International Law, World Order, and Critical Legal Studie

DATE DOWNLOADED: Sat Nov 19 12:09:45 2022
SOURCE: Content Downloaded from HeinOnline
Citations:
Bluebook 21st ed.

Philip R. Trimble, International Law, World Order, and Critical Legal Studies, 42
Stan. L. REV. 811 (1990).
ALWD 7th ed.

Philip R. Trimble, International Law, World Order, and Critical Legal Studies, 42
Stan. L. Rev. 811 (1990).
APA 7th ed.

Trimble, P. R. (1990). International law, world order, and critical legal studies.
Stanford Law Review, 42(3), 811-[ii].
Chicago 17th ed.

Philip R. Trimble, "International Law, World Order, and Critical Legal Studies,"
Stanford Law Review 42, no. 3 (February 1990): 811-[ii]
McGill Guide 9th ed.

Philip R. Trimble, "International Law, World Order, and Critical Legal Studies"
(1990) 42:3 Stan L Rev 811.
AGLC 4th ed.

Philip R. Trimble, 'International Law, World Order, and Critical Legal Studies'
(1990) 42(3) Stanford Law Review 811
MLA 9th ed.

Trimble, Philip R. "International Law, World Order, and Critical Legal Studies."
Stanford Law Review, vol. 42, no. 3, February 1990, pp. 811-[ii]. HeinOnline.
OSCOLA 4th ed.

Philip R. Trimble, 'International Law, World Order, and Critical Legal Studies'
(1990) 42 Stan L Rev 811
-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
REVIEW ESSAY
International Law, World Order, and

Critical Legal Studies
Phillip R. Trimble*
AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW: A POLICY-

ORIENTED PERSPECTIVE. By Lung-Chu Chen. New Haven: Yale Univer-
sity Press. 1989. xii + 500 pp. $45.00.
REVITALIZING INTERNATIONAL LAW. By Richard A. Falk. Ames: Iowa
State University Press. 1989. xix + 241 pp. $27.95.
INTERNATIONAL LEGAL STRUCTURES. By David Kennedy. Baden-Baden:
Nomos. 1987. 294 pp.
To academics and practitioners alike, international law is a periph-
eral enterprise. According to a recent survey, the subject is almost
never part of the required law school curriculum, 1 and mainstream law
reviews "publish almost nothing about international law." 2 This survey
showed that less than 1 percent of the articles published between 1983
and 1985 in thirty major law reviews dealt with public international
law.3 Even in the specialized international law journals, law faculty ac-
counted for less than 40 percent of the total articles published.4 The
authors of the survey regretfully concluded that "many academics still
regard international law as ... a 'fringe' specialty, well meaning, even
noble, but naive and largely irrelevant to the real world." 5
Practitioners seem equally unimpressed. Despite the transforma-
tion of American law practice created by international interdepen-
dence, most practitioners seem not to think that prospective attorneys
need to be trained in international law. This perception is all the more
* Professor of Law, University of California, Los Angeles. B.A., Ohio University, 1958;
M.A., The Fletcher School of Law and Diplomacy, 1959; LL.B., Harvard University, 1963.
The author wishes to thank Bill Alford, Taimie Bryant, Joel Handler, and Fran Olsen for
helpful comments on (but not necessarily agreement with) an earlier draft of this essay.
1. John King Gamble, Jr. & Natalie S. Shields, InternationalLegal Scholarship:A Perspective
on Teaching and Publishing,39J. LEGAL EDUC. 39, 40 (1989).
2. Id at 41.
3. Id at 40.
4. Id at 42.
5. Id at 39.
STANFORD LA W REVIEW [Vol. 42:811
anomalous since, in the past decade, international treaties have been
concluded that deal with such staples of private law practice as the form
of wills, the recognition of trusts, the law applicable to decedents' es-
tates, the adoption of children, the abduction of children, the commer-
cial sale of goods, electronic funds transfers, bills of exchange, and
6
promissory notes.
Although international law once was limited to rules governing the
public relations of governments, and was of concern primarily to gov-
ernments and their lawyers, in the past twenty years the rules and
processes of traditional public international law have increasingly af-
fected private activity and have become available for recourse to, and
manipulation by, nongovernmental actors. For example, in the United
States, industries and labor unions adversely affected by violations of
international trade norms are now able to force the executive branch of
government to take responsive action, including the activation of inter-
national dispute settlement procedures. 7 Private parties have enforced
in domestic courts treaties dealing with investment, civil aviation, and
the taking of evidence. 8 Furthermore, the securities market and the
banking industry have become increasingly global in scope, raising new
problems for regulatory and administrative authorities in hitherto "do-
mestic" forms of regulation. 9
Foreign governments and the enterprises they own have also dra-
matically increased their "commercial" activities, rendering them ac-
countable in lawsuits in American courts. 10 As a result, such traditional
public international law doctrines as sovereign immunity and "act of
state" have acquired general practical importance. 1 The drug epi-
demic, terrorism, and the technological ease of money laundering have
6. For an account of recent private international law developments, see Patricia B. Rog-
ers, Private InternationalLaw, 23 INT'L LAW. 207, 207-08 & n.l (1989).
7. See 19 U.S.C.A. §§ 2251-2254, §§ 2411-2420 (West 1980 & Supp. 1989). "Super-
301," 19 U.S.C.A. § 2420 (West Supp. 1989), is the most recent example of domestically
manipulable trade law.
8. See, e.g., Chan v. Korean Airlines, 109 S. Ct. 1676 (1989); Soci~tE Nationale Indus-
trielle Arospatiale v. District Court, 482 U.S. 522 (1987); Asakura v. City of Seattle, 265 U.S.
332 (1924). CompareJordanJ.Paust, Self-Executing Treaties, 82 AM.J. INT'L L. 760 (1988) (argu-
ing for broad concept of self-executing treaties) with Phillip R. Trimble, Legal Scholarship and
the ILO (Book Review), 6 CoMp. LAB. L. 212 (1984) (arguing for broad use of non-self-execut-
ing treaties in the interest of maximizing effectiveness of international law).
9. See, e.g., Phiroze K. Irani, Jurisdiction and InternationalBanking Operations: Some Current
Conflicts Issues, in CURRENT ISSUES OF INTERNATIONAL FINANCIAL LAw 44 (D. Pierce, H. Chan, F.
Lacroix & P. Pillai eds. 1985); Edmund P. Rogers III, United States Governmental Regulation of
InternationalLending by American Banks: Recent Developments, in CURRENT ISSUES OF INTERNA-
TIONAL FINANCIAL LAW, supra, at 71; Barbara S. Thomas, Internationalizationof the Securities Mar-
kets: An EmpiricalAnalysis, 50 GEO. WASH. L. REV. 155 (1982).
10. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1602-1611 (1982) [FSIA].
11. See, e.g., Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983) (constitu-
tional scope of FSIA); Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U.S. 682, 695-
706 (1976) (plurality opinion) (possible commercial act exception to act of state doctrine); 22
U.S.C. § 2370(c) (1982) (effectively overruling Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398 (1964)).
February 1990] INTERNATIONAL LA WAND CLS
generated increased international cooperation, pursuant in part to new
treaty regimes.' 2 As more problems touch more than one country,
surely lawyers throughout the United States need to understand the
doctrines, processes, and practices associated with public international
law. Yet, despite the increased importance of international law, practi-
tioners seem to think of themselves as practicing different varieties of
domestic law, or at most "transnational" law, but certainly not "inter-
national" law.
The perceived marginality of international law to scholars and prac-
titioners can be traced in part to its scholarship. It is no accident that
mainstream law journals publish almost no writing on international law.
The enterprise is too often limited to an exposition of rules and their
inherent meaning, without reference to any wider context, or to exhor-
tations to reform in the name of promoting the Rule of (International)
Law. From an academic perspective, for most of the twentieth century
much of the scholarly output has been bound in "European doctrinal
formalism."' 3 As Professor Lung-Chu Chen points out in his Introduc-
tion to Contemporary InternationalLaw,
[t]he late nineteenth- and early twentieth-century approaches to inter-
national law, as dominated by the positivist school, were rule-oriented,
conceiving international law ... as a static body of auto-operational
rules ... that are given and self-contained and operate automatically.
The judicial [and other decisionmaker's] task is said to be to discover
and enforce, in particular cases, extant 'correct rules.' "14
For much of the twentieth century, then, international law scholarship
was untouched by legal realism or pragmatism.' 5
The positivist rule-based approach was clearly incomplete, and
against the background of a war-torn, disorderly world it veered off into
an unrealistic idealism. The predominant approach cultivated the im-
age of an irrational and violent political world that had to be tamed by
the pure and separate "Rule of Law.' 6 Prominent themes in this liter-
ature included the United Nations as the key institution in an evolving
world government, the idea of judicial supremacy in the form of the
12. See Alan Ellis & Robert L. Pisani, The United States Treaties on Mutual Assistance in Crimi-
nal Matters:A ComparativeAnalysis, 19 INT'L LAw. 189 (1985); Sir Michael Havers, Legal Coopera-
tion: A Matter of Necessity, 21 INT'L LAW. 185 (1987).
13. David Kennedy, A New Stream of InternationalLaw Scholarship, 7 Wis. INT'L LJ. 1, 3
(1988).
14. Chen, p. 11.
15. Kennedy, supra note 13, at 3.
16. See, e.g., GRENVILLE CLARK & Louis B. SOHN, WORLD PEACE THROUGH WORLD LAW:
Two ALTERNATIVE PLANS (3d ed. 1966); EBERHARD P. DEUTSCH, AN INTERNATIONAL RULE OF
LAw (1977); C. WILFREDJENKS, THE COMMON LAW OF MANKIND (1958); OLIVERJ. LIssrrzYN,
THE INTERNATIONAL COURT OF JUSTIcE: ITS ROLE IN THE MAINTENANCE OF INTERNATIONAL
PEACE AND SECURITY (1951); DANIEL PATRICK MOYNIHAN, LOYALTIES 61-96 (1984); JOHN A.
PERKINS, THE PRUDENT PEACE: LAw AS FOREIGN POLICY (1981); Leonard C. Meeker, The Role of
Law in the Political Aspects of World Affairs, 27 ALB. L. REV. 194 (1963).
814 STANFORD LAW REVIEW [Vol. 42:811
World Court, and the promotion of Western-style human rights; its im-
plicit assumptions were systemic progress and universalism.
I. POST WORLD-WAR II REALISM AND THE NEW HAVEN SCHOOL
After World War II, Professors McDougal and Lasswell at Yale pro-
moted a "policy-oriented approach" that sought a "world public order
of human dignity."' 17 They introduced insights from legal realism and
pragmatism, joined law with politics, emphasized the role of policy and
the importance of context, and expanded the horizons of inquiry be-
yond rules between governments. This new approach portrayed law as
"a continuing process of authoritative decision[making] for clarifying
and serving the common interest of community members."' 8
In An Introduction to Contemporary InternationalLaw, Professor Chen, a
disciple of McDougal at Yale, offers an up-to-date summary of the New
Haven School approach. He first argues that the traditional, rule-ori-
ented positivism unduly emphasizes the past and inhibits new thinking
more appropriate to modern contexts. He points out that rules reflect
policies and particular contexts and that the application of rules in-
volves choice. Chen does not, however, wander into the sphere of criti-
cal theory. He believes that rule application involves choice because
the rules are unclear or incomplete, not because they rest on inherently
contradictory or incoherent foundations. The intellectual task of the
international lawyer, then, is to clarify goals, to analyze past trends and
project future developments, and to invent alternatives. To serve as
guidance in carrying out this task, Chen prescribes eight categories of
values, "borrowed from ethical philosophers and other normative spe-
cialists: respect, power, enlightenment, well-being, wealth, skill, affec-
tion and rectitude."' 9 Those eight values, or qualities, are said to be
"what people cherish." 20 Their characterization at this high level of
abstraction is presumably designed to cover all cultural systems.
Although these eight values may seem vapidly general and inclusive,
when Chen refines their content they turn out to be synonyms for
Western, liberal, constitutional values. Thus, "rectitude" refers to free-
dom of thought and religion, presumption of innocence, and freedom
from ex postfacto laws. 2 1 "Enlightenment" includes freedom of opinion
17. E.g., Chen, pp. ix-x. Although the quoted material is from Chen's book, the termi-
nology was created by McDougal and Lasswell and survives intact. For a more detailed sam-
ple of the New Haven School approach, see INTERNATIONAL LAW ESSAYS: A SUPPLEMENT TO
INTERNATIONAL LAW IN CONTEMPORARY PERSPECTIVE (M. McDougal & W. Reisman eds. 1981).
For a more accessible summary of the evolution, context, and content of the approach, see
Frederick Samson Tipson, The Lasswell-McDougal Enterprise: Toward a World Public Order of
Human Dignity, 14 VA. J. INT'L L. 535 (1974) (student author).
18. Chen, p. 14.
19. Chen, p. 16.
20. Id.
21. Chen, p. 211.
February 1990] INTERNATIONAL LA WAND CLS 815
and expression, of peaceful assembly, and of association. 22 "Well-be- 23
ing" encompasses the right to life, liberty, and security of person.
"Skill" includes the right to form and join trade unions and to the pro-
tection of intellectual property. 24 The bundle unquestionably com-
prises a rather mixed bag, but its orientation is distinctly Western. The
ultimate goal of international law, according to the New Haven School,
is to advance the "basic values of human dignity or of a free society, ' 25
in order to achieve "a more peaceful, '2 6
abundant, and just world-a
world community of human dignity."
This approach considers international law an instrument for achiev-
ing these supposedly universal values or goals of "international soci-
ety." To this end Chen affirms that the task of the international lawyer'
is to adopt the "standpoint" of "citizens of the world community. "27
Scholars and decisionmakers should identify the world community's
common interests "as free as possible from parochial interests and cul-
tural biases."' 28 Paradoxically, Chen argues that rules have meaning
only in context, but then urges scholars and decisionmakers to eschew
"parochial interests and cultural biases"-that is, real-life context.
In the same vein, the New Haven School approach assumes that a
set of "common interests" of "the international community" exists,
that government officials as well as "policy scientists" can discover
these interests, and that international law doctrine should promote
these interests. Chen repeatedly asserts that the "basic policy objec-
tives for which the effective elites of the world maintain the global con-
stitutive process of authoritative decision [i.e., policies pursued by
government and other leaders in international affairs] are to promote
the common interests of all peoples and to reject all claims of special
interest."'2 9 Professor Chen apparently has spent little time with politi-
cians and government officials. It is not even clear how he would rec-
oncile this recommended "standpoint" of a national decisionmaker
with political accountability and democratic theory.
The New Haven analysis is fundamentally deficient in two major in-
terrelated respects. First, it assumes a single international community,
and, second, it attributes to that community the values and interests
that match closely the utopian policy prescriptions of American ideal-
ists in the post-World War II era. These supposedly common interests
of the international community turn out to be another label for West-
ern liberal values: The international law enterprise thus becomes a ve-
hicle for Western cultural imperialism. For example, Chen argues that
22. Chen, p. 210.
23. id
24. Chen, p. 211.
25. Chen, p. 19.
26. Chen, p. 15.
27. Id-
28. Id
29. Chen, p. 85; see also Chen, pp. 130, 146, 350.
816 STANFORD LA W REVIEW [Vol. 42:811
Third World demands for a new information order, under which the
content of news and activities of the media would be more closely con-
trolled by governments, "must not be at the expense of the classic con-
cern for individual freedom." 3 0° He also points out that the "capital-
importing countries ... need the cooperation of the capital-exporting
countries . . . [which] cannot be expected without adequate assurance
of safety and return."'' l Consequently, property rights of multinational
corporate interests must be seen as part of the "common interest" to
32
be expressed in the "desired world public order of human dignity."1
Western-type cultural imperialism may well be desirable, but to mas-
querade it as accepted, universal law only serves to reinforce the per-
ception of international law as naive, utopian, and unconnected with
the real world.
In fact many international communities--of diplomats, commodity
brokers, human rights activists, mountain climbers, and so on-exist
with their own distinctive values, practices, and belief systems. Despite
modern communication, transportation, and the haunting image of the
whole earth photographed from outer space, however, we have no
common, generally accepted world ideology that would give meaning
to the term "international society." There is no generally shared story
of origins and history, no general political organization, and little eco-
nomic integration and social interaction. In short the characteristics of
a generally unified society are lacking. Perhaps a true general "society"
would not need all these characteristics, but planet earth does not yet
approach any of them.
To the contrary, some of the core values of Asian and African socie-
ties are fundamentally inconsistent with the premises on which modem
international law has been built.3 3 The most conspicuous differences
undermine the idea of human rights law, but they also affect notions of
the proper treatment of outsiders, the legitimacy of state regulation,
and even the central place of the state in world order. Adda Bozeman
argues that "we do not have.., a globally meaningful system of inter-
national law because the world society consists . . . of a plurality of
diverse political systems, each an outgrowth of culture-specific con-
cepts." 3 4 Bozeman also argues that
(1) The Occidental model of the State is not congenial to most Oriental
and African societies; it is openly refuted by Marxist-Leninist systems.
30. Chen, p. 299.

