O'Connell, Mary Ellen - The Power and Purpose of International Law - Insights From The Theory and Practice of Enforcement-Oxford University Press (2011)

The Power and Purpose
of International Law
Mary Ellen O’Connell
Insights from the Theory and Practice of
Enforcement
1
1
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O’Connell, Mary Ellen, 1958–

The power and purpose of international law: insights from the theory and practice of
enforcement/Mary Ellen O’Connell.
p. cm.
Includes bibliographical references and index.
ISBN 978–0–19–536894–9 (alk. paper)
1. International law. I. Title.
KZ1242.028 2008
341—dc22
2008009320
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To
My teachers
Especially Sir Elihu Lauterpacht, Q.C., K.B.E., and
Louis Henkin
Who gave me my first jobs in international law
My parents
John and Judy O’Connell
My husband
Peter Bauer
And my students—past, present and future

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Contents
Acknowledgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Abbreviations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Part I. Enforcement Theory . . . . . . . . . . . . . . . . . . . . . . . 17

1. Classical Enforcement Theory. . . . . . . . . . . . . . . . . . . . . 19
2. Compliance Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3. New Classical Enforcement Theory . . . . . . . . . . . . . . . . 99
Part II. Enforcement Practice. . . . . . . . . . . . . . . . . . . . . 151

4. Unilateral Armed Measures. . . . . . . . . . . . . . . . . . . . . . 153
5. Collective Armed Measures. . . . . . . . . . . . . . . . . . . . . . 193
6. Unilateral Countermeasures . . . . . . . . . . . . . . . . . . . . . 229
7. Collective Countermeasures . . . . . . . . . . . . . . . . . . . . . 265
8. International Court Enforcement . . . . . . . . . . . . . . . . . 295
9. National Court Enforcement. . . . . . . . . . . . . . . . . . . . . 327
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Acknowledgments
T his book was developed over many years through conversations with
friends and colleagues and with the support of several institutions.
I would like to express my warmest thanks to, among others, the International
Law and Theology Working Group of the Center for Theological Inquiry,
Princeton Theological Seminary, under the direction of William Storrar;
Notre Dame Law School, especially Gerard Bradley, John Finnis, and
Robert Rodes; The Ohio State University Moritz College of Law, especially
John Quigley; The Ohio State University Mershon Center for the Study of
International Security under the direction of Richard Herrmann and
Richard Ned Lebow; Ludwig Maximilian Universität Institut für
Völkerrecht under the direction of Bruno Simma; and most of all, the
Lauterpacht Research Centre for International Law, University of
Cambridge, under the direction of Sir Elihu Lauterpacht.
Librarians, research assistants, and office assistants have also been
indispensible, including Stephan Fuchs, Caoilte Joy, Andrew Mason, Patti
Ogden, Benjamin Ogg, Erin Watkins, Michelle Whetzel-Newton, and
Lenore VanderZee.
No previous publications have been reprinted in the book but some

sections do borrow research and ideas from the following articles and
book chapters by the author: The Counter Reformation of the Security
Council, 2 J. Int’l L. & Int’l Rel. 107 (2005); The United Nations Security
Council and the Authorization of Force: Renewing the Council Through Law
Reform, in The Security Council and the Use of Force, Theory and
Reality—A Need for Change? 47 (Niels Blokker & Nico Schrijver eds.,
Martinus Nijhof, 2005); Controlling Countermeasures, in International
Acknowledgments
Responsibility Today: Essays in Memory of Oscar Schachter 49

(M. Ragazzi ed., Martinus Nijhof, 2005); Re-leashing the Dogs of War,
Review of Christine Gray’s International Law and the Use of Force, 97 AJIL
446 (2003); Debating the Law of Sanctions, 13 EJIL 63 (2002); Evidence of
Terror, 7 J. of Conflict and Security Law 19 (Oxford University Press,
2002); The Myth of Preemptive Self-Defense, Aug. 6, 2002, available at http://
www.asil.org/taskforce/oconnell.pdf; The UN, NATO, and International Law
After Kosovo, 22 Hum. Rts. Q. 57 (The Johns Hopkins University Press, 2000);
The Failure to Observe Provisional Measures of Protection in the Case of Bosnia
v. Yugoslavia, Walther-Schücking-Kolleg, No. 15 (Institut für Inter-
nationales Recht an der Universität Kiel 1994); The Prospects for Enforcing
Monetary Judgments of the International Court of Justice: A Study of
Nicaragua’s Judgment Against the United States, 30 Va. J. Int’l L. 891
(1990).
x The Power and Purpose of International Law

Abbreviations
AJIL American Journal of International Law

ASIL American Society of International Law
EJIL European Journal of International Law
ILM International Legal Materials
LNTS League of Nations Treaty Series
RIAA Report of International Arbitral Awards
S.Ct. United States Supreme Court
UN GAOR United Nations General Assembly Official Records
UN SCOR United Nations Security Council Official Records
UNTS United Nations Treaty Series
UN Y.B. United Nations Yearbook
UST United States Treaty Series
ZaöRV Zeitschrift für auslandisches öffentliches Recht und
Völkerrecht
Insights from the Theory and Practice of
Enforcement
Introduction
I n June 2004, the Wall Street Journal reported on the existence of a long,
detailed draft memorandum on interrogation prepared by lawyers in
the administration of United States (US) President George W. Bush.1 The
memo concluded that the president had the legal authority to permit the
use of torture during interrogation.2 Over the next two years, hundreds of
pages of memoranda on torture, secret detention, the Geneva Conventions,
and other aspects of the international law of armed conflict and human
rights came to light.3 A number of passages in the memos quickly became
infamous: One memo employed a macabre definition of torture, confin-
ing it to only those acts of interrogation that inflict the pain of organ fail-
ure or death.4 This definition and much of the analysis in the memos seriously
misconstrue international law and, as a result, supplied badly flawed advice.
Nevertheless, the memos are also evidence of the extraordinary lengths to
which the Bush administration’s legal teams believed they needed to go to
evade international law. They did not simply ignore international law; they
attempted to circumvent it. Their memos at least succeed in demonstrating
that international law has power even for the sole remaining superpower.
1
Jess Bravin, Pentagon Report Sought to Justify Use of Torture, Wall St. J., June 7, 2004, at A1.
2
Working Group Report on Detainee Interrogations in the Global War on Terrorism:
Assessment of Legal, Historical, Policy and Operational Considerations (Apr. 4, 2003),
reprinted in The Torture Papers, The Road to Abu Ghraib 286, 302–307 (Karen J.
Greenberg & Joshua L. Dratel eds., 2005).
3
In addition to the Torture Papers, see also various websites such as the National
Security Archive, http://www.gwu.edu/~nsarchiv/; the Center for Constitutional Rights,
http://www.ccr-ny.org; and Human Rights Watch, http://www.hrw.org.
4
Jay S. Bybee, “Standards of Conduct for Interrogation under 18 U.S.C. §§2340-2340A”
reprinted in The Torture Papers, supra note 2, at 172, 176.
The Power and Purpose of International Law 1

Introduction
In 2005, one of the memo writers, Jack Goldsmith,5 and his former
colleague from the University of Chicago, Eric Posner, published a book
entitled The Limits of International Law.6 It is a challenging, ambitious
assessment of international law, incorporating techniques used by econo-
mists for understanding human behavior. The use of this methodology—
rational choice—quickly won the book wide attention in the United States.
Among the book’s chief conclusions is that:
[t]he international lawyer’s task is like that of a lawyer called

in to interpret a letter of intent or nonbinding employment
manual: the lawyer can use his or her knowledge of business
or employment norms, other documents, and so forth to shed
light on the meaning of the documents, but the documents
themselves do not create legal obligations even though they
contain promissory or quasi-promissory language.7
In other words, Goldsmith and Posner claim that international law

serves more as a set of guidelines than a set of legal obligations. It can help
states coordinate their pursuit of self-interest but has no independent pull
to compliance; it does not constrain the pursuit of self-interest. “[I]nternational
law emerges from states acting rationally to maximize their interests, given
their perceptions of the interests of other states and the distribution of
state power.”8 For these authors, there really is no such thing as interna-
tional law, only states coordinating their efforts to maximize interests.
State participation in these coordination efforts gives “traditional” interna-
tional law scholars the false impression that international law is really law
with the capacity to constrain state behavior. Goldsmith and Posner say
that what we are seeing is “a special kind of politics,” and not law at all.9 As
politics or employee guidelines, of course, it cannot bind, and they admonish,
5
Jack L. Goldsmith III, “Memorandum to Alberto R. Gonzales, Re Permissibility of Relocating
Certain ‘Protected Persons’ from Occupied Iraq”, (March, 19, 2004), reprinted in The Torture
Papers, supra note, at 367. For a thorough and devastating critique of the memo, see Leila
Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition under International
Law, 37 Case W. Res. J. Int’l L. 309, 324–338 (2006). See also infra ch. 3, at note 19.
6
Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005).
7
Id. at 203.
8
Id. at 3.
9
Id. at 202.
2 The Power and Purpose of International Law

Introduction
“we cannot condemn a state merely for violating international law.”10

The Goldsmith-Posner book provides any interested legal adviser with
an apparent basis upon which to question the binding power of interna-
tional law.
Like the torture memos, however, the book indicates how difficult
it is to simply dismiss international law as nonlaw. As will be discussed in
detail in Chapter Three, “New Classical Enforcement Theory,” of this book,
Goldsmith and Posner base their analysis on games they construct incor-
porating implausible and inaccurate assumptions about international law.
They provide case studies to bolster the outcomes of these games, but on
the actual facts of the cases, we can reach quite contrary conclusions.
International law has been treated as binding by states throughout history:
Claims are made on the basis of it; lawsuits are filed, and enforcement
measures applied. The authors do concede that although international
law may not be law as a general matter, some aspects of it are law,
namely, certain types of bilateral treaties.11 Obviously, the US wants its
own bilateral treaties honored, and to have the right to enforce them
if violated. The authors would not wish to undermine such agreements.
But it is not possible to have one’s cake and eat it, too. If bilateral treaties
are enforceable as “real law,” it is because international law in general
is accepted as law on the basis of its general theories of obligation, sources,
and processes for application and enforcement. There is no special
theory of obligation, or of sources, or special processes just for bilateral
treaties.
Goldsmith and Posner are hardly the first to attempt to limit the
importance of international law. There is a history of scholars attempting to
free sovereigns or sovereign states from the rules of the world community.12
Hugo Grotius, the seventeenth-century Dutch scholar and diplomat cred-
ited with founding modern international law, responded vigorously to the
theory presented by Machiavelli that sovereigns are above the law. In the
Grotian worldview, law is as present and important for the rulers of nations
in their relations as for individuals within nations.13 Grotius saw law for
nations as a moral imperative. As Hersch Lauterpacht put it, for Grotius,
10
Id. at 199.
11
Id. at 135.
12
See infra, chs. 1 & 2.
13
Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1,
31 (1946).

Introduction
“the hall-mark of wisdom for a ruler is to take account not only of the
good of the nation committed to his care, but of the whole human race.”14
It was also a practical matter: “Such, in his opinion, is the impact of eco-
nomic interdependence or of military security that there is no state so
powerful that it can dispense with the help of others.”15
To deflect the compelling insights of Grotius and his followers, later
scholars relied on the theory of the nineteenth-century British legal
scholar, John Austin, who opined that international law is only a type of
positive morality and not law because its rules are not the commands of
a sovereign backed by sanctions.16 This is the view of John Bolton, for
example, the US ambassador to the United Nations from 2005 to 2006.17
Goldsmith and Posner, however, distinguish international law from
morality. 18 They imply that compliance with international law is not even
virtuous, let alone obligatory. Their conclusions about international law
are far more reminiscent of Hans Morgenthau than Austin or Bolton.
Morgenthau was the highly influential German-American theorist
of international law and relations, who spent 1943 to 1971 also teaching at
the University of Chicago.19 Morgenthau, like Goldsmith and Posner,
believed that international law could be binding on the United States in
some areas. He thought the United States should comply with interna-
tional law in the day-to-day aspects of international relations, such as
transportation, diplomacy, and treaty-making, but in questions relating to
the pursuit of national (military) power, US leaders must not consider
themselves bound.20 Morgenthau had a narrow view of human nature. He
believed human beings were compelled by their nature to pursue power
and that such a pursuit overrides other pursuits. Morgenthau stressed
his view that international law lacks effective sanctions to coerce compli-
ance, and, therefore, can impose no real price for noncompliance. As a
consequence, American leaders could and should pursue power free of
concern about international law.
14
Id.
15
Id.
16
John Austin, The Province of Jurisprudence Determined 141-142 (2000).
17
See e.g., John R. Bolton, War and the United States Military: Is there Really ‘Law’ in International
Affairs? 10 Transnat’l L. & Contemp. Probs. 1 (2000). See also infra ch. 3, note 5.
18
Goldsmith & Posner, supra note 5, at 185.
19
Christoph Frei, Hans J. Morgenthau: An Intellectual Biography 74 (2001).
20
Hans Morgenthau, Politics Among Nations 211, 229–230 (1948).

Introduction
Goldsmith and Posner apparently share Morgenthau’s narrow view

of human nature. They do not explicitly say that people pursue power.
They limit human pursuits to the sole one of “maximizing interests.” They
do not state explicitly what interests we all maximize, though their book is
rooted in the world of economic analysis and finds law in areas such as
trade, implying that the interest we try to maximize is wealth or utility.
The authors do not discuss the sanctions of international law to the extent
or as explicitly as Morgenthau. Still, they point out that international law’s
sanctions are, in their opinion, less effective than domestic law sanctions:
“What is the anomaly for domestic law is the norm for international law.”21
In their case studies, they avoid using the terms sanctions or enforcement
measures, even though it is quite plain that those would be the accurate
terms.22 Instead, they call actions in response to law violations reprisals or
pressure.23 So, like Morgenthau, to their many arguments against interna-
tional law, they add the argument that international law sanctions are
weak.
Morgenthau’s attack on international law came not long after the
end of the Second World War when the ideas of Lauterpacht and Hans
Kelsen were in the ascendant. In 1946, Lauterpacht wrote the important
article, “The Grotian Tradition in International Law.” In it, he contrasted
the constrained view of human nature held by Machiavelli and Hobbes
with that of the great founder of international law, the seventeenth-cen-
tury scholar and diplomat, Grotius. “For Machiavelli and Hobbes man is
essentially selfish, anti-social, and unable to learn from experience. . . .
[T]he basis of political obligation is interest pure and simple. . . . This is the
typical realistic approach of contempt towards the ‘little breed’ of man. On
that line of reasoning there is no salvation for humanity but irrevocable
subjection to an order of effective force. . . .”24
By contrast, Lauterpacht writes of Grotius’s understanding of what
impels human action. It is the “desire for society—not for society of any
sort, but for peaceful and organized life according to the measure of his
intelligence.”25 “In fact, much of the appeal and potentialities of the Grotian
21
22
See infra, ch. 3.
23
Id.
24
Lauterpacht, supra note 13, at 24–25.
25
Id. at 24.

Introduction
tradition lies in the lesson which can be drawn from his conception of
the social nature and constitution of man as a rational being in whom the
element of moral obligation and foresight asserts itself triumphantly over
unbridled selfishness and passion, both within the state and in the rela-
tions of states.”26
Kelsen, too, revived concepts associated with Grotius, who first
wrote comprehensively of international law as law superior to the various
national communities and enforced through the sanctions of war and
reprisals. For Kelsen, as for Grotius, law’s authority to bind even sovereign
states is grounded in our belief in the authority of law.27 The sanction sig-
nals the rule and works at the margin to support law compliance. Kelsen
presented himself as a positivist, but in his basic understanding of the
nature of law, Lauterpacht rightly points out that he, in fact, incorporated
natural law explanations as to the authority and aspirations of interna-
tional law.28
Kelsen, an Austrian, had defended these ideas in Germany during
the rise of the Nazis at the same time his colleague at the University of
Cologne, Carl Schmitt, was seeking to promote his career by working on
behalf of the Nazis and against international law.29 (Lauterpacht, also
Austrian, left for Britain in 1923.) Among other ideas, Schmitt had devel-
oped the concept of Grossraum which incorporated an asserted right of
Germany to use force to create a central European order.30 By the end of
the Second World War, Schmitt was discredited for his intellectual and
legal work on behalf of the Nazis. Morgenthau, like Kelsen, had been
forced out of Germany as a Jew, but nevertheless admired Schmitt’s ideas.31
Like Schmitt, Morgenthau attacked the concept that the United States was
bound to comply with international law in ultimate questions of power—
an idea central to Kelsen’s writings. Morgenthau attacked this concept, in
part, by exposing what he saw as the weak sanctions of international law.
By the 1960s, Morgenthau had a loyal following among American
international relations scholars who shared his skepticism regarding
international law. Louis Henkin of Columbia University offered a response
26
Id. at 26.
27
Arthur Nussbaum, A Concise History of the Law of Nations 280–281 (rev. ed. 1954).
28
Lauterpacht, supra note 13, at 23.
29
Mark Lilla, The Reckless Mind: Intellectuals in Politics 49–53 (2001).
30
Id. at 52. See also infra ch. 3, notes 3 & 4 and accompanying text.
31
See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960, at 440–41 (2002).

Introduction
to Morgenthau and, even more, to the realist diplomat George Kennan, in

an attempt to mitigate their impact on US foreign policy to the detriment
of international law. In his book, How Nations Behave (1968), Henkin
points out the importance of international law and its benefits for the
United States. The book addresses, in particular, Morgenthau’s critique
that international law cannot bind the United States in questions of power
owing to its weak sanctions.32 Henkin famously observed that “almost all
nations observe almost all principles of international law and almost all of
their obligations almost all of the time.”33 He explained that international
law, like all law, is more than the sanction—far more: it does not rely on
“effective” sanctions for its classification as law. Henkin built his response
on the work of H.L.A. Hart, the Oxford professor of jurisprudence, and
Hart’s book, The Concept of Law (1961). Hart had set out to critique
Austin’s limited view of law, explaining how all law, including interna-
tional law, is law because of community acceptance and not fundamen-
tally because of sanctions. This was not an argument for law without
sanctions—both Hart and Henkin understood the need for sanctions in
legal systems. Henkin recognized that international law has sanctions that
impose a cost for law violation34 and that “[i]nternational ‘sanctions’ . . .
may be particularly effective in the organs for cooperation for common
welfare.”35
As Kelsen taught, war and reprisals (coercive measures short of
war) are international law’s primary enforcement tools: the sanctions of
international law.36 Other measures have been added over time in the form
of coercive measures imposed by international organizations, courts, and
tribunals. Every rule of international law is in fact backed by a sanction; if
not a specific one based in a treaty, then a general-purpose countermeas-
ure. Austin was mistaken about the lack of sanctions in international law.
What international law lacks is a compulsory system of dispute resolution
so that neutral decision-makers more consistently play a role in the
application of sanctions. International law enforcement still functions to
32
Louis Henkin, How Nations Behave 329–332 (2d ed. 1979).
33
Id. at 47.
34
Id. at 54.
35
Id. at 58.
36
Hans Kelsen, Pure Theory of Law 110 (Max Knight trans., 1967); see also Oscar
Schachter, International Law in Theory and Practice 135–186 (1995).

Introduction
a significant degree through self-judging and self-help, but with the growth
of courts and tribunals this problematic aspect of the law is diminishing.
Those critics who recognize that international law includes sanc-
tions but remain dismissive because the sanctions are weak, in fact have
no empirical basis for their view. Goldsmith and Posner, for example,
while assuming that international law’s sanctions are weaker than domes-
tic law’s, acknowledge that domestic (presumably US) traffic laws, tax laws,
and drug laws are not well enforced. They omit US immigration law,
murder laws, domestic violence laws, rape laws, child support laws, and
the vast numbers of other laws that also are only rarely effectively enforced.
Nor do they seem to recognize that regardless of the efficiency with which
law is enforced, people will still recognize the binding quality of rules.
Americans believe that the tax laws, the murder laws, and even the traffic
laws are binding. They do so for reasons other than the sure knowledge
that a policeman will arrest them if they violate these rules. Legal theorists
have assured us for decades that sanctions are not the major reason why
we obey the law. As Hart explained in response to Austin, the quality of a
rule as a legal rule does not require proof that the rules are always and
effectively enforced but rather that each obligatory legal rule is in fact
backed, directly or indirectly, by a sanction. International law’s rules have
such sanctions.
In addition, however, “[n]ations observe law, in part, for what may
be called ‘psychological’ reasons. There is an influence for law observance
in the very quality of law, in the sense of obligation which it implies.”37
More or less consciously, more or less willingly, all governments

give up some autonomy and freedom and accept international
law in principle as the price of ‘membership’ in international
society and of having relations with other nations. For that
reason, too, they accept basic traditional international law,
undertaking to do (or not to do) unto others what they would
have done (or not done) unto them.38
Thomas Franck of New York University has also written of the psy-
chological element in our understanding of what international law is and
37
Henkin, supra note 32, at 60.
38
Id. at 30.

Introduction
why it has authority. A primary rule has legitimacy if it was created through
a valid process. The process in turn is valid if it was created with state
consent. Why state consent gives validity:
cannot be demonstrated by reference to any other validating

rules or procedures, but only by the conduct of nations mani-
festing their belief in the ultimate rules’ validity as the irreduc-
ible prerequisites for an international concept of right process.
It can only be inferred, that is, from the nature of the interna-
tional system as a community of states.39
As Grotius, Kelsen, Lauterpacht, Henkin, Franck, and others indicate,

there is much about international law that transcends the material, posi-
tive acts such as consent. International law’s claim to be law is based
ultimately on belief. It contains peremptory norms, jus cogens principles,
that cannot be altered by positive acts, including the norms against
genocide, apartheid, extra-judicial killing, slavery, and torture. The third
primary source of international law rules after customary international
law and treaties is the general principles of law—which have counterparts
in principles articulated by the great jurists of classical Roman law. They
understood them as requirements or implications of reason, inspired by
the natural order of things. General principles from this category, such as
necessity, proportionality, and good faith, play an important role in regu-
lating enforcement measures.40 While most of international law is based
on positive acts of consent, ultimately the ontology and legitimacy of
international law is based on more than consent, just as it is more than
sanctions.41
39
Thomas Franck, The Power of Legitimacy Among Nations 194 (1990) (emphasis
omitted).
40
In addition to principles such as those considered to be inherent in a legal order (a natural,
necessary part), it is also widely accepted that rules found commonly in national legal orders,
such as rules on the nationality of corporations, are also general principles. See Joost Pauwelyn,
Conflict of Norms in Public International Law, How WTO Law Relates to other
Rules of International Law 124-31 (2003); see also Schachter, supra note 36, at 49–58.
41
Chapters One, “Classical Enforcement Theory,” Two, “Compliance Theory,” and Three “New
Classical Enforcement Theory,” review traditional positivist critiques of natural law theory.
These are arguments against any role for natural law in explanations of international law.
A thesis of this book is that, in general, international law scholars have never wholly rejected
natural law theory. Nor as the evidence shows was natural law completely lost from our think-
ing about national law either. See ch. 3 infra.

Introduction
Nevertheless, consent and sanctions are vital aspects of interna-

tional law, providing important evidence that the community believes in
the system. Although it is true that “[t]he essence of a legal system is the
inherent fact, based on various psychological factors, that law is accepted
by the community as a whole as binding, and the element of sanction is
not an essential, or perhaps even an important, element in the functioning
of the system,”42 one of the ways that the international community demon-
strates acceptance or belief that international law is law is through the
system for sanctioning violations.
The violation of any rule of international law may be subject to a
coercive sanction.43 These sanctions do not ensure complete compliance
with the law, as some would like, but they do play at least three other sig-
nificant roles in the establishment of international law as real law: they
play a formal role in identifying legally binding rules; they coerce at least
some violators into compliance; and, because of the first two roles, sanc-
tions play a role in “internalizing” respect for international legal rules,
thereby decreasing the need for coercive enforcement.44 Thus, sanctions
are an essential part of international law, like any legal system, but not in
the unsophisticated manner of simple police enforcement.
A community-created right to sanction noncompliance through
forceful means is a key indicator that a rule is regarded as a legal rule and
not a moral, social, or other type of rule. To allow coercive enforcement of
anything short of a legal rule would be to allow the use of force outside the
confines of law. It is to prevent just such unconstrained uses of force that
law came to be instituted in human communities.45
In addition to signaling that a rule is a legal rule, the very fact of the
sanction imparts authority to international law rules, generating respect
42
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence 215 (7th ed. 2001).
43
In the view of some, only obligatory rules are subject to sanction, not power-conferring rules.
Yet, the failure to respect a power conferred by rule is subject to sanction directly or indirectly,
as well. Therefore, the position taken in this book is that all violations of legal rules are poten-
tially subject to sanction.
44
In studies in the 1970s, Milgram was able to show that people complied with legal rules in part
because they learned the lesson to do so. They learned to respect law through school, family,
civic organizations, and the like. Respect for law and the compliance habit were internalized.
Sanctions for law violation are important in this internalization process as knowledge of what
happens when the law is violated. That knowledge is often enough without the need to actu-
ally be sanctioned. See Stanley Milgram, Obedience to Authority: an Experimental
View (1974).
45
See, e.g., Elisabeth Zoller, Peacetime Unilateral Remedies: An Analysis of
Countermeasures 4 (1984).

Introduction
without the need for the application of the sanction. As Harold Koh of
Yale University has written, international law compliance is the product of
rule internalization, too.46 He suggests that this happens if international
law rules are implemented in domestic law, enforced by domestic courts,
and administered by government agencies. In addition to all of these
things, which happen in every country in the world, international law will
share in a community’s respect for law generally. It is, after all, international
“law,” and in many countries there is a tradition of respect for interna-
tional law. Certainly that is the case of the United States.47 Some empirical
work supports the linkage between an enforcement system and the seri-
ousness with which international law rules are regarded. George Downs
has shown that governments believe that coercive enforcement is linked
to law compliance.48
Further, and related to the first two points, some international law
violators will in fact be sanctioned.49 This actual application of the sanc-
tion will coerce some violators into compliance or into providing a remedy
for noncompliance. The application of sanctions reminds others that sanc-
tions exist, which in turn, supports more voluntary law compliance. Thus,
sanctions, in a variety of ways help to ensure that international law com-
pliance is occurring on a level sufficient to consider it effective law.
Penalties or sanctions are:
required not as the normal motive for obedience, but as the

guarantee that those who would voluntarily obey shall not be
sacrificed to those who would not. To obey, without this, would
be to risk going to the wall. Given this standing danger, what
reason demands is voluntary co-operation in a coercive system.50
The majority in society must voluntarily comply with the rules for a legal
system to be maintained. Without this majority compliance, it would
46
Harold Hongju Koh, Why Do Nations Obey?, 106 Yale L.J. 2599 (1997).
47
See, e.g., Mark Weston Janis, The American Tradition of International Law: Great
Expectations 1789–1974 (2004).
48
George Downs, Enforcement and the Evolution of Cooperation, 19 Mich. J. Int’l L. 319 (1998).
49
The actual use of enforcement measures in international law is the topic of part II of
this book.
50
H.L.A. Hart, The Concept of Law 193 (1961).

Introduction
not be possible to claim that the community believes in the authority of

the law.51
Thus, general compliance, which is connected to the existence of
sanctions for law violation, is important evidence that international law is
accepted as law.52 Further evidence is found in the formal processes of law
making, which, again, are related to the existence of sanctions. As men-
tioned above, the sources of international law are positivist—treaty, cus-
tomary international law, and to some extent general principles,53 but
some general principles are grounded in natural law sources as are the
peremptory norms. Rules emanating from these sources are binding and
law violators may be sanctioned for noncompliance. Nonbinding princi-
ples are sometimes called “soft law” to indicate the expectation of compli-
ance but no right of sanction. The term is perhaps misleading in that
without the sanction, principles are not “law” at all, soft or otherwise.54
Because some aspects of international law are best explained using
natural law theory, courts and tribunals play an important role in inter-
preting these aspects, but courts are, arguably, just as vital in interpreting
and applying the rules emerging from the positive sources. Some form of
adjudicative process has been part of international law since it began with
the end of the Thirty Years’ War in Europe in 1648. The treaties that ended
that war, the Peace of Westphalia, contained elements that still comprise
fundamental components of the international legal system, including the
obligation to settle disputes through legal discourse not armed conflict.
Grotius extolled the use of arbitration as an alternative to armed conflict
in his 1625 book, On the Law of War and Peace. Several of the Spanish
Scholastics, Grotius’s predecessors, had suggested arbitration as a process
51
Id. at 196.
52
The evidence of acceptance of law’s authority is presumably greater in a system where sanc-
tions exist but are rarely used, as in the international system. Such evidence would be harder
to find in an authoritarian system where the population may obey out of fear of sanctions
rather than acceptance for law.
53
The Statute of the International Court of Justice refers to general principles of law recognized
by “civilized nations.” This may indicate to some that the only general principles are those
“posited” or found in national law. It is not clear this was the agreed meaning at the time of
the Statute’s drafting. See G. M. Danilenko, Law-Making in the International Community
173–81 (1993). But see Pauwelyn, supra note 40 for a review of theories about general prin-
ciples, today based on natural law. More importantly, the ICJ does not look to the national law
in most cases where it cites a general principle of law. See ch. 3 infra. The problematic refer-
ence to “civilized nations” is usually read out of the ICJ Statute today. See also Schachter, supra
note 36, at.
54
Jan Klabbers, The Redundancy of Soft Law, 65 Nordic J. Int’l L. 167, 168 (1996).

Introduction
to fill the gap in intercommunal relations left by the declining earthly

authority of the Pope and Holy Roman Emperor. From these early ideas,
courts have grown steadily in importance in both the theory and practice
of international law. Not only do courts today adjudicate the existence and
meaning of rules, they are playing a larger role in the proper application of
sanctions. For sanctions to be legal sanctions, not just self-help actions
of reprisal or revenge, Kelsen and Lauterpacht explained the importance
of courts in adjudicating both the wrong and the remedy.55 In addition to
courts resolving disputes among states, Kelsen was an early advocate of
courts for the purpose of holding individuals accountable for violations
of international law. Individual accountability was in line with his view
that states are led by real people, and people exercise their will, not the
state itself.56
Today, courts are generally available for both the interstate resolu-
tion of disputes and individual accountability. Thanks in particular to the
World Trade Organization’s (WTO’s) Dispute Settlement Understanding
(DSU), ever more sophisticated principles for the application of sanctions
are being developed and applied. International criminal courts are now
active in several places in the world. Dinah Shelton, of George Washington
University, writing on the hierarchy of norms in international law, has
described the dynamic role of courts in 2006, the 100th year of the American
Journal of International Law and the American Society of International
Law. In decisions concerned with finding jus cogens norms, she points out
that the European Court of Human Rights and the Inter-American Court
of Human Rights:
considerably shift lawmaking from states to international

tribunals, which henceforth may be asked to assess human
dignity and international public order to determine which
norms have a superior status that can override state consent
(or lack thereof) and invalidate or deny effect to conflicting
norms, including decisions of the UN Security Council.57
55
Hersch Lauterpacht, The Function of Law in the International Community 424 (1933).
56
Hans Kelsen, Peace Through Law 84–85 (1944).
57
Dinah Shelton, Normative Hierarchy in International Law, 100 AJIL 291, 312–13 (2006).
See also a discussion of the European Union Court of First Instance making the same point.
Case T-315/01, Kadi v. the Council and the Commission, 2005 E.C.R. II-03649.

Introduction
With the growth of courts, international law is becoming more

sophisticated with greater capacity to mitigate the world’s problems. These
courts are a visible sign of the existence of international law and the inter-
national community’s wide acceptance of it. It is perhaps not surprising
that just at this time a new attempt to undermine the authority of interna-
tional law has appeared in the form of The Limits of International Law, but
if the authors of this and other attacks on international law believe they are
acting in the interest of the United States, or any state, they are mistaken.
Given the nature of the problems we face in the world, undermining any
tool for the maintenance of peace and stability could not be further from
any nation’s interest. There is a long, proud and continuing history of US
support for international law and the common pursuit of global norms.58
There is no reason to abandon that tradition now, and every reason to
redouble our commitment. Even Goldsmith and Posner seem to think
that having some rules, like bilateral trade rules, is valuable. Yet, the only
way to have viable international law rules on trade, as already mentioned, is
through a general system of international law—with theories of obligation,
sources, and processes of application and enforcement. Any effort to
weaken international law only serves to undermine the prospects for
achieving an orderly world and progress toward fulfillment of humanity’s
shared goals, including prosperity. The rational and moral choice today is
to understand how international law actually works and how it can be
made to work better.59
International law has deficits, yet it persists as the single, generally
accepted means to solve the world’s problems.60 It is not religion or ideol-
ogy that the world has in common, but international law. Through inter-
national law, diverse cultures can reach consensus about the moral norms
that we will commonly live by. As a result, international law is uniquely
suited to mitigate the problems of armed conflict, terrorism, human rights
abuse, poverty, disease, and the destruction of the natural environment. It
is the closest thing we have to a neutral vehicle for taking on the world’s
most complex issues and pressing problems. International law has been
58
See, e.g., Janis, supra note 47.
59
Van Aaken points out with regret that Goldsmith and Posner never attempt to suggest on the
basis of rational choice methodology how international law could be improved. Anne Van
Aaken, To Do Away with International Law? Some Limits to the ‘The Limits of International
Law’, 17 EJIL 289, 307 (2006).
60
C.G. Weeramantry, Universalising International Law 1–3 (2004).

Introduction
attacked by postmodern critics for failing to be inclusive and for perpetu-

ating the very power advantages that hegemonic realists say it thwarts.
Other critical scholars point to the meaninglessness of all law owing to the
meaninglessness of the words we use to try to express legal concepts. These
criticisms, like those of the hegemonic realists, weaken international law
and our best means of creating a better world for all.
Such overwhelming critiques can lead to despair and retreat until
we realize that the critique is exaggerated and inauthentic. People every-
where believe in law, both domestic and international. We are able to com-
municate across and within cultures. We can search for the ways to do this
more effectively, using critique as a tool of improvement rather than an
end in itself. Indeed, the post-modernists’ call for inclusion, equality and
greater humanity in international law is having a generally positive impact.61
In the opinion of Judge Christopher Weeramantry (formerly a judge of the
International Court of Justice), the world’s problems, which he associates
with globalization, can only be addressed by an improved international law:
The inadequacies of globalisation, the paucity of its philo-

sophical base, the inability of earth resources to sustain its
requisite of continuous expansion, its monolithic nature and
the tendency it breeds of accentuating economic divisions
both domestically and globally will all combine to force upon
the scholarly community a consideration of alternatives and
out of this will emerge a new realization of the importance of
making international law a truly multicultural system draw-
ing on the richness of the universal cultural inheritance . . .
This phase is especially interesting and challenging because
the revolutionary force that will bring about this fundamental
change will come not from armed might or economic force
but from the world of scholarship. It is scholars alone who will
be able to illuminate the principles which lie at the foundation
of international law and show how universal they are. It is
scholars alone who can stimulate a wider popular perception
of these truths.62
61
See infra ch. 2.
62
Weeramantry, supra note 60, at 5–6.

Introduction
If the past gives any indication of the future, Judge Weeramantry

will be proven right. The revolutionary moments in international law have
typically come from the ideas of scholars such as Grotius, Lauterpacht,
Kelsen, and Henkin. They have often been inspired to write in response to
those who would tear down international law out of a false sense of
promoting the national interest.
Part I of this book, “Enforcement Theory,” traces the evolving
scholarship on the role of sanctions in giving power to international law.
Part II, “Enforcement Practice,” provides evidence of the actual use of
sanctions to enforce international law. The book’s general conclusion is
that sanctions play a significant—if not essential—role in why interna-
tional law has power to bind both nations and individuals. The real basis
of international law’s authority is not the sanction per se, but the interna-
tional community’s acceptance of law regardless of sanctions. Sanctions
play a role in signaling and reinforcing acceptance, but we fundamentally
accept the binding power of international law for the same reason we
accept all law as binding. Our acceptance of law is part of a tradition of
belief in higher things.63 To this tradition, we have added positivist
and legal process theory. We can now see the emergence of a new classical
theory of international law that revives the best of what has come before,
adapted to the needs of the international community today. It is
a theory that supports not the hegemony of a few, but the flourishing of
all humanity.
63
See Steven Smith, Law’s Quandary (2004).

Part I
Enforcement
Theory
Chapter 1
Classical Enforcement
Theory
I n a radical departure from other communities of the ancient world,

many early Christians were wholly committed to the nonuse of force.1
Christians would not become soldiers, would not fight back when attacked,
and did not consider the use of coercion appropriate for establishing order
in community life. Yet this was not true of all Christians. One sect, the
Donatists, actually embraced violence.2 They preyed on pacifist Christians,
robbing and beating them. It was the problem of the Donatists that inspired
Augustine, Bishop of Hippo (354–430 A.D.), to develop the ideas known
1
Stephen C. Neff, War and the Law of Nations, A General History 45 (2005); Joachim
von Elbe, The Evolution of the Concept of the Just War in International Law, 33 AJIL 665, 667
(1939).
2
See Donatists in The Catholic Encyclopedia, available at http://www.newadvent.org/
cathen/05121a.htm. The Donatists interpreted Christ’s words to Peter, that Peter put away his
sword the night of the arrest by the Romans, to mean literally “put away swords.” They did not
understand this as a teaching against the use of violence. They substituted clubs, knives,
stones, and other weapons as alternatives to the forbidden sword in conducting frenzies of
violence. Id., at 7. See also Wilhelm G. Grewe, The Epochs of International Law 108
(Michael Byers trans., rev. 2000).

Enforcement Theory
to this day as the Just War Doctrine.3 Augustine accepted the scriptural
teaching on the importance of peace, but also looked to the Greeks and
Romans, particularly Aristotle and Cicero, for arguments that force could
be used justifiably to win peace. Augustine succeeded in persuading most
Christians that using limited force to stop or punish violence was consis-
tent with the Gospel. Augustine’s thinking, as later developed by Thomas
Aquinas, on the question of whether a society should use force and, if so,
when and how became incorporated in international law, as this chapter
shows. International law still reflects their basic formula: Limited force is
permissible to achieve certain prescribed ends with the ultimate aim of
securing peace.4 The United Nations Charter (the UN Charter or the
Charter) today generally prohibits the use of force except in self-defense
or, with Security Council authorization, to preserve international peace.5
During the centuries between Augustine and the UN Charter, inter-
national law’s most important scholars—Hugo Grotius, Hans Kelsen,
Hersch Lauterpacht—have consistently taught that the use of force is jus-
tifiable in support of the law, but not as a mere tool of foreign policy. This
teaching has certainly been challenged over time by powerful leaders and
their lawyers in the attempt to get an unfettered right to use force. Theories
of absolute sovereignty and theories of international law limiting it to the
positive agreements or practices of states have supported the unrestricted
use of force. The primary scholarly response to such theories has been to
argue, in line with Augustine and Aquinas, that all human action must be
subject to higher principle. One of the fundamental reasons behind the
evolution of legal systems in communities was the desire to subject force,
both military and individual, to law.6 Law exists wherever human beings
strive to live together in peace and this is true of the international com-
munity as of any national or local community. Certain limited use of force
for the enforcement of the law is consistent with a well-functioning legal
system; force to promote the ambitions of leaders free of legal restraint is
not. Thus, the history of ideas about enforcement in international law is
3
For a discussion of Augustine’s influence on contemporary international law on the use of
force, see, Benedetto Conforti, The Doctrine of “Just War” and Contemporary International
Law, 2002 It. Y.B. Int’l L. 3, 3–4; see also Neff, supra note 1, at ch. 2.
4
Wilhelm G. Grewe, supra note 2, at 118–20; Arthur Nussbaum, A Concise History of
the Law of Nations 35 (rev. ed. 1954).
5
See infra chs. 4 & 5.
6
“[T]he alternative to force is law.” Thomas Hobbes, Leviathan 223 (C.B. MacPherson ed.,
1968)(1668).

Classical Enforcement Theory
blended with this teaching of restraint on the use of force and the superiority
of law to leadership. That second issue, the relationship of law to political
power, is also integral to the issue of international law’s reality as law.
Both Grotius, the reputed founder of international law, and Kelsen,
who brought Grotian concepts into the post World War II peace order,
understood that enforcement is an integral part of legal systems—any
legal system. Part of their presentation of international law as real law is
based on the existence of means for enforcing international law and prin-
ciples for governing those means. Their ideas built on Augustine and
Aquinas and form the basis of what is called here classical enforcement
theory.
I. Just War for Peace

The Romans, and prominently Cicero, taught that war should only be
used to fight for a just cause, eventually to achieve peace.7 Similarly,
Aristotle taught that peace was the ultimate just cause for war.8 Peace was
also among the highest Christian values, so when Augustine, as a bishop
in North Africa, was confronted by the violence being inflicted on his
community, he reasoned that achieving peace could be a just cause of war
for Christians, as it had been for Cicero and Aristotle. Augustine con-
cluded that using limited force when necessary as “a means of preserving
or restoring peace” was both moral and an acceptable action for faithful
Christians.9 In a letter to Pope Boniface I, he wrote:
Peace should be the object of your desire; war should be waged

only as a necessity, and waged only that God may by it deliver
men from the necessity and preserve them in peace. For peace
is not sought in order to [be] the kindling of war, but war is
waged in order that peace may be obtained.10
7
Marcus Tullius Cicero, On Duties (De Officiis) (bk. 1) 14–18 (M.T. Griffin & E.M.
Atkins eds., 1991); Neff, supra note 1, at 13, 32–34.
8
Von Elbe, supra note 1, at 666 n.9 (1939); citing the Nicomachean Ethics, Book X, Ch. VI,
XVII, 6 and; Politics, VII, 14.
9
Grewe, supra note 2, at 107 (Latin re-phrasing omitted).
10
I The Law of War: A Documentary History 7 (Leon Friedman ed., 1972).

Enforcement Theory
Within this broader category of fighting to restore peace, Augustine included

fighting to restore what was stolen, whether land, people, or property. He
also considered it was just to respond to wrongdoing in an attempt to pre-
vent future wrongs. War simply in the pursuit of power or revenge was
unjust,11 but war to implement the Gospel, he believed, was consistent
with the Gospel.
Augustine introduced limits on both when and how force might be
used. He presented his conception as a set of rules borrowing the Roman
law format and infusing it with the substance of Christian moral teach-
ing.12 Despite the limits Augustine placed on the causes and conduct of
war, in his wake, the idea of fighting in a just cause transformed the place
of war in Christian thinking. Fighting to preserve and promote the Church
became a noble and virtuous thing,13 and from that conception, the Just
War Doctrine created the philosophical conditions to establish a Christian
empire. It was thought that once all the world was converted to Christianity,
peace would prevail and all fighting would end. These ideas, combined
with more secular human ambitions, resulted in the Holy Roman Empire
that lasted from the crowning of Charlemagne in 800 A.D.14 to the end of
the Thirty Years’ War with the signing of the Peace of Westphalia in 1648.
During this long period, scholars continued to develop the Just War
Doctrine. The most influential just war scholar of the Middle Ages, Thomas
Aquinas (1225–1274), is credited with systematizing Augustine’s work on
just war, putting it into the form of a set of rules. Subsequent scholars have
built upon but not replaced his basic precepts.15 For Aquinas, a prince’s
right to wage war was plainly subject to higher principle. No earthly ruler
could resort to war merely to pursue policy. He had to have a just cause,
right intention, and right authority. Aquinas’s rules for war were part of
his broader conception of law. Aquinas’s just war scholarship has been
important to international law, but his explanation of law with naturalist
and positivist elements has arguably been even more fundamental. It is
through the concept of natural law that international law scholars have
11
Nussbaum, supra note 4, at 35.
12
Von Elbe, supra note 1, at 665.
13
Geoffrey Parker, Early Modern Europe, in The Laws of War, Constraints on Warfare in
the Western World 40, 42–44 (Michael Howard et al. eds., 1994).
14
15
See, e.g., Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical
Illustrations (3d ed., 2000).

been able to explain that the law is superior to the acts and policies of
leaders, even those elected to lead large and powerful nations.
Aquinas divided law into four categories: the eternal law (known
only to God and the blessed few); the divine law revealed in scripture; the
natural law (“including both the laws implied by physical nature and the
laws derived by ‘right reason’ using mankind’s inborn, natural capacity to
think”16); and the positive or human law.17 Thus, Aquinas understood that
natural law was both indicated by nature and discernible through reason.
Positive law is needed because “natural law . . . does not itself provide all
or even most of the solutions to the co-ordinated problems of communal
life” and there is “need for compulsion, to force selfish people to act rea-
sonably.”18 For a community to have peace, it is necessary to constrain
some by “force and by fear:” “Now training that operates through fear of
penalties is the kind of training law imposes. So men’s peace and virtue
required human laws. . . .”19
Aquinas’s thinking about law and law enforcement20 was challenged
by the secularization of society and “the loss of confidence in the divine-
law basis of the authority of the Church as an institution; the Reformation’s
perception of the Church as a human institution with fallible officers.”21 As
the perceived authority of the pope and emperor declined, princes engaged
in reprisals and feuds without acknowledging restraint on their right to do
so. The reprisal, “although originally designed as a means for settling pri-
vate claims, was frequently resorted to by independent princes and com-
munities to vindicate their injured rights after the paramount power of the
Emperor had de facto vanished.”22 Conditions in Italy reached a point of
violent chaos that inspired Bartolus (1314–1357) to seek legal restraint on
reprisals, since neither military nor moral constraints from the church or
empire were effective. Looking to the Roman Corpus Juris, Bartolus
extended just war restraints to the use of the reprisal. This extension flowed
naturally from Bartolus’s view that all human activity must be subject to
16
Alfred Rubin, Ethics and Authority in International Law 17 (1997).
17
M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence 107 (7th ed. 2001).
18
John Finnis, Natural Law and Natural Rights 28–29 (1980).
19
Thomas Aquinas, I Summa Theologica 289 (Timothy McDermott ed., 1991).
20
Rubin, supra note 16, at 16–18.
21
Id. at 18.
22
Von Elbe, supra note 1, at 671 (footnote omitted).

Enforcement Theory
some superior law.23 It could not be the case that violent reprisals were
unregulated.
Pierino Belli (1502–1575), too, contributed to the conception of a
superior law. In his Treatise on Military Matters and Warfare, published in
1536, Belli wrote that legal rules could restrain even in the absence of a
personal authority to implement them, and a defensive war could be
lawful even though someone in authority had not authorized it. Belli con-
tinued to support the requirement of right intention—thus, a war for a just
cause could become unjust if fought for revenge or to achieve gains beyond
the righting of the original wrong.24 Belli’s ideas are important for extend-
ing just war constraints to all armed force and for the view that even those
who had rejected the authority of the pope or emperor must still respect
constraints. Yet, eliminating those authorities introduced another problem.
How could a fair determination be made between competing parties as to
who had the just cause? By Belli’s time, Europeans had accepted norma-
tive constraints on violence, but the institutions of the papacy and Holy
Roman Empire used to implement the constraints were not replaced as
they faded from power and influence.
Scholars increasingly looked to the law itself to fill the void. The
great Spanish Scholastics, Francisco de Vitoria (1480–1546), Francisco
Suárez (1548–1617), and others, contributed to the idea of the law, rather
than human authority, as the ultimate governor of human action. They,
too, promoted the Just War Doctrine to constrain the use of war between
societies. 25 They did not, however, contribute to closing the implementa-
tion gap. Vitoria championed the position that the Just War Doctrine
extended to non-Christians.26 He, Suarez, and others began thinking about
the possibility of a secular law, based on reason, to intermediate between
divine law and municipal law. Vitoria, however, also introduced a notion
that almost proved the undoing of the Just War Doctrine. Vitoria taught
that opposing sides in the same conflict could both be waging a just war,
so long as their intentions were just. He understood that although only
one party could objectively have a just cause, the other could make a good-
faith mistake and believe it was acting in a just cause, too. Good faith could
23
Id. at 672.
24
Id. at 673–74 (footnotes omitted); Nussbaum, supra note 4, at 91–92.
25
Von Elbe, supra note 1, at 674–75; Nussbaum, supra note 4, at 79–91.
26

absolve the party of any wrongdoing in waging an objectively unjust war.27

Another Spaniard, Balthazar Ayala, went even further. He believed that
although the formalities must be kept as the Romans had taught, the rea-
sons for going to war are not relevant to its legality. Suárez considered this
absurd, but he still insisted on the ultimate authority of the pope to decide
between competing claims of justice.28 Suárez had no ready solution for
those who rejected papal authority. Some were advocating arbitration, but
Suárez did not support secular arbitration.29
Without an authority over the parties, the Italian Protestant,
Alberico Gentili (1552–1608), writing in 1593, argued strenuously that all
sides could have a just cause in the same conflict. He wrote that while:
[i]t is true, the prince is still considered as bound to examine

the justice of his cause before he engages in war; . . . whatever
the result of his decision may be, it never affects the legality of
his action, since war is nothing more than a procedural device
that may be resorted to even for the redress of a probable wrong
without exposing either party to the blame of injustice.30
For Gentili, who had taken refuge in England and taught law at
Oxford, the decision to use force was solely a matter for the ruler’s per-
sonal conscience.31 Apparently, this view of law on the use of force was
consistent with Gentili’s general view of law. According to Rubin: “[I]t is
unmistakable that Gentili accepted the notion that the law in England was
whatever the King thought it should be. It certainly seems as if Gentili
believed that the King was more likely to be swayed by arguments based
on English interest than on abstract principles . . . .”32 The problem of tell-
ing any particular sovereign ruler that he or she is acting unjustly in war
or in violation of higher law had emerged full blown.
27
This argument arose in Vitoria’s defense of the Native Americans. He argued that in their fear
and ignorance they misunderstood the intentions of the Spaniards and attacked them. The
Spaniards used force in response in justifiable self-defense. This argument was considered
highly progressive when contrasted with the argument that non-European people were barbar-
ians not entitled to the constraints of the Just War Doctrine. See Id. at 80.
28
Id. at 84–91.
29
Von Elbe, supra note 1, at 675–76; Nussbaum, supra note 4, at 90.
30
31
Rubin, supra note 16, at 51.
32
Id.

Enforcement Theory
Hugo Grotius, the renowned Dutch scholar and diplomat, in con-

trast to Gentili, disliked the results of leaving matters to the consciences of
European leaders of his day. The devastating Thirty Years’ War (1618–1648)
was at least on the surface about clashing consciences—Catholic versus
Protestant belief, and Protestant versus Protestant. Lauterpacht is surely
right, however, that it “actually began and continued as a war of secular
claims and ambitions of dynasties and nations.”33 Still, everyone claimed
to be fighting in a subjectively just cause. In this context, Grotius argued,
in distinction to Gentili, that a cause must be objectively just, and not only
in the mind of a prince about his own cause. Grotius, thereby, preserved
the Just War Doctrine, at least as a viable theoretical construct. According
to Joachim von Elbe, “[t]he demise of the concept of the just war to which
the idea of the bellum justum ex utraque parte seemed to lead was averted
by Grotius who made of it an issue of modern international law.”34
II. Law over Nations

Grotius made his just war arguments in his seminal work, On the Law of
War and Peace (1625).35 He wrote the book hoping to contribute to ending
the Thirty Years’ War. He wanted to inspire greater humanity in the conduct
of the war and encourage the establishment of a legal order above all war-
ring factions after the war.36 A group of legally equal sovereign states did
actually emerge in Western Europe after the war, fostered by the terms of
the peace agreements, known as the Peace of Westphalia (1648).37 Grotius’s
comprehensive treatise provided the necessary law for the new order. As a
result, he became known as the founder of modern international law.38
The foundation he laid remains in international law today. He formed his
33
Hersch Lauterpacht, The Grotian Tradition in International Law, 23 Brit. Y.B. Int’l L. 1, 16
(1946).
34
Von Elbe, supra note 1, at 678. “Ex utraque parte” refers to all sides in a conflict potentially
having a just cause.
35
Hugo Grotius, De Jure Belli ac Pacis Libri Tres (Francis W. Kelsey trans., 1925, reprinted
1995) (1646) (also translated as “Of the Rights of War and Peace.”) See Rubin, supra note 16,
at 30.
36
37
See generally, Leo Gross, The Peace of Westphalia 1648–1948, in I Essays on International
Law and Organization 3 (1984); see also Ian Clark, Legitimacy in International
Society 57 (2005) and Daniel Philpott, Revolutions in Sovereignty: How Ideas
Shaped Modern International Relations 89–90 (2001).
38
Lauterpacht, supra note 33, at 16–17 (1946).

ideas with reference to the great works of religion, law, philosophy, and
politics in Christian, Greek, Roman, Hebrew, and other cultures. He was
“reverently” cited by the four greatest international law scholars in the
century after his book appeared, namely, Samuel Pufendorf, Cornelius
van Bynkershoek, Christian Wolff, and Emmerich de Vattel.39 He is being
newly examined at the start of the twenty-first century as the source of a
classical response to leaders willing, as in his day, to use violence and cru-
elty in advancing ambitions.40
To have an impact, Grotius had to respond to those authors—
Machiavelli, for example—who rejected the idea of law above princes and
considered no action unjust for a ruler that was expedient. Grotius, by
contrast, saw “an intimate connexion between the rejection of the ideas of
‘reason of State’ and the affirmation of the legal and moral unity of man-
kind. He insists that if no association of men can be maintained without
law, “surely also that association which binds together the human race, or
binds many nations together, has need of law.’”41 Grotius saw law as pos-
sible in every kind of human community because he understood human
beings as “being intrinsically moved by a desire for social life, endowed
with an ample measure of goodness, altruism, and morality, and capable
of acting on general principle and of learning from experience.”42 By con-
trast, law above nations was impossible for Machiavelli and Hobbes given
their view that “man is essentially selfish, anti-social, and unable to learn
from experience.”43 For them, “the basis of political obligation is interest
pure and simple; the idea of a sense of moral duty rising supreme over
desire and passion is a figment of imagination. . . .”44
Grotius felt no such contempt. He believed in the Christian law of
love and the optimistic view of people’s capacity embodied in Christianity.
He continued the work of the Scholastics but moved farther toward a sec-
ular understanding of natural law than they had in order to avoid the
swirling religious controversies of his time. He emphasized the use of
human reason to understand the law ordained by nature and the universal
39
Id. at 15.
40
See, e.g., Christopher G. Weeramantry, Universalising International Law 1–3
(2004); see also Martha Nussbaum, Frontiers of Justice: Disability, Nationality,
Species Membership (2006).
41
Lauterpacht, supra note 33, at 31, citing Grotius, De Jure Belli ac Pacis, Proleg, at 23.
42
Id. at 24.
43
Id.
44
Id. at 24–25.

Enforcement Theory
principles of morality. He famously said that the principles of natural law

would be the same even if there were no God. He explained that, although
much of international law is positive law, natural law is the more impor-
tant part because it provides the basis of positive law authority and is the
measure of the aspirations of law: “In a wider sense, the binding force even
of that part of it that originates in consent is based on the law of nature as
expressive of the social nature of man.”45 Grotius makes clear throughout
his book that natural law “is the ever-present source for supplementing
the voluntary law of nations, for judging its adequacy in the light of ethics
and reason, and . . . that the will of states cannot be the exclusive or even,
in the last resort, the decisive source of the law of nations.”46
Grotius included in the book commentary on a range of legal topics
of his day. In this way, he was able to present international law as part of a
unitary system of law, international law being just as much law as local or
national law, and playing its part where appropriate. Additionally, Grotius
presented international law as governing all international relations: “There
are no lacunae in that subjection of states to the rule of law.”47
In these things, Grotius followed Aquinas. He, like Aquinas, found
the basis of law’s authority in natural law and understood that law is a
unitary system governing all human activities. Grotius also conceived of
the enforcement of international law in terms similar to those of Aquinas.
Grotius wrote that war may be waged in self-defense and to right wrongs.
He also described other lawful responses to wrongdoing in addition to
war, including arbitration and punishment short of war. Punishment is a
major theme of his book.48 For Grotius, punishment is an integral part
of law. The very notion of justice means “the exacting punishment from
those who have first done wrong. . . .”49 Punishment is “an evil of suffering
which is inflicted because of an evil of action.”50 To remain lawful, however,
punishment must be imposed in a lawful manner. It must only be imposed for
lawful ends, calibrated to the wrong, and aimed only against wrongdoers.
The lawful ends of punishment include reforming the wrongdoer,51
45
Id. at 21.
46
Id. at 21–22.
47
Id. at 19.
48
49
Grotius, supra note 35, at 462.
50
Id. at 462.
51
Id. at 470.

restoring the dignity of the injured,52 and benefiting the community as a

whole by, for example, removing a dangerous person from society.53
Grotius rejected vengeance for mere gratification.54 Rather, punishment
must be linked to what is deserved and to the benefit to be derived.55
Since punishment can be justified only for social advantage, Grotius
emphasized that only a wrongdoer may be punished. Leaders may be pun-
ished for their own wrongs or for failing to stop the violations of their
subjects. Whole communities may share in punishments. But “no one who
is innocent of wrong may be punished for the wrong done by another. . . .
[P]unishment arises from desert; and desert is something personal, since
it has its origin in the will, than which nothing is more peculiarly ours.”56
Achieving the benefits of punishment requires observing limits on
how punishment is carried out. It must be keyed to “what is deserved.” It
should be decided by a court and not by the injured party. Grotius found
that, in the course of human development, as soon as several families
came together in a community, punishment was turned over to judges,
who alone had power to decide. Only where judges are absent, such as on
the high seas, and presumably between communities, does resort to pri-
vate vengeance persist.57
Acceptable forms of punishment include everything from simple
monetary fines to major war so long as those imposing the punishment
maintain a balance between guilt and penalty,58 and a connection between
the wrong and the punished.59 War, for example, is such a severe penalty,
it may only be used when necessary and for a weighty cause, certainly not
in the case of every wrong.60 A ruler may lawfully wage war to respond to
wrongdoing. Just wars are those fought in response to injury, whether in
self-defense, for the recovery of property, or to punish.61 Grotius did not
accept that people living under domination may lawfully resort to war, if
they reached that condition lawfully. “Right reason, moreover, and the
52
Id. at 472.
53
Id. at 475.
54
Id. at 478–79.
55
Id. at 494.
56
Id. at 539.
57
Id. at 474–75.
58
Id. at 463.
59
Id. at 539.
60
Id. at 575.
61
Id. at 171; see also Von Elbe, supra note 1, at 679–80.

