updated, added, and deleted.
This means doing a revision involves some difficult choices. As always, in
keeping with the original vision, I have tried to balance history, jurisprudence, con-
troversies, and discussions of the substantive law with illustrative cases. Because
of space limitations, I may have deleted some material that individual instructors
have found useful. I welcome your comment here.
Chapter 1 has a much more coherent discussion of the relationship of IR
theory to international law. This plays into a revised Chapter 2 that now more
systematically addresses the roots and problems associated with the idea of “glo-
balization,” as well as the evolution of modern international law. Also, in Chapter
2, with the exception of Grotius, I have reduced the discussion of early writers
to their essence, while somewhat expanding the discussion of the role of natural
law. I return to this theme in Chapter 16 on human rights. I have totally rewritten
Chapter 5 to highlight the decision process in terms of why and when these tech-
niques might be employed to resolve issues, and the relevance of and possible roles
of law in the decision.
This serves as a backdrop to the chapters on substantive areas, particularly
those on human rights, international criminal law, the law of the sea, international
environmental law, and international economic law. I have totally rewritten Chap-
ters 7, 8, and 9, compressing the three rather rambling chapters into two that more
clearly define the central issues of “statehood” and the problems of “failed states.”
All chapters have been edited to reflect current controversies and problems. But, in
particular, I have updated the discussions of the continuing problem of piracy and
slavery in Chapter 16, as well as the activities and decisions of international courts,
including those of the ad hoc criminal courts in Chapters 18 and 22.
Preface xv
FEATURES
The book does reflect my personal point of view in one respect. I believe that one
of the fundamental problems of teaching (and understanding) how international
law works comes from a lack of attention to international legal process. A course
in American constitutional law has a simple format—one court, one constitution,
and one legislature. A course in the law among nations requires that students first
understand what method, “source,” or forum applies and why, before they tackle
the question of what substantive law may apply and why. For this reason, I have
“front-loaded” the discussion of the structure and processes of the international
legal system. In response to the reviewers, I have again put the “peaceful resolution
of disputes” in a separate chapter but have tried to tie it more closely to what I see
as the central problem of “process and procedures.”
Such chapters often present still pictures when the critical question involves
understanding the dynamic process. After all, is not law about the peaceful reso-
lution of disputes according to appropriate rules? Why do we often discuss all
of the “substantive issues and rules,” and then suddenly decide that we will then
deal with process as a secondary issue? Does not “process” apply all through the
course? Would we teach a course in some aspect of domestic law without presum-
ing that students first knew the court structure, levels of determination, and alter-
native methods of dispute resolution?
SUPPLEMENTS
1MFBTFWJTJUUIFDPNQBOJPOXFCTJUFBUXXXSPVUMFEHFDPN
ACKNOWLEDGMENTS
I gratefully acknowledge the perceptive reviewer comments of Ali R. Abootalebi,
University of Wisconsin, Eau Claire; Robert Bledsoe, University of Central Florida;
John Ferguson, Baylor University; Robert Gorman, Texas State University; Ellen
Pirro, Iowa State University; Jacques Fomerand, John Jay College; and Joel Jens-
wold, Oklahoma State University.
I also need to thank my editor, Vikram Mukhija, for the opportunity to under-
take this new edition and for his encouragement throughout the process. Those
associated with preparation of the manuscript for publication also deserve kudos
for a job well done on a difficult manuscript. My students and colleagues over the
years have provided perceptive commentary on many subjects covered in this text.
For that I am very appreciative. They have often made me think about the issues
from very different perspectives. Nonetheless, any errors of omission or commis-
sion remain mine.
J.L.T.
Atlanta, Georgia
August 2011
ABBREVIATIONS
Certain sources utilized frequently throughout this volume are cited in abbreviated
form as follows:
BOOKS
Bishop Bishop, International Law: Cases and Materials (2nd ed., 1962).
Brierly Brierly, The Law of Nations (6th ed., by Sir Humphrey
Waldock, 1963).
Claude Claude, Swords into Plowshares: The Problems and Progress of
International Organizations (3rd ed., rev. 1964).
Fenwick Fenwick, International Law (4th ed., 1965).
Friedman Friedman, The Law of War: A Documentary History
(2 vols, 1972).
Hackworth Hackworth, Digest of International Law (8 vols, 1940–1944).
Hudson Hudson, Cases and Other Materials on International
Law (1951).
Hyde Hyde, International Law Chiefly As Interpreted and Applied by
the United States (3 vols, 2nd ed., 1945).
Jessup Jessup, A Modern Law of Nations: An Introduction (1949).
Lauterpacht’s Oppenheim, International Law: A Treatise. Vol. 1, Peace (8th ed.,
H. Lauterpacht, 1955); Vol. 2, Disputes, War and Neutrality
(7th ed., H. Lauterpacht, 1952).
Moore Moore, A Digest of International Law (8 vols, 1906).
Nussbaum Nussbaum, A Concise History of the Law of Nations (rev. ed.,
1954).
Sørenson Sørenson, ed., Manual of Public International Law (2 vols,
1968).
Verzijl Verzijl, International Law in Historical Perspective (11 vols,
1968–).
von Glahn von Glahn, The Occupation of Enemy Territory: A Commentary
on the Law and Practice of Belligerent Occupation (1957).
Whiteman Whiteman, Digest of International Law (15 vols, 1963–1973).
xvi
Abbreviations xvii
PERIODICALS AND OTHER SOURCES

AJIL American Journal of International Law
APSR American Political Science Review
BYIL British Yearbook of International Law
CYIL Canadian Yearbook of International Law
Current Policy U.S. Department of State, Bureau of Public Affairs publication
Gist U.S. Department of State, Bureau of Public Affairs publication
EJIL European Journal of International Law
ICJ Reports International Court of Justice, Reports of Judgments, Advisory
Opinions, and Orders (1947–)
ICLQ International and Comparative Law Quarterly
ILC International Law Commission
ILM International Legal Materials
NYT The New York Times
Proceedings Proceedings of the American Society of International Law
Tijdschrift Nederlands, Tijdschrift voor International Recht
TGS Transactions of the Grotius Society [London]
T.I.A.S. Treaties and Other International Acts Series
LNTS League of Nations Treaty Series
U.S. (in case United States Reports (Supreme Court of the United States).
citations) Cases before 1875 are cited by the name of the reporter:
Dallas (1790–1800)
Cranch (1801–1815)
Wheaton (1816–1827)
Peters (1828–1842)
Howard (1843–1860)
Black (1861–1862)
Wallace (1863–1874)
U.S.C. United States Code
U.S.C.A. United States Code Annotated
UNESCOR United Nations Economic and Social Council official records
UNGAOR United Nations General Assembly official records
UNSCOR United Nations Security Council official records
UNTS United Nations Treaty Series
Y.B. Yearbook
xviii Abbreviations
PERIODICALS AND OTHER SOURCES

AJIL American Journal of International Law
APSR American Political Science Review
BYIL British Yearbook of International Law
CYIL Canadian Yearbook of International Law
Current Policy U.S. Department of State, Bureau of Public Affairs publication
Gist U.S. Department of State, Bureau of Public Affairs publication
EJIL European Journal of International Law
ICJ Reports International Court of Justice, Reports of Judgments, Advisory
Opinions, and Orders (1947–)
ICLQ International and Comparative Law Quarterly
ILC International Law Commission
ILM International Legal Materials
NYT The New York Times
Proceedings Proceedings of the American Society of International Law
Tijdschrift Nederlands, Tijdschrift voor International Recht
TGS Transactions of the Grotius Society [London]
T.I.A.S. Treaties and Other International Acts Series
LNTS League of Nations Treaty Series
U.S. (in case United States Reports (Supreme Court of the United States).
citations) Cases before 1875 are cited by the name of the reporter:
Dallas (1790–1800)
Cranch (1801–1815)
Wheaton (1816–1827)
Peters (1828–1842)
Howard (1843–1860)
Black (1861–1862)
Wallace (1863–1874)
U.S.C. United States Code
U.S.C.A. United States Code Annotated
UNESCOR United Nations Economic and Social Council official records
UNGAOR United Nations General Assembly official records
UNSCOR United Nations Security Council official records
UNTS United Nations Treaty Series
Y.B. Yearbook
PART
The Law of Nations