31. Chen, p. 315.
32. Id.
33. See, e.g., ALI A. MAZRUI, THE AFRICANS: A TRIPLE HERITAGE 11-21 (1986); Manwoo
Lee, North Korea and the Western Notion of Human Rights, in HUMAN RIGHTS IN EAST ASIA: A
CULTURAL PERSPECTIVE 129 (J. Hsiung ed. 1985) (describing the conflict between Western
notions of human rights and notions that prevail throughout much of Asia).
34. Adda B. Bozeman, An Introduction to Various Cultural Traditions of InternationalLaw-A
Preliminary Assessment, in HAGUE ACADEMY OF INTERNATIONAL LAw, THE FUTURE OF INTERNA-
TIONAL LAW IN A MULTICULTURAL WORLD 85, 97 (1984) [hereinafter MULTICULTURAL WORLD].
February 1990] INTERNATIONAL LAWAND CLS 817
(2) The inner orders of traditional non-Western polities are sustained

by time-tested custom and religion; those of Marxist-Leninist realms by
ideology and coercive power. Neither depends upon the workings of
objective secular law.
(4) Peace is neither a primary social value nor the norm in foreign
relations.
(5) Equivalents for Western systems of international law and interna-
tional organization have not been brought forth either by Marxist-Len-
inist or Oriental and African polities.
Where world unity is an objective of statecraft, it is rendered in
terms of one-power hegemony, not in those of a balance of powers.
Inequality, not equality, has therefore marked the composition of
35
all non-Western international orders.
Bozeman's attack on the coherence of international law has consid-
erable force in some areas, like human rights, but in general it is clearly
overstated. Undoubtedly cultural differences preclude the formation of
a single homogeneous international community, but Bozeman seems to
underestimate the capacity of non-Western societies to change and to
adopt Western concepts in the face of Western cultural imperialism,
international interdependence, and modem communications.
More importantly for the role of international law, Bozeman does
not take into account the eagerness of elites in all those cultures to
accept the concept of territorial statehood as a way of legitimating their
own authority, either alone or in combination with more traditional in-
digenous concepts and mythologies. For example, in some African
states international law provides the only claim to legitimacy for some
rulers, especially in the eyes of minority tribal groups who happen to
36
live within the arbitrary boundary lines drawn by colonial powers.
A focused examination of some specific rules of international law-
such as diplomatic immunity, the right of a state to exclude people,
goods, and capital, or to control adjacent airspace and the seabed-
shows that those particular rules rest on values, or at least interests,
genuinely shared by narrow or specialized transnational subcultures or
communities of diplomats, bureaucrats, and elites. To that extent, in-
ternational law is rooted in these distinct subcultures and communi-
ties-quite in contrast to Chen's description of a system based on
values (not necessarily interests) that are much more fundamental, but
also in contrast to Bozeman's image of a totally fractured and mutually
unintelligible system.
Despite these strong common interests among elites, however,
Bozeman correctly emphasizes the deep differences in underlying val-
ues, differences that destroy the persuasiveness of the New Haven
35. Id.
36. Robert H. Jackson & Carl G. Rosberg, Why Africa's Weak States Persist: The Empirical
and theJuridicalin Statehood, 35 WORLD POL. 1 (1982).
School enterprise and its notion of a single community resting on com-
mon values. In addition, people, even elites, in different countries di-
vide sharply over the importance of such favored Western policy
priorities as environmental problems, population growth, arms limita-
tion, and economic development strategy. Brazil argues that environ-
mental controls hamper industrialization. Some African governments
believe that population growth should be seen, as it has been tradition-
ally in Africa, as a positive value, not something to be controlled. The
governments of India, Pakistan, China, Argentina, Israel, and other
states do not invariably accept the desirability of nuclear nonprolifera-
tion. The Arab states do not share the Western priority accorded
chemical weapons controls. Many Third World states bitterly resist In-
ternational Monetary Fund policies. Even human rights may be por-
trayed as an impediment to economic development. In sum, Western
policy preferences are often seen as a means of preventing other coun-
tries from getting what Westerners have achieved, in some cases by dis-
regarding the very principles that they now advocate for others. The
common interests of mankind, like the universal society that its theory
would serve, simply do not exist.
The New Haven School approach has encountered resistance, but
generally on less fundamental grounds. As Chen points out,
"[c]ommon criticisms are that the system's meta-language is hard to
understand; that its approach is open-ended and susceptible to subjec-
tive manipulation; ...that the entire approach is too complex, cumber-
some, and demanding to apply; and that it is merely a wordy way of
stating the obvious." 3 7T Those criticisms are well founded. For exam-
ple, the New Haven School approach substitutes obscure words for fa-
miliar concepts-"minimum order" for absence of violence, "optimum
order" for welfare maximization, "world process" for international re-
lations, "arenas of authority" for institutions where decisions are made,
such as a diplomatic conference or the World Court. Of course, more
general or abstract concepts are justifiable if they bring together com-
ponents with shared characteristics and if some enlightening purpose is
thereby achieved. The New Haven School jargon, however, seems
more mystifying than enlightening. Moreover, after translation, one
comes to understand that the material presented is mostly standard
38
doctrine with a "policy-science" overlay.
That overlay, however, is an important gloss and graphically ex-
poses the manipulability of the system-another traditional criticism of
the New Haven School approach. Since international law is supposed
to promote the "basic values of human dignity" and a "free society,"
the policy-science interpreter has a broad mandate to manipulate with
cultural blinders intact. For example, McDougal once argued that in
37. Chen, p. 21.