Enforcement Theory
nature of society . . . do not prohibit all use of force, but only that use of
force which is in conflict with society, that is which attempts to take away
the rights of another.”62 Rulers may, however, use war in serious cases of
denial of rights. They may do so even in cases in which the rights of others
are denied.63 Indeed, third-party action avoids the risk that “through a sense
of personal suffering one may exceed the proper limit” of punishment.64
With this comment, Grotius acknowledges the dilemma of a party
being the judge in its own case. As mentioned above, Grotius saved the
Just War Doctrine from the absurdity that every cause of war could be
just. He did not, however, solve the even thornier problem of who would
decide which of two parties had the objective just cause. For Aquinas and
Suárez, the pope could decide. With the decline of papal and imperial
authority, Grotius left it to the parties themselves, yet that approach
“almost nullifies the practical value of the rule.”65 Grotius did offer one way
out of the dilemma—avoid war at all costs. Grotius urged the use of nego-
tiation in multilateral conferences and the use of arbitration. Indeed, Grotius
cited Thucydides for the point that “[i]t is not lawful . . . to proceed against
one who offers arbitration, just as against a wrong-doer.”66
In Grotius, therefore, we find a number of ideas that are still found
in the law regulating force: Forceful action to enforce the law is part of the
legal regime but such forceful action may only be aimed at a wrongdoer.
The purpose of the force must be to right the wrong and not for venge-
ance. The force must be proportional to the wrong. Th ird states may assist
the injured in serious cases—indeed, they are encouraged to do so to over-
come the problem of subjectivity. Attempts to right a wrong through
peaceful means are preferred and sometimes required. A party offering a
peaceful remedy is not the same as a wrongdoer. As will be seen, parti-
cularly in Part II, “Enforcement Practice,” of this book, these principles
remain integral aspects of international law today. In the area of enforce-
ment, as in so many other aspects of international law, “the essence of
[Grotian] thought has passed into the conscience of the civilized
world.”67
62
63
Id. at 504.
64
Id. at 505.
65
66
67

The essence of Grotian thought is evident in the Peace of Westphalia

reached in 1648. The Peace finally ended the Thirty Years’ War, more than
twenty years after the publication of On the Law of War and Peace. The
treaties making up the Peace were negotiated over three years in the “first
European congress.”68 In addition to providing substantive principles aimed
at resolving the causes of the long war, the treaties also contained enforce-
ment mechanisms. Essentially, the 300 members of the Holy Roman
Empire were at last free to join alliances, thus, giving them sovereignty.
Freedom of conscience was granted to individuals. All past disputes were
deemed settled. For any future disputes, the offended party was required
to first try “amicable settlement or legal discussion.”69 After three years, if
the disputants failed to reach settlement, all other parties to the Peace “shall
take up arms with all council and might in order to subdue the offender.”
Arthur Nussbaum calls this the “first attempt at international organization
for the maintenance of peace.”70 Gross called the Peace of Westphalia “an
international constitution, which gave to all its adherents the right of inter-
vention to enforce its engagements.”71 Gross pointed to the Grotian ideas
fundamental to the organization of the peace after the Thirty Years’ War:
On the one hand it has been argued that “Grotius adapted the
(old) Law of Nature to fill the vacuum created by the extinc-
tion of the supreme authority of Emperor and Pope.” On the
other hand it has been affirmed that Grotius developed a
system of international law which would equally appeal to,
and be approved by, the believers and the atheists, and which
would apply to all states irrespective of the character and dig-
nity of their rulers.72
68
Id. at 115.
69
Id. at 117. See also The Articles of the Treaty of Peace, signed and sealed at Münster, in
Westphalia, October 24, 1648, art. 73, I Parry’s Consolidated Treaty Series 319 (1969);
Treaty of Peace between the Empire and Sweden, concluded and signed at Osnabrück, Oct.
24, 1648, id. at 198 (1969). See also, Nussbaum, supra note 4, at 116–17. The reference to
“legal discussion” indicates arbitration. Negotiation and mediation are typically not restricted
to legal discussion.
70
71
Gross, supra note 37, at 7, citing David Jayne Hill, II A History of Diplomacy in the
International Development of Europe 602 (1925). See also, Philpott, supra note 37.
72
Gross, supra note 37, at 9, citing P.H.Winfield, The Foundations and the Future of
International Law 20 (1941) and W. Van der Vlugt, L’Oeuvre de Grotius et son Influence sur
le Développement du Droit International, 7 Recueil des Cours 448 (1925 II) (1972).

Enforcement Theory
Yet, the Peace of Westphalia also contained the seeds of the ultimate
challenge to the Grotian world view. In establishing coequal, sovereign
states, the Peace conceivably set up an alternative legal community, dis-
tinct from the single unified legal community understood by Grotius.
Instead of one, some would soon argue, there were many. And these many
legal communities or individual states had to decide individually what
international law they wished to help create and enforce. The tendency
away from community toward individualism was fostered by Grotius’s
secularization of natural law. If it was not derived from eternal or divine
law, but open to reason, each ruler’s interpretation was arguably as valid as
another’s. Individual interpretation could slip into individual act.
International law was becoming that to which the states consent. This
development in turn undermined community:
The growth of the voluntaristic conception of international

law is accompanied by a weakening of the notion that all states
form and are part of an international community. . . . [T]he
Peace of Westphalia, while paying lip service to the idea of a
Christian commonwealth, merely ushers in the era of sover-
eign absolutist state which recognized no superior authority.73
It is understandable, then, that the next contributions by scholars

interested in limiting war and reprisals among states begin to describe law
on these matters in the absence of a superior authority. Johann Gottlieb
Heineccius and Christian Wolff both wrote that only a state that had
directly suffered an injury could respond with war. Wars to punish third-
party wrongdoing were, in their view, unlawful.74 Wolff also agreed with
Samuel Pufendorf and Cornelius van Bynkershoek on the need for absolute
neutrality by third states in the wars of others—regardless of which side had
the just cause.75 The thinking was moving away from the notion that one state
could sit in judgment of another. All were equal and could not impose judg-
ment. Each sovereign’s interpretation of the law was as valid as another’s. The
collective enforcement mechanisms developed at Westphalia were never
used, and the new thinking moved away from collective action. Ideas to
73
Id. at 19.
74
75
Id. at 681–82.

finally create a peace order continued to be offered, most famously by

the Abbé St. Pierre and Immanuel Kant—both hypothesized about how
organizations of states could eliminate the interest in war, but the actual
trend in international relations was away from federations or organiza-
tions of states toward ever-more vaunted notions of the sovereignty of
individual states.
III. Sovereigns over Law

Emmerich de Vattel, the Swiss diplomat and international law scholar, did
much to support the rise of the absolute sovereign state. Though a self-
identified naturalist, Vattel paved the way for positivism to replace natural
law as the reigning theory of the sources of international law. After Grotius,
Vattel has arguably had the greatest influence on international law. His
principal work was a widely read book, The Law of Nations (1758). Vattel
was a professional diplomat and wrote the book for very different reasons
than those of Grotius. Grotius wrote in reaction to the horrors of the
Thirty Years’ War, while Vattel wrote in service to “sovereigns and their
ministers.”76 Vattel’s book is based on his experience and is filled with real
world examples and practical advice. He shared with Grotius an under-
standing that a higher law governed human affairs than the law created by
humans themselves.77 On the other hand, Vattel elevated the state and the
will of the state to the point that positivism—the doctrine that law is made
from the positive acts of states—followed naturally from his ideas.78
Vattel treated the role of punishment in the law more briefly than
Grotius. He did add considerable detail regarding methods short of war
available for addressing treaty breaches and other wrongs, but he did not
add much to the Grotian ideas about the use and conduct of war. In respect
to treaties, Vattel emphasized to his readers the importance of keeping
treaties. He warned sovereigns that failing to honor a treaty today results
in lack of trust tomorrow.79 He conceded that “[t]aught by sad experience
that the sacred and inviolable duty of fidelity to treaties is not always a safe
76
77
Emmerich de Vattel, The Law of Nations or the Principles of Natural Law, Applied
to the Conduct and to the Affairs of Nations and of Sovereigns 188–192 (Charles
G. Fenwick trans., 1916) (1758).
78
Gross, supra note 37, at 17. The American Founding Fathers especially liked Vattel’s empha-
sis on sovereignty. Nussbaum, supra note 4, at 161–62.
79
Vattel, supra note 77, at 188.

Enforcement Theory
assurance that they will be observed, men have sought to obtain securities
against perfidy, means for enforcing observance independently of the
good faith of the contracting parties.”80 Vattel offered four means of enforcing
treaties when parties fail to honor them: the use of guarantors, the use of
sureties, security, and the holding of hostages.
A guarantor is a powerful state that ensures parties comply with
treaty obligations. The guarantor may use force to persuade or coerce a
party into compliance.81 A surety pledges to fulfill the treaty in the place of
a party. Security is pledged when a treaty is made to ensure fulfillment.82
This involves a state holding valuables or territory until the treaty obliga-
tions are fulfilled. Vattel also favored providing hostages as leverage to
induce compliance. He did urge treating hostages humanely, never putting
them to death, and returning them just as soon as the promises are ful-
filled, but at no point did he express any reservations about the practice in
general. He saw hostages as the same as any citizen who must provide
service when commanded by the sovereign.83 He wrote with approval
regarding the French treatment of English lords held hostage until the
fulfillment of the 1748 Treaty of Aix-la-Chapelle through the restitution of
Cape Breton. The French permitted the lords to live in Paris at court on
the pledge of their word, almost as representatives rather than hostages.84
Vattel, like Grotius, also advocated the peaceful settlement of dis-
putes. Disputes, he pointed out, arise from injuries received or contested
rights. He counseled that a nation should insist on its rights, not submit to
injury, but always remember the rights of others.85 He described various
methods for peaceful settlement including arbitration, and multistate
conferences, congresses, and inquiry. He believed arbitration to be par-
ticularly well suited to settling all manner of disputes. Vattel cautioned,
however, against using arbitration when the “safety” of the state is involved.
Resort to war should nevertheless be a last resort.86
Vattel taught that states could legally resort to war in self-defense
using the same reasoning that allows the individual to protect himself
from injury. Resort to war or reprisals in cases other than self-defense
80
Id. at 193.
81
Id.
82
Id. at 194.
83
Id. at 195–98.
84
Id. at 195.
85
Id. at 222.
86
Id. at 224–27.

could be justified on the basis of punishing for the good order of society87
because while “men . . . renounce in [the State’s] favor their right to punish,”88
in international society the right to punish is retained by each nation and is
exercised through war. Vattel reminded sovereigns who wage unjust wars
that they must answer to the “King of Kings.”89 He added that sovereigns
who wage unjust war must also pay for the wrong done, “even submit to
punishment, if that be necessary as an example, or as an assurance to the
injured party or to human society.”90 He disagreed with Grotius about the
responsibility of the state as a whole to make reparations for unjust war. He
believed the sovereign alone must pay. He also wrote, somewhat inconsist-
ently with other comments on the right to punish, that the right to punish
through war is limited by what the nation’s safety requires.
In responding to seditions, insurrections, and war, Vattel warned
against punishing instigators too severely. The consequences may well be
worse than the original wrong—as the Duke of Alva learned after executing
twenty thousand citizens of the Netherlands. The backlash led to Spain
eventually losing the Netherlands. Rather, Vattel recommended granting
amnesties. Similarly, in the conduct of war, principles of humanity, for-
bearance, truthfulness, and honor apply to both sides.91 Complying with
the law of war diminishes the interest in retaliation and fosters trust, which
is needed to eventually reach an agreement on peace. Promises in a peace
treaty, even with rebels, are inviolable unless the promises are too great.92
The “parties act wisely in agreeing upon a penalty to be attached to the
violation of one of the less important articles of the treaty; and in that case,
if the offender submits to the penalty, the treaty continues in full force.”93
If no indemnity or satisfaction is made for serious breaches, the war can
be renewed.
Vattel was concerned that war not occur as a result of a mistake or
through the act of a subordinate officer. It is better to resort to retaliation
first, before escalating to war. Also, reprisals are easier, safer, and more mod-
erate than war.94 A response in retaliation inflicts on the offender precisely
87
Id. at 71.
88
Id.
89
Id. at 302.
90
Nussbaum, supra note 4, at 158, quoting Vattel.
91
92
Id. at 337–38.
93
Id. at 360.
94
Id. at 229.

Enforcement Theory
the same amount of suffering as he himself inflicted.95 Punishments other

than war may include taking away privileges such as rights of passage over
territory, seizing property, and taking reciprocal action. Debts may be
seized as a lawful reprisal.96 The property of another state’s subjects may be
seized. Individuals may be held as hostages but not killed97—though Vattel
preferred “gentler” methods.98 Even the gentle methods should only be
used if the “case is a manifestly just one,” and then “justice must have been
asked for in vain.”99
Vattel, therefore, carried forward many Grotian concepts on
enforcement. He agreed that war and reprisals must be used in a just cause,
and he was concerned that they be used in moderation. He also advocated
the use of arbitration and other means of peaceful settlement. Vattel added
to Grotius by thinking concretely about how to ensure compliance with
treaties. Yet, he also dealt a major blow to the Grotian concept that the law
is superior to the multiplicity of communities. After Vattel, the idea took
hold of the state as sovereign and beyond the questioning of others.
Compliance with treaties and custom made sense if it was in the
state’s self-interest—if a guarantor might pressure compliance, for example.
State interest was the compelling point for Vattel, and with it he seriously
undermined the natural law basis for compliance with law; in other words,
doing something because it is right, regardless of advantage.
Since Vattel maintained that no state may be the judge of another,
no state may question the legality of any state’s decision to go to war or
resort to reprisals, rather than looking to barriers or thresholds for the
lawful waging of war, Vattel sought only to prevent the escalation of war
by urging states to remain neutral. Of course, neutrality is a term that
defines both a state’s position vis-à-vis fighting between other states as well
as a state’s position on the legality of using force in the first instance.
Eventually, the rule emerged in international law that the only way to stay
out of a war was by formally declaring neutrality.100 Declaring neutrality to
avoid fighting, however, in turn suppressed any interest by the neutral
state in clarifying that, although it was remaining neutral, one of the two
95
Id. at 227.
96
97
98
Id.
99
Id. at 228.
100
Grewe, supra note 4, at 374–75.

warring parties was actually in violation of international law. This effect of

the neutrality laws joined with the ideology of state-will positivism to
undercut the view that war could only lawfully be waged in a just cause.
In particular, Vattel taught that normative decisions such as the just
causes of war must be left to the private conscience of sovereigns. Vattel
limited the right of coequal sovereigns to sit in judgment of each other. 101
After him, many came to see the law as a matter of what sovereigns willed,
and not what was ordained by divine or natural reason. Thus, Vattel paved
the way for positivism to replace natural law as the reigning theory of the
sources of international law. In this context, force was no longer exclusively
for righting wrongs. Although Vattel counseled constraint, if no sovereign
was competent to call another sovereign’s acts unlawful, tolerance for the
use of force as an instrument of national policy followed. Vattel’s ideas
about sovereignty, state interest, and state will influenced ideas we associate
today with the French Revolution. “Vattel had already bestowed a precise
and exclusive character upon the idea of sovereignty which it had not pos-
sessed in Bodin’s thinking. Vattel’s thinking was deeply embedded in the
reasoning of the Enlightenment which prepared the way intellectually for
the French Revolution.”102 International law was increasingly viewed as
the result of the consensus of state will, not the gift of a higher source.
The Final Act of the Congress of Vienna of 1815, signed in the after-
math of the French Revolution and the Napoleonic wars, hints at some of
Vattel’s enforcement ideas. We know that his Law of Nations had been widely
read by 1815 in Europe and the United States. The Congress of Vienna was
called primarily to resolve issues that might spark future wars.103 Through
the treaty, the parties made territorial dispositions—settling boundaries,
transferring territory, clarifying rights of passage, and the like. The parties
set out principles for the cooperative use of rivers, the resolution of funds
on deposit in third states, the provision of amnesties (which Vattel par-
ticularly advocated), as well as procedures for the conduct of diplomacy.
Great Britain, Austria, France, and Russia guaranteed the cession of terri-
tory by Saxony to Prussia.104 They chose arbitration to resolve potential
101
Von Elbe, supra note 1, at 682–83.
102
Grewe, supra note 4, at 414; see also Philip Allott, The Health of Nations: Society
and Law Beyond the State 56–62 (2002) on Vattel’s role in the rise of sovereignty.
103
Vienna Congress Treaty, reprinted in Key Treaties for the Great Powers 1814–1914, at
41 (Michael Hurst ed., 1972); see also Nussbaum, supra note 4, at 186.
104
Vienna Congress Treaty, art. XVII.

Enforcement Theory
disputes respecting Luxembourg’s boundaries.105 A mixed boundary com-

mission of professional members was called upon to draw up the boundaries
between Prussia and the Netherlands.106 The treaty had no overall enforce-
ment provisions, unlike the Peace of Westphalia. In this, Vattel’s admoni-
tions against third-party enforcement and enforcement in cases not
involving a state’s own self-interest plainly contrast with the Grotian ideas
of enforcement on behalf of the community. Austria, France, Great Britain,
Portugal, Prussia, Russia, and Sweden agreed that Switzerland would be a
neutral state and committed themselves as guarantors of Swiss neutrality
in a treaty of November 1815 that followed the Congress of Vienna. No
doubt, they all saw a distinct self-interest in acting as guarantors.107
Throughout the nineteenth century, European states continued to
act through congresses like the Vienna Congress to resolve issues. The
Paris Congress drew up the Treaty of Paris of 1856 to settle the Crimean
War. It also established the International Commission of the Danube and
included Turkey, as a dramatic extension of cooperation under interna-
tional law beyond Europe. According to Nussbaum, the Treaty of Paris is
“second only to the treaties of Westphalia and Vienna in its importance for
the history of international law.”108 After the Paris Congress, the most impor-
tant meeting for the development of international law was the Berlin
Congress of 1878. This time, the parties attempted to resolve the Balkans
problem. The Berlin Congress of 1885 divided Africa among Europeans.109
Vattel had, of course, encouraged the use of congresses and their
use might well have prevented some armed conflict, yet the nineteenth
century was violent. European states fought around the world to build
colonial empires and to check the growing power of any rival. The nine-
teenth century was the era of “cabinet” wars, wars fought to balance power
through shifting alliances.110 Wars were fought to acquire colonies either
against indigenous people or against external competitors. None of these
reasons for war could be justified under the Grotian Just War Doctrine.
Despite the growing inconsistencies between actual practice and
the Just War Doctrine, states did, in fact, continue to proclaim the justice
105
Vienna Congress Treaty, art. LXIX.
106
Id. art. LXVI.
107
Nussbaum, supra note 4, at 186–87.
108
Id. at 190.
109
Id. at 193–94.
110
Grewe, supra note 4, at pt. 3, ch. 7.

of their causes.111 States attempted to avoid the implications of formally

declaring war by engaging in reprisals or force that fell short of war.112 In
reality, however, the growing sense of equality, along with the ascendance
of positive acts as the source of law to the exclusion of divine or natural
sources, and the important protections derived from declaring neutrality,
all but eliminated the idea that a state could only lawfully fight a war if the
war met the criteria of a just war. Still, the nineteenth century is called by
some the golden age of international law when states went into great detail
about the rules governing neutrality,113 reprisals, treaty-making, diplo-
matic law, and so on. It was the era of the multiparty treaty to regulate
international conduct, and that gave rise to international organizations—
organizations that had a ready means of enforcing agreements and rules
without war through the sanction of expulsion. The Paris Declaration on
Maritime Law of 1856 had provisions regulating the conduct of maritime
warfare, including outlawing privateering.114 It was the first so-called “law
making” treaty.115 The Paris Declaration was followed in 1864 by the first
of the Geneva Conventions devoted to protecting the victims of war.
In many accounts of the nineteenth century, it is thought that the
rise of positivism and the concept of absolute state sovereignty meant the
end of legal restraint on force. For many scholars and government offi-
cials, however, the Just War Doctrine continued to govern. This is often
overlooked in accounts on the use of force, but few European govern-
ments failed to offer some legal justification for their wars. Natural law—
the idea of law superior to the sovereign—continued to be an important
part of legal theory.116 Positive sources of law in the form of treaties and
customary international law existed, but general principles of interna-
tional law and the foundation of international law continued to be
described as based in natural law, much as Grotius had taught. Positivism
alone could not supply solutions to questions once answered in natural
111
112
113
Id. at 535–42. (The United States was a leading proponent of neutrality law in the nineteenth
century).
114
Nussbaum, supra note 4, at 192; see also infra ch. 3, at 116, ch. 4, at 155–56.
115
116
Oppenheim, one of the most influential international law scholars of the late nineteenth and
early twentieth centuries, was very concerned about the persistence of naturalism. See
Benedict Kingsbury, Legal Positivism as Normative Politics: International Society, Balance of
Power and Lassa Oppenheim’s Positive International Law, 13 EJIL 401, 407 (2002).

Enforcement Theory
law, including how law can bind the sovereign state. Positivism could not
adequately answer the persistent claim to a principle of nonintervention
or to neutral rights in the face of the opposing claim that the sovereign
state was free to go to war at will. Those legal theorists who rejected natural
law searched for the source of international law’s binding authority in the
state’s sovereign, either person or parliament. This appeared to work for
domestic law, but hardly solved the questions posed for international law,
which lacked a sovereign.
Thus, as domestic law theorists increasingly excluded natural law
from any role, denominating it vague, superstitious, and reactionary,
international law was left open to critique, given the continuing accept-
ance of natural law. International law never fit well solely within the posi-
tive law theory and for that reason was called positive morality, not law by
the leading English legal theorist of the century, John Austin (1790–1859).
Austin was a follower of the political theorist Thomas Hobbes and accepted
one of Hobbes’ basic premises that all law is derived from a sovereign.117
For Austin, the very definition of law was the command of a sovereign
backed by a sanction. In the world of states, no state was sovereign over
the others, so no state could issue commands, let alone sanction noncom-
pliance.118 Austin accounted for the “law-like” behavior among states as
respect for positive morality. “The rules of ‘positive morality’ [are] all
‘imposed by general opinion of any class of society,’ and, especially, inter-
national law by the opinion of the large society formed of the various
nations. International law, then, ‘consists of opinions and sentiments cur-
rent among nations generally.’”119 International law rules may become
genuine legal rules when incorporated in municipal law. Through that
incorporation, they become the commands of a sovereign backed by sanc-
tions. Otherwise, international law rules are not enforced through a reli-
able enforcement system. The only sanction is the possibility of an
unfriendly or hostile reaction. This indefiniteness cannot produce the
kind of strict rule-obedience Austin saw with domestic law.120 Austin was
no simple denier of international law. He recognized the existence and
117
Francis Anthony Boyle, Foundations of World Order: The Legalist Approach to
International Relations (1898–1922) 14–15 (1999).
118
See John Austin, The Province of Jurisprudence Determined (H.L.A. Hart ed., 1954)
(Constitutional law was put in the same category); see also Grewe, supra note 4, at 503–04.
119
120
Grewe, supra note 4, at 507 (footnotes omitted).

value of what people referred to as international law. He just could not

classify it together with the real law of national legal systems.121
In Austin’s conception, real law is simply not possible in the sovereign-
less international legal system. If the rules themselves lack the authority to
bind, failure to comply with them cannot be subject to sanction. This
explains why so-called international rules are not subject to regular pun-
ishment. They are only binding in the sense that moral rules are binding.
Society would like everyone to comply with moral rules, and moral rules
are sanctioned to the extent that persons violating them are subject to
negative reactions or attempts at persuasion. Yet, people are not sent to
prison or fined for violating moral rules that have not been incorporated
in law. The same is true for international law rules. They are open to per-
suasion or negative reaction but not to an institution for the adjudication
of wrongdoing or the application of systematic penalties.
The German theorist, Georg Jellinek (1851–1911), and other inter-
national law positivists took up Austin’s challenge of finding a source of
obligation for international legal rules in a world lacking a single sover-
eign and consistent with positive law theory. Jellinek was interested in the
sociological and psychological enquiries of his colleagues in Heidelberg,
Heinrich Rickert and Max Weber.122 He developed the idea of self-limita-
tion as the means by which binding international legal rules may be
formed—the self-limitation of the state could be the basis of international
law: “[T]he sovereign state, through entering into a legal relation with
another state, subjected itself to international law by an act of ‘self-limitation,’
from which the state might disengage itself at any time without violating
that law.”123 Jellinek’s view was perfectly consistent with positivism but did
not answer the fundamental problem that if a sovereign state could with-
draw from a commitment at any time, how could anyone say it was law?
Another German theorist, Heinrich Triepel (1868–1946) intro-
duced the idea in 1899 that something about the common will of states,
expressed in treaties and customary law, could limit the freedom of any
particular state to withdraw from a legal commitment.124 Triepel was
unable to explain how the common will was formed or why the common
121
122
Martti Koskenniemi, The Gentle Civilizer of Nations, The Rise and Fall of
International Law 1870–1960, at 201, 204–06 (2001).
123
Nussbaum, supra note 4, at 234–35; see also Grewe, supra note 4, at 505.
124
Nussbaum, supra note 4, at 235; see also Grewe, supra note 4, at 505.

Enforcement Theory
will could be considered legally superior to the state’s will.125 He did argue
for a view of the will as rational and, therefore, not likely to be without a
tendency toward limitation.126 Otherwise he dismissed these questions
as beyond the realm of law.127 In addition to the idea of the common
will, Triepel also introduced the concept of dualism. He separated the
spheres of domestic law and international law. In this way, the two spheres
could be analyzed separately, and theorists could conceive of bases for
legal obligation in one sphere differently from those of the other. Both of
his concepts—self-limitation and dualism—had considerable impact on
subsequent international law theory.
The source of obligation was only half of Austin’s concern in refus-
ing to classify international law as law, however. Austin was also concerned
about the sanction as an essential feature of a rule, alongside the need for
a sovereign to make the rule in the first place. For Austin, “enforcement of
rules of international law was not guaranteed through a reliable enforce-
ment system. Instead, the only sanction rested in the knowledge that vio-
lations of such rules would be likely to meet with the unfriendly or hostile
reaction of other States.”128 Such ad hoc reaction was no legal sanction.
Neither Jellinek nor Triepel appear to have concerned themselves over
much with this aspect of Austin’s critique. Some of Austin’s fellow coun-
trymen, like Henry Sumner Maine, dismissed Austin’s narrow view of law
in general.129 As far as the lack of sanctions in international law, Maine
argued that “the founders of international law, though they did not create
a sanction, created a law-abiding sentiment.”130 This was also the view
taken by Lassa Oppenheim (1858–1919). Oppenheim was a German legal
scholar who moved to Britain for his health in 1895.131 Oppenheim taught
in Cambridge for many years and was hugely influential through the mul-
tiple editions of his treatise on international law. Oppenheim did much to
spread the view that international law was a positive system of law only
125
Grewe, supra note 4, at 506.
126
Koskenniemi, supra note 122, at 190.
127
128
Grewe, supra note 4, at 507 (footnotes omitted).
129
130
Henry Sumner Maine, International Law: A Series of Lectures Delivered Before
the University of Cambridge 51 (1987).
131
Kingsbury, supra note 116, at 401.

and that, in the ultimate questions of state, international law could not be
seen as superior to state will.132
Oppenheim understood the binding nature of international law to
be found in state consent or self-limitation:
There is no doubt that these followers of Austin attribute to

international law a lesser degree of binding force. . . . But if
[states] once consent to submit themselves to a rule of inter-
national law, [they] are bound by such rule to the same extent
and degree as subjects are bound by rules of the municipal law
of their state.133
Oppenheim distinguished international law rules from moral rules by

the fact that international law rules are “eventually enforced by external
power,” while moral rules are enforced only by conscience.134 Unlike
Austin, Oppenheim saw international law enforced through the use of
war and reprisals.
Oppenheim’s theoretical focus seems to have been not so much on
the sanction or source of authority but on the persistence of naturalism,
which he believed was contributing to the perception that international
law was less than national law. Oppenheim
[a]cknowledged that a positivist conception (or method, in

his terminology) of international law was not generally
accepted. He emphasized that much was at stake in the strug-
gle to define the concept of international law. Thus one of his
objections to natural law approaches was that their practition-
ers could not agree among themselves on the most basic ques-
tions about international law, let alone convince others.135
132
Scholars have pointed to the support positivism gave imperialism. Britain was at the time
Oppenheim was writing the leading imperial power in the world. See Alexander Orakhelashvili,
The Idea of European International Law, 17 EJIL 315, 325 (2006); antony anghie,
Imperialism, Sovereignty, and the Making of International Law 55 (2004).
133
Lassa Oppenheim, The Science of International Law: Its Task and Method, 2 AJIL 313, 332
(1908).
134
Id.
135
Kingsbury, supra note 116, at 433 (footnotes omitted).

Enforcement Theory
Oppenheim was firmly committed to positivism, expressing antip-

athy to naturalism and to the Austinian view that international law is
nothing more than “positive morality.”136 According to Benedict Kings-
bury, Oppenheim held these views not to reject morality but somehow to
advance it:
He believed that the best means to advance the substantive

normative values to which he was committed was to adopt
and propagate his particular positivist conception of law. For
the development of an effective international law, he saw
numerous advantages in features associated with positivism
in law: the distinctive formulation and interpretation of legal
rules as a basis for clarity and stability; their reduction to writ-
ing to increase certainty and predictability; the elaboration of
distinct legal institutions; the development of ethically auton-
omous professional roles, such as that of international judge;
and the separation of legal argument from moral arguments
as a means to overcome disagreement.137
All of this was attractive and part of why Kingsbury urges a re-
consideration of Oppenheim as more than a morally neutral positivist.
Nevertheless, in the end, Oppenheim could not make a persuasive argu-
ment for why pure positive international law is binding on sovereigns. If
the will of the state is what essentially matters, the state can comply or not
comply with the law as it chooses—one form of willing is as valid as the
other. How could any rule be binding in such a system, with the exception
of those rules based on strict reciprocity? If a sovereign willed a resort to
war, international law could hardly prohibit it, though, paradoxically,
absolute state sovereignty, the conception that helped give rise to positiv-
ism, requires a strong nonintervention principle.138 Positivism could not
adequately answer the persistent claim to a principle of nonintervention
or to neutral rights in the face of the opposing claim that the sovereign state
was free to go to war at will. Positivism alone could not supply solutions to
136
Id. at 422.
137
Id. at 422.
138

questions once answered in natural law, including how law can bind the
sovereign state.
Oppenheim did not even try to suggest that sovereigns could be
bound in the case of the use of force. He simply did not see that interna-
tional law could limit this ultimate prerogative of power. Those who ques-
tioned what this meant for the possibility of international law were
dismissed with little argument:
[F]anatics of international peace, as well as those innumerable

individuals who cannot grasp the idea of a law between
Sovereign States, frequently consider war and law inconsist-
ent. They quote the fact that wars are frequently waged by
States as a proof against the very existence of an International
Law. It is not difficult to show the absurdity of this opinion. As
States are Sovereign, and as consequently no central authority
can exist above them able to enforce compliance with its
demands, war cannot always be avoided. International Law
recognizes this fact, but at the same time provides regulations
with which the belligerents have to comply.139
Many international law scholars at the turn of the last century, how-
ever, took the problem of law and war seriously and would not go as far as
Oppenheim in recognizing the free right of sovereign states to resort to
war. International law scholars generally tended to conclude in line with
Grotius and Vattel that international law had sanctions in the form of war
and reprisals. Beyond that, international law scholars generally fell into
one of two groups: One held that war could only be waged lawfully as a
means of enforcing rights, the other that the state could wage war as a
sovereign prerogative for purposes of pursuing the national interest.140
The first group did acknowledge the fact that powerful states had a distinct
advantage in vindicating rights. This was an “unfortunate” fact of interna-
tional life but did not undermine for them the view that international law
was authentic law, meaning it had to keep the sanction of war restricted to
law enforcement.141 The second group either accepted that war could be
139
2 Lassa Oppenheim, International Law 55–56 (1905–06).
140
141
See, e.g., Amos J. Peaslee, The Sanction of International Law, 10 AJIL 328, 329 (1916).

Enforcement Theory
waged whenever a sovereign willed it or required the invocation of a token

justification. This group quixotically held that resort to reprisals remained
subject to detailed legal rules. Measures short of war could only be used in
response to a wrong, even though war itself was not subject to the same
restraint.142
Regulating force short of war in great detail but removing all legal
restraint once a state declared war was an all too apparent inconsistency.
Legal scholars who continued to adhere to the Just War Doctrine and a
continuing role for natural law in the international legal system persisted
in making this point. In addition to legal theorists, popular movements
for peace had gained considerable prominence in the United States and
Britain by the end of the nineteenth century (Oppenheim’s “fanatics”).
The push was on for alternatives to war, and peace advocates were turning
to international law. In The Hague Peace Conferences of 1899 and 1907,
the first multilateral treaty-based restraints on the resort to war were
developed. In place of war, states were to solve their disputes, including
enforcing rights, through arbitration and other means of third-party set-
tlement. One type of war was declared unlawful altogether, and did in fact,
come to an end—war to collect contract debts.143
Some German scholars were plainly suspicious of the barriers to
war being raised by British and American participants in the conferences.
Such barriers could be a means of preventing Germany from acquiring an
empire while preserving the massive British one. Britain had used war to
conquer extensive colonies, and now was seen as only too happy to help
outlaw war. German mistrust of British motives continued after World
War I. German academics generally saw the League of Nations (the League)
as “an Entente-dominated body in which Germany would never have full
equality.”144 They believed the League was a means to preserve Anglo-
American predominance in the world. The Covenant of the League outlawed
war as a means of changing the status quo and the status quo favored the
United States and the United Kingdom. This view was underscored when
the disarmament conference failed. The British and Americans would not
be obliged to massively reduce their ships and weaponry. If Germany were
142
Grewe, supra note 4, at 525, citing A. Bulmerincq, Die Staatsstreitigkeiten und ihre Entscheidung
ohne Krieg, in 4 Hotlzendorffs Handbuch des Völkerrechts 85, 87 (1889).
143
Hague Convention Respecting the Limitation of the Employment of Force for the Recovery
of Contract Debts, Oct. 18, 1907, 36 Stat. 2241.
144

not allowed to rearm, it would remain in a seriously weakened condition

compared to other powers. The prominent German legal scholar Carl
Schmitt (1888–1985) argued that Germany should not allow itself to be
dominated by these countries through accepting their interpretations of
what international law meant and required of Germany.145 Schmitt and
others successfully advocated German resurgence. The League was failing,
and German leaders saw little reason to heed its requirements.
During all of these momentous events, international law scholars
continued to search for better ways to explain international law and to
improve its function in the international community. By the end of the
First World War, it was quite clear to some legal scholars that the theory of
absolute sovereignty had gone too far. By the 1930s, they were blaming the
“crude” positivism of the previous century for the cult of sovereignty that
placed the state above the law. The proponents of positivism had in hand
no argument to use against the dictators emerging in Europe with aggres-
sive designs on other states. Those designs were, after all, an exercise of
state will. Nor could positivists argue why persons who were opposed to
the absolute power of the state should not be treated as enemies of the
state.146 Schmitt and others were taking state-will positivism to its logical
conclusion and arguing for giving up “fictions of legality and to recognize
law’s dependence on the decisions of the powerful.”147
Hans Kelsen (1881–1973), the Austrian legal scholar, was Schmitt’s
great rival. Kelsen conceived of law as a logically constructed idea. In its
purest form, law had the basic elements observed by Austin: Legal rules
must emanate from a source with authority to command and each com-
mand is subject to sanction. The sanction is the ultimate motivation for
law compliance.148 The source of law’s ultimate validity was the point at
which Kelsen parted company dramatically with Austin (and Schmitt).
For Austin, the source of validity is the sovereign empowered to command.
For Kelsen, because the sovereign itself has to be empowered, the ultimate
145
Koskenniemi, supra note 122, at 238, citing Fritz Bleiber, Der Völkerbund, Die Entste-
hung der Völkerbundssatzung 155–59 (1939); Carl Schmitt, Völkerrechtliche Formen des
modernen Imperialismus, in Positionen und Begriffe im Kampf mit Weimar-Genf-
Versailles 1923–1939, 176–80 (1940, reissued 1988). See also infra ch. 2.
146
Nussbaum, supra note 4, at 276–78.
147
148
Hans Kelsen, Introduction to the Problems of Legal Theory 26 (trans. of the first
edition of the Reine Rechtslehre or Pure Theory of Law, Bonnie Litschewski Paulson &
Stanley L. Paulson trans., 1992) (1934).

Enforcement Theory
source of legal validity must be found elsewhere. Kelsen found the ulti-
mate source in a Grundnorm or ultimate norm of legal validity. Rules
whose validity could be shown to connect with the Grundnorm were legal
rules and could be subject to sanction for noncompliance. The Grundnorm
in turn is found in the belief in the binding force of customary law.149
IV. Law over Sovereigns

Kelsen’s pure theory of law was well developed by 1934, the same year
Harvard’s Roscoe Pound called him the “leading jurist of the time.”150
Kelsen conceived of all law—national and international alike—as resting
on the same fundamental, validating norm. With a common source of
validity, all law is part of a unified system.151 This unified or monist legal
system places international law logically in a position of superiority over
the law of the many states of the system. Kelsen pointed out that the state
is only a legal order and, given the multiplicity of legal orders, if issues
arise among coequals, a superior norm, external to all, must be the source
of decision. Those superior norms can only be found in international law,
since only international law is superior to the coequal state legal orders.
The “will” of states and other human characteristics attributed to the state
allegedly derived from sovereignty were, in reality, the characteristics of
real humans—the individuals involved in the governing of states. In refin-
ing the command/sanction paradigm of law, Kelsen revived basic Grotian
concepts of a unified legal system with law superior to various communi-
ties and containing sanctions for violations in the form of war and reprisals.
Thus, Kelsen developed a civitas maxima “in a far more comprehensive
sense than was ever dared by Christian Wolff.”152
149
Nussbaum, supra note 4, at 281. Kelsen strongly rejected any suggestion that he relied on
natural law, but his ultimate reliance on belief seems far more akin to naturalism than positiv-
ism. His endorsement of the Just War Doctrine, too, indicates affinity for naturalism. See
Hans Kelsen, The Natural Law Doctrine Before the Tribunal of Science, in What is Justice?
Justice, Law and Politics in the Mirror of Science: Collected Essays 144 (1957); but
see Lauterpacht, The Grotian Tradition in International Law, supra note 33, at 22.
150
Roscoe Pound, Law and the Science of Law in Recent Theories, 43 Yale L.J. 525, 532 (1934).
See also H.L.A. Hart, Kelsen Visited, 10 UCLA L. Rev. 709, 728 (1963).
151
152

For Kelsen, war and reprisals, subject to constraints, were the neces-
sary legal sanctions of international law.153 Kelsen responded to those who
believed all war to be unlawful by saying that the only way to respond to
unlawful war was with war. Logically, all war could not, therefore, be consid-
ered unlawful.154 War in the classic thinking of the Just War Doctrine could
be lawful. Kelsen found positive evidence that the Just War Doctrine
persisted in international law in provisions of the Treaty of Versailles, the
Covenant of the League of Nations, and the Kellogg–Briand Pact (the
Pact).155 Kelsen interpreted all of these agreements as permitting the use of
force to respond to unlawful war.
Kelsen credited Augustine, Aquinas, and Grotius with having devel-
oped the idea of war being forbidden except in a good cause.156 The break-
down of the Just War Doctrine in the nineteenth century came in
connection with theories of absolute state sovereignty.157 Those theories
challenged all international law, not just the limitation on war. They had to
be rejected and in doing so, the main objection to restricting war disap-
peared, too.158 Kelsen was alert to the contradictory position of scholars
like Oppenheim who took the view that although war could not be
restricted, measures short of war or reprisals could be regulated.
For Kelsen, the problem of permitting war and reprisals to enforce
the law inevitably came back to the issue of who decides the law has been
broken. The theory of absolute sovereignty had grown up in the absence of
a decision-maker superior to each state. This conundrum led Kelsen to
become a strong advocate of international courts. He could see the argu-
ment for a world legislature as well, but the production of objective deci-
sions on the application of legal norms and sanctions was the more
compelling imperative in a world where sanctions could produce mass
death. He predicted that international law would follow the evolution of
national law. The first phase is complete decentralization; courts would
follow, then an enforcement arm for the courts; after that, disarmament
would be possible and entities like the Council of the League could mediate
153
Hans Kelsen, General Theory of Law and State 330 (Anders Wedberg trans., 1943)
[hereinafter General Theory].
154
Id. at 331–32.
155
Id. at 333.
156
Id. at 335–36.
157
Id. at 336.
158
Id.

Enforcement Theory
disputes before they arose. Presumably, a parliament could follow after

that.159
On this analysis, the League had been a mistake. It came too soon.
The world should have “contented itself with establishing an authentic
international juridical community.”160 In Kelsen’s thinking the problem of
peace would only finally be settled with the establishment of a world fed-
eral state. In the meantime, however, emphasis should be placed on inter-
national law and in particular the development of a court with compulsory
jurisdiction.161
The objective examination and unbiased decision of the ques-

tion of whether or not the law has been violated is the most
important, the essential stage in any legal procedure. As long
as it is not possible to remove from the interested States the
prerogative to answer the question of law and transfer it once
and for all to an impartial authority, namely an international
court, any further progress on the way to the pacification of
the world is absolutely excluded.162
For Kelsen, the next logical step after World War I was a court with
the power to impose sanctions for noncompliance. With the founding of
the Permanent Court of International Justice (PCIJ), a court was estab-
lished, but was not given the power to impose sanctions. The Kellogg–
Briand Pact, too, was a mistake from Kelsen’s perspective. Rather than
simply outlawing war, the Pact should have established a court to decide
on the use of military force for the execution of judgments.163 War should
have been reserved for that purpose.164 Kelsen believed that a court might
have offered a way out of the post World War I peace treaties—regarded
by many as unfair and linked to the causes of World War II.165
It was through an objective third-party decision-maker that Kelsen
also sought to answer the critics of international law’s self-help sanctions.
159
Id. at 339.
160
Kelsen, The Legal Process and International Order 24 (1935) [hereinafter The Legal
Process].
161
Kelsen, Peace Through Law 9 (1944, reprinted 2000).
162
Id. at 13–14.
163
Id. at 18.
164
Id.
165
Kelsen, The Legal Process, supra note 160, at 18.

Quincy Wright, for example, wrote that “self-help in which the State is
its own judge and sheriff can hardly be called legal sanctions. They are
essentially acts of policy, not law.”166 For Wright “self-defense, as repris-
als to remedy a wrong, or as interventions to prevent an impending irrep-
arable injury”167 did not belong in a law enforcement system. If, however,
a state was not the judge in its own case, Wright’s primary objection was
removed.
In addition to a court, Kelsen was an early advocate of individual
responsibility and accountability for violations of international law. This
was in line with his view that states are led by real people and people, not
the state, exercise their will.168 While individual accountability had always
had a place in international law,169 the establishment of the international
military tribunals after the Second World War were considered a major
development. High political and military leaders of the Axis powers were
tried by the Allies in Germany and Japan170, but Kelsen was severely criti-
cal of these trials. He saw them applying ex post facto law to the accused of
the defeated states only.171 Kelsen’s demand that all states subject their
leaders to international justice may account in part for why a permanent
criminal court was not formed until the 1990s.172 Nor was the International
Court of Justice (ICJ), the PCIJ’s successor, made any stronger than its
predecessor after the war. Rather than give the court a Kelsen-inspired
enforcement mechanism, to some extent, the ICJ was made weaker.173 The
Council of the League had been required to enforce “decisions” of the PCIJ.
166
Quincy Wright, Enforcement of International Law, 38 ASIL Proc. 77, 78 (1944); see also
Josef L. Kunz, Sanctions in International Law, 54 AJIL 31, 32 (1960).
167
Wright, supra note 166, at 78.
168
Kelsen, Peace Through Law, supra note 161, at 84–85.
169
Pirates were long held accountable under the law of nations: see, e.g.,United States v. Smith, 18
U.S. (5 Wheat.) 153, 156 (1820) (“[P]irates being hostes humani generis, are punishable in the
tribunals of all nations. All nations are engaged in a league against them for the mutual
defence and safety of all.” Id.) See also, Mark W. Janis, Individuals as Subjects of International
Law, 17 Cornell Int’l L.J. 61 (1984).
170
Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg,
Nov. 14, 1945–Oct. 1, 1946; 20 The Tokyo Major War Crimes Trial (Judgment and
Annexes) (R. John Pritchard & Sonia Magbanna Zaide eds., 1981).
171
Hans Kelsen, Law of the United Nations 738–39 (1950); Hans Kelsen, The Legal Status
of Germany According to the Declaration of Berlin, 39 AJIL 518 (1945); Hans Kelsen, Collective
and Individual Responsibility in International Law with Particular Regard to the Punishment of
War Criminals, 31 Cal. L. Rev. 530 (1943).
172
See infra ch. 8.
173
Id.

Enforcement Theory
In the new United Nations (UN), the Security Council had discretion to
decide whether to enforce the “judgments” of the court.174
It was the Security Council, not the ICJ, which became the center-
piece of the UN. The Security Council’s job is to enforce the peace, not the
law. The use of armed force was finally prohibited for all states in UN
Charter Article 2(4), except with Security Council authorization, or in
cases of self-defense to an armed attack, until such time as the Security
Council acts. The Security Council received broader authority than states
to act in response to threats to the peace, breaches of the peace, and acts of
aggression, and the drafters gave the victorious powers of World War II
the right to veto any resolution mandating action.175 Despite these clear
discrepancies between the postwar order and Kelsen’s theories, much of
the thinking among international law scholars after the war continued to
correspond with Kelsen’s. State-will theory was discredited, as was Kelsen’s
rival Schmitt—at least among international law scholars.
In advocating courts, Kelsen was joined by his fellow Austrian,
Hersch Lauterpacht (1897–1960) who wrote in his 1933 book, The
Function of Law in the International Community that “the decisive test is
whether there exists a judge competent to decide upon disputed rights
and to command peace.”176 After the Second World War, he pointed to the
Nuremberg Tribunal and its judgment on Germany’s use of force as evi-
dence of international law’s maturity. Just as in decisions to use force in
self-defense under national law, international law recognized that leaders
would decide on the use of force in emergency self-defense, but they would
also be judged after the fact against the rules on the use of force. Leaders no
longer had discretion to resort to war as when theories of absolute sover-
eignty and positivism prevailed.177
After the war, Lauterpacht recognized the hunger for moral content
in the law again. He wrote a major article in the British Yearbook of
International Law seeking to revive primary elements of Grotius’s teaching.
Although Kelsen had sought to revive the Just War Doctrine of Augustine,
Aquinas, and Grotius, he rejected the natural law theory that gave the
174
See UN Charter art. 94.
175
Following the adoption of the Charter, the term war dropped out of fashion. War ministries
became defense ministries. Most governments and scholars concluded that armed reprisals
were no longer lawful even for law enforcement.
176
Hersch Lauterpacht, The Function of Law in the International Community 424
(1933).
177
Lauterpacht, The Grotian Tradition in International Law, supra note 33, at 19 n.4.

doctrine power in a world of sovereign states.178 Lauterpacht understood

that law, all law, is a hybrid system of natural and positive law conceptions.
He explained that this simply had to be acknowledged in the case of inter-
national law because the destructured nature of the system left the fact
more obvious than in national legal systems:
The fact is that while within the state it is not essential to give
to the ideas of a higher law—of natural law—a function supe-
rior to that of providing the inarticulate ethical premiss
underlying judicial decisions or, in the last resort, of the philo-
sophical and political justification of the right of resistance, in
the international society the position is radically different.
There—in a society deprived of normal legislative and judicial
organs—the function of natural law, whatever may be its form,
must approximate more closely to that of a direct source of
law. In the absence of the overriding authority of the judicial
and legislative organs of the state there must assert itself—
unless anarchy or stagnation are to ensue—the persuasive but
potent authority of reason and principle derived from the fact
of the necessary coexistence of a plurality of states. This
explains the pertinacity, in the international sphere, of the
idea of natural law as a legal source.179
Lauterpacht pointed out that even vehement positivists such as Kelsen

essentially shared this view.180 Indeed, Kelsen came to share it more explic-
itly after Lauterpacht’s 1946 article, when he began to describe the princi-
ple underlying the authority of all law as not consent (pacta sunt
servanda—his earlier view), but as community acceptance.181 Kelsen also
advocated the Just War Doctrine, as did Lauterpacht, and the view that the
use of force was governed by law and permissible only in response to
wrongs.
In addition to reviving the Grotian tradition of natural law,
Lauterpacht described nine other “features” of the Grotian tradition that
were essential aspects of postwar international law. He wrote eloquently of
178
Supra note 149.
179
Lauterpacht, The Grotian Tradition in International Law, supra note 33, at 22–23.
180
Id. at 22.
181
See supra note 148 and accompanying text.

Enforcement Theory
how the Grotian tradition included “the subjection of the totality of inter-
national relations to the rule of law;” “the rejection of ‘reason of State;’”
“the distinction between just and unjust war;” “the idea of peace;” and “the
tradition of idealism and progress.”182 Lauterpacht wrote that these fea-
tures of the tradition:
explain why writers and statesmen have turned to Grotius not

only as a source of evidence of the law as it is, but also as a well-
spring of faith in the law as it ought to be. Grotius did not create
international law. Law is not made by writers. What Grotius
did was to endow international law with unprecedented dig-
nity and authority by making it part not only of a general
system of jurisprudence but also of a universal moral code. To
many, indeed, it may appear that De Jure Belli ac Pacis is more
a system of ethics applied to states than a system of law.183
Lauterpacht rejected arguments that international law could only

be a “‘law of co-ordination’ effected by the agreement of sovereign States.”184
International law was a complete system of law binding on sovereigns
even without their consent. Lauterpacht shared with Grotius an optimistic
attitude toward human nature, a belief in humans as rational beings “in
whom the element of moral obligation and foresight asserts itself trium-
phantly over unbridled selfishness and passion, both within the state and
in the relations of states.”185 He shared the Grotian belief in community.
Lauterpacht’s important work on Grotius infused new life into the natural
law-international law connection. Prominent international law scholars,
especially in Europe, continued to assume a role for natural law.186 The
doctrine of jus cogens or peremptory norms, including norms against slav-
ery, torture, extrajudicial killing, apartheid, genocide, and aggression
182
Lauterpacht, The Grotian Tradition in International Law, supra note 33, at 51. The remaining four
features are “the affirmation of the social nature of man as the basis of the law of nature;” “the
recognition of the essential identity of states and individuals;” “the binding force of prom-
ises;” and “the fundamental rights and freedoms of the individual.” Id.
183
Id. at 51.
184
Id. at 34.
185
Id. at 26.
186
See e.g., Conforti, supra note 3; and, especially, Alfred Verdross and Heribert Franz Koeck,
Natural Law: The Tradition of Universal Reason and Authority, in The Structure and
Process of International Law: Essays in Legal Philosophy Doctrine and Theory 
(R. St. J. Macdonald & D.M. Johnston eds., 1983).

could only come from an extraconsensual source as they cannot be

changed through the positive law methods of treaty and custom.
Jus cogens norms and human rights in general were promoted by
American international law scholars. Still, the major action in the world of
political and legal theory in the United States after World War II was around
the ideas of realism, not a revival of naturalism. It was Thomas Hobbes not
Hugo Grotius who held sway. It would be another six decades and a scandal
over torture and war in response to the horror of terrorism before a new
interest in the Grotian tradition would emerge in the United States as it had
for Europe after World War II. The next chapter discusses why.

Chapter 2
Compliance Theory
W hen the Nazis took power in Germany, they understood the need
to “take over the world of German law, including international law”
to advance their ambitions.1 A prime strategy for doing this was removing
uncooperative legal scholars from their university posts. According to
Detlev Vagts of Harvard University, thirteen of Germany’s thirty-five full
professors of international law were removed between 1933 and 1939.2
These scholars were replaced by men willing to distort international law or
to dismiss its fundamental tenets to advance Nazi ideology and ambition.
Carl Schmitt was one of them. A scholar of constitutional and international
law, Schmitt’s career advanced as he joined the Nazi party and developed
legal positions supportive of Hitler’s domestic and foreign policies. Schmitt
received promotions from the University of Bonn to the University of
Cologne and then to a coveted place in Berlin.3 He told the Nazis what they
wished to hear: Germany was a superior state, with superior political ideas,
1
Detlev F. Vagts, International Law in the Third Reich, 84 AJIL 661, 671 (1990).
2
Id. at 677.
3
Id. at 684; Mark Lilla, The Reckless Mind, Intellectuals in Politics 49–51 (2001).

Enforcement Theory
entitled to be the dominant power in a European Grossraum, or grand

space.4 Any international law opposed to this could be ignored. The old
debate over the ordering of state will and international law was once again
in play with Schmitt and other Nazi theorists arguing that German law
and policies were naturally superior to world law. If international law
coincided with German interests, then Germany should follow it, but if
German interests or German internal law diverged, it need not. Nazi
scholars argued that it was inconceivable for Germany to subordinate its
law or policy to the rules of a universal system.5
This perspective stood in stark contrast to Hans Kelsen’s robust
theory of international law as law superior to all state law and as strictly
regulating the use of force. Kelsen’s theories and his Jewish heritage made
him an obvious target for removal by the Nazis. He was teaching at the
University of Cologne in west central Germany when university officials
received word from Nazi authorities that he had to go. His faculty colleagues
protested, signing a letter arguing against Kelsen’s removal. The letter,
however, lacked one decisive signature—that of Carl Schmitt. Schmitt was
also a member of the Cologne law faculty at the time. Indeed, Kelsen had
4
Vagts, supra note 1, at 689, citing C. Schmitt, Völkerrechtliche Grossraumordnung
mit Interventionsverbot für Raumfremde Mächte: Ein Beitrag zum Rechtsbegriff
im Völkerrecht (1939). According to Lilla, Schmitt tried to argue the theory was valid by
citing the Monroe Doctrine, but the argument “was a transparent attempt to justify Hitler’s
imperialistic ambitions for the Third Reich. (Schmitt would later claim that he was trying to
modify and redirect those ambitions.)” Lilla, supra note 3, at 52. See also Andrea Gattini,
Sense and Quasisense of Schmitt’s Grossraum Theory in International Law—A Rejoinder to
Carty’s “Carl Schmitt’s Critique of Liberal International Legal Order,” 15 Leiden J. Int’l L. 53,
56 (2002), citing B. Rüthers, Entartetes Recht 142 (1988). Gattini’s article is generally a
rich source on Schmitt and his views of international law, especially as they supported Hitler’s
aggression.
5
Vagts, supra note 1, at 691, citing L. Schecher, Deutsches Aussenstaatsrecht 136 (1933),
as a work strongly advocating German law as superior to international law. Some German
lawyers who provided specious advice on international law were later held accountable. Most
famously, Hitler’s foreign minister, Joachim von Ribbentrop, was indicted at Nuremberg for,
among other crimes, his fallacious legal justification for the pre-emptive attacks on Norway,
Denmark and the Low Countries. 10 Trial of the Major War Criminals Before the
International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946,
68–70. See also United States v. Altstoetter (The Justice Case), in 3 Trials of War Criminals
Before the Nuremberg Military Tribunals Under Control Council Law No. 10, at
1063–81 (1949). The Reich Justice Minister received a prison sentence. The tribunal said he
had “‘sold’ his intellect and scholarship to Hitler and ‘prostitut[ed] . . . a judicial system for
the accomplishment of criminal ends.’” See also Richard B. Bilder and Detlev Vagts, Speaking
Law to Power: Lawyers and Torture, 98 AJIL 689, 694 (2004), citing United States v. Altstoetter,
3 Trials of War Criminals Before the Nuremberg Military Tribunals Under
Control Council Law No. 10, at 1068 (1949).

Compliance Theory
strongly supported him for the position, which Schmitt knew. By the time
Kelsen was forced out, Schmitt was prominent in Nazi circles and might
have been able to intervene on Kelsen’s behalf. The absence of Schmitt’s
signature in support of Kelsen likely had the opposite effect.6
Kelsen left Cologne first for Geneva, then, fearing that Switzerland,
too, would be pulled into the war, he went briefly to Prague, then to the
United States (the US).7 Like so many other refugees, Kelsen arrived in
financial difficulties. He was in his mid fifties and needed a job. He was
offered a visiting position at Harvard for two years, but the dean there
would not retain him despite his towering reputation.8 He then applied for
a number of positions before the University of California-Berkeley’s polit-
ical science department hired him in 1942. Berkeley waived the manda-
tory retirement age so that Kelsen could remain employed until 1952. He
continued to make major contributions, especially on the law of the new
United Nations (UN).
Despite his compelling personal story, Kelsen’s influence in the
United States was already waning by the 1960s. Ironically, Schmitt has
likely had the greater impact because of his followers, including another
German Jewish refugee scholar of international law, Hans Morgenthau.9
Morgenthau had studied the work of both Kelsen and Schmitt when a
student and young scholar of international law in Germany and Switzerland.
He preferred Schmitt.10 Even after becoming a victim of Nazism like Kelsen,
Morgenthau turned decisively away from international law and toward
political science. He was confident that states, like men, lust for power and
that international law cannot constrain the forceful pursuit of power. His
own personal sense of having been controlled by powerful figures—his
6
Rudolf Aladár Métall, Hans Kelsen: Leben und Werk 61 (1969).
7
Leo Gross, Editorial Comment: Hans Kelsen, October 11, 1886–April 15, 1973, 67 AJIL 491,
493 (1973). According to Lilla, Lilla, supra note 3, at 49, 52–53:
Schmitt was arrested at the end of the war by the Russians but was released. The
Americans arrested him again. He spent eighteen months in an internment camp, was
sent to Nuremberg for questioning but was again released. He returned home to the
small town of Plettenberg in Westphalia where he died in 1985 at age ninety-six.
Although he faced no prosecution for his legal activities in support of Nazism, no
university would hire him.
8
Gross, supra note 7, at 494.
9
See Christoph Frei, Hans J. Morgenthau: An Intellectual Biography (2001). See also,
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960, at 436–37 (2001).
10
Frei, supra note 9, at 117–19. Frei also provides evidence that Morgenthau was heavily influ-
enced by the German philosopher Nietzsche. Id. at 98–102.

