The Rocky Shoals of International Law

National Interest, The, Winter, 2000 by David B. Rivkin Jr., Lee A. Casey

ALTHOUGH international law has always been a consideration for American foreign policymakers, it has rarely commanded the focus of their attentions. Under the next president, this will have to change. Since the Cold War's end, a number of international organizations, human rights activists and states have worked to transform the traditional law of nations governing the relationship between states into something akin to an international regulatory code. This "new" international law purports to govern the relationship of citizens to their governments, affecting such domestic issues as environmental protection and the rights of children. Among other things, it would: nearly eliminate the unilateral use of military force; create the unattainable requirement of avoiding all civilian casualties in combat; promote the criminal prosecution of individual state officials by the courts of other states and international tribunals; and permit--or even require--international "humanitarian" intervention in a state's intern al affairs. Recast as such, international law constitutes a real and immediate threat to U.S. national interests.

The impetus for extending the reach of international law stems from both our allies and our adversaries, who have chosen to use it as a means to check, or at least harness, American power. While each group has different strategic goals, from the perspective of both, the great "problem" of international affairs in the post-Cold War world is the unchallenged military, diplomatic, economic and even cultural predominance of the United States. [1] Our global antagonists, particularly China, would like to see the United States disengage from world affairs. For our allies, who continue to depend far too much on U.S. military might to wish for a new American isolationism, the great danger has become American "unilateralism"--an all-purpose term for U.S. action not sanctioned by the "international community." They do not want to prevent U.S. global engagement; they want to influence and control it.

Both our allies and our adversaries understand the value of international law in achieving their ends. Law and its rhetoric have always played a far more important role in the United States than in almost any other country. We are a nation bound together not by ties of blood or religion, but by paper and ink. The Declaration of Independence itself was, at its heart, an appeal to law--the laws of nature and of nature's God--to justify an act of rebellion against the British Crown. As Alexis de Tocqueville wrote in the early days of the American republic:

[t]he influence of legal habits [in the United States] extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings. [2]

Tocqueville was clearly prescient. Today almost every key policy issue in the United States is framed as a legal question. Law is our genius and our Achilles' Heel. If the trends of international law in the 1990s are allowed to mature into binding rules, international law may prove to be one of the most potent weapons ever deployed against the United States.

The good news is that international law, properly configured, should not be viewed as a burden for our foreign policy. Rather, it can function as a positive force, capable of promoting a more stable international environment and advancing our national interest. As the world's pre-eminent power, we have both the greatest opportunity and the most pressing need to shape international law. To do so successfully in the years ahead, though, will require a keen appreciation of how international law evolved over time and of what specific legal problems have confronted American foreign and defense policy over the last decade. Moreover, international law imperatives will have to be integrated into American statecraft. For just as war is too important to be left to the generals, international law cannot be left solely to the lawyers.

The Assault on the Westphalian Order

THE CURRENT international order, in which the most important actor is the independent nation-state, dates from the 1648 Peace of Westphalia, which ended Europe's religious wars. Traditional international law, better described as the "law of nations", was built around this system. It was defined in 1758 by one of its early scholars, Emerich de Vattel, as "the science of the law subsisting between nations or states, and of the obligations that flow from it."

This law developed over time, primarily by the actual practice of states interacting with one another, and had little, if anything, to do with the relationship between citizens and their own governments. For this reason, the law of nations accommodated widely divergent domestic political systems, ranging from absolute monarchies to authoritarian and totalitarian regimes to democracies. It was not, moreover, enforceable through any regular legal or judicial process, but only by political means--up to and including war. In this manner, international law, which lacked the legitimacy enjoyed by law made by an elected and accountable legislative body, was fully compatible with the principles of self-government upon which the American republic was founded. Indeed, the Constitution itself recognizes the existence of the law of nations, and specifically gives Congress the authority to define offenses against that law.