CHAPTER
The Nature of
International Law
E
vidence of international law as a vital concern in the everyday relations between
states appears regularly in the headlines of the world’s newspapers. Consider
the following, culled from reports on events during a recent two-week period.
Pirate Sentenced
The stiff prison sentence given a Somali pirate in US federal court is meant to
be a deterrent to armed attackers who would board and hold for ransom
unarmed commercial ships.1
Book Review Has International Implications
A French court will hear a criminal libel case involving a review, written in
English by a German law professor, of a book published by a Dutch com-
pany, written in English by a French citizen who lives in Israel. The review
appeared on a website based in the United States and moderated by an Amer-
ican professor of law.2
Extradition for Mongolian Spy
A British judge has ruled that Mongolian spy chief Bat Khurts, who claims he
was lured to the UK so that he could be arrested and jailed under a European
arrest warrant, can be extradited to Germany.3
Cyprus Parliament Ratifies Agreement with Israel on Delimitation of EEZ
The agreement, signed in December last year, is set to consolidate Cyprus’
EEZ in that it complements similar agreements Cyprus has signed with
Egypt and Lebanon. The delimitation of the EEZ is based on the Law of
the Sea Convention.4
1B. Knickerbocker, “Somali Pirate Gets Stiff Sentence in US Court. Will It Deter Piracy?” Christian
Science Monitor (February 16, 2011).
2A. Liptak, “Book Review Brings Libel Lawsuit with Global Reach,” The International Herald
Tribune (February 22, 2011), 3.

3T. Moynihan, “Extradition for Mongolian Spy,” The Independent (London) (February 19, 2011).
4Cyprus News Agency, BBC Monitoring Europe––Political (February 18, 2011).

2
CH APT ER 1 The Nature of International Law 3
Piracy, jurisdiction over an international dispute involving free speech, coop-

eration with respect to criminal prosecution, and delimiting maritime borders
between adjacent states all constitute matters that fall squarely into the realm of
international law. In an era of increasing “globalization,” international law forms
a critical part of the framework that promotes sustained cooperation among states.
While skeptics may continue to question the scope and impact of international law
as real law, simple observation should quickly provide strong evidence that states
do regard international law as an important factor in their everyday relations with
one another.
THE NATURE OF THE LAW

To begin, we need to establish some points of reference. Why do we need an “inter-
national” law, distinct from the laws of individual states, that seeks to establish
principles and procedures to govern relations with other states? If international law
does exist, what distinguishes international law from domestic law? The answer to
the first question should be obvious. With nearly 200 states in the world today,
consider the confusion and problems of dealing with potentially 200 different sets
of procedures and standards on such simple matters as necessary travel documents,
mailing a letter to a foreign county, or establishing and maintaining diplomatic
relations. Many areas of contemporary international life require common practices
to facilitate necessary international contacts and cooperation. International law
provides that common referent. Answering the second question requires a more
extended discussion focused upon the nature and function of law in society.
We need to emphasize here that this book focuses upon public international
law––the law among nations. As we shall see, public international law also includes
an emerging area of international law, international criminal law, that deals with
the actions of individuals including issues of how governments (individuals in
responsible positions) treat their citizens. Private international law, also character-
ized as conflict of laws, deals with the private (nongovernmental) transactions and
disputes between parties (companies, individuals, nongovernmental organizations
[NGOs]) from differing nations. Generally, courts and others use this body of law
to determine which law to apply when there is a conflict between the domestic
laws of the parties in a dispute. So private international law would come into play
when Siemens AG (Germany) has a dispute with Sony Corporation (Japan) over a
joint manufacturing agreement that involves component suppliers in China and an
assembly plant in Indonesia.
Some Definitions
Traditionally, writers have defined international law as that body of principles,
customs, and rules recognized as effectively binding obligations by sovereign states
and such other entities that have been granted international personality. In con-
temporary international politics, states are not the only actors subject to interna-
tional law. The United Nations (UN), the Organization of American States (OAS),
and many other intergovernmental organizations (IGOs) are examples of entities
4 PART I The Law of Nations
other than states that have international legal personality (Chapter 7). The Interna-
tional Committee of the Red Cross (an NGO) also has limited international legal
“personality” with respect to certain functions related to the Geneva Conventions
(Chapter 19). This definition pulls together the essential elements suggested by
most contemporary writers on international law. It does not represent, by any
means, the only acceptable definition. Professor Philip Jessup, drawing upon an
old and perhaps apocryphal Chinese proverb, has counseled, “One should always
have in the background of one’s mind a multiplicity of definitions covering the
subject at hand in order to prevent oneself from accepting the most obvious.”5
This applies especially to international law because controversy does surround the
subject matter. Therefore, in the spirit of Professor Jessup’s advice, we offer the
following additional definitions. Professor James Brierly, in his classic text, asserts:
The Law of Nations, or International Law, may be defined as the body of
rules and principles of action which are binding upon civilized states in their
relations with one another.6
A more contemporary definition from the American Law Institute extends this
definition somewhat:
“International law,” as used in this Restatement consists of rules and princi-
ples of general application dealing with the conduct of states and of interna-
tional organizations and with their relations inter se, as well as with some of
their relationships with persons, whether natural or juridical.7
Note one important difference between these last two definitions. Professor Bri-
erly’s definition rests upon the traditional assumption that only states can be the
subjects of international law in the sense of having legal rights and obligations.
Traditional definitions of international law assume a “hard-shell” definition of
sovereignty, meaning that international law has nothing to say about how rulers
treated their subjects or how governments treated their citizens. Hence, interna-
tional law applies between and among states but has no power or authority to
intrude into the affairs of the domestic community. The more modern definition
from the Restatement acknowledges that, increasingly, international law in the
form of evolving human rights norms also applies to the relationship between indi-
viduals and their states and may specify rights and duties for individuals in certain
circumstances (Chapter 14).
The difference between the Brierly and the Restatement definition also high-
lights an important point for the reader. All law embodies a dynamic process. Law
must change to reflect changing circumstance. States make the law in response to
their interests and concerns. Circumstances and interests change. One hundred
years ago, states could resort to war to settle their disputes without violating any
law. Seventy years ago, the idea of genocide as an international crime against
5P. Jessup, A Modern Law of Nations: An Introduction (1949), 4. Professor Jessup served a short
term as the American judge on the International Court of Justice.
6J. L. Brierly, The Law of Nations, 6th ed., edited by H. Waldock (1963), 1.
7American Law Institute, Restatement of the Law, Third, The Foreign Relations Law of the United
States (1988), para. 101, 222.

humanity did not exist. Twenty years ago, the question of establishing controls
over the Internet had little salience to governments because the Internet did not
exist in its current form. Ten years ago, while cell phones were becoming ubiqui-
tous, the possibility of texting and “tweeting” lay in the future.
Law and Politics at the International Level

“International law is to law as professional wrestling is to wrestling.”8 The skep-
ticism of this quip reflects the belief of many that international law has no real
substance. Critics believe that at best international law may provide window dress-
ing for states to justify their actions, but, to use contemporary jargon, it does not
exert any definitive compliance pull in the sense that a government will obey if an
obligation requires that it act in a way that would result in a short-term loss vis-
à-vis an important interest. Skeptics believe that governments comply with inter-
national law only if convenient to do so and feel free to ignore it otherwise. These
criticisms come from eminent philosophers, statesmen, and men of letters. Mon-
tesquieu wrote:
International Law is better known in Europe than in Asia, yet it can be said
that royal passions, the submissiveness of their subjects and sycophantic writ-
ers have corrupted all its principles. In its present state, this branch of law is a
science which explains to kings how far they can violate justice without dam-
aging their own interests.9
Abba Eban, then the Israeli ambassador to the United States, noted, “International
law is the law which the wicked do not obey and the righteous do not enforce.”10
In Tiger at the Gates, Jean Giradoux provides a pointed critique of both the char-
acter of international lawyers and what he saw as the infinitely flexible nature
of international law, characterizing the field as “[t]he training ground for the
imagination.”11 During the debate over whether NATO should take action against
Serbia, when British Foreign Secretary Robin Cook told U.S. Secretary of State
Madeleine Albright that he had “problems with our lawyers” over using force
against Yugoslavia without UN Security Council approval, Secretary Albright
reportedly responded, “Get new lawyers.”12
The structure of the international political system encourages skepticism about
law. An examination of the international political systems will find none of the
institutions and features normally associated with “the law” as a factor in mod-
ern domestic societies. Most international relations textbooks begin by telling us
8S. Budiansky, US News and World Report (September 20, 1993), 8.