Enforcement Theory
father, school bullies, teachers, external reviewers, government authorities,

and university deans—may explain why he thought the ultimate goal of all
men is the quest for power and that security lay only in having greater
power than others.11 In 1940, Morgenthau wrote an article highly critical
of the expectations people had for international law.12 For him, interna-
tional law, with its ineffective sanctions and inadequate theory, was too
weak to command respect in the ultimate questions of power.13
Morgenthau’s thinking has had a profound impact in the United
14
States. The realist school of international relations owes many of its core
ideas to him, including skepticism and even outright hostility toward
international law.15 In the late 1960s, Louis Henkin responded to Morgenthau
with an eloquent defense of international law. Henkin had also been influ-
enced by the Second World War, but he had traveled in the opposite direc-
tion to Morgenthau. Henkin served four years in combat with the United
States Army in North Africa and Europe. He won the Silver Star for
gallantry. Returning from the war he worked first for the State Department,
then began a long career in the academy. At Columbia University, he wrote
his now classic book, How Nations Behave. In it, he responded to
Morgenthau and other realists that law, whether national or international,
is not dependent on the sanction to qualify as law.16 Following the British
legal philosopher, H.L.A. Hart, Henkin explained that law depends on
acceptance and compliance far more than sanctions. International law
is accepted and generally complied with because it offers substantial
11
See id. chs. 1–4.
12
See Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AJIL 260
(1940).
13
LeBow argues persuasively, however, that Morgenthau’s views evolved over time and that
while he never moved from his skepticism over the ability of law to constrain war, he did
support diplomacy, international organization, morality and some role for law. See Richard
Ned LeBow, The Tragic Vision of Politics, Ethics, Interests and Orders, 224–25, 231,
239, 245 (2003). Morgenthau apparently never pursued a consequentialist ethic but always
a deontological one, opposing the view that the end can justify the means. Id. at 237–38.
14
“After half a century, the writings of Hans J. Morgenthau continue to fill the minds, and often
the hearts, of students of international politics. During the Cold War, his ‘realist’ approach ran
as a leitmotif through political and academic discourse, his Politics Among Nations rising to
become a classic. Though Kenneth Waltz’s more ‘scientific’ realism has arguably overtaken
Morgenthau’s realism among contemporary scholars, he remains widely read in the field and
was indeed a formative influence on Waltz himself.” Daniel Philpott, Moral Realism, 64 Rev.
Pol. 378, 378 (2002) (reviewing Christoph Frei, Hans J. Morgenthau: An Intellectual
Biography (2001). See also LeBow, supra note 13, at 216, and infra pp. 62–68.
15
See infra pp. 62–67.
16
See infra pp. 71, 74–78.

Compliance Theory
practical advantages to policymakers who rely on it daily. Henkin offered

a more realistic picture of international life than the realists.
This view that international law and institutions play an important
role in the world eventually split international relations scholars in the
United States between realists and regime theorists.17 Although most real-
ists continued to dismiss international law, Henkin had helped preserve a
place for international law in United States foreign policy and the American
academy. Yet, by minimizing the importance of the sanction, Henkin also
opened the door to confusion about the nature of international law. Was
international law just descriptive of pragmatic, rational conduct that states
would pursue, whether required by law or not?
Confusion over the nature of international law only grew in the
1980s when a new form of realism emerged as a development of the post-
modern intellectual movement.18 The proponents of this new realism,
critical legal theorists or crits, joined the traditional realist attack on inter-
national law. The crits also emphasized the theoretical weaknesses of
international law. Yet, instead of arguing that international law held states
back from pursuing their national interest, critical legal theorists tended
to see the opposite: International law supports state power. After all, it is
international law that establishes state sovereignty and the privileges that
sovereignty implies. It is international law that permits states to use force
for the protection of state interests. The crits saw the world as a place of
violence, inequality, and indignity. International law, in their view, helped
create this world.
The early critical theorists offered only critique, but they were soon
followed by others interested in reforming international law, of reconceiv-
ing it in the interest of humanity. These reform-minded scholars attacked
the state, wresting international law away from traditional state leaders
and into the hands of communities of all kinds. They argued these com-
munities could make the law, and many in the reformist movement wanted
sanctions applied to make clear that what they had created was law. They
even advocated the use of military force. As the movement gained power
and influence in the 1990s, traditional state leaders made common cause in
a number of important initiatives. In particular, new courts were developed,
including a new International Criminal Court. Kelsen’s vision appeared to
17
18

Enforcement Theory
be coming to pass: International law sanctions were being subjected to

a system of courts and robust substantive rules. Moreover, the focus was
moving beyond states to organizations and individuals.
Yet, international law theory did not appear to be keeping pace with
the new developments. Positivism remained the dominant theory—made
more plausible by Henkin’s insights—but critical theorists and others had
raised serious doubts about positivism’s explanatory power. The theory
gap left international law vulnerable to a new attack by new statists, among
them America’s neoconservatives. International law would once again be
depicted as a dangerous obstacle to United States power. As the next chap-
ter will show, however, far from eliminating international law as a concern
for US policy-makers, neoconservative policies put into practice have
helped remind the world why international law has commanded respect
for centuries. Neoconservative policies have helped revive classical think-
ing in international law, including classical thinking about enforcement.
This new classical thinking incorporates the insights of the centuries
following Grotius. This chapter looks at the insights into enforcement
theory of the second half of the twentieth century—fifty years of intellec-
tual struggle that ended with the new inclusiveness and moral emphasis of
postmodernism, plus its skepticism regarding positivism and sovereignty,
as well as the understanding of Louis Henkin and others that, although
sanctions are an essential aspect of every rule, their effective application is
not the sine qua non of law; acceptance by the community is.
I. No Law Without Sanctions

Immediately after the Second World War, judging by the literature, inter-
national law scholars focused largely on Nuremberg and other trials taking
place in Germany and Japan, as well as the new United Nations and other
new postwar institutions.19 Theories of absolute state sovereignty, sover-
eignty superior to international law appeared dead. Morgenthau, however,
did not focus on the United Nations, but rather on his concept, reminis-
cent of Hobbes, that individuals, and through them states, lust for power.20
Every state has a will to power and every national leader must take this
19
See, e.g., David J. Bederman, Appraising a Century of Scholarship in the American Journal of
International Law, 100 AJIL 20, 36–38 (2006).
20
See supra ch. 1, at 27, for a brief discussion of Hobbes and Grotius.

Compliance Theory
basic fact into account.21 In his view, it is a leader’s duty to acquire as much
power for his state as possible.22 In Morgenthau’s world, international law
does play some role in the decisions of national leaders. International law
cannot, however, bear on the ultimate question of the pursuit of power.
For it to matter in this question, international law would have to have real
sanctions that leaders had to contend with in weighing the costs and ben-
efits of law compliance in the pursuit of power. “‘[H]uman will can only be
determined by the expectation of pleasure or fear of pain. . . . If the expec-
tation of sanction is missing, then the norm lacks reality: We have today
come to the conclusion that the essential problem must be seen in the
nature of sanctions.’”23 Morgenthau required that the sanction be “effective,
that is to say, capable of ‘breaking the recalcitrant will.’”24
Kelsen, too, had postulated both of these points: The sanction is
essential to the reality of law and there must be a certain level of effective-
ness for a system of law to exist.25 Legal rules had to be generally effective
in gaining compliance to establish the existence of a legal system. General
effectiveness was apparently not enough for Morgenthau, however. He
demanded far greater effectiveness from sanctions before conceding that
all international law should be obeyed. A prudent leader would enter into
and comply with some agreements, just not all of them. In the first edition
of Politics Among Nations (1948), Morgenthau wrote that
during the four hundred years of its existence international

law has in most instances been scrupulously observed. When
one of its rules was violated, it was, however, not always
21
Koskenniemi, supra note 9, at 454, citing Hans Morgenthau, La notion du ‘politique’
43 (1933).
22
Kingsbury writes that Morgenthau was also influenced by the positivist/realist perspective of
Lassa Oppenheim: “Oppenheim’s general approach to the political foundations of interna-
tional law, and many of his arguments about specific rules and institutions, have helped
sustain a broader pattern of thought about the relations of international law and politics pro-
pounded by a line of influential political scholars running from E.H. Carr (1892–1982) to
Hans Morgenthau (1904–1980), Raymond Aron (1905–1983), Hedley Bull (1932–1985) and
the modern English School.” Benedict Kingsbury, Legal Positivism as Normative Politics:
International Society, Balance of Power and Lassa Oppenheim’s Positive International Law, 13
EJIL 401, 435 (2002) (footnote omitted); see also supra, ch. 1, at 42–46.
23
Koskenniemi, supra note, at 455, citing Hans Morgenthau, La Réalité des normes, 46,
242 (1934).
24
Koskenniemi, supra note 9, at 458, citing Hans Morgenthau, Théorie des sanctions inernation-
ales, 16 Rev. Droit Int’l 478–83, 490 (1935).
25
See supra, ch. 1, at 49–50.

Enforcement Theory
enforced and, when law enforcement action was actually

taken, it was not always effective. Yet to deny that international
law exists at all as a system of binding legal rules flies in the
face of all the evidence.26
Also like Kelsen, Morgenthau characterized international law as a

primitive system and Morgenthau saw a possible remedy for that condition
in a court system,27 but court decisions would in turn need enforcement.
He concluded:
There can be no more primitive and no weaker system of law

enforcement than this; for it delivers the enforcement of the
law to the vicissitudes of the distribution of power between
the violator of the law and the victim. . . . A great power can
violate the rights of a small nation without having to fear effec-
tive sanctions on the latter’s part. It can afford to proceed
against the small nation with measures of enforcement under
the pretext of a violation of its rights, regardless of whether the
alleged infraction of international law has actually occurred
or whether it justifies the measures taken. 28
A less powerful state might enlist the help of a more powerful one.
Otherwise, it had no chance of success. Despite this, “[i]t must be pointed
out, however, that the actual situation is much less dismal than the forego-
ing analysis might suggest. The great majority of the rules of international
law are generally observed by all states without actual compulsion, for it is
generally in the interest of all states concerned to honor their obligations
under international law.”29 In the small group of important cases, however,
Morgenthau argued that the drive for power would dictate a leader’s
choice, not respect for international law. Morgenthau acknowledged that
statesmen and scholars had long attempted to create more effective sanc-
tions in international law to create higher cost for noncompliance in all
areas regulated by the law. He writes of Emmerich de Vattel’s treaties of
guarantee, in which a powerful state acts as guarantor of the rights of
26
Hans Morgenthau, Politics Among Nations 211 (1948).
27
Id. at 224.
28
Id. at 229.
29
Id.

Compliance Theory
a weaker state in the weaker state’s treaty relations with a more powerful
third state. Such treaties might be useful to ensure the fulfillment of com-
mitments if the guarantor has an interest in the matter. The method has
limited application, however, because of the problem of finding a guaran-
tor sufficiently interested in the compliance to either pressure a noncom-
plying state into compliance or to carry out the obligation itself.30
States have also tried collective security. “Collective security is the
most far-reaching attempt on record to overcome the deficiencies of a
completely decentralized system of law enforcement.”31 “[C]ollective secu-
rity envisages the enforcement of the rules of international law by all the
members of the community of nations, whether or not they have suffered
injury in the particular case. . . .”32 As with treaties of guarantee, Morgenthau
again noted the difference between the theory of collective security and
the actual practice. States had not joined together to enforce provisions of
the Covenant of the League of Nations as envisaged in Article 10. He
predicted they would equally fail to fulfill provisions of the United Nations
Charter (the UN Charter or the Charter) that had been designed for col-
lective enforcement.33 Chapter VII of the UN Charter authorized the
Security Council to call on all UN members to enforce the Charter’s pro-
hibition on the use of force as well as to restore international peace and
security in the face of threats to the peace, breaches of the peace, or acts of
aggression.34 Thanks to the veto, he predicted collective power would
never be used to enforce the law against the most powerful states or their
clients.
Thus the veto reintroduces into the system of law enforcement

of the United Nations the principle of decentralization by
making the operation of the system dependent upon the will
of each of the permanent members . . . [I]t incapacitates them
for the performance of the function which concerns us here
above all, namely, the imposition of effective restraints upon
the struggle for power on the international scene.35
30
Id. 232.
31
Id.
32
Id.
33
Id. at 237–39.
34
Id. 232.
35
Id. at 240.

Enforcement Theory
The veto reflects the continuing vitality of the principle of sover-

eignty in international relations. Morgenthau believed that states simply
would not give up a portion of their sovereignty even for a goal as impor-
tant as preserving the peace. “[T]he advice to give up ‘a part of national
sovereignty’ for the sake of the preservation of peace is tantamount to the
advice to close one’s eyes and dream that one can eat one’s cake and have
it, too.”36 This last statement, however, is inconsistent with other state-
ments by Morgenthau in the same book that most of international law is
obeyed and should be obeyed most of the time. He seems to have a view
that no progress is possible toward the very solutions he himself set out for
the ultimate problems of power and law compliance. He failed to note that
from the early attempts at collective guarantees at Westphalia to the devel-
opment of the United Nations, progress is evident. Morgenthau shared
much with Kelsen respecting basic conceptions about international law,
but whereas Morgenthau held fast to his belief that the will to power would
prevent solutions to the system’s structural problems, Kelsen believed
improvement was possible. Morgenthau had arrived in the United States
with “a thoroughly pessimistic outlook on human nature and society.”37
This pessimism is reflected in his views of international law.
Although Morgenthau did not envision a solution to the problems
he perceived with international law, he did envision policies to aid
America’s pursuit of power. Like Schmitt, he believed a strong man was
needed, a man who would save the nation by pursuing power: “The deci-
sive actor in international politics was the statesman who had to rise above
the masses to realize the national interest. . . .”38 Pursuing the national
interest, which meant pursuing power, was the highest goal.39 Morgenthau
pitted his strongman, capable of responding decisively to each new emer-
gency in the national interest when not overly fettered by legal or moral
constraint, against the liberal, distracted by sociology’s search for the key
to human behavior. For Morgenthau, “Kelsen . . . failed to take account of the
‘competition for power and security’ that was the essence of international
politics. The dangerous and unpredictable conditions of international
36
Id. at 263.
37
38
Id. at 468.
39
LeBow argues that Morgenthau held a more sophisticated understanding of power than the
one employed by his realist successor who focused on military power. LeBow, supra note 13,
at 230–31.

Compliance Theory
politics made it imperative that decision-makers be freed from formal

rules or dogmatic moral principles that tied their hands when prudence
and innovation—Morgenthau’s ‘wisdom’—were called for.”40
Morgenthau did preserve some role for international law, in contrast
to some of his most influential students. Kenneth Waltz and other realists
who followed Morgenthau simply dismissed international law altogether.41
Stephen Krasner argued that “state behavior and associated international
outcomes may appear to be shaped by international law, but because inter-
national law mirrors the interests of powerful states, international law is
merely an epiphenomenon of underlying power.”42 In other words, the
only aspect of international life really meriting the policymaker’s concern is
the pursuit of power, meaning military power.
At the same time that American international relations theorists
were dismissing international law from their consideration, domestic legal
theorists were moving in a direction that excluded international law from
their concerns as well. A variety of developments likely account for the
decline of interest in international law in US law schools: the 1960s were
the era of civil rights, women’s liberation, and antiwar sentiment. The
focus of legal scholarship was the US Constitution. The hot topic to teach
and to research was constitutional law. In addition, theoretical disorienta-
tion was caused by a full turn toward positivism and away from the natu-
ralism on which international law still appeared to rest, despite the
influence of Oppenheim and others.43 How could international law be a
40
Koskenniemi, supra note 13, at 471, citing John Herz, Political Realism and Political
Idealism 204, 96–102 (1951).
41
42
Richard H. Steinberg & Jonathan M. Zasloff, Power and International Law, 100 AJIL 64,
74 (2006).
43
Professor Wythe Holt, a legal historian at the University of Alabama School of Law, has sug-
gested that American officials became uncomfortable with international law as US law
became increasingly understood solely through positive law theory, to the exclusion of natu-
ral law. Remarks to the author, April 2007. See also, Andrea Bianchi, International Law and
U.S. Courts: The Myth of Lohengrin Revisited, 15 EJIL 751, 754 (2004):
The different nature of international law and its potentially pervasive effects on
domestic law are often a cause for the U.S. legal system to reject its proper implemen-
tation. At the base of this attitude, . . . lies the perception that the fundamental tenets
of the domestic legal order, as enshrined in the Constitution, cannot be altered by a
body of law which does not exclusively emanate from the national societal body.
See also Paul W. Kahn, American Hegemony and International Law, Speaking Law to Power:
Popular Sovereignty, Human Rights, and the New International Order, 1 Chi. J. Int’l L.
1 (2000).

Enforcement Theory
system of positive law when it lacked the institutions for positive-law

making, adjudication, and enforcement? Oppenheim had provided no
coherent explanation of the power or purpose of international law if it
could not ultimately restrain force, which, he believed, it could not.
Anthony Carty’s observation appears apt that the “orientation of interna-
tional law theory which Oppenheim expressed could only lead, and did in
fact lead, to the demise of the discipline in so far as a world-state law,
based inevitably on sovereign State will, receded from the imagination of
the possible after 1945.”44
II. Law Compliance

In response to these developments, some international law scholars in the
US began to look for ways to make international law appear relevant to
policymakers again. They took to heart Morgenthau’s admonition not to
overly fetter the dynamic policymaker in the nuclear age.45 They devel-
oped new descriptions of international law free of strict formalism and
Kelsen’s segregation of law from politics.
Harold Lasswell and Myres McDougal at Yale shared Morgen-

thau’s critique that American thought about international law
had ignored the behavioralist revolution. . . . Moreover, like
Morgenthau, they were acutely aware of the dominant posi-
tion of the United States in the postwar world. In that context,
they sought to develop a jurisprudence that could help U.S.
lawyers and policymakers meet their newfound responsibili-
ties, advancing a just and democratic image.46
McDougal and Lasswell looked to the behavioral sciences—

psychology, sociology, and anthropology, as well as political theory—to
reconceptualize international law.47 Law for them was informal and
44
Anthony Carty, Why Theory?—The Implications for International Law Teaching, in Theory
and International Law: An Introduction 75, 83–84 (1991).
45
Koskenniemi, supra note 13, at 482–83.
46
Steinberg & Zasloff, supra note 42, at 77.
47
See Studies in World Public Order (Myres S. McDougal et al. eds., 1960); Myres
S. McDougal & W. Michael Reisman, International Law in Policy-Oriented Perspective, in The
Structure and Process of International Law: Essays in Legal Philosophy Doctrine
and Theory 103 (Ronald St.J. Macdonald & Douglas M. Johnston eds., 1983).

Compliance Theory
dynamic, properly aimed at the promotion of human dignity in the world.48

Their approach was well suited to US policymakers who wished to be
associated with international law and the cause of human dignity, while at
the same time free to promote US predominance.49 They drew to Yale
many who would lead the field for decades to come: Michael Reisman,
Rosalyn Higgins, Oscar Schachter, Richard Falk, Florentino Feliciano, and
Ved Nanda, among many other prominent international law scholars.
The Yale scholars, known as the New Haven School, delinked the cre-
ation of law from traditional formal sources and processes. They did the same
with the sanction. Reisman, another long-time collaborator of McDougal’s,
explained the role of the sanction in this flexible legal world in a long,
erudite article written in 1971.50 He acknowledged the importance of the
sanction, disagreeing with Michael Barkun that there could be “law” with-
out sanctions,51 but he also departed from both Austin’s and Kelsen’s narrow
understanding of what counts as the sanctions of law.52 For Reisman,
[w]hen we speak of group life, whether it be the microcosmic

level of the smallest group of short temporal duration or the
level of the most comprehensive world community, extending
to all the geographic limits of man’s interaction, we are
speaking, in some sense, of a system of sanctions: coordinated
expectations of indulgences and deprivations, of rewards and
punishments, meted out in authoritatively expected procedures,
with either the active support or the passive acquiescence of
the rank and file and with the ostensible objective of main-
taining public order.53
48
Like other adherents of “sociological jurisprudence” they understood that human beings
search for not simple power but more complex values, including, “security, wealth, respect,
well-being, skills, enlightenment, rectitude, and affection.” Steinberg & Zasloff, supra note 42,
at 77.
49
Neil Duxbury, Patterns of American Jurisprudence 197 (1995); see also Koskenniemi,
supra note 13, at 486.
50
W. Michael Reisman, Sanctions and Enforcement, in The Future of the International
Legal Order 273 (Cyril E. Black & Richard A. Falk eds., 1971), reprinted in International
Law Essays: A Supplement to International Law in Contemporary Perspective 381
(Myres S. McDougal & W. Michael Reisman eds., 1971).
51
Michael Barkun, Law Without Sanctions (1968).
52
Reisman, supra note 50, at 387–88, n.20, 382.
53
Id. at 384 (footnote omitted).

Enforcement Theory
Public order must be “a public order of human dignity.”54 Reisman

concludes that the weakness in international law lies not with a lack of
sanctions but in the process or processes for applying them, namely, in the
enforcement system.55 “[E]nforcement involves the continuous communi-
cation of a capacity to assemble and apply sanctions in order to realize the
value allocations decreed by authoritative prescriptions and decisions.”56
Apparently, the record of this continuous communication could be better,
but Reisman is not overly concerned about it. He certainly has doubts
about building any perfect enforcement system. Even improving the one
we have is not so important as improving the “inculcation of certain stan-
dardized perspectives about the globe.”57
The New Haven School precepts are attractive, humane, and
intelligent. Yet, a system allowing so much discretion to policymakers
around a concept as vague as “human dignity” began to lose its contours
as a legal system. The harsher criticism of the New Haven School was
aimed at McDougal’s evident promotion of United States policy. Human
dignity required a political system with a “democratic core” and commit-
ment to such values as “freedom, safety, and abundance.”58 International
law was manipulated to fit this conclusion. In 1985, at a meeting of the
American Society of International Law, Oscar Schachter famously pointed
to the New Haven School’s subjectivity, its blurring of the line between
policy, politics, and law, and its evident promotion of US interests and
apology for obviously unlawful US actions.59
By the 1990s, however, New Haven’s blend of realism (in its limited
belief in objective law) and naturalism (in its focus on a higher concept of
human dignity) could be seen reflected in ideas of the postmodern legal
theorists. New Haven’s focus on human rights, on a flexible, informal approach
to law, and on skepticism about the possibility of cabining law from policy
or politics, as well as skepticism about the possibility of objectivity in the
law, remained features of international law discourse thirty years after
54
Id. at 392–93.
55
Id. at 405–6.
56
Id. at 434.
57
Id. at 435.
58
Myres S. McDougal, Perspectives for an International Law of Human Dignity, 53 ASIL Proc.
107, 108 (1959).
59
See McDougal’s Jurisprudence: Utility, Influence, Controversy, 79 ASIL Proc. 266, 271 (1985)
(Remarks by Oscar Schachter).

Compliance Theory
their introduction.60 Even the acceptance of the importance of sanctions

to law persisted despite the efforts of other theorists to actually eliminate
them from the system.
The attempt to eliminate sanctions really began when Louis Henkin
set out to explain that international law, like all law, is not dependent on
the sanction to qualify as law. This discussion was part of the effort also
being made by Henkin and his colleagues at Columbia Law School—Philip
Jessup, Wolfgang Friedman, and later Schachter—to keep international
law relevant for American policymakers. Friedman and Henkin particu-
larly focused on the function of international law in the international
community. They, too, described it as dynamic, able to respond to the
changing needs of international society. If international law’s formal law-
making, application, and enforcement processes were not optimal, that
was not as important as actual compliance with the law. International law-
yers could observe the scene and interpret whether law compliance was
happening.
Yet the Columbia scholars, in contrast to McDougal, did see limits
in what counted as law. In his book, How Nations Behave, first published
in 1968, Henkin wanted to answer the realist critique, not accommodate
it. He sought to demonstrate the reality and relevance of international law
to realists like Morgenthau and, even more, to the American realist diplo-
mat George Kennan, 61 by responding particularly to Morgenthau’s argu-
ment that international law’s weak sanctions free the US to ignore it.
Henkin argued that the sanction is not what commands obedience to law.
Law is obeyed because it is accepted as authoritative by the community
that it governs. US leaders should not base their attitude toward interna-
tional law on the strength of its sanctions. It is not the sanction that makes
international law law.
Henkin took the focus off the sanction and placed it squarely on
actual compliance with international law. Compliance, he pointed out in
his clear, common sense style, was demonstrable throughout the interna-
tional community. His focus on actual compliance was further developed
by Roger Fisher of Harvard University, Thomas Franck of New York
University, and Abram and Antonia Chayes, also at Harvard.62
60
61
Louis Henkin, How Nations Behave 319–32 (2d ed. 1979).
62
Abram Chayes had joined Thomas Ehrlich and Andreas Lowenfeld at Harvard in the 1960s in
developing another response to the realists, “international legal process.” It focuses on the

Enforcement Theory
The move toward observing actual compliance and away from

insistence on formality was also a move away from the sanction as central
to the pedigree of a legal rule. Henkin’s response drew on the work of
H.L.A. Hart, the Oxford professor of jurisprudence. Hart’s book, The
Concept of Law (1961), is an acknowledged critique of both Austin and
Kelsen. Seven years after it appeared, it was cited by Henkin in How
Nations Behave (1968), a critique of Morgenthau and Kennan. Hart spoke
to the central concern that Morgenthau had voiced about international
law. Hart reduced the importance of the sanction in law, all law. It was a
new conception that plainly served international law. Hart explained that
law is not or not only a sovereign’s command backed by a sanction as
Austin conceived it, or the rule as sanction as Kelsen conceived it. “[T]he
effort to reduce to this single simple form the variety of laws ends by
imposing upon them a spurious uniformity.”63 Yet Hart did not move so
very far away from the single rule type. He added only a second category:
“Rules of the first type impose duties; rules of the second type confer
powers, public or private.”64 The primary rules or duty-type rules must
include restrictions on “violence, theft, and deception” as a precondition
for people to live together in society. Some form of social pressure or fear
is also needed to deter violations of these restraints.65 Some level of sanc-
tioning is needed for these rules, though Austin exaggerated the need, and
the power-conferring rules need no sanction at all.
As systems become more sophisticated, self-help in response to rule
violations is limited and the sanctions that are needed are increasingly
centralized. Judges emerge with exclusive authority to direct officials to
impose penalties.66 Penalties and sanctions are
required not as the normal motive for obedience, but as a

guarantee that those who would voluntarily obey shall not be
sacrificed to those who would not. To obey, without this,
would be to risk going to the wall. Given this standing danger,
actual role of law in the decision of policymakers, but did not have the influence of McDougal
or Henkin. It is linked to the later development of a theory of international law combining
positivism, naturalism and process, discussed in detail in Chapter Three, Part II, infra.
See also, Mary Ellen O’Connell, New International Legal Process, 93 AJIL 334 (1999).
63
H.L.A. Hart, The Concept of Law 48 (1961).
64
Id. at 79.
65
Id. at 89.
66
Id. at 95.

Compliance Theory
what reason demands is voluntary co-operation in a coercive

system.67
The majority in society must in the normal course voluntarily comply

with the rules if a legal system is to be maintained. Out of this
majority compliance comes the authority or legitimacy that is at the foun-
dation of the system. “Without their voluntary co-operation, thus creat-
ing authority, the coercive power of law and government cannot be
established.”68
So, even though Hart agreed with Austin that international law has
no sanctions, the lack of sanctions would not automatically deny interna-
tional law the character of law. For Hart, International law rules are
“thought and spoken of as obligatory; there is general pressure for confor-
mity to the rules; claims and admissions are based on them and their
breach is held to justify not only insistent demands for compensation, but
reprisals and countermeasures.”69 Hart traced the skepticism over interna-
tional law as law to two ideas: the simple command/sanction definition of
law and the idea that states could not ultimately be subject to legal rules.70
In Hart’s concept of law, however, sanctions did not play an essential role.
They are secondary, playing a role in assuring majority compliance, but
not integral to the definition of legal rules.71 It is the fact of recognition or
acceptance of rules that makes them rules. Even then, sanctions in inter-
national society have a different role from that in a national society. It is
not possible to place the same emphasis on sanctions that “may involve
fearful risks.” If a national society lacked legal sanctions, “repression and
punishment of crime, violence and theft would be hourly expected; but for
states long years of peace, have intervened between disastrous wars. These
years of peace are only rationally to be expected, given the risks and stakes
of war and the mutual needs of states. . . .”72
As for the possibility of a state being subject to law in the first place,
Hart, again like Kelsen, reminds us that states consist of a population
living in a territory under a legal system.73 States come in great variety so
67
Id. at 193.
68
Id. at 196.
69
Id. at 214–15.
70
Id. at 210–11.
71
Id. at 212–13.
72
Id. at 214.
73
Id. at 216.

Enforcement Theory
that it is not to the states themselves but to international law that one must
look to determine which entities are actually sovereign. It is within the
rules of international law that sovereignty is defined. Within those rules,
we find that the law can bind even sovereign states. The facts of interna-
tional life bear this out.74 So, Hart concluded that international law is law,
though in a form consisting of only primary rules. International law is
characterized largely by self-help in cases of breach.75 “Yet if rules are in
fact accepted as standards of conduct, and supported with appropriate
forms of social pressure distinctive of obligatory rules, nothing more is
required to show that they are binding rules. . . .”76 It is logical that states
have a system of binding rules superior to the will of any one state.
Given Hart’s concern, however, about the danger of sanctions in
international law and his failure to mention the prospects for courts evolv-
ing to regulate sanctions, he must view international law as likely to remain
a primitive system. The closing paragraph of The Concept of Law speaks,
at least abstractly, of international law’s future development toward greater
sophistication as a legal system—nothing like Kelsen’s concrete confidence.77
Hart’s concept of the law, especially his answer to Austin, was soon
reflected in the writing of influential international law scholars. The
1963 edition of Brierly’s International Law, edited by Waldock, contains
the passage:
[I]f . . . as probably most competent jurists would today agree,

the only essential conditions for the existence of law are
the existence of a political community, and the recognition
by its members of settled rules binding upon them in that
capacity, international law seems on the whole to satisfy these
conditions.78
Plainly, Hart also influenced Henkin. Henkin, like Hart, stressed

that one need only look at the facts of international life to see that states do
accept international law. And, like Hart, Henkin understood acceptance
74
Id. at 219–21.
75
Id. at 227.
76
Id. at 229.
77
Id. at 231.
78
J.L. Brierly, The Law of Nations 71 (Sir Humphrey Waldock ed., 6th ed. 1963); see also
Barkun, supra note 51.

Compliance Theory
as the key to understanding whether a society has a legal system. The fact
that international law rules do not necessarily look like traffic rules with
a traffic cop for their enforcement is not fatal. “The greatest deficiency, as
many see it, is that international society lacks an executive authority with
power to enforce the law.”79 International lawyers, however, “reject defini-
tions (commonly associated with the legal philosopher John Austin) that
deny the title of law to any but the command of a sovereign, enforceable
and enforced as such.”80 For Henkin, “[T]he question is not whether law is
enforceable or even effectively enforced; rather, whether law is observed,
whether it governs or influences behavior, whether international behavior
reflects stability and order. . . . [N]ations have accepted important limita-
tions on their sovereignty. . . .”81 Henkin echoed Hart in pointing to the
variety of laws beyond the command type. Moving beyond Hart, Henkin
pointed to the various possibilities for law-making, application, and
enforcement.82 These processes, too, could take more forms than are typi-
cally found in national societies.
Henkin was seeking to answer Morgenthau and the political science
realists who counseled American leaders to ignore international law when
it was inconvenient to comply. It was also a response to McDougal. Basing
obligation on acceptance was common to Henkin and McDougal. McDougal
was also interested in arguing that international law was relevant to for-
eign policymaking. But if McDougal offered an almost infinitely flexible
concept of international law—any decision by an authoritative decision-
maker accepted as law could be law—Henkin drew an ultimate limit to
law’s flexibility. At some point, the policymaker might actually have to
choose between law compliance and a particular policy of the moment.
Choosing the policy did not then make the policy law. Sometimes law
compliance came at a price. Those leaders with longer vision would be
willing to pay that price.
The “policy-oriented” approach “seems to see the law sub

specie aeternitatis, ever-changing, reflecting every action of
every government. It seems to see law not as is but always as
becoming, and to ask not what the law is but what it ought
79
Henkin, supra note 61, at 24 (citation omitted).
80
Id. at 25.
81
Id. at 26.
82
Id.

Enforcement Theory
to be. . . . A government contemplating action usually asks

what the law has been, independently of what it proposes to
do. It knows that ordinarily nations will judge and react to its
action in the light of the law as it is deemed to be now. A gov-
ernment may sometimes seek escape from the law as it is, but
it recognizes that in most instances there is no escape, and it,
in turn, will usually deny escape to others. From its perspective,
uncertainties of law are occasional and peripheral, change is
small and slow and often to be resisted.”83
Henkin presents a picture of pragmatic statesmen, going about their

business in a rational way. International law is a useful tool. They recog-
nize this and make efforts to keep the system in good working order. They
respond to violations so that the binding nature of obligations remains
meaningful. In fact, they need not respond all so often because the value
of international law is widely understood and, for this reason, rather than
the existence of sanctions, “[i]t is probably the case that almost all nations
observe almost all principles of international law and almost all of their obli-
gations almost all of the time.”84
Indeed, for Henkin, “[t]he preoccupation with ‘sanctions,’ then,
seems largely misplaced. The threat of such sanctions is not the principal
inducement to observe international obligations. At least, the absence of
sanctions does not necessarily make it likely that nations will violate law.
There are other forces which induce nations to observe law.”85 Statesmen
make cost/benefit analyses when a policy conflicts with a rule of interna-
tional law. This means more than calculating the gain or loss in complying
with a particular rule. In deciding what to do, policymakers take into
consideration how violating the rule will affect their state’s reputation as
trustworthy and law-abiding.86 “Every nation’s foreign policy depends
substantially on its ‘credit.’”87 Statesmen also consider the impact of rule
violation on the ability to maintain international law as a binding system
of rules. Henkin does not dismiss sanctions entirely from the assessments
83
Id. at 40–41.
84
Id. at 47.
85
Id. at 49, citing Roger Fisher, Internal Enforcement of International Rules, in Disarmament:
Its Politics and Economics 99, 106–20 (S. Melman ed., 1962).
86
87
Id. at 52.

Compliance Theory
made by government officials, but neither does he define sanctions as

essential. He, like Hart, sees sanctions playing a role in the legal system but
he could conceive of law without sanctions. 88 He points to the importance
of the incorporation of international legal norms in domestic systems as
an especially important way to guarantee compliance with international
law.89 “The effective legal system, it should be clear, is not the one which
punishes the most violators, but rather that which has few violations to
punish because the law deters potential violators.”90
Still, international law does permit pursuing wrongdoers, and
wrongdoing is punished: Henkin mentions the case of Korea in 1950. The
case of Iraq’s invasion of Kuwait in 1990 is a more recent example. It is not
the case that a state may simply decide that it no longer cares to abide by a
rule. The combined result of both pragmatic compliance and occasional
enforcement is enough to retain the consensus among states that interna-
tional society has a legal system. Indeed, it has almost never happened
that even a single rule has been so widely violated as to lose its character
as law, let alone the system of rules as a whole.91
Henkin wrote out of concern that the combination of Morgenthau’s
powerful critique of international law and the dramatic events of the 1960s
was obscuring the importance of international law in US foreign policy.
To bolster respect for international law among realist decision makers,
Henkin recalled the iconic story of America’s founding. Henkin empha-
sized that the Founding Fathers had been the type of pragmatic statesmen
who understood the value of international law. The US Constitution
reflects the importance of gaining the respect of other nations. Its drafters
recognized the protections that a new state like the United States could
find in international law. International law could continue to play a useful
role in US foreign policy, even as the US achieved a position of predomi-
nance in the world, a predominance often compared with that of imperial
Rome. Henkin argued that America’s national interest continued to lie in
respecting the law and even building it. The US should show other
88
Id. at 54.
89
In this he may have been influenced by his Columbia colleague, Philip Jessup. Henkin cites
Philip Jessup, Transnational Law (1956), but not for this point regarding incorporation.
See Henkin, supra note 61, at 342.
90
91
Id. at 98.

Enforcement Theory
countries—especially developing nations—that their national interest lies

in observing existing law.92
Henkin not only offered reasons why the US should obey interna-
tional law, he pointed to the weaknesses in the arguments of the oppo-
nents of international law. He pointed out that Kennan confused the law
against war with all international law. Kennan’s critique just did not make
sense with respect to most of international law, and, even with respect
to the law against war, while the law dramatically failed to stop some
wars, despite this and Kennan’s condemnation of “moralistic-legalistic”
approaches in foreign policy, leaders of sovereign states showed no sign of
giving up on law against war.93 These leaders understood that the longer
term interest of states lay in controlling war. US national interest was also
firmly bound to supporting international law on use of force—for itself
and others.94 This last point regarding the true national interest was
directed at Morgenthau. Kennan’s criticism may have come from misun-
derstanding what international law was, but Morgenthau’s failure to advo-
cate commitment to international law in the most important questions
came rather from his narrow view of human nature. His advocacy, how-
ever, of respecting international law on an ad hoc basis could only end in
creating instability and disorder through breaking down the widespread
acceptance of law. A world without order was not at all in the US national
interest or in that of or any other nation.95
In making his case in support of international law, Henkin based
his arguments on observations of the real world—just as Morgenthau had
done. Influenced by behavioralism rather than political theories about the
nature of men, Henkin was able to see more authentically what was hap-
pening in the real world. He understood that policymakers acted in pur-
suit of national interest. He was confident that the national interest
included more than amassing military power and, therefore, that support-
ing international law in the pursuit of national interest was highly rational.
He did not explore, as Hart had not, what accounts for community accep-
tance of law or what underlies a community’s understanding that law has
authority, and with that authority can help a community achieve its goals,
as well as the goals of its members, whether states or individuals.
92
Id. at 318–19.
93
Id. at 325.
94
Id. at 332–33.
95
Id. at 332, 339.

Compliance Theory
John Finnis, a leading natural law scholar and colleague of Hart,

suggests that Hart’s work does reflect concerns for such natural law inqui-
ries as the nature of justice, the common good, and the acceptability of law
to “civilized” peoples.96 Certainly, Hart’s famous 1958 exchange with
Harvard law professor Lon Fuller over positivism versus natural law would
have left a major impression.97 Fuller argued that the German commit-
ment to positivism and complete rejection of natural law helped explain
Hitler’s rise to power.98 Fuller pointed out that German legal scholars had
been so committed to positivism for seventy-five years that they failed to
concern themselves sufficiently with “the inner morality of law.”99 Hart
conceded to Fuller that the content of a positive law could be so immoral
as to require disobedience100—or obedience to higher law.
Natural law certainly remained the understood basis of interna-
tional law’s authority for many international lawyers. Natural law provided
the theoretical basis for the Nuremberg process and for rejecting defenses
made there and throughout the many trials that followed the war based on
positive laws of the Third Reich. The body of human rights law that emerged
after the war in response to Nazi and Japanese atrocities and the related
concept of jus cogens, or peremptory norms, as well as many important
general principles of law also find their explanation in natural law.101
96
John Finnis, On Hart’s Ways: Law as Reason and as Fact, 52 Am. J. Juris. 25, 53 (2007) Finnis
himself provides a defense of customary international law as a source of rules from the per-
spective of his natural law theory. See John Finnis, Natural Law and Natural Rights
238–45 (first published 1980).
97
H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958);
Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630
(1958).
98
Gustav Radbruch made this argument soon after the wars in a famous article, Gesetzliches
Unrecht und Übergesetzliches Recht, Süddeutsche Juristen-Zeitung 1 (1946), reprinted
in 3 Gustav Radbruch, Gesamtausgabe 83 (1990). Peter Quint discusses Radbruch
and the revival of natural law in Germany in Judging the Past: The Prosecution of East German
Border Guards and the GDR Chain of Command, 61 Rev. Pol. 303, 314–17 (1999). Leo
Strauss, Theodor Adorno, and others pointed to the same development in German law and
culture. LeBow writes respecting Strauss: “He saw the Nazis as the ultimate expression of
nationalism, and sought to resurrect natural law as a defense against moral relativism.”
LeBow, supra note 13, at 223. See also infra. See ch. 3 for a discussion of Strauss’ followers, the
“neoconservatives.”
99
Fuller, supra note, at 659.
100
Hart, supra note, at 616–17. See also, Carl Landauer, Deliberating Speed: Totalitarian Anxieties
and Postwar Legal Thought, 12 Yale J. L. & Human. 171, 217–18 (2000).
101
On human rights and natural law theory, see, Mark W. Janis, Individuals as Subjects of
International Law, 17 Cornell Int’l L.J. 61 (1984). On general principles and natural law
theory, see, Oscar Schachter, International Law in Theory and Practice 49–55 (1995).

Enforcement Theory
The 1969 Vienna Convention on the Law of Treaties included references

to jus cogens norms.102 The 1970 Barcelona Traction judgment refers
to obligations erga omnes—obligations owed to all states because of
their importance and including, at least, the jus cogens norms against
aggression, genocide, slavery, and racial discrimination.103
In fact, it seems that few scholars were exploring the basis of author-
ity for international law. More were apparently interested in the role of
sanctions as a necessary feature of legal rules following the publication of
How Nations Behave. When Henkin moved the sanction to the background,
he opened the way for scholars to think about law without any sanctions.
The British scholar and judge of the International Court of Justice, Sir
Gerald Fitzmaurice, believed sanctions in international law to be not just
peripheral or irrelevant, but actually counterproductive. Fitzmaurice
argued that sovereign states would be less likely to accept future interna-
tional law obligations if they could actually be forced to comply “in the
crunch.”104 He believed further that stricter enforcement could interfere
with the development of new customary norms of international law,
because he held the view that breaking old norms is often requisite to the
development of new ones.105 Until Fitzmaurice, Gerhard Niemeyer, Quincy
Wright, Josef Kunz, and others had critiqued the sanctions of international
for a variety of reasons—because they were a form of legalized violence or
because they were applied unfairly. Fitzmaurice introduced yet another
problem—the interference of sanctions with the development of new law
in a horizontal law-making and law enforcement system.
See also, Alfred Verdross and Heribert Franz Koeck, Natural Law: The Tradition of Universal
Reason and Authority, in The Structure and Process of International Law: Essays in
Legal Philosophy, Doctrine and Theory 17 (Ronald St.J. Macdonald & Douglas
M. Johnston eds., 1983).
102
Vienna Convention on the Law of Treaties, May 23, 1969, 8 ILM 679 (1969), arts. 53 & 64.
103
Barcelona Traction, Light and Power Company, Limited, (Belg. v. Spain) 1970 I.C.J. 4, 32 (Feb. 5).
104
Fitzmaurice applied this point particularly to acceptance of ICJ jurisdiction: “by [a] . . .
psychological process, the existence of any really certain and efficient means of law enforce-
ment, in particular as regards judicial decisions, could well be detrimental to the wider accep-
tance of compulsory jurisdiction by acting as an inhibiting factor, and increasing de facto the
commitment that governments would be called upon to make by litigating.” Gerald
Fitzmaurice, The Future of Public International Law, in Livre du Centenaire, Annuaire de
L’Institut de Droit International 299 (1973).
105
Id. See also generally, Schachter, supra note 101, at 228; Mary Ellen O’Connell, The Prospects
for Enforcing Monetary Judgments of the International Court of Justice: A Study of Nicaragua’s
Judgment Against the United States, 30 Va. J. Int’l L. 891 (1990).

Compliance Theory
Just two years after Fitzmaurice’s critique, Roger Fisher of Harvard

University published Improving Compliance with International Law
(1981).106 Fisher also had concerns about sanctions. Rather than dismiss-
ing them outright, Fisher focused on improving compliance with interna-
tional law rules without the need for sanctions. His book is a guide
for policy makers, listing practical steps for improving international law
compliance. He wrote out of his concern over the lack of compliance with
international law in the nuclear age. He concluded that lack of compliance
was not owing to the lack of sanctions, but rather many other problems—
in particular, lack of clarity regarding what a rule requires. Fisher wrote
that his book was “not intended simply as a description of the way in which
governments currently behave,” like Henkin’s.107 Rather, he hoped to supply
legal techniques for getting nations to behave better—at least in terms of
complying with international law obligations. But, like Henkin, Fisher
also wrote to liberate international law from the Austinian paradigm.108
He, too, wanted to expunge the model of law as a command backed by a
coercive sanction.109 As long as the Austinian model was firmly embedded
in people’s minds, it was difficult to get a policymaker to see and respect
international law obligations where the source of a rule and the sanction
were less visible than Austin’s sovereign and the sovereign’s enforcer.
Also like Henkin, Fisher diagnosed the political science critique of
international law as a confusion between the law prohibiting armed
force—which admittedly had dramatic failures—with all of international
law. He, too, pointed out “there is a vast amount of routine compliance.”110
Thus, he criticized projects like that of his Harvard colleagues Clark and
Sohn’s world peace through world law, because Clark and Sohn promoted
movement toward world government, where law-making and law enforce-
ment would become like those of national systems.111 For Fisher, this was
the wrong diagnosis of the problem as well as the wrong remedy.112
106
Fisher is best known for his work on negotiation practice, especially his small book
with William Ury, Getting to Yes: Negotiating an Agreement Without Giving In
(with Bruce Patton ed., 1983).
107
Roger Fisher, Improving Compliance with International Law 4 (1981).
108
Id. at 18.
109
Id. at 11–12.
110
Id. at 12.
111
Grenville Clark & Louis Sohn, World Peace Through World Law: Two Alternative
Plans (3d. 1966).
112
Fisher, supra note 106, at 13.

Enforcement Theory
International society would never agree to a police force strong enough

to accomplish the type of enforcement carried out by police in national
societies—nor does it need such a system.
Fisher observed that when governments failed to comply with
international law it was typically due to uncertainty as to the content of
the law. If a rule was clear, governments generally conformed. If ambiguity
existed, governments might claim the benefit of the ambiguity and present
the conduct as compliant. Governments rarely if ever announce they are
in violation of the law. The ambiguity loophole could be resolved with “an
orderly and lawful way of coping with alleged departures from what the
law provides. The system needs ways of obtaining authoritative determi-
nations with respect to alleged noncompliance and a pattern of compli-
ance with such determinations.”113 Fisher moved the focus of enforcement
from direct enforcement of rules to the enforcement of judicial decisions
on rule violation.114
In essence, it appears Fisher went back to Kelsen’s main point about
the need for courts to ultimately provide objective decisions as to law
violations and the need for sanctions in particular cases. He does not cite
Kelsen or go as far as Kelsen in arguing for an enforcement arm for the
courts. Fisher thought that once a court decided, governments would
comply. If a state did not comply, the court itself should issue sanctions.
Pending the development of courts, however, Fisher thought much could
be done to ensure that international law rules are clear to begin with, thus
avoiding the problems of ambiguity. Fisher believed that a rule would
attract compliance without coercion if the content of the rule reflected
common sense, fairness, and morality.115 In addition to paying attention to
the rules themselves, Fisher also advocated the “internalization” of inter-
national rules within the national legal system. He advocated the use of
mechanisms within national societies to promote respect for international
law:116 “[O]ne of the best ways of causing respect for international law is to
make it indistinguishable from domestic law.”117 National courts apply
sanctions as a matter of course.
113
Id. at 29.
114
Id. at 35.
115
Id. at 124.
116
Id. at 141.
117
Id.

Compliance Theory
Not long after the appearance of Fisher’s book, Heidelberg University

organized a colloquium on enforcement of international law as part of its
650th anniversary celebrations in 1986.118 The eminent international law
scholars gathered there119 did not agree with the trend started by Henkin
that sanctions are unimportant in the theory and practice of international
law. Rather, they returned to the classical topics of war and reprisals,
analyzing the current state of the law with respect to those two primary
tools of international law enforcement. The conclusions remained in line
with and built on Kelsen’s work. They reflected a coercive system of law in
which all states may potentially be subject to sanctions, even though some
cases require coordination among states or the use of other creative
solutions to bring sanctions to bear on the more powerful. Eric Stein
of Michigan University seemed to capture the views of the group with his
observation that
[e]ven if one does not accept the Hobbes-Bentham-Austin line

of thought that there is no law without centralized enforcement,
it is not just the positivist doctrine that considers the possibility
of enforcement an important characteristic of any law, includ-
ing international law. Who today would endorse Gerhard
Niemeyer’s proposition that international law must be “law
without force?”120
Distinct from Kelsen, however, the attendees at the Heidelberg col-

loquium did not focus on the role of the sanction in international law’s
claim to be law. The general understanding seemed to be that although
international law contains sanctions of armed force and countermeasures,
Henkin was essentially right that these sanctions do not play an essential
ontological role.121
118
See 47 ZaöRV 56, 56 (1986).
119
Eric Stein (US), Sir Robert Jennings (UK), G.K.A. Ofusu-Amaah (Ghana) and from Germany,
Doehring, Bernhardt, Zemenak, Stein, Frowein and Dölzer.
120
Eric Stein, Collective Enforcement of International Obligations, 47 ZaöRV 56, 56 (1986) (quot-
ing J. Kunz, Sanctions in International Law, 54 ASIL 324, 327 (1960)). For similar views, see
also, Eiichi Fukatsu, Coercion and the Theory of Sanctions in International Law, in The
Structure and Process of International Law: Essays in Legal Philosophy,
Doctrine, and Theory 1187 (Ronald St. J. Macdonald & Douglas Johnston eds., 1983).
121
But see, Anthony D’Amato, Is International Law really ‘Law,’ 79 Nw. U. L. Rev. 1293 (1984) in
which he argues that sanctions play a far more central role in international law’s qualification
as law.

Enforcement Theory
Nor did the attendees discuss what other literature indicated by the
1980s was the major issue associated with sanctions: their use by or against
the United States. By the time of the Heidelberg colloquium, the Soviet
Union was declining and no longer serving as a reason that the United
States might, for reasons of reciprocity, support international law. In 1984,
the United States had only partially complied with the ICJ order to stop
illegal activity against Nicaragua.122 After that order and a decision against
the United States on jurisdiction, the US refused to participate in the case
on the merits and withdrew its acceptance of the ICJ’s optional compul-
sory jurisdiction. The court ruled against the United States on the merits
in 1986. The court ordered the US to cease its unlawful activities against
Nicaragua and pay damages. It did neither, presenting itself in the minds
of many international law scholars around the world as the challenging
case for international law enforcement. The US vetoed Nicaragua’s request
to the Security Council that it enforce the decision.123
In substance, the Nicaragua case is highly significant for the inter-
national law on enforcement and will be discussed in detail later in this
book. In brief, the ICJ confirmed the restricted right to use armed force to
respond to an armed attack. For lesser violations, an injured state may
resort to countermeasures, but international law contains no right of states
to take “collective countermeasures” against wrongdoing.124 The court also
solidified the principles of equality of states and the superiority of law over
state will. Yet, by 1989, the United States was no longer measuring its com-
pliance or attitude toward international law against possible Soviet con-
duct or claims. The United States was the sole superpower, and, for many
in its foreign policy establishment, international law appeared even less
relevant than in Morgenthau’s day.
Thomas Franck of New York University School of Law responded
to this latest argument of irrelevance. Once again, he took up the issue of
the sanction. In his 1990 book, The Power of Legitimacy Among Nations,
Franck analyzes international law as though it were law without sanctions.
He does not discuss whether international law should be devoid of the
means of forceful enforcement. Rather, he posits that international law
122
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1984 I.C.J. 169
(May 10).
123
Nicaragua Asks U.N. Council to Censure U.S., S.F. Chron., Oct 22, 1986, 1986 WL 3765461.
124
110–11, 127 (June 27).

Compliance Theory
is law without sanctions. He sets out to discover why such law is neverthe-
less obeyed. The book actually goes even further than Fisher’s in empha-
sizing the pull to compliance of rules regardless of sanctions. Although
Fisher acknowledged that sanctions played some compliance role, Franck
took the position that sanctions play no role. The book follows naturally in
the trend started by Henkin to search for why international law is obeyed
if the enforcement system is so very different from that of national systems.
In observing state behavior, Franck saw much compliance even in
the absence of any real concern about sanctions. He concluded that inter-
national law is a noncoercive system and set out to show that some phe-
nomenon other than mere self-interest or coercion must account for
compliance with international law rules. He developed a concept he called
“legitimacy,”125 explaining that compliance results when rules exhibit cer-
tain characteristics, namely, when they are determinant, coherent, validated,
and result in adherence. In Franck’s terms, such rules are perceived to be
legitimate and understood to deserve compliance. His approach is consis-
tent with Fisher’s in looking at aspects of a rule that will attract compliance
even if a sanction for noncompliance will not be applied.
Even for those who understand that international law does have
sanctions, Franck’s thesis can explain compliance for those cases where it
is clear that no sanction will result. US leaders know, for example, that
only in rare cases, such as in the area of trade, will the US possibly be
subject to sanction. Yet, the United States complies with the vast majority
of its obligations.
Franck’s book concentrates more on rule legitimacy than on the
legitimacy of the international legal system in general. But, like Kelsen and
Hart, he sees a chain of validity within rule systems. A primary rule is
legitimate if it was created through a valid process. The process in turn is
valid if it was created with state consent. Why state consent gives validity
“cannot be demonstrated by reference to any other validating rules or
procedures, but only by the conduct of nations manifesting their belief in
the ultimate rules’ validity as the irreducible prerequisites for an interna-
tional concept of right process. It can only be inferred, that is, from the
nature of the international system as a community of states.”126
125
Thomas Franck, The Power of Legitimacy Among Nations 21 (1990).
126
Id. at 194.

Enforcement Theory
So Franck developed an answer to the theoretical question of how

international law rules could be considered binding in the absence of
sanctions, or at least in the absence of a centralized system of sanctions.
He discussed why the United States complied in most cases. He also pre-
dicted that the US and other states would improve their compliance with
international law rules the more the rules reflected his legitimacy criteria.
He does not discuss the problem of US failure to comply with highly legit-
imate rules. The refusal to comply with the ICJ decision in the Nicaragua
case, the invasion of Grenada, and the invasion of Panama were promi-
nent breaches of highly legitimate rules well known when Franck’s book
was published. The pull of compliance was not sufficient in those cases.
Nevertheless, Kelsen’s enforcement model could hardly be an alter-
native in the case of the United States. No state or coalition of states
appeared to be prepared in the 1990s to sanction the United States in any
area, except trade. The US seemed to be beyond enforcement. On the
other hand, the US was freely applying sanctions—military and economic—
if it determined that other states were violating international law. In the
1990s, the United States threatened, imposed, or participated in sanctions
regimes against dozens of states for human rights, environment, trade,
and terrorism violations. The United States appeared increasingly to be an
exceptional member of the community.127
One response to the problem of US predominance vis-à-vis sanc-
tions was to again propose eliminating all sanctions from the system of
international law. Rather than try to develop a response to US law viola-
tions after the fact through sanctions, better to concentrate on winning as
much compliance as possible before breach and accept the lapses that were
beyond enforcement. By eliminating sanctions from the system as a whole,
US exceptionalism might be limited, and the US might end its own unilat-
erally imposed sanctions.
Sharing the basic perspective on international law of Fisher and
Franck, Abram and Antonia Chayes argued in The New Sovereignty (1995)
against any use of military force and countermeasures for law enforcement.
To them, such coercive enforcement was irrelevant to improving compli-
ance with international law, and, equally important, coercion was not
127
For a discussion of several US sanctions regimes in the 1990s see, Lori Fisler Damrosch,
Enforcing International Law Through Non-Forcible Measures, 269 Recueil des Cours 9
(1997) (1998); see also infra Part II.

Compliance Theory
being used in a way that was at all appropriate for the enforcement of legal
rules. In their view, any effective enforcement would have to involve the
United States and the United States was disinclined to carry out enforce-
ment of international law in any systematic way. Rather, it did so on an
ad hoc basis.
In practice, active support if not direction by the United States

is decisive for the success of any important sanctioning action.
It is evident that the United States neither could nor would
nor should play such a universal policing role for ordinary
treaty obligations. In any event, a system in which only the
weak can be made to comply with their undertakings will not
achieve the legitimacy needed for reliable enforcement of
treaty obligations.”128
The Chayeses argued it would be far better to rely on the natural

tendency of states to comply with international law. After all, law compli-
ance is efficient, consistent with normative values, and usually supports
the national interest.129 States, including the United States, could be
counted on to comply often enough to achieve a sufficient level of respect
or adherence with the law for international law to remain a legal system.
To achieve even better levels of compliance, the causes of noncompliance
had to be understood. These, the Chayeses argued, are entirely due to
issues unrelated to the presence or absence of sanctions. Noncompliance
occurs when rules are ambiguous, capacity is limited, or timing is inauspi-
cious. Better to work on functional fixes to these challenges through non-
coercive means than to tinker with more or better sanctions. The Chayeses
concluded that the effort to improve the sanctions of international law was
“largely a waste of time.”130
Harold Koh of Yale University, commenting on the Chayeses and
Franck, warned that they overlooked the plain fact that international law
does have sanctions. Given their existence, they may well play a role in
why some states comply and why international law has achieved a level
of compliance so that all states in the world acknowledge its existence.
128
Abram Chayes & Antonia Handler Chayes, The new Sovereignty: Compliance with
International Regulatory Agreements 3 (1995).
129
Id. at 4.
130
Id. at 2.

Enforcement Theory
Koh’s primary contribution is not with respect to sanctions but rather

in observing, as Henkin and Fisher had before, that the more norms
are “internalized,” the more they are likely to attract compliance—
“internalization” being incorporation in domestic law. He argues that
scholars, interest groups, and anyone who wants to see greater compliance
with international law should urge the use of national courts, the develop-
ment of national legislation, and the informal development of interna-
tional norms within and between national societies.131
For some international law scholars, it was particularly the use of
sanctions by states, purportedly to enforce their rights, that was a cause of
concern. The old issue of sanctions being perceived as unavailable to
weaker states raised the issue of how they could be used as an appropriate
means of law enforcement. If sanctions could be eliminated, international
law might become fairer, more egalitarian, and less coercive. Providing
positive incentives to comply or cooperate would be far more consonant
with a fair, nonaggressive world order. Such incentives would be more
effective than sanctions in achieving law compliance. As it was, sanctions
were being applied only irregularly, and yet most of the rules were being
obeyed most of the time. Coercive sanctions, therefore, could and should
be phased out.
Another response to the problem of the self-help sanction was the
availability of neutral application processes. Oversight of sanctions appli-
cation by courts had been the response in domestic society and, in the
1990s, was increasing the proposed solution for international law. As Koh
urged and helped bring about, litigation in the US to enforce international
norms began to increase substantially. The same increase in the use of
national courts to enforce international law was occurring in other coun-
tries. International courts and tribunals were either being created or were
experiencing a resurgence as at the ICJ, human rights courts, trade tribu-
nals, and international criminal courts.132 These developments were
attracting the attention of international relations scholars, who were
increasingly looking beyond the narrow world of the realists.
131
Harold Koh, Review Essay: Why Do Nations Obey International Law?, 106 Yale L.J. 2599,
2639 (1997).
132
Indeed, some began to worry about the “proliferation” of international courts, especially as to
the possible fragmentation of the unitary system of international law. See Symposium: the
Proliferation of International Tribunals: Piecing Together the Puzzle, 31 N.Y.U. J. Int’l L. &
Pol. 679 (1999).