38. Chen, p. 14.
the interpretation of a treaty, the imputed, common purposes of treaty
makers could override the plain meaning of the text.3 9 Even if one be-
lieves that all law is indeterminate to some degree or another, this ap-
proach places itself at the fuzzier end of the spectrum. The McDougal
system also tended to justify United States foreign policy in a parochial
cold war framework. 40 One can therefore sympathize with the view that
the New Haven School approach seems excessively manipulable, as
well as obscure.
Another problem is that the approach promises more than it deliv-
ers. Chen's book incorporates the meta-McDougal framework, but cut-
ting through the jargon reveals nothing more than standard doctrine.
In addition, Chen's approach emphasizes some unfortunate staples of
the traditional international law curriculum-the World Court and the
United Nations. He has an especially unrealistic view of the United Na-
tions General Assembly:
The availability of the General Assembly ... seems to point to a new
modality of lawmaking. When resolutions enjoy the overwhelming
support of the member states, including all the major powers, they
would appear to have the force of law, whether they are characterized
as "instantaneous customary law," as "quasi-legislation," or as some-
thing else. The crucial point is that there emerges a new institutional
mode by which the peoples of the world can clearly communicate ex-
pectations of authority and control in relation to all problems and
value processes .... Such [communication] represent[s] a preferred
policy of democracy and representativeness because [it] entail[s] a con-
stant accommodation of the interests and behavior of all participants
affected by the prescriptions being created. Both groups and individu-
als may participate. The General Assembly and other structures of au-
thority communicate to the world-wide audience, articulating
41
and
reflecting the expectations of the peoples of the world.
Despite its shortcomings, the New Haven School has offered impor-
tant insights that have allowed international law to turn away from a
sterile positivism. Connecting law with context and policy, the ap-
39. MYRES S. McDOUGAL, HAROLD D. LASSWELL & JAMES C. MILLER, THE INTERPRETA-
TION OF AGREEMENTS AND WORLD PUBLIC ORDER (1967).
40. See, e.g., The Hydrogen Bomb Tests and the InternationalLaw of the Sea, 49 AM. J. INT'L L.
356 (1955). For a more recent example of the genre, seeJohn Norton Moore, The Secret War
in CentralAmerica and the Future of World Order, 80 AM. J. INT'L L. 43 (1986).
41. Chen, pp. 364-69. As Chen himself points out, many of the Assembly's resolutions
do not command "serious attention" or garner genuine support. Delegates to the organiza-
tion do not possess lawmaking authority. Often their votes are taken without knowledge of
their home governments. In addition, as Dean Rusk pointed out, states may vote for a resolu-
tion because it is not binding. See Dean Rusk, A Comment on Filartigav. Pena-Irala,11 GA.J. INT'L
& Comp. L. 311, 315 (1981). Finally, Chen notes that "[t]he democratic principle of 'one
state, one vote,' when divorced from the realities of population, wealth ... and the principle
of responsibility, becomes hollow and self-defeating." Chen, p. 60. The General Assembly
serves important purposes, but it is neither democratic nor representative of people in any
meaningful sense, nor does it communicate anything to "the world-wide audience," if that
term refers to persons other than those professionally involved in its affairs.
proach shows that legal decisions involve choice. Unfortunately, it

does not complete the task and it never employs the right contexts.
Instead, the approach is caught up in chimerical notions of common
interests and an international society and erects an obscure, ethnocen-
tric, utopian framework encompassing most of the same old positivist
rules.
The loose framework permits many iterations, not merely the stan-
dard doctrine offered by Chen. Some followers of the New Haven
School tradition come out at the other end of the political spectrum. In
Revitalizing InternationalLaw, for example, Professor Richard Falk con-
tinues the "policy-oriented" tradition of the New Haven School, but
parts company with Chen when he states that "disinterested interpreta-
tion [of legal doctrine] is a fiction." 4 2 Falk views the international law
enterprise as a "normative" tool of advocacy with which to achieve a
better society. 4 3 For over two decades, Falk has vigorously criticized
what he sees as the disastrous effects of industrialization, population
increases, environmental degradation, and nuclear weapons. 4 4 He sees
the world on the brink of a "Grotian moment,"'4 5 entering a period
during which the organization of international society will radically
change, just as society changed in the seventeenth century from a uni-
tary, medieval, church-oriented system to the post-Westphalian state
system. 4 6 He predicts the break-up of the state centered system of in-
ternational relations and the emergence of new forms of "nonterritorial
42. Falk, p. xiv.

43. Falk, p. 21.
44. Falk warned in 1970 that
[w]e have two or three decades, at the most, to bring a new system of world order
into being .... We are living along the precipice of dire calamity. The danger is no
longer alone a matter of fear for nuclear war, but the cumulative and interrelated
dangers that stem from steeply rising curves of violence, population, and pollution in
a world of shrinking space and dwindling resources.
RICHARD A. FALK, THE STATUS OF LAW IN INTERNATIONAL SOCIETY xiii (1970); see also RICHARD
FALK, THE END OF WORLD ORDER (1983); RICHARD A. FALK, LEGAL ORDER IN A VIOLENT
WORLD (1968); RICHARD FALK, THE PROMISE OF WORLD ORDER: ESSAYS IN NORMATIVE INTER-
NATIONAL RELATIONS (1987); RICHARD A. FALK, A STUDY OF FUTURE WORLDS (1975); RICHARD
A. FALK, THIS ENDANGERED PLANET (1971).
45. Falk, p. 65 ("[A]s international jurists, we need to seize the Grotian moment."). As
Falk explained elsewhere,
some would argue that statist arrangements are gradually being superseded, and that
a new system of world order will come into existence at some time in the course of
the next century. In light of such impermanence, we seek to consider the possible
role of law and legal thought in a time of transition between world order systems-a
circumstance designated here ... as the "Grotian moment."
Richard Falk, Friedrich Kratochwil & Saul H. Mendlovitz, The Grotian Moment, in INTERNA-
TIONAL LAW: A CONTEMPORARY PERSPECTIVE 7 (R. Falk, F. Kratochwil & S. Mendlovitz eds.
1985).
46. Falk, p. 5; see also Falk, pp. 8-21 (a more detailed description of the transition to the
Westphalian paradigm). For the early seeds of this concept of a changing paradigm in Falk's
work, see Richard A. Falk, The Interplayof Westphalia and Charter Conceptionsof InternationalLegal
Order, in I THE FUTURE OF THE INTERNATIONAL LEGAL ORDER 32 (R. Falk & C. Black eds.
1969).
February 1990] INTERNATIONAL LAWAND CLS
central guidance" 47 and communitarian organization. 48

Falk is vague on both the timetable for 4 9 and the content of the new
order. 50 More problematically, he presents an incomplete account of
the role of the state. Falk sees the state system as being fundamentally
inconsistent with the alleviation of modem conditions like proliferation
of nuclear weapons, industrialization, ecological degradation and so
on. 5 1 He neglects the important accomplishments of strong central
government-such as civil rights, social security, education, and eco-
nomic advancement-not just in the United States but in the modem-
ized world in general. Moreover, the conditions of interdependence
that Falk correctly identifies will require more and stronger govern-
ment intervention, not less. Most important of all, however, Falk errs
in attempting to use international law as a tool of advocacy for his own
goals. Law, it is true, is a "normative" system in that its rules and
processes reflect particular values, but those values are shared domi-
nant values, specific to the community whose law is being analyzed.
Falk's concerns expressed in this volume, on the other hand, are some-
times parochial and marginal, even in the American context, let alone
the mythical international community.
The effect of Falk's version of world order seems to be merely to
avoid coming to terms with the complex policy arguments on all sides
of the questions he considers. It is difficult to see why the argument for
nuclear disarmament, for example, becomes more persuasive when ex-
pressed in legal terms, especially because the rather traditional argu-
ments that Falk presents are transparently strained. One argument
used several years ago 52 goes like so: The effects of nuclear weapons
are the "functional equivalent" 53 of the effects of chemical and biologi-
cal weapons, therefore nuclear weapons are illegal by virtue of various,
prenuclear agreements prohibiting the use of chemical and biological
weapons. 5 4 The use of international law for this argument is neither
normative nor persuasive. 5 5 It simply reinforces the perception of the
discipline as naive, utopian, and irrelevant to the real world.
47. See, e.g., Falk, p. 5.

48. Falk, p. 10.
49. Falk, p. 20 ("The time horizons of such a quest encourage misinterpretations, espe-
daily by those with little feeling for the rhythm of major historical transformations.").
50. Falk, pp. 39-40.
51. R. FALK, THE END OF WORLD ORDER, supra note 44, at 280-89.
52. RICHARD FALK, LEE MEYROWITZ &JACK SANDERSON, NUCLEAR WEAPONS AND INTERNA-
TIONAL LAW (World Order Studies Program Occasional Paper No. 10, 1981).
53. Id at 27.
54. Id at 26-30.
55. The development of nuclear weapons in the first place-as well as subsequent inter-
national agreements that acknowledge, and in effect sanction, the possession of nuclear weap-
ons-makes it clear that signatory nations never intended that the earlier treaties on chemical
and biological weapons be stretched to cover all new forms of warfare and weaponry. See
Richard B. Bilder, Nuclear Weapons and InternationalLaw, in NUCLEAR WEAPONS AND LAW 3, 5-6
(A. Miller & M. Feinrider eds. 1984).
STANFORD LAW REVIEW [Vol. 42:811
II. THE CRITICAL LEGAL STUDIES (CLS) RESPONSE
To Professor David Kennedy, the post-World War II abandonment

of doctrinal formalism in favor of a polyglot mix of legal realism, insti-
tution building, pragmatism, and functionalism meant the sacrifice of
international law's "intellectual self-image and coherence." 56 As schol-
ars attempted "to account for the simultaneous distinctiveness of pub-
lic international law and its now quite strongly asserted connection to
private national economic structures and political processes," their
product was "theoretically weak, [and] jurisprudentially behind the
times."'5 7 According to Kennedy, "their scholarship grew timid,"5 8
consisting of anecdotal descriptions and "partial explanations among
which the student was invited to choose like a debutante at a smorgas-
bord."' 59 They pursued "idealism in the language of valuative sociol-
ogy or administrative gamesmanship" 60 and "interdisciplinary musings
about the neo-positivism and neo-naturalism of their . . . predeces-
sors."' 6 1 The discipline dissolved into "defensive enthusiasm and a cor-
'6 2
rosive skepticism."
I share Kennedy's (and Chen's) position that the traditional, positiv-
ist scholarship was inadequate. Furthermore, the institution-building
idealist writers were vulnerable to broad attacks on the discipline by
realists like Kennan, Acheson, and Morganthau. 6 3 They argued that
the role of international law had been vastly inflated, causing American

57. Id. at 5.
58. Id at 4.
59. Id
60. Id.
61. Id. at 5.
62. Id Kennedy described the situation when he entered the field in the late 1970s:
Neither the elite confidence of the pre-war establishment nor the enthusiastic opti-
mism of the post-war reformers had survived. The vision associated with the large-
scale post-war reordering projects had disappeared-transformed into the details of
bureaucratic pragmatism and policy formulation familiar from American public law.
By 1970, it was no longer possible to speak of an American inspired world de-
mocracy, or to view decolonization as an administrative matter of peaceful adjust-
ment. When public international lawyers addressed substantive issues, they
presented their work as marginal theoretical or utopian speculation. At best they
produced hortatory denunciations of state policy in a "letters to the editor" format.
The American Society of International Law had become simply one more preten-
tious and disaffected intellectual lobby ....
In short .... it was clear I was being asked to be a bureaucrat, a laborer in an
institutional plant that no one believed was able to respond to international racism,
inequality or violence. No one seemed to think that international law was intellectu-
ally rich. No one seemed to think that international institutional structures looked
forward or provided socially and culturally engaged lives for their inhabitants. No
one seemed to think international legal theory could offer more than an easy patois
of lazy justification and arrogance for a discipline which had lost its way and kept its
jobs.
Id. at 6.
63. See DEAN ACHESON, FRAGMENTS OF My FLEECE 156 (1971); GEORGE F. KENNAN,
AMERICAN DIPLOMACY 1900-1950, at 95-101 (1951); HANS JOACHIM MORGANTHAU, POLITCS
AMONG NATIONs 279-314 (5th ed. rev. 1978).
foreign policy to rest on an idealistic and inaccurate view of the world.