9C-L. de Secondat (Montesquieu), The Persian Letters, trans. J. R. Loy (1961), 176.
10A. Eban, interview with Edward R. Murrow on Person to Person (CBS television broadcast, Sep-
tember 20, 1957).
11J. Giradoux, Tiger at the Gates (La guerre de Troie n’aura pas lieu), trans. C. Fry (1955), 45. Gira-
doux has Busiris, a famous international lawyer at the court of Priam (Troy) when the Greek ships
first sail into the harbor, engage in what we might call “good lawyering” twice!
12Reported by James Rubin, U.S. Secretary of State Madeleine Albright’s press spokesman at the time
of the Kosovo Conflict, Financial Times (September 29, 2000).

that anarchy best describes the international milieu. While anarchy simply means
the absence of central political rule (not necessarily chaos or disorder), in talking
about a system that does not have a legislature to enact authoritative prescriptions,
a central executive authority with an effective police power, or a court system with
compulsory jurisdiction over state activities, how can we speak seriously of law as
a reality that affects the behavior of states? The answer to this question has pro-
vided many generations of legal scholars and political theorists with a puzzle they
have yet to solve to everyone’s satisfaction. Indeed, because of the close association
of law with the hierarchic authority structure of government, Nicholas Onuf has
described international law as the vanishing point of jurisprudence.13
The absence of formal institutions and especially the lack of any effective
enforcement mechanisms give some credence to those who question the efficacy
of international law. Skeptics, looking at the few examples given at the begin-
ning of this chapter, still might say, “So what?” Pointing to a few instances where
advocates assert that international law presumably has had an effective role does
not really address the fundamental issues, nor does it help us understand why and
how international law does work without the institutional framework normally
associated with making, implementing, adjudicating, and enforcing legal rules. We
suggest that criticisms come from two common misperceptions: unrealistic com-
parisons of international law with domestic law and visions of international poli-
tics that underestimate the incentives for cooperation.
To paraphrase Giradoux, in answering the challenges of critics, we do need to
“train our imagination” because understanding how law works at the international
level requires that we move beyond some simple definitions of law and even simpler
conceptions of the role and impact of law in domestic societies. Critics tend to make
comparisons between an idealized system of domestic law as it presumably ought
to operate in advanced industrialized democracies and the obvious deficiencies of
international law. Such comparisons will always overestimate the efficacy of the
domestic legal system and underestimate the scope and impact of international law.
In large part, the comparison problem occurs because of a set of default
assumptions—that is, “propositions and facts” that everyone believes without
question (regardless of whether they are true)—about how “the law” operates in
well-ordered societies. Here you should note that, by default, we almost always
assume the legal systems of Western industrialized democracies (or, more precisely,
the United States) provide the ideal model of a well-constructed, functioning legal
system. These default assumptions are hard to rebut through abstract counterargu-
ment and even through explicit examples because they draw upon an emotional
“mythology” surrounding the law that seems ingrained into Western culture.14
Individuals “know what they know.” To counter these default assumptions, we
will offer a short tour through “the law in action” in domestic society.
Before proceeding to an examination of these default assumptions, we need to
define law. By defining international law before offering a definition of law, we quite
literally have put the cart before the horse—because the definitions of international
13N.G. Onuf, “The International Legal Order as an Idea,” 73 American Journal of International Law
(1979), 244.
14See J. Shklar, Legalism: Law, Morals, and Political Trials (1986).
law assumed that we all have a good definition of law in general, know how law
differs from other codes of behavior, and have some grasp of what law does at
the domestic level. Again, following Professor Jessup’s sage advice, we now offer
three definitions. The three definitions represent an attempt to provide the general
characteristics that distinguish legal rules from other types of rules such as those
found in religious or moral codes or international comity. We have created the first
two from a composite reading of works about the law. The third comes from the
Oxford English Dictionary:
A set of binding rules enjoining a certain behavior on all subjects under speci-
fied and comparable conditions.
A method of ensuring social order by commanding requisite behavior
through the threat of physical sanctions. A rule of conduct imposed by
authority.
The body of rules, whether proceeding from formal enactment or from cus-
tom, which a particular state or community recognizes as binding on its
members or subjects.15 (Emphasis added)
Although only the second definition specifically mentions sanctions, the other two
imply some type of penalty for noncompliance with any of the “binding obliga-
tions.” Note that we deliberately use the term noncompliance, rather than the
more graphic breaking the law, because the term more accurately reflects a civil/
administrative perspective while capturing what happens when you “break” the
criminal law.
Default Assumptions and International Law

The first default assumption that colors our assessment is that we all almost auto-
matically associate law with the “cop on the corner”/“thieves ought to be pun-
ished” model of the criminal law—a rule backed by a sanction that says if you do
the crime, you do the time.16 “Breaking the law” conjures up the principles and
procedures of the criminal law and the premise that thieves ought to be punished.
However, a singular focus on the criminal law and its operations misleads because
the criminal law forms only part, and perhaps the lesser part, of the legal code in
modern states. Law as a reality and dominant force in domestic societies is much
more than a coercive order aimed at punishing those who commit criminal acts.
The proof of this comes from a simple fact: The practice of the greatest number
of lawyers in the United States (and other advanced industrialized democracies)
falls within the area of civil and administrative law—contracts, labor relations,
domestic relations, wills, trusts, property, tenants’ rights, and a host of other rela-
tionships. Violations of civil and administrative obligations here do not necessarily
involve “punishment,” but rather a course of action that will make the situation
“whole” in terms of regulations or contractual understandings.
15Oxford English Dictionary.