Compliance Theory
Perhaps owing to the persistent anti-international law sentiment

among international relations scholars, the express link to international
law was not made, but these “regime theorists” began to study, in particular,
treaties and international organizations.133 They saw such regimes as alter-
native means for states to fulfill the national interest in contrast to the
militarist, unilateralist approaches of realists. Regime theorists sought to
provide a more complete description of international life than was being
supplied by realists who often either ignored cooperative ventures or
counseled against them. Regime theorists, however, likely added, as the
postmodernists would as well, to the dilution of what counted as a treaty
or an international organization. Anne-Marie Slaughter pointed to the
importance of informal networks occurring around the globe, such as
those formed by central bankers or high court judges.134 Her observations
seem in the tradition of the New Haven School, inviting a broad, flexible,
informal understanding of international law and institutions—a blurring
of the line between law and politics. Slaughter’s work had another empha-
sis as well. In addition to observing informal networks, she developed,
with others, a theory of liberal states and their impact on international
relations. In her view, progress on important international goals such as
peace and respect for human rights will come through the spread of
liberal democracy within states, rather than necessarily through the
strengthening of law among states.135
133
See e.g., International Regimes (Stephen D. Krasner ed., 1983). For a work of international
relations that focuses particularly on the role of international law, see, Friedrich V.
Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and
Legal Reasoning in International Relations and Domestic Affairs 2 (1989).
Other international relations scholars began to use quantitative methods to attempt to
confirm some of the claims of international law and international regime scholars. George
Downs and colleagues produced a quantitative study confirming to some extent the impact of
sanctions on state behavior. See George W. Downs, Enforcement and the Evolution of
Cooperation, 19 Mich. J. Int’l L. 319, 320 (1998); George W. Downs, Compliance and
Enforcement in Regime Management, 91 Proc. ASIL 59 (1997). A few international lawyers
have joined in this form of research as well. See, e.g., Harold K. Jacobson & Edith Brown Weiss,
Strengthening Compliance with International Environmental Accords: Preliminary Observations
from a Collaborative Project, 1 Global Governance 119, 123 (1995); Oona A. Hathaway, Do
Human Rights Treaties Make a Difference?, 111 Yale L.J. 1935 (2002).
134
See Anne-Marie Slaughter, A New World Order (2004).
135
Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EJIL 503 (1995).
“Liberalism” is, of course, a philosophy of national government that does not transfer easily,
if at all, to the international sphere. Scholars of liberalism, like John Rawls, seem to have
difficulty conceiving of an international community with its own law and its own means of
developing the normative basis and purposes of that law. See John Rawls, The Law of

Enforcement Theory
International law scholars, however, were still primarily focused on

the international. The power of the sovereign state and its privileged place
in the world—whether liberal and democratic or not—was increasingly
being diagnosed as the problem in the world. To the extent international
law was supporting these privileged entities, it was part of the problem.
Some international law scholars began to focus on the sanction not as
unnecessary to law or even as discouraging the creation of new legal
obligations—as Fitzmaurice warned—but as a tool for advancing the
interests of powerful states at the expense of others.136 This reaction against
sanctions was really part of a more general reaction against the power of
states by the end of the Cold War. It was not just sanctions that were
at fault but the method of law-making that permitted sovereign states to
consent—or not—to rules even at the expense of the wider community.
Some scholars began to see a community taking shape out of the state
system with the end of bipolar competition and stalemate. A prime char-
acteristic of this community is the ability to create rules for the good of all,
regardless of the consent of every state.137 These ideas were challenging the
concept of the impermeable autonomous sovereign state that had arisen
in the nineteenth century and in the defense of which Philip Allott dem-
onstrates so much harm has been done.138
Deemphasizing the sanction and the role of consent coincided with
the emergence of the concept of “soft law”—law that that was not techni-
cally binding and not subject to the sanction.139 This went beyond the
German communitarian conception of law at the margins being created
without strict consent. That was an idea that still connected law to accepted
sources and still considered rules sanctionable. Soft law by contrast was
truly law without sanctions. If the sanction was not important, then we
could call on states and organizations to comply with rules even when
Peoples (1999). For a critique of liberalism as a theory for international relations, see Gattini,
supra note 4, at 54.
136
See, e.g., Jutta Brunée & Stephen J. Toope, Environmental Security and Freshwater Resources:
Ecosystem Regime Building, 91 AJIL 26, 32, 59 (1997).
137
See Bruno Simma, From Bilateralism to Community Interest, in 250 Recueil des Cours 217
(1994 VI)(1997); Christian Tomuschat, Obligations Arising for States Without or Against Their
Will, in 241 Recueil des Cours 193 (1993 IV)(1994); Joachim A. Frowein, Das Staagenge-
meinschtsinteresse – Probleme bei Formulierung und Durchsetzung, in Festschrift Für Karl
Doehring zum 70 Geburtstag 219 (Kai Hailbronner et al. eds., 1989).
138
Philip Allott, The Health of Nations, Society and Law Beyond the State (2002).
139
See, in particular, Commitment and Compliance, The Role of Non-Binding Norms in
the International Legal System (Dinah Shelton ed., 2000).

Compliance Theory
they had not developed through international law’s formal sources and
were not subject to sanction. 140 Such law could be created by a broad range
of actors, even those without law-making capacity under international law
and by those who had no standing to shape sanctions. The picture of inter-
national law in the 1990s, from some perspectives, was that of an increas-
ingly inclusive, humane, and progressive body of principles. Others saw it
as increasingly chaotic with little claim to authority.
III. International Law without Sovereigns

Just as the “compliance theorists” and those who followed were respond-
ing to political science realists, critical legal theorists began to pose a new
challenge to international law. Building on the postmodern challenge to
Enlightenment (or modern) thinking that emerged in Europe in response
to World War II atrocities, critical theorists challenged basic assumptions
about law—all law. By the 1980s, David Kennedy at Harvard, Antony
Carty at Glasgow, and Martti Koskenniemi of the Finnish Foreign Ministry
and later Helsinki University began applying this challenge specifically to
international law.141
Instead of viewing unequal power as a problem for law, critical legal
theorists argued power was a problem of law. For postmodern critics, it
was not just the United States but all states of the “North” that operated
without check. From the 1970s on, postmodern critics depicted law as an
institution of domination. Law was being wielded by the powerful for the
powerful. The ambiguity of legal language could be turned to the advan-
tage of the elite, keeping them in control and others out. Not only language,
but all assumptions at the foundation of law were suspect, including
whether it is even “good.” The first wave of critical theorists sought to
deconstruct the law and demonstrate where its claims fell short. This wave
was followed by theorists interested in reforming the law after deconstruc-
tion believing it might, in fact, have some capacity for good.
140
But see, Martti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the
Enforcement of the Montreal Protocol, 3 Y.B. Int’l Envtl. L. 123 (1992).
141
David Kennedy, International Legal Structures (1987); Antony A. Carty, The
Decay of International Law?: A Reappraisal of the Limits of Legal Imagination in
International Affairs (1986); Martti Koskenniemi, From Apology to Utopia: The
Structure of International Legal Argument (1989).

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Critical theorists have much in common in their approach with and

observations of international law to political science realists. Yet, their
intellectual origins appear to lie in the post World War II, “postmodern”
movement. While the war was a common impetus to the movement,
postmodernists reject a common definition except as critics who are part
of an “Intellectual Revolt against Modernism.”142 Postmodernists accept
“ephemerality, fragmentation, discontinuity, and the chaotic;” they reject
the metanarrative of the Enlightenment with its commitment to rational
thought and empirical method; their perspective is daily life.143 “Unlike
the conceptions that underlie and animate classic international law, the
conceptions of postmodernity offer no unified, coherent approach to be
fine-tuned to particular circumstances. They contemplate no metanarra-
tive, no conception of human good to be universally espoused and ulti-
mately achieved.”144
Interestingly,
postmodernism is often linked to the discovery of the death

camps after World War II . . . Postmodernists such as Theodor
Adorno, . . . questioned the role of the Enlightenment project
itself in the Holocaust. The “final solution” was not, after all, a
barbarian rampage but an orderly, systematic, scientific pro-
gram of genocide – authoritarian, bureaucratic, and perversely
rational. The dark side of the Enlightenment was Nietzsche’s
“will to power,” the reification of reason and the march to a
universal society.145
“For Nietzsche, the death of God meant not only that the Judeo-Christian
God was dead, but that the entire metaphysics implicated in his reign
died as well. Hence, once God died, so did all the other God-substitutes
142
Hans Bertens, The Postmodern Weltaanschauung and its Relation to Modernism: An
Introductory Survey, in Approaching Postmodernism 9 (Douwe Fokkema and Hans
Bertens eds., 1986), reprinted in A Postmodern Reader 25, 35 (Joseph Natoli and Linda
Hutcheon eds., 1993).
143
Barbara Stark, Women and Globalization: The Failure and Postmodern Possibilities of Inter-
national Law, 33 Vand. J. Transnat’l L. 503, 546 (2000) (citing David Harvey, The Condi-
tion of Postmodernity: An Enquiry into the Origins of Cultural Change 44 (1989).
144
Id. at 547.
145
Id. at 548–49 (citations and paragraph break omitted).

Compliance Theory
(reason, law, morality) that might have been or might yet be enshrined in
his metaphysical place.”146
The state’s claims to sovereign prerogatives in general came under
attack.147 As Andreas Paulus observes, Carty, Kennedy, and Koskenniemi
argued that148
[a] powerful critique of international law has emerged which

questions liberal optimism and points to the inherent contra-
dictions of international law and its potentialities for abuse.
Indeed, it seems that international law serves no purpose but
its abuse for the ideological purposes of the strong, that is, in
Marxian terms, as Überbau (superstructure) of the interests
of the powerful. This critique mainly relies on postmodern
philosophy, which seems to put into question traditional
notions of objectivity and progress. It also points to the changes
brought about by globalization which are not duly reflected in
international law. Much of this writing has concentrated on
the critique of international law and the approaches of inter-
national lawyers, both in the present and in the past.149
The postmodern critique of international law has both an internal

and an external dimension. The authors cited above believe international
law is too indeterminate and its application and enforcement too arbitrary
to be law. “Legal argument may continue, however without any claim to
authority. But this also implies that political actors have no reason at all
to listen to it.”150 The external critique holds that international law is used
to support the powerful, in particular “the preservation of male or impe-
rialist meta-structures.”151
146
Pierre Schlag, Laying Down the Law: Mysticism, Fetishism, and the American
Legal Mind 6 (1996).
147
See, e.g., Louis Henkin, That “S” Word: Sovereignty, and Globalization, and Human Rights,
Et Cetera, 68 Fordham L. Rev. 1, 2 (1999).
148
Andreas L. Paulus, International Law After Postmodernism: Towards Renewal or Decline of
International Law? 14 Leiden J. Int’l L. 727, 729 n.7 (2001) (citing Kennedy, Carty and
Koskenniemi). Paulus also refers to postmodern critique of international law by the term
coined by David Kennedy, “‘newstream’ critique”. Id. at 734.
149
Paulus, supra note 148, at 729, citing D. Kennedy, The Disciplines of International Law and
Policy, 12 Leiden J. Int’l L. 9, 131–32 (1999).
150
Paulus, supra note 148, at 735.
151
Id. at 732.

Enforcement Theory
In the midst of this critique, it was easy enough for some to return
to the view that what we see as international law is not law at all but some-
thing else; if not international morality, then just a type of international
politics. Indeed, the postmodern critics have been compared with the
early realists of international relations. If law cannot restrain power then
only politics is left.152 Law is not separate from or above politics but just an
aspect of it. Law can be manipulated for political ends, which is the other
half of the postmodern critique. International law has been used by the
already powerful to protect that power.
The Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights, for example, are sometimes seen as
reflecting the West’s privileging of liberalism and individualism. To accept
international law is to risk weakening alternatives to these norms. For
people to commit to one version of international law or one version of
human rights would seem to require sacrificing diverse cultures and their
unique way of viewing the world.153 Not only could commitment to inter-
national law risk the loss of culture, from some perspectives, it means
commitment to a universal law that has supported imperialism, militarism,
male supremacy, racism, and other pathologies of human history. Within
this view is the position that international law has allowed—even required—
the subjugation of people, the suppression of distinct cultures, and,
therefore, cannot arguably be viewed today as legitimate, as worthy to be
law for all people.
Of course, the contradiction in these two aspects of the postmod-
ern critique is obvious. If international law is powerful enough that its
manipulation can perpetuate power, then it would seem to be something
more than a subset of politics. Further, if it is distinctive and powerful,
then its principles, such as equality, nonintervention, respect for human
rights, etc., would be available to all and not just the tools of the currently
powerful. As Brad Roth points out, international law provides “the very
devices that give the poor and weak a modicum of leverage” and “defense
152
Id. at 735.
153
See also, feminist scholars such as Barbara Stark and Dianne Otto who also seek to bring
postmodern insights to support human rights. See Barbara Stark, International Human Rights,
Feminist Jurisprudence, and Nietzsche’s “Eternal Return”: Turning the Wheel, 19 Harv.
Women’s L. J. 169 (1996); Dianne Otto, Rethinking the “Universality” of Human Rights Law,
29 Colum. Hum. Rts. L. Rev. 1, 36–44 (1997).

Compliance Theory
of those devices is perhaps the only thing of practical value that scholars
are in a position to contribute.”154
Roth’s position has been criticized by James Thuo Gathii, an adher-
ent to Third World Approaches to International Law or TWAIL. TWAIL
scholars are heavily critical of international law, in particular, because they
believe international law perpetuates current power structures—a belief
obviously shared with critical theorists. Gathii was a student of Kennedy
and shares his critical orientation, but Gathii explains that TWAIL schol-
ars are a movement beyond the critical one in that they seek a reform of
international law, not just to point to its defects.155 Third World approaches
to international law, feminists, queer theorists, environmental campaign-
ers, human rights activists, and others, share a more optimistic perspective
on international law and envision a more inclusive, spiritual, egalitarian,
humane, and communitarian law. These reformers focus not on why interna-
tional law is law but on what international law can accomplish for people.
Interestingly, although they share much with critical scholars and
the realists who preceded them, TWAIL scholars indirectly revived prere-
alist and prepositivist conceptions. They criticize elements of international
law that reflect an elitist, rationalist, materialist, militarist, and liberal bias,
while championing aspects that are inclusionary, communitarian, and
spiritual. Postmodern insights offered a way forward: inclusion, emphasis
on community, ending hierarchy, weakening sovereign control by recog-
nizing law needed by the community regardless of the consent of states.
These scholars in the 1990s emphasized duties as well as rights, the natural
environment, economic rights, and the role of women.
Their ideas have much in common with premodern or classical
views of international law. Belief, the emotional, the spiritual, the nonma-
terial can be embraced by humanity. Life is more than the rational and
objectively provable. Koskenneimi has acknowledged that:
[s]ome norms seem so basic, so important, that it is more than

slightly artificial to argue that states are legally bound to
comply with them simply because there exists an agreement
between them to that effect, rather than because, in the words
154
Brad R. Roth, Governmental Illegitimacy and Neocolonialism: Response to Review by James
Thuo Gathii, 98 Mich. L. Rev. 2056, 2057 (2000).
155
Otto, supra note 153, at 7.

Enforcement Theory
of the International Court of Justice (ICJ), noncompliance

would “shock [] the conscience of mankind” and be contrary
to “elementary considerations of humanity.”156
He is acknowledging norms applied by courts beyond positive norms.

Postmodern critiques and new informal theories have resulted in a
variety of views about the role of the sanction. One view holds that force-
ful enforcement of international law could only be characterized as inap-
propriate, to say the least. How could it be right for a state to use coercive
measures against another in the name of international law? Given the less
than law-like character of international law rules, enforcing them is fun-
damentally unfair. International law is developed in unrepresentative,
undemocratic, and/or illegitimate ways. The results are often vague man-
dates in which the consequences of disobedience are unstated, the means
of determining breaches are illegitimate, and the expectation of enforce-
ment is completely unpredictable.157 The pain of sanctions was being
borne disproportionately by the poor and weak in societies while the
elites in power who made the policies could actually benefit from the
sanctions.
A quite different view of sanctions also emerged in the 1990s. This
was a pro-sanctions view that held it was not the application of force that
was wrong but rather in what causes it was being applied. The successful
liberation of Kuwait from Iraq in 1991, launched new interest in military
force to enforce international law. In 1994, the World Trade Organization
was established with a dispute settlement understanding tightly control-
ling the use of sanctions in response to trade agreement breaches. The
International Court of Justice became busier than ever before in its
history, ruling on the use of force and countermeasures. Most importantly,
the focus of international law enforcement was being placed increasingly
on individuals—leaders of states—and not on entire populations of states.
Sanctions regimes were employing “smart sanctions”—cutting off the
privileges and assets of individuals. An international criminal tribunal
was established to respond to international law crimes committed by lead-
ers in the former Yugoslavia and Rwanda. The very notion of “state crimes”
156
Martti Koskenniemi, The Pull of the Mainstream, 88 Mich. L. Rev. 1946–47 (1990) .
157
Morton A. Kaplan & Nicholas Katzenbach, The Political Foundations of Inter-
national Law  (1961).

Compliance Theory
was dropped from the work of the UN’s International Law Commission.
Finally, an International Criminal Court with general jurisdiction was
established in 1998.
Certain human rights advocates began to argue for the use of
force in support of their goals as a matter of urgency. Economic sanctions
in the 1990s against Iraq had been mandated by the Security Council to
contain Iraq’s military power. That sanctions regime was heavily criticized
because of its impact on the Iraqi people.158 Some of the same organiza-
tions criticizing the inhumane sanctions against Iraq were calling for the
use of military force against Yugoslavia for human rights violations in
Kosovo in 1998–99. This interest in using force seemed to preserve the
link between rule and sanction. Calling for the use of force during the
Kosovo crisis and other human rights crises indicated that proponents
of force saw the importance of the link between enforcement and law.
If human rights are real rights—legally binding norms—then they should
be enforced when necessary using the most serious means. There may also
have been the view that if civil society and not the sovereign state calls
for the use of sanctions, they will be used for good and not the pursuit of
power.
Force was used by North Atlantic Treaty Organization (NATO)
member states against Yugoslavia. Seventy-eight days of high aerial bom-
bardment began on March 24, 1999, to force Yugoslavia’s leader Slobodan
Milosevic to pull his troops out of Kosovo. NATO’s bombing was in viola-
tion of the UN Charter.159 Postmodern thinking may well have paved the
way for this dramatic break with NATO policy. The call by some civil soci-
ety groups to ignore the UN Charter and resort to force can be supported
by the critique of law found in postmodernism’s large body of ideas.
Ironically, perhaps, the use of force in the Kosovo crisis was also consis-
tent with classic realist thinking that states should not consider themselves
bound by international law when it comes to the use of force.
158
Though it should have been known at the time, only after the US-led invasion of Iraq in 2003
did it become clear that Saddam Hussein was manipulating the sanctions to the detriment of
his people in order to get the sanctions to be lifted. He was highly successful: One United
Nations human rights rapporteur accused the Security Council of perpetrating a policy of
genocide against the Iraqi people. See Mary Ellen O’Connell, Debating the Law of Sanctions,
13 EJIL 63 (2002).
159
See Mary Ellen O’Connell, The UN, NATO, and International Law After Kosovo, 22 Hum. Rts.
Q. 57, 80 (2002); see also infra ch. 4.

Enforcement Theory
At the end of the twentieth century, some fifty years after the end of
the Second World War, it was clear that compliance theorists had finally
broken down the Austinian view that every rule must emanate from a
sovereign with a police force under his command. Then, after a period in
which sanctions were actually dismissed by some scholars as unimport-
ant, governments, nongovernmental organizations (NGOs) and advocacy
groups of all kinds became intensely interested in bringing forceful action
to bear to achieve a broad array of purposes. Despite this new interest,
international law maintained certain principles on the proper use of
sanctions, principles that received further development by courts of all
kinds in this period. It is in that work and the history of international
legal theory, including postmodernism’s contribution, where the interna-
tional community’s understanding of the proper role of legal sanctions
can be found today. The law of sanctions today is the subject of the second
half of the next chapter. The first half looks at an alternative vision of
international legal theory at the start of the twenty-first century—one held
by the neoconservative successors to the realists and the lawyers who
worked for them.

Chapter 3
New Classical
Enforcement Theory
A t the end of the twentieth century, at the same time major changes
were occurring in all aspects of international law, a small group of
political theorists, known as neoconservatives, rose to prominence in the
United States.1 Their views had much in common with Hans Morgenthau,
1
In 2004, neoconservatives were defined as follows:
Neoconservatives are not to be confused with real conservatives, who believe in limited
government, a strong defense, a cautious approach to change, and devotion to tradi-
tional values. They have more in common with ideologically charged ultraleft-wing
sects, including a disciplined party line, a fondness for secrecy, and grand visions for
reconstructing the world in their mind’s image, by force if necessary. . . . In the late
1990s, a group of neoconservatives associated with the Project for a New American
Century, many of whom are now central figures in the Bush administration, developed
proposals for a preemptive war on Iraq and other countries. In 1998, a number of people
associated with this group, including now Vice President Cheney, Defense Secretary
Rumsfeld, Deputy Defense Secretary Paul Wolfowitz, and others now embedded in the
Bush administration, wrote to then President Clinton urging him to move against Iraq,
unilaterally if necessary, “because we can no longer depend on our partners in the Gulf
War coalition. . . .” In subsequent reports, the Project for a New American Century
continued to urge unilateral and preemptive military action against various targets. Iraq
was always the main prize though. . . . On Sept. 12 [2001], Rumsfeld announced at a
cabinet meeting that Iraq should be “a principle target of the first round” in the war on
terrorism. Policy was driven by ideological fixation, not by facts.

Enforcement Theory
although it was likely another University of Chicago academic, Leo Strauss,

who influenced them more.2 Strauss shared with Morgenthau the view that
American foreign policy should aim at pursuing power.3 His followers developed
this view into a foreign policy heavily reliant on the use of force.4 A number
of Strauss’s students and followers gained high-level positions in the admin-
istration of United States (US) President George W. Bush that took office in
January 2001. They advised using American military power to advance the
US position in the world. They advocated the spread of democracy as the
preferred internal political order—a form of governance that would allow
greater US influence within states. Plainly, these policies conflicted with core
principles of international law on state equality and the nonuse of force.
Prominent neoconservatives expressed their antipathy for international law
and brought into the administration lawyers who shared this view.5
Charles Krauthammer has been particularly clear in his fidelity to
neoconservatism and antagonism toward international law. Krauthammer
is a medical doctor by training, a political commentator, and influential
adviser to the Bush administration.6 His neoconservatism is “a kind
of muscular Wilsonianism—minus international institutions—that seeks
to use U.S. military supremacy to support U.S. security interests and
Rick Wilson, The Dreams of the Neocons: Cheney, Rumsfeld Targeted Iraq Long Before Sept. 11
Attacks, Charleston Gazette, Aug. 13, 2004, at 5A (paragraph breaks omitted).
2
See generally, Shadia Drury, Leo Strauss and the American Right (1997).
3
Strauss also studied and admired Carl Schmitt. Mark Lilla, The Reckless Mind,
Intellectuals in Politics 66–7 (2001).
4
Anne Norton ascribes to Strauss or Straussians a rejection of any restraint on the right to
resort to war. Anne Norton, Leo Strauss and the Politics of American Empire 123,
148 (2004). Robert Howse, however, concludes that “the contempt of many neocons for inter-
national law and multilateral institutions, and their premise of American ‘exceptionalism,’” is
not wholly consistent with Strauss’s teaching. Robert Howse, Leo Strauss—Man of War?
Straussianism, Iraq and the Neocons, 8, 80 available at http://faculty.law.umich.edu/rhowse.
For a neoconservative who plainly advocates the American use of force in the world, see,
Robert Kagan, Of Paradise and Power—America and Europe in the New World
Order (2003).
5
John R. Bolton was Under Secretary of State for Arms Control from 2001 to 2005 and United
Nations Ambassador from 2005 to 2006. Bolton is also a lawyer who wrote a number of arti-
cles arguing international law is not really law before joining the administration, including: Is
There Really ‘Law’ in International Affairs? 10 Trans. L. & Contemp. Probs. (2000); The Risks
and the Weaknesses of the International Criminal Court from America’s Perspective, 41 Va. J.
Int’l L. 186 (2000); The Global Prosecutors: Hunting War Criminals in the Name of Utopia, 78
Foreign Aff.; Clinton Meets ‘International Law’ in Kosovo, Wall St. J., Apr. 5, 1999 at A23.
6
In 1989, Krauthammer wrote The Curse of Legalism: International Law? It’s Purely Advisory,
The New Republic, Nov. 6, 1989, at 44. He asks, “What can law mean in an international
system so conspicuously unable and unwilling to control lawlessness?”

New Classical Enforcement Theory
democracy simultaneously.”7 He believes that the US “‘has been designated

custodian of the international system’ by virtue of its enormous margin of
military superiority.”8 In his opinion, it is the United States and not the law
and institutions of the international community that must play this role
because, as traditional realists hold, “the international system is a Hobbesian
state of nature, not to be confused with the settled order of domestic society
that enjoys a community of values, a monopoly of power, and most impor-
tant, an enforcer of norms—all of which are lacking in the international
system.”9 The rest of the world is supposed to trust the US in this role
“because the United States is different from other countries, a democracy
espousing universal values and therefore not subject [to] the same calcula-
tions of self-interest as other would-be hegemons.”10 The United States is
“no mere international citizen. It is the dominant power in the world,
more dominant than any since Rome. Accordingly, America is in a posi-
tion to reshape norms, alter expectations and create new realities. How?
By unapologetic and implacable demonstrations of will.”11
These were among the views held by top Bush administration offi-
cials when, on September 11, 2001 (9/11), a crystal clear morning on
America’s East Coast, four airplanes were hijacked by members of a ter-
rorist organization formed by radical Muslims called al Qaeda. The planes
were used as missiles. Three found their targets in New York City and
Washington, DC. One was brought down through a daring act by passen-
gers and crashed in a field in Pennsylvania. At the end of the day, some
2,900 people had been killed in the attacks.
As is by now well documented, a number of the Bush administra-
tion’s neoconservatives and allied lawyers considered this moment of crisis
an opportunity to press through policies of presidential power and the pro-
jection of American military might.12 They advised the president that he
need not respect the limits of international law in important areas, such as
7
Francis Fukuyama, The Neoconservative Moment, The Nat’l Int., at 57, 57–8 (Summer 2004).
See also, Francis Fukuyama, After the Neocons: America at the Crossroads (2006).
8
Francis Fukuyama, The Neoconservative Moment supra note 7, at 62, citing Charles Krautham-
mer, Democratic Realism: An American Foreign Policy for A Unipolar World, the 2004 Irving
Kristol Lecture, the American Enterprise Institute, Washington, DC, Feb. 10, 2004.
9
Charles Krauthammer, In Defense of Democratic Realism, The Nat’l Int, at 15, 16 (Fall 2000).
10
Francis Fukuyama, The Neoconservative Moment, supra note 7, at 62–3.
11
Charles Krauthammer, The Bush Doctrine, Time, Mar. 5, 2001, at 42.
12
See Francis Fukuyama, America at the Crossroads: Democracy, Power, and the
Neoconservative Legacy, supra note 7, 102.

Enforcement Theory
who could be considered a combatant, the conduct of interrogation and

detention, the resort to armed force, and the conduct of military occupation.
As described in the “Introduction” to this book, some of this advice
became infamously known as the Torture Memos.13 We also now know
the advice was followed, so that men and women in US detention have
been subjected to waterboarding, beating, sexual humiliation, and other
abuse.14 Teenagers have been designated “combatants” and held at the high
security prison at the US Naval base at Guantánamo Bay, Cuba, for years
without due process.15 Unknown numbers of others have been taken to
secret detention sites and sent to countries known to use torture.16
The September 11 tragedy was a unique opportunity to turn to
international law and institutions, exercise leadership for a comprehensive
treaty against terrorism, and renew commitments to human rights and the
norm of nonviolence. Instead, the neoconservatives triumphed and a rare
moment of world unity was squandered. The Bush administration chose
“to engage in a War on Terror whose essential element is the global spread
of democracy”—the right response in Krauthammer’s view.17
It turned out, however, not to be so easy to push aside international
law. US leaders did not simply order torture, abuse, and invasion. They
requested legal advice first, receiving long and detailed memos. The
memos, however, are full of astounding errors, omissions, and misrepre-
sentations of the law. The only legal arguments that could be found to
13
See The Torture Papers: The Road to Abu Ghraib 286, 302–7 (Karen J. Greenbeerg &
Joshua L. Dratel eds., 2005). See also, Jane Mayer, The Hidden Power: The Legal Mind Behind
the White House’s War on Terror, New Yorker, July 3, 2006, available at http://www.
newyorker.com/archive/2006/07/03/060703fa_fact1.
14
See, e.g., Scott Shane, Waterboarding Focus of Inquiring by Justice Dept., Legal Basis is at Issue,
Internal Ethics Review on Torture Question May Be Disclosed, N.Y. Times, Feb. 23, 2008, at A1;
Neil A. Lewis, Red Cross Finds Detainee Abuse in Guantánamo, N.Y. Times, Nov. 30, 2004, at
A1; Supplementary Briefing to the U.N. Committee Against Torture, Amnesty International,
May 3, 2006, available at http://amnestyusa.org/document.php?lang=e&id=ENGAMAR5106
12006.
15
Omar Khadr, for example, was fifteen in 2002 when he was captured in Afghanistan and taken
to Guantánamo Bay. Omar El Akkad, British Jurists Call on Ottawa to Try Khadr in Canada,
Globe & Mail, Dec. 22, 2007, at A12. See U.S. Dep’t of Def. news release No. 057–14, Jan. 29,
2004, available at http://www.defenselink.mil/releases/2004/nr20040129-0934.html.
16
See, e.g., Jane Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary
Rendition” Program, New Yorker, Feb. 14, 2005, available at http://www.newyorker.com/
archive/2005/02/14/050214fa_fact6.
17
Krauthammer, In Defense of Democratic Realism, supra note 9, at 16. Krauthammer explains
that there are two schools of neoconservatism, one that wants to spread democracy every-
where and one that only wants to spread it if it is in the US national interest to do so. He
belongs to this second “realist” branch of neoconservatism. Id. at 19.

support some of these policies were clearly implausible. By 2004, these

implausible arguments were being reported in the press. Courts, govern-
ments around the world, international organizations, scholars, and others
began to subject the analysis to withering criticism.18
At just this time, as the criticism, international investigations, and
court cases were going against the Bush administration, one of the lawyers
involved in post 9/11 legal advice on international law, Jack Goldsmith,
now of Harvard University,19 and his former colleague at the University of
Chicago, Eric Posner, published a book entitled, The Limits of International
Law.20 The book points to some useful aspects of international law, much
as Morgenthau had fifty years earlier. In particular, the authors find bilat-
eral treaties useful. For the most part, however, their view is that having
inadequate sanctions and other weaknesses means that international law
exercises no independent pull to compliance, as Louis Henkin described.21
For Goldsmith and Posner, international law is largely descriptive of what
18
One of the memo writers, Jack Goldsmith, has written of the analysis of his colleague John
Yoo that Yoo’s work was “legally flawed,” “incautious”, “aggressive”, used “questionable statu-
tory interpretations”, and “clumsy definitional arbitrage” in a memo defining torture and
other work. Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the
Bush Administration, 151, 169, 145, 150 (2007).
19
Goldsmith was Special Counsel to the General Counsel of the Department of Defense from
September 2002 through June 2003 and was Assistant Attorney General, Office of Legal
Counsel in the Justice Department from October 2003 through July 2004. In a memoir,
Goldsmith does not discuss his work at the Department of Defense. He does discuss with-
drawing torture memos for modification while at the Department of Justice in the face of
opposition from the Vice President’s counsel, David Addington. See, Goldsmith, The
Terror Presidency, supra note 18, at 161. But see, David Cole, The Man Behind the Torture,
N.Y. Rev. Books, Dec. 6, 2007 (reviewing Jack Goldsmith, The Terror Presidency: Law and
Judgment Inside the Bush Administration (2007)). Goldsmith mentions only briefly the memo
he wrote in March 2004 on removing prisoners from Iraq to secret locations in violation
of the absolute ban on transfer of protected persons under the Fourth Geneva Convention.
Jack L. Goldsmith III, “Memorandum to Alberto R. Gonzales, Re Permissibility of Relocating
Certain ‘Protected Persons’ from Occupied Iraq”, (Mar. 19, 2004) reprinted in The Torture
Papers, supra note 13, at 367. The memo is marked “draft” but is known to have circulated
and is reported to have been implemented. Dana Priest, Memo Lets CIA Take Detainees Out
of Iraq, Wash. Post, Oct. 24, 2004, at A01. For a thorough and devastating critique of the
memo, see Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition under
International Law, 37 Case W. Res. J. Int’l L. 309, 324–38 (2006). Goldsmith was one of the
lawyers brought into the Bush administration with a body of scholarship highly skeptical
of international law. See, e.g., Jack Goldsmith & Eric Posner, A Theory of Customary
International Law, 66 U. Chi. L. Rev. 1113 (1999). For a critique of this article and other work
by Goldsmith, see, Detlev Vagts, International Relations Looks at Customary International
Law: A Traditionalist’s Defence, 15 EJIL 1031 (2004).
20
Jack L. Goldsmith & Eric A. Posner, The Limits of International Law (2005).
21
See infra p. 107.

Enforcement Theory
states would do anyway—whether there was international law or not.

Their message seems to be clear: If the United States does not wish to
comply with international law, there is no normative basis for arguing that
it should. In their opinion, international law is, at best, a set of guidelines,
useful for coordinating activities on a limited set of international issues.
Thus, the book approaches the problem of United States compli-
ance with international law from an entirely different perspective than
that of the Torture Memos. Instead of trying to defend US policies as being
in compliance with particular rules of international law, the book critiques
the very foundation of international law, giving the impression it is simply
not binding law. A policymaker reading the book might well conclude
that compliance with international law, such as the 1949 Geneva
Conventions or the Convention against Torture, is optional, especially
after reading their statement toward the end of the book that international
law has no moral authority, and “[t]his should make clear that we cannot
condemn a state merely for violating international law.”22
What is particularly striking about the book is the length to which
the authors go to reach this conclusion. As will be discussed in detail
below, the authors omit or mischaracterize important aspects of interna-
tional law—such as the sources and the methods of enforcement. The
authors make implausible assumptions about international law and inter-
national relations. They draw selectively from facts and cases. The result is
a caricature of international law, but the caricature is drawn in part by
referencing economics-based rational choice methodology. The authors
then present their conclusions as scientific and objective, again, much as
Morgenthau did. They dismiss the work of international law scholars not
using this methodology, implying its lack of quality by saying, “There is a
more sophisticated international law literature in the international rela-
tions subfield of political science.”23 Yet, the value of the rational choice
approach is certainly debated in international relations and law. It is
applied by only a small group of legal scholars, mostly working in the
areas of corporate and contract law—areas more closely related to markets.
Moreover, even international law scholars who use rational choice analysis
point to the many problems with its use in Goldsmith and Posner’s book,
22
23
Id. at 15. The comment begs the question, What is international law literature? Isn’t literature
in the “subfield of international relations,” international relations literature?

calling it “inconsistent,” and “simplistic,” concluding the “book seems

entirely devoted to denying [international law] any normative force.”24
It may be that this newest realist argument against international law
has received unintended support through the deformalization of interna-
tional law in the international law scholarship that responded to Mor-
genthau and the critical theorists. Positivism as a sole theory for law has
also likely left international law vulnerable to the view that anything as
malleable and open to subjective claims as international law is not worthy
of being called law. Still, in the past, when national leaders have acted on
advice that they are not bound by international law, they have from time
to time gone too far and international law has regained its stature. We are
at such a time again.
The arguments that the American president is free to authorize tor-
ture, abuse, and unlawful invasion invite a reexamination of past responses
to similar arguments. As the previous chapters show, such arguments have
been met in the past with renewed commitment to a law superior to states.
Our understanding of this superior law and its authority benefits today
from developments in positive law, natural law, and process theory.25 From
Abdullahi An-Na’im, Dianne Otto, Christopher Weeranmantry, and others,
we understand that international law development should occur in dia-
logue—a worldwide dialogue now more possible than ever thanks to new
communications technology.26 The need for such dialogue is also now
more urgent than ever given the problems for which we need our common
law: the problems of violence, human rights abuse, poverty, and the
destruction of the natural environment. America needs to be part of this
dialogue, not attempt to be above it.
I. No Law Without Sanctions Redux

The Limits of International Law fits neatly into the realist tradition begun
by Morgenthau of questioning the ultimate authority of international law
to bind the United States.27 Richard Steinberg and Jonathan Zasloff link
24
Anne Van Aaken, To do Away with International Law? Some Limits to the Limits of International
Law, 17 EJIL 289, 307 (2006); see also, Andrew T. Guzman, The Promise of International Law,
92 Va. L. Rev. 533 2006.
25
26
27
Goldsmith & Posner, supra note 20, at 9; see also supra ch. 2 pp. 59–68.

Enforcement Theory
this thinking to the even more anti-international law line of the structural
realists.28 The Limits of International Law does, at certain points, dismiss
international law from the realm of law altogether, calling it, for example,
only “a special kind of politics,” not law at all.29 As politics, international law
can hardly bind the president.30 At other points in the book, however, the
authors appear to follow more closely the Morgenthau line that international
28
Richard H. Steinberg & Jonathan M. Zasloff, Power and International Law, 100 AJIL 64, 75
(2006).
29
Goldsmith & Posner, supra note 20, at 202. They also say,
[t]he international lawyer’s task is like that of a lawyer called in to interpret a letter of
intent or nonbinding employment manual: the lawyer can use his or her knowledge of
business or employment norms, other documents, and so forth to shed light on the
meaning of the documents, but the documents themselves do not create legal obliga-
tions even though they contain promissory or quasi-promissory language.
Id. at 203.
30
According to Paul Schiff Berman, “Goldsmith and Posner seek to change attitudes about
international law that they see as an unnecessary drag on the power of states.” Paul Schiff
Berman, Book Review Essay—Seeing Beyond the Limits of International Law, 84 Tex. L. Rev.
1265,1270 (2006). Spiro takes a similar view: “Serious people do not waste their time on tri-
fles. The fact that the likes of Goldsmith, Posner, and other respected scholars, along with
prominent denizens of think tanks, the courts, and other policy-oriented institutions, are
expending such efforts by way of refuting the efficacy and/or normativity of international law
is by itself a barometer of its importance.” Peter J. Spiro, A Negative Proof of International Law,
34 Ga. J. Int’l & Comp. L. 445 (2006). And Golove suggests:
The belief that international law has ‘compliance pull’ seems, indeed, to be one of the
main targets of the book. If states never give any independent weight to the existence of
a legal obligation, then surely a state—the United States, perhaps?—has no reason to feel
that it should behave any differently. It can in good conscience freely consult its interests,
paying no heed to international law as such.
David Golove, Leaving Customary International Law Where It Is: Goldsmith and Posner’s The
Limits of International Law, 34 Ga. J. Int’l & Comp. L. 333, 340–41 (2006). See also Van
Aacken, supra note 24.
Edward Swaine insists that the “book is not intended to be a brief for defying [inter-
national law]”, but he does concede that US elites may seize on the book to justify noncompli-
ance and may have done so already. Edward Swaine, Restoring and (Risking) Interest in
Inernational Law, 100 AJIL 259 (2006) (reviewing Goldsmith & Posner, supra note 20). Lt.
Col. Walter M. Hudson of the US Army uses the book selectively to support one Bush admin-
istration international law violation while criticizing another. He expresses serious
reservations with the book’s method and assumptions, pointing out how its conclusions do
not explain the resistance to the use of torture by the Bush administration expressed by mili-
tary lawyers interested in seeing the US comply with international law. Then, however,
Hudson tries to invoke the analysis to justify US failure to comply with the international law
of occupation in Iraq. See, generally, Lt. Col. Walter M. Hudson, The Limits of International
Law, 2006–SEP Army Law. 31 (2006). David Gray writes, the authors’ views “are sure to
become standard currency in international law theory and practice.” David Gray, Rule–
Skepticism, ‘Strategy,’ and the Limits of International Law, 46 Va. J. Int’l L. 563, 583 (2006)
(reviewing Goldsmith & Posner, supra note 20).

law can be useful to the United States in a few areas. As he did, they attempt
to preserve some international law, while at the same time arguing that
international law has fundamental flaws undermining its claim to be law.31
Their dual argument, like Morgenthau’s, ends up being an argument in
support of general international law. Indeed, unpacking the book’s argu-
ments presents considerable evidence of the importance and robustness of
international law in international life. For this reason, the remainder of
this section will look at their arguments in detail.
The Limits of International Law proceeds in three parts: The first
part consists of simple, abstract models representing state behavior in a
few international issue areas. The second part provides examples from his-
tory, which the authors believe support the conclusions of their models.
The third part addresses arguments of international law’s authority based
on acceptance, consent, and morality. The authors conclude from the
models and the historic examples that international law exercises no inde-
pendent normative pull on states. In other words, they conclude that states
do what they do out of self-interest and international law does not influ-
ence them, except, perhaps through treaties that provide some benefits in
the form of coordinating policies.
These conclusions are aimed at the evident central target of their
book, Louis Henkin, and his argument about the reality of international
law in How Nations Behave. Goldsmith and Posner write that Henkin was
“misleading” when he said that most states comply with most of their
international law obligations most of the time.32 For them, what Henkin
described as compliance with international law can be explained by
motives and inducements separate from the law. If states are not comply-
ing with international law, then Henkin’s compliance-based argument for
the reality of international law breaks down, along with the argument that
it must be respected as law.
Henkin based his conclusions about compliance on observations of
the real world. Goldsmith and Posner reach theirs through rational choice
methodology. The rational choice method, as Robert Ellickson helpfully
explains, uses a model from economics, which “in its purest form, is based
31
See, e.g., Goldsmith & Posner, supra note 20, at 157. (They indicate bilateral treaties in the
trade area can be useful to “solve” coordination problems.” Id.)
32
Id. at 165; see also supra ch. 2.

Enforcement Theory
on elegantly simple propositions about both cognitive capacities and

motivations. The model assumes that a person can perfectly process avail-
able information about alternative courses of action, and can rank possi-
ble outcomes in order of expected utility. The model also assumes that an
actor will choose the course of action that will maximize his personal
expected utility. . . .”33
Goldsmith and Posner apply just such a model to conduct by states.34
They conclude from their model that, although closely negotiated treaties
with specific provisions may result in some impact on state behavior—
“at least shallow multi state cooperation”—customary international law is
“unlikely” to result in multistate cooperation or coordination.35 They
admit they have had to make major assumptions and simplifications in
order to apply the model to states. In fact, the assumptions and simplifica-
tions are so extreme as to undermine the plausibility of their conclusions
and reinforce the persuasiveness of Henkin’s real world observations and
conclusions.
Goldsmith and Posner themselves flag concern over their assump-
tions by asking that their theory “be judged not on the ontological accu-
racy of its methodological assumptions, but on the extent to which it sheds
light on problems of international law.”36 Yet, surely, we should be skeptical
of any “light” shed from an approach incorporating invalid assumptions?
In The Limits of International Law, every major assumption and simplifi-
cation is questionable and must throw doubt on the results.
The authors begin by explaining why they focus on the state to the
exclusion of international organizations, corporations, individuals, and
33
Robert C. Ellickson, Bringing Culture and Human Frailty to Rational Actors: A Critique of
Classical Law and Economics, 65 Chi.–Kent L. Rev. 23, 23 (1989). Hudson explains further that
“[r]ational choice theory [originated] in part from game theory, in that it posits economic
choices as ‘games’ in which the actors are economic players who use certain strategies to obtain
payoffs. The players always seek to obtain their payoffs; hence their play is always in their
‘interest’ and always ‘rational.’” Hudson, supra note 30, at n.5. In turn, game theory was developed
by a mathematician and an economist when they “noted that certain economic problems
were highly similar to mathematical notions of game playing.” Id. Game theory is usually used to
predict what people will do in particular situations. Goldsmith and Posner use it to explain
what states did in the past. This may be the most serious flaw in their approach in that historic
method is available to explain the past and does not support the authors’ explanations. See infra
pp. 115–25.
34
Goldsmith & Posner, supra note 20, at 3, 4–5.
35
Id. at 36–37.
36
Id. at 8.

even governments: “The main reason for doing so is that international law
addresses itself to states and, for the most part, not to individuals or other
entities such as governments.”37 Excluding governments from considera-
tion is like saying that corporate law is irrelevant to the human beings who
run corporations, which is especially curious given that Jack Goldsmith
was a government official charged with giving advice on what interna-
tional law required of the US. No international law scholar today would
focus just on states, or believes the state is somehow separate from its gov-
ernment. Although there is plenty of law addressed to states, it is incorrect
to conclude that there is much, if any, international law today that is exclu-
sively addressed to states. International law functions through the com-
plex interactions of states, international organizations, nongovernmental
organizations (NGOs), corporations, and individuals.
In another major assumption, Goldsmith and Posner assert that
they can analyze state behavior using the same model that rational choice
analysts developed decades ago to understand the choices of individuals.38
The authors admit that as “understood by economics, rationality is prima-
rily an attribute of individuals, and even then only as an approximation”
and that “social choice theory casts doubt on the claim that collectivities
can have coherent preferences.”39 Their defense of their methodology is
that “if this critique were taken seriously, any explanation of international
law, or, for that matter, even domestic law, would be suspect.”40 Yet throw-
ing doubt on other explanations is hardly an answer to the collective
rationality issue. In fact, later in their book, they themselves employ
another method to bolster their rational choice analysis. They use case
studies—classical historic analysis. 41
Goldsmith and Posner also assume individuals and states behave
rationally—and only rationally, meaning they only act in a way that maxi-
mizes personal self-interest. They acknowledge the now-massive literature
from cognitive psychology that throws doubt on this assumption.42
Economists are drawing on this literature to make more sophisticated
assessments of what people do and why they do it. Indeed, most people
37
Id. at 5.
38
Id. at 8.
39
Id.
40
Id.
41
Id. at 45–82.
42
Id. at 8.

Enforcement Theory
reading this passage know they have acted on occasion out of pure altruism,
religious belief, ideological commitment, laziness, thoughtlessness, mistake,
a sense of aesthetics, whim, etc. Goldsmith and Posner illogically dismiss
the insights of cognitive psychology because it “has not yet produced a
comprehensive theory of human (or state) behavior that can guide research
in international law and relations.”43 Again, this statement does not address
the problem. The fact that psychologists have not developed a theory that
Goldsmith and Posner believe can replace their own does not in any way
eliminate the weaknesses of simple rational choice methodology. Indeed,
later in the book, they concede that states may act out of a sense of altruism
or moral principle, and that states (or their officials) act in the interest of
other states and not just their own people.44
Further, Goldsmith and Posner assume that constructivist interna-
tional relations theorists are wrong.45 Constructivists understand that
international law and international institutions do influence the choices
or preferences of national leaders and other actors on the world stage.
Goldsmith and Posner respond, “We doubt it is true to any important
degree, but we cannot prove the point. On the other hand, constructivists
have not shown that international law transforms individual and state
interests.”46 But doubting that the constructivists are right is not the same
as proving they are wrong. As their book shows, perhaps inadvertently,
international law does affect interests.
In addition to their book, there is also empirical data from interna-
tional relations scholars tending to show that states are influenced by
international law.47 More importantly, as Part II of this book demonstrates,
international leaders acknowledge that international law influences their
preferences. For example, the 2007 statement of Pope Benedict XVI that
international humanitarian law must be complied with clearly demon-
strates a leader’s preference for international law compliance.48 Goldsmith
and Posner dismiss such statements as “cheap talk,” an argument that will
43
Id. at 8 (internal citation omitted).
44
Id. at 109, 114.
45
Id. at 8–9.
46
Id. at 9.
47
See George W. Downs, Enforcement and the Evolution of Cooperation, 19 Mich. J. Int’l L. 319
(1998).
48
Message of His Holiness Pope Benedict XVI for the Celebration of the World Day of Peace,
Jan. 1, 2007, available at http://www.vatican.va/holy_father/benedict_xvi/messages/peace/
documents/hf_ben-xvi_mes_20061208_xl-world-day-peace_en.html.

be considered in more detail below. Suffice it to say here that by dismissing

a leader’s explanation of his actions, Goldsmith and Posner seem to con-
fuse statements made to justify acts that may violate international law with
statements about belief in the system of international law, its importance,
its binding nature, and its influence on the formation of preferences and
policies.
To dismiss statements in support of international law is to place the
authors’ explanations of a person’s beliefs over the person’s own explana-
tions. Doing so is akin to the arguments by some rational choice analysts
that, despite what judges say they are doing, they are in fact always seeking
to maximize utility. Steven Smith of the University of San Diego thinks
little of such rational choice claims:
Since the time of Socrates and with support from later thinkers
like Freud, it has usually been supposed that we achieve
rationality by becoming more conscious and critical of our
thought processes; the unruly swirl that goes on beneath the
level of consciousness is usually thought to be more under the
sway of nonrational considerations. This depiction seems
plausible, but the suggestion that judges are “unconsciously
and inarticulately” rational while consciously following a dis-
course that makes little sense reverses the depiction. There is
no apparent reason for crediting that reversal.49
After rejecting the possibility that people’s statements in support of

international law can be a true reflection of their beliefs, Goldsmith and
Posner add another major assumption of their analysis: They assume that
states have no interest in complying with international law.50 They defend
this assumption on two questionable grounds: First, they say:
[E]ven on the assumption that citizens and leaders have a

preference for international law compliance, preferences for
this good must be compared to preferences for other goods.
State preferences for compliance with international law will
49
Steven D. Smith, Law’s Quandary 81 (2004) (footnotes omitted). See also, Robert Hockett,
The Limits of their World, The Limits of International Law, 90 Minn. L. Rev. 1720, 1727 (2005)
(reviewing Goldsmith & Posner, supra note 20).
50

Enforcement Theory
thus depend on what citizens and leaders are willing to pay in

terms of the other things that they care about, such as security
or economic growth.51
They cite “limited polling” data in support of this observation and refer-
ence one poll of Americans in 2002 by the Chicago Council on Foreign
Relations.52 Their characterization of the results indicates that respondents
were asked whether they preferred security, prosperity, or compliance
with international law—as if those preferences were mutually exclusive.
In addition to their limited polling data, Goldsmith and Posner
have another reason for excluding compliance with international law as
among the interests or preferences that states would rationally choose:
It is unenlightening to explain international law compliance

in terms of a preference for complying with international law.
Such an assumption says nothing interesting about when and
why states act consistently with international law and provides
no basis for understanding variation in, and violation of,
international law. A successful theory of international law
must show why states comply with international law rather
than assuming that they have a preference for doing so.53
This statement conflates a preference for international law compliance

with why states comply. These points can be separated. A preference for
being a law-abiding citizen encourages law-compliance, especially when
there is little chance of enforcement. Thus, preference for compliance and
actual compliance are not the same. The authors conflate the two concepts
apparently to exclude international law compliance as an interest of states.
Excluding international law compliance as a preference surely requires
providing persuasive proof that states do not have such a preference and
additional proof of what preferences they do have.54 The authors take the
51
Id. at 9.
52
Id. at 9.
53
Id. at 10.
54
Abram Chayes has written about the American officials concern to comply with international
law during the Cuban missile crisis. Choices were made to avoid sending any signal to the
Soviets “that the United States did not take the legal issues involved very seriously, that in its view
the situation was to be governed by national discretion not international law.” Abram Chayes,
The Cuban Missile Crisis: International Crises and the Role of Law 6–66 (1974).

general position that they need not identify state interests or preferences.
Yet, they do identify international law compliance as a noninterest.55 This
is a suspicious inconsistency with the following result: According to the
authors, states seek to maximize their interests. International law compli-
ance is excluded from the category of state interests. Ergo, states do not
pursue international law compliance because states only pursue interests.
Goldsmith and Posner have produced a classic syllogism with a false
premise.
Goldsmith and Posner acknowledge that critics have pointed out
this problem in their assumption.56 If their proposition was, “States have
no interest in complying with international law,” we could point to empir-
ical data to show the proposition is false. But in the Goldsmith-Posner
proposition, they exclude from the analysis the possibility that states have
an interest in international law compliance. Empirical data can show that
such an exclusion is inconsistent with reality, but it cannot disprove the
results of their model since it assumes states have no interest in complying
with international law. Yet, conclusions drawn based on such an assump-
tion cannot “generate any empirical expectations at all.”57
This is not, however, where the problems end. The most serious flaw
may well be the authors’ inability to control for the existence of interna-
tional law in attempting to prove it has no impact on state behavior. The
authors use models that consist of a world of two states, A and B. These
states have simple interactions. The authors say that if A and B had perfect
information about each other in a world with no transaction costs, after an
event resulting in greater power to A, A would take advantage of its rela-
tive power, maximize its interests at the expense of B, and, having done so,
the world of A and B would return to stability. Because information is not
perfect and transaction costs do exist, the relations of A and B do not work
out quite so predictably. Regarding a situation like their mutual boundary,
Goldsmith and Posner say the interactions of A and B after a “power-shifting”
event can be explained by some combination of four categories of inter-
state interaction: “coincidence of interest,” “coordination,” “cooperation,”
and “coercion.” The two states and four categories are referred to as the
“models.” “Taken together . . . the four models offer a different explanation
55
There are, however, numerous references to wealth and security, indicating the authors may
be thinking about these as the interests of states, which are also often listed by realists.
56
57
Hockett, supra note 49, at 1726.

Enforcement Theory
for the state behaviors associated with international law than the explana-
tion usually offered in international law scholarship.”58 “[U]nder our
theory, international law does not pull states toward compliance contrary
to their interests, and the possibilities for what international law can
achieve are limited by the configurations of state interests and the distri-
bution of state power.”59
Goldsmith and Posner cannot, however, control for the existence of
international law in trying to understand why A and B do what they do.
Boundary law, for example, is old, well-established law. The International
Court of Justice (ICJ) has had more than a dozen boundary cases since
1946. When A and B decide how to behave respecting their mutual bound-
ary, they may act of out “coincidence of interest,” “coordination,” “coop-
eration,” and “coercion,” but Goldsmith and Posner cannot eliminate
knowledge of international law from the minds of A and B officials in
understanding what coincidence of interest, coordination, cooperation, or
coercion are. International law is part of the fabric of international life. It
contains the definitions and norms of behavior government officials have
in mind when taking action. It is what they are trained in and what they
know their counterparts will expect them to understand. If you take the
position that states do in fact have an interest in law compliance as gov-
ernment officials often say they do, such an interest might fully account
for state conduct regarding a boundary. Thus, it seems the models can tell
us little about what motivates government officials in a world without
international law.60
Individuals are constantly invoking international law and have done
so since 1648 with respect to every aspect of international life. This law
permeates our existence. Indeed, without international law, there would
be no states to have interactions. States are defined by international law.
The attributes of sovereignty are defined in international law. The concept
of a boundary is found in international law. The methods and conditions for
negotiating over international boundaries are found in the law—including
the privileges and immunities of diplomats who do the negotiating. As the
58
Goldsmith & Posner, supra note 20 at 13.
59
Id. at 13.
60
Robert Hockett points to other serious problems of the models, especially that they are static
and thus unable to account for change over time. Hockett, supra note 49, at 1729–39. On
problems with applying the models to international human rights law, see Margaret
McGuiness, Exploring the Limits of International Human Rights Law, 34 Ga. J. Int’l & Comp.
L. 393, 4002 2006.

postmodern critics so clearly express, international law is replete with the

rights and prerogatives of sovereign states. Using the terms of interna-
tional law, government officials make demands to have these rights recog-
nized by others.
As mentioned above, Goldsmith and Posner provide case studies to
bolster their models. It could be that these case studies independently sup-
port their conclusions, making the many concerns raised above about
their models irrelevant.61 In fact, the cases provide additional evidence
against their conclusions.
The authors divide the case studies between cases on customary
international law and cases on treaties. They say these are the sources of
international law. International law has a third primary source, however,
general principles.62 It also has subsidiary sources—judicial decisions and
the opinions of “publicists,” and it has jus cogens norms that do not flow
from the positive law sources.
Respecting customary international law, Goldsmith and Posner
treat this source as yielding hopelessly vague and unknowable rules,
despite the fact it is not unlike a source Goldsmith and Posner know well,
namely, Anglo-American common law.63 Customary international law,
like common law, develops over time, evidenced by general practice
undertaken out of a sense of legal obligation. Thus, proving the existence
of a rule of customary international law requires evidence of state practice
and additional evidence that the practice is followed out of a sense of legal
obligation or to use the standard international law term, evidence of opinio
juris. Goldsmith and Posner conclude that customary international law
can only develop in a very few situations and even then is not an “exoge-
nous influence on states’ behavior.”64
They choose four case studies to prove customary international
law’s non-influence. All four actually provide evidence that customary
61
Golove points out that the models rely heavily on the case studies, but the case studies are
“superficial and incomplete.” Golove, supra note 30, at 335–36.
62
Statute of the International Court of Justice, art. 36; see also supra, intro. p. 9.
63
Hockett writes that “[w]hile such problems [associated with customary international law]
have long been familiar to lawyers, particularly common lawyers, Goldsmith and Posner
appear to regard them as scandalous, evidently longing for a world in which lawyers, like
chemists or Platonists, might traffic in natural kinds or pure forms.” Supra note 49, at 1740.
64

Enforcement Theory
international law does influence conduct.65 The first case study concerns a
nineteenth-century rule of maritime warfare, known by the shorthand
“free ships, free goods.”66 It generally refers to the duty of warring states
not to interfere with shipping even though bound for the enemy, if the
ship flies the flag of a neutral state and the goods are not war materiel. The
authors explain that “broad accession to the Declaration [of Paris of 1856],
consistent state pronouncements . . . and the relative paucity of overt
violations of free ships, free goods are the bases for the claim that the . . .
principle was a rule of customary international law after 1856.”67 Despite
this evidence, the authors conclude, “[t]here was no universal behavioral
regularity, and the actual behavior of states is best explained by our models.
Academic claims to the contrary exemplify several errors common to
analyses of customary international law.”68
Their proof that the “academic” claims are wrong is their assertion,
based primarily on a single US prize court case, that the US did not recog-
nize the “free ships, free goods” principle.”69 David Golove, however,
makes clear that their conclusion regarding the US position “is simply
false.”70 Evidence from the executive branch and other US cases do not
show the US rejecting the principle, but rather moving to a narrower
interpretation, one that the British had long supported. During the Civil
War, the US was plainly interested in stopping all shipping that it sus-
pected of aiding the Confederacy. But it did not do this. Rather, it generally
complied with the free ships rule. Again, according to Golove:
It is noteworthy, moreover, that the British accepted the legal-

ity of the U.S. measures despite the British tilt towards the
South during much of the war. There were, in fact, many legal
disputes between Great Britain and the United States during
the war, but none over the crucial issues which Goldsmith and
65
See Golove on problems with their selection and other aspects of the case studies. Supra note
30, at 348–50.
66
The rule held that during maritime warfare, a neutral ship’s cargo should not be seized unless
it consisted of contraband (war materiel) bound for the enemy. The rule is no longer in force,
and is, therefore, hardly an example of a rule of “prominence.” Goldsmith and Posner say they
chose their customary international law case studies on the basis of the “prominence” of the
rules involved. Goldsmith & Posner, supra note 20, at 45.
67
Id. at 46.
68
Id.
69
Id.
70
Golove, supra note 30, at 357.