The realist prescription was to eliminate the subject of international law
from our minds. The debate often seemed to be between naive utopi-
ans such as Falk and tough-minded pragmatists such as Kennan.
This debate suffered from two major defects. First, the protagonists
highlighted the rules dealing with force and ignored most important
law. Among others, Henkin correctly pointed out that most law deals
with topics other than force and that most rules are observed most of
the time; but Henkin's descriptive account did not explain why this
should be so. 64 Secondly, and much more importantly, all the partici-
pants in the debate shared the outdated view that law is an autonomous
body of rules, an independent variable, that does or should serve as a
mechanism of restraint against unruly, irrational, violent politicians and
governments. Law was seen as separate from politics. Law constrained
politics. Indeed, as Kennedy observes, some participants seemed to be-
lieve that law can "only be law if it were independent and 'normative,' a
word which, somewhat oddly, has been read to mean 'against the
state.' ",65
Against this background Professor Kennedy set out to "dislodge the
discipline of international law from its stagnation in post-war realism
... and rejuvenate the field as an arena of meaningful intellectual in-
quiry... by reimagining the field rhetorically." 66 In InternationalLegal
Structures he presents a self-confessedly idiosyncratic-and jarring-
analysis that certainly dislodges conventional thought patterns and
projects the discipline beyond postwar realism, indeed beyond realism
of any sort. Whether he has contributed to a "meaningful" intellectual
inquiry is more problematic. In place of instrumental theories such as
those advanced by the New Haven School, Kennedy substitutes a struc-
tural approach. His creation offers new insight into international law,
but the work itself seems eerily empty and ultimately uninteresting. It
is another grand theory unfortunately unconnected with the real world
of international politics.
At the outset Kennedy disavows any interest in trying to explicate
the meaning of international law doctrine or its relationship to a histor-
ical or political context.6 7 This exclusion is unfortunate because the
fundamental problem with the traditional approaches to international
law is the perception that it is irrelevant to the real world, a perception
that in turn is partly based on an unrealistic separation of law and poli-
tics. A key to restoring credibility to the discipline is to connect this
branch of law with its political base.
Nevertheless, Kennedy does not set out to make this connection.
64. See David Kennedy, Book Review, 21 HARV. INT'L L.J. 301 (1980) (reviewing Louis
HENKIN, How NATIONS BEHAVE (2d ed. 1979)).
66. Id- at 6.
67. Kennedy, pp. 7-8.
Instead he examines standard international law doctrine and argument

and finds within them "recurring rhetorical structures." By analyzing
language Kennedy believes that we will be able to "think about interna-
tional law as a self-generating organism in new ways."' 68 The irony is
that, although Kennedy clearly is no admirer of positivism, he projects
law and politics as self-contained belief systems, and thus treats inter-
national law as an autonomous body. Presumably Kennedy intends to
address the theoretical weakness and jurisprudential obsolescence that
characterizes the traditional work. The result of his efforts, at least for
Kennedy, is a "new appreciation for the complexity, strength and self-
'6 9
sufficiency of the international legal order."
He begins by dividing international law discourse into three parts:
sources, process, and substance. Sources discourse deals with defini-
tions, interrelationships, and hierarchical authority of the different
types of international law, such as treaties and customary law. Process
discourse covers the question of who participates in the enterprise
(mostly states) and the boundaries of their authority (for example, lim-
its on extraterritorial application of law). Both these discourses pro-
ceed without reference to any substantive content of norms. Thus,
whether a treaty is binding depends on criteria that, at least formally,
have nothing to do with whether its norms are just, fair, or otherwise
sensible in the context. Similarly, a state may have the jurisdiction to
regulate economic activity in its territory regardless of whether it does
so in a fair manner. Substance discourse covers substantive standards
of behavior, such as the freedom of a state to use outer space for peace-
ful purposes.
Up to this point Kennedy's tripartite categorization is not in any way
idiosyncratic. As Kennedy points out, standard casebooks follow this
pattern. The distinctive aspect of his analysis is to create a typology of
argument or rhetoric within each discourse, to explicate the inconsis-
tent foundations of that rhetoric, and to point out the ways in which the
rhetoric from one discourse refers forward and backward to rhetoric
from the other two.
Within each type of discourse Kennedy finds two general strands of
argument. One type of argument appeals to the sovereign authority of
states, their autonomy from one another, and the competitive aspect of
international relations. The other type of argument appeals to the in-
terdependence of states, a sense of justice, and international commu-
nity. These two types of rhetoric tend to be mutually exclusive, at least
when pushed to a logical conclusion: "[N]either set of arguments can
be convincing by itself and neither can trump the other ....-70 Never-
theless, they seem, perhaps paradoxically, to be regularly combined
68. Kennedy, p. 8.
69. Kennedy, p. 7.
70. Kennedy, p. 31.
February 1990] INTERNATIONAL LAW AND CLS 825
within arguments, judicial opinions, and treatise statements of rules.

Yet "argument within this structure could go on endlessly without
7
resolution." '
For example, a basic rule of international law is that properly rati-
fied treaties are legally binding. The binding nature of a treaty is ex-
plained in what Kennedy calls a "hard" rhetoric that emphasizes
sovereign consent and thus expresses sovereign autonomy. The treaty
is binding because-and only because-the sovereign state in its discre-
tion has agreed to be bound. However, that hard rhetoric of consent
(and the rule that treaties are binding) is tempered by other doctrines,
like those excusing performance because of duress or certain changes
of circumstances. Those exceptions can be thought of as "soft" rheto-
ric that embodies nonconsensual concerns that are important to main-
taining community and interdependence, and hence are inherent in the
international system, such as concerns over unfair coercion or holding
a state to a bargain when circumstances make it unjust to do so.
Moreover, although a treaty is said to be binding because of sover-
eign consent, it must be ratified in certain historically accepted, formal
ways, such as being signed by a person who presents a document attest-
ing to her "full powers" to do so. Accordingly, "treaty law, although
the expression of sovereign will, [must] be expressed in an appropriate,
communally recognized form."' 72 Each rule that refers to the in-
dependent, sovereign authority of a state seems to get muddled up with
another rule, exception, or qualification that refers to the nonconsen-
sual international system or community or to some authority other than
sovereign consent.
Similarly, but in mirror-form of treaty law, customary international
law is based on a nonconsensual notion-the general practice of
states-that seems primarily to take into account systemic or commu-
nity interests. An exception to the binding force of customary interna-
tional law occurs, however, when a state "opts out" of an emerging
general practice, thereby allowing some role for sovereign authority
and autonomy. As Kennedy explains,
This argumentative pattern reflects the image of inter-sovereign life
characteristic of sources discourse generally. Sources discourse estab-
lishes an abstract basis for authoritatively binding states within a nor-
mative order without derogating from their separate and autonomous
sovereign authority. The autonomy of sovereigns ensures the attrac-
tiveness of hard sources while their separation requires that they be
permitted to limit their own consent in the fashion which revealed all
hard sources to be soft. The possibility of an external normative order
grounding their equality and mutual respect suggests the appeal of soft
sources, while the independence of a normative structure from any sin-
gle content for that order requires that all soft sources rely upon hard
71. Id
72. Kennedy, p. 82.
sources for their content. The attempt to delimit an abstract system of
sources, free of the content of either state interest or of external value,
is reflected in the hypothetical rhetorical patterns which I have
outlined.
To the extent sources argument pursues these twin rhetorics, more-
over, it continues the problematic which motivates it. In order to fulfill
the desire for an autonomous system of normative sources, argument
about the sources of international law, like sources doctrine itself, in-
cludes strands associated both with normative autonomy and norma-
tive authority. Sources argument is interesting both because it pursues
a rhetorical strategy of inclusion and because it manages the relations
between these two rhetorical strands so as to "solve" the problem of
sources discourse as a whole. It seems that if the "hard" can lie down
with the "soft" in sources argument, sovereigns73will be able to remain
autonomous within a binding normative order.
In those ways, sources discourse combines concurrent appeals to
consensual and nonconsensual approaches. This discourse shows that
the legal order expresses and represents sovereign authority but is not
"hostage to sovereign whim."' 74 The legal order can both "express and
transcend sovereign power."7 5s In his own distinctive way, Kennedy
thus calls attention to the paradox that international law both confirms
and constrains state authority, and, after categorizing arguments at his
selected high level of generality, he shows how the rhetoric blends the
two:
By setting the rule against the exception, tempering it by its rhetorical
opposite, sources argument can appear to have taken both hard and
soft considerations 'into account' and thereby reach closure in particu-
lar cases . . . [and thus]
76
sustain the hard and soft images of interna-
tional law as a whole.
Kennedy then demonstrates that the other two discourses, dealing
with process and substance, show similar tendencies to incorporate ar-
guments that shift back and forth between inconsistent foundations.
Moreover, rhetoric dealing with any specific legal problem tends to
shift among all three kinds of discourse. For example, an argument
concerning the claim of the Palestine Liberation Organization to state-
hood might incorporate all three. The analyst could first look for a
binding treaty or customary practice of states as the source of a rule. A
treaty saying that the PLO is a state would end the inquiry, regardless
of whether it "really" is a state, but a treaty or custom would more
likely refer to general criteria for statehood, thus directing the analyst
to substance or process discourse. Substance discourse might yield the
content of the rule, or process discourse might specify who can decide
73. Kennedy, p. 32.

74. Kennedy, p. 101.
75. Id.
76. Kennedy, p. 53.
the question. A conclusion might be rendered at any point in the analy-
sis, so that each discourse can be outcome determinative. For example,
substance discourse may say that an entity is not a state until it controls
territory; the PLO would not qualify. Or sources discourse might say
that customary practice does not require current control of territory if it
is occupied by a hostile power. But if the state against whom the PLO
claim is being asserted has objected to that principle of customary law,
it has opted out of the custom, regardless of the justice of the PLO
claim or whether it otherwise would meet the applicable substantive
test. Alternatively, process discourse might say that, regardless of
whether the PLO qualifies under the substantive criteria and regardless
of whether a binding treaty exists, the decisionmaker-such as a do-
mestic court or an arbitrator-may be bound by the current policy of
the government it serves. In Kennedy's view a decisionmaker can stop
at any point in the analysis, resting a decision in either of the two
strands of argument within any of the three types of discourse.
Kennedy correctly points out that process doctrine dominates the
field of international law. There are in fact relatively few substantive
rules or standards of behavior governing the conduct of states, and the
rules governing conduct of multinationals, individuals, and other pri-
vate actors are not by definition covered by international law. Kennedy
believes that process discourse maintains its importance, and perhaps
even maintains the house of cards that comprises the system of interna-
tional law, because it "keeps its independence" from the other two dis-
courses. Thus, in Kennedy's analysis, sources doctrine tends to reflect
sovereign authority (consent of states being the principal prerequisite
to binding treaties and customary law), while substance doctrine tends
to reflect international communal concerns (telling states how to be-
have substantively-for example by prohibiting the assertion of sover-
eignty over outer space). Process doctrine can mediate between these
two conflicting tendencies. Kennedy sees process discourse as the
"humble servant" of the other two, but he also seems to believe that it
must somehow maintain its independence to mediate most effectively.
Process discourse falls into two categories: Participation doctrine
concerns who participates in the enterprise (mostly states), and juris-
diction doctrine concerns what boundaries govern their activities (such
as extraterritorial authority). These two types of doctrine are not only
independent of sources and substance; they are also contradictory in
tendency, reflecting the familiar opposing visions of international
relations.
Participation doctrine, by settling the manner in which statehood is
achieved, opens the system to all qualified actors and ratifies their pow-
ers. Jurisdiction doctrine, with its discussions of the limits to assertions
of national jurisdiction, the authority of the I.C.J., and of claims to sov-
ereign immunity and extraterritoriality, seems to structure interna-
tional life by defining the boundaries of various authorities. Where
participation seems open-ended, responsive to state authority, ratifying
the sovereignty whose consent will be canvassed or whose system will
be reflected in sources doctrine, jurisdiction doctrine seems regulatory,
delimiting the sovereign authority which will be subject to substantive
77
norms.
Not surprisingly, the doctrines within these two categories of pro-
cess discourse are themselves combinations of contradictory rhetoric,
reflecting the same two general "visions" of international relations that
form the paradox of international law. Kennedy labels these categories
"objective" and "subjective." He believes that process discourse must
form a scheme that not only is open to sovereign will but that also regu-
lates sovereign behavior. As in the case of sources discourse, this ob-
jective is accomplished by blending the two inconsistent tendencies
rhetorically within doctrines and arguments. For example, the Monte-
video Convention sets forth the formal criteria for statehood: territory,
population, government, and capacity to carry on international rela-
tions. The first three seem objective and therefore reflective of interna-
tional community, while the last seems subjective and therefore more
responsive to sovereign whim, at least as viewed by the sovereign that
determines "capacity." Of course, viewed from the perspective of the
entity seeking recognition, the categories can be easily reversed-from
its perspective its autonomy is best protected by permitting it to deter-
mine its own capacity. But manipulability of concepts is a familiar
theme by this time.
From this analysis I am readily persuaded that process arguments
often rest on contradictory, submerged premises, just as I am easily
persuaded that process doctrine is centrally important in international
law. The more interesting aspect of Kennedy's analysis deals with the
relationship of process to sources, and especially its relationship to sub-
stance. As in other areas of law, process is frequently outcome determi-
native in international law. More importantly, it enables the
decisionmaker to rest her decision on grounds that do not threaten the
basic principle of state sovereignty (because process doctrine can ap-
peal to the dominant sources doctrines) and that also do not entail the
imposition on sovereign states of a substantive standard of behavior.
Yet the decision may have the same substantive effect as if a com-
munally based standard were imposed.
For example, in the Nottebohm Case,78 Liechtenstein asked the Inter-
national Court ofJustice to determine that Guatemala's confiscation of
Nottebohm's property was illegal. The court avoided a substantive
judgment by resting its decision on a process basis rather than on sub-
stantive law. It determined that Liechtenstein could not represent the
interests of Nottebohm before the court, because under traditional doc-