16These two ideas come from J. H. E. Fried, “How Efficient Is International Law?” in The Relevance
of International Law, edited by K. Deutsch and S. Hoffmann (1968), 93–132.
Moreover, the “thieves ought to be punished” model simply does not capture
the function of law as an important constitutive factor, that is, as the force forming
the basis for the validity of constitutions––the force giving substance to arrange-
ments that authoritatively allocate power to legislate, enforce, or adjudicate. The
rules in the Constitution of the United States define what branches of various gov-
ernmental agencies have the legal obligation/authority to perform what duties with
respect to governing. In disputes over the relative powers of various branches of
government, that is, questions that involve the fundamental law of the country,
clearly the “cop on the corner”/“thieves ought to be punished” model has no rel-
evance.17 Can you imagine the president of the United States trying to use the FBI
to arrest members of Congress on the charge of violating the Constitution?
Responses to noncompliance in many areas of the noncriminal law in domestic
societies somewhat parallel what occurs in the international legal system. Certainly,
noncriminal law does have penalties attached for noncompliance, but these do not
rely on the criminal law presumption of how one ensures compliance. “Contracts
must be observed” forms a fundamental rule of civil law. But enforcement of the
norm, if one party to the contract feels a breach has occurred, depends upon the
party alleging violation taking the first step to deal with noncompliance. No “cop
on the corner” steps in to escort the “accused” to jail. Moreover, the action to seek
compliance regarding the alleged breach may not involve an immediate resort to
the machinery of the courts, but rather direct negotiation, mediation, or arbitra-
tion. Circumstances of the moment may dictate the remedy and the method of
redress the aggrieved party elects. Breaches of contract may involve penalties for
noncompliance, but the criminal law comes into play only if the breach resulted
from clearly criminal conduct such as a deliberate fraud or misrepresentation.
The second default assumption deals with presumptions of efficiency. Crit-
ics tend to assume that domestic law (and, in particular, the criminal law) works
efficiently under all circumstances. We have noted earlier that default assumptions
about law often draw from the operations of the criminal law and the associated
justice system. To examine the second assumption concerning efficiency, we confine
our comments to the criminal justice system because of the presumed efficiency of
central enforcement. Looking at U.S. Department of Justice Statistics or merely read-
ing the newspapers every day gives sufficient evidence to rebut the idea that central
institutions necessarily mean effective enforcement. Indeed, for many crimes, “how
effective” in terms of statistics may surprise you. Table 1.1, drawn from statistics
compiled annually by the U.S. Department of Justice, summarizes the data on crimes
and arrests from the year 2009. The reader needs to understand that the data include
only those crimes that were reported to a law enforcement agency. Other data from
the same report estimate how many crimes may go unreported each year. In examin-
ing the table, we need only point out the relatively high probability that burglars will
escape apprehension or that the data support the comment by an anonymous insur-
ance executive in Los Angeles that “to own a nice car is to have it stolen.”
17See, for example, Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979). The
U.S. Supreme Court sometimes avoids questions involving disputes over issues of separation of powers
not clearly defined in the Constitution, terming these “political questions,” www.bulk.resource.org/
courts.gov/c/US/444/444.US.996.79-856.html.
TABLE 1.1
Offenses Known to Police and Cleared by Arrest or Exceptional Means, 2009
Total Agencies (14,274) Known Offenses Percent Cleared by Arrest
Violent Crime 1.14+ million 47.1
Robbery 352,125 28.2
Murder/Manslaughter 13,242 66.2
Forcible Rape 76,276 41.2
Property Crime 8.3 million 18.6
Larceny/Theft 5.56 million 21.5
Burglary 1.96+ million 12.5
Vehicle Theft 714,131 12.4
Arson 53,852 18.5
Source: U.S. Department of Justice, Federal Bureau of Investigation, Crime in the United States (Sep-
tember 2010), www2.fbi.gov/ucr/cius2009/data/table_25.html.
Looking at the noncriminal law, pure food and drug standards hardly spare us
from contaminated foodstuffs; oligopoly is a dominant feature of many contempo-
rary industrial sectors; and the fallout from Enron, WorldCom, and Bernie Madoff
indicates that abuse of security and exchange regulations seems to occur on a regu-
lar basis. Just for good measure, let us also include the general lack of observance
of speed limits. Do not dismiss this as a trivial concern. Speed and alcohol or drugs
are contributing factors in a majority of fatal traffic crashes. True, some people
do get caught in all of the examples just given, but seemingly not enough to have
a deterrent effect on others. Reports of rape, robbery, and homicide do not neces-
sarily lead to a conclusion at the domestic level that the laws against these offenses
have little effect and are meaningless. Most people obey most of the law most of
the time. Some people do not comply with the law some of the time, and a few of
those may actually pay a penalty some of the time. What, then, should we make
of the often-repeated criticism that international law does not have the strength to
deter violations?
The third default assumption emphasizes the difference between “law” and
politics, implying a relative absence of political considerations at the domestic
level. We will simply concede that, because of the absence of centralized institu-
tions, many applications of law at the international level are likely to have a much
higher political content than are those within states. Nonetheless, this does not
mean the total absence of political considerations from domestic legal systems.
On the contrary, most law at the domestic level results from the highly politicized
process associated with legislatures. The ongoing very contentious debate over
prohibiting abortion provides a very good example. While at their core all domes-
tic legal codes seem to share some common rules such as prohibitions against mur-
der, theft, and violent assault against persons, others depend upon the attitudes of
those subject to the specific law code. To give but one quick example, the stand-
ards that separate fraud from just a “sharp business practice” differ not only from
society to society but also even within societies with respect to specific techniques
and procedures. What is the line between false advertising and good promotion of
a product?
Rules may become the target of challenge or change because of shifts in public
opinion or political ideology. We can point both to quantum shifts such as the
abolition of the “separate but equal” doctrine in U.S. law as unconstitutional and
to the ongoing controversies over abortion and gay rights to emphasize this obser-
vation. Similarly, issues relating to immigration (e.g., who deserves entry, and the
status and rights of illegal immigrants once here) form the core of a continuing and
contentious debate. Certain rules may simply be unenforceable or go unenforced.
Those who enforce the law have considerable discretion in many areas. For exam-
ple, many states still have laws on their books prohibiting adultery, but these go
unenforced. During periods of heavy traffic, police will watch traffic flow at 15–20
mph over the speed limit if traffic is moving smoothly. After evicting tenants for
nonpayment of rent, landlords seldom sue for what the tenants may owe in arrears
because the time and cost of litigation plus the potential costs of collecting any
judgment will normally far outweigh the gains in recovery. Keep these examples in
mind when we turn the discussion to enforcement at the international level.
Additionally, within the United States, district attorneys, state attorneys gen-
eral, solicitors, sheriffs, and judges are elected officials in many jurisdictions. At
the local level, the decision to charge an individual with a specific crime or the rec-
ommendation of a specific sentence may depend upon the district attorney’s read-
ing of public sentiment (or available prison space).18 Nor does the appointment of
officials cancel out politics. Appointment merely shifts the venue in which politics
applies. Politicians still participate in, and define the criteria for, the selection proc-
ess. In a change of administrations, a newly elected U.S. president can appoint
U.S. attorneys for various jurisdictions. Every judicial appointment at the federal
level revolves around political issues.19 Clearly, those involved in the appointment
process have political agendas they feel can be either protected or accomplished
with the appointment of like-minded individuals to the bench. The contemporary
concern with “failed” states such as Somalia provides additional confirmation of
this observation.
VISIONS OF INTERNATIONAL POLITICS

Focusing upon default assumptions and their implications for legal systems at all
levels still leaves open the question of how we can speak of law and its impact in a
political system that has no central institutions. Here we advance a simple proposi-
tion. The fundamental assumptions (default assumptions) that an analyst makes
about “how international politics really works” will determine the evaluation of
international law as an important or inconsequential factor. Several “schools of
18What will the district attorney do with the case of the teenager who, in her haste to escape from
being caught by the resident of the house that she and her friends had just “rolled” with toilet paper,
drove off the road and killed three of her companions in the car? Only she survived. Does the district
attorney go for the indictment for vehicular homicide, or has she “been punished enough”?
19SeeS. G. Stolberg, “The High Costs of Rising Incivility on Capitol Hill,” New York Times (Novem-
ber 30, 2003), sec. 4, 10.
thought”—realism, liberalism/neoliberalism, and constructivism—currently com-