Posner emphasize. Goldsmith and Posner also fail to mention

that the U.S. courts throughout the war frequently found that
overzealous naval officers had acted illegally in taking British
merchant ships as prize and ordered the ships released and, in
some cases, awarded damages for the illegality.71
“[T]he historical records reveal the power the law of nations had in fram-
ing and often in resolving the disputes that arose.”72
Goldsmith and Posner admit that during the Spanish-American
War, both the United States and Spain generally complied with the rule.
They suggest in explanation that the Spanish were too weak to do other-
wise, but the US, which could easily have violated the rule, had too little to
gain. Still, if the US had anything to gain, why not do so? Apparently, the
only thing preventing the US from taking advantage of its military superi-
ority was the rule.73 In both the Civil War and the Spanish-American War,
therefore, the US can be seen as having been restrained by the free ships
rule. Golove concludes, “that, contrary to Goldsmith and Posner’s claims,
customary international law played a surprisingly robust role in the dis-
putes which arose between the United States and Great Britain over neu-
tral and belligerent rights under the law of nations.”74 The same was true
with respect to Spain. Nevertheless, Goldsmith and Posner assert that the
free ships rule shows US officials “ignorant,” “disdainful,” and “indifferent”
regarding customary international law.75
During the Boer War (1899–1902), Britain apparently violated the
free ships rule. The US and Germany threatened enforcement action and
the British came back into compliance.76 This is a particularly impressive
71
Id. at 363 (internal citations omitted).
72
Id. at 367. Golove also indicates that Goldsmith and Posner misrepresent the work of histori-
ans to reach their negative results. Id. at 369, n.87; 375–76. He concludes in part,
[f]irst, Goldsmith and Posner’s account of the Civil War is inadequate by any measure.
To put it bluntly: Their account is wrong on some points; is incomplete and misleading
in other crucial respects; fails to present a balanced picture of the actual events or of
their significance; and avoids confronting the difficult challenges which a fairer presen-
tation of the history raises for their larger claims.
Id. at 376.
73
74
Golove, supra note 30, at 351.
75
76
Id. at 50.

Enforcement Theory
case, given that Britain was a far stronger naval power at the time than the
US or Germany. Goldsmith and Posner do not see this case as an example
of international law’s influence, but say Britain “retreated” in the face of
threats. They provide similar facts regarding Russia in the Russo-Japanese
War (1904–05). Yet, again, instead of describing the events as international
law influencing conduct, they seek to describe it as something else. Would
they describe a domestic law enforcement situation in the same way? If a
major US corporation cheats on its taxes and is told by the Internal Revenue
Service that unless the conduct stops, the firm will be fined and personnel
will be sent to prison, we could describe the firm as “retreating” in the face
of “threats,” or we could say the government is enforcing the law and the
firm is complying. The US, Germany, and Britain all took enforcement
action in terms of the free ships rule to keep the rule in force.
During the Hague Peace Conference of 1907 and the London Naval
Conference of 1908–09, Goldsmith and Posner relate that states tried to
codify the customary law rule of “free ships.”77 Multilateral negotiations
like these are now the standard method of modifying customary interna-
tional law and even creating new rules. The United States today recognizes
fundamental rules of customary international law as having emerged
from negotiations on the law of the sea, treaty law, the protection of cul-
tural property in armed conflict, and the protection of persons in time of
armed conflict.78 States failed during the 1907 negotiation to agree to
77
Id. at 51.
78
The United States has regularly acknowledged important areas of international law to be part
of customary international law. For example:
• Law of the sea, see Statement on United States Oceans Policy, 1 Pub. Papers 378,
378–79 (Mar. 10, 1983);
• Law of treaties, see Marian L. Nash, Contemporary Practice of the United States
Relating to International Law, 75 AJIL 142, 147 (1981);
• 1977 Additional Protocol I to the 1949 Geneva Conventions: Michael Matheson,
Session One: The United States Position on the Relation of Customary International
Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U. J.
Int’l L. & Pol’y 419–31 (1987).
• Rules regulating the protection of cultural property during armed conflict:
Department of Defense, January 1993 Report of the Department of Defense, United
States of America to Congress on International Policies and Procedures regarding
the Protection of Natural and Cultural Resources During Times of War. Reprinted
as Appendix VII in Patrick J. Boylan, Review of the Convention for the Protection of
Cultural Property in the Event of Armed Conflict (The Hague Convention of 1954) 202
(1993) available at http://unesdoc.unesco.org/images/0010/001001/100159eo.pdf;
• Rules relating to resort to force: Case Concerning Military and Paramilitary Activities
in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 100, para. 189 (June 27) (refer-
encing the US’s memorials in the case).

a codification of the free ships rule and from that time, the rule was con-
sidered obsolete. It would be incorrect, therefore, to say, as Goldsmith and
Posner do, that the rule was violated in World War I. By then it was no
longer the law.
In their assessment of the rule, the authors say “there was no behav-
ioral regularity of not seizing enemy property on neutral ships during the
period in question.”79 Yet, their history indicates otherwise: few violations
by the time of the Declaration of Paris of 1856; one “apparent” violation
through a narrow reading of the rule in the US Civil War; no violations in
the Spanish-American War, and a return to compliance by both Britain
and Russia during the Boer and Russo-Japanese Wars after notice that
enforcement measures were pending. As a result of the negotiations of
1907–09, the rule came to an end, having had an impressive run. The
authors may choose to discount the impact of the rule on this compliant
behavior, but they contradict their own account when they say there was
“no” compliant behavior.80 They conclude their assessment, acknowledging
“that every belligerent during the post-1856 period announced adherence
to free ships, free goods as a principle of international law, and every state
attempted to justify departures from this principle as consistent with
international law.”81
Although the free ships, free goods rule has been obsolete for over
a hundred years, the authors’ next examples of customary international
law on the territorial sea and diplomatic immunity have tremendous con-
temporary importance. Rules in both categories are widely adhered to
despite, no doubt, short-term benefits to states in noncompliance. The
authors acknowledge as much for diplomatic immunity.82 As for the ter-
ritorial sea, for some unexplained reason, they do not discuss the current
territorial sea rule, which provides for a twelve-nautical mile zone, but
rather concentrate on the earlier zone of three miles. The United States
79
80
Nor does their long quote by Quigley support them. He says, “the letter of the law has been
observed strictly. . . .” He seems to be decrying a failure to observe it expansively, but this
complaint cannot support the claim of no consistent conduct. Id. at 53.
81
Id. at 54. Later in the book they dismiss such official announcements as “cheap talk.” The
“cheap talk” argument is addressed infra pp. 125–26.
82
Goldsmith & Posner, supra note 20, at 55–56. They say their claims are not undermined by
compliance with the diplomatic immunity because the rule works as a series of bilateral rules,
not a multilateral rule. In fact, most rules of customary international law work this way and
so this is no answer in defense of their claims that customary international law rules do not
influence conduct. Id.

Enforcement Theory
recognizes a twelve-mile zone. Indeed, President Ronald Reagan issued

an official statement recognizing much of the 1982 United Nations
Convention on the Law of the Sea to be customary international law,
including the twelve-mile rule.83
The final customary international law rule selected for the book is
another obsolete rule: the immunity of fishing vessels from capture as
prizes of war. The rule happens to be the subject of perhaps the most
important case on the place of international law in United States law. In
The Paquete Habana, decided in 1900, arising out of the Spanish-
American War, the Supreme Court stated that “[i]nternational law is part
of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction, as often as questions of right depend-
ing upon it are duly presented for their determination.”84 The court’s dec-
laration makes clear that in addition to treaties, the president of the
United States must also respect customary international law. Goldsmith
and Posner, however, conclude that the decision is “riddled with errors
characteristic of the mainstream approach to customary international
law. . . .”85
Yet, their own treatment of the case has serious problems. Most gla-
ring is their presentation of historic facts. They seek to show that Justice
Gray’s reading of history in The Paquette Habana is wrong, but William
Dodge concludes that Goldsmith and Posner’s “evaluation of the evidence . . .
is highly selective.”86 Further, they oddly criticize Justice Gray for support-
ing his findings by citing the uniform views of international law experts,
as if there were something wrong with this, and,
[f]inally, Goldsmith and Posner argue that the practice of

exempting coastal fishing vessels from capture is better
83
Supra note 78.
84
The Paquete Habana, 175 U.S. 677, 700 (1900). Goldsmith and Posner call it “perhaps the
most famous case identifying and applying customary international law. . . .” Goldsmith &
Posner, supra note 20, at 66. It may be the most famous case applying customary interna-
tional law by a US court, but surely the International Court of Justice and its predecessor’s
decisions on customary international law are better known internationally, e.g., The Lotus
case, the Asylum case, the North Sea Continental Shelf case, Military and Paramilitary
Activities in and against Nicaragua, and the Anglo-Norwegian Fisheries case, available at
http://www.icj-cij.org.
85
86
William S. Dodge, The Paquete Habana: Customary International Law as Part of Our Law, in
International Law Stories 175, 197 (John E. Noyes et al. eds., 2007).

explained by self-interest than legal obligation. They argue

that navies often had “more valuable opportunities to pursue—
for example, defending the coastline or attacking the enemy’s
navy” and that therefore “a belligerent’s refusal to seize enemy
fishing vessels . . . is no more surprising than [] its refusal to
sink its own ships.” In fact, though, both captors and their
countries had substantial reasons to seize fishing vessels. The
captains and crews of capturing ships were entitled to at least
a part of the proceeds of the captured ship and its cargo and in
the United States to bounties as well, which Congress did not
abolish until just after the war with Spain. From the countries’
perspective, the crews of coastal fishing vessels might be used
in the enemy’s navy . . . or at least feed the enemy’s population.
The exemption from capture that coast fishing vessels enjoyed
throughout the years cannot be explained by self-interest
alone but only a sense of obligation founded, as Justice Gray
wrote, “on considerations of humanity to a poor and industri-
ous order of men, and of the mutual convenience of belliger-
ent States.” In short, The Paquete Habana is no “hollow shell.”
It is rather a textbook example of ascertaining customary
international law from state practice.87
The old prize rule, the territorial sea rules, the rules on diplomacy, as well
as the old free ships, free goods rule, all turn out to be examples of the pull
to compliance of customary international law rules, contrary to the
Goldsmith-Posner models.
Treaties appear to fare better in Goldsmith and Posner’s book than
customary international law, despite the sweeping, dismissive comment
that “many treaties are mistakes or are quickly rendered irrelevant by rap-
idly changing international relations.”88 They offer no support for this
assertion, which would seem to be at odds with their conviction that states
act only rationally and single-mindedly pursue self-interest. Why would
87
Id. at 197–98 (footnotes omitted).
88
Goldsmith & Posner, supra note 20, at 103. They divide agreements between treaties and
“nonlegal agreements”. Nonlegal agreements appear to be agreements that in the terminology
(which they call the “jargon”) of governments and international law scholars would be “non-
binding” agreements, not “nonlegal.” Nonbinding agreements in the law of treaties, just as in
American contract law, are part of the legal system. They have a different status than binding
treaties, but it is inaccurate to call them nonlegal.

Enforcement Theory
rational actors enter into so many mistaken and irrelevant agreements?89

In fact, their discussion of both human rights treaties and trade treaties
concludes with the observation that treaties of both kinds do actually
“work.” They provide examples of states altering their conduct in compli-
ance with treaties despite short-term self-interest to do otherwise.
Before reaching this conclusion, however, they discuss human
rights treaties, and say, “Some states therefore have an interest in improv-
ing the way other states treat their citizens in order to expand trade, mini-
mize war, and promote international stability. This was a primary impetus
for the human rights movement following World War II.”90 Yet, Goldsmith
and Posner also acknowledge that human beings act out of moral convic-
tions and not just short-term self-interest. The authors say with respect to
the Genocide Convention91 that, among the reasons states do not commit
genocide, is that “it is morally abhorrent to kill large groups of people. . . .” 92
They say they have no explanation as to why government officials act in
accord with moral principles in creating and complying with human rights
treaties. They call it a “puzzle.”93 There is plenty of evidence, however, to
solve the puzzle. There are plenty of accounts of individuals and organiza-
tions motivated by moral conviction to use the vehicle of international law
to accomplish moral ends.94
The discussion of treaties ends with another major counterexample
to their theory: the European human rights system. The authors suggest
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (the Convention) “works,” that it influences con-
duct but only because Europe is a quasi-state, not a group of states.95 They
mistakenly believe, however, that the European Court of Human Rights,
89
Oona Hathaway estimates there are over 50,000 treaties in force today. Oona Hathaway,
Between Power and Principle, 72 U. Chi L. Rev. 469 2005.
90
91
Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the UN
General Assembly in Resolution 260A (III), 9 Dec. 1948.
92
93
Id. at 112. They take up the “puzzle” later, finding “no precise answers.” Id. at 127. They point
to the low cost of compliance with the International Civil and Political Rights Covenant
(ICCPR) because there is no enforcement. They suggest the ICCPR is something like a code
of conduct being pressed by powerful liberal democracies. At time of writing, NGOs and
victims of US human rights violations in the so-called “global war on terrorism” are pursuing
remedies in US courts and various international venues.
94
See, e.g., Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the
Universal Declaration of Human Rights 2001.
95

which implements the Convention, is a court of the European Union. It is

not. It is a court of the Council of Europe.96 Moreover, Europe was nothing
like a quasi-state when the European Convention came into force in 1950.
If anything, it has played a role in creating a common culture so that a
quasi-state could develop. Nor does the quasi-state explanation account
for Russia, Turkey, and other non-European Union states whose conduct
has conformed to the Convention’s requirements.
Shifting to trade treaties, Goldsmith and Posner abandon their gen-
eral critique of international law—that it has no independent influence on
conduct. Indeed, they find that trade treaties are effective in influencing
states to change conduct. Their only criticism is a curious one—they com-
plain that trade treaties do not work as they imagine multilateral treaties
should work. Multilateral trade treaties function rather as a collection of
bilateral treaties.97 It is left a mystery why this is negative. In general treaty
theory, multilateral treaties are often described as a series of bilateral
agreements because many treaties allow reservations, differential respon-
sibilities, and nonunanimous amendment. As a result, multilateral treaties
are often a related set of bilateral treaties. The point is that they “work.”
Goldsmith and Posner believe that multilateral treaty compliance is
generally explained by coincidence of interest—in other words, states
would follow the conduct required by the treaty whether there was a treaty
or not.98 Bilateral treaties, however, are explained by state interests that can
be realized only through cooperation.99 The authors’ description of the
advantages of cooperation and the usefulness of treaties to ensure coop-
eration seems to be consistent with how most international lawyers under-
stand treaties to work in general—as a tool for cooperation. If a good
many multilateral treaties operate as a collection of bilateral treaties, then
under Goldsmith and Posner’s own understanding, compliance with mul-
tilateral treaties is actually explained by the advantages of cooperation. 100
Their further discussion of treaties raises some of the same con-
cerns as their discussion of customary international law. For example, in
discussing nineteenth-century bilateral trade treaties, they conclude that
96
Id. at 126.
97
Id. at 135.
98
Id. at 139.
99
Id.
100
See also Hockett, supra note 30, at 1747–68.

Enforcement Theory
these treaties were not considered legally binding.101 Yet, two paragraphs
later they discuss bilateral treaties with most-favored-nation clauses that
were treated as legally binding with states making claims and altering
behavior and expectations based on them.102 They even suggest that France
might have feared enforcement action by other states to enforce most-
favored-nation (MFN) clauses. (They do not call it enforcement action,
but rather “retaliation.”103) They acknowledge that binding MFN clauses
played an important role in liberalizing trade in the second half of the
nineteenth century, but they refuse to associate these results with interna-
tional law: “treaties, including their MFN terms, merely ratified political
arrangements that states believed were in their (temporary) interest.”104
Their discussion of the World Trade Organization (WTO) begins
with a discussion of the General Agreement on Tariffs and Trade (1947)—
the GATT agreement prior to the creation of the World Trade Organization
in 1994. The old GATT had a dispute resolution system that Goldsmith
and Posner call a “tribunal.” The old GATT system changed over time,
becoming more legalistic, but it was only with the adoption of the WTO
Dispute Settlement Understanding (DSU) in 1994 that we got something
approaching a tribunal or judicial system. In the new system, it is far easier
to get the application of sanctions for trade violations because in the old
system consensus was required to apply sanctions; now it is needed to
block them.105 Nevertheless, Goldsmith and Posner give a misleading pic-
ture of the success of the GATT (1947) dispute settlement system when
they say it is a “puzzle for the traditional international lawyers’ thinking.”106
According to Robert E. Hudec, in 139-panel proceedings, the complain-
ing party was completely or partially satisfied in 90 percent of the cases, a
truly impressive success rate.107 In fact, many in the trade world wanted a
trade system more firmly based on international law—the US certainly
did—and for that reason the WTO and its DSU were established. The US
101
102
Id. at 141.
103
Id. at 142.
104
Id. They dismiss the conclusions of Pahre that MFN clauses were considered a “norm” that
effectively restrained behavior because they say Pahre “musters no more than a few pieces of
anecdotal evidence for this argument.” Id.
105
Ernst-Ulrich Petersmann, The GATT/WTO Dispute Settlement System: International
Law, International Organizations and Dispute Settlement 7090 1997.
106
107
See Robert E. Hudec, Enforcing International Trade Law: The Evolution of the
Modern GATT Legal System 285–87 1993.

is frequently involved in high-profile cases and has complied with deci-

sions against it, even redrafting provisions of its tax code.108 Yet, Goldsmith
and Posner suggest that the DSU represents only a modest change.109 Few
in the international trade law world would agree. The right to apply sanc-
tions pursuant to an adjudicated decisions is generally considered a major
change.110
After concluding their discussion of customary international law
and treaties, Goldsmith and Posner turn to apparent discrepancies in their
thesis. First, they acknowledge that national leaders have since Westphalia
exhibited a general belief in the system of international law.111 Government
officials, international organization personnel, speakers for NGOs, etc.,
are constantly invoking international law. They make demands that inter-
national law be complied with, file lawsuits, and explain and justify action
on the basis of international law. Why do so many say so much about
international law if it is not actually influencing behavior? The authors
acknowledge this phenomenon but dismiss it as “cheap talk.”112 The term
“cheap talk” means that talking about international law compliance is easy,
sounds good, but is not actually done. Mention has already been made
above about the error in dismissing an individual’s own explanation of her
conduct.113 Moreover, in the real world, the occasional leader may refer-
ence international law for mere rhetorical flourish, but if that is all anyone
is ever doing, there would be no point. When leaders in the United States
or Haiti make claims about their rights under international law, they do
not expect other states to treat those claims as “cheap talk.” Numerous
examples are provided in Part II of this book in which states, organiza-
tions, and individuals made demands or answered claims of great sophis-
tication, sometimes before international courts and tribunals or within
the United Nations and other fora. These positions were taken seriously.114
108
See the website of the WTO: www.wto.org; see also infra ch. 6.
109
110
See, e.g., Steve Charmovitz, Rethinking WTO Trade Sanctions, 95 AJIL 792, 792 (2001).
“Undoubtedly, putting teeth into the WTO was one of the key achievements of the Uruguay
Round ending in 1994, and a very significant step in the evolution of international economic
law.” Id. at 792 (citation omitted).
111
112
Id. at 174.
113
See supra pp. 110–11.
114
The authors posit that invocation of international law is analogous to a worker who states on
his job application he is a “hard worker” rather than “lazy.” It is cheap to do so. The analogy is
completely inapposite, but to point out just one deep flaw: When the lazy worker says he is

Enforcement Theory
Goldsmith and Posner conclude their discussion of “cheap talk”

with the observation that “legalistic rhetoric” is useful to cloak the action
of those seeking to act “aggressively” (by which they seem to mean unlaw-
fully under international law) and by states “seeking to coordinate in com-
plex interactions.”115 As discussed in Chapter Two, “Compliance Theory,”
we know that the Nazis did try to cloak their unlawful activities in the
garment of law—national and international. If every government did this,
the Nazis would not have bothered. Hitler and his advisers invoked
international law because international law was taken seriously in the
international community. It was not regarded as mere “cheap talk.” Hitler’s
lawyers knew the power of international law and attempted to control it.
Noncompliant international law professors were removed; compliant ones
like Carl Schmitt were promoted for proffering legal arguments to justify
the Nazis’ policies. His efforts were seen for what they were—the manipu-
lation of legal argument to justify criminal conduct. After the war, a major
effort to further solidify and strengthen international law took place. The
United Nations Charter, the Universal Declaration of Human Rights, the
Genocide Convention, and the Geneva Conventions were all drafted within
five years of the war.
Goldsmith and Posner take on other problems for their thesis as
well, in particular, consent and sanctions. Consent as the basis of positive
international law is commonly pointed to as the reason why international
law binds. States like the United States regularly give their consent to
international law—treaties, rules of custom, participation in international
organizations. For many American government officials, the US giving its
solemn word in consent to a treaty might make them hesitate to later take
the position that the US is not bound. Treaties are described in the US
Constitution as part of the “supreme Law of the Land.”116 Goldsmith and
Posner, however, dismiss consent saying that even though individuals can
consent to contracts, states are always changing and cannot bind themselves
“hard-working,” the statement will only be “cheap” if the employer cannot get references to
learn the truth. Despite what the worker says, he will not get the job if references reveal he is
lazy and untruthful. In international relations, actors know the law or can get an authoritative
finding on the law. If a claim is made, other actors will assess it—cheap claims are hard to
make. International actors cannot get away with baseless claims regarding international law
like a lazy, reference-less job applicant.
115
116
U.S. Constitution, art. VI, cl. 2 (“[A]ll Treaties . . . Shall be the supreme Law of the Land . . . .”).

in the future in the same way.117 Of course, individuals are also constantly
changing, too, in the way they mean states are constantly changing—such
change is no barrier to entering into contracts. More important, states are
juridical entities, quite similar to other juridical entities like corporations.
Indeed, Goldsmith and Posner compare states to corporations at other
points in the book.118 Corporations bind themselves by contract all of the
time. Corporations, like states, are also constantly changing. Corporations
give their consent to plenty of contracts. The economy would come to a
complete stop if they could not. The economy would also be seriously dis-
rupted if treaties were not binding.
Regarding enforcement, they take the opposite tack. Instead of
attempting to explain away the enforcement that occurs in international
law, as they do consent, they argue that international law’s enforcement
system is wholly inadequate to support international law’s claim to be law.
They state that the frequency and efficiency of law enforcement is much
better in national systems than in the international one: “What is the
anomaly for domestic law is the norm for international law.”119 They then
acknowledge that domestic traffic laws, tax laws, and drug laws are not
well enforced. (They must be limiting their thinking to the US). They leave
out other US laws well known to be underenforced: murder law, domestic
violence law, rape law, child support laws, and immigration law, to name a
few. Despite spotty enforcement, Americans believe that the tax laws, the
murder laws, and even the traffic laws are binding.
Whether the international community’s enforcement system works
better than that of the US is not central to the claim of either to have a legal
system. Proof of the existence of law does not require proof that the rules
are always and effectively enforced. A legal system needs means of enforce-
ment. Legal rules need to be distinguishable from social, moral, and other
types of rules by the potential of enforcement for noncompliance. There
must also be a requisite level of voluntary compliance with law. This
has been the standard account of the role of enforcement since Hans
Kelsen, H.L.A. Hart, and Henkin. Goldsmith and Posner not only over-
look this standard account, they require of international law more and
better enforcement than occurs in national systems. They believe that
117
Goldsmith & Posner, supra note 20, at 189–92.
118
Id. at 5. “Moreover, although states are collectivities, they arrange themselves to act like
agents, just as corporations do.” Id.
119
Id. at 195.

Enforcement Theory
“[s]tates certainly do not exercise coercion out of obedience to interna-

tional law. If they did, force would be applied systematically and uniformly
in the face of human rights violations.”120
Their final argument against international law as law is a moral
argument. Neoconservatives like John Bolton have suggested that the
United States might have some moral obligation to comply with interna-
tional law, if no legal one.121 Goldsmith and Posner say, “international
legality does not impose any moral obligations.”122
The reason that it can exert no moral force comparable to the

moral force of domestic law is that it has no democratic pedi-
gree or epistemic authority; it reflects what states have been
doing in the recent past and does not necessarily reflect the
moral judgments or interests or needs of individuals.123
This conclusion seems to be based on an assumption that moral law

can only result if the law is made by elected representatives in a democ-
racy. One reviewer interprets them as arguing that international law con-
flicts with the “higher principle of democratic sovereignty. Therefore, as a
normative principle, when such law interferes with a state’s (especially a
liberal democratic state’s) own interests, that law does not need to be fol-
lowed.”124
Since the democratic form of government is of recent origin, their
view suggests that humanity has not lived under moral law for most of
recorded history—within states or between them. They confuse a form of
government with the resulting laws of that form of government, which
may or may not be moral. Slavery was outlawed in many monarchies long
before it was prohibited in democratic America. Hitler was elected in a
constitutional democracy. There is no necessary connection between
democracy and the moral quality of law. Indeed, it is a constant challenge
in democracies to prevent the tyranny of the majority from enacting law
unfair to minorities. What is attractive about democracy and why it is
120
Id. at 117.
121
John R. Bolton, Is There Really ‘Law’ in International Affairs?, supra note 5.
122
Goldsmith & Posner, supra note 20, at 197 (emphasis added).
123
Id. at 199.
124
Hudson, supra note 30, at 32, citing Goldsmith & Posner, supra note 20, at 189–97, 211; see
also Kahn, supra note 43.

considered a superior form of government potentially leading to more

moral law than other forms of government is the potential for participation.
When the law must reflect multiple interests, including the moral beliefs
of many, the chances are improved that the law will not be law in the service
of one at the expense of many.
Yet, most democracies are representative democracies where the
primary form of participation by the many is through elections. In this
respect, international law supports greater and more direct participation.
Every nation-state may participate directly in law-making. Henkin, in his
lectures, compared international law-making with the law-making of a
Vermont town meeting. Face-to-face discussion of everyone involved.
Thus, for rules directly affecting states as states—boundary rules, trade
rules, diplomatic rules, etc., international law is superior to the US system
of law-making if judged on the basis of participation. Other law is made
by representatives of states for their populations. Moreover, since the end
of the Second World War and with the advances in communication asso-
ciated with globalization, participation in international law has become
increasingly inclusive. The development of the Landmines Convention
and the International Criminal Court were led by individuals and NGOs
even more than by states’ representatives.125
As will be discussed further in Part II, wide participation in the law
may well result in law with more reliable moral content. If participation is
what makes law developed in a nation-state generally morally acceptable,
it is only logical to accept the law emanating from a worldwide participa-
tory process to be at least as morally compelling, if not more so than that
developed in one state. The United States has a long, proud, and continu-
ing history of participation in the making and promotion of international
law and the shared pursuit of global norms.126 Until the ascent of the neo-
conservatives, it was not the American way to stay aloof from the proc-
esses of international law, claiming superiority and exceptionalism. We
rather engaged in the pursuit of international norms together with our
fellow citizens around the world. Pursuing such norms is understood to
125
For a perceptive description of early twenty-first century international law-making, see
Michael Reisman, The Democratization of Contemporary International Law-Making Processes
and the Differentiation of their Application, in Developments of International Law in
Treaty Making 15, 16 (Rüdiger Wolfrum & Volker Röben eds., 2005).
126
Mark Weston Janis, The American Tradition of International Law, Great
Expectations, 17891914, at 5354 2004. John Murphy, The United States and the
Rule of Law in International Affairs (2004).

Enforcement Theory
be doing the right thing and most Americans want their country to do the
right thing.
Goldsmith and Posner acknowledge that as history proceeds

to the present, it becomes possible and desirable for an ever
greater number of states to cooperate and communicate. And
value-laden communications must accordingly appeal to
values that are more widely shared—more nearly universal—
than those shared only by one insular people or cluster of such
peoples. So the language of international justification becomes,
naturally enough, the language of international (including
‘transnational’) law and morality. But to recognize this, as
Goldsmith and Posner are right to do, is to recognize the depth
and pervasiveness of ‘normative pull.’127
Nevertheless, it may be that Edward Swaine is right and that US

elites will seize on the Limits of International Law to justify noncompli-
ance with international law.128 The purpose behind this lengthy review of
the book is to dissuade them. As discussed, that book’s underlying rational
choice theory of law is, in general, a highly controversial one and, in this
case, poorly applied. Discussing international law in terms of the rational
choice theory was only possible by making implausible assumptions. The
conclusions based on it could not be corroborated with actual cases.
The cases show international law does attract compliance. The Limits of
International Law presents a false picture of international law that US
elites rely on at their peril—and the country’s peril. Arguing that interna-
tional law is not serious law, that it is optional only may well lead to US law
violations and possible legal jeopardy for government officials.129 The
United States benefits as much or more than any state by having a robust
body of international legal rules—rules for promoting peace, human rights,
the environment, and prosperity. Even Goldsmith and Posner do not go so
far as to dismiss the importance of bilateral treaties. But states cannot have
one type of treaty without international law being law in general—with a
127
Hockett, supra note 49, at 1774–75 (footnotes omitted).
128
Swaine, supra note 30, at 265, n.9.
129
US officials since 9/11 have been cited for criminal violations of international law in Germany,
Belgium, France, Spain and Argentina as well as civil suits in the US.

basis of authority, a theory of sources, and the means of application and

enforcement. Nor will the United States be able to persuade the rest of the
world to accept it as an exceptional nation above the law—with special rights
and privileges. So many states could make the same argument for them-
selves: China, Brazil, India, Russia, Japan, South Africa, the Scandinavian
countries, and the European Union, to name a few. The United States is in
no position to impose a superior stance regardless of what Krauthammer
and other neoconservatives may believe.130
The US form of government does have much to offer the world. The
way to promote it is through dialogue—entering into the processes of
international law for persuasion and development of norms compatible
with America’s own, not standing aloof and superior and claiming a special
status that is not recognized in the world. Since the neoconservatives
took office in the United States, the US’s reputation has plummeted, and
with it the ability to influence. This is not the US’s traditional place. It has
rather been fully a part of forming, applying, and enforcing international
law. American leaders in the past have understood the power and purpose
of international law. They have recognized that international law is funda-
mentally an idea—a social construct—like all law. Its power lies in our
belief in its power. Concepts like power are in turn ideas: power is what we
decide that it is. As Friedrich Kratochwil explains, “power is not material,
but ideational, and the importance of power in the material sense depends
critically on the social milieu in which the state exists. It is all ideas, all
the way down.”131 Increasingly, in the world today, law compliance is con-
sidered a sign of the powerful. States that take the lead on international
law are the prestige countries, they have a kind of power that the neocon-
servatives have denied the United States. As a young Congolese human
rights lawyer said in late 2007: “Superpowers do not torture.”132
130
See Parag Khanna, Waving Goodbye to Hegemony, N.Y. Times Mag., Jan. 27, 2008, at 32.
(“Just a few years ago, America’s hold on global power seemed unshakeable. But a lot has
changed while we’ve been in Iraq—and the next president is going to be dealing with not
only a triumphant China and a retooled Europe but also the quiet rise of a second world.”
Id. at 32.)
131
42 Steinberg & Zasloff, supra note, at 82–83. See also Friedrich Kratochwil, Constructing a New
Orthodoxy? Wendt’s ‘Social Theory of International Politics’ and the Constructivist Challenge,
29 Millennium: J. of Int’l Stds. 73 (2000).
132
Remarks to the author (speaker’s identity withheld at her request).

Enforcement Theory
II. International Law: Natural Law, Positive Law, Process
Kratochwil’s view invites the question: What accounts for the idea that
international law has power in the international community? For Kelsen,
Henkin, and Thomas Franck, the ultimate authority of international law—
its power—is founded, as is the authority of all law, in belief.133 Henkin’s
evidence for this acceptance is compliance with international law. As is
argued throughout this book, evidence is also found in the existence of
sanctions for rule violation. What accounts for this acceptance and willing-
ness to sanction is found in turn in the history of law, especially the impact
of natural law theory. Although positive law theory explains much of inter-
national law, it is inadequate for explaining the basis of legal authority. It is
also inadequate to explain the ultimate limits on positive law.
Natural law theory contains an explanation of those limits. In inter-
national law, positive law rules are ultimately limited by jus cogens norms.
These norms cannot be changed through positive law methods and must,
therefore, be explained by a theory outside the positive law. Natural law
provides such a theory. Natural law theory is problematic not in the estab-
lishment of law’s authority of higher principle but in the more precise
delineation of the higher principles. The classic problem associated with
natural law is, Who decides? How do we avoid the natural law answer
being the subjective opinion of any one person—scholar, judge, world
leader? Contemporary natural law theorists have responded to this prob-
lem, especially through the concept of the common good as an objective
anchor for the search for natural law principles. A different or additional
response is offered here, looking to legal process theory.
In 2004, Smith examined the phenomenon of growing skepticism
or uncertainty about the authority of law in the United States. He reviewed
the various theories we invoke today to explain why law has authority—
from consent to rational choice—and concluded that none is adequate
because none replaces the historic source of authority for law as under-
stood by the originators of our law: God himself. Smith reminds us that
the belief in law’s authority is an inheritance from an age when legal scholars
believed in God and in the ability to apply reason to understand what God
ordained in the form of law.
133
See supra ch. 2 pp. 84–85.

Blackstone and Story were, after all, heirs of a worldview that

assumed that God was real—more real than anything else, in
fact, or necessarily rather than contingently real—and had cre-
ated the universe according to a providential plan. This view
had important implications for the nature of law. Perhaps the
most systematic working out of those implications had been
performed centuries before Blackstone or Story—by Thomas
Aquinas. . . .
[E]ven human or positive law derives from the “eternal
law,” which is the divinely ordained order governing the uni-
verse, and positive law gains its status as law by virtue of par-
ticipating in that order.134
Smith is concerned that the ultimate source of law’s authority has

been lost in our secular age. The age does not seem particularly secular;
but even if it is, or for those for whom it is, belief in law remains as an
inheritance from the age of belief. This inheritance has an existence of its
own—our respect for law’s authority today is a phenomenon in its own
right. Joseph Vining compares it to our belief in love.135 Law is more than
a contract that we consent to and from which we can withdraw consent.
It is a belief.136 Hart and Kelsen were committed positivists, yet, as John
Gardner explains, “[l]egal positivism is not a whole theory of law’s nature,
after all. It is a thesis about legal validity, which is compatible with any
number of further theses about law’s nature, including the thesis that all
valid law is by its nature subject to special moral objectives and imperatives
134
Smith, supra note 49, at 46–47 (2004) (internal citations omitted); see also, Stephen Hall, The
Persistent Spectre: Natural Law, International Order and the Limits of Legal Positivism, 12 EJIL
269 (2001).
135
Joseph Vining, Law’s Own Ontology: A Comment on Law’s Quandary, 55 Cath. U. L. Rev. 695,
703–4 (2006).
136
Reed encourages people of faith not to suspend that faith in thinking about law: Christians
need
biblically-informed ways of speaking of human law, not least international law, that
can command ecumenical agreement. Even if this theological conceptuality is later
hidden from view and not drawn upon explicitly in jurisprudential contexts, Christian
people need to know from what theological realities their ideals are drawn, and how
those realities resource an account of God’s dealings with human history and the role
of the Rule of Law within that history.
Esther D. Reed, International Law and the Question of Authority, Paper for the CTI
International Law Group, Sept. 2007, at 9–10 (on file with the author).

Enforcement Theory
of its own.”137 He goes on to explain how dominant theorists of legal posi-

tivism, such as Kelsen and Hart, never held simple views of law as only
co-extensive with legal positivism’s thesis that “[i]n any legal system,
whether a given norm is legally valid, and hence whether it forms part of
the law of that system, depends on its sources, not its merits.”138
[L]egal positivism admittedly does not distinguish law from a

game, which is also made up of posited norms. To distinguish
law from a game one must add, among other things, that law,
unlike a game, purports to bind us morally. That has implica-
tions, no doubt, for what counts as successful law, and hence
for what one might think of as law’s central case. But this does
not detract from the truth or the importance of [legal positivism],
which is not a thesis about law’s central case but about the
validity-conditions for all legal norms, be they central (morally
successful) or peripheral (morally failed) examples.139
The tendency in international law has been to search in positivism

for a basis of authority for international law generally, not just for a thesis
of rule validity. Lacking a government, the task has long been understood
to be one of anchoring the legal system as a whole, since it is not anchored
in a government the way national law is. The positive act of consent by
states has been used as both the defining characteristic of treaties and
custom and of international law as law.140 This is actually done in domestic
legal theory, too—just indirectly—through social contract theory in which
we citizens are deemed to have given consent to our government, which in
turn produces the law.141 Social contract is a problematic theory for the
authority of law, however. First, it is not true. We do not give our consent
to be bound by government or law. But even if we did, or if somehow
137
John Gardner, Legal Positivism: 5 ½ Myths, 46 Am. J. Juris. 199, 210 (2001).
138
Id. at 199.
139
Id. at 227.
140
Hathaway argues that states give “negative consent” to a rule of customary international law.
States, at least, can avoid being bound through the persistent objection to being bound, rather
than becoming bound through express consent, as with treaties. He acknowledges only the
general principles of law found in national law as such principles reflect at least indirect consent.
James C. Hathaway, The Rights of Refugees Under International Law 16–31 (2005).
141
See supra ch. 2 pp. 89, 128–30 on liberal political theory’s limits for explaining international law.

simply supposing that we did was sufficient, we could just as easily with-
draw our consent.
Apparently, the weakness of consent-based authority for law is
more obvious to legal scholars when it comes to international than to
domestic law. There are no elections or democratic institutions of the
national type. It is typically overlooked that, in international law, there is
much direct participation by the governed in law-making and, thus, a
more direct and robust form of consent to the system and particular laws.
Rather, the focus has been on the fact that the international community
includes sovereign states, subjects of the law that might more plausibly
withdraw consent than the mere citizens of those states. Schmitt,
Morgenthau, Goldsmith, and Posner have all argued that the sovereign
state cannot be ultimately bound by law.142 Nineteenth- and early twentieth-
century international law scholars committed to positivism struggled
mightily with the problem of the state withdrawing consent. Georg Jellinek
developed a concept that the state had the power to bind itself not to with-
draw its consent.143 In other words, there is a sort of super-consent, some-
thing beyond the consent that can be withdrawn at will, and thus, beyond
positive law.
Philip Allott has offered another solution to the puzzle of interna-
tional law’s authority, the forging of a constitution for international soci-
ety, which he conceives of as the society of all societies. If we could ever
agree to such a document, it would be a repository of tangible consent to
the system of international law and held up as a symbol of our shared
belief. International law might come to be more respected. And, for him,
more important, international law would be put to better use in solving
the evils rampant in the world—war, hunger, poverty, and violence.144
Allott’s idea may overlook that domestic legal systems, even with consti-
tutions, have their challenges. As Steven Smith so ably shows, the first
142
Positivism also turned out to be a useful legal theory for imperial states as it more readily
accommodated exclusion than classical natural law which embraced all. Under positivism,
the sovereign state “can do as it wishes with regard to the non-sovereign entity. . . .” Makau
Mutua, What is TWAIL? 94 ASIL Proc. 31, 33 (2000); (quoting Antony Anghie, Finding the
Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 Harv.
Int’l L.J. 1, 3 1999). See also Antony Anghie, Imperialism, Sovereignty, and the
Making of International Law, ch. 2 (2004).
143
Georg jellinek, Allgemeine Rechtslehre 1905.
144
Philip Allott, Eunomia: New Order for a New World (1990).

Enforcement Theory
constitutional democracy, the United States, is experiencing its own crisis

of confidence in law. The myth of consent is wearing thin.
Kelsen recognized the inadequacy of consent as the basis for both
international law and national law. He left behind his early proposition
that it is consent (pacta sunt servanda) that serves as the basis of legal
authority or the Grundnorm. He replaced it with the idea that law is
accepted as binding.145 For Kelsen, the Grundnorm is the basis of all legal
authority international and national. He understood there to be only one
unified or monist legal system. Most theorists today divide the systems
following a dualist conception. The division may help keep the extracon-
sensual basis of national law disguised behind national institutions, but
national law is best explained, as is international law, as having its author-
ity in our belief in law.
Both types of law not only have the basis of authority in an extra-
consensual concept, they both have higher principles constraining posi-
tive law. These higher principles are also best explained outside positive
law theory. In his dialogue with Jürgen Habermas, Joseph Ratzinger
reminds us of the origins of the idea of natural law as a limitation on the
positive law:
[In] ancient Greece, which also experienced an Enlightenment

in which a divinely based law lost its obviousness, . . . it became
necessary to look for deeper justifications of the law. This led to
the idea that in the face of a positive law that can in reality be
injustice, there must be a law that derives from the nature, from
the very being, of man himself. And this law must be discov-
ered, so that it can act as a corrective to the positive law.146
145
Other scholars have offered alternatives to belief as the source of the binding power of inter-
national law. Oscar Schachter in his essay on obligation in international law lists a number of
alternative explanations but the list could be reduced to two categories: consent and beyond
consent. Schachter’s extraconsensual sources included natural law or reason but also: “A sense
of ‘rightness’—juridical conscience;” “Social necessity;” “The will of the international commu-
nity (the ‘consensus’ of the international community);” “Direct (or ‘stigmatic’) intuition;”
“Common purposes of the participants;” “Effectiveness;” “Sanctions;” “‘Systemic’ goals;’”
“Shared expectations as to authority” and “Rules of recognition.” Many of these seem co-
extensive with belief or at least volition on the part of the international community that the
rules recognized as international law rules are binding. Oscar Schachter, Towards a Theory of
International Obligation, 8 Va. J. Int’l L. 300 (1967–68).
146
Jürgen Habermas & Joseph Ratzinger, The Dialectics of Secularizaton: On Reason
and Religion 67 (Brian McNeil trans., 2006) (original German title: Dialektik der
Säkularisierung: Über Vernunft und Religion (2005)).

International law contains both certain general principles of international

law and jus cogens (peremptory) norms, which are not derived from posi-
tive acts and serve as a limitation or corrective to the positive law.147
Despite playing this essential role vis-à-vis the positive law, natural
law theories have been the subject of severe criticism as unscientific, irra-
tional, unknowable, or wholly subjective. The great attraction of consent-
based over extra-consensual aspects of law is that consent is an objective
indicator of what the recognized rules are. The fact that natural law is
derived from revelation and/or reason presents a problem about reaching
consensus as to what the law is, once the authority of the priest or pope
was lost. This problem does not apply to the proposition that we believe
law has authority or even to the proposition that there must be law above
the positive law of states. It applies rather to the attempt to find more spe-
cific rules using natural law theory.
One response to the problem of natural law subjectivity is the con-
cept of the common good.148 The Protestant theologian Esther Reed points
to “John Paul II’s vision . . . for a revitalised role for international law in
service of the common good – defined as the sum total of social condi-
tions which allow people, either as groups or individuals, to reach their
fulfilment more easily.”149 The common good concept in turn invites the
inquiry for law into a more precise understanding of the content of the
common good and how the law should support it.
Such an inquiry into the meaning and implications for law can be
guided by legal process theory. Courts and other deliberative bodies—
referred to here for simplicity as “courts”—play an essential role in the inter-
national legal system with regard to both rules emanating from positive
sources as well as extrapositive sources—general principles and rules of
147
For a more general view of the roles in both natural law and positive law theories in interna-
tional law today, see Reisman, The Democratization of Contemporary International Law-
Making and Processes and the Differentiation of their Application, supra note 125, at 16.
148
See Paolo Carozza, The Universal Common Good and the Authority of International Law,
9 Logos 28 (2006); Robert Kolb, Reflexions de philosophie du droit international,
Problemès fondamentaux du droit international public: Théorie et philosophie
du droit international 233–50 (2003). Larry May offers another contemporary approach.
See, Larry May, War Crimes and Just War 2007. May incorporates a “limited” natural
law perspective as in this book, but rather than looking to contemporary positive law as here,
he relies on Grotius. Id. at 3–4.
149
Reed, supra note 136, at 6.

Enforcement Theory
jus cogens.150 It is accepted that courts will make determinations where

positive law is ambiguous or incomplete. They can play the same role in the
determination of international law’s higher principles. “[J]urists rather than
positive rules become law’s nucleus, as educators and enlighteners . . . .”151
Among the various theories of judging that guide judges to avoid
decisions that are too subjective, the theory found in legal process seems
particularly well-suited to the international community of today. Globaliza-
tion has resulted in more international law and more legal institutions.
With new courts, tribunals and other decision-making bodies, the prob-
lem of restraining subjectivity is already well known.152 International legal
process scholars teach that decision-makers must start in international
law with the recognized sources: treaties, customary international law, and
general principles.153 To the extent that the law is ambiguous, needs updating,
or may violate a jus cogens norm, the decision-maker should look first to
the purposes of the community as indicated in the most applicable law.
Decision-makers must also bear in mind the purpose of law generally
and the important values of the community. Judges deciding consistently
with these guides reduce the risk of simply applying personal preferences.
Requiring a reasoned decision also supports more objective judgments.
The move to courts to ascertain international law’s higher principles
reintroduces formalism to the system, which it appears to need after the
wave of deformalization of the twentieth century.154 It is not every actor in
the system who has authority to establish jus cogens norms. States and
150
For an overview of many of the deliberative bodies at work in the international legal system
today, see, José E. Alvarez, International Organizations as Law-makers (2006).
151
Martti Koskenniemi, Constitutionalism as Mindset: Reflections on Kantian Themes About
International Law and Globalization, 8 Theoretical Inquiries in L. 9, 10 (2007).
152
See Alec Stone Sweet, The Juridical Coup d’État and the Problem of Authority, 8 German L.J.
915 2007; José E. Alvarez, The New Dispute Settlers: (Half) Truths and Consequences, 38
Tex. Int’l L.J. 405 (2003).
153
Mary Ellen O’Connell, New International Legal Process, 93 AJIL 334 (1999); see also Alvarez,
supra note 150, 598–601. Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L.
Rev. 687 (1998).
154
On the advantages of formalism, see Anne Orford, The Gift of Formalism, 15 EJIL 1, 179
(2004); Mary Ellen O’Connell, The End of Legitimacy, 2004 ASIL Proc. 269; James Hathaway,
American Defender of Democratic Legitimacy?, 11 EJIL 131, 129 (2000). Martti Koskenniemi,
‘The Lady Doth Protest Too Much’: Kosovo and the Turn to Ethics in International Law, 65
Mod. L. Rev. 159 2002. See also, Thomas C. Grey, The New Formalism, Stanford Public Law
and Legal Theory Working Paper Series, 5 (Sept. 6 1999), available at http://papers.ssrn.com/
paper.taf?abstract-id=200732, cited in Jay M. Feinman, Un-Making Law: The Classical Revival
in the Common Law, 28 Seattle U.L. Rev. 1, 42004.
Koskenniemi points out that

organizations have established courts for decision-making and empowered

them to decide.155 This authorization may be a sufficient basis on which to
recognize that the decisions of such courts are legitimate, provided that
they remain true to the values of the community and the law in reaching
their decisions. It is the very nature of some of these institutions that they
will clarify ambiguities in the law, fill gaps, and thus make law beyond the
consent of states. The act of applying a treaty, rule of custom, or general
principle will necessarily involve interpretation, clarification, and/or addi-
tion. “[T]he finding in a number of classic studies on the problem of ‘gaps
in law’[] [is that] even where legal materials run out, legal reason will con-
tinue to operate.”156 Overly subjective decision-making can be avoided with
transparent reasoning.157
[t]he exercise of constraint over states—as over individuals—is always in need of

justification. Law’s special kind of justifying power lies in the formalism which sub-
mits the exercise of constraint to previously agreed rules, institutions and procedural
safeguards against its use for external purposes. Though the formalism may not always
be “effective,” and it can sometimes, perhaps often, be replaced by less formal proce-
dures, it cannot be done away with altogether without serious difficulties regarding
the political acceptability of the whole regime.
Martti Koskenniemi, Breach of Treaty or Non-Compliance? Reflections on the Enforcement of
the Montreal Protocol, 3 Y.B. Int’l Env. L. 123, 147 (1992).
155
Koskenniemi conveniently summarizes the main developments:
[G]lobal trade was legalized within the World Trade Organization (WTO, established
1995), mass atrocities and violations were addressed by international criminal tribu-
nals and the International Criminal Court (ICC), established 1998). Tribunals were
set for the law of the sea and for conciliation within the Organization for Security and
Cooperation in Europe. The workload of human rights treaty bodies and regional
courts exploded. Transnational commercial arbitration increased.
Martti Koskenniemi, Constitutionalism as Mindset, supra note 125, at 12; see also Reisman, The
Democratization of Contemporary International Law-Making Processes, supra note 125. See also
on the need for at least minimal formalism in international law-making, Georges Abi-Saab,
Comment, in Developments of International Law in Treaty Making, 31, 33, supra
note 125.
156
Martti Koskenniemi, Constitutionalism as Mindset, supra note 125, at 22 (citing, among other
works, Hersch Lauterpacht, The Development of International Law by the
International Court (2d ed. 1956)).
157
These insights from legal process theorists are consistent with Gardner’s views as to the proper
role of decision-makers from the perspective of “hard positivists”:
They hold that a law which declares that (say) all and only reasonable laws shall be
valid does not legally validate any further norms, in spite of appearances. Rather, it
delegates to some official (say, a judge) the task of validating further norms himself or
herself by declaring them reasonable . . . [T]he validity of the further laws in question
comes not of their reasonableness (their merit) but rather of the fact that some rele-
vant agent declared them reasonable (their source).
Gardner, supra note 137, at 201.

Enforcement Theory
With respect to national law, legal process scholars urge fidelity to

the purposes of statutes and other positive law in determining the law and
the community’s values. In international law, courts also have the positive
law to guide their assessment of the community’s values. The search for
higher law then incorporates the virtues of the positive law. Paolo Carozza,
in his discussion of the universal common good, points to the Preamble of
the UN Charter for an “articulation of certain fundamental aspects of the
universal common good.”158 It is also an articulation of the international
community’s most fundamental values:
We the peoples of the United Nations determined to save suc-

ceeding generations from the scourge of war, which twice in
our lifetime has brought untold sorrow to mankind, and to
reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and
women and of nations large and small, and to establish condi-
tions under which justice and respect for the obligations aris-
ing from treaties and other sources of international law can be
maintained, and to promote social progress and better stand-
ards of life in larger freedom, and for these ends to practice
tolerance and live together in peace with one another as good
neighbors, and to unite our strength to maintain international
peace and security, and to ensure, by the acceptance of princi-
ples and the institution of methods, that armed force shall not
be used, save in the common interest, and to employ interna-
tional machinery for the promotion of the economic and social
advancement of all peoples, have resolved to combine our
efforts to accomplish these aims.
The Preamble was agreed to by fifty-one states in 1945, but all indi-
cations are that it remains current. New treaties on human rights, the
International Criminal Court statute, and reaffirmations of the law against
the use of force confirm the Preamble’s continuing vitality. The many new
treaties and rules of customary law on environmental protection indicate
an additional core purpose of law.159
158
Carozza, supra note 148, at 46.
159
For an overview of international environmental law, see Philippe Sands, Principles of
International Environmental Law 1995.

We can be more confident in knowing the international community’s

values owing to the new technology of communication. International law
increasingly reflects true worldwide participation. Dianne Otto argues for
international law’s universality to be “understood as dialogue.”160 An-Na’im
and Weeranmantry also encourage the search for universal consensus
about norms through dialogue. As with Habermas, they understand that
international laws should be those “to which all possibly affected persons
could agree as participants in rational discourses.”161 Through such dia-
logue, the law can reflect global consensus about particular rules, as well
as the purpose of the law and more general values and principles.
Weeramantry describes the capacity of substantive international law to
blend the wisdom of multiple cultures:
When international law commenced its modern career in the

16th and 17th centuries, it was cast largely in a Graeco-Judaeo-
Christian mould. Since then it has moved towards greater
universalization. Many more universal perspectives drawn
from all the world’s cultural traditions can and must be fed
into it as it develops to suit the needs of the 21st century. Its
success in that century will depend heavily on the extent to
which it can be further universalized by harnessing the
strength available in the world’s rich inheritance of cultural
and ideological traditions.
International law cannot afford to remain set in a nar-
rowly monocultural mould and hope in that form to address
problems which are truly global, multi-cultural and multi-tradi-
tional, which cry out for a universal solution.162
Andreas Paulus writes that “one of the advantages of law [is] that it
does not strive to reach full ‘deep’ agreements on underlying cultural, reli-
gious, or ideological factors, but that it is content with a ‘political’ consen-
sus, that is, a ‘second-best’ (or rather ‘least-worst’) consensus on some
160
Dianne Otto, Rethinking the ‘Universality’ of Human Rights Law, 29 Colum. Hum. Rts. L.
Rev. 1, 5 (1997).
161
Jürgen Habermas, Between Facts and Norms 107 (1997).
162
Christopher G. Weeramantry, Universalising International Law 2–3 (2004).

Enforcement Theory
minimum procedural and substantive rules which allow for the emergence
of minimum order.”163
An-Na’im points out that it is possible for religious people to par-
ticipate in such a dialogue and to present the moral commitments that
they hold without compromise. Should they fail, however, to persuade the
community that particular religious norms should also be reflected in
legal norms, they should accept that the law does not fully reflect their
views, returning to the discussion another day or even rethinking reli-
gious precepts in light of a widely accepted contrary legal norm. As he gently
indicates, religious understanding can and does change.164 An-Na’im’s
approach may obviate the need to create a secular theology to account for
law’s higher norms or insisting on the norms of a particular faith, which
would prevent international law from being universal law.165
Dinah Shelton, writing on the hierarchy of norms in international
law, confirms that courts are already playing the role of identifying higher
norms outlined here. In decisions concerned with jus cogens, she points
out that the European Court of Human Rights and the Inter-American
Court of Human Rights166 are making these determinations presently. The
European Court of Justice may in the future.167 The Inter-American
Commission on Human Rights has found a jus cogens norm prohibiting
163
Andreas L. Paulus, International Law After Postmodernism: Towards Renewal or Decline of
International Law? 14 Leiden J. Int’l L. 727, 752 (2001) (citing J. Rawls, Political Liberalism
133 (1996): “For attempts of transferal to international and human rights law, see A.A. An-
Na’im, State Responsibility Under International Human Rights Law to Change Religious and
Customary Laws, in R.J. Cook (ed.) Human Rights of Women: National and International
Perspectives 167, at 173 (1994).” Id.)
164
Abdullahi An-Na’im, What Do We Mean by Universal? 5 Index on Censorship 120 (1994).
165
John Finnis is perhaps most closely associated with the location of natural law in a secular
theory of human reason. Reed asks,
[s]hould we assume with Finnis, for instance, that all persons to be capable of discern-
ing basic human goods because of the universal nature of human experience, that
there is no need to ground ethical obligation in God’s will because the reasonableness
of self-evident human requirements carries its own force, and that human rights have
trans-historical and trans-cultural warrant to the extent that they give expression to
trans-historical and trans-cultural basic human goods? Arguably, to do so is unsatis-
factory historically and theologically because it misrepresents Aquinas as a practical
philosopher whose notion of integral human fulfillment or this-worldly happiness can
be detached from its theological roots. (Finnis, 1998) It is also unsatisfactory practi-
cally because it makes Western notions of pure rationality the basis of natural law and
jurisprudence.
Reed, supra note 136, at 8–9.
166
Dinah Shelton, Normative Hierarchy in International Law, 100 AJIL 291, 312–13 (2006); see
also, Joost Pauwelyn, Conflict of Norms in Public International Law 2003.
167
See also Case T-315/01, Kadi v. the Council and the Commission, 2005 E.C.R. II-03649.

the use of the death penalty to punish crimes committed by juveniles.168

The International Criminal Tribunal for Yugoslavia held that a jus cogens
norm against torture was superior to national law.169 And in an advisory
opinion on the rights of migrant workers, Judge Antonio A. Cançado
Trindade explained that the juridical foundation of his concurring opinion
was the natural law. He invokes the fathers of international law, Vitoria,
Suarez, and Hugo Grotius, all of whom recognized international law’s cen-
tral concern with the human being and law’s authority based in the natural
law: “To Grotius, natural law derives from human reason, is a ‘dictate of
the recta ratio,’ and imposes limits to the ‘unrestricted conduct of the rulers
of the States.’ The States are subjected to Law, and International Law has ‘an
objective, independent foundation, and above the will of the States.’”170
International courts have done similar work in finding general
principles of international law. While rarely using the phrase “general
principle of international law,” the formulation found in the ICJ Statute,
the ICJ and its predecessor, the Permanent Court of International Justice,
have frequently applied general principles—principles inherent in law and
often essential to the application of justice. In at least one ICJ decision,
Barcelona Traction, Light and Power, a general principle was found using
comparative method—looking at the law of nation states to affirm the
international legal rule as to the nationality of corporations.171 James
Hathaway considers this comparative method a positive law method.172
Most general principles, the far greater number, however, are not found
using comparative analysis but can be traced back to reasoning about the
nature of law, justice, and fair process.173 For example, in addition to the
rule of corporate nationality, the ICJ also pronounced in Barcelona
Traction that the court must always apply the law reasonably.174 This rule
168
The Michael Domingues Case: Report of the Inter-American Commission on Human Rights,
Rpt. No. 62/02, Merits, Case 12.285, Michael Domingues/U.S., Oct. 22, 2002.
169
Prosecutor v. Furundžjia, Case IT-95-17/1 (Appeals Chamber, ICTY, 2002) 121 Int’l L. Rpts.
213 2002.
170
Legal Status and Rights of Mexican Migrant Workers, Advisory Opinion OC-18/03, Inter-
American Court of Human Rights, Sept. 17, 2003 (Separate Opinion of Judge A.A. Cançado
Trinadade, at 3, citing E. Jiménez de Aréchaga, El Legado de Grocio y el Concepto de un Orden
Internacional Justo, in Pensamiento Juridicio y sociedad intercional –Libro-Homenaje
al Professor A. truyol y Serra 608, 61213, 617 1986.
171
Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 14 (Feb. 5).
172
Hathaway, supra note 140.
173
Oscar Schachter, International Law in Theory and Practice 49–58 (1995).
174
Barcelona Traction, Light and Power Company, Ltd., (Belg. v. Spain) 1970 I.C.J. 4 (Feb. 5).