78. (Liechtenstein v. Guat.) 1955 I.C.J. 4.
trine he was not a Liechtenstein "national." In reaching its conclusion,

the court wandered from one type of discourse to another. The court,
an embodiment of the international community, started by deferring to
state autonomy: It said each state could determine its own criteria for
nationality. But then the court noted the existence of an "international
sphere" in which nationality is separately defined and shifted to sources
discourse, examining custom. Without reaching a conclusion, it shifted
again to substance discourse, finding a requirement that a "genuine
link" must exist between the national and the state espousing its claim
before the court.
The court could have stopped its analysis anywhere, resting its deci-
sion on sources, process, or substance discourse; depending on which
strand of rhetoric it chose, it could hold for either side. Kennedy con-
cludes that process discourse yields "persuasive resolutions for the
more intractable difficulties presented by more resolutely opposed, if
only hyperbolically invoked, social visions." ' 79 Kennedy is certainly cor-
rect to point out the prominence of process discourse in the field of
international law. The interesting question is why process discourse is
pervasive. The rhetorical techniques described by Kennedy may help
decisionmakers avoid making difficult decisions or permit them to
avoid explaining a decision in awkward or controversial terms. The
conflicting loyalties of Nottebohm to Guatemala, Germany, and Liech-
tenstein may be difficult to sort out, and it may be just as well not to say
directly that confiscating property is acceptable. But, as I outline be-
low, a more plausible explanation of the prevalence of process doc-
trines, as well as an explanation of why international law is widely
observed, can be found in the effects of their application.
Kennedy views sources and process doctrine as preliminary, merely
leading to substance discourse as the major act: "In substantive legal
doctrine we hope to find a social fabric of resolution and peace ....
Substance should reflect and create a social order which can be elabo-
rated by sources and served through process."8 0 But instead, the con-
tent of substance discourse is fragmentary, holding promise for the
future, but mostly referring back to process and sources. Not surpris-
ingly, substance discourse reflects tendencies to reinforce sovereign au-
thority while at the same time expressing international communitarian
interests. Not only is this conclusion unsurprising, it is not such a bad
thing.
As Kennedy points out, a world based entirely on a principle of sov-
ereign autonomy could be chaotic and dangerous, while an integrated,
centralized system seems utopian and could be oppressive. Indeed, the
two concepts depend on each other: "[N]ational authority depends on
a community regime of respect for that authority just as the communal

good requires the acquiescence of national sovereigns to international

definitions of the 'common good.' "81 Yet the "aspiration of substance
is to resolve their differences" 8 2 presumably by supplying substantive
standards of behavior-for example, a state must not invade in these
circumstances, or its nationals may not catch more than so many fish
here, or it is required to provide so much money to Nepal-that resolve
the contradictions left by the other discourses. For better or worse,
however, we end up with the usual rhetorical mix. As a result, sub-
stance doctrine provides no predictable or even defensible answers to
legal problems. Of course, some who follow the critical tradition have
emphasized the indeterminacy of international law all along.8 3 Ken-
nedy, however, does not stop at emphasizing indeterminacy: He seems
to go further, even in the opposite direction. In the endless tangle of
inconsistency and cross reference, he finds strength. Indeed, strength
through indeterminacy may be the essence of the "modern" interna-
tional legal system.
Kennedy divides substance discourse into two parts, the law of war
and the law of peace. In his analysis the law of war is primarily associ-
ated with sovereign autonomy and concerned with boundary drawing
("architectural" provisions). The law of peace, on the other hand, is
primarily associated with community and concerned with setting stan-
dards (regulatory provisions). He takes the law of the sea as exemplary
of the law of peace, stating that the "modem law of the sea is the most
systematic and complete branch of the public international law of
peace" 8 4 and that the U.N. Convention on the Law of the Sea is "mod-
ernist international legal drafting at its best."8 5 But he finds reading it
a "puzzling experience,"'8 6 as the reader may find reading Kennedy's

82. Id.
83. See, e.g., GuvoRA BINDER, TREATY CONFLICT AND POLITICAL CONTRADICTION (1989);
Applying the CriticalJurisprudence of International Law to the Case Concerning Military and
Paramilitary Activities in and against Nicaragua, 71 VA. L. REV. 1183 (1985) (student author);
James Boyle, Ideals and Things: InternationalLegal Scholarship and the Prison-Houseof Language, 26
HARV. INT'L LJ. 327 (1985). It seems sensible enough not to dwell on the indeterminacy
point since most observers, especially practitioners, do not have to be persuaded that interna-
tional law is indeterminate. Indeed, that indeterminacy is part of the problem in the popular
perception. Perhaps the answer to that perception is to point out that in some sense all law is
indeterminate. But such a response will not do much to revive a respected theoretical pedi-
gree for international law.
86. Id. Kennedy's preoccupation with language sometimes leads him off the deep end.
For example, he discusses the preamble to the LOS Convention as follows:
The key to the modern substantive text is its ability to generate this movement to-
wards the substantive and the international while remaining ambiguously balanced,
deferring elsewhere any actual resolution of the choices between competing sover-
eigns, or between competing visions of the international order.
One important mechanism for generating this momentum is apparent already in
the Preamble. By situating the text historically, between a moment of intention (by
the "conscious" States Parties) and a moment of implementation (by the text and the
order), the Preamble seems to transform individual states into parties. The subjec-
account of his experience. Hoping or expecting to find a "daring act of

assertion," 8 7 Kennedy seems disappointed by the Convention's "loss of
confidence," 8 8 its submerged voice,8 9 and its fragmentary nature. He
wants to find a single, comprehensive, authoritative promulgation of
law, but it is not there.
The Convention has little substance in the sense of rules detailing
how many fish can be caught at a particular spot, where the maritime
boundary between the United States and Canada lies, or what construc-
tion standards apply to oil supertankers. Instead, the attempts at sub-
stantive regulation collapse into process. The treaty mostly establishes
boundaries of state authority-Kennedy's architectural provisions. So,
for example, the coastal state can determine how many fish can be
caught in a 200 mile zone (the Exclusive Economic Zone) off its coast.
The United States and Canada together must negotiate their maritime
boundary in accordance with equitable principles or submit the issue to
binding dispute settlement procedures. And although the flag state de-
termines oil tanker construction standards, it must do so in accordance
with international standards. Nevertheless, only the flag state can con-
clusively adjudicate its own compliance. Thus the treaty moves from
process (border marking or jurisdiction) to substance (equitable princi-
ples, international standards) and back to process (negotiation and dis-
pute settlement procedures or unilateral state determination).
Substance includes the particular norms established, through dispute
settlement, but the product of substance discourse may refer back to
process (a state has the right to decide) or to sources (customary inter-
national law or an ancient treaty established the maritime boundary).
For example, the provisions dealing with the Exclusive Economic
tivity of the sovereign is present-was always already present-in the purposes. By

the time the order gets to their implementation, however, the state has become an
object and a principle, "sovereignty," entitled to due regard. In this way, the circle
of references, for all its hesitation about authoritative substantive pronouncement
seems to create or establish an "order" which might be substantively characterised as
international. The text's historical promise was apparently part of the consciousness
of the States Parties who sign themselves "aware of the historic significance of this
Convention as an important contribution to the maintenance of peace, justice and
progress for all the peoples of the world."
The Preamble is linked to the text by a reminder of this movement, indeed by a
phrase which seems to signal nothing but a movement from consciousness to action:
"Have agreed as follows:." The stress is on the account of the States Parties' move-
ment from consciousness to agreement. Then the Preamble closes with a colon, di-
recting us to the text ahead as reportage. But the text which follows is more than a
report. It contains more than the detailed provisions of an accord already stated in
the Preamble, It must fulfill what are merely promises and implement what are
merely purposes. In this it must actuallyfollow the Preamble as an establishment or
product of the accord.
Kennedy, pp. 205-06 (footnote omitted). This is simply bizarre. Rhetoric is important, but
preambles are not.
87. Kennedy,p. 200.
89. Kennedy,p. 202.
Zone refer to the right of the coastal state to set the terms of fishing
within the Zone. "As elsewhere, we find the Convention shrinking back
from its own substantive agency." 90 However, the Convention pur-
ports to constrain the exercise of the coastal state's authority with a
number of limiting principles. Thus substantive considerations reen-
ter. But the principles are vague and the Convention refers their elabo-
ration to a dispute settlement process: "The Convention displaces its
own role as establisher of the substantive legal fabric onto the agents
whose behavior it was meant to order-creating an international legal
order by self-effacement. "9 1
Kennedy's implicit assumption is that there should be a single, uni-
fied substantive legal fabric blanketing the world. He complains that
"no one" is given authority in the Convention to prescribe rules. In this
way he seems to join Chen, Falk, and the others in assuming an over-
arching international community to which a unitary set of substantive
rules should apply. Even were I to accept Kennedy's international
framework, in the end I would be puzzled. I do not understand the
point of his elaborate exercise. The analysis seems plausible, even
"correct" in some sense, but the result seems eerily empty.
In an early article, Kennedy said that "international law discourse is
a conversation without content." 9 2 It may look that way from inside
Kennedy's rhetorical wind tunnel, but it does not seem so vapid to the
victims on board the Korean aircraft shot down for its violation of the
international law of airspace, or to the corporations that collected funds
from Ethiopia and Iran for expropriation of property, or to the officials
who must authorize those payments instead of funding important de-
velopment needs, or to the Chinese students demonstrating for the
cause of human rights but discovering the internationally sanctioned
legal right of a state to regulate conduct within its territory. All these
people are the victims of states exercising generally recognized rights
under international law. To them international law is full of content,
some of which might be better changed, but all of which has real conse-
quences for real people. In fact, international law is fundamentally and
pervasively significant in the contemporary world. The reasons for its
importance have little to do with the rhetorical shell game that Ken-
nedy describes, but much to do with self-interest and the potential le-
93
gitimating effects of international law.