pete as paradigms that claim to provide the best insight into the essence of con-
temporary international politics. In the following section, we will briefly discuss
how these three paradigms affect views about the role and potential effectiveness
of international law.
Political Realism
Based on Thomas Hobbes’s graphic description of the state of nature, political
realism forms one of the dominant theories in contemporary scholarship on inter-
national politics. For those who subscribe to realism as the preferred theoretical
approach to explaining international politics, international law cannot exist as
“law.” Realists believe the anarchical condition of the international system means
that states constantly seek out their own interest and constantly seek to enhance
their own power and power position to ensure their survival. For realists, the lack
of any measures or institutions for third-party enforcement means that agreements
or cooperative ventures have a temporary quality because states will abandon them
when their interest and power dictate that they can. Hobbes argues:20
And covenants, without the sword, are but words and of no strength to
secure a man at all. Therefore, notwithstanding the laws of nature (which
every one hath then kept, when he has the will to keep them, when he can do
it safely), if there be no power erected, or not great enough for our security,
every man will and may lawfully rely on his own strength and art for caution
against all other men. (Emphasis added)
For political realists, some rough “rules of the game” may evolve from tempo-
rary balances or from situations where one state has the ability to dominate and
impose its will. Because of the fundamental drive of states to acquire power and
power position to assure security, long-term, binding rules are impossible.21 Advo-
cates of political realism argue that the current situation that promotes increased
interaction and cooperation exists only because of an anomaly in power distribu-
tion.22 Hence, a recent study asked a cogent, but as yet unanswered, question: Is
globalization a phenomenon with its own independent roots, or does it depend
upon American hegemony and action to promote and open world markets?23
The refusal to acknowledge any impact of law beyond the very narrow asso-
ciation with formal institutional arrangements permeates the influential work of
Kenneth Waltz. Waltz argues that the system of international relations may exhibit
some qualities that make it structurally similar to a market, but only up to a point.
Waltz concludes, “International politics is more nearly a realm in which anything
20T. Hobbes, The Leviathan II, XVII, 2, www.oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-
c.html#CHAPTERXVII.
21For useful, concise discussions, see J. Donnelly, Realism and International Relations (2000), 6–31;
M. Doyle, Ways of War and Peace: Realism, Liberalism and Socialism (1997); and J. Vasquez, The
Power of Power Politics: From Classical Realism to Neotraditionalism (1998).
22See, for example, J. J. Mearsheimer, The Tragedy of Great Power Politics (2001).
23N. P. Ripsman and T. V. Paul, Globalization and the National Security State (2010).
goes.”24 Implicitly, Waltz suggests that the principal difference between the law,
as he understands it to operate at the domestic level, and comparable international
rules is the greater efficacy of the former due to the perceived lack of enforcement
mechanisms at the international level.
From a slightly different perspective, Henry Kissinger argues that rigid legal
and judicial principles may interfere with the flexibility statesmen need in order to
conduct a successful foreign policy:
The danger lies in pushing the effort to extremes that risk substituting the tyr-
anny of judges for that of governments; historically, the dictatorship of the
virtuous has often led to inquisitions and even witch-hunts. . . . The role of the
statesman is to choose the best option when seeking to advance peace and
justice, realizing that there is a tension between the two and that any recon-
ciliation between the two is likely to be partial.25
Note in particular the reasoning of Kissinger. He is correct in that statesmen,
not judges, make decisions about critical foreign policy issues. Note also, this does
not mean that law has no relevance to a decision.
Liberalism/Neoliberalism
While attractive on its face as a concise statement of the harsh realist picture of
international relations that many find intuitively appealing, liberal international-
ists assert that Waltz’s characterization does not capture the complexity of con-
temporary state relationships, nor, on reflection, does it embody the experience
of the greatest part of the industrial age. Realism assumes that state interests must
always be competitive and never congruent, yet liberal critics cite the increasing
institutionalization of modern international life to suggest that states can and do
cooperate on a sustained basis because they cannot otherwise achieve their goals.
One cannot always assume that scarcity, competition, and lack of third-party regu-
lators always result in an arena where power does reign in the sense that oth-
ers must bow to the will of the dominant. In the modern world, particularly in
states where democratic institutions have emerged, security also involves economic
progress and stability. The enormous expansion of international institutions at
every level serves as a simple validation of this observation. Given the time, effort,
and resources invested in building these institutions, we cannot simply dismiss
them as short-term products that flow from stalemates in competition.26
Liberal critics argue that many of the assumptions essential to the realist per-
spective overplay the efficiency of domestic orders, even in the criminal law models.
But the most obvious problem with realists comes from their willful disregard of the
rules, formal and otherwise, that do impinge on state action. These range from fun-
damental rules inhibiting the absorption of lesser states by larger ones, to extensive
institutional support for international monetary and financial coordination, to laws
24K. Waltz, Theory of International Politics (1979), 91.

25H. A. Kissinger, “The Pitfalls of Universal Jurisdiction,” 80 Foreign Affairs (2001), 86, 95.
26SeeJ. J. Mearsheimer, “The False Promise of International Institutions,” 19 International Security
(1994–1995), 5.
protecting diplomats and state visitors, to nutritional standards sponsored by the

Food and Agricultural Organization (FAO). Realists may dismiss these as “house-
keeping rules,” or sometimes as low politics in contradistinction to the high politics
of statecraft where vital interests come into play. Nonetheless, we will point out that
“housekeeping rules” form the essential fabric of everyday interaction among states.
We will discuss “vital interests” and the law in some detail later in this chapter.
Liberal institutionalists argue that merely by looking at some facts of modern
international life that we all tend to take for granted, we can easily see international
law at work. Modern national constitutions contain references to international
law. Foreign ministries in other governments and the U.S. Department of State
employ many legal advisers out of concern for observance of obligations. Why
bother if law has such little importance? Beyond this, the basic structure of modern
international relations rests upon legal definitions and practice. Law defines who
the legitimate players are (states, IGOs, etc.), their essential characteristics (i.e., the
qualities any player must possess to be considered eligible to enter the game), how
they qualify to come into the game (recognition, constitutive treaty), and the rules
of formal interaction (diplomatic relations).
Additionally, beyond the examples cited at the beginning of this chapter,
simple acts such as making a direct-dialed long-distance phone call, mailing a
letter to a person in another country, or traveling to another country for busi-
ness or pleasure are possible because international law provides the framework
through which states cooperate in regulating these activities. International law
regulates every flight by an international air carrier into a country. Every inter-
national IGO—the UN, the OAS, and the World Trade Organization (WTO),
to cite a few examples—has a constitutive document based on a multilateral
agreement among states that establishes the purposes and powers of the organi-
zation as well as the obligations of member states. The multilateral agreements
that brought the International Telecommunications Union (ITU) and the Inter-
national Postal Union (IPU) into existence define the powers granted to the ITU
and IPU to set down the rules and regulations for handling your telephone calls
or letters directed to other countries.
Constructivism
Constructivism is a relative newcomer as a widely accepted approach to under-
standing important features of international politics. Like political realism and
liberalism, constructivism embodies a number of variant approaches that share
some fundamental assumptions. At base, constructivism concerns the “making and
remaking” of international politics.27 Where realism and liberalism are substantive
theories of international politics in that they offer specific hypotheses about how
states respond to the anarchical structure of international politics, constructivism
is a social theory that focuses on how each state (as an agent) engages and deals
27M. Barnett, “Social Constructivism,” in The Globalisation of World Politics, edited by J. Bayliss,
et al. (2008), 162; J. Brunnee and S. Toope, “International Law and Constructivism: Elements of
an Interactional Theory of International Law,” 39 Columbia Journal of Transnational Law (2000),
19–74.
with the consequence of anarchy as the essential structural element of international

politics. Constructivism offers no predictions about regularities or trends in world
politics; rather, it seeks to explain why the world is organized the way it is.28
Constructivism as a social theory centers more on how we ought to think about
international politics, rather than positing answers drawn from initial premises. It
deals with the development and evolution of shared ideational concepts (notions,
values) that define what we accept as knowledge (facts), important symbols (why
do we honor the American flag), methods of expression (language), and rules. Con-
structivism addresses the social processes that generate shared norms and rules. It
seeks to explain how state behaviors converge to produce international norms and
institutions.29 In Wendt’s cogent phrase, “anarchy is what states make of it,” not
what it makes states do.30 Realism and liberalism make important assumptions
about this process rather than seeking to dissect and describe it. Constructivism
insists that we need to examine the process carefully.
For constructivists, law is seen as legitimate not because it flows from some
perceived authority but because the actors have internalized the values as legiti-
mate. Legitimate norms are mutually constructed as common understanding
evolves. One recent commentary argues that “law is persuasive when it is viewed
as legitimate, largely in terms of internal process values, and when, as a result of
the existence of basic social understandings, it can call upon reasoned argument . . .
to justify its processes and its broad substantive ends, thereby creating shared rhe-
torical knowledge.”31 Interactions over time help develop the sense of legitimacy.
In this process, nonstate actors, NGOs, corporations, informal intergovernmental
expert networks, and many other groups that share transnational transaction links
are important elements—other than states—that are actively engaged in creating
shared understandings (knowledge) and promoting learning among states. Slaugh-
ter argues that important interactions occur both horizontally and vertically. Hori-
zontal networks embrace government officials of similar functions across states.
Horizontal networks “bring together regulators, judges or legislators to exchange
information and to collect and distill best practices.”32 The recent meetings of EU
central bankers and others with respect to the fall 2008 financial crisis provide a
good example. Vertical networks involve close ties between national officials and
their supranational counterparts in various IGOs. Vertical networks can operate
as enforcement mechanisms or as harmonization networks.33 In both cases, the
interactions would help build and reinforce the intersubjective consensus (agree-
ment among participants) necessary for generating and maintaining international
legal norms.
28M. Barnett, note 27, at 171.

29N. G. Onuf, World of Our Making (1988); M. Finnemore and K. Sikkink, “International Norm
Dynamics and Political Change,” 52 International Organization (1998), 887, 888.
30A. Wendt, “Anarchy Is What States Make of It: the Social Construction of Power Politics,” 46
International Organization (1992), 391–425.

31Brunnee and Toope, note 27, at 72.
32A. Slaughter, A New World Order (2004), 19.