Enforcement Theory
for the guidance of courts was not found by looking to the national law of
multiple nation states. In the 1974 Fisheries Jurisdiction cases between
Iceland, the United Kingdom and Germany, the ICJ called on the parties
to settle their differences through negotiation conducted in good faith.175
Good faith was treated as a rule inherent in international law. It was not
proven through comparative method.
In identifying higher norms and general principles, and in perform-
ing all the other judicial tasks, the many courts and tribunals active in the
world with respect to international law may yield conflicting results. Since
the 1990s, international law scholars have warned of fragmentation of the
unitary international law. International law, however, has a hierarchy of
courts. Respecting that hierarchy and legal process teaching is currently
mitigating any problem of fragmentation.176 In addition to playing an
essential role in identifying higher norms, general principles, and norm
hierarchies, courts are today also regularly involved in the application of
sanctions. Although the existence of sanctions for the violation of every
international law rule is argued here to be an essential aspect of interna-
tional law’s claim to be law, the widespread use of self-help in the application
of sanctions has brought into question whether international law’s sanc-
tions are actually legal sanctions. Quincy Wright, for example, in contrast
with Kelsen, raised doubts as to whether international law has legal sanc-
tions. “[S]elf-help in which the State acts as its own judge and sheriff
can hardly be called legal sanctions. They are essentially acts of policy, not
law. . . .”177 For Wright “self-defense . . . reprisals to remedy a wrong, or . . .
intervention to prevent an impeding irreparable injury”178 did not belong
in a law enforcement system. Yet, Wright expressed these views before
the adoption of the UN Charter. The UN Charter and the new processes
of the legal community for enforcement respond to Wright’s concern. The
use of force and countermeasures are now regularly the subject of deci-
sions by international deliberative bodies, as will be discussed in Part II.
175
Fisheries Jurisdiction (U.K. v. Iceland), 1974 I.C.J. 3, 7 (July 25); Fisheries Jurisdiction (F.R.G.
v. Iceland), 1974 I.C.J. 205 (July 25); see also Robert Kolb, Principles as Sources of International
Law (With Special Reference to Good Faith), 2006 Neth. Int’l L. Rev. 1.
176
See Conclusions of Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, Report of the Study Group of the
International Law Commission, UN GA Doc. A/CN.4/C.702 (Jul. 18, 2006).
177
Quincy Wright, Enforcement of International Law, 38 ASIL Proc. 77, 78 (1944); see also Josef
L. Kunz, Sanctions in International Law, 54 AJIL 324, 327 (1960).
178
Wright, supra note 177, at 79.

Fundamentally, the UN Charter moved the right to use military force out
of the realm of state prerogative, firmly setting a body of rules within
international law above states’ rights to resort to force. Although natural
law just war principles and the positive law Kellogg-Briand Pact existed
when the UN Charter was adopted, its greatest innovation was the creation
of a process for regulating the use of force.179
The UN Charter established the UN Security Council with the
authority to determine what uses of force are lawful or unlawful. The
Security Council’s determinations are based on the UN Charter’s general
prohibition on the use of force. States today have the right to use force
without Security Council authorization only in the case of self-defense to
an armed attack, and then only until the Security Council acts.180 The
regime for regulating force has been heavily criticized since its adoption,
especially because five states have permanent membership on the Security
Council, each with a right to veto Security Council resolutions including
on matters in which they are involved. In 1945, US President Franklin
Roosevelt acknowledged the problematic aspects of the veto, but defended
the system with the comment that he was open to better suggestions.181 No
other politically feasible plan emerged then or since. What has developed,
as a result of the system—flaws and all—is a concrete norm against the use
of force as an instrument of national policy. Force is restricted in interna-
tional law, as in national law, to emergency self-defense or with authorization
to respond to threats to the peace, breaches of the peace, and acts of aggres-
sion.182 The aggressive use of force virtually ended with the adoption of the
UN Charter—no state has conquered and annexed another fully sover-
eign state member of the United Nations. This achievement can be linked
to the development of a process of oversight by the Council, a deliberative
body to assess claims for the right to use force.183
179
For a discussion of the history and current rules regulating the use of force, see Mary Ellen
O’Connell, International Law and the Use of Force (2005); see also infra chs. 4 & 5.
180
Article 51.
181
Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations:
A Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and Their
Quest for a Peaceful World (2003).
182
Article 39.
183
This is not to say there have not been serious and regular violations of the UN Charter, just
not this most egregious form. It was to be hoped that more progress toward increasing respect
for the UN Charter might have occurred. But the realist theories undermining respect for
international law have had an impact.

Enforcement Theory
Ironically, the first real challenge to this law came from one of the
permanent members of the Security Council, a state with every reason to
defend the system, namely the United States. In the summer of 2002,
President Bush began to speak of America’s right to use force should the
US president perceive a threat from a state with the capacity to attack. The
Bush Doctrine, also known as the doctrine of preemption, was then writ-
ten into the September 2002 National Security Strategy.184 The doctrine of
preemption plainly fits well with neoconservative ideology. It allows max-
imum discretion to the president to decide when and why to use force.
The president’s decision to invade Iraq in 2003 because Saddam Hussein
might have weapons of mass destruction is widely thought to be an exam-
ple of the doctrine of preemption in practice. It is also a demonstration of the
problems with the doctrine.185
There were, of course, no weapons of mass destruction in Iraq in
2003. There had also been no attack on the United States by Iraq and no
relevant Security Council authorization. The Secretary-General of the
United Nations Kofi Annan affirmed that a Security Council resolution
would have been needed to justify using force against Iraq; and without it,
the invasion was unlawful.186 Nevertheless, Annan did respond to US
complaints about the Security Council not authorizing more uses of
force—complaints that seemed consistent with complaints by the ten
NATO states that had used force without Security Council authorization
against Serbia in 1999 during the Kosovo crisis. The Secretary General
launched a major review of the United Nations in the summer of 2003,
including, especially, a review of the Security Council.
By then, however, the Iraq War was going badly. Apparently, the
ideology that led to the decision to invade influenced the invasion plan
184
The National Security Strategy of the United States 6 (Sept. 2002), available at
http://www.whitehouse.gov/nsc/nss.pdf. “The claim to preemptive self-defense is a claim to
entitlement to use unilaterally, without prior international authorization, high levels of vio-
lence to arrest an incipient development that is not yet operational or directly threatening, but
that, if permitted to mature, could be seen by the potential preemptor as susceptible to neu-
tralization only at a higher and possibly unacceptable cost to itself.” W. Michael Reisman &
Andrea Armstrong, The Past and Future of the Claim of Preemptive Self-Defense, 100 AJIL 525,
526 (2006). See John Yoo’s defense of the doctrine in John Yoo, Using Force, 71 U. Chi. L. Rev.
729 2004.
185
The invasion was also something neoconservatives had argued for since at least 1998. Wilson,
supra note 1.
186
Patrick E. Tyler & Felicity Barringer, Annan Says U.S. Will Violate Charter if It Acts Without
Approval, NY Times, Mar. 11, 2003, at A8.

as well. Neoconservatives in the Pentagon (such as, Donald Rumsfeld,

Paul Wolfowitz, and Douglas Feith) theorized that the Iraqi people would
so welcome the removal of Saddam Hussein and his replacement with a
democratic form of government that they would shower the invading
forces with flowers and sweets. The plan also reflected the anti-interna-
tional law planks of neoconservative ideology. The result was that the size
of the invading force was inadequate to control the country. Moreover, the
troops had no orders to stop looting as required by the Hague Regulations
of 1907.187 Troops also seemed unprepared to act in compliance with the
Geneva Conventions. In April 2004, the world media began to circulate
photographs from the main prison being used by the United States to
detain Iraqis, a prison called Abu Ghraib. The photos depicted United
States soldiers abusing Iraqi detainees in horrific ways. The soldiers in the
photos said they had been ordered or authorized to abuse the prisoners by
interrogators. In June 2004, the media began to publish accounts of long
legal memoranda discussing the legality of using “harsh” interrogation
methods.188 The memos concluded that any method, including torture, could
be used, especially with the authorization of the United States president.
The media then reported the use of harsh interrogation methods against
individuals detained in Iraq, Afghanistan, Guantánamo Bay, Cuba, and in
secret locations.189
The memos reflected a clear ideology of presidential power over law,
especially international law. In this context, the Secretary General’s High
Level Panel on United Nations Reform reported. It dramatically rejected
any new right to use force outside the Charter. The members restated the
need for any use of force other than in self-defense to have Security Council
authorization. The Panel also expressly rejected a dangerous idea about
force sometimes being legitimate, even if unlawful190—an idea in sync with
neoconservativism but also with some just war scholarship.191 The Panel
187
See Mary Ellen O’Connell, Occupation Failures and the Legality of Armed Conflict: The Case of
Iraqi Cultural Property, 9 Art Antiquity and Law 323 (Dec. 2004).
188
See Bravin, supra note 1.
189
The Bush Administration has confirmed the use of waterboarding, a classic form of torture,
during interrogations of three suspects while the individuals were held in secret prisons. See
Shane, supra note.
190
A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats,
Challenges and Change (2004), available at http://www.un.org/secureworld/.
191
See e.g., Jean Bethke elshtain, Just War Against Terror: The Burden of American
Power in a Violent World (2003).

Enforcement Theory
reaffirmed that the standard of legitimacy in the international community

must be the community’s law.192 International law generally restricts uni-
lateral decisions about the just causes of war—as it must for international
law to be a legal system with authority over sovereign states in all matters,
especially force. It has authorized the Security Council to assess uses of
force, not the leaders of individual nation states. Although this fact may
dismay some who wish to see more military force used to enforce human
rights, such an interest may result from an unrealistic understanding of
the good that can actually be accomplished by major armed force.193 It
may also underestimate the negative impact on international law in gen-
eral if decisions to use force are left to the discretion of national leaders.
Most of all, it disregards the consensus moral and legal opinion of the
international community.
Following the High Level Panel report, delegates representing
people from all states renewed their commitment to the UN Charter
system for controlling force, and, thereby, to the rule of law in the world.
In particular, the World Summit delegates said:
We reaffirm that the relevant provisions of the Charter are suf-

ficient to address the full range of threats to international
peace and security. We further reaffirm the authority of the
Security Council to mandate coercive action to maintain and
restore international peace and security. We stress the impor-
tance of acting in accordance with the purposes and principles
of the Charter.194
The first Purpose of the United Nations is found in Article 1(1):
To maintain international peace and security, and to that end:

to take effective collective measures for the prevention and
removal of threats to the peace, and for the suppression of acts
192
While in the abstract the just war doctrine speaks of morally defensible principles, even in its
classical formation it broke down when the authority of the Church was lost to determine the
justness of any cause. The doctrine can have little restraining effect when the determination
of justice is a subjective one. See supra ch. 1.
193
See Mary Ellen O’Connell, Responsibility to Peace, Dec. 27, 2007, http://www.sef-bonn.org/
de/veranstaltungen/index.php.
194
2005 World Summit Outcome, UN GAOR, 60th Sess., at 22–23, UN Doc. A/60/L.1 (Sept. 15,
2005).

of aggression or other breaches of the peace, and to bring

about by peaceful means, and in conformity with the principles
of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a
breach of the peace. . . .
International law mandates that the sanctions of armed force and

countermeasures be applied in compliance with law to enforce the law and
for no other purpose. It is for just such control of force that law came to be
instituted in communities, including the international one.

Part II
Enforcement
Practice
Chapter 4
Unilateral Armed
Measures
O n August 2, 1990, Iraq invaded its neighbor Kuwait, claiming that

Kuwait was legally an integral part of Iraq. 1 Iraqi troops led by tanks
stormed the tiny emirate on the Persian Gulf, killing Kuwaiti men, women,
and children, and looting and destroying property of all kinds.2 In the
nineteenth century, Iraq may well have had the right to pursue a territorial
claim through the use of force. States no longer have such a right. The
1945 United Nations Charter (UN Charter or the Charter) generally pro-
hibits unilateral armed measures even for enforcing legal rights. Today,
states may lawfully use force in only a few situations. One is self-defense.
Kuwait had the right to use force against Iraq and other states could join
Kuwait in collective self-defense. Most states in the world did join the
effort to liberate Kuwait, led by the United States (US). Kuwait was inde-
pendent once again by February 27, 1991.
1
For a history of the dispute, see Border and Territorial Disputes 245–47 (Alan J. Day ed.,
rev. 2d ed. 1987).
2
R. W. Apple, Invading Iraqis Seize Kuwait and Its Oil; U.S. Condemns Attack, Urges United
Action, N.Y. Times, Aug. 3, 1990, at A1.

Enforcement Practice
The world’s response to Iraq’s invasion shows how far international

law had evolved from the situation prevailing in 1899 when, at the First
Hague Peace Conference, a number of states pledged to try inquiry or
arbitration before going to war.3 While some scholars and governments
had never given up on natural law restraints, without a treaty like the UN
Charter, it was difficult for positivists to accept that there really was law
restricting force. Paradoxically, with the UN Charter’s clear limits on the
use of force, the right to use force for law enforcement was also generally
restricted. In most human communities, as the right to use force was grad-
ually taken away from individuals, it was increasingly concentrated in the
hands of public authorities for the purpose of law enforcement. The inter-
national community does not have comparable public authorities to those
of national and local communities. The United Nations Security Council
has primary responsibility to ensure peace and security in the world, but
it is not a general law enforcer. The lack of a centralized institution for law
enforcement has often been cited as one of the great deficits in interna-
tional law and one of the reasons why it is dismissed by some from the realm
of law.4
Yet, to the extent that international law relies less on force, it might
be considered superior to national systems. It is not immediately evident,
however, that international law relies less on force than other legal systems.
Although the international system does not have a regular police force,
states have retained the right to use force in a number of areas, resulting in
a system that does not look significantly different from national systems.
States may use force in self-defense and in police actions involving low-
level force. States acting collectively with Security Council authorization
may use force to respond to threats to the peace, in addition to breaches of
the peace and acts of aggression. International law subjects every use of
force to strict limits, especially through the principles of necessity and
proportionality. Thus, the use of force for the enforcement of international
law has much in common with the authorized use of force for enforce-
ment in national systems. The armed measures permissible in interna-
tional law that come closest to domestic police actions are those undertaken
by organizations such as the UN, the African Union, or the North Atlantic
3
See The Final Act of the Peace Conference, 1899, in 2 James Brown Scott, The Hague
Peace Conferences 1899 and 1907 61, 83–85 (1909).
4
“The greatest deficiency, as many see it, is that international society lacks an executive authority
with power to enforce the law.” Louis Henkin, How Nations Behave 24 (2d ed. 1979).

Unilateral Armed Measures
Treaty Organization (NATO). This type of collective armed action will be

discussed in Chapter Five, “Collective Armed Measures.” States using low-
level force, such as in the arrest of pirate ships on the high seas, are using
measures that fall below the type of force regulated by the UN Charter. This
type of force will be discussed in Chapter Six, “Unilateral Countermeasures,”
and Chapter Seven, “Collective Countermeasures.” This chapter will look at
the major category of lawful unilateral armed measures, the use of force in
self-defense.
The chapter begins with a brief history of how the use of force came
to be generally prohibited in the UN Charter, even for the enforcement of
legal rights. It then looks at the general prohibition on the use of force
before focusing on the Charter exception for the use of force in self-
defense. Although some doubt that self-defense should be considered an
example of law enforcement,5 in the international law world, it is arguably
appropriate to do so, if for no other reason than the link between self-
defense and the historic right to use war and reprisals to enforce interna-
tional law. More will be said on this issue throughout the chapter.
I. Bringing Force under Positive Law

As described in Part I, “Enforcement Theory,” the legal theories of positiv-
ism and absolute sovereignty came to dominate nineteenth-century think-
ing. When resorting to force, states continued to proclaim the justice of
their causes,6 but few apparently held strictly to the Just War Doctrine:
In the science of international law, the nineteenth century was

the great era of positivism. . . .[T]he conception of the law of
nature and the kindred one of just war were to all intents and
purposes abandoned—the consummation of a process which,
as indicated, had started in the eighteenth century.7
The positive law relative to the use of force grew, however. The Paris
Declaration on Maritime Law of 1856 (the Paris Declaration) had provi-
sions regulating the conduct of maritime warfare, including the outlawing
5
6
Joachim von Elbe, The Evolution of the Concept of the Just War in International Law, 33 AJIL
665, 685 (1939).
7
Arthur Nussbaum, A Concise History of the Law of Nations 232 (rev. ed. 1954).

of privateering.8 The Paris Declaration was followed in 1864 by the first

of the Geneva Conventions devoted to humanizing the conduct of land
warfare. States also continued to develop detailed rules governing neutrality9
and reprisals.10
Reprisals could be undertaken only in response to a wrong, follow-
ing a demand for compliance. The law required proportionality between
the measures of enforcement and the injury. In line with Emmerich de
Vattel, the property of nationals could be attached or retained. It was pre-
ferred to treat state property as immune, but it, too, could be attached. In
addition to such affirmative measures, states could take “negative” or pas-
sive action such as denying rights or refusing to fulfill treaty obligations.
The position that resort to reprisals could be regulated but not war
was always illogical. This illogic contrasted with the position of natural
law adherents who taught that war, along with all human action, was
under the restraint of law. Popular peace movements, sympathetic to the
just war position, were active, particularly in the United States (US) and
Britain in the nineteenth and early twentieth centuries. From the successful
resolution of the Alabama Claims between the US and Britain, until the
first decade of the twentieth century, these popular movements were pas-
sionate advocates for the use of arbitration in place of armed force. They
weakened the acceptability of unregulated war. 11
The 1898 Spanish-American War galvanized these efforts. That war
had been a bloody conflict in which Spain lost most of its remaining over-
seas colonies to the United States. The popular view was that Spanish
agents started the war when they sunk a United States naval vessel, the
Maine, in the Port of Havana,12 but peace campaigners adhered to the
theory that the ship sank due to an accident, which is now believed to
8
Id. at 192.
9
Wilhelm G. Grewe, The Epochs of International Law 533–42 (Michael Byers trans.,
rev. 2000) (The United States was a leading proponent of neutrality law in the 19th century).
10
Id. at 525 (citing A. Bulmerincq, Die Staatstreitigkeiten und ihre Entscheidung ohne Krieg, in 4
Hotzendorffs Handbuch des Völkerrchts 85, 87 (1889)).
11
See Stephen W. Schwebel, The Reality of International Adjudication and Arbitration, 12
Williamette J. Int’l L. & Disp. Resol. 359, 364 (2004); Howard N. Meyer, The World
Court in Action 1–2 (2002); V. S. Mani, Development of Effective Mechanism(s) for Settlement
Disputes Arising in Relation to Space Commercialization, 5 Sing. J. Int’l & Comp. L. 191, 193
(2001); Henry T. King & James D. Graham, Orgins of Modern International Abritration,
51 Marquette Disp. Resol. J. 42, 48 (1996).
12
David D. Caron, War and International Adjudication: Reflections on the 1899 Peace Conference,
94 AJIL 4, 7 (2000).

be correct.13 They believed mechanisms of peaceful settlement could have

clarified the true cause of the Maine disaster, avoiding the war. When the
Russian Tsar called for a disarmament conference in 1899, members of the
peace movement successfully lobbied him to add peaceful settlement to
the agenda. The Tsar was interested in pursuing ways to avoid war, not
only to gain the benefits of peace, but in the interest of Russian security.
Russia was not keeping pace with other world powers in acquiring the
new technology of war, and rather than continue to try to compete, Russia
saw a limitation on war as the better course. In other words, Russia sought
alternatives to wars it feared it could not win.14
During the First Hague Peace Conference, delegates from twenty-
six countries drafted a convention defining and setting out rules and pro-
cedures for good offices, mediation, inquiry, and arbitration. The British
delegation had formally proposed an international court for the settle-
ment of disputes, but they failed to get sufficient support for the idea. The
closest the delegates came to creating a court was the Permanent Court of
Arbitration (PCA). The PCA provides a list of available arbitrators, a set of
arbitration rules, and a small secretariat in The Hague.15 No state is bound
to have resort to it. The PCA rules say nothing about enforcement of
awards beyond the provision that disputes respecting the execution of an
award may be returned to the tribunal.16 Still, the discussions for a real
court and the first steps toward one in the form of the PCA inspired the
US delegation, as it left The Hague, to resolve to make further efforts
toward creating a real court.
The successful use of inquiry in 1906 to resolve the Dogger Bank
dispute, which had nearly resulted in a war between Russia and Britain,
added to the enthusiasm for methods of peaceful settlement.17 Delegates
to the Second Hague Peace Conference in 1907 added more rules for
13
Id.; see also Joseph H. Choate, The Two Hague Conferences 28–29 (1913).
14
Leila Nadya Sadat, The Establishment of the International Criminal Court: From The Hague to
Rome and Back Again, 8 J. Int’l L. & Prac. 97, n. 1 (1999) (citing William I. Hull, The Two
Hague Conferences and their Contributions to International Law 3 (1908)).
15
The Permanent Court of Arbitration: International Arbitration and Dispute
Settlement, Summaries of Awards, Settlement Agreements and Reports (P. Hamilton
et al. eds., 1999).
16
Convention for the Pacific Settlement of Disputes, art. 82, Oct. 18, 1907, 205 Consol. T.S.
233.
17
Richard Ned Lebow, Accidents and Crises: The Dogger Bank Affair, 31 Naval. War. Col. Rev.
66, 72–72 (1978).

inquiry, and the arbitration rules were modified and improved. Elihu Root
at the head of the US delegation tried diligently to get agreement on a
permanent international court. Again the idea failed, owing largely to
German opposition. The delegates in 1907 did agree to the first multi-
lateral treaty outlawing the use of force for a particular class of disputes,
collection of contract debts.18
Despite his enthusiasm for courts as an alternative to war, by 1914,
Root believed force would be needed against Germany. America’s most
prominent international lawyer and founder of the American Society of
International Law (ASIL) held firmly to the view that the US needed to go
to war against Germany to join in common cause with Britain to put a
stop to German imperial designs. German intentions had been clear
enough for Root at the peace conference. The German government did
not share the Anglo-American enthusiasm for third-party settlement.19
One of the Kaiser’s representatives, Baron von Stengel, “still taught [in
1909] the incompatibility of sovereignty with compulsory arbitration and
criticized the compromise under which Germany had ‘in principle’ agreed
to it in the Hague two years earlier.”20 For him, “British pacifism was British
imperialism in disguise.”21 Germany’s other representative, Philipp Zorn,
did support arbitration, pointing out the ability to reject it in any particular
case by citing the “national honor” or “vital interest” clauses.22 German
legal scholars were generally lukewarm at best about international law
methods for promoting peace “or, as [Hans] Kelsen put it, for pacifism
over imperialism. . . .”23 Some German scholars were plainly suspicious of
the barriers to war raised by British and American scholars and officials as
a means of preventing Germany from acquiring an empire, while preserving
that of the British. Britain had used war to conquer extensive colonies and
now was happy to declare peace.
18
Convention of 1907 Respecting the Limitation of the Employment of Force for the Recovery
of Contract Debts, Oct. 18, 1907, 36 Stat. 2241. Root did help establish the Central American
Court of Justice in 1910. See 2 Philip C. Jessup, Elihu Root 511–12 (1937).
19
Francis Anthony Boyle, Foundations of World Order: The Legalist Approach to
International Relations (–) 28 (1999).
20
Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of
International Law 1870–1960, at 211 (2001).
21
Id. at 212.
22
Id.
23
Id. at 213.

After Germany was defeated in the First World War, with the decisive
assistance of the United States, it was, of course, no longer an obstacle to
the further development of peaceful means of settlement. Woodrow
Wilson arrived in Paris with an ambitious plan for a world organization to
ensure peace and justice. The Covenant of the League of Nations (the
Covenant or the Covenant of the League) was adopted on April 28, 1919,24
having grown out of Wilson’s and others’ proposals prepared before and
during the early stages of the Paris Peace Conference. Neither Root nor
any of the other Americans long involved in promoting peace through law
were part of the American delegation to the conference.25 Root believed
strongly that the United States would not approve what emerged as Article
10 of the Covenant—the commitment “to respect and preserve as against
external aggression the territorial integrity and existing political inde-
pendence of all members of the League.”26 This was an open-ended agree-
ment to go to war, whether in the US national interest or not. Root felt
Wilson was promoting this and other ideas with his own legacy in mind,
as opposed to what would actually work and what the American people
could accept. They would not nor should they enter into a standing agree-
ment to use armed force. The US Senate agreed with Root, and America
did not join the League.
In addition to Article 10, the Covenant had several other provisions
relevant to the eventual outlawing of the use of force and the enforcement
of international law. For example, Article 16 also provided for the use of
military force in response to unlawful resort to war. It included economic
sanctions and expulsion as enforcement measures for violations of the
Covenant.27 The League expelled the Soviet Union following its unlawful
invasion of Finland in 1939. Presumably, Article 16 could only be invoked
for enforcing the Covenant and not general international law. This was
24
1 F.P. Walters, A History of the League of Nations 4 (1952).
25
See 2 Philip C. Jessup, Elihu Root and the Conservative Tradition 380 (1954); see also
Michael Dunne, The United States and the World Court, 1920–35, at 20–22 (1988).
26
Article 10 provided:
The Members of the League undertake to respect and preserve as against external aggres-
sion the territorial integrity and existing political independence of all Members of the
League. In case of any such aggression or in case of any threat or danger of such aggres-
sion the Council shall advise upon the means by which this obligation shall be fulfilled.
27
Nico Schrijver, The Use of Economic Sanctions by the UN Security Council: An International
Perspective, in International Economic Law and Armed Conflict 123, 126–27 (Harry
H.G. Post ed., 1994); 2 Gary C. Hufbauer et al., Economic Sanctions Reconsidered:
History and Current policy 17–28 (2d ed. 1990).

Kelsen’s view.28 Even with its limited scope of application, however, Article
16 proved too harsh a response for many types of violations. The League
did not wish to expel a member for the mere nonpayment of dues, for
example.
Article 12 of the Covenant provided for a general restriction on the
automatic right to resort to war:
The Members of the League agree that, if there should arise

between them any dispute likely to lead to a rupture they will
submit the matter either to arbitration or judicial settlement
or to inquiry by the Council, and they agree in no case to
resort to war until three months after the award by the arbitra-
tors or the judicial decision, or the report by the Council.
Article 13 prohibited resort to war against any state that complied with a
judicial or arbitral award or a report of the Council of the League.
These and other Covenant provisions against war were popular in
the United States. When the Senate refused to ratify the Versailles Treaty,
American leaders nevertheless wanted to show themselves to be on the
side of peace. The US Secretary of State, Frank Kellogg, joined with his
French counterpart, Briand, to promote a general prohibition on the use
of force—something even beyond the Covenant of the League, which only
called for delay and attempts at peaceful settlement. Parties to the Kellogg-
Briand Pact of 192829 (the Pact) renounced war as an instrument of
national policy and committed themselves to seeking the peaceful settle-
ment of disputes. The Pact did not, however, eliminate the right to use
force in self-defense, nor was it clear that the Pact was meant to prohibit
the use of force for the enforcement of legal rights.30 In addition to the
Covenant and the Pact, a number of other bilateral and regional agreements
28
Hans Kelsen, Contribution a l’étude de la révision juridico-technique du Statut de la Societé
des Nations, 44 Rev. Gen. Droit Int’l Public 625, 649–51 (1937).
29
Treaty for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat.
2343, 94 LNTS 57. See also, Ian Brownlie, International Law and the Use of Force by
States 57 (1963).
30
Brownlie, supra note 29, at 89. According to Röling: “‘Self-defense’ was regarded as embrac-
ing defence against nonviolent illegal impairment of interests.” Bert V.A. Röling, The Ban on
the Use of Force and the U.N. Charter, in The Current Legal Regulation of the Use of
Force 5 (Antonio Cassese ed., 1986).

for the renunciation of war were adopted in this period.31 A number of

constitutions also placed limits on war.32 Even in these cases, however,
many governments understood that they retained the right to use force in
self-defense or to enforce legal rights.
Among those scholars who believed the Kellogg-Briand Pact and
the Covenant prohibited resort to war to enforce legal rights, there were
mixed views on whether resort to armed reprisals was prohibited.33 Armed
reprisals continued to be used for various purposes, principally enforcing
rights. A case that arose before the adoption of the Covenant, but that was
decided years after, gave the impression that armed reprisals to enforce
legal rights continued to be a lawful form of enforcement, when strict pro-
cedures were followed, even after the positive law developments prohibiting
war. In the Naulilaa case of 1928, two German military officers and a gov-
ernment official crossed from German South West Africa (today Namibia)
into Portuguese Angola in 1914 to discuss food shipments. Due to a mis-
understanding caused by poor interpretation, a Portuguese officer grabbed
the reins of a German officer’s horse. The German officer struck the
Portuguese, and one of the German officers drew a pistol at the same time.
The Portuguese officer in charge ordered his men to shoot the Germans.
All three were killed.
Without discussing the incident with Portuguese authorities,
German troops destroyed several Angolan posts in retaliation. After
World War I, the Portuguese instituted an arbitration against Germany, in
which it was held,
[r]eprisals are an act of self-help (Selbsthilfehandlung) on

the part of the injured state, an act corresponding after an
unsatisfied demand to an act contrary to the law of nations
on the part of the offending state. They have the effect of
momentarily suspending, in the relations between the two
states, the observance of such or such a rule of the law of
nations. They are limited by the experiences of humanity and
the rules of good faith applicable in relations between state
31
See, e.g., Locarno Treaty of Mutual Guarantee, Oct. 16, 1925, 54 LNTS 289.
32
Brownlie, supra note 29, at 27.
33
Alexandrov believes that measures short of force were generally considered to be subject to
the Covenant, too, although there was some uncertainty about this. Stanimir A. Alexandrov,
Self-Defense Against the Use of Force in International Law 38–39 (1996).

and state. They would be illegal if a preliminary act contrary

to the law of nations had not furnished a reason for them.34
Despite the limits on war, if the legal requirements for taking reprisals
were met, many considered them a lawful use of armed force to enforce
rights. Nevertheless, Ian Brownlie points out that, after the adoption of the
Kellogg-Briand Pact in the same year as the Naulilaa arbitration, the use
of armed reprisals practically ended.35
Tragically for the world, the use of war did not come to an end.
Adolf Hitler, convinced of Germany’s superiority, of its natural right to be
the dominant power in Europe, gained control of neighbors, then invaded
Poland in 1939. Japan’s leaders had a similar conviction of superiority and
a similar determination to rule over or eliminate peoples they considered
inferior. Both aggressor states used sophisticated legal arguments based
on self-defense to justify their violations of the law against war. The Second
World War finally shocked humanity into taking the next step toward out-
lawing the use of force. In addition to a general, normative prohibition on
the use of force as found in the Kellogg-Briand Pact, the victorious states
also agreed to a powerful body to enforce the prohibition: the United
Nations Security Council.
II. Prohibiting Force in the UN Charter

American President Franklin Delano Roosevelt’s Cabinet began exploring
a new design for a world organization to replace the League of Nations as
early as 1939.36 What emerged in 1945 at the San Francisco Conference
was, in many ways, based on the Covenant and Kellogg-Briand Pact but
with important differences. The use of armed force was finally prohibited
for all states in UN Charter Article 2(4):
All Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or
34
6 Green Haywood Hackworth, Digest of International Law 155 (1943); 2 UN RIAA
1001 (1949).
35
36
Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations:
Quest for a Peaceful World 35 (2003).

political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations.37
Article 2(4) goes farther than either the Covenant or the Pact in that it
more obviously excludes the right to use armed force even to enforce most
legal rights.38 Under the Charter, states may only lawfully use force to react in
self-defense to an unlawful armed attack. Even then, force in self-defense is
permitted only until the Security Council acts.39 The Security Council received
broader authority than states to act in response to threats to the peace, breaches
of the peace, and acts of aggression, and the drafters gave World War II’s
victorious Allies the right to veto any resolution mandating action.40
Article 2(4) on its face may appear to be very broad indeed in that
it refers only to “force,”41 and not to “armed force.” It could reasonably be
interpreted to prohibit economic coercion,42 political coercion,43 physical
force not involving arms,44 or computer attacks.45 It is clear from the drafting
37
UN Charter art. 2(4).
38
Brownlie, supra note 29, at 112, 114.
39
See UN Charter art. 51:
Nothing in the present Charter shall impair the inherent right of individual or collec-
tive self-defence if an armed attack occurs against a Member of the UN, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self-defence shall
be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take
at any time such action as it deems necessary in order to maintain or restore interna-
tional peace and security.
40
Following the adoption of the UN Charter, the term war dropped out of fashion. War minis-
tries became defense ministries. Most governments and scholars concluded that armed
reprisals were no longer lawful even for law enforcement.
41
See Albrecht Randelzhofer, Article 2(4), in The Charter of the United Nations:
A Commentary 112, 117 (Bruno Simma et al. eds., 2d ed. 2000.).
42
Examples of economic coercion include economic embargoes, the termination of aid, or ter-
mination of sale contracts.
43
Political coercion can take innumerable forms. The most common examples may be termi-
nating diplomatic relations or official statements of denunciation.
44
Physical coercion not involving armed force may include interdicting a river to a downstream
state, deliberately setting a fire to cross a border, or cutting fishing nets.
45
See, e.g., Michael N. Schmitt, Computer Network Attack and the Use of Force in International
Law: Thoughts on a Normative Framework, 37 Colum. J. Transnat’l L. 885 (1999); see also
George K. Walker, Information Warfare and Neutrality, 33 Vand. J. Transnat’l L. 1079, 1177
n. 458 (2000) (quoting Walter Gary Sharp, Sr., Cyberspace and the Use of Force 133
(1999): “Any computer network attack that intentionally causes any destructive effect within
the sovereign territory of another state is an unlawful use of force within the meaning of
[U.N. Charter,] Article 2(4) that may produce the effects of an armed attack prompting the
right of self-defense.” Id.).

history of the Charter, however, as well as the subsequent interpretation

and practice by governments and organizations, that the “force” being
regulated in Article 2(4) is armed force.46 Other forms of force are outside
the scope of Article 2(4).47 These are typically regulated under the principle
of nonintervention and not the Charter rules governing the use of force.
Coercive measures less than armed force will be considered in the chapters
on countermeasures.
It is also by now well established that Article 2(4) prohibits the use
of armed force generally, not just uses aimed at the territorial integrity and
political independence of states. In the decades since the adoption of
the Charter, international lawyers have discussed at length whether the
terms territorial integrity and political independence and Purposes of the
Organization have any restricting effect on the prohibition of 2(4). By now
the weight of opinion, backed by the travaux préparatoires of the Charter
and the subsequent legal positions of governments and the International
Court of Justice (ICJ), is that 2(4) is a general prohibition on force.48 Article
2(4) plainly bans any use of force by states except those in self-defense and
those of a very limited or de minimis nature.
A member of the US delegation at San Francisco stated that “the
intention of the authors of the original text was to state in the broadest
terms an absolute all-inclusive prohibition; the phrase ‘or in any other
manner’ was designed to insure that there should be no loopholes.”49 The
final structure of the Charter that emerged in San Francisco underscores
the broad scope of Article 2(4). The Security Council was given explicit,
broad authority to use force in Articles 39 and 42 against threats to the
peace, breaches of the peace, and acts of aggression. By contrast, states
acting without Security Council authority receive only a narrow, explicit
right to do so in Article 51. Article 51 permits force in individual and
collective self-defense “if an armed attack occurs,” and only until such
time as the Security Council takes action. Thus, if Article 2(4) only pro-
hibited force aimed at territorial integrity and political independence,
Article 51 would be redundant, since defending against an unlawful attack
46
Randelzhofer, supra note 41, at 117–21.
47
See infra.
48
49
6 United Nations Conference on International Organization 335 (1945). Brownlie
concludes that at the San Francisco conference to draft the Charter, “[t]here was a presump-
tion against self-help and even action in self-defence within Article 51 was made subject to
control by the Security Council.” Brownlie, supra note 29, at 275 and references therein.

would not interfere with the attacking state’s territorial integrity or political
independence.
Latin American delegates to the San Francisco Conference particu-
larly wanted Article 51 included—something of a last-minute effort. They
were concerned that the Rio Treaty arrangements already in existence
for collective self-defense would be eliminated by Article 2(4). To clarify
that Article 2(4) did not prohibit either the right of individual or collective
self-defense, the delegates added Article 51. It is a limited exception to
Article 2(4) allowing self-defense in a situation in which it can be shown
by the tangible evidence of an armed attack that a state may respond. The
response must be limited to defense and may last only until the Security
Council acts or the defense is achieved.
To ensure respect for the prohibition, the Security Council was
instituted with broader authority to use force than is allowed to states. The
Security Council may respond to “threats to the peace, breaches of the
peace and acts of aggression.”50 The Charter drafters also provided for
the Security Council to have military forces available to be able to respond
to threats and breaches. Member states were to contribute these forces
under agreements with the Security Council.51
This scheme had real advantages over the Kellogg-Briand Pact and
the Covenant: Weaker states would in theory receive help from the Security
Council and the Council could act as an objective decision-maker. The
Pact had no enforcement system at all—it was a basic prohibition and
nothing more. If one state invaded another, the victim state could defend
itself and could call on its friends for help, but that was all. The Council of
the League of Nations had been intended to help victims, but it had to act
through unanimity and was unable to respond to the major challenges.
The Security Council, by contrast, was organized as a standing body with
clear responsibility to act on behalf of all victim states. Under Article 27(3)
of the Charter decisions for enforcement action require nine affirmative
votes and no negative votes of the five permanent members—in other
words, less than unanimity. And, as mentioned, the Council was to have
troops available with which to act. It could also call on regional agencies
to act on its behalf. Those regional organizations were otherwise restricted
by the Charter in using force to the same degree as states generally. Thus, the
50
UN Charter art. 39.
51
Id. art. 45.

Council was to be a uniquely powerful organization in the area of peace

and security.
The Security Council’s power was, however, restricted to the area of
peace and security. The UN Charter did not make the Council the general
enforcer of the law, just the enforcer of the peace. The delegates debated at
San Francisco whether to give the Council general enforcement authority,
but decided against it. The leaders gathered at San Francisco were focused
on ensuring peace, not instituting a true world police force. “The United
Nations Charter accords priority to the peaceful resolution of disputes
rather than to the enforcement of law. This was intended by the major
powers when the Charter was drafted. . . .”52 The UN Charter does give
the Security Council explicit authority to enforce judgments of the
International Court of Justice, but the Council has discretion to do so. The
League of Nations Council was mandated to enforce judgments of
the ICJ’s predecessor, the Permanent Court of International Justice (PCIJ),
as well as arbitral awards. The Security Council can decide against enforce-
ment of ICJ judgments in the interest of peace. Nor does the Security
Council have any role in enforcing arbitral awards.53
So, while the horrors of the Second World War induced some legal
development beyond the Covenant of the League in the area of peace and
security, the law and means of enforcing international law may not have
been advanced. In fact, something of an anomaly developed in the area of
international law enforcement. States generally lost the right to use armed
force to enforce legal rights except in responding to an unlawful armed
attack. In the case of unlawful attack or threat, states could also turn to the
Security Council for assistance, but not in the case of other law violations.
As Kelsen characterized it, war could still be used to enforce the law—but
only the law of the UN Charter.54 For other law violations, the Charter
mandates that peaceful means be found.
At various times, since the adoption of the UN Charter, some scholars
have taken stock of the state of international relations and have concluded
that there are, in reality, no rules restricting the use of armed force. One of
the best known of these challenges came in 1970, twenty-five years after
52
Oscar Schachter, International Law in Theory and Practice 184 (1995).
53
See Covenant of the League, art. 13(4). Mary Ellen O’Connell, The Prospects for Enforcing
Monetary Judgments of the International Court of Justice; A Study of Nicaragua’s Judgment
Against the United States, 30 Va. J. Int’l L. 891, 905–13 (1990).
54
Hans Kelsen, Principles of International Law 40–41 (R.W. Tucker ed., 2d rev. ed. 1966).

the adoption of the UN Charter when Thomas Franck wrote that the
Charter’s core provision—Article 2(4)’s prohibition on the use of armed
force—was dead.55 He pointed to indisputable facts: The Security Council
was not functioning as intended to enforce the prohibition on force; in the
resulting vacuum, states were abusing that article’s exceptions; states were
claiming to act in self-defense or collective self-defense when they were
not; and states were invoking the right of regional organizations to act
when they had no foundation for doing so. Franck concluded that the idea
of a broad, tough ban on the use of force could not work as long as the
institution expected to enforce the ban was dysfunctional and as long as
states were so flawed as to be unable to restrain themselves from the
unlawful use of force.56
Despite proclaiming the rules dead, Franck could not go so far as to
argue the world had reverted to a condition in which there was no prohi-
bition on the use of force. Rather, he described the world emerging from
the “ashes of Article 2(4)” as a “world of peacefully co-existing, super-
Power-dominated regional spheres. . . . a world in which the threat or use
of violence by super-Powers within their own spheres will largely displace
the threat or use of violence among super-Powers.”57
In replying to Franck, Louis Henkin did not dispute that armed
force in violation of the UN Charter had occurred in Cuba, Czechoslovakia,
the Dominican Republic, Hungary, and possibly Vietnam. He looked
intensely at these actual uses of force and saw actual violations but also no
interest in abandoning the norm prohibiting force. In the words of Henkin,
“The occasions and the causes of war remain. What has become obsolete
is the notion that nations are as free to indulge it as ever and the death of
that notion is accepted in the Charter.”58 Henkin’s prescription for the
future was to acknowledge state interest in the norm and to build from
there. He rejected Franck’s advocacy of a different normative order.
55
Thomas Franck, Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by
States, 64 AJIL 809, 809 (1970).
56
Id. at 810–11; see also for similar views, Jean Combacau, The Exception of Self-Defence in U.N.
Practice, in The Current Legal Regulation of the Use of Force, supra note 56, at 9, 32
(footnotes omitted).
57
Franck, supra note 55, at 835–36. After September 11, Franck wrote cogently on the applica-
tion of UN Charter rules in light of the attacks of that day. See Thomas Franck, Terrorism and
the Right of Self-Defense, 95 AJIL 839 (2001); see also Thomas Franck, Recourse to Force:
State Action Against Threats and Armed Attacks (2002).
58
Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544,
545 (1971).

Henkin’s view was vindicated by the International Court of Justice

in 1986 when the Court held that the United States had violated funda-
mental law in using force against Nicaragua in the absence of an armed
attack by Nicaragua. The court held that despite other unlawful uses of
force following the adoption of the Charter, the prohibition on force was,
indeed, still good law. Article 2(4) had moved beyond treaty law to cus-
tomary law, and, the court implied, to a jus cogens norm. The court
explained that a rule remained viable despite violations depending on
whether the community still manifested acceptance of the rule.
If a State acts in a way prima facie incompatible with a recog-

nized rule, but defends its conduct by appealing to exceptions
or justifications contained within the rule itself, then whether
or not the State’s conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken
the rule.59
Nevertheless, in 2002, the rules were declared dead again, this time
by Michael Glennon:
[S]ince 1945, dozens of member states have engaged in well

over 100 inter-state conflicts that have killed millions of
people. This record of violation is legally significant. The inter-
national legal system is voluntary and states are bound only by
rules to which they consent. A treaty can lose its binding effect
if a sufficient number of parties engage in conduct that is at
odds with the constraints of the treaty. The consent of United
Nations member states to the general prohibition against the
use of force, as expressed in the Charter, has in this way been
supplanted by a changed intent as expressed in deeds. . . . It
seems the Charter has, tragically, gone the way of the 1928
Kellogg-Briand Pact which purported to outlaw war and was
signed by every major belligerent in World War II.60
59
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14,
para. 186 (June 27) [hereinafter Nicaragua].
60
Michael J. Glennon, How War Left the Law Behind, N.Y. Times, Nov. 21, 2002, at A37; see also
Michael J. Glennon, Preempting Terrorism: The Case for Anticipatory Self-Defense, Wkly.
Standard, Jan. 28, 2002, at 24.

Glennon’s position fails to consider the argument of Henkin, the

ICJ, and now Christine Gray, who argues that “some of these writers [such
as Glennon] also discount what the states using force actually say in justi-
fication of their use of force.”61 In particular, “they ignore the fact that
states generally do not claim revolutionary new rights to use force, but
try to defend their use of force by claiming self-defence or other legal
justifications.”62
Official positions of states and organizations are what make positive
law. Official support for a rule against armed force, even when the rule is
being violated, does indeed reinforce the rule. States employing armed
force in violation of Article 2(4) have not claimed that Article 2(4) does
not exist or is not binding, but rather have attempted to validate their
behavior by claiming that they are actually acting in compliance with
Article 2(4) and the exceptions for self-defense or invitation.
In the decades since the adoption of the UN Charter, as the critics
have rightly pointed out, states have engaged regularly in the unlawful use
of force. These uses of force and the reactions to them encompass practice
that can impact the content of legal rules. Practice that reflects the legal
position of states and organizations can modify a treaty rule, eliminate it,
or solidify it.63 In fact, some provisions of the UN Charter have been effec-
tively modified through practice.64 Yet, the international community has
typically taken a restrictive, rather than a permissive, position with regard
to rules on the use of force.65 Decisions of the ICJ and other courts and
tribunals have continued to underscore the vitality of the UN Charter.66
This was seen dramatically in 2005 when states at the United Nations
World Summit gave overwhelming support to the Charter of 1945.67
61
Christine Gray, International Law and the Use of Force 18 (2000). (This comment
was apparently not repeated in the book’s second edition in 2004.)
62
Id.
63
See Vienna Convention on the Law of Treaties, art. 31(3)(b), May 23, 1969, 1155 UNTS 331, 340.
64
See Ian Brownlie, The Decisions of Political Organs of the United Nations and the Rule of Law,
in Essays in Honour of Wang Tieya 91, 100–2 (Ronald St. J. Macdonald ed., 1994);
W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 96 (1993).
65
See generally Christine Gray, International Law and the Use of Force (2d ed. 2004)
for support for this observation.
66
See, e.g., Case Concerning Armed Activities on the Territory of the Congo, (Congo v. Uganda)
2005 I.C.J. (Dec. 19) [hereinafter Congo]; Oil Platforms (Iran v. U.S.), 2003 I.C.J. 161 (Nov. 6).
67
2005 World Summit Outcome, UN GAOR, 60th Sess., at 22–23, UN Doc. A/60/L.1 (Sept. 15,
2005) [hereinafter World Summit Outcome].

III. Defending Rights with Force
The most important exception to the UN Charter’s prohibition on force

for states acting unilaterally is self-defense. Charter Article 51 “licenses at
least one kind of resort to armed force by an individual member State:
namely, the use of armed force to repel an armed attack.”68 Article 51 pro-
vides that:
Nothing in the present Charter shall impair the inherent right

of individual or collective self-defense if an armed attack
occurs against a member of the United Nations, until the
Security Council has taken the measures necessary to main-
tain international peace and security.69
The UN Charter permits the use of armed force, according to Stanimir

Alexandrov, “to protect the security of a State and its essential rights, in
particular the rights of territorial integrity and political independence.
Self-defense does not include a right to exact reparation for injury.”70
Alexandrov uses terms that fit the law enforcement paradigm—a state
may use force to protect essential rights. Josef Kunz, however, objected to
characterizing the use of force in self-defense as an aspect of law enforce-
ment. He did not classify the use of force in responding to an attack as a
sanction but rather self-protection. It is true that, in domestic law, we do
not typically categorize self-defense as a legal sanction. Yet, Kelsen cer-
tainly included self-defense as a prime example of a justifiable use of force
under the Just War Doctrine.71 Kunz’s objection seems to be that self-
defense is a form of self-help and self-help is not a true legal sanction. From
his perspective, international law today has few legal sanctions, since
international law sanctions continue to be characterized largely by self-
help, but, if the law prescribes them, they are, arguably, legal sanctions.
David Luban of Georgetown University has also said that force in
self-defense is not always force for law enforcement.72 He points to
Iraq’s unlawful 1990 invasion of Kuwait saying Iraq could defend itself
68
Röling, supra note 30, at 3.
69
UN Charter art. 51.
70
Alexandrov, supra note 33, at 17.
71
Hans Kelsen, General Theory of Law and State 333 (Anders Wedberg trans., 1945).
72
See David Luban, Preventive War, 32 Phil. & Pub. Aff. 207, 211–12 n.3 (2004).

when counter-attacked. In fact, while Iraq’s soldiers could lawfully defend

themselves, the state of Iraq had the legal obligation to withdraw from
Kuwait without further fighting.73
Luban accepts that the use of force by third parties in collective self-
defense is law enforcement. Third parties assisting a victim state are evi-
dently not resorting to self-help. Yet, the only legal justification for resort
to force in collective self-defense is that a state has been unlawfully
attacked—the same basis on which the victim itself has the right to act.
The collective action is no more authorized in international law than the
individual action—indeed it is less authorized in that third parties must
have a request for assistance from the victim. The victim may choose to
defend alone or not defend at all. Collective action has the virtue of greater
objectivity, as Hugo Grotius pointed out, but collective action in self-
defense is not the substitute in international law for authorized police
action. The closest international law has to police action is through the
Security Council. States joining in collective self-defense without Security
Council authorization are acting lawfully but on the same legal basis as the
victim. If the action by the group is law enforcement so is the action by the
victim. Admittedly, there is room for disagreement on these points, but
the position taken in this chapter is that the use of force in individual as
well as collective self-defense may be categorized as law enforcement in
international law against unlawful armed attack.
The rules on self-defense today include the reaffirmed UN Charter
provisions and several important general principles of international law.
In brief, a state may use significant force on the territory of another state
when four conditions are met:
1. A significant actual armed attack has occurred or is occurring;

2. The response in self-defense is aimed at the armed attacker or
those legally responsible for the attack;
3. The response is necessary to defense;
4. The reponse is proportional in the circumstances.74
73
Luban may conflate the jus ad bellum (resort to war) and the jus in bello (conduct in war) in
this observation.
74
Mary Ellen O’Connell, Lawful Self-Defense to Terrorism, 63 U. Pitt. L. Rev. 889, 889–904
(2002). Measures taken in self-defense must be reported to the Security Council. Failure to do so
brought into question the US claim that it was engaged in collective self-defense with El Salvador
in the Nicaragua case. El Salvador had never reported to the Security Council that it was engaged
in self-defense or had come under armed attack. Nicaragua, 1986 I.C.J. at 120–21, para. 233.

Self-defense is a term of art in international law. The reference to

self-defense in Article 51 is to the right of the victim state to use significant
offensive military force on the territory of a state legally responsible for the
attack for the purpose of defense.75 The defending state may do more than
stop an ongoing attack. It may assure its future security by degrading the
attacker’s offensive military capability or temporarily holding territory.
Necessity and proportionality still limit what the defender may do but the
limits are apparently not as strict as in the case of a de minimis use of force
to effect an arrest. Necessity and proportionality in the case of self-defense
are discussed further below. The point here is that the triggering events to
self-defense occur at a high level because the response in self-defense may
permissibly involve significant armed force. 76
Armed Attack
The clearest restriction on the lawful use of force in self-defense is Article
51’s requirement that an armed attack occur before resort to force. This
requirement is stated in plain terms in Article 51. It creates a requirement
open to objective testing, so it has been particularly difficult for states to
argue that they need not comply with it. The French version of the UN
Charter indicates an even higher threshold—not just armed attack but
aggression armée (armed aggression—more than a single attack) triggers
the right. Nevertheless, arguments have been made to ignore the plain
terms, to interpret them broadly, or to privilege the term inherent in the
phrase “inherent right of self-defense” over the phrase “if an armed attack
occurs.” As the review of relevant practice below will reveal, such argu-
ments have generally proved less persuasive than the importance of a
clear, objective rule that can work in a legal system still based largely on
self-policing.
On one point, those who favor restricting force as much as possible
have probably not prevailed. Most scholars reject extending the require-
ment of armed attack to a need for a state to actually absorb the first blow.
Article 51 in the English version requires that an armed attack “occurs,” not
The ICJ notes the same fact respecting Uganda’s claim to have used force in self-defense
against Congo. Congo, 2005 I.C.J. para. 145.
75
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, 2004 I.C.J. 136, 215 (July 9) (Separate Opinion of Judge Higgins) [herein-
after Advisory Opinion on the Wall].
76

that it has already “occurred.” Sir Humphrey Waldock wrote in 1952 that
“[w]here there is convincing evidence not merely of threats and potential
danger but of an attack being actually mounted, then an armed attack may
be said to have begun to occur, though it has not passed the frontier.”77
Note, however, that Waldock’s formula fits the English Article 51 because
“if armed attack occurs” can mean “if an armed attack is occurring.”
Proponents of a broader right of anticipatory self-defense generally
base their arguments on the word inherent in Article 51.78 The argument is
that Article 51, by pledging not to “impair the inherent right of self-
defense,” left intact and unchanged the law of customary self-defense pre-
dating the adoption of the UN Charter. Henkin relates that this theory
emerged during the Suez Crisis to justify using force against Egypt after
Gamal Abdal Nasser nationalized the Suez Canal.79 The use of force in that
situation was widely condemned, including by the Eisenhower adminis-
tration.80 Still, versions of the argument persist that the customary law
predating the UN Charter allowed the use of force in self-defense, even
absent an armed attack. A more conservative version holds that custom-
ary international law permitted anticipatory self-defense when an attack
was imminent.81
The inherent right theory has numerous weaknesses, starting with
its reliance on customary international law before the adoption of the UN
Charter. Scholars who advocate the inherent right theory often cite the
1842 correspondence between the United States and Britain over the scut-
tling of the ship Caroline in 1837 by British forces over Niagara Falls.82
They cite the incident for the proposition that a state facing an imminent
threat may use force, even before any armed attack is underway. US
Secretary Webster wrote to Lord Ashburton:
77
C. H. M. Waldock, The Regulation of the Use of Force by Individual States in International Law,
81 Recueil des Cours 451, 498 (1952 II)(1968)(emphasis added).
78
Lee A. Casey & David B. Rivkin, Jr., “Anticipatory” Self-Defense Against Terrorism is Legal
(Dec. 14, 2001) (on file with the author); Anthony Clark Arend & Robert J. Beck,
International Law and the Use of Force: Beyond the Charter Paradigm 186 (1993).
79
Louis Henkin, Use of Force: Law and U.S. Policy, in Right v. Might: International Law
and the Use of Force 37, 45 (Louis Henkin et al. eds., 1989).
80
Id. at 53.
81
Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634–35
(1984)[hereinafter Schachter, The Right of States to Use Armed Force].
82
John E. Noyes, The Caroline, in International Law Stories 263 (John E. Noyes et al. eds.,
2007).

The President sees with pleasure that your Lordship fully admits
those great principles of public law, applicable to cases of this
kind, which this Government has expressed; and that on your
part, as on ours, respect for the inviolable character of the ter-
ritory of independent states is the most essential foundation of
civilization. And while it is admitted on both sides that there
are exceptions to this rule, he is gratified to find that your
Lordship admits that such exceptions must come within the
limitations stated and the terms used in a former communica-
tion from this Department to the British plenipotentiary here.
Undoubtedly it is just, that while it is admitted that exceptions
growing out of the great law of self-defence do exist, those
exceptions should be confined to cases in which the “necessity
of that self-defence is instant, overwhelming, and leaving no
choice of means, and no moment for deliberation.”83
At the time of the correspondence there was no UN Charter, of

course, and so it is difficult to understand how the incident can be used to
eliminate Article 51’s armed attack requirement.84 The UN Charter was
adopted for the very purpose of creating a far wider prohibition on force
than existed under treaty or custom in 1945, let alone 1842. Even if earlier
custom allowed preemptive self-defense, to argue that it persisted after
1945 for UN members, requires privileging the word inherent over the
plain terms of Article 2(4) and the words armed attack in Article 51.
Indeed, it requires privileging one word over the whole structure and pur-
pose of the UN Charter. The drafters specifically designed the Security
Council to meet threats to the peace, preserving the right of a state to act
unilaterally only in cases of armed attack. In cases lacking the objective
evidence of an armed attack, the UN Charter requires multilateral deci-
sion-making by the Security Council. Permitting preemptive self-defense
at the sole discretion of a state is fundamentally at odds with the Charter’s
design. It is an exception that would overthrow the prohibition on the use
of force in Article 2(4) and thus the very purpose of the UN.
83
Letter from Webster to Lord Ashburton (Aug. 6, 1842), available at The Caroline Case, http://
www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm.
84
Schachter, The Right of States to Use Armed Force, supra note 81, at 1635.