92. David Kennedy, Theses About InternationalLaw Discourse, 23 GERMAN Y.B. INT'L L. 353,
376 (1980).
93. For a discussion of the different meanings attributable to the concept of legitima-
tion, see Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. REV. 379.
For an outline of legitimation theory and CLS, see Robert W. Gordon, New Developments in
Legal Theory, in THE PoLITIcs OF LAW: A PROGRESSIVE CRITIQUE 281, 286-87 (D. Kairys ed.
1982).
February 1990] INTERNATIONAL LAWAND CLS 833
III. INTERNATIONAL LAW, SELF-INTEREST, AND LEGITIMATION OF STATE

AUTHORITY
A quick look at the "rules" of international law shows why govern-

ments love international law. Contrary to the realist/idealist view of
law as a restraint on unruly governments, international law confirms
much more authority and power than it denies. For example, the basic
rule of international law is that a state generally has the exclusive au-
thority to regulate conduct within its territory. International law thus
confers authority to control entry and exit, to establish police control,
to determine economic structure, to tax, to regulate, and to reinforce in
many other ways the power and legitimacy of government. Public in-
ternational law also grants governments sovereignty over air space and
control over the continental shelf and economic resources 200 miles
into the sea.
Of course, each rule conferring authority on a government denies it
to all others. The United States government may be restrained in at-
tempts to enforce its law in Canada, and Japanese fisherman may be
barred from fishing near California's coast. Nevertheless, governments
have little interest in extending their authority to that extent, at least
when compared with their interest in controlling matters at home. For
the most part, governments do not want to invade other countries or
apply their law or send their fishermen to other territories. To be sure,
there are exceptions, and these exceptions can be of vital importance to
the actors involved. In the aggregate, however, they are less important
than the effect of the general rules.
Even the rules of public international law that expressly restrain
government authority may at the same time give a government an ex-
cuse to impose its authority throughout its own society so that it can
effectively discharge its obligations under international law. Interna-
tional human rights law, for example, promotes national judicial re-
view, general criminal law procedures, and a host of objectives that can
best be met by assertions of national government power, especially
against village or other traditional structures. For example, a govern-
ment's international responsibility for injuries to aliens gives that gov-
ernment a mandate to control local officials and practices.
Even when the rules do prevent a government from doing some-
thing that it otherwise wants to do, such as denying overflight rights to
a hostile state's aircraft (contrary to the Chicago Convention), it may
decide to forgo the short-term advantages derived from violating those
rules because it has an overriding interest in maintaining the overall
system. The rules comprising the system as a whole enable each gov-
ernment to achieve welfare goals for important parts of its population,
and hence solidify its standing and legitimacy. Thus, the United States
government may decide not to block transit of Cuban aircraft over
United States territory because it derives support from the airline in-
dustry and the traveling public, both of which in turn benefit from
transit over Cuba or from the system of which such transit rights are an
integral part. The rules of international law accordingly are very con-
genial to governments. They mostly justify or legitimate the practical
94
exercise of state power.
Furthermore, in fundamental ways international law and the state
system are inseparable. International law provides organizing catego-
ries that define and limit the ways in which virtually everyone talks
about the world. Even CLS writers regularly acknowledge that the state
is the center of coercive power. International law conditions the behav-
ior of participants and observers alike. It channels the ways in which
officials think about a given situation, and it organizes their responses.
If Cuba blocks a U.S. transit right, the first likely reaction of the U.S.
would be, as prescribed by the Vienna Convention on Treaties, to do
something similar to a Cuban transit right rather than, say, assassinate a
Cuban official in Algiers or dispatch the Navy to round up Cuban fish-
erman in the Caribbean. The influence of international law also makes
it difficult to think about alternatives like those proposed by Falk. For
example, world government seems impossible because states will not
surrender control over military force. And drastically reducing the
power of governments in a move toward global communalism seems
undesirable because only states can balance corporate power. Interna-
tional law is thus a powerful inhibition against creative thinking.
No one should doubt the need for creative thinking. Clearly global
developments in business, travel, and communications have changed
the world. Governments are not always the most important actors in
many aspects of international life; private actors may be more impor-
tant influences on daily life. For example, traditional government activ-
ities, like development, are often carried out by the "private sector."
One ought to be able to devise a new approach to the presentation of
international law that would account for the prominence of nonstate
actors and new forms of interaction. To do that without reference to
"domestic" legal systems seems foolish. But the attempt to combine
domestic and international law, and public and private law, runs
counter to deeply ingrained habits of thought.
V. THE DOMESTICATION OF PUBLIC INTERNATIONAL LAW
One of the most fundamental assumptions embedded in interna-

tional doctrine is separation of international and domestic spheres.
94. In Hyde's framework, my claims in this section are closest to "order legitimation,"
that is, I am claiming a relationship between legal rules and acceptance/maintenance of the
contemporary state system. The concept of legitimation may also be employed to explain the
widespread compliance with international law that sophisticated commentators, like Henkin,
have noted. This claim focuses on "specific-norm legitimation," in Hyde's framework. I will
deal with international law compliance based on the actor's sense of the law's legitimacy
(obeying the law because it is the law) in text accompanying notes 107-115 infra.
Like the positivists before them, contemporary theorists from McDou-

gal and Chen to Falk and Kennedy implicitly perpetuate this conceptual
framework. In their analyses a unitary international law arches over an
international community. This form of analysis helps make interna-
tional law a marginal discipline. It perpetuates the image of intema-
tional law's remoteness from the more important world of national
politics and societies where most significant decisions are actually
taken. The way to lend credibility and relevance to the international
law discipline is to connect it with real communities with viable political
foundations, arenas that have traditionally been categorized as
"domestic."
Public international law should be reconceptualized. Instead of be-
ing seen as a single, unitary system applicable across the "world com-
munity," public international law should be imagined as a series of
parallel systems, more or less convergent depending on the subject,
separately applicable within the various nations of the world. Under
this approach public international law resembles private international
law, where each state has its own set of choice of law rules (or other
independently adopted rules) applicable to "private" controversies, but
where those rules are similar in content and in fact provide a large mea-
sure of uniformity and predictability throughout the world.
The domestication of public international law would have three ma-
jor advantages. First, it would provide a theory that more realistically
describes international law as it actually works. Second, it would point
the way to rhetorical strategies more persuasive to government officials,
judges, and other decisionmakers. Validation of international norms
by the same or similar processes that produce domestic law, and associ-
ation of international law with domestic political theory, is important to
the political support and therefore legitimacy of international norms.
And legitimacy is the key to persuasiveness. My strategy would move
the study of public international law to a more compelling position in
the academic and practical worlds. Finally, it would alleviate the peren-
nial difficulties in explaining whether international law is "really law"
and why it is binding. It would accomplish this final advantage by sim-
ply abolishing the question. Everyone concedes that municipal law is
"really law," and there are plausible explanations for its binding force.
Thus, the ultimate persuasiveness of my case rests on the analysis of the
first and second advantages.
A domestic approach in fact describes today's living international
law. Law varies from culture to culture and from context to context,
and international law is no exception. Most modem texts and
casebooks include references to different "views" of international law,
for example, to Socialist or Third World views. 95 Although the differ-
ences are often overstated, important differences do exist with regard
95. E.g., MALCOLM N. SHAW, INTERNATIONAL LAW 29-38 (2d ed. 1986).
to several doctrines. For example, in response to United States hegem-
ony, many Latin American states adopted the doctrine that a state's re-
sponsibility for injuries to aliens does not exceed its domestic standards
and that only appropriate compensation determined under domestic
law need be paid upon expropriation of foreign property.9 6 Latin
American states also maintained that recognition of a government may
not be denied for political purposes. 97 These doctrines reflect a dis-
tinctive context, in which Latin societies reacted against foreign invest-
ment and the United States' use of recognition as a means of political
coercion.
The existence of two approaches does not mean that there is no in-
ternational law of state responsibility or of recognition of governments.
It simply means that one rule would apply in Peru and another in Can-
ada, just as different systems of constitutional law or contract law apply
in those two countries. In the broad perspective, the particular rules
may vary little from country to country, but the systems of law can be
kept conceptually distinct. The development of new rules of customary
international law provides another example. It is said that a state may
opt out of an emerging customary rule by objecting to it in a timely
manner. 98 This is simply another way of saying that a different rule
applies in the jurisprudential culture of that state.
The degree to which these distinct systems of international law con-
verge varies substantially with regard to particular doctrines. The ap-
plicability of human rights norms in practice is especially uneven, from
wholesale rejection in North Korea to highly selective application in
many Third World countries to more general, albeit in important re-
spects incomplete, application in Europe and North America. This va-
riability reflects the widely differing religious and cultural traditions
and levels of economic development that prevail throughout the world.
On the other hand, 'the rules of diplomatic immunity seem generally
applied without reference to cultural or economic context. This uni-
formity reflects the truly worldwide subculture of diplomats, with simi-
lar training, outlook, and interests, which is a distinct contrast to the
infinitely varied cultures and subcultures in which human rights norms
are implemented. The right of women to equality, for example, must
be implemented in societies where history, social tradition, and religion
reinforce denial of the right by people whose values, outlooks, and in-
terests are indifferent or hostile to the objective. The rights of diplo-
mats, on the other hand, are implemented by officials of central
governments whose diplomatic colleagues' interests are directly impli-
cated by the reciprocal enforcement of such rights.
There are many examples of different interpretations of linguisti-
96. Id. at 426.

97. L. THOMAS GALLOWAY, RECOGNIZING FOREIGN GOVERNMENTS 8-10 (1978).
98. M. SHAW, supra note 95, at 74-76.
cally identical treaty norms in different national courts, even in