33Slaughter, note 32, at 21.
As a very young approach, constructivism has proven better at explaining

“what is,” and how it evolved, than at exploring the mechanisms of change. It
does, however, provide an interesting approach to investigating the validity of
norms apart from traditional theories that rely upon assumptions of hierarchy and
external enforcement.
Vital Interests and Law: High Politics

In fairness to critics, when the vital interests of states appear to be at stake, law
may play a secondary role. Few would argue with former Secretary of State Dean
Acheson when, analyzing the role of law in the Cuban Missile Crisis, he said,
“The survival of states is not a matter of law.”34 Acheson is technically correct.
In a severe crisis, with vital interests at stake, decision makers probably will not
look to international law to provide a solution. The question is, however, how
often do states and governments face situations that threaten their survival? More-
over, in analyzing accounts of the Cuban Missile Crisis, arguably a confrontation
where potentially survival was at stake, one finds that a concern for the law runs
throughout the deliberations.35 During the crisis and in its aftermath, the Kennedy
administration spent a great deal of time in justifying the U.S. response as an initia-
tive that reflected a legal right.36 We should not take the fact that law may play a
subsidiary role in acute crises as a criticism that diminishes its role otherwise. True,
law may not provide an absolute guide to resolving these crises, but those who
make these assertions seem to imply that every international transaction, whether
crisis driven or not, involves a complex deliberation over whether to obey or diso-
bey particular rules. This quite simply does not reflect the reality of real-world
decision making. In this respect, realists make quite unrealistic assertions.
WHY DO STATES OBEY INTERNATIONAL LAW?

Though the international system lacks impartial third-party mechanisms to enforce
international law, international lawyers routinely assert that states comply with
most international law most of the time. We would expect international lawyers to
defend their discipline, but consider as well the statement of Hans Morgenthau, a
central figure in the revival of political realism after World War II:
It is also worth mentioning, in view of a widespread misconception in this
respect, that during the four hundred years of its existence international
law has in most instances been scrupulously observed. . . . [T]o deny that
34D. Acheson, “Remarks by the Honorable Dean Acheson, Former Secretary of State,” 57 Proceed-
ings of the AJIL 13 (1963), 14.

35In particular, see the memoir of R. Hilsman, The Cuban Missile Crisis: The Struggle over Policy
(1996), and his earlier discussion in To Move a Nation: The Politics of Foreign Policy in the Adminis-
tration of John F. Kennedy (1967).
36J. S. Campbell, “The Cuban Crisis and the U.N. Charter: An Analysis of the United States Position,”
16 Stanford Law Review 160 (1963); D. G. Partan, “The Cuban Quarantine: Some Implications for
Self Defense,” Duke Law Journal 696 (1963).
international law exists at all as a system of binding legal rules flies in the
face of all the evidence.37
Still, any discussion of ensuring compliance must deal directly with the issue of
power. We should note that while Professor Morgenthau believed that states gen-
erally obey international law, he also observed that the structure of the interna-
tional legal system “makes it easy for the strong both to violate the law and to
enforce it, and consequently puts the rights of the weak in jeopardy.”38 Indeed,
although many realists may have an incomplete picture of contemporary interna-
tional politics, the fear expressed by Professor Morgenthau that the structure of
the legal system provides little in the way of deterrence or restraint if a powerful
state chooses to ignore the rules always lurks in the background of discussions
concerning compliance and enforcement.
From our earlier analysis and extended comments to follow, the reader should
understand that acknowledging the lack of a potent central enforcement agent to
curb the activities of the powerful does not mean, therefore, that powerful states
constantly ignore international obligations with no expectations of adverse results.
Granted, the lack of central institutions suggests the possibility that powerful states
could, but the question still becomes, How often do they take advantage of the
possibility? Critics can cite spectacular failures as evidence of noncompliance. Sin-
gular failures prove nothing. Perfect compliance suggests the triviality of a stand-
ard. Compliance and obedience rest upon a much more complex set of factors than
a simple fear of punishment. As we argued earlier, clearly, the fear of punishment
does not necessarily deter powerful individuals and organizations from noncom-
pliance or outright defiance of the law within domestic societies. Public employee
labor unions still go on strike. Corporate officials still engage in fraud and insider
trading. Drug dealers at all levels still sell drugs and kill each other.
The question remains, if the system has no effective third-party authority to
force states to utilize judicial means or to enforce decisions, and if no hierarchy of
courts with compulsory jurisdiction exists under which a dispute between states
can move by appeal from lower to higher levels and/or awards made by exist-
ing courts and tribunals, why do states obey international law? How do states
enforce international law? The following sections deal with issues of compliance
and enforcement at the international level.
Motivation for Obedience

Much of the discussion regarding this question has centered on the unproved
assumption that the only real motivation for obedience to the law flows from the
fear of physical sanction by a superior (Thomas Hobbes, John Austin).39 Crit-
ics have a simple argument: Because no such superior exists in the international
sphere, except for the use of UN forces or direct unilateral intervention by one of
37Hans J. Morgenthau, Politics Among Nations, 3rd ed. (1961), 277.

38Morgenthau, note 37, at 294, 295.
39See,for example, J. Austin, The Province of Jurisprudence Determined (1832), in which he defines
law as “the command of the sovereign.”
the great powers, nations have no reason to obey the law. Assuredly, fear of “pun-
ishment” may on occasion play a part in bringing about a willingness, expressed
by word or deed, to abide by the rule of law, but other and more important causa-
tive factors appear to play a part. To understand this, we again need to engage
our imagination.
Desire for Order and Predictability

We should be very careful about making comparisons between those factors moti-
vating individuals and those motivating aggregate or collective entities like states.
However, a fundamental factor in the development of law flows from the simple
fact that, given a choice, most individuals will prefer order and predictability. Bri-
erly summarizes the matter very well:
The ultimate explanation of the binding force of all law is that man, whether
he is a single individual or whether he is associated with other men in a state,
is constrained, in so far as he is a reasonable being, to believe that order and
not chaos is the governing principle of the world in which he has to live.40
Maintaining normal relations with other countries depends upon the predictable
behavior of others. The observance of the known rules of international law thus
becomes a requirement for states.
The desire to observe the law can be discerned in the standing instructions
issued to government personnel who, because of their role or mission, may have
occasion to deal with situations that could produce serious international incidents.
Standing instructions try to anticipate potential problems and give specific proce-
dures for dealing with them according to international law.41 Coast Guard officers,
embassy staff, and many times local police (particularly in Washington, DC, and
New York City, which host very large diplomatic communities) need guidance. To
give a real example, how should local police have handled the case of the consul
general from a very important trading partner who, while on the way home from
a private party where he had overindulged, wrapped his car around a power pole
on the main thoroughfare in front of a dozen witnesses? (We discuss this example
further in Chapter 14.) For individuals dealing with situations that could have inter-
national implications, the time, care, and effort invested to ensure they understand
the elements of the relevant law in these cases are proof that governments take the
obligations seriously and do try to interpolate them into everyday interactions.
Consent and Obedience

Many writers believe that because states make the law through their formal con-
sent, they necessarily feel obligated to honor the rules in order to achieve specific
common aims. States make the law, which also means that such law is more likely
40Brierly,note 6, at 56.
41See,for example, the U.S. Department of State, Guidelines on Protection of Foreign Missions, 22
C.F.R. § 2a.1 (1987).
to reflect common interests. In the well-known Lotus case, the Permanent Court of
International Justice stated:
International law governs relations between independent states. The rules of
law binding upon states emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law
and established in order to regulate the relations between co-existing inde-
pendent communities or with a view to achievement of common aims.42
But the traditional reliance on consent alone does not adequately explain the way
states act in relation to the law. Moreover, asserting that consent alone binds states
begs the question because then we must ask these questions: Where does the rule
setting consent as the binding factor derive from, and what makes it binding?43
EXTRALEGAL FACTORS THAT PROMOTE COMPLIANCE

Enlightened Self-Interest: The Interdependence of Policies
A number of interrelated extralegal factors help explain why states obey the law.
Some of these also play a role in well-ordered domestic legal systems, but as sub-
sidiary considerations. Much of the law embodies identical or complementary
interests—meaning that self-interest plays a great role as a motivating force rather
than as a divisive element. Fundamentally, all of these extralegal factors flow from
the interdependent nature of policymaking in the contemporary world. Interde-
pendence in the political sense arises because while problems may appear as dis-
crete events, they must be solved within the framework of priorities that define the
importance of the problem in relation to other interests. The maintenance of rela-
tively stable patterns of rules characterized as a legal order depends upon relevant
decision makers utilizing operational maxims that reflect important shared values
among the members of the order. Andrew Hurrell provides a useful perspective:
Being a political system, states will seek to interpret obligations to their own
advantage. But being a legal system that is built on the consent of other par-
ties, they will be constrained by the necessity of justifying their actions in
legal terms.44
We should remember that the key players in most disputes between states are not
judges (although lawyers may be involved), but political officials who have quite
different modes of search and discovery regarding applicable rules. Because many
courses of action will affect others as well as the decision makers’ own state, politi-
cal advisers must take into account the attitudes of allies, adversaries, and onlook-
ers about what constitutes permissible conduct within the parameters of a specific
incident. Will a particular course of action incur approval, acquiescence, or resistance
42The S. S. Lotus, PCIJ, Ser. A, No. 10 (1927).