Some writers promoting the inherent right theory argue that the
parameters of the right of self-defense are unchangeable by UN Charter
text and subsequent state practice. International law has unchangeable
norms—the jus cogens principles. But no court has ever identified a uni-
lateral right of anticipatory self-defense as a jus cogens principle. The UN
Charter’s drafters intended that states would rely on the Security Council
to deal with concerns about international security. Indeed, the ICJ has indi-
cated that the UN Charter prohibition on the use of force, Article 2(4) is
jus cogens, not self-defense.85 In the words of Henkin, the inherent right
theory is “unfounded, its reasoning is fallacious, its doctrine pernicious.”86
The benefit of waiting until an attack actually occurs is that there is
little risk of mistake. Dinstein has written that Israel may have made a
good faith mistake in 1967 when it attacked Egypt.87 Israel stated on both
June 5 and June 6 that it acted in self-defense against actual air and armored
attacks on the territory of Israel.88 Soon after, it represented that it had had
convincing intelligence that Egypt was about to attack—that preparations
were under way. This was apparently not the case.89 Responsibility for such
a mistake is a debated point in international law. Some writers suggest that
if the state taking enforcement measures made a good faith mistake
regarding the gravity of the violation, the disproportionate response based
on that mistake should be excused. Others believe international law is a
strict liability system. States are responsible if the results of their actions
violate the law. Strict liability has the advantage of acting as a restraint on
coercive action. Yet, in the many examples in which force was used based
on a mistaken belief, international reaction has tended to accept apology
and compensation as sufficient redress. Charges of aggression or violation
85
Nicaragua, 1986 I.C.J. at 100–1, para. 90.
86
Louis Henkin, How Nations Behave 141 (2d ed. 1979); see also Gray, International
Law and the Use of Force (2d ed.), supra note 65, at 98–99; Alexandrov, supra note 33,
at 165; Oscar Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev.
113, 133 (1986); Combacau, supra note 56, at 27–8; Brownlie, supra note 29, at 275–78.
87
Yoram Dinstein, War, Aggression and Self-Defence 192 (4th ed. 2005).
88
1967 UN Y.B. 175–77. In reporting on its initial use of force Israel stated to the Security
Council that that Egyptian forces had actually crossed into Israeli-held territory. By June 17,
when the General Assembly began its debate on the conflict, Israel’s foreign minister no
longer spoke of actual Egyptian attacks but only of Egyptian forces approaching Israel’s bor-
ders. 1967 UN Y.B. 196.
89
Le général Rabin ne pense pas que Nasser voulait la guerre, Le Monde, Feb. 19, 1968, at 1; see
John Quigley, The United Nations Action Against Iraq: A Precedent for Israel’s Arab Territories?,
2 Duke J. Comp. & Int’l L. 195, 203–13 (1992).

of Article 2(4) are only rarely made in these cases. Still, the 1967 Arab-
Israeli War is not a unproblematic example of anticipatory self-defense.
The ICJ, in a case brought by Nicaragua against the United States in
1986,90 concluded that UN Charter Articles 2(4) and 51 had become part
of customary international law given that they were so widely accepted as
binding law by the time of the case.91 The ICJ further found that Articles
2(4) and 51 prohibit the use of force except in self-defense against acts
amounting to a significant armed attack. The United States had main-
tained at the preliminary stages of the case that Nicaragua had attacked El
Salvador by supplying weapons to rebels fighting El Salvador’s govern-
ment. The US joined in collective self-defense with El Salvador in defend-
ing against these shipments, which the US characterized as constituting
armed attack. The ICJ found, however, that the low-level shipments of
weapons from Nicaragua to the El Salvador did not amount to an armed
attack which could trigger the right of self-defense:
[A]n armed attack must be understood as including not

merely action by regular armed forces across an international
border, but also “the sending by or on behalf of a State of
armed bands, groups, irregular or mercenaries, which carry
out acts of armed force against another State of such gravity as
to amount to” (inter alia) an actual armed attack conducted by
regular forces. . . . The Court sees no reason to deny that, in
customary law, the prohibition of armed attacks may apply to
the sending by a State of armed bands to the territory of
another State, if such an operation, because of its scale and
effects, would have been classified as an armed attack rather
than as a mere frontier incident had it been carried out by
regular armed forces. But the Court does not believe that the
concept of “armed attack” includes not only acts by armed
bands where such acts occur on a significant scale but also
assistance to rebels in the form of the provision of weapons or
logistical or other support. Such assistance may be regarded as
90
Nicaragua, 1986 I.C.J. at 14.
91
The ICJ actually interpreted the meaning of Article 51 under customary international law, not
as a UN Charter provision, but apparently there is no difference between the two. For analyses
of this and other issues in the case, see, Mary Ellen O’Connell, The Nicaragua Case: Preserving
World Peace and the World Court, in International Law Stories 339, supra note 82.

a threat or use of force, or amount to intervention in the inter-

nal or external affairs other States.92
Later in the decision, the ICJ stated affirmatively that it was unable to con-
sider “provision of arms to the opposition in another State constitutes an
armed attack on that State.”93
The ICJ’s reference to the sending of armed bands is from the
General Assembly’s Definition of Aggression.94 The definition lists other
acts that trigger the right of self-defense, when, as the ICJ emphasized, the
act is on a significant scale. Such acts include invasion of territory, bom-
bardment of territory, blockade of ports, attack on air, sea or land forces,
and the “sending . . . of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity
as to amount to the acts listed above, or its substantial involvement
therein.”95 Self-defense may include similar acts.
The ICJ in the Nicaragua Case confirmed that, under international
law, states may only use force to respond to a provocation amounting to an
armed attack. Core principles on the use of force enunciated in the
Nicaragua Case were reconfirmed by the ICJ in the Oil Platforms Case,
and the Congo Case. The Ethiopia-Eritrea Claims Commission also under-
scored the importance of restricting self-defense to cases of significant
armed attack.96 As the ICJ said in Oil Platforms:
[I]n order to establish that it was legally justified in attacking

the Iranian platforms in exercise of the right of individual self-
defence, the United States has to show that attacks had been
made upon it for which Iran was responsible; and that those
attacks were of such a nature as to be qualified as “armed
attacks” within the meaning of that expression in Article 51 of
the United Nations Charter, and as understood in customary
law on the use of force. As the Court observed in the case
concerning Military and Paramilitary Activities in and against
92
Nicaragua, 1986 I.C.J. 103–04, at para. 195.
93
Id. at 119, at para. 230.
94
See G.A. Res. 3314, UN GAOR, 29th Sess., Supp. No. 31, at 142, UN Doc. A/9631 (1974).
95
Id. See also Schachter, supra note 52, at 117–23.
96
Eritrea-Ethiopia Claims, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1–8, Dec. 19, 2005,
www.pca-cpa.org.

Nicaragua, it is necessary to distinguish “the most grave forms

of the use of force (those constituting an armed attack) from
other less grave forms.” (I.C.J. Reports 1986, p. 101, para. 191),
since “In the case of individual self-defence, the exercise of
this right is subject to the State concerned having been the
victim of an armed attack” (ibid., p. 103, para. 195).97
In June 2002, US President George W. Bush in a speech at the West

Point Military Academy, indicated “that not only will the United States
impose pre-emptive, unilateral military force when and where it chooses,
but the nation will also punish those who engage in terror and aggression
and will work to impose a universal moral clarity between good and evil.”98
Similar statements appeared subsequently in several official documents—
the Secretary of Defense’s first Annual Report to the President and the
Congress,99 issued in August 2002, and the White House’s National Security
Strategy of the United States of America, released in September 2002.100 The
2006 National Security Strategy also stated a claim for the right to use force
to pre-empt future attacks.101 Arguments supporting the use of preemptive
force as outlined in these documents basically indicate that it is dangerous
to wait for evidence that an armed attack is occurring. The use of nuclear,
chemical, and biological weapons can be devastating and such weapons,
in the hands of an enemy, are evidence enough that a state has the right to
use force in self-defense.102 Yet the drafters of the UN Charter were famil-
iar with arguments that force had to be used before danger could grow.
Hitler had used the argument to justify the invasions of Norway and the
Low Countries. The UN Charter’s scheme intends that states in fear of a
97
Oil Platforms, 2003 I.C.J., at 186–7, para. 51.
98
Mike Allen & Karen DeYoung, Bush: U.S. Will Strike First at Enemies; In West Point Speech,
President Lays Out Broader U.S. Policy, Wash. Post, June 2, 2002, at A01. The speech did not
go on to differentiate between “preemptive, unilateral military force” and “aggression.” Id.
99
Available at http://www.defenselink.mil/execsec/adr2002/index.htm. Secretary of Defense
Donald Rumsfeld stated in the report that, with regard to the lessons learned in the war on
terrorism, “[D]efending the United States requires prevention and sometimes preemption. It
is not possible to defend against every threat, in every place, at every conceivable time. The
only good defense . . . is to take the war to the enemy. The best defense is a good offense.” Id.
at 30.
100
Available at http://www.whitehouse.gov/nsc/nss.pdf.
101
Available at http://www.whitehouse.gov/nsc/nss/2006/nss2006.pdf. In the political science
community the terms “preventive” force or war are often used to describe the right claimed in
the two national security strategies.
102
See, e.g., John Yoo, Using Force, 71 U. Chi. L. Rev. 729, 751–53 (2004).

future armed attack should bring their concerns to the Security Council,
which may then take action should it find a threat to international peace.
What Henkin wrote in 1987, remains compelling twenty years later:
It is not in the interest of the United States to reconstrue the

law of the Charter so as to dilute and confuse its normative
prohibitions. In our decentralized international political
system with primitive institutions and underdeveloped law
enforcement machinery, it is important that Charter norms—
which go to the heart of international order and implicate war
and peace in the nuclear age—be clear, sharp, and comprehen-
sive; as independent as possible of judgments of degree and of
issues of fact; as invulnerable as can be to self-serving interpre-
tations and to temptations to conceal, distort, or mischaracter-
ize events. Extending the meaning of “armed attack” and of
“self-defense,” multiplying exceptions to the prohibition on the
use of force and the occasions that would permit military inter-
vention, would undermine the law of the Charter and the
international order established in the wake of world war.103
When Henkin wrote these words, he was responding to arguments gener-

ated by Reagan administration officials that the United States would be
safer if it used military force to replace communist regimes with demo-
cratic ones. Within a year of that argument, people living under commu-
nism were replacing their own regimes and with arguably far better results
than if attempts had been made to do so militarily.
Despite these results, similar arguments developed over the course
of the 1990s that authoritarian regimes should be opposed militarily to
support human rights, including the right to democracy. These arguments
drew upon the earlier anticommunist and prohumanitarian intervention
arguments originating in the 1970s. Richard Lillich was an early propo-
nent of military force to enforce human rights as a matter of moral imper-
ative.104 He argued that the UN Charter promotes both peace and human
rights, and that we should not give priority to the peace rules over the
103
Henkin, Use of Force: Law and U.S. Policy, in Right v. Might, supra note 79, at 69.
104
Richard B. Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for
Constructive Alternatives, in Law and Civil War in the Modern World 229, 244–51 (John
Norton Moore ed., 1974).

human rights rules by limiting the enforcement power of states. He fur-

ther argued that practice under the UN Charter had modified the Charter,
even though its plain words did not permit the unilateral use of force
absent an armed attack. He cited the Indian invasion of West Pakistan as
an example;105 the Tanzanian invasion of Uganda and Vietnam’s Cambodian
incursion are two other common examples. In fact, neither Vietnam nor
Tanzania justified their actions as humanitarian. To the extent India did,
its intervention was internationally condemned.106 Gray shows that until
NATO’s 1999 military intervention in the Kosovo crisis, states simply did
not justify uses of force on the basis of humanitarian intervention.107
Rather, they took the position, time and again, that force could not be
used for such purposes without Security Council authorization.
In 1999, NATO bombed Yugoslavia for seventy-eight days to force
the Yugoslav leader Slobodan Milosevic to pull the country’s forces out of
the province of Kosovo and away from the ethnic Albanian population.
He finally did, under pressure from the Russians, who pointed out that
NATO could bomb indefinitely. The deaths and devastation caused by
the bombing and the terrible aftermath, during which Serbs and UN
Peacekeepers were killed, may have slowed the development of a new right
to use force without Security Council authorization.
The people who drafted the UN Charter in the wake of World War
II had a much clearer understanding of the nature of war, as well as what
it can accomplish and what it cannot. The UN Charter prohibition on
humanitarian intervention has well-considered moral and pragmatic
underpinnings. For that reason, it has withstood the arguments in favor of
such intervention. There are two primary factors that support the prohibi-
tion on humanitarian intervention: (1) the severe pragmatic difficulty of
protecting human rights through war, and (2) the weakening of the legal
regime for peace—and international law generally—that result from dis-
respect for the UN Charter prohibition. The UN Secretary General’s High
Level Panel on United Nations Reform in November 2004 reaffirmed the
prohibition on the use of force without Security Council authorization
105
Id. at 244–51.
106
See Mary Ellen O’Connell, Enforcing the Prohibition on the Use of Force: The U.N.’s Response to
Iraq’s Invasion of Kuwait, 15 S. Ill. U. L.J. 453, 474–75 (1991).
107
Gray, International Law and the Use of Force (2d ed.) supra note 65, at 31; see also
Simon Chesterman, Just War or Just Peace? (2001).

except in self-defense.108 At the 2005 UN World Summit in New York, it

was reconfirmed that states do not have the unilateral right to intervene
for humanitarian purposes.109 There must be an armed attack to trigger
the right to respond with armed force.
State Responsibility
Beyond the core requirement of an armed attack, international law places
several other conditions on the right to use force in self-defense. These con-
ditions are found in general international law, rather than the explicit terms
of Article 51. For example, it is a general principle of law that a state using
force in self-defense must target the party responsible for the unlawful attack
giving rise to the right of self-defense. If the defense is to be carried out on the
territory of a state, that state must be legally responsible for the attack that
triggered the defense or be unable or unwilling to prevent future attacks.
A state will also be responsible if it sends its own agents to carry out an attack,
orders others to do so, or controls a group that carries out an attack.110
In 1999, in the Tadić Case, the International Criminal Tribunal for
the Former Yugoslavia found that the
[c]ontrol required by international law may be deemed to

exist when a State (or, in the context of an armed conflict, the
Party to the conflict) has a role in organising, coordinating or
108
See A More Secure World: Our Shared Responsibility, Report of the Secretary
General’s High-Level Panel on Threats, Challenges and Change (2004), available at
http://www.un.org/secureworld/.
109
2005 World Summit Outcome,
78. We reiterate the importance of promoting and strengthening the multilateral
process and of addressing international challenges and problems by strictly abiding by
the Charter and the principles of international law, and further stress our commit-
ment to multilateralism.
79. We reaffirm that the relevant provisions of the Charter are sufficient to address the
full range of threats to international peace and security. We further reaffirm the
authority of the Security Council to mandate coercive action to maintain and restore
international peace and security. We stress the importance of acting in accordance
with the purposes and principles of the Charter.
110
See G.A. Res. 3314, art. 3:
Any of the following acts, regardless of a declaration of war, shall . . . qualify as an act of
aggression: . . . (g) The sending by or on behalf of a State of armed bands, groups, irreg-
ulars or mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to the acts listed above, or its substantial involvement therein.
Id.

planning the military actions of the military group, in addition

to financing, training and equipping or providing operational
support to that group.111
Under this test, the links between the Taliban and al Qaeda, for example,
might have been sufficient to support the US use of force in self-defense
against Afghanistan in 2001. The ICJ, however, in three decisions, two
since Tadić, imposed a higher test for responsibility. The ICJ ruled in the
Nicaragua case in 1986,112 the Congo case in 2005, and the Genocide
Convention case in 2007, that a state must be in control of a nonstate actor
group for the state to bear legal responsibility and be the legitimate target
of the use of force in self-defense.113 This may mean that the links between
al-Qaeda and the Taliban were too weak to justify using force in self-
defense against Afghanistan. Nonetheless, the Taliban’s refusal or inability
to eliminate the threat posed to the United States by al Qaeda may have
been sufficient to trigger the subsequent military action against al Qaeda
in Afghanistan. At any rate, the argument of self-defense was generally
accepted.
Terrorist attacks particularly raise the issue of state responsibility.
The classic treatment of terrorist acts is to regard them as crimes unless a
series of acts amounts to armed attack justifying armed force in self-
defense either against a foreign state or against a group within the state. To
use force lawfully in self-defense against a foreign state requires a showing
that the foreign state is either responsible for the armed attacks of the ter-
rorists or is unable or unwilling to control them. We review below a
number of cases in which a state used force claiming self-defense following
a clandestine terrorist attack but where the world was uncertain as to the
responsibility of the targeted state. These cases all involve force in self-
defense, meaning the defending state chose to use significant force on the
territory of another state.
The United States was heavily criticized for using force against Libya
in 1986. In that year, we now know without doubt from East German
111
Prosecutor v. Tadić, Case No. IT-94-1-A, Judgment, para. 137 (July 15, 1999).
112
The ICJ found in the Nicaragua case that acts of the Contra rebels were not attributable to the
United States because the United States did not exercise “effective control” over the rebels.
Nicaragua, 1986 I.C.J., 64–65, at paras. 114–15.
113
Id. Congo, 2005 I.C.J., at para. 345(1); Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J., at
para. 391, available at http://www.icj-cij.org.

Ministry for State Security (Stasi) files and other sources, that Libya sup-
ported the bombing of a disco in Berlin, where United States servicemen
were often present.114 Two US servicemen and a local woman were killed
in the incident. The United States had evidence of a plan for more attacks.115
In response, it targeted military sites in Libya. The Libyan head of state,
Colonel Ghaddafi lived at one of these sites and, tragically, his young
daughter was killed.116 Presumably, the United States knew of Ghaddafi’s
living arrangements, and, thus, one can question whether the US attack
was proportional.117 Much of the criticism around the incident may have
been generated because of the loss of civilian life, but governments at the
time also seemed to doubt the US evidence of Libyan involvement. Part of
the concern that persisted for years following the attack was doubt over
the US evidence of Libya’s involvement, past and future. In 2001, a German
court affirmed the US evidence—the bombers were Libyan agents.118 Also,
a Libyan agent was convicted in 2001 for the 1988 bombing of an American
passenger jet over Lockerbie, Scotland, which resulted in the deaths of 270
passengers and crew.119
In the mid-1990s, following acts of terror in Iran by Kurdish sepa-
ratists, Iran used force against them on the territory of Iraq. The Iraqi
government was unable to control the acts of the Kurds in northern Iraq
owing to the fact that since the 1990-1991 Gulf War, the US and UK had
kept Iraqi forces out of the north with the establishment of the “Iraqi
Exclusion Zone.”120 Iran explained to the Security Council, that “in
response to these armed attacks from inside Iraq and in accordance with
Article 51 of the Charter of United Nations, the fighter jets of the Islamic
Republic Air Force carried out a brief, necessary and proportionate opera-
tion against the military bases of the terrorist group where the recent
114
Christiane Wirtz, Eine Discothek würde zum Kriegsschauplatz, Berliner Landgericht;
Hochrangig Angehörige des libyschen Geheimdienstes planten den Anschlag, Süddeutsche
Zeitung, Nov. 14, 2001, at 9.
115
Christopher Greenwood, International Law and the United States’ Air Operation Against
Libya, 89 W. Va. L. Rev. 933, 948 (1987).
116
Edward Schumacher, Wide Damage Seen, Daughter of Qaddafi is Said to have Died, N.Y. Times,
Apr. 16, 1986, at A1.
117
Bernard Weinraub, U.S. Calls Libya Raid a Success; ‘Choice is Theirs,’ Regan Says; Moscow
Cancels Schultz Talks, N.Y. Times, Apr. 16, 1986, at A1; see also Greenwood, supra note 115.
118
Wirtz, supra note 114.
119
Peter Finn, Libyan Convicted of Lockerbie Bombing; Second Man Acquitted In Attack on Pan
Am 103, Wash. Post, Feb. 1, 2001, at A01.
120
Mary Ellen O’Connell, Continuing Limits on UN Intervention in Civil War, 67 In. L.J. 903,
905–6 (1992).

armed attacks originated.”121 Similarly, Turkey has pursued Kurdish ter-

rorists into Iraq on several occasions. It explained to the Security Council
in 1995 that, “Turkey cannot ask the Government of Iraq to fulfil its obli-
gation, under international law, to prevent the use of its territory for the
staging of terrorist acts against Turkey. Under these circumstances,
Turkey’s resorting to legitimate measures which are imperative to its own
security cannot be regarded as a violation of Iraq’s sovereignty.”122 The United
States has explicitly stated that Turkey was acting in self-defense. It is
unclear why Turkey itself did not invoke Article 51.123 The European Union
and the Council of Europe criticized Turkey’s earlier interventions as dis-
proportionate. Neither body has sanctioned Turkey.124
In 1998, trucks rigged with bombs blew up outside the United States
embassies in Nairobi and Dar-es-Salaam. Hundreds died, including twelve
Americans, but most were local residents; hundreds more were wounded
and blinded, all Africans. The United States determined that a terrorist
group under the leadership of a wealthy Saudi named Osama bin Laden
was responsible. The US believed bin Laden had ties to a manufacturer in
Khartoum and trained terrorists at a remote site in Afghanistan. The US
bombed a factory in Khartoum owned by the manufacturer and bombed
a camp in Afghanistan. The US evidence respecting the factory and its
claim that the factory produced chemical weapons was widely questioned.
The raid on the camp in Afghanistan received more support, though the
criticism of the Khartoum bombing clouded the US’s claims in general.125
On October 7, 2001, the United States and United Kingdom used
force in Afghanistan, claiming lawful self-defense. They argued that they
had evidence that the September 11, 2001 (9/11) attacks on the World
Trade Center in New York and the US Department of Defense headquar-
ters at the Pentagon in Washington were part of a series of terrorist actions
against the United States begun with the 1993 attack on the World Trade
121
Quoted in Gray, International Law and the Use of Force 116 (2d ed.) supra note 65, at
116; see also Iran Claims Right of Self-Defence in Attacking Rebel Kurds, Agence Fr.-Presse,
July 30, 1996.
122
Letter to the President of the Security Council, July 24, 1995, UN Doc. S/1995/605.
123
Gray, International Law and the Use of Force (2d ed.) supra note, at 116.
124
Turkey Invades Northern Iraq, Economist, Feb. 28, 2008 available at http://www.economist.
com/world/africa/displaystory.cfrm?story_id=10766808. See also Michael Bothe & Torsten
Lohmann, Der türkisches Einmarsch im Nordirak, 5 Schw. Z. Int’l. u. Eur. R. 441 (1995).
125
Tim Weiner & Steven Lee Myers, After the Attacks: The Overview, Flaws in the U.S. Account
Raise Questions on Strike in Sudan, N.Y. Times, Aug. 19, 1998, at A1; Paul Richter, Sudan
Attacks Claim Faulty, U.S. Admits, L.A. Times, Sept. 1, 1998, at A1.

Center, continued with the embassy bombings in Tanzania and Kenya and
the attack on the USS Cole in Yemen, and that there would be future
attacks. This evidence was presented to members of NATO and was called
“compelling.”126 After the use of force against Afghanistan began, the US
forces said they found documentary evidence that members of al Qaeda
planned further attacks on the United States.127
State reaction to Operation Enduring Freedom in Afghanistan was
supportive on the facts and the law at the time. In several subsequent res-
olutions relating to terrorism and the situation in Afghanistan, neither the
Security Council nor the General Assembly condemned Operation
Enduring Freedom as a violation of the UN Charter.128 The attacks of 9/11
were seen as armed attacks within the meaning of Article 51. The prior
attacks and evidence of intent to carry out future attacks supported the
argument that attacking Afghanistan was for the purpose of defense.
As discussed above, however, subsequent decisions of the ICJ indi-
cate that a higher level of control by the Taliban of al Qaeda should have
existed to justify holding Afghanistan responsible. The negative conse-
quences of the invasion may also reinforce for governments that the use of
force in self-defense should be undertaken only in the clearest case of
responsibility. Similar negative consequences followed the 2007 Ethiopian
invasion of Somalia. The Ethiopian Prime Minister Meles Zenawi said six
months after the invasion that his government
“made a wrong political calculation” when it intervened in

Somalia. . . . Addressing Ethiopia’s Parliament, Meles said his
government incorrectly assumed that breaking up the Islamic
movement that took control of most of Somalia in June 2006
would subdue the country. . . . Opposition members of
Parliament have accused Meles of making the same mistake in
Somalia that critics say the Untied States made in Iraq: launch-
ing a military intervention without having a political plan.
Many Ethiopian intellectuals and political leaders opposed
126
William Drozdiak & Rajiv Chandrasekaran, NATO: U.S. Evidence on Bin Laden ‘Compelling’;
Allies Give Unconditional Support for Retaliatory Strikes; Taliban Official Asks to See Proof,
Wash. Post, Oct. 3, 2001, at A11.
127
David Johnston & James Risen, Seized Afghan Files Show Intent, Not Plans, N.Y. Times, Feb. 1,
2002, at A13.
128
See G.A. Res. 56/88, UN Doc. A/RES/56/88 (Jan. 24, 2002); S.C. Res. 1383, UN Doc.
S/RES/1383 (Dec. 6, 2001); S.C. Res. 1378, UN Doc. S/RES/1378 (Nov. 14, 2001).

the intervention because they said it would inevitably create

the conditions for the sort to Somalia-based terrorist attacks
that Meles intended to contain by invading the country.129
The United States pressed Ethiopia to invade to push a coalition of

conservative Islamic groups out of power.130 It provided intelligence, logis-
tics, and its own commandos.131 The United States linked the Islamic group
running Somalia to support for al Qaeda and other Islamic extremists.
Following the Ethiopian invasion, however, the situation in Somalia dete-
riorated, as the Prime Minister of Ethiopia admitted.
Necessity and Proportionality

Results like those following the Ethiopian-U.S. invasion of Somalia point
to additional requirements for lawful self-defense: necessity and propor-
tionality. The use of force must be necessary to accomplish the defensive
purpose at an acceptable cost. The 2007 Ethiopian intervention in Somalia
caused hundreds of deaths, much destruction, and after six months was
proving counterproductive to the goal of defense.132
Necessity and proportionality are not expressly mentioned in the
UN Charter, but the ICJ held in the Nuclear Weapons Case, “there is a
‘specific rule whereby self-defence would warrant only measures which
are proportional to the armed attack and necessary to respond to it, a rule
well established in customary international law.’ This dual condition
applies equally to Article 51 of the UN Charter, whatever the means of
force employed.”133 An armed response in lawful self-defense must be made
in a way that conforms to the principles of necessity and proportionality.
Necessity with respect to self-defense means that even armed measures
taken in direct response to an armed attack must have a defensive purpose.
129
Stephanie McCrummen, Ethiopian Premier Admits Errors on Somalia, Wash. Post, June 29,
2007, at A16.
130
“Military operations in Somalia by American commandos, and the use of the Ethiopian Army
as a surrogate force to root out operatives for Al Kaeda in the country, are a blueprint that
Pentagon strategists say they hope to use more frequently in counterterrorism missions
around the globe.” Mark Mazzetti, Pentagon Sees Covert Move in Somalia as Blueprint, N.Y.
Times, Jan. 13, 2007, at A6.
131
Id.
132
Around the World, Houston Chron., Dec. 3, 2007, at A13.
133
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 245, para. 41
(July 8) (quoting Nicaragua, 1986 I.C.J. at 94, para. 176) [hereinafter Nuclear Weapons]. See
also Oil Platforms, 2003 I.C.J. 151.

They may not be undertaken if it is clear that the attacker is not going to
attack again or if the response is not designed to have a defensive purpose.
Armed measures taken in these situations are reprisals, which are un-
lawful today.134 They are not considered measures of self-defense—they
do not repel ongoing armed attack or seek to dislodge an unlawful
occupation.
The necessity requirement of responding to ongoing attacks places
another limitation on lawfully using significant military force to respond
to terrorist attacks. In addition to the state responsibility issue discussed
above, terrorists may attack at one place, and then move on to another so
that responding in self-defense becomes problematic. This is another
reason why terrorism should generally be treated as a crime and not the
trigger of armed conflict in self-defense. Still, as discussed above, in some
cases if terrorists have conducted a series of significant attacks, planned
future ones, and their identities and whereabouts are known to the defend-
ing state. the conditions of lawful self-defense may be met, as long as the
defense is necessary and proportional.135
Nevertheless, these are rare cases. In reality, it is very difficult to get
sufficient evidence of an ongoing terror campaign to support the right to
use force in self-defense. The state victim of terrorists may have some evi-
dence of a plan of future attacks but that is not the same as the reality of an
ongoing attack. Evidence of plans from secret intelligence sources is far
from the self-defense scenario contemplated in the UN Charter—ongoing
armed action by a regular military force. In several cases in which states
used force in response to terror acts, claiming the right of self-defense,
they have been criticized. Generally, the evidence of who actually carried
out the attack was weak and the evidence of future attacks, nonexistent.
Even in the strongest case of ongoing attack, the response must still be
proportional in the circumstances, and the state in which the perpetrators
are located must refuse to cooperate in ending the attacks. If those condi-
tions are met, however, a compelling case for self-defense is made.
Israel invaded Lebanon in 1982 in response to attacks by the
Palestine Liberation Organization (PLO). The invasion went as far as the cap-
ital, Beirut, far from the area where attacks on Israel originated. The Israelis
134
“States have a duty to refrain from acts of reprisal involving the use of force.” G.A. Res. 2625.
135
Louis Henkin, International Law: Politics, Values and Functions, 216 Recueil des Cours
(1989 IV)(1991), revised and republished as, Louis Henkin, International Law: Politics,
Values and Functions 159–62 (1990).

remained in Lebanon for three-and-one-half months. The United States

believed Israel had a right of self-defense with regard to the attacks it was
suffering, but nevertheless also believed that Israel’s response was out of
proportion to the attacks.136 The 2006 Israeli invasion of Lebanon was
criticized on the same basis. Israel had the right to stop rocket attacks into
its country launched by Hezbollah fighters. It had the right to attempt to
rescue kidnapped Israeli soldiers, but bombing heavily civilian areas far
from Hezbollah rocket emplacements was arguably disproportionate.
The amount of force used during the first weeks of the US and
British action against Afghanistan in 2001, appeared necessary and pro-
portionate—certainly while the US restrained the Northern Alliance from
seizing Kabul. US Secretary of State Powell indicated that the US did not
aim to eliminate the Taliban entirely. His approach tracked the interna-
tional legal rules.137 Degrading the Taliban’s offensive ability was a legiti-
mate objective. The care taken in targeting to avoid civilian casualties kept
the force used proportionate. Changing the government of Afghanistan
was arguably not necessary, however, for the defense of the US. Neverthe-
less, the Northern Alliance took Kabul. After the Taliban fell in mid
December, the continued use of massive aerial bombardment was argua-
bly disproportionate to the objective of capturing small groups and indi-
vidual al Qaeda members scattered in the Afghan mountains. The shift to
ground forces in mid January was more protective of civilians.
The principles of necessity and proportionality apply even though
the reason for going to war is unlawful. It is nonetheless difficult to apply
them when not measured against a lawful goal. In the case of Iraq 2003,
the announced reason for the invasion was to enforce Iraq’s disarmament
obligations, and, in the US case, apparently pre-emptive self-defense from
obtaining weapons of mass destruction. The Australian and British letters
to the Security Council both promised to use limited force:
The objective of the action is to secure compliance by Iraq

with its disarmament obligations as laid down by the Council.
All military action will be limited to the minimum measures
136
D. Brian Hufford and Robert Malley, The War in Lebanon: The Waxing and Waning of
International Norms, in International Incidents 144, 176–78 (W. Michael Reisman &
Andrew R. Willard eds., 1988).
137
Serge Schmemann, U.N. Envoy Says All Options are Open on a Post-Taliban Afghanistan, N.Y.
Times, Oct. 18, 2001, at B4.

necessary to secure this objective. Operations will be con-

ducted in accordance with the international laws of armed
conflict.138
The previous attempt by the US and Britain to get Iraq to comply

with its weapons obligations, Operation Desert Fox of December 1998,
failed utterly. Conditions had not changed in the intervening four years to
indicate the use of force was any more likely to succeed in March 2003.
Thus, using force could not achieve the military objective of getting Iraq’s
government to disarm. And, in fact, it did not succeed. The government
was thrown into disarray with no possibility to then disarm, even if there
had been weapons of mass destruction to give up.
Further, given that the objective of disarmament could not succeed
through a strategy of massive force, the deaths of any civilians was dispro-
portionate. The utter lack of proportionality between military objectives
and civilian deaths was underscored by the fact the coalition had a far less
lethal alternative by which to achieve disarmament—the UN weapons
inspectors, backed up by economic sanctions.
Finally, the defensive use of force need not necessarily follow imme-
diately from the unlawful armed attack, depending on the circumstances.
Some brief time to organize the defense is permissible.139 In the case of
Iraq’s unlawful use of force against Kuwait in 1991, the Security Council
actually required a six-month delay before the defense could begin, to give
peaceful measures a chance to work (a time period during which the US-
led force to liberate Kuwait mustered troops and equipment). On the other
hand, a state which has not taken immediate action should notify the
Security Council to ensure that the time for action has not passed. States
using force in self-defense must at any rate notify the Security Council
under the terms of Article 51. If there is no action by the Council after the
notice and the victim delays for a substantial period, it can no longer plead
self-defense and must turn to peaceful means to enforce its rights.140 This
should be the case whenever a significant period has transpired with no
138
Letter to the President of the Security Council, UN Doc. S/2003/350 (Mar. 21, 2003).
139
Belatchew Asrat, Prohibition of Force Under the U.N. Charter, A Study of Art.
2(4) 199 (1991).
140
The right to use enforcement measures other than armed force appears to continue for very
long periods. While it is generally acknowledged that international law includes the doctrine
of laches, periods of forty, fifty, and more years have passed while states used counter-
measures. See infra ch. 6.

active effort towards self-defense. Should a long delay occur, the victim
may still have a claim against the wrongdoer, just not a right to use force
in self-defense.141 The scheme of the UN Charter is to promote the peaceful
settlement of disputes. The right to use armed force is permitted only in
situations that may be characterized as emergencies, analogous to the
right to use force in personal self-defense. If the emergency passes, other
means must be used for enforcing the claim.
For example, the first attack by al Qaeda against the World Trade
Center Towers in New York City occurred in 1993. Using force in self-defense
might have been lawful but was completely impractical. It took time to dis-
cover who the perpetrators were and where they were. When the US did
learn about the perpetrators, it extradited a number of persons who stood
trial and went to prison. By the time the US made its case against these
members of al Qaeda and discovered the links to Afghanistan, it was too
late to use military force even if all the requirements of lawful force could
be met.
In classical international law, states had the right to resort to war
and reprisals to enforce their rights. Under the leadership of the United
States, the world established a peace order in 1945 to clearly outlaw the
use of force, even for the enforcement of legal rights. A number of excep-
tions were made to the general prohibition. The Security Council was
given the responsibility to maintain peace and security. It could respond
to threats to the peace, breaches of the peace, and acts of aggression,
including through the use of military force, which it has done by author-
izing states to use force as in the liberation of Kuwait in 1990–1991. States
acting unilaterally may use force in self-defense if an armed attack occurs,
the defense targets the responsible state, the defense is necessary and pro-
portional, the Security Council is notified, and until such time as the
Security Council acts. In other cases, international law provides alterna-
tive means of enforcement, as will be discussed in the next chapters.
Despite the normative superiority of limiting the right to use force,
governments, representatives of organizations, and scholars, have chal-
lenged the UN Charter paradigm on the use of force at various times for
various reasons. A few have declared the rules dead. Others have tried
to expand the right to use force for humanitarian crises, to promote
141
For the argument that claims continue in international law long after the initial wrong
occurred, see John Quigley, Sovereignty in Jerusalem, 45 Cath. U. L. Rev. 765 (1996).

communism or democracy or against terrorism, and to enforce other rules

of international law. In the aftermath of the Kosovo crisis and the inva-
sions of Afghanistan (2001), Iraq (2003), and Somalia (2007), the UN
Charter’s clear rules for peace look as compelling as at any time in their
history. The time appears right to re-emphasize that the UN Charter’s
rules on use of force, especially the general prohibition, is not mere posi-
tive law, changeable at the at the wish of a national leader. The prohibition
in Article 2(4) is a jus cogens norm. The time may also be right to expand
the prohibition, to consider an international legal limit on internal armed
conflict.

Chapter 5
Collective Armed
Measures
O n September 12, 2002, United States (US) President George W. Bush

delivered a major address at the United Nations (UN). He said, in part,
The United Nations was born in the hope that survived a

world war, the hope of a world moving toward justice—escap-
ing old patterns of conflict and fear. The founding members
resolved that the peace of the world must never again be
destroyed by the will and wickedness of any man. We created
the United Nations Security Council, so that, unlike the
League of Nations, our deliberations would be more than talk,
our resolutions would be more than wishes. After generations
of deceitful dictators and broken treaties and squandered lives,
we dedicated ourselves to standards of human dignity shared
by all and to a system of security defended by all.
...

The United States helped found the United Nations. We want

the United Nations to be effective and respectful and success-
ful. We want the resolutions of the world’s most important
multilateral body to be enforced. And right now those resolu-
tions are being unilaterally subverted by the Iraqi regime.
...
My nation will work with the U.N. Security Council to meet
our common challenge. If Iraq’s regime defies us again, the
world must move deliberately, decisively to hold Iraq to
account. We will work with the U.N. Security Council for the
necessary resolutions. But the purposes of the United States
should not be doubted. The Security Council resolutions will
be enforced—the just demands of peace and security will be
met—or action will be unavoidable. And a regime that has lost
its legitimacy will also lose its power. . . .1
For the next six months, until March 19, 2003, the United States,
along with the United Kingdom, did work to get the UN Security Council
to authorize the use of force against Iraq if Iraq did not prove it had no
weapons of mass destruction. On November 8, 2002, the Security Council
passed Resolution 1441 (the Resolution). The US used the Resolution’s
relatively ambiguous language to argue that it could constitute an authori-
zation for force if read together with past resolutions on Iraq.2 The
Resolution unambiguously ordered Iraq to admit weapons inspectors,
who had been barred from Iraq for some years. Although they did not get
full cooperation, it seemed that concerns over an Iraqi weapons program
were overblown.3 In early March, the British Attorney General, Lord
Goldsmith, advised Prime Minister Blair that, absent hard evidence of
an Iraqi weapons program, Resolution 1441 would not suffice as an
1
George W. Bush, Address to the United Nations General Assembly, Sept. 12, 2002, available at
http://www.whitehouse.gov/news/releases/2002/09/20020912-1.htm; excerpted in Mary
Ellen O’Connell, International Law and the Use of Force 51–55 (2005).
2
See Mary Ellen O’Connell, Resolution 1441: Compelling Saddam, Restraining Bush, Jurist,
Nov. 21, 2002, available at http://jurist.law.pitt.edu/forum/forumnew73.php.
3
For a detailed account of UN weapons inspections in Iraq, including in the months before the
US-led invasion, see, Hans Blix, Disarming Iraq (2004).

Collective Armed Measures
authorization for force in Iraq.4 The British then attempted to secure a

more explicit resolution. After intense efforts, however, they were unable
to persuade the other permanent members of the Security Council, or all
ten of the non-permanent members, to support an authorization of force
at that time. Nevertheless, on March 19, aerial bombardment of Iraq
began, followed by a ground invasion in which British, American, and
Australian troops participated.
Events in the six months leading up to the invasion of Iraq demon-
strate the deeply held understanding in the international community that
force should only be used as authorized by law. Nevertheless, that same
time period reflects intense interest by states and nonstate actors alike in
using force to enforce legal rights and important policies. The tension
between these two sentiments has marked the entire history of the Security
Council. It is unlikely to be resolved any time soon. Still, three years after
President Bush’s speech and two and one-half years after the start of the
Iraq invasion, with the United States and British forces bogged down in
Iraq, delegates to the United Nations World Summit renewed their com-
mitment to the Security Council as the sole legal authority with the power
to authorize force.5
I. Prelude to the Charter

At the end of Europe’s bloody Thirty Years’ War in 1648, the warring par-
ties concluded several peace agreements that came to be called the Peace
4
Richard Norton-Taylor, Revealed: The Government’s Secret Legal Advice on the Iraq War,
Guardian (London), Apr. 28, 2005, at 1. “The attorney general [Lord Goldsmith] warned
Mr. Blair that Britain might be able to argue it could go to war on the basis of past UN resolu-
tions, but only if there were ‘strong factual grounds’ that Iraq was still in breach of its disarma-
ment obligations.” Id. See also Global Policy Forum, British Attorney General’s Advice to Blair
on Legality of Iraq War, (Mar. 7, 2003), at http://www.globalpolicy.org/security/issues/iraq/
document/2003/0307advice.htm. From the full text of the Attorney General’s memorandum
to Blair: “In other words, we would need to be able to demonstrate hard evidence of non-
compliance and non-cooperation [to justify use of force against Iraq].” Id. at para. 29; see also,
for analysis of resort to war in Iraq and conclusion that it was unlawful, Sean D. Murphy,
Assessing the Legality of Invading Iraq, 92 Geo. L.J. 173 2005; Richard A. Falk, What Future
for the UN Charter System of War Prevention?, 97 AJIL 590 (2003); Mary Ellen O’Connell,
Addendum to Armed Force in Iraq: Issues of Legality, Insights, Apr. 2003, available at http://
www.asil.org/insights/insigh99a1.htm.
5
2005 World Summit Outcome, UN GAOR, 60th Sess., paras. 79–80, UN Doc. A/60/L.1(Sept.
15, 2005) [hereinafter World Summit Outcome].

of Westphalia (the Peace). Among the commitments in the Peace was an

agreement to settle disputes by peaceful means. If, however, after three
years, the difference could not be resolved, all other parties to the Peace
were to come to the aid of the injured party, including, if necessary, by
military force.6 Arthur Nussbaum calls this the “first attempt at interna-
tional organization for peace.”7
The Peace of Westphalia remained in effect in Europe until the
French Revolution. Robespeirre and other revolutionary leaders advo-
cated collective war against states that might intervene in France.8 But
then, imbued with the superiority of their ideas, arguments for defensive
war evolved to offensive war. France began intervening in the name of
liberation and self-determination. Of course, the Napoleonic wars had
nothing to do with self-determination, but were wars of conquest. Then,
“[a]fter two decades of arbitrariness and lawlessness the European nations
resumed the traditions of the law of nations, influenced by changed condi-
tions and on the basis of a new stabilised political balance of power.”9 The
Final Act of the Congress of Vienna, signed on June 9, 1815, aimed at
preserving the peace.10 The treaty generally made territorial dispositions—
settling boundaries, transferring regions, clarifying rights of passage, and
the like. The treaty stated principles for the cooperative use of rivers, the
resolution of the funds on deposit in third states, amnesties, and the con-
duct of diplomacy. Great Britain, Austria, France, and Russia guaranteed
the cession of territory by Saxony to Prussia.11 But arbitration was to be
used to resolve potential disputes respecting Luxembourg’s boundaries.12
A mixed boundary commission of professional members was called for to
draw up the boundaries between Prussia and the Netherlands.13 The
Vienna treaty had no overall enforcement provisions, however, unlike the
Peace of Westphalia. Rather, Europe saw the “balance of power” era of
wars in which each of the Great Powers—Britain, France, Austria-Hungary,
6
See O’Connell, supra note 1, at 116–17. See also ch. 1.
7
Id. at 114 (quoting Arthur Nussbaum, A Concise History of the Law of Nations 113
1953.
8
Wilhelm G. Grewe, The Epochs of International Law 416–18 (Michael Byers trans. &
rev’d, 2000).
9
Id. at 41416, 424.
10
Vienna Congress Treaty, June 9, 1815, reprinted in 1 Key Treaties for the Great Powers
1814–1914, at 41 (Michael Hurst ed. 1972); see also Nussbaum, supra note 7, at 186.
11
Vienna Congress Treaty, art. XVII.
12
Vienna Congress Treaty, art. LXIX.
13
Vienna Congress Treaty, art. LXVI.

Prussia, and Russia—intervened in the interest of ensuring no one state

became more powerful than the others.
The next collective agreement for enforcing the peace was the Cov-
enant of the League of Nations (the Covenant of the League or the Covenant).
The principles of the Covenant built on the Hague Conventions of 1899 and
1907. However, US President Woodrow Wilson arrived in Paris with a far
more ambitious plan than anything ever proposed in The Hague. It was for a
world organization that would ensure peace and justice. Basic provisions for
the organization were included in the Treaty of Versailles that formally ended
the war. The organization itself was formed under the Covenant of the
League, adopted on April 28, 1919.14 As discussed in Chapter Four, “Unilateral
Armed Measures,” Wilson did not prepare the political ground well for his
revolutionary new idea. He had not won over the prominent Republican
statesman Elihu Root. Root did not support Wilson’s idea that the collective
use of force be made available to enforce the peaceful settlement of disputes.
He did not support the automatic obligation on the United States to supply
troops. Root opposed Article 10 of the Covenant the commitment “to respect
and preserve as against external aggression the territorial integrity and exist-
ing political independence of all Members of the League.”15 He helped con-
vince the United States Senate to withhold its consent from the Covenant;
the United States never joined the League.
In the end, the League did not intervene as an organization to pro-
tect the territorial integrity of its members. Japan intervened in Manchuria,
China in 1931. Italy invaded Ethiopia in 1935 with little response. By the
time Germany invaded Poland in 1939, the League was effectively dead,
although high-ranking political and military leaders of Germany and
Japan were prosecuted after the war, in part, for crimes against the peace,
including violations of the Treaty of Versailles.16
The drafting of the UN Charter to replace the Covenant of the
League began well before the end of the Second World War and was, again,
largely an American effort.17 As early as the autumn of 1939, US State
14
1F.P. Walters, A History of the League of Nations 4, 38–39 (1952).
15
Covenant of the League of Nations, art. 10.
16
See, e.g., the trial of Joachim Von Ribbentrop, 10 Trial of the Major War Criminals
Before the International Military Tribunal, Nuremberg, 14 November 19451
October 1946.
17
See Stephen C. Schlesinger, Act of Creation: The Founding of the United Nations:
Quest for a Peaceful World (2003).

Department officials were thinking about a new organization for the

maintenance of peace.18 These officials began with the blueprint of the
League of Nations. The design for the Security Council, however, was
largely new. By 1942, the idea of the four major allies (Britain, China, the
Soviet Union, and the United States) as a world police force became a
permanent feature of the plan. For the next three years, various constitu-
encies debated the scope of the veto power that these four—and later
France—could exercise. The debate was over the extent of the right, not
whether there should be a veto—that was a given.
In fact, the veto lay at the heart of the Security Council scheme. The
“Four Policemen” would have greater responsibility, but also greater rights:
“Roosevelt adhered unswervingly to one central realpolitik tenet derived
from his disillusion with the League’s enforcement operations, that the
four major powers . . . should act as policemen and provide the security
for any world organization.”19 Roosevelt was also committed to ensuring
the United States would join the new organization. The US history with
the League of Nations would not repeat itself. He organized a national
campaign to promote American membership in the UN. One particular
hurdle he had to overcome was concern about the great-power veto right
in the planned-for Security Council:
On April 15, the National Catholic Welfare Conference

expressed its fear that, in permitting the veto power, the plan
for the world body could allow the Big Powers to use their
military muscle against smaller nations without fear of reprisal.
On April 23, a group of eminent Protestant ministers issued a
declaration chiding the organizers for setting up an inequita-
ble system. It called the U.N. proposals “a mere camouflage for
the continuation of imperialistic policies and the exercise of
arbitrary power by the Big Three for the domination of other
nations.” Even the editors of Time felt the charter should be
liberalized, giving more authority to the General Assembly.20
18
Id. at 33.
19
Id. at 39–40.
20
Id. at 67–68.

“When a reporter who asked Roosevelt whether he’d achieved a victory for
the nation, the president replied, ‘I should say it was a common agreement.
. . . If anybody has a better idea, we would be glad to consider it.’”21
One idea that was seriously considered at the San Francisco
Conference was to include Brazil as a permanent member of the new
Security Council, also with a veto right. Roosevelt had early in the plan-
ning given serious thought to this idea in order to keep the Latin American
countries supportive of the new organization. His advisers persuaded him
to reject it, however, in part using the argument that Brazil simply was not
a great power.22 When the idea came up again at San Francisco, it was
rejected by the great powers along with the rest of the “onslaught by the
non-great powers on the veto privilege.”23
II. The Charter

Although many expressed concerns with the veto and the composition of
the Security Council, the general idea for a body to enforce the prohibition
on war was welcomed. The Security Council was given broad authority to
restore “international peace and security.”24 This was unique authority for
the Security Council. The UN Charter plainly subordinates all other organ-
izations to the Security Council on questions related to the use of force.
Nevertheless, attempts have been made over the years to create authorizing
authority apart from the Security Council—most recently following the
Kosovo Crisis of 1999. The first section below looks at the UN Charter pro-
visions respecting the Security Council and its practice. The second section
examines other organizations and proposals for new authorities, all of which
have been rejected in favor of the one organization clearly authorized by the
international community to enforce the peace: the Security Council.
A. The Security Council

The strength of the Council’s authority is understood by looking at Chapters I,
VII, and XVI of the Charter. Chapter I, Article 24(1) provides that:
21
Id. at 65.
22
Id. at 49.
23
Richard C. Edis, A Job Well Done: The Founding of the United Nations Revisited, 6 Cambridge
Rev. Int’l Aff. 29, 36–38 (1992). See also Documents of the United Nations Conference
on International Organization (1945).
24
UN Charter art. 39.

[i]n order to ensure prompt and effective action by the United

Nations, its Members confer on the Security Council primary
responsibility for the maintenance of international peace and
security, and agree that in carrying out its duties under this
responsibility the Security Council acts on their behalf.25
Article 25 then states that UN members agree to carry out Security Council
mandates. Chapter XVI, Article 103, provides “In the event of a conflict
between the obligations of the Members of the United Nations under the
Present Charter and their obligations under any other international agree-
ment, their obligations under the present Charter shall prevail.” Chapter
VII, Article 39 sets out the parameters of Security Council action: the
Security Council may make recommendations or take measures (per
Articles 41 and 42) to maintain or restore international peace and security
if there is a threat to the peace, breach of the peace, or act of aggression.
The Security Council’s authority to use force is broader than that of indi-
vidual states. It has the right to respond to threats to as well as to actual
breaches of peace and aggression.26
Breach of the peace, includes “hostilities plainly engaged in between
armed units of two States,”27 but today it is understood that the Security
Council may respond to a broader range of violence, including human
rights violations.28 As for threats to the peace, this concept is not so easily
defined. The Security Council plainly has wide discretion to determine
what a threat to the peace is, but the UN Charter indicates there are limits
to that discretion, for example in Article 2(7):
Nothing contained in the present Charter shall authorize the

United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII.29
25
26
See generally, Jochen Frowein and Nico Krisch, Chapter VII. Action with Respect to Threats to
the Peace, Breaches of the Peace, and Acts of Aggression, in I The Charter of the United
Nations, A Commentary  (Bruno Simma et al. eds., 2d ed. 2002).
27
Id. at 717, 721.
28
See World Summit Outcome, at para. 139.
29

These provisions reveal that the Security Council was not originally
authorized to use force to enforce general international law or even the most
important rules of international law. The Security Council is authorized to
enforce the peace.30 Nevertheless, the meaning of breach of the peace has
likely been broadened to include serious human rights violations. The 2005
World Summit Outcome document includes a provision for the Security
Council to act in cases of serious threats to human rights.31
When acting under Article 39, the Security Council has the author-
ity to order UN members to take action per Articles 41 and 42.32 Article 41
refers to nonmilitary enforcement. Should those prove inadequate, the
Security Council may order member states to use military force. In addi-
tion to the use of combat forces, Article 42 contemplates demonstrations
and blockades—meaning the sealing off of territory or forceful inspection
of shipping.33 To carry out these activities, the Security Council was to
form agreements with member states under Article 43(1):
All Members of the United Nations, in order to contribute to

the maintenance of international peace and security, under-
take to make available to the Security Council, on its call and
in accordance with a special agreement or agreements, armed
forces, assistance, and facilities, including rights of passage,
necessary for the purpose of maintaining international peace
and security.
These agreements were never formed, and to the extent the UN has relied
on armed forces it has been on an ad hoc basis. In many cases, the UN has
provided a mandate only. The command of the forces has remained with
states or regional organizations. Some of these cases are discussed below.
The UN Charter does make one explicit exception to the focus on
international peace in the enforcement area. The Security Council has
30
Oscar Schachter, International Law in Theory and Practice 227 (1995).
31
World Summit Outcome, at para. 139.
32
The Security Council can also recommend action. Frowein and Krisch are clearly right that
recommendations should not be classified with enforcement. Jochen Frowein and Nico
Krisch, Article 39, in, I The Charter of the United Nations, supra note 26, at 727–28.
33
Frowein and Krisch, Article 42, in, The United Nations Charter Commentary, supra
note 26, at 758. Failure to form standing agreements for troops under Article 43 is not seen as
an obstacle to the Security Council’s invocation of Article 42. Id. at 633.

explicit authority to enforce decisions of the International Court of Justice

(ICJ).34 Article 94(2) of the UN Charter provides:
If any party to a case fails to perform the obligations incum-

bent upon it under a judgment rendered by the Court, the
other party may have recourse to the Security Council, which
may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.35
Article 94 does not require the Security Council to take action; the lan-
guage is discretionary. This formulation was to avoid issues that had con-
fronted the Council of the League of Nations, which was mandated to
enforce decisions of the ICJ’s predecessor, the Permanent Court of
International Justice.36 There is a good argument that the Security Council’s
permanent members have no authority to veto resolutions designed to
enforce ICJ judgments,37 but on the one occasion that states brought
requests for enforcement to the Security Council (for Nicaragua), the US
vetoed them.38 In 1954, the United Kingdom requested enforcement by
the Security Council of interim measures of protection ordered by the ICJ
in the Anglo-Iranian Oil Company Case.39 Before the Security Council
reached a decision on whether it could enforce interim measures, as
opposed to judgments, the question became moot.40 It is also not entirely
clear what measures the Security Council could take to enforce judg-
ments.41 What is clear is that the drafters understood they had to include
34
For a more detailed discussion, see Mary Ellen O’Connell, The Prospects for Enforcing
Monetary Judgments of the International Court of Justice: A Study of Nicaragua’s Judgment
Against the United States, 30 Va. J. Int’l L. 891 (1990).
35
36
O’Connell, Prospects for Enforcing, supra note 34, at 906–07.
37
Id. at 908–09.
38
Two attempts were made to get the Council’s assistance with enforcing the Nicaragua judg-
ment: S/PV 2704, July 31, 1986, UN Doc. S/18250, pp. 54–5; S/PV 2718, Oct. 28, 1986, UN
Doc. 5118428, p. 51. The judgment was handed down in June 1986, in Military and
Paramilitary Activities In and Against Nicaragua, (Nicar. v. U.S.) 1986 I.C.J. 14 (June 27)
[hereinafter Nicaragua].
39
Anglo-Iranian Oil Co. (U.K. v. Iran), 1951 I.C.J. 100 (Interim Protection Order of July 5).
40
O’Connell, Prospects for Enforcing, supra note 34, at 909.
41
Mary Ellen O’Connell, Continuing Limits on UN Intervention in Civil War, 67 Ind. L.
J. 903, 909–10 (1992)[hereinafter O’Connell, Continuing Limits on UN Intervention in Civil
War].

an explicit authorization for the Security Council to take enforcement

action outside the area of international peace and security.
What is also clear is that whether or not the Security Council acts to
enforce an ICJ judgment, such judgments are binding. The binding nature
of ICJ judgments and the concomitant obligation to comply are derived
from ICJ’s nature as a court and the consent given by states to the Statute
of the ICJ and to ICJ jurisdiction in particular cases and disputes. The
practice and attitude of states, as well as specific provisions of the court’s
Statute make it clear beyond doubt that judgments in contentious cases
bind the parties. Article 59 of the Statute provides, “The decision of the
Court has no binding force except between the parties and in respect of
that particular case.”42 The statement of the United States Supreme Court
in a 2008 opinion, Medellín v. Texas, erroneously finds the obligation on
parties to comply with judgments in the Security Council’s authority to
enforce ICJ judgments. The opinion says, “The obligation on the part of
signatory nations to comply with ICJ judgments derives not from [the
treaty providing for ICJ jurisdiction] . . ., but rather from Article 94 of
the United Nations Charter—the provision that specifically addresses the
effect of ICJ decisions.”43 This view is akin to saying US Supreme Court
decisions are binding because the Court has a marshall service that can
potentially help enforce decisions in some cases. The possibility of forceful
enforcement signals that the obligation to comply is a legal obligation, but
Security Council enforcement—like enforcement by the Supreme Court’s
marshall—is not the only way to get a decision enforced and not often the
appropriate way.
Enforcement of ICJ decisions has been a negligible part of Security
Council activity. By contrast, it is involved daily in the business of enforc-
ing peace. The first major use of force authorized by the Security Council
came in 1950 when North Korean forces invaded South Korea. The
authorization could only occur because, at the time of the invasion, the
Soviet Union was boycotting the Security Council. Also in connection
with the Korean crisis, the General Assembly attempted to overcome, to
some extent, the problem of the veto when there was a need for action to
42
Statute of the ICJ, art. 59; see also arts. 1, 28, 60, and 65. LaGrand Case (F.R.G. v. U.S.), I.C.J.
466, 506, para. 109 (June 27). See also Case Concerning Avena and Other Mexican Nationals
(Mex. v. U.S.), 2004 I.C.J. 12, where it was made clear that provisional measures are binding
as well as final judgments.
43
Medellín v. Texas, 128 S.Ct. 1346, 1358 (2008).

maintain international peace and security.44 The result was the Uniting for
Peace Resolution, in which the General Assembly decided that
if the Security Council, because of lack of unanimity of the

permanent members, fails to exercise its primary responsibil-
ity for the maintenance of international peace and security in
any case where there appears to be a threat to the peace, breach
of the peace, or act of aggression, the General Assembly shall
consider the matter immediately with a view to making appro-
priate recommendations to Members for collective measures,
including in the case of a breach of the peace or act of aggres-
sion the use of armed force when necessary, to maintain or
restore international peace and security. If not in session at the
time, the General Assembly may meet in emergency special
session within twenty-four hours of the request therefor.45
The Uniting for Peace Resolution, however, does not change the UN
Charter scheme. The General Assembly may only recommend military
action when states would otherwise have the right to take such action,
absent a Security Council resolution. The General Assembly can recom-
mend collective self-defense when a state is the victim of an armed attack.
But for other breaches of or threats to the peace, the General Assembly
may not recommend the use of armed force for enforcement purposes.46
The UN also sent troops during the complicated Congo Crisis in
47
1960. The General Assembly called for the sending of volunteers, which
44
When the Soviet Union returned to the Security Council, the US tried to devise an end run
around the Security Council using its many allies in the General Assembly. In November
1950, the Assembly adopted the “Uniting for Peace” resolution, which gave it power to discuss
and make recommendations on matters of peace and security if the Council found itself
deadlocked. Members were also to hold armed forces ready in the event that the Council
failed to act. The Uniting for Peace resolution was first used during the Suez Crisis when the
United Kingdom and France vetoed Security Council resolutions. Following a General
Assembly demand to do so, the UK and France did withdraw their troops. But the Soviet
Union did not in 1956, when it was called upon to pull its troops out of Hungary. See Robert
R. Bowie, Suez 1956 (Internatonal Crisis and the Role of Law) (1974).
45
G.A. Res. 377, para. 1, UN Doc. A/RES/377(U) A (Nov. 3, 1950).
46
Recommending other types of action, such as economic sanctions, have occurred. See
Louis B. Sohn, Global Attitudes on the Role of the United Nations in the Maintenance and
Restoration of Peace, 26 Ga. J. Int’l & Comp. L. 77 (1996).
47
Georges Abi-Saab, The United Nations Operation in the Congo 19601964
(International Crisis and the Role of Law) 1978).

the French and the Soviets both called a contravention of the Charter.
They refused to pay the expenses associated with the Congo action, which
eventually resulted in the establishment of a separate account for peace-
keeping expenses, to be paid by members voluntarily.48 UN troops were
supposed to intervene to counter Belgian intervention on the eve of
Congolese independence. The UN, however, ended up fighting alongside
the central government against the people of the Katanga province who
were attempting to secede. The UN strove to remain neutral but could not
and, thus, tipped the balance against those striving for their own state.49
Indeed, the problem of getting Security Council consensus, despite
the clear interest and desire of the international community to respond to
conflicts, in addition to the challenges of intervening in such conflicts, led
to the development of peacekeeping. The term peacekeeping does not
appear in the UN Charter. The Security Council has no express authority
to send peacekeepers. But UN lawyers have long argued that as long as
peacekeeping actions have the consent of all the parties to the particular
conflict, act impartially, carry only defensive weapons, and intervene only
following a ceasefire, there could be no real legal challenge to their deploy-
ment.50 Under Chapter VI of the UN Charter, the Security Council has
authority to recommend to states a variety of measures for peaceful settle-
ment of disputes, and, under Chapter VII, it can send troops of the member
states to conflict areas. Putting these provisions together, international law-
yers believe the authority can be found. If the peacekeepers have the con-
sent of all parties following a ceasefire, and use limited force, the UN would
be able to avoid interfering in the political struggle behind such conflicts.
Before the end of the Cold War, seventeen peacekeeping missions
were organized. These missions aided compliance with ceasefires by liter-
ally imposing blue-helmeted soldiers between warring factions or setting
up observer posts to report breaches of the ceasefire. Peacekeepers were
not, however, peace enforcers—they did not take coercive action to compel
compliance with a ceasefire.51 Traditional peacekeeping is not, therefore,
categorized as an enforcement measure.
48
Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. 151, 156 (July 20).
49
See Nigel D. White, The United Nations and the Maintenance of International
Peace and Security 50–51 (1990).
50
Carl-August Fleischhauer, Remarks 86 ASIL Proc. 586, 588–90 (1992).
51
For a comprehensive discussion of peacekeeping under international law, see White, supra
note 49, at 172–76.