nonpoliticized commercial law, which is itself well rooted in a genuinely
common subculture. Commenting on the Latin American experience
with uniform private law, Professor Boggiano observes that in practice
the aim of uniformity is "often disregarded or at least not given ade-
quate weight."9 9 Another example is provided by the Council for Mu-
tual Economic Cooperation (COMECON) of the East European states,
which uses a system of uniform law to promote economic integration.
In each state the rules are applied by a national Court of Arbitration.
As the President of the Arbitration Court at the Bulgarian Chamber of
Commerce and Industry remarked,
The open door through which divergent application enters into the
field of uniform law is its application not by a single international judi-
cial body, but by the many national judicial bodies operating in the
various States which have adopted the uniform law.... [W]hen jus-
ticemaking bodies in different countries apply the same law, the well
known factors tending to its divergent application begin to operate.
The provisions of the uniform law are not always perfectly drafted (am-
biguous, unclear, etc.) due to its character as a compromise between
different national traditions, notions, values and interests. But even if
the provisions of the uniform law could be so skilfully drafted as to
avoid any ambiguity or misunderstanding, even then a different norma-
tive meaning could be given to them under the impact (often subcon-
scious) of the same national notions, values and interests which lay
behind the compromise giving rise to the uniform law. The result of
these and other factors will be a divergent interpretation of the same
provision and, as a consequence, its divergent application. 0 0°
Similar divergences have occurred in interpreting the Warsaw Con-
vention, 10 1 the Hague Rules on Bills of Lading, 10 2 and (prospectively)
the United Nations Convention on the Sale of Goods.' 0 3 Even so, uni-
99. Antonio Boggiano, The Experience of Latin American States, in INTERNATIONAL INSTITUTE
FOR THE UNIFICATION OF PRIVATE LAW (UNIDROIT), INTERNATIONAL UNIFORM LAW IN PRACTICE
28, 32 (1988) [hereinafter UNIFORM LAW]; see also Oral statement of Ulrich Drobnig, in UNI-
FORM LAw, supra, at 305, 306 (noting tendency of German courts to interpret Geneva Conven-
tions on bills of exchange and checks as if only domestic law were involved, without reference
to other countries' interpretation).
100. Zhivko Stalev, The Uniform CMEA Law and Its Uniform Application, in UNIFORM LAw,
supra note 99, at 231, 235-36. To minimize the divergences in national interpretation, each
arbitral body, national Court of Arbitration, and the Conference of the Presidents of all
Courts of Arbitration publicize decisions, discuss particular issues, and'encourage uniformity
through legally nonbinding techniques of supervision. In this way a high degree of uniformity
can be achieved as a practical matter, thereby assuring the benefits of uniformity while main-
taining the possibility of divergence to take account of national difference. A similar cross-
fertilization process would tend to narrow the divergences among international law doctrines
in my domesticated system.
101. Boggiano, supra note 99, at 39-41; Giuseppe Guerreri, The Warsaw System: An Italian
Perspective, in UNIFORM LAw, supra note 99, at 467; Oral statement of Leif Sevon, in UNIFORM
LAw, supra note 99, at 134.
102. Oral statement of LeifSevon, supra note 101, at 135.
103. Oral statement of Louis Del Duca, in UNIFORM LAw, supra note 99, at 141, 142. See
formity is easier in trade law than family law, 10 4 precisely because the
subculture of international trade is more homogeneous than the multi-
tudinous cultures of families. The domestication of public interna-
tional law would represent a realistic accommodation to the fact of
national and cultural variations in the implementation of common
norms in different societies.
Domesticating international law would also enhance its persuasive-
ness in the domestic decisionmaking contexts where almost all impor-
tant decisions are taken. Most decisions implementing public
international law norms are made by domestic government officials-
diplomats, police officials, prosecutors, judges, coast guard and naval
officers, air traffic controllers, administrative agencies, bureaucrats in
the trade, environment, and commerce ministries, even legislators-
and by persons subject to the direct legal authority of governments,
such as corporate officials, labor unions, and human rights and other
private voluntary organizations. Even international arbitration largely
depends on domestic law for both its initiation and implementation.
All these decisionmakers and participants operate in a domestic polit-
ical context. They are more likely to respond to a claim that seeks to
restrict or influence their action if that claim has status as domestic law.
To begin with, domestic law is likely to come with readily available
enforcement processes and practices. To the extent that international
law is "implemented" by domestic law, it gets a free ride on those
processes and practices. In the United States, for example, treaty law
has constitutional status and can often be enforced by court action.105
But customary international law has weaker status and seems unlikely
to be applied in the absence of political branch support that itself car-
ries a constitutional imprimatur. 10 6
Most international law implementation, however, depends less on
the prospect of formal enforcement and sanctions and more on a belief
by decisionmakers in the rule of law and on the sense that the law is
legitimate. In this regard it is important to understand international
law as rhetoric, and to ask why it is or is not persuasive as such. Some
writers characterize international law as a specialized language in which
international relations are carried out. 10 7 For example, if a govern-
ment's military forces erroneously shoot down another's civilian air-
liner, a diplomat representing the families of the deceased passengers
may say to the other government, "You owe compensation because you
generally Arthur Rosett, CriticalReflections on the UnitedNations Convention on Contractsfor the Inter-
national Sale of Goods, 45 OHIo ST. L.J. 265 (1984).
104. See Oral statement ofSompong Sucharitkul, in UNIFORM LAW, supra note 99, at 133,
133-34.
105. U.S. CONST. art. VI; see also Paust, supra note 8.
106. See Phillip R. Trimble, A Revisionist View of Customary InternationalLaw, 33 UCLA L.
REV. 665 (1986).
107. See, e.g., WILLIAM D. COPLIN, THE FUNCTIONS OF INTERNATIONAL LAW 168-95 (1966);
P.E. CORBETr, LAW AND SOCIETY IN THE RELATIONS OF STATES (1951).
violated international law," rather than "You must pay compensation

because you made a mistake," or "You must pay because you are
weaker than we." This use of international law is common. The inter-
esting question is why a claim expressed in legal terms is chosen over
other types of claims.
An international law claim carries some implicit messages. It ap-
peals to the self-interest embodied in the legal norm that made it ac-
ceptable at some time in the past, and it contains the threat of
retaliation or at least the prospect of embarrassment at having been
exposed for acting unlawfully. These two messages are not likely to be
overpowering in situations where an issue has arisen that will lead to an
international dispute. In such a situation, the interests served by the
legal norm at stake are likely to be outweighed or severely threatened
by other short-term interests, or else the state would not be threatening
to breach the norm. Moreover, legality is unlikely to be adjudicated by
any regular process and retaliation is certainly not assured. Hence, the
power of an international claim may come down to its ability to induce
a favorable response just because "it is the law."
The popular view disparages international law precisely because it
seems to rest on "moral" suasion, voluntary compliance in the absence
of formal enforcement, and the "court of world public opinion." But
most people obey domestic law in part because of some notion that "it
is the law." Part of that reaction no doubt depends on enforcement.
The task of ascertaining a person's motivation for compliance with law
is obviously complicated and difficult, if not impossible. There is nev-
ertheless some evidence, and much anecdotal belief, that people obey
law in part because they think it is right to do so. This kind of compli-
ance depends on a sense of the law's legitimacy. Here is where intema-
tional law tends to falter.
Professor Boyle reports that, in his efforts to use international law
arguments in criminal defense trials in United States courts, he finds
that lawyers often do not take those arguments seriously.10 8 Constitu-
tional and statutory arguments are preferred. To understand why this
should be so, it is important first to look at the audience to which the
argument is addressed. After all, the purpose of making a legal argu-
ment is to induce the decisionmaker-the prosecuting attorney or a
judge in the United States criminal context-to decide the case a partic-
ular way. We should therefore analyze how an argument may "form
attitudes or induce action in others."' 0 9 A constitutional argument
seems preferable not only because it is more familiar to these officials.
It also appeals to their sense of duty and their identity as officials of the
United States of America. They take an oath specifically to uphold the
108. FRANCIS ANTHONY BOYLE, DEFENDING CIVIL RESISTANCE UNDER INTERNATIONAL LAW
14-15 (1987).
109. Jerry Frug, Argument As Character,40 STAN. L. REV. 869, 872 (1988).
Constitution and laws of the United States, and they no doubt see
themselves as part of the common enterprise of governance of the na-
tion. Their appointment process reinforces a self-image of being part
of the American political system.
Since international law has been portrayed as belonging to a distinct
sphere of operation, separate from politics and from domestic govern-
ments, it is easy to see why its arguments may not seem persuasive.
Professor Frug suggests that arguments appeal to a person's psychic
make-up and social role. 1 0 The normal decisionmaker in an interna-
tional law context is a government official or judge and consequently
feels a duty to her government and identifies with it and its goals. It
seems unlikely that she defines her character or role as a servant of the
"international community." She may see herself as a servant of some
generalized public interest, but she would probably define that interest
in narrower terms, such as nation or class. The way to connect interna-
tional law to the psychological world of decisionmakers is to bring it
closer to home, not to preach to them about reforming their outlook.
International law must be connected with the domestic political con-
text. One way to do so is to validate it through a process similar to that
used for regular, municipal law. Another way is to connect theoreti-
cally the norm or the process by which it was created with prevailing
political theory, which will vary from culture to culture.
Ultimately, the decisionmaker must perceive the specific rule that is
being invoked as legitimate. The rule's legitimacy can be enhanced,
first, by the process by which it was created. Second, it can be con-
nected with more general norms, rhetoric, or mythologies that are ac-
cepted within the society. Third, a rule's legitimacy can be enhanced by
factors specifically applicable to the rule, such as its fairness, specificity,
or obvious reciprocal application. The first two strategies connect the
process or the rule in some way with prevailing political philosophy.
For example, American political philosophy emphasizes popular sover-
eignty. Against that background customary international law, which
may be created entirely outside the "people's" political system, seems
illegitimate." I' Treaty law, on the other hand, has explicit textual rec-
ognition in the Constitution, and it has been formally adopted by popu-
lar representative institutions-the President, the Senate, and, in the
case of non-self-executing treaties, the House of Representatives.
Thus, a treaty norm can be readily explained in terms of general polit-
ical philosophy. In a state where treaties must be implemented by an
act of the legislature, a similar foundation in popular sovereignty can
be discovered.
In addition to philosophical support, the domestic implementation
process assures that the rule's content has important practical political
110. Id.
111. Trimble, supra note 106, at 717-23.
February 1990] INTERNATIONAL L4WAND CLS
support.' 1 2 In the United States, a treaty may not become law until it
passes formidable political hurdles, with all the publicity and consensus
building that is entailed in the process. A ratified treaty has received
formal endorsement by the President and the Senate or Congress, and
has been scrutinized by the parts of the bureaucracy and public affected
by its norms. Through this process of publicity, scrutiny, and political
bargaining, the treaty attains symbolic legitimacy. Similar political ben-
efits would accompany the implementation of international rules by the
normal, domestic lawmaking process in any society.
A rule's legitimacy may also be enhanced by being connected with
traditional ideologies, such as employing the concept ofjihad to explain
the meaning of self-defense contained in Article 51 of the United Na-
tions Charter, or arguing that the concepts of fair treatment of foreign
traders and humane treatment of prisoners of war can be rooted in
13
Hindu tradition.'
In stressing the importance of a sense of legitimacy in assuring com-
pliance with international law, Professor Tom Franck emphasizes a
third strategy of legitimacy enhancement: including factors internal to
the rules, such as determinance and coherence. ' 14 These factors may
help in securing compliance, but it seems to me that a more important
112. Id at 728-29.
113. R.P. Anand, The Role of Asian States in the Development of InternationalLaw, in MUL-
TICULTURAL WORLD, supra note 34, at 105, 109-10; Nagendra Singh, The Basic Concept of Univer-
sality and the Development of InternationalLaw, in MULT1CULT-URAL WORLD, supra note 34, at 239,
241-44.
114. Thomas M. Franck, Legitimacy in the InternationalSystem, 82 AM. J. INT'L L. 705
(1988). Franck also refers to the role of symbolic validation of rules in bolstering legitimacy
and therefore voluntary compliance. I agree that symbolic validation can be important, but
his international examples seem unpersuasive for two reasons. First, the connection between
the symbolic act-erecting the UN flag, for example-and the promulgation of the rule is
unclear. There are unquestionably many symbols in international relations, and they have an
impact, but symbols of international authority in the act of promulgating rules (like the Queen
of England giving assent to an act of parliament) seem rare. Second, the rules-for example,
UN troops should not be shot-also have other sources of legitimacy, such as the command of
political and military authorities of the states who agreed to the introduction of the UN forces
in the first place.
In addition, Franck notes the existence of second order rules-rules that validate rules-
in the international system. He argues that the rule validating treaty obligations should be
regarded as an incident of status in the international system, rather than explained by refer-
ence to consent. This seems fine, if tautological. We all agree that, as an empirical matter,
treaties are observed in good faith just like the Vienna Convention states. For me the best
explanation of this phenomenon is that it serves some combination of short-term and long-
term interests of the parties, either in the subject-matter of the particular norm, the treaty in
general, or treaties in general. To explain why a state is obligated to observe a treaty as a
matter of law can, in my view, best be answered by reference to the political theory of the
respective states-decision by representatives of the people, command of the representative
of Allah, or whatever.
That would explain treaty compliance, but not the continued legal obligation of a treaty if
a state clearly violates it. What is needed is an explanation of why a violating state should be
held legally responsible-in damages, reparations, restitution, or whatever remedy is appro-
priate. Here, too, municipal legal and political theory can supply the rationale. Governments
are frequently held responsible by their societies for breaches of obligation. Treaty obligation
need be treated no differently than constitutional, administrative, or contract obligation.
factor inducing a decisionmaker to follow a rule contrary to her short-
term interest is her acceptance of the process by which the rule was
promulgated and respect for the institutions that produced it. Thus, in
Franck's example of the United States military's agreement not to inter-
dict the introduction of Silkworm missiles into Iran because of the in-
ternational laws of war, I would guess that the officer making that
decision was influenced by respect for the treatymaking process and the
political authority (and power) of the Senate and Congress, as well as
the generalized interest in maintaining the overall system that would
almost always be present in this situation.
When a person makes an international law claim, she is not only
invoking self-interest, fear of possible sanctions, and an appeal to law
abiding character. The appeal may also invoke respect for powerful
political institutions-the President, Senate, and House-that have en-
dorsed the norm and for accepted political theory. This approach to
legitimacy will vary according to culture. Some societies are more dedi-
cated to legalism and the "rule of law" than others. One might expect
a greater receptivity to international law claims in bureaucratic govern-
ments within that tradition than in, say, China or Zaire. My claim that
international law compliance may depend on acceptance of its legiti-
macy, which in turn can be enhanced by its domestication, may be diffi-
cult to prove empirically. In any situation several factors are likely to
contribute to international law compliance, including the use of force
by governments and self-interest. However, there is no orderly en-
forcement system, so that the availability of sanctions in any given situa-
tion is highly uncertain. Self-interest may superficially provide a more
powerful explanation than legitimacy for international compliance.' 1 5
However, self-interest turns out to be either inadequate to explain
some compliance behavior (such as the U.S. decision not to block
transit of Cuban aircraft) or to be so broad that it explains nothing. As
the "self-interest" of governments and government officials is charac-
terized at higher and higher levels of generality-for example, ex-
panding the U.S. "self-interest" in the above example from an interest
in transiting Cuba, to an interest in transiting other states, to an inter-
est in maintaining the overall air law regime-the concept becomes ex-
tremely elastic and ends up explaining any example of compliance
behavior. Moreover, there are many different self-interests, within as
well as among states. Conflict among them can be resolved in different
and sometimes unpredictable ways. One could always find someone's
self-interest served by any given course of compliance behavior.1 16 It
115. Hyde has questioned using legitimation to explain compliance, which he argues can
better be explained by reference to sanctions and self-interest. See Hyde, supra note 93. His
point seems unpersuasive because the concept of self-interest is itself problematic.
116. For other refutations of reliance on self-interest, as distinguished from law, as an
explanation of behavior, see MARK KELMAN, A GUIDE TO CRrICAL LEGAL STUDIEs 264-68
(1987); Robert W. Gordon, CriticalLegal Histories, 36 STAN. L. REV. 57, 74 (1984).
February 1990] INTERNATIONAL LAW AND CLS 843
therefore seems more precise and more persuasive to explain compli-

