In Fear of International Law

The thesis of this paper is that governments of some otherwise enlightened states are increasingly fearful of acknowledging the restraints imposed on them by existing international law. They are also reluctant to enter into new commitments by way of international conventions that would expand the reach of international law. The paper asks whether these fears are based on a true understanding of international law or on some distorted view of it. It will draw comparisons and some contrasts between Australia and the United States in their reactions to a number of recent events as well as to some enduring situations of contemporary relevance. Had time (and the limits of my research) permitted, one might also have examined public attitudes toward international law in China, Japan, and Russia in this context, where similar fears appear to be entertained. France, Germany, Italy, and the United Kingdom, also enlightened states, appear by contrast to belong to a group more dedicated to international law. As Robert Kagan has recently remarked, the experience of two world wars at close quarters, and the formation of the European Union, have made the European countries more dedicated to process, where the United States is more interested in results.¹

I. The Nature of International Law

As the Latin adage has it, ubi societas ibi jus: "where a society exists, law exists also." It is a natural consequence of men and women living in society that they must necessarily be governed by rules. Whether those rules are just or even rational is another question. As Sir Thomas More, King Henry VIII's chancellor, and revered now as a martyr and saint, once declared, it is better to have bad law than no law at all. A reminder of this is the near anarchy that has prevailed in recent times in such places as Somalia, Rwanda, and Liberia, where any idea of civil society broke down.

We date the emergence of a clear concept of a society of nations bound by international law to the recognition of the independent states of Europe in the Peace of Westphalia, 1648, following the end of the wars of religion. International law is thus a relatively new phenomenon. It is dynamic in nature as the rules necessarily emanating from the fact of states living in society are made more numerous and complex in order to deal with changing circumstances and new needs. Moreover, in addition to the rules found necessary in any society, a whole host of new rules has come into existence as the result of political efforts to transform international society into an international community.² The primary reflection of this transition from society to community lies in the creation of the League of Nations after the First World War and the United Nations (U.N.) after the Second World War. Yet some nations stood aside from the former, notably the United States, or later withdrew from it. They feared a diminution of their sovereignty. Even today, deep-seated reservations are held in certain influential quarters in both Australia and the United States in relation to the United Nations. There are also new areas of law developing in what has been called the international law of cooperation, such as in the regulation of trade, the protection of natural resources, and the control of the environment.

In order to evaluate this fear, it is important to have a clear view of the sources of international law. As confirmed in article 38 of the Statute of the International Court of Justice, those sources are: (a) treaties, conventions, and other forms of international agreement between states that bind them (contractually) in their relations; (b) customary international law based on general state practice; (c) general principles of law common to national legal systems; and (d) judicial decisions of international and national courts and tribunals and the opinions of learned writers, as subsidiary sources of law.

It can be seen that international law is essentially a voluntarist system of law. The first source is most obviously voluntarist. No state is obliged to enter into a treaty with any other state, but if it does so it accepts...