43G. G. Fitzmaurice, “The Foundations of Authority of International Law and the Problem of
Enforcement,” 19 Modern Law Review (1956), 8.
44A. Hurrell, “International Society and the Study of Regimes: A Reflective Approach,” in Regime
Theory and International Relations, edited by V. Rittberger and P. Mayer (1993), 61.
from other states? And which states will utilize the foregoing judgments in what
manner? How will a particular decision affect future relations with other states?
Law may not determine the answers to all of these questions, but it will be a factor
in evaluating responses.
Credibility and Reputation

International relations textbooks tend to ignore credibility and reputation except
as factors when the use of force comes into play. Nonetheless, these are important
considerations in the everyday interaction between governments. Consider cred-
ibility and reputation as the “credit rating” that states earn through their dealings
with other states. Having the reputation of keeping one’s word and dealing within
the law can facilitate good relations and aid in achieving goals that require the
cooperation of others. A reputation for principled behavior and for being depend-
able and reliable is an asset not to be undervalued. Conversely, having the reputa-
tion of not honoring one’s bargains or playing by the rules can seriously inhibit the
pursuit of goals, no matter how powerful you may be.
Law Habit
We should not dismiss or discount habit as a motivating factor in the observance
of law. Routine observance of the rules promotes a “habit of law”—a simple
acceptance of the law as a factor in everyday decision making. At the individual
level, as we grow up, we acquire certain attitudes and beliefs as part of the sociali-
zation process. As individuals, most of us routinely obey most of the law most of
the time without consciously thinking about it. The same holds true for decision
makers. As we noted earlier, even in the discussion about how to deal with the
Cuban Missile Crisis, when the survival of the United States might have been at
stake, the participants could not stray very far from questions of law. Outside of
crisis situations, the complementarities of law and interest make this habit relatively
easy to sustain. Professor Harold Koh furnishes an interesting explanation of how
the law habit may evolve based on the necessity of dealing with the international
political environment:45
In tracing the move from the external to the internal, from one-time grudging
compliance with an external norm to habitual internalized obedience, the key
factor is repeated participation in the international legal process. That partici-
pation helps to reconstitute national interests, to establish the identity of
actors and to develop the norms that become part of the fabric of emerging
international society.
Reciprocity
In his classic and influential treatise, Emmerich de Vattel stated a proposition that
he described as the “Golden Rule of Sovereigns”: One cannot complain when
45H. H. Koh, “Why Do Nations Obey International Law?” 106 Yale Law Journal 2599 (1997), 2655.
he is treated as he treats others.46 Any government contemplating a violation

of a rule of law must consider the reactions of other states. Considering again
the extent to which the law reflects common and complementary interests, the
converse of Vattel’s proposition holds as well: A government’s observance of an
obligation stands as the condition that guarantees the observance of other gov-
ernments, and vice versa. When Vattel wrote (in 1758), states, particularly great
powers, had few relationships—beyond those connected with diplomacy—where
reciprocity played a vital role. His Golden Rule stands as a piece of prudent politi-
cal advice to his contemporaries, but serves as a warning of consequences, not a
fundamental legal principle. Vattel counseled self-interested restraint, if not an
enlightened self-interest.
In the contemporary world, increasing interdependence has broadened the
areas where reciprocity has a real impact as a pragmatic calculation. In one form,
reciprocity yields a practical nonlegal explanation based on self-interest as to why
states observe treaties. A treaty is no more than a set of conditional promises:
To get the benefits promised by the other party, governments must give the ben-
efits they have promised. In this case, the presumption is that, having consented
to the treaty in the first place, the state has a compelling self-interest in seeing the
provisions executed.
Reciprocity has other uses as well. National legislators may attempt to create
or affect international relationships by passing reciprocity legislation. Hence, the
Congress of the United States might enact a statute that would permit individuals
from a foreign country to exercise certain rights within the United States only if
the foreign state extends the same rights and privileges to American citizens within
its borders. For example, the right of citizens from State X to own certain mineral
resources within the United States would depend upon State X, in reciprocal leg-
islation, according that same opportunity to U.S. citizens to own resources in, or
controlled by, State X.
The clearest and most common illustration of how reciprocity works comes
from the law regulating diplomatic relations. Every receiving state most likely has
diplomats of its own in other countries. Observing and enforcing the rules of pro-
tocol and immunity for resident diplomats are primary conditions of having other
states treat your diplomats in the same manner. This presupposes, of course, that
a state cares about the well-being of its diplomats abroad and about its reputation
in general. Belarus, Libya, Iran, and China (during the Cultural Revolution) have
all engaged in activities that fundamentally violated the rules protecting diplomats
from abuse. While concern for maintaining the general principle of immunity—
and for nationals traveling or resident in these countries—precluded retaliation
against the diplomats or embassies of the offenders (note the interdependence of
interests here and the importance other states placed upon maintaining the princi-
ple), these states did not escape unpunished. We return to this issue in Chapter 14.
46E. de Vattel, The Law of Nations (Le droit des gens), trans. C. G. Fenwick (1995, reissue of 1916
edition), 4. See also R. O. Keohane, “Reciprocity in International Relations,” 40 International Organ-
ization 1 (Winter 1986), 1–27, for a more general discussion of the role of reciprocity in contempo-
rary international politics.
World Opinion
Some writers and statesmen have claimed that world opinion forms an important
element in encouraging states to obey the rules of international law. This is dif-
ficult to prove. Most modern writers have discounted world public opinion as a
factor because of the difficulty in defining the idea and in establishing meaning-
ful measures of its expression. For example, what “publics” should we include in
the assessment? Opinion within individual states may support or inhibit certain
actions by governments, but to be an effective factor in supporting international
law, these opinions would have to demonstrate consistency, clarity of substantive
content, and salience across a wide spectrum of states.
Methods of Ensuring Compliance: How Do States