ance by reference to a sense of law's legitimacy, which in turn can best
be explained in terms of domestic political factors.
Finally, some might argue that by domesticating international law I
have destroyed the value of the enterprise. For example, by making
international law domestic it is always possible for a state to escape the
obligations of international law simply by changing its domestic law.
International law then becomes whatever states choose to do; the no-
tion of law collapses into politics and behavior. Such a critique, how-
ever, is not as powerful as it might seem because it fails to take account
of the extent to which state behavior is initially (and normally) shaped
by law. Behavior does not exist in a pristine form untouched by law
until it somehow runs against a legal barrier. 1 7 That critique is merely
another manifestation of the rigid separation of law and politics. It also
neglects the formation and routine implementation process which
structures state behavior in compliant forms. Under my domestic ap-
proach, the international law enterprise remains as important as ever,
notwithstanding some deviations from its norms. Most behavior would
regularly be "governed by the law" under a domesticated conception of
international law for the reasons specified above.
The critique also assumes that international law may provide objec-
tive rules that may exist outside state behavior. But, as Kennedy dem-
onstrates, that is a false notion. Still, international actors, like the
World Court, intergovernmental arbitrators, and international civil ser-
vants, as well as international law commentators, can come up with rea-
sonably predictable conclusions of law in a wide variety of situations. If
international law is conceptualized as domestic law, what happens to
the work product of these people?
One answer might be that most international law is applied (or sub-
verted) in a domestic context, so that we can simply ignore the interna-
tional actors because they are few in number and unimportant in actual
practice. That will not seem very satisfying to the international law pro-
fession, and also seems shortsighted in light of the growing interdepen-
dence that will increase the number and importance of international
institutions.
Another answer might be that these "international" actors really
only apply their own domestically conditioned versions of international
law, so recharacterizing international law through a domestic prism
simply reflects reality. For example, when parties select an arbitrator,
they do not ignore the influence of the background, education, and out-
look of the persons considered. National arbitrators tend to apply pa-
rochial versions of law and come out in favor of their own state's
positions. A Peruvian official would likely take a dim view of the "inter-
117. Cf Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. MIcH.J.L. REF.
835 (1985).
national minimum standard" in an expropriation case. And it seems
predictable that European arbitrators would not accept radical views of
state responsibility, as illustrated by the experience of the Iran-U.S.
Claims Tribunal and the Libyan expropriation arbitrations. 118 Simi-
larly, arbitrators on the Hague Tribunal established by the Algerian Ac-
cords seem generally to sympathize with their government's
arguments.' 19 Indeed, the reluctance of newly independent states to
accept the idea of international adjudication and arbitration, including
the World Court, has been attributed to the domination of those insti-
tutions by Europeans and the expectation that Eurocentric rules would
120
be applied to the detriment of the Third World.
The recent behavior of the U.S. government also reflects a recogni-
tion of this reality. In recent years the United States has submitted two
disputes to the World Court, using an alternative procedure that em-
ploys small panels in effect selected by the parties, rather than adjudica-
tion by the entire multicultural court. 12 1 Thus disputes with Italy and
Canada were decided by congenial judges. 12 2 In like manner the U.S.
and the U.S.S.R. have adopted the same approach in their joint effort to
23
expand use of the Court.'
This practice reflects the underlying reality that even international
judges and arbitrators carry with them national, cultural, and profes-
sional perspectives that inevitably influence their decisions. Neverthe-
less, this answer is not fully satisfactory. Judges, arbitrators, and other
international actors do not automatically follow a parochial policy.
There is some element of objectivity in their behavior. 124 The interna-
118. John R. Crook, Applicable Law in InternationalArbitration: The Iran-U.S. Claims Tribunal
Experience, 83 AM.J. INT'L L. 278 (1989); Robert B. von Mehren & P. Nicholas Kourides, Inter-
national Arbitrations Between States and Foreign Private Parties: The Libyan Nationalization Cases, 75
AM.J. INT'L L. 476 (1981).
119. For examples of this sympathy, see generally the eighteen volumes of the Iran-
United States Claims Tribunal Reports (1983-1989).
120. Manohar L. Satin, The Asian-African States and the Development of InternationalLaw, in
MULTICULTURAL WORLD, supra note 34, at 126.
121. 1987-1988 I.CJ.Y.B. 136 (1987) (Italy-U.S.); 1984-1985 I.CJ.Y.B. 159 (1984)
(Canada-U.S.).
122. 1987-1988 I.C.J.Y.B. 136 (1987) (Italy-U.S.); 1984-1985 I.C.J.Y.B. 159 (1984)
(Canada-U.S.).
123. See Paul Lewis, U.S. and the Russians Agree to Bigger World Court Role, N.Y. Times, Aug.
7, 1989, at A5, col. 1.
124. Professor Franck has elaborated the barriers to impartial third-party decisionmak-
ing. See THOMAS M. FRANCK, THE STRUCTURE OF IMPARTIALITY (1968). No one is impartial in
the sense of acting without reference to cultural, social, economic, psychological, and moral
influence. Nevertheless, the indeterminacy that follows from this truism can easily be over-
stated. Law limits thinking about choices. Even the outcome of particularly legal disputes can
in fact be predicted with considerable, if not complete, regularity, especially within particular
societies. Decisionmakers can be free of personal or national interest in the issue before
them. Their discretion can also be constrained by institutional structures, such as the disci-
pline of being overruled by superiors and professional self-restraint. These constraints vary
significantly with cultural and national political context, but are enhanced by association with
transnational subcultures such as those which unite air traffic controllers, fishing conservation
officials, and antitrust law enforcers.
tional rule of law is not a sham.

The most persuasive answer to the critique of domestically con-
ceived international law is that in many, even most, situations there
would be transnational agreement on the applicable rule of law. In
some situations a genuine transnational subculture deals with particular
functions, such as diplomacy, civil aviation, and monetary affairs.
These people are likely to have contacts with counterparts abroad and
be especially sensitive to claims involving the integrity of their particu-
lar regime. These situations produce genuinely universal norms. In
other situations there may be generally accepted norms, at least at a
high level of abstraction, so that the overlap among national concep-
tions of international law is broad enough (or the problem sufficiently
insignificant) that states would be prepared to accept a decision on the
basis of a general formulation, such as the "general principles of law
accepted by civilized nations." In areas like terrorism, human rights,
and environmental regulation, on the other hand, the overlap may be
slight. But the force of observance is weak, so exposing the weak viabil-
ity of the international law enterprise in these areas is no vice. That
does not mean that the advocacy of human rights or environmental
concerns should be subordinated. It means that the rhetorical ap-
proach should be adjusted to take account of the opposition to and the
theoretical weakness of the claims in those areas. We need to figure out
how to strengthen the political forces favoring the desired objectives,
instead of engaging in futile law-talk.
Domesticating international law provides a theoretical framework
that would enhance its legitimacy and hence its persuasiveness. Rhe-
torical strategies must be tailored to culture and subculture. They must
take into account local political traditions, particular bureaucratic inter-
ests, and the rich variety of cultural contexts, especially the critically
important domestic political context in which argument normally seeks
to persuade.
JOHN KAPLAN

International Law, World Order, and Critical Legal Studie

Uploaded by

Copyright:

Available Formats

You might also like

International Law, World Order, and Critical Legal Studie

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

International Law, World Order, and Critical Legal Studie

Uploaded by

Copyright:

Available Formats

DATE DOWNLOADED: Sat Nov 19 12:09:45 2022

SOURCE: Content Downloaded from HeinOnline

Bluebook 21st ed.

ALWD 7th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 9th ed.

OSCOLA 4th ed.

International Law, World Order, and

AN INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW: A POLICY-

I. POST WORLD-WAR II REALISM AND THE NEW HAVEN SCHOOL

30. Chen, p. 299.

(2) The inner orders of traditional non-Western polities are sustained

37. Chen, p. 21.

proach shows that legal decisions involve choice. Unfortunately, it

42. Falk, p. xiv.

central guidance" 47 and communitarian organization. 48

47. See, e.g., Falk, p. 5.

II. THE CRITICAL LEGAL STUDIES (CLS) RESPONSE

To Professor David Kennedy, the post-World War II abandonment

56. Kennedy, supra note 13, at 4.

foreign policy to rest on an idealistic and inaccurate view of the world.

Instead he examines standard international law doctrine and argument

within arguments, judicial opinions, and treatise statements of rules.

73. Kennedy, p. 32.

77. Kennedy, p. 117.

trine he was not a Liechtenstein "national." In reaching its conclusion,

79. Kennedy, p. 191.

good requires the acquiescence of national sovereigns to international

81. Kennedy, p. 197.

account of his experience. Hoping or expecting to find a "daring act of

tivity of the sovereign is present-was always already present-in the purposes. By

90. Kennedy, p. 220.

III. INTERNATIONAL LAW, SELF-INTEREST, AND LEGITIMATION OF STATE

A quick look at the "rules" of international law shows why govern-

V. THE DOMESTICATION OF PUBLIC INTERNATIONAL LAW

One of the most fundamental assumptions embedded in interna-

Like the positivists before them, contemporary theorists from McDou-

96. Id. at 426.

cally identical treaty norms in different national courts, even in

violated international law," rather than "You must pay compensation

therefore seems more precise and more persuasive to explain compli-

tional rule of law is not a sham.

You might also like