Enforce International Law?
Any discussion about enforcing compliance with international law must include two
rather distinct concepts: violation of the rules of law themselves and failure to carry
out arbitral awards or judicial decisions. We address the issue of arbitral and judicial
awards later (see Chapter 15). Here we focus primarily on enforcing compliance with
the law itself. To understand the role of enforcement, we must consider what out-
comes enforcement should produce. As discussed earlier, this is not a simple matter.
While mentioning enforcement inevitably conjures up the “punishment” aspect of the
criminal law, what a state may wish in a particular circumstance is merely assurances
of future compliance and action to repair any damage caused by nonperformance
rather than any type of punitive action “to teach a lesson.” Of course, situations do
occur where punishment does constitute the sole or primary purpose, but the question
we all need to keep in mind is, How often, and in what circumstances, do states seek
punishment as the primary goal in trying to repair a breach of obligation?
For the most part, enforcement at the international level depends upon the
party alleging violation taking the first step to deal with noncompliance. Every
state must guard its own interests. The primary mode of securing compliance in
the face of a breach is self-help. At base, every state sits as ultimate judge in its
own case, that is, as the entity that can make decisions about a settlement, unless
the parties can agree to submit the dispute to some form of third-party settlement:
arbitration, a relevant court, a regional organization, or the UN Security Council.
Because inequalities of power and interdependence of policy interests may come
into play, this process can be very difficult. Circumstances of the moment may
dictate both the method sought to redress an act of noncompliance and the nature
of the remedy the aggrieved party elects.
Politics may come into play because settlements may reflect a desire for con-
tinued good relations rather than a strict demand for reparations to “repair the
breach.” Moreover, many of the procedures for resolving disputes over legal ques-
tions serve as methods for resolving disputes that may have nothing to do with legal
questions. Not every dispute between states involves a breach of the law, nor does
the law necessarily provide a method or remedy for resolving all disputes. To reit-
erate an earlier point, the same holds true (but to a lesser extent) in domestic legal
systems. Disputes between individuals, and between states, may raise certain issues
that lie outside of the area where the law provides a solution. In the absence of
restrictive homeowner covenants defining acceptable color schemes, painting your
house purple with orange polka dots and chartreuse trim may cause infinite hassles
with neighbors who do not share your taste, but neighbors may find the law of little
use in trying to force you to repaint using a less flamboyant set of colors.
In considering the consequences of noncompliance, one should keep in mind that
violation of the rules of law by a given state—even if no sanction is attempted—does
not render the rule invalid. We make this point explicitly because critics often seem to
imply that the fact that states violate any rule in any circumstance proves the invalid-
ity of that rule as law. The same conclusion about the validity of a rule of interna-
tional law holds true, of course, in the sphere of domestic (municipal) legal systems.
Violations of, say, a federal law, a Minnesota or Georgia statute, or a city ordinance
do not vitiate, set aside, or nullify the rule in question. Indeed, as just mentioned, per-
fect compliance would suggest the irrelevance or triviality of a particular rule.
The Supreme Court of Hong Kong stated this principle clearly in the arbitra-
tion concerning the S.S. Prometheus when it held that
[t]he resistance of a nation to a law to which it has agreed does not derogate
from the authority of the law because that resistance cannot, perhaps, be over-
come. Such resistance merely makes the resisting nation a breaker of the law to
which it has given its adherence, but it leaves the law, to the establishment of
which the resisting nation was a party, still subsisting. Could it be successfully
contended that because any given person or body of persons possessed for the
time being to resist an established municipal law such law had no existence? The
answer to such a contention would be that the law still existed, though it might
not for the time being be possible to enforce obedience to it.47 (Emphasis added)
SUGGESTED READINGS
Kunz, “Sanctions in International Law,” 54 DISPUTE SETTLEMENT
AJIL 324 (1960). Dahlitz, Peaceful Resolution of Major Inter-
Kunz, “The Swing of the Pendulum: From national Disputes (1999).
overestimation to Underestimation of Evans, ed., Remedies in International Law:
International Law,” 44 AJIL 135 (1950). The Institutional Dilemma (1998).
Lauterpacht’s Oppenheim, I, 15. Hamilton, ed., The Permanent Court of
Nardin, Law, Morality and the Relations of Arbitration: International Arbitration
States (1983). and Dispute Resolution––Summaries
Onuf, World of Our Own Making (1989). of Awards, Settlement Agreements, and
Renwick, Economic Sanctions (1981). Reports (1999).
Reus-Smit, ed., The Politics of International Jackson, Sovereignty, the WTO and Chang-
Law (2004). ing Fundamentals of International Law
Sanctions and Law (2006).
Shklar, Legalism (1986), Part I: Law and Merrils, International Dispute Settlement,
Morals. 5th ed. (2011).
S. Silverburg, ed., International Law: Con-
temporary Issues and Future Develop-
ments (2011)
Whiteman, I, 58.
47Hong Kong L.R. (1904), 207, 225.

INTERNET RESOURCES
The American Society of International Law If your library has access to JSTOR:
www.asil.org/resource/home.htm American Journal of International Law
The International Law Institute www.jstor.org/journals/00029300.html
www.ili.org
Lyonette Louis-Jacques, “Legal Research on
International Law Issues Using the Internet”
www.lib.uchicago.edu/~llou/forintlaw.
html
NATURE OF THE LAW IN GENERAL

Brierly, 1, 41. Dyzenhaus, “Positivism and the Pesky Sov-
Butler, ed., Control over Compliance with ereign,” 22 EJIL 363 (2011).
International Law (1991). Goldsmith and Posner, The Limits of Inter-
Campbell, “International Law and Primitive national Law (2005).
Law,” 8 Oxford Journal of Legal Studies Gowlland-Debbas, ed., United Nations
169 (1988). Sanctions and International Law (2001).
Caney, Justice Beyond Borders: A Global Hall, “The Persistent Spectre: Natural Law,
Political Theory (2005). International Order and the Limits of
Chayes and Chayes, “On Compliance,” Legal Positivism,” 12 EJIL 269 (2001).
47 international Organization 175 Henkin, How Nations Behave: Law and
(1993). Foreign Policy, 2nd ed. (1979).
Chayes and Chayes, The New Sovereignty: Higgins, Problems and Process: Interna-
Compliance with International Regula- tional Law and How We Use It (1994).
tory Agreements (1998). Keohane, Moravcsik, and Slaughter, “Legal-
Conlon, United Nations Sanctions Manage- ized Dispute Resolution: Interstate and
ment: A Case Study of the Iraq Sanctions Transnational,” 54 International Organ-
Committee, 1990–1994 (2000). ization 457 (2000).
Damrosch, ed., Enforcing Restraint: Col- Waldron, “Are Sovereigns Entitled to the
lective Intervention in Internal Conflicts Benefit of the International Rule of
(1993). Law?” 22 EJIL 315 (2011).

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Law Among Nations

An Introduction to Public International Law

GERHARD VON GLAHN

JAMES LARRY TAULBEE

Published 2016 by Routledge

Routledge is an imprint of the Taylor &Francis Group, an informa business

ISBN: 9780205855773 (pbk)

Library of Congress Cataloging-in-Publication Data

PART I The Law of Nations 1

CHAPTER 2 Development of Law Among Nations 24

CHAPTER 3 Sources of the Law 50

CHAPTER 4 International Agreements 72

CHAPTER 5 International Legal Process 101

CHAPTER 6 The Relationship Between International and Municipal Law 117

PART II Subjects of International Law 137

CHAPTER 8 Rights and Duties of International Legal Persons 178

PART III The Allocation of Competence in International Law 207

CHAPTER 10 Principles of Jurisdiction 233

CHAPTER 11 State Responsibility: Responsibility for Injuries to Aliens 271

CHAPTER 12 The Law of the Sea 299

CHAPTER 13 Jurisdiction Over Air Space and Outer Space 338

CHAPTER 14 Agents of International Intercourse Immunities 363

PART IV International Law and the Individual 403

CHAPTER 16 International Criminal Law 436

PART V Process and Issues 479

CHAPTER 18 International Law and Protection of the Environment 508

CHAPTER 19 International Economic Law 540

PART VI Law and the Use of Force 575

CHAPTER 21 International Humanitarian Law: War Crimes 613

CHAPTER 22 War Crime Tribunals 645

Subject and Name Index 675

Preface xiii Beyond Article 38 of the Statute 67

The Nature of the Law 3 Formation of Treaties 79

Visions of International Politics 10 Special Problems 91

Why Do States Obey International Law? 15 Validity of Treaties 92

Extralegal Factors That Promote Suggested Readings 99

PART II Subjects of International CHAPTER 10

Outer Space 359 CHAPTER 16

PART V Process and Issues 479

CHAPTER 19 Early Development of the Law of War 614

NEW TO THIS EDITION

PERIODICALS AND OTHER SOURCES

PERIODICALS AND OTHER SOURCES

The Law of Nations

Tribune (February 22, 2011), 3.

4Cyprus News Agency, BBC Monitoring Europe––Political (February 18, 2011).

Piracy, jurisdiction over an international dispute involving free speech, coop-

THE NATURE OF THE LAW

States (1988), para. 101, 222.

Law and Politics at the International Level

8S. Budiansky, US News and World Report (September 20, 1993), 8.

of the Kosovo Conflict, Financial Times (September 29, 2000).

Default Assumptions and International Law

15Oxford English Dictionary.

VISIONS OF INTERNATIONAL POLITICS

thought”—realism, liberalism/neoliberalism, and constructivism—currently com-

20T. Hobbes, The Leviathan II, XVII, 2, www.oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-

24K. Waltz, Theory of International Politics (1979), 91.

protecting diplomats and state visitors, to nutritional standards sponsored by the