With the end of the Cold War, the veto ceased temporarily to be a
problem. The Security Council was able to respond more closely to the
original plan of the UN Charter when, by unanimous vote, it found that
Iraq had violated Article 2(4) by its invasion of Kuwait. The Security
Council did not authorize its own force, but rather, akin to the action in
Korea, it authorized a coalition of national forces under United States
command to compel Iraq back into compliance with the UN Charter.
Following the successful enforcement in the Gulf War, some members of
the Security Council, with support especially from European states, intro-
duced the idea that restoring “international peace” could include far more
than countering cross-boundary force.52
It was with the establishment of the Iraqi Exclusion Zone that the
international community saw the first indication of a new attitude toward
the UN Charter by the Security Council. At the end of February 1991, as
the fighting to liberate Kuwait was ending, the Kurds of Northern Iraq
began a rebellion against the Iraqi government, apparently either to secede
from Iraq or at least to establish an autonomous Kurdish region.53 This
development seems to have caught the UN and the coalition off guard.
Both resisted initial calls for intervention on behalf of the Kurds. The
United States took the position that it could not intervene militarily to
support the uprisings because intervention would be unlawful interfer-
ence in Iraq’s internal affairs. The French agreed with this legal assess-
ment, yet argued that “[t]he law is one thing, but the safeguard of a
population is another, quite as precious, to which humanity cannot be
indifferent.”54
France could not, however, persuade the other permanent mem-
bers of the Security Council to authorize force to liberate the Kurds.
Instead, the Council ordered only humanitarian aid on the Kurds’ behalf.
In Resolution 688, the Security Council found that Iraqi attacks on the
52
The Security Council took measures with regard to Rhodesia in the 1960s and South Africa
in the 1970s. See e.g., S.C. Res. 418, UN Doc. S/RES/418 (Nov. 4, 1977). Although the real
motive for action may not have been international peace, the Security Council found such
breaches before issuing resolutions. Thus, it behaved consistently with a legal requirement to
respond only to violations of international peace.
53
For a detailed account of these events, see O’Connell, Continuing Limits on UN Intervention in
Civil War, supra note 41, at 904–09.
54
The Times (London), 5 April 1991, at 4 (Statement of French Foreign Minister Roland
Dumas).

Kurds constituted a threat to peace in the region.55 In the subsequent

operative paragraphs of the resolution, the Security Council called on Iraq
to end its repression of the Kurds and to allow international humanitarian
assistance to reach northern Iraq. This was as far as the Security Council
could go without inviting a Chinese veto or failing to get the required
two-thirds vote of its fifteen members. As it was, China and India abstained
from supporting the resolution, while Cuba, Yemen, and Zimbabwe
voted against it. All stated they believed the resolution interfered in Iraq’s
internal affairs.56
Providing humanitarian aid is not considered to be interference
with internal affairs and therefore is not unlawful.57 Creating the protec-
tive zone, however, went well beyond distributing humanitarian aid. There
is a question about whether such a move was really authorized by the
Security Council. The British have argued that Resolution 688, read
together with Resolution 678 (which authorized all means to bring peace
to the region), provided the authority to create the zone as part of the
response to Iraq’s violation of international peace.58 It appears that Iraq
gave consent to the establishment of the zone in May 1991.59 It was then
that US-led forces left the area and UN “police” entered.60 Subsequent
cases more clearly defined the trend begun in Iraq.61
In midsummer 1991, fighting broke out in Yugoslavia between the
province of Croatia, which had declared its independence, and the
Yugoslav federal government. This conflict also raised the question of UN
intervention in civil war. In the early months of the war, the UN played no
role. The European Community (EC) wished to mediate the conflict,
declaring it a European matter. But the EC had not succeeded in securing
a ceasefire by mid September. The Security Council then became involved,
beginning with Resolution 713, which imposed an arms embargo on the
55
S.C. Res. 688, UN Doc. S/RES/688 (Apr. 5, 1991).
56
O’Connell, Continuing limits on UN Intervention in Civil War, supra note 41, at 905–06.
57
See Nicaragua, at 132–33, para. 242.
58
O’Connell, Continuing Limits on UN Intervention in Civil War, supra note 41, at 90607.
59
Id. at 909.
60
Id.
61
The Security Council sent peacekeeping troops in the early 1990s to Cambodia, but secured
the consent of the parties and, thus, Cambodia cannot be considered a peace enforcement
case.

entire territory of the former Yugoslavia.62 This embargo had the consent
of Belgrade, and thus avoided a Chinese veto.
In November 1991, Zagreb and Belgrade agreed to the formation of
a peacekeeping force, the United Nations Protection Force (UNPROFOR),
to act as a buffer under Resolution 743. To this point, no significant depar-
tures from traditional peacekeeping practice had been made by the
Security Council. However, Resolution 743 states that UNPROFOR was
needed because “the situation in Yugoslavia continues to constitute a
threat to international peace and security.”63 There was no tangible threat
to other independent states, and it appeared that this language was
included with a possible view that UNPROFOR would be more than a
buffer—that it would be used to stop the civil war. The Security Council,
oddly, failed to give a clear mandate to that effect, nor did it provide the
resources to support such an effort. Indeed, the later assessment that
UNPROFOR was a serious failure is largely attributable to what is viewed
as its unclear mandate.64 By May 1992, the former Yugoslav republics of
Slovenia, Croatia, and Bosnia were admitted to the United Nations. The
conflict became international and, as such, fell under the traditional inter-
pretation of the UN Charter in connection with the former Yugoslavia.
With the recognition of the three new states, the dispute clearly could no
longer be deemed an internal affair of Yugoslavia.
On December 3, 1992, the Security Council authorized a similar
mission in Somalia that at least began much as the missions to northern
Iraq and Yugoslavia had. In Resolution 794, the Security Council author-
ized “all necessary means to establish as soon as possible a secure environ-
ment for humanitarian relief operations in Somalia, . . .”65 “The magnitude
of the human tragedy in Somalia . . . constitutes a threat to international
peace and security.”66 As explained above, the authorization of protection
to humanitarian relief is not considered a use of force. In Somalia, how-
ever, the Security Council again indicated a willingness to reduce the limit
of Article 2(7) and expand its interpretation of Article 39. Under Resolution
814, the Security Council ordered troops wearing blue helmets—some
62
S.C. Res. 713, UN Doc. S/RES/713 (Sept. 25, 1991).
63
S.C. Res. 743, pmbl., UN Doc. S/RES/743 (Feb. 21, 1992).
64
See James B. Steinberg, International Involvement in the Yugoslavia Conflict, in Enforcing
Restraint: Collective Intervention in Internal Conflicts  (Lori F. Damrosch ed.,
1993).
65
S.C. Res. 794, para. 10, UN Doc. S/RES/794 (Dec. 3, 1992).
66
S.C. Res. 794, pmbl.

under UN command and others under US command—to disarm warring

parties and armed bands. Secretary-General Boutros Boutros-Ghali said
this was the first time the UN had used force for “exclusively, humanitar-
ian, internal reasons.”67
But the situation was not as clear-cut as that. In Somalia’s case, it
was difficult to accuse the UN of interfering with internal affairs when the
government had collapsed and chaos reigned. Even in that situation, the
UN had organized a conference of factional leaders in Addis Ababa to get
some sort of consent to the presence of the Blue Helmets.68
It was, therefore, in Haiti that the Security Council first clearly went
beyond the traditional UN Charter interpretation. In 1994, with Resolution
940, the Security Council found that the situation in Haiti threatened peace
in the region.69 Yet, there was no threat to international peace—as tradi-
tionally understood.70 A contingent of primarily American troops was
authorized to use force to restore democracy. Due to the efforts of former
US President Jimmy Carter, military force was not needed to oust the mili-
tary dictatorship. However, the finding of the Security Council that it could
authorize military intervention to restore democracy—in a place where a
government was in effective control—was likely the zenith of the Security
Council’s reinterpretation of the Charter. There was an international con-
cern in the case, namely, the flight of refugees in small boats from Haiti, but
it never amounted to a threat to international peace. The Security Council
authorized force to alter the internal affairs of a state.
Subsequently, however, it failed to act to stop the slaughter in
Rwanda in the spring of 1994.71 This tragedy posed no legal issues about
UN intervention. It was, from the outset, a problem of international peace
and security. Following years of civil war, Tutsi rebels took refuge in
Uganda and Kenya. They were on the verge of making a push back into
Rwanda when the Hutu-controlled government decided to slaughter
67
S.C. Res. 740, paras. 2, 4, UN Doc. S/RES/740 (Jul. 31, 1994).
68
See Lucia Mouat, UN to Break New Ground in Plan for Peacekeepers in Somalia, Christian
Sci. Monitor, Mar. 16, 1993, at 2; Mark R. Hutchinson, Restoring Hope: U.N. Security Council
Resolutions for Somalia and an Expanded Doctrine of Humanitarian Intervention, 34 Harv.
Int’l L.J. 624, 626 1993).
69
S.C. Res. 740, paras. 2, 4, UN Doc. S/RES/740 (Jul. 31, 1994).
70
See, e.g., Michael J. Glennon, Sovereignty and Community after Haiti: Rethinking the Collective
Use of Force, 89 AJIL 70, 72 (1995).
71
For a detailed account, see Report of the Independent Inquiry into the Actions of the United
Nations during the 1994 Genocide in Rwanda, addressed to the President of the Security Council,
UN Doc. S/1999/1257 (Dec. 16, 1999), available at http://www.un.org/news/dh/latest/rwanda.htm.

anyone who might aid them when they arrived. It was not necessary to
even reach the question of whether outside intervention was lawful to stop
the door-to-door killing in Rwanda. Not only was it part of an international
conflict, but the UN was already in Rwanda policing a nonexistent ceasefire
between the Hutus and the Tutsis. Even if a real ceasefire had existed, the
size of the UN forces was inadequate. Rather than try to truly establish a
ceasefire or pull out altogether, providing some notice to people that they
had no UN-enforced ceasefire or protection, the UN stayed, lulling people
into a false sense of security. The Tutsi rebels succeeded despite—or perhaps
because of—the frenzy of killing within the country. Hutus then fled to
neighboring Zaire, and the Rwandan conflict spread to a third country.72
In the aftermath of Rwanda, scholars concluded that the UN may
lawfully intervene to stop genocidal killing even if that killing occurs only
within one state. Despite this new conclusion about the law, the Security
Council subsequently avoided intervening in largely internal conflicts
unless the elements of classic peacekeeping were in place, in particular
consent. Secretary-General Boutros-Ghali in his Supplement to “An
Agenda for Peace”73 advocated a return to traditional peacekeeping. These
developments can be explained by the fact that internal conflict is far more
complicated, in almost all cases, than transboundary aggression.74
Determining whose cause the UN should support—whose cause is worthy
enough for troops to die for—has been at the heart of the problem. Did
Security Council activism of the 1990s, nevertheless, have an impact on
the UN Charter? Although the 2005 World Summit Outcome document
makes clear that the Security Council may authorize the use of force in
serious human rights crises, the experience of the 1990s appears to have
led to a more cautious attitude about force. Generally, wide consent has
been sought post-2005, as in Congo, Sudan, East Timor, and Afghanistan.
72
See for a detailed account of the conflict in Congo and between Congo and Uganda, Case
Concerning Armed Activities on the Territory of the Congo (Congo v. Uganda), 2005 I.C.J.
available at http://www.icj-cij.org.
73
See The Secretary General, Supplement to An Agenda for Peace, UN Doc. S/1995/1 (Jan. 3,
1995).
74
See Ian Davidson, Not the Way to Do It: Military Intervention in Civil Wars is Unlikely to
Procure Peace, Fin. Times, Aug. 3, 1994, at 14; Adam Roberts, The Road to Hell . . . A Critique
of Humanitarian Intervention, Harv. Int’l Rev. Fall 1993, at 10. See also Michael O’Hanlon,
Using Force to Save Lives 4952 1997), listing the stringent criteria that should be met
before using military force for humanitarian purposes should be tried.

The 2005 World Summit Outcome was the final product of a two-
year review of the United Nations, including a complete review of the
Security Council begun in 2003 by a panel of experts convened by the
Secretary General.75 The panel’s final report largely supported the substan-
tive rules of the UN Charter on the use of force. It called for no changes to
the text or reinterpretation of Article 51. It endorsed the text and current
interpretations of Chapters VII and VIII.76 The panel also called for
expanding the size of the Security Council, which led to months of lively
discussion and debate with many proposals for new permanent members,
elimination of the veto, and the like. Finally, no structural changes could
be agreed, and at the 2005 World Summit, the UN Charter provisions on
the Security Council as agreed in 1945 were reconfirmed.
The discussion so far has concerned what the UN Charter says about
the Security Council. The UN Charter is silent about whether the Security
Council must obey general international law beyond the rules expressly
included in the Charter, such as international humanitarian law principles
on the use of armed force. Some scholars continue to contend that the
Security Council cannot be held to any standard in how it uses measures to
maintain or restore peace and security. During the long years of sanctions
against Iraq, however, a new argument grew up that the Security Council is
limited by general international law. In the case of armed force, the Security
Council is certainly restricted by the customary principles of international
humanitarian law: distinction, necessity, and proportionality.77
Michael Reisman argued in 1996 that the Security Council must
respect humanitarian restraint in the application of sanctions in Haiti. He
pointed out that “the wealthy elite and the military command were waxing
rich off the contraband industry the economic sanctions spawned. The
rest of the population, which had been deprived of its popularly elected
government and whom we were supposed to be helping, was, without
75
“The aim of the High-Level Panel is to recommend clear and practical measures for ensuring
effective collective action, based upon a rigorous analysis of future threats to peace and secu-
rity, an appraisal of the contribution that collective action can make, and a thorough assess-
ment of existing approaches, instruments and mechanisms, including the principal organs of
the United Nations.” High-level Panel, Terms of Reference, at http://www.un.org/News/dh/
hlpanel/terms-of-reference-re-hl-panel.pdf; see also Annual Report of the Secretary-General
on the Work of the Organization, UN GAOR, 58th Sess., UN Doc. A/58/1 (Aug. 26, 2003).
76
A More Secure World: Our Shared Responsibility, Report of the Secretary General’s
High-Level Panel on Threats, Challenges, and Change, 63–65, 78–79 (2004).
77
Frowein & Krisch, Article 42, supra note 33, at 753–54.

exaggeration, starving to death.”78 It was, however, the impact of UN sanc-

tions on Iraq that shifted the debate fully toward standards. John and Karl
Mueller, in their article, “Sanctions of Mass Destruction,” riveted attention
to the human tragedy accompanying Iraqi sanctions, sanctions which
were supposed to be an attractive alternative to the use of armed force:
“No one knows with any precision how many Iraqi civilians have died as a
result [of the sanctions], but various agencies of the United Nations . . .
have estimated that they have contributed to hundreds of thousands of
deaths.”79
Rather than abandoning sanctions in light of these accusations, the
Security Council sought to make them “smarter,” more targeted, with
more exceptions for humanitarian needs.80 The Secretary-General must
report on the humanitarian impact of sanctions now. He reported in
March 2001 that the sanctions on Afghanistan had by then had no adverse
humanitarian impact. The popular pressure against sanctions receded.
The international community apparently supported Security Council
measures of the type used against Afghanistan as well as those imposed on
the diamond trade in Liberia and the widespread measures adopted in the
aftermath of 9/11.81 This shift is meeting a standard of proportionality in
the application of sanctions.
Is the Security Council bound to meet a standard of proportionality
or any other standard in how it imposes sanctions or uses force? Some
international lawyers maintain that the Security Council is not legally
bound by any international law standards in the imposition of sanctions.
This position is founded on the view that nothing in the UN Charter
explicitly binds the Security Council to meet any general requirements of
international law and that in the maintenance of international peace and
78
W. Michael Reisman, Assessing the Lawfulness of Nonmilitary Enforcement: The Case of
Economic Sanctions, 89 ASIL Proc. 350, 350–351 (1995); see also Michael Reisman & Douglas
Stevick, The Applicability of International Law Standards United Nations Economic Sanctions
Programmes, 9 EJIL 86, 117–24 (1996).
79
John Mueller & Karl Mueller, Sanctions of Mass Destruction, 78 For. Aff., May/June 1999, at
43 (1999).
80
See, e.g., Press Release, Security Council, Speakers Call for Clear Definition, tighter Targeting
of UN Sanctions as Council Draws on “Lessons Learned” to Refine Sanctions Regime, UN
Doc. SC/6845 (Apr. 17, 2000). Britain and the United States pressed for more targeted sanc-
tions against Iraq in the summer of 2001. Ironically, the regime of Saddam Hussein preferred
the old sanctions to smart sanctions because cheating was easier. The old sanctions remained
in place until 2003.
81
S.C. Res. 1343, UN Doc S/RES/1343 (Mar. 7, 2001); S.C. Res. 1373, UN Doc. S/RES/1373
(Sept. 28, 2001).

security, the Security Council is particularly free to act. Yet, this position
would appear to contradict Article 24(2) of the UN Charter which pro-
vides that “[i]n discharging [its] duties the Security Council shall act in
accordance with the Purposes and Principles of the United Nations.” The
specific powers granted to the Security Council for the discharge of these
duties are laid down in Chapters VI, VII, VIII, and XII. Jost Delbrück,
relying on Hans Kelsen, interprets Article 24(2) as a requirement that the
Security Council conform with the UN Charter, not general international
law.82 Other supporters of the “no limits” position cite a statement of the
Secretary General, repeated in the ICJ advisory opinion on Namibia:
“[T]he Members of the United Nations have conferred upon the Security
Council powers commensurate with its responsibility for the maintenance
of peace and security. The only limitations are the fundamental principles
and purposes found in Chapter I of the Charter.”83 Chapter I, Article 1(1)
does refer to international law, stating that a purpose of the UN is “to
bring about by peaceful means, and in conformity with the principles of
justice and international law, adjustment or settlement of international
disputes.”84 Rüdiger Wolfrum contends that the reference to justice and
international law is only a reference to the basis of any peaceful settle-
ment, not how the Security Council conducts business. He also relates
that a proposal made in San Francisco to link the maintenance of interna-
tional peace and security to international law was rejected because it might
unduly hinder the work of the Security Council if it had to determine
international legality before responding to a breach of the peace.85
Members of the Security Council, however, never embraced the
view that general international law did not apply to their conduct. The
General Assembly also rejected the ICJ’s view that the Council need
not observe international law.86 Judge ad hoc Sir Elihu Lauterpact in
the Bosnia case said: “one only has to state the opposite proposition thus—
that a Security Council Resolution may even require participation in
82
Jost Delbrück, Article 24, supra note 26, at 442–52.
83
Legal Consequences for States of the Continued Presence of South Africa in Namibia,
Advisory Oppinion, 1971 I.C.J. 16, 52 (June 21).
84
UN Charter art. 1(1) (emphasis added).
85
Rüdiger Wolfrum, Article 1 supra note 26, at 52.
86
Peter Malanczuk, Akehurst’s Modern Introduction to International Law 3,
28–29 (7th ed. 1997).

genocide—for its unacceptability to be apparent.”87 Judge Christopher

Weeramantry expressed a similar view in the Lockerbie case: “The history
of the United Nations Charter thus corroborates the view that a clear lim-
itation on the plenitude of the Security Council’s powers is that those
powers must be exercised in accordance with the well-established princi-
ples of international law.”88 In the Reparations case, too, the Court empha-
sized that the UN has both rights and responsibilities beyond the specific
provisions of its Charter. It said rights and responsibilities would evolve
with time influenced by the UN’s “purposes and functions as specified or
implied in its constituent treaty developed in practice.”89 This assessment
leads Vera Gowlland-Debbas to conclude: “The application of these prin-
ciples today . . . could serve not to expand, but to constrain, the use of
these powers in certain situations. This is particularly relevant with respect
to the powers of the Council under chapter VII.”90
In 1999, the Secretary General accepted that humanitarian law obli-
gations apply to UN forces.91 No provision of the UN Charter requires the
Security Council to comply with humanitarian law standards when armed
force is used under UN auspices. Even before the explicit acknowledge-
ment, however, Dietrich Schindler never doubted that customary humani-
tarian law applied to the UN.92 Judith Gardam, too, argues that the Security
Council must respect the customary principles of international humanitar-
ian law, such as necessity and proportionality, both in the decision to
authorize force and in the way force is used when authorized.93 The inclu-
sion in Article 24 of the Security Council’s need to observe international
87
Application of the Convention on the Prevention and Punishment of Crime of Genocide
(Bos. & Herz. v. Yugo. (Serb. and Mont.)), 1993 I.C.J. 325, 440 (Sept. 13) (separate opinion of
Judge Lauterpacht).
88
Questions of Interpretation and Application of the 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114, 175 (Apr. 14) (dissenting
opinion of Judge Weeramantry)[hereinafter Lockerbie].
89
Lockerbie, at 180 (dissenting opinion of Judge Weeramantry).
90
Vera Gowlland-Debbas, The Relationship Between the International Court of Justice and
the Security Council in Light of the Lockerbie Case, 88 AJIL 643, 667 (1994) (internal citation
omitted).
91
Secretary-General’s Bulletin on Observance by the United Nations of International
Humanitarian Law, UN Doc. ST/SGB/1999/13, 6 August 1999.
92
Dietrich Schindler & Jiri Toman, The Law of Armed Conflict (1988).
93
Judith Gardam, Legal Restraints on Security Council Military Enforcement Action, 17 Mich. J.
Int’l L. 285, 318 (1996). See also Erika de Wet, The Chapter VII Powers of the Security
Council (2004).

law, mentioned in Chapter I of the Charter, could only be interpreted as

mandating Security Council commitment to humanitarian law.94
In authorizing the use of force, the Security Council is bound by the
UN Charter and rules of customary international law. In particular, it is
bound by the principles of necessity and proportionality. Necessity means
that the Security Council may only authorize force if it is probable that the
use of military force can accomplish a reasonable military objective.95
Proportionality prohibits that “which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a com-
bination thereof, which would be excessive in relation to concrete and
direct military advantage anticipated.”96
These general principles condition the legality of a resort to force.
In the Nicaragua case, decided in 1986, the ICJ said, “Even if the Untied
States activities in question had been carried on in strict compliance with
the canons of necessity and proportionality, they would not thereby
become lawful. If however they were not, this may constitute an additional
ground of wrongfulness.”97 Similarly, in 2003, the ICJ stated the following
regarding necessity and proportionality: “‘whether the response to the
[armed] attack is lawful depends on observance of the criteria of the
necessity and the proportionality of the measures taken in self-
defence.’”98
Whenever there is a decision to resort to force, the decision must be
consistent with the principles of necessity and proportionality. Lawful
armed force, today, is for the purpose of law enforcement. It is force
to counter a previous unlawful use of force or threat of unlawful force.
94
See also Case T-315/01, Kadi v. the Council and the Commission, 2005 E.C.R. II-03649.
95
Reisman & Stevick, supra note 78.
96
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protections of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, art. 51(5)
1125 UNTS 3 (1979). According to Gardam:
The legitimate resort to force under the United Nations system is regarded by most
commentators as restricted to the use of force in self-defense under Article 51 and
collective security action under chapter VII of the UN Charter. The resort to force in
both these situations is limited by the customary law requirement that it be propor-
tionate to the unlawful aggression that gave rise to the right. In the law of armed
conflict, the notion of proportionality is based on the fundamental principle that bel-
ligerents do not enjoy an unlimited choice of means to inflict damage on the enemy.
Judith Gail Gardam, Proportionality and Force in International Law, 87 AJIL 391, 391
(1993) (internal citations omitted).
97
Nicaragua, 1986 I.C.J. at 122.
98
Oil Platforms (Iran v. U.S.) 2003 I.C.J, at 161, 196, citing Nicaragua, at 196.

Lawful resort to force, today, can be compared to the force of the police
countering the force of the criminal. The exceptional uses of force that are
lawful, today, must arguably be as limited as possible. The limit of propor-
tionality must apply to the Security Council, just as to states
Roughly speaking, the proportionality principle requires that

the probable good consequences achieved by war should out-
weigh the probable harmful consequences caused by it. In
short, benefits should outweigh harms. . . . [W]hen we are not
reasonably certain that benefits outweigh harms, the principle
is not satisfied. . . . For with the aim of constraining war, just war
theories are (usually) based on a strong moral presumption
against war. To override this moral presumption, we have the
burden of proving that the just war principles are satisfied.99
The application of customary law to the Security Council’s use of

economic sanctions and other measures short of armed force is discussed
further in Chapter Seven, “Collective Countermeasures.” It will be argued
there that just as with the use of force, the Security Council is bound by
general law, certainly jus cogens norms and fundamental human rights
principles.
B. Other Organizations
The UN Charter did provide for other collective security organizations
besides the UN itself. The US and Latin American countries had already
organized during the Second World War for their mutual defense and
wished to keep their organization after the formation of the UN. For that
reason, Chapter VIII was formed, which will be discussed below. Before
any major debates respecting that chapter took place, however, North
Atlantic countries and the Soviet bloc founded their mutual defense
organizations: the North Atlantic Treaty Organization (NATO)100 and the
Warsaw Treaty Organization.101 Viewing Chapter VIII as too restrictive,
both organizations were based on Article 51’s reference to collective
99
John Longo, Preventive Wars, Just War Principles, and the United Nations, in Current
Debates in Global Justice, 247, 26364 (Gillian Brock & Darrel Moellendorf eds., 2005).
100
North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 870, 34 UNTS 243.
101
The Warsaw Treaty Organization was created by the Treaty of Friendship, Co-operation and
Mutual Assistance (the Warsaw Pact), May 14, 1955, 219 UNTS 3, 24.

self-defense. The original North Atlantic Treaty provided that NATO

would act in the collective self-defense of its members and for no other
purpose. In Article 5,
[t]he Parties agree that an armed attack against one or more of

them in Europe or North America shall be considered an
attack against them all and consequently they agree that, if
such an armed attack occurs, each of them, in exercise of the
right of individual or collective self-defense recognized in
Article 51 of the Charter of the United Nations, will assist the
Party or Parties so attacked by taking forthwith, individually,
and in concert with the other Parties, such action as it deems
necessary, including the use of armed force, to restore and
maintain the security of the North Atlantic area.
Any such armed attack and all measures taken as a result
thereof shall immediately be reported to the Security Council.
Such measures shall be terminated when the Security Council
has taken the measures necessary to restore and maintain
international peace and security.102
Being formed on the basis of Article 51 and not Chapter VIII was also
believed to free both organizations from the requirement of Chapter VIII’s
Article 54 that “[t]he Security Council shall at all times be kept fully
informed of activities undertaken or in contemplation under regional
arrangements or by regional agencies for the maintenance of international
peace and security.”103
Neither NATO nor Warsaw ever took action on the basis of collec-
tive self-defense. Indeed, few claims of collective self-defense have been
made at all. In the 1980s, the Organization of Eastern Caribbean States
(OECS) recommended that its members (plus the United States) organize
a force to invade Grenada. The OECS was founded to be a general coop-
eration organization. Article 8(4) of its constituent instrument provided
102
North Atlantic Treaty, art. 5.
103
UN Charter art. 54.

for collective self-defense in the face of external aggression.104 John Norton

Moore argued that the use of force by the OECS members on the island of
Grenada was a permissible exercise of collective self-defense.105 No
Security Council authorization was sought,106 however, nor was the force
used aimed at an aggressor external to the OECS, but rather at one of its
own members. The action was condemned as unlawful in the UN General
Assembly by a vote of 108 to 9, with 27 abstentions. The United States
vetoed a UN Security Council resolution finding the invasion in violation
of international law.107
The UN Charter’s actual provisions for other collective security
organizations in Chapter VIII was a compromise between two visions of
the post Second World War security system. One view, favored by US
President Franklin D. Roosevelt, preferred a universal organization for
security; the other, favored by British Prime Minister Winston Churchill,
a regional one.108 The Chapter VIII compromise permits regional security
arrangements but subjects them to the authority of the Security Council.
Latin American states were responsible for the inclusion of Chapter VIII
at the San Francisco Conference. The Latin Americans had already laid
the groundwork for the Organization of American States (OAS)109 and
the Rio Treaty110 before San Francisco and were determined to preserve
their efforts. The resulting Chapter VIII consists of three Articles, 52–54.
Article 54, the reporting requirement, was referenced above. Article 53(1)
provides that:
104
Treaty Establishing the Organization of Eastern Caribbean States, June 18, 1981, 20 ILM
1166. Article 8(4) of its constituent instrument states:
The Defence and Security Committee shall have responsibility for coordinating the
efforts of Member States for collective defence and the preservation of peace and secu-
rity against external aggression and for the development of close ties among the Member
States of the Organisation in matters of external defence and security, including
measures to combat the activities of mercenaries, operating with or without the support
of internal or national elements, in the exercise of the inherent right of individual or
collective self-defence recognised by Article 51 of the Charter of the United Nations.
105
John Norton Moore, Law and the Grenada Mission 47 (1984).
106
John Quigley, The United States Invasion of Grenada: Stranger than Fiction, 18 U. Miami
Inter-Am. L. Rev. 271, 330–37 (1986/87).
107
G.A. Res. 38/7, UN Doc. A/38/7 (Nov. 2, 1983); Richard Bernstein, U.N. Assembly Adopts
Measure, ‘Deeply Deploring’ Invasion of Isle, N.Y. Times, Nov. 3, 1983, at A21.
108
Hilaire McCoubrey & Nigel D. White, International Organizations and Civil
Wars 45 (1995); Michael Akehurst, Enforcement Action by Regional Agencies, with Special
Reference to the Organization of American States, 42 Brit. Y.B. Int’l L. 175 (1967).
109
Charter of the Organization of American States, 1948, 119 UNTS 48, 25 ILM 527 (1985).
110
Inter-American Treaty on Reciprocal Assistance, Setp. 2, 1947, 2 UNTS 78 (1975).

The Security Council shall, where appropriate, utilize such

regional arrangements or agencies for enforcement action
under its authority. But no enforcement action shall be taken
under regional arrangements or by regional agencies without
the authorization of the Security Council. . . .111
The OAS, the Organization for Security and Cooperation in Europe

(OSCE), and the Commonwealth of Independent States (CIS) are all
acknowledged to be Chapter VIII organizations.112
The charter of the OAS expressly states that the organization is a
regional agency, within the meaning of the charter.113 Nevertheless, in the
case of the Cuban Missile Crisis, the OAS did not strictly follow the
requirements of Chapter VIII. The US wanted to use a particular means of
force, a naval embargo, to prevent the delivery of missiles by the Soviet
Union to Cuba, but it did not wish to characterize the embargo, which it
called a “quarantine,” as an act of self-defense. If it had, it could have been
a dangerous precedent in the future. Instead, the US went to its Rio Treaty
partners and organized a collective effort, with OAS authorization. The
US did not request Security Council authorization, knowing the Soviets
would veto it; instead, the US merely informed the Security Council.114 As
long as a multilateral organization was involved, the acting US legal adviser
argued, the basic values of the UN Charter were not violated.115 Quincy
Wright and others, however, criticized the quarantine and the attempt to
use the OAS to evade the Security Council.116 The OAS has not attempted
to authorize enforcement action since then.
111
112
See Englebert Theuermann, Regionale Friedenssicherung im Lichter von Kapitel VIII der
Satzung der Vereinten Nationen: Juristische und Politisiche Probleme in Blauhelme in Einer
Turbulenten Welt 245 (Winrich Kühne ed., 1993).
Some CIS members also formed a mutual defense treaty, the Tashkent Agreement. The
Tashkent Agreement is described in Vasili Kononenko, Heads of Government Grapple Over
CIS Charter in Attempt to Salvage Commonwealth, Russian Press Dig. (Nov. 13, 1992). The
CIS engaged in peacekeeping missions in the civil wars in Georgia, Moldova, and Tajikistan
in the early 1990s—all on the basis of consent, rather than Article 51 self-defense. See also
Pavel Baev, Peacekeeping and Conflict Management in Eurasia, in Security Dilemmas in
Russia and Eurasia  (Roy Allison & Christopher Bluth eds., 1997).
113
Charter of the Organization of American States art. 1.
114
Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of
Law 15–17 (1974).
115
Leonard C. Meeker, Defensive Quarantine and the Law, 57 AJIL 515 (1963).
116
Quincy Wright, The Cuban Quarantine, 57 AJIL 546, 557–59 (1963).

Like the OAS, the Conference on Security and Cooperation in

Europe declared itself a regional arrangement in its 1992 Helsinki Summit
Declaration.117 On becoming the Organization for Security and
Cooperation in Europe, no change to this status was made.118 The OSCE
has not, to date, directly undertaken enforcement action, though troops
from eight European nations acted in conjunction with the OSCE in
Operation Alba to restore order in Albania in 1997.119 The states involved
in Alba requested and were given authority to take enforcement action.120
The Security Council referenced Chapter VII, however, not Chapter VIII
of the UN Charter in Resolution 1101, perhaps because Operation Alba
was not fully an OSCE operation. The resolution cites threats to interna-
tional peace and security, which is the required finding per Chapter VII
prerequisite to troops being authorized to use enforcement action.
In the mid 1990s, the CIS became involved in several nonenforce-
ment or peacekeeping actions. A CIS document, the Concept on Preventing
and Settling Conflicts on the Territory of Commonwealth Member-
Nations, requires that “force shall be permitted in the settlement of con-
flicts only on the appropriate authority from the UN Security Council.”121
Missions in Georgia, Tajikistan, and Moldova were classified as “peace-
keeping,” not peace enforcement, and, therefore, required no authoriza-
tion.122 The Security Council has commented positively on the missions in
Georgia and Tajikistan in various resolutions.123
117
Helsinki Summit Declaration, July 10, 1992, para. 25, 31 ILM 1389.
118
See Andrea Gioia, The United Nations and Regional Organizations in the Maintenance of
Peace and Security 191, 204 in The OSCE in the Maintenance of International Peace
and Security, Conflict Prevention, Crisis Management and Peaceful Settlement
in Disputes (Michael Bothe et al. eds., 1997).
119
“Under a UN mandate, and with the support of the OSCE, troops from eight European
nations this year participated in Operation ‘Alba,’ the Italian-led humanitarian protection
operation in Albania.” Jane’s Navy Int’l 32 (1 Sept. 1997). Mike O’Connor, Foreign Troops
Protect Albania, But From What?, N.Y. Times, Apr. 21, 1997, at A8; Jane Perlez, Italy’s Troops
in Albania Are Treading on Thin Ice, N.Y. Times, Apr. 25, 1997, at A3.
120
S.C. Res. 1101 UN Doc. S/RES/1101 (Mar. 28, 1997).
121
See Bakhityar Tuzmukhamedov, Peacekeeping/Peacemaking Russia/CIS, Moscow Segodnya,
Feb. 23, 1996, at 9.
122
For the distinction between peacekeeping and peace enforcement, see An Agenda for Peace:
Preventive Diplomacy, Peacemaking and Peacekeeping, UN Doc. S/2411A-1/47/277 (Jan. 31,
1992) [hereinafter An Agenda for Peace]; Bothe, supra note 118, at 565–603; White, supra
note, at 166–67 (1990).
123
See, e.g., S.C. Res. 1036, UN Doc. S/RES/1036 (Jan. 12, 1996) (The Security Council expressed
its satisfaction with the “close cooperation and coordination between UNOMIG [the United
Nations Observer Mission in Georgia] and the CIS peace-keeping force . . . commending the
contribution both have made to stabilize the situation in the zone of conflict. . . .” Id. at pmbl.

Two other organizations have reported to the UN from time to time

on their activities. The Organization of African Unity did not have the
same security apparatus as the OAS but has been treated by the Security
Council as a regional agency. Its successor organization, the African
Union, does have a security apparatus and has undertaken a major peace-
keeping effort in Sudan.124 Similarly, the League of Arab States has been
treated as a regional agency.
The Economic Community of West African States (ECOWAS) was
founded as an economic cooperation organization. It had not declared
itself a Chapter VIII organization prior to the summer of 1990, when it
announced that it was sending a peacekeeping mission to Liberia.
ECOWAS emphasized the peacekeeping nature of the mission, naming it
the ECOWAS Cease-fire Monitoring Group (ECOMOG). Despite the
name, there was no ceasefire when the force deployed in August 1990.
Nevertheless, the Security Council did not react to ECOWAS until July
1991, when it praised the effort.125 It then approved the action citing
Chapter VIII. ECOWAS’s subsequent intervention in Sierra Leone was
also approved under Chapter VIII.126
Given this history, one would expect that for any use of force other
than collective self-defense, the Security Council would have authorized
NATO enforcement action under Chapter VIII, not Chapter VII. And,
indeed, the first two active missions ever undertaken by NATO might well
have been authorized under Chapter VIII—frankly, it is difficult to tell.
In 1992, the Security Council adopted Resolution 781, which declared
no-fly zones over Bosnia-Herzegovina and called “upon States to take
nationally or through regional agencies or arrangements all measures
necessary to provide assistance to the United Nations Protection Force. . . .”127
Cf. S.C. Rec. 1089, UN Doc. S/RES/1089 (Dec. 13, 1996) (Tajikistan). The OSCE, rather than
the UN has been active in Moldova. Apparently, the Security Council has not commented on
CIS peacekeeping there.
124
On the African Union’s security apparatus, see Jeremy I. Levitt, The Peace and Security Council
of the African Union: The Known Unknowns, 13 Trans. L. & Cont. Probs. 110 2003.
125
David Wippman, Enforcing the Peace: ECOWAS and the Liberian Civil War, in Enforcing
Restraint supra note 64, at 157, 185–86.
126
Approval is used here advisedly. The word authorization is not intended because in both cases
the Security Council did not issue resolutions until after the operations were underway. See
Karl P. Magyar & Earl Conteh-Morgan, Peacekeeping in Africa, ECOMOG in
Liberia (1998); Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore
Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14
Am. U. Int’l L. Rev. 321, 357 (1998).
127
S.C. Res. 781, UN Doc. S/RES/781 (Oct. 9, 1992).

The reference to “regional agencies or arrangements” is from Chapter VIII

and NATO took part in policing the no-fly zones.128 NATO’s next opera-
tion was to help enforce the embargo of Yugoslavia. This was authorized
in Resolution 787. Particularly noteworthy is paragraph 12, in which the
Security Council,
[a]cting under Chapters VII and VIII of the Charter of the

United Nations, calls upon States, acting nationally or through
regional agencies or arrangements, to use such measures com-
mensurate with the specific circumstances as may be neces-
sary under the authority of the Security Council to halt all
inward and outward maritime shipping. . . .129
Based on these two resolutions, it might have been possible to con-

clude that NATO was acting under Chapter VIII. When the Security
Council authorized NATO participation in the implementation and stabi-
lization forces in Bosnia-Herzegovina, however, the Security Council
referred only to Chapter VII.130 From then on, it was clear that the Security
Council would not treat NATO as a Chapter VIII organization. When
NATO organized the Implementation Force (IFOR) for Bosnia, the
Security Council worded its authorization not as permission to undertake
enforcement action per Chapter VIII, but as a call to NATO to participate
in a Security Council force. Arguably, any enforcement action by a regional
organization that was the organization’s own initiative would have to cite
Chapter VIII. On the other hand, the simple device of calling an action a
Security Council call for troops would lead to Chapter VII and obviate the
reporting requirement of Article 54.
Authorizing action under Chapter VII which should more appro-
priately be authorized under Chapter VIII is not unlike the Security
Council’s practice of authorizing force under Chapter VII without greater
specification among that chapter’s various articles (39–51). Article 39 con-
fers on the Security Council the responsibility to “determine the existence
128
See, e.g., Resumption of Aid Convoys to East Bosnian Town Vowed, Wash. Post, Apr. 2, 1993,
at A18.
129
S.C. Res. 787, para. 12, UN Doc. S/RES/787 (Nov. 16, 1992).
130
S.C. Res. 1031, UN Doc. S/RES/1031 (Dec. 15, 1995) S.C. Res. 1244, UN Doc. S/RES/1244
(June 10, 1999) (Kosovo); S.C. Res. 1510, UN Doc. S/RES/1510 (Oct. 13, 2003)
(Afghanistan).

of any threat to the peace, breach of the peace or act of aggression.” The
Security Council then “shall make recommendations or decide what
measures shall be taken in accordance with Articles 41 and 42, to main-
tain or restore international peace and security.” Articles 43 to 49 concern
the modalities of taking such measures, especially the establishment of a
military staff committee and agreements with member states for troops to
be made available to the UN.
In November 1990, the Security Council authorized a coalition of
willing states to take enforcement action against Iraq. Resolution 678
called on these states to use “all necessary means” to liberate Kuwait from
Iraqi aggression.131 The resolution states that the Security Council was
acting under Chapter VII of the UN Charter, though it does not state
which provision. Article 51 of Chapter VII fit the situation and perhaps
made most sense.132 Iraq had invaded Kuwait, thus Kuwait could respond
in individual or collective self-defense. The Security Council could take
over the defense of a victim state, like Kuwait, but, presumably, if it did so
and sent or authorized troops, it would be acting under Article 42. Yet to
act under Article 42, it was still thought the Security Council might need
agreements with states for providing troops, and the UN would need to be
in command, as contemplated in Article 43.133 Operation Desert Storm
was under US command. The Security Council simply avoided the obvi-
ous questions by citing only Chapter VII but no specific article. Following
the Gulf War, the Security Council used the same formulation of calling
on states to use all necessary means in authorizing operations not involv-
ing collective self-defense and without Article 43 agreements. These
authorizations have not been criticized by the international community
but generally welcomed. Nor was this practice of vaguely referring to
Chapter VII the first innovation by the UN in the area of peace and
security—that was the development of peacekeeping.134 And, as with
131
S.C. Res. 678, UN Doc. S/RES/678 (Nov. 29, 1990).
132
Iraq had invaded Kuwait which could respond in self-defense and collective self-defense, per
Article 51. No Security Council authorization is required under Article 51, but once the
Security Council took over the defense, it could authorize action by resolutions. But see Oscar
Schachter, United Nations Law in the Gulf Conflict, 85 AJIL 452, 459 (1991).
133
Article 43(1) provides that “All Members of the United Nations, in order to contribute to the
maintenance of international peace and security, undertake to make available to the Security
Council, on its call and in accordance with a special agreement or agreements, armed forces,
assistance and facilities. . . .” UN Charter art. 43.
134
Carl-August Fleischhauer, Remarks, 85 ASIL Proc. 429 (1991); see also supra note 49, and
accompanying text.

peacekeeping, the international community reflected the consensus that

the Security Council should be active after the long dormancy of the Cold
War. One heard little or no criticism when the Security Council author-
ized missions by only generally citing Chapter VII. Similarly, despite the
facial applicability of Chapter VIII to the tasks of regional security arrange-
ments beyond collective self-defense, shifting to authorization under
Chapter VII has passed without much notice.135
To the extent that the international community has not expressed
significant opposition regarding the Security Council’s conduct, there is
likely no need for concern.136 The Secretary General’s review of the UN,
including the Security Council, and the resulting World Summit Outcome
indicates broad acceptance of current peacekeeping and peace enforce-
ment practice. Today, it would appear that the Security Council can
authorize peacekeeping and coalitions of willing forces, even regional
organizations, under Chapter VII, without precise textual authority.
The Security Council’s move to Chapter VII authorization eased the
way for NATO in its evolution to taking on new tasks. NATO can claim to
remain an Article 51 organization that can legally answer the call of the
Security Council without becoming a Chapter VIII organization. Similarly,
in the 1992 Agenda for Peace, which contemplates the use of regional
organizations for the expanded work of the UN in the field of peace and
security, the Secretary General wrote, “[b]ut no enforcement action shall
be taken under regional arrangements or by regional agencies without the
authorization of the Security Council.”137 The Secretary General did not
specify that Chapter VIII must be the basis of the authorization and appar-
ently under the current practice of the Security Council, it could be
Chapter VII or VIII. He stressed, however, that for an international organ-
ization to use force not in collective self-defense, Security Council author-
ization was required. Finally, if NATO or any other regional security
organization receiving authorization to use force, would still have to meet
humanitarian law requirements, in particular the use of force would have
to be effective for the purpose and proportionate.
135
Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to
Use Force, Ceasefires and the Iraqi Inspection Regime, 93 AJIL 124 (1999).
136
See Ian Brownlie, The Decisions of Political Organs of the United Nations and the Rule of Law,
in Essays in Honour of Wang Tieya 91, 100–02 (Ronald St. John Macdonald ed., 1994);
W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 96 (1993).
137
An Agenda for Peace, supra note 122.

Some scholars, especially in the United States, have argued for a

right by regional or collective security organizations to take offensive mil-
itary action without Security Council authorization to protect human
rights.138 During NATO’s use of force in Yugoslavia, Alan Gerson and
Anthony Clark Arend, for example, suggested that the right of humanitar-
ian intervention might extend to international organizations.139 As dis-
cussed in the previous chapter, however, there is little evidence of a right
of unilateral humanitarian intervention; there is equally little evidence of
an organization’s right to intervene, nor is any new authority provided in
the World Summit Outcome document.140
NATO’s unauthorized use of force during the Kosovo crisis did lead
to intense discussions of alternatives to Security Council authorization.
The Swedish government commissioned an independent commission to
look into NATO’s use of force. The commission, chaired by Richard
Goldstone, produced a report that most memorably found the use of force
against Yugoslavia had been unlawful but was nevertheless still “legiti-
mate.”141 Soon after, the Canadian government established the International
Commission on Intervention and State Sovereignty (ICISS) to study the
existence of a “responsibility to protect”. The ICISS Report led to the idea
known today as “R2P”.
For the most part, however, the ICISS Report reinforces existing
international law, especially states’ human rights obligations, but it does
include a significant departure from the UN Charter in the following
passage:
E. If the Security Council rejects a proposal or fails to deal

with it in a reasonable time, alternative options are:
I. consideration of the matter by the General Assembly in
Emergency Special Session under the “Uniting for Peace”
procedure; and
138
See, e.g., Fernando R. Tesón, Humanitarian Intervention: An Inquiry into Law and
Morality ch. 10 (3d ed. 2005); Anthony Clark Arend & Robert J. Beck, International
Law and the Use of Force: Beyond the UN Charter Paradigm – (1993).
139
John Diamond, On Shaky Ground/No Diplomatic Charter Justifies NATO Air Assaults, Scholars
Say, Hous. Chron., Mar. 28, 1999 at 1.
140
World Summit Outcome para. 170.
141
Independent International Commission on Kosovo: The Kosovo Report, Oct. 25, 2000,
available at http://www.reliefweb.int/library/documents/thekosovoreport.htm.

II. action within area of jurisdiction by regional or sub-

regional organizations under Chapter VIII of the Charter,
subject to their seeking subsequent authorization from the
Security Council.142
Had this been the rule in place during Kosovo, it might have pro-
vided a legal basis for the use of force. But given that human rights moni-
tors were mitigating violence against Kosovo Albanians, the situation may
not have met the atrocity parameters of the ICISS report.143 A great deal
of attention was devoted to the R2P concept after the ICISS report was
published. It encouraged a proposal by Anne-Marie Slaughter and Lee
Feinstein to bypass the Security Council in decisions to use force in re-
spect of arms control and possibly other issues.
We propose a corollary principle [to R2P] in the field of global

security: a collective “duty to prevent” nations run by rulers
without internal checks on their power from acquiring or
using WMD.
...
Given the Security Council’s propensity for paralysis, alterna-
tive means of enforcement must be considered. The second
most legitimate enforcer is the regional organization that is
most likely to be affected by the emerging threat. After that,
the next best option would be another regional organization,
such as NATO, with a less direct connection to the targeted
state but with a sufficiently broad membership to permit seri-
ous deliberation over the exercise of a collective duty. It is only
after these options are tried in good faith that unilateral action
or coalitions of the willing should be considered.144
142
International Commission on Intervention and State Sovereignty, The
Responsibility to Protect XIII (2001) (emphasis added).
143
Is NATO Crossing the Line? ABC News Chat with International Law Professor Hurst Hannum,
(on file with author). See also Peter Worthington, The Hoax that Started the War, Toronto
Sun, April 1, 2001, at C6.
144
Lee Feinstein & Anne-Marie Slaughter, A Duty to Prevent, 83 Foreign Aff., Jan./Feb. 2004,
at 136, 137, 148–49.)

The authors do not explain how the authority of the Security

Council or the UN Charter itself can be maintained under their plan.
Others, for example, Michael Glennon, simply proposed new organiza-
tions to replace the Security Council to authorize force. NATO, for exam-
ple, should be a self-authorizing body.145 US Undersecretary of State John
Bolton argued that coalitions of the willing in the summer of 2003 had the
legal right to “self-authorize” in the US-led “global war on terror.” NATO,
however, split during the Iraq invasion and proposals for Security Council
bypass faded with the mounting casualties. The Security Council process
appeared to many to have been vindicated when it became evident that
the advice of Security Council members to give UN weapons inspectors in
Iraq more time had been right.
The US-led invasion of Iraq in March 2003 seemed to lead to a new,
general antiwar sentiment throughout the world and the interest in war
for humanitarian and purposes seemed to wane with the rising toll of
deaths, injury, and destruction. The UN Secretary General’s High Level
Panel on United Nations Reform, reporting in November 2004,146 and the
Secretary General’s own report of September 2005,147 both included refer-
ences to R2P but reaffirmed the prohibition on the use of force without
prior Security Council authorization except in the case of an armed attack.
That restatement of the UN Charter is reflected even more emphatically in
the 2005 World Summit Outcome.
Despite pressure since the founding of the United Nations to reform,
bypass, or eliminate the Security Council, it remains the one body with
legal authority to authorize the use of force in situations other than self-
defense. The Security Council has a powerful mandate to maintain and
restore international peace and security. In recent years the understanding
of “peace” has been expanded to include the right to respond to serious
human rights violations. The Security Council has the authority to call
on member states to carry out that mandate. In any authorization of force,
145
Michael J. Glennon, The New Interventionism: The Search for a Just International Law, Foreign
Aff., May/June 1999, at 2.
146
See The Secretary-General’s High-level Panel on Threats, Challenges and Change, A More
Secure World: Our Shared Responsibility, UN GAOR, 59th Sess., Supp. No. 565, UN Doc. A/59
(2004), available at http://www.un.org/secureworld/.
147
The Secretary-General, In Larger Freedom, Pt. III, UN Doc. A/59/2005 (Mar. 19, 2005) avail-
able at http://www.un.org/largerfreedom/resources.html.

the Security Council is bound by the law of the UN Charter as well

as general international law, including the general principles of necessity
and proportionality. It must respect jus cogens norms, other fundamental
human rights, and principles of humanitarian law. Other organizations—
such as the AU or NATO have capacities to use force as do ad hoc coali-
tions. That capacity is not as extensive as the Security Council in the
interest of limiting the use of force. There continues, rightly, to be wide-
spread interest in seeing reform of the Security Council. The most imme-
diately achievable—and perhaps most important reform—is to develop
greater clarity regarding the international law applicable to Security
Council action. Not only the Charter but general rules of international law
limit the right to use force. Other means are available for enforcement and
are the topic of the next four chapters.

Chapter 6
Unilateral
Countermeasures
I n February 1995, a Canadian navy vessel fired across the bow of a privately
owned Spanish fishing vessel on the high seas to prevent overfishing of
Greenland halibut. When Spain then brought a case against Canada to the
International Court of Justice (ICJ), it complained about Canada’s “measures
of coercion and the exercise of jurisdiction over [the Estai] and over its cap-
tain.” Spain also claimed that Canada’s actions violated Article 2(4) of the
United Nations Charter (the UN Charter or the Charter) among other treaties
and customary international law obligations.1 Shooting across a ship’s bow,
however, is not a violation of Article 2(4). It is a “measure of coercion”—a
countermeasure. States and international organizations may use counter-
measures in response to violations of international legal obligations. Canada
did not defend its action as a lawful countermeasure, however, because
although the Spanish were engaged in fishing beyond the quota assigned
to them by the North Atlantic Fisheries Organization, the quota was not
binding. It could not give rise to Canada’s enforcement measure.
1
Fisheries Jurisdiction (Spain v. Can.), 1995 I.C.J. 432, 437, 465 (Dec. 4).

Before the adoption of the UN Charter in 1945, forceful measures

short of war in response to a prior law violation were called reprisals.2
With the prohibition on the use of armed force for general law enforce-
ment purposes, a new category emerged: “peaceful” coercive measures,
measures that were forceful or coercive but were not prohibited by the UN
Charter’s Article 2(4).3 Armed measures moved into one legal category
and peaceful measures into another. Peaceful measures tended to further
subdivide into unilateral and collective measures. Both types of measures
are commonly referred to as sanctions.4 Among international lawyers,
however, the term countermeasure is increasingly used to refer to unilateral
measures, leaving the term sanctions for collective measures, the subject
of Chapter Seven, “Collective Countermeasures.”
As discussed in Part I, “Enforcement Theory,” self-judging, self-help
coercive measures are a concern in any legal system. Among law’s most
important purposes is the control of force, the subjection of force to legal
authority. Still, it would be inaccurate to say that national law has no self-
help enforcement. The law of contracts, for example, has significant aspects
of self-enforcement. If one party to a contract does not perform, it is gen-
erally the case that the other party may withhold her own performance in
response. International law has a similar principle in the law of treaties,
but states and international organizations may go further by applying eco-
nomic sanctions, or withdrawing rights, such as fishing rights or over-
flight rights, and imposing similar wrongs in response to prior wrongs.
Countermeasures may play a larger role in international law enforcement
than in domestic law, but, as with domestic enforcement measures, coun-
termeasures are subject to restrictive conditions under international law,
including the growing requirement to enter into dispute resolution prior
to the application of countermeasures.
2
Oscar Schachter, International Law in Theory and Practice 184–86 (1995).
Retorsions were and are measures that could be used regardless of a prior law violation—
generally unfriendly, but not unlawful. Retorsions have few if any restrictions on their use and
so require no further legal analysis here, in contrast to countermeasures, which are restricted.
3
For the scope of Article 2(4)’s prohibition on the use of force—armed force involving more
than de minimis uses, see supra ch. 4.
4
Economic measures the US regularly uses such as those against North Korean nuclear prolif-
eration or Libya for the downing of a passenger plane over Lockerbie, Scotland, are consist-
ently called sanctions. Collective measures are also commonly called sanctions, for example,
the collective measures the UN used against Iraq that grabbed headlines for over twelve years
(1990–2003).

Unilateral Countermeasures
Most important, the World Trade Organization’s (WTO’s) Dispute

Settlement Understanding (DSU) provides for countermeasures only as a
means of enforcing decisions of the Dispute Settlement Body (DSB).5
Because the WTO potentially affects most unilateral economic counter-
measures, its limitation on the use of countermeasures is significant.6
Outside the framework of an organization like the WTO or a treaty limit-
ing the use of countermeasures, countermeasures remain self-help mea-
sures, allowing self-judging in the first instance on whether they will be
used. In other words, no general requirement of dispute settlement or
resort to a third party yet exists for the use of countermeasures. Examples
of such self-help countermeasures are many and varied: Britain froze
Albanian monetary gold in the Bank of England following Albania’s fail-
ure to honor an ICJ award of compensation to Britain;7 France and Britain
froze Egyptian assets following the nationalization of the Suez Canal;8
Ghana froze French assets following French nuclear testing in Algeria;9
the United States froze Bulgarian, Hungarian, Polish, and Romanian assets
for nationalizing American property;10 Mexico withheld payment of an
5
Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 ILM 1144; Under-
standing on Rules and Procedures Governing the Settlement of Disputes (Annex 2 to the WTO
Agreement), id. at 1226, 1228–29. See also, Joost Pauwelyn, Enforcement and Countermeasures in
the WTO: Rules are Rules—Toward a More Collective Approach, 94 AJIL 335 (2000).
Charnovitz prefers the term sanction to countermeasure for most retaliatory actions by
WTO members because they require prior authorization: “[I]n recent years, in both the
United Nations Security Council and the WTO, the term ‘sanction’ has been employed to
describe a coercive act authorized by the international community in response to a breach of
an obligation by a scofflaw state.” Steve Charonvitz, Rethinking WTO Trade Sanctions, 95 AJIL
792, 794 (2001). Although this makes sense, by now the term countermeasure, especially in
the WTO context, has caught on.
6
The United Nations Security Council may order sanctions that override WTO restrictions.
See infra ch. 7.
7
Richard Norton-Taylor, Bank Returns Looted Nazi Gold to Albania, Guardian (London),
Oct. 30, 1996.
8
France and Britain blocked Egyptian assets in their jurisdictions following the nationalizing
of the Suez Canal. Christian Tomuschat, Repressalie und Retorsion zu einigen Aspekten ihrer
innerstaatlichen Durchfuehrung, 33 ZaöRV 179, 186 (1973).
9
Keesing’s Contemporary Archives, 17,280.
10
8 Whiteman’s Digest of International Law 1126–28 (Marjorie Whiteman ed., 1967).
The well-known sanctions by the US against Cuba for the nationalization of American prop-
erty in that country do not fall under the topic of this chapter. The US sanctions did not
involve any unlawful action such as terminating contracts or freezing assets. The first action
the US took was to reduce the quota of sugar purchases it made from Cuba. This was a dis-
cretionary action, as were subsequent actions to prohibit travel to Cuba and trade with Cuba
by Americans. See Proclamation No. 3355, 25 Fed. Reg. 6414 (Jul. 8 1960) (Eisenhower
reduced the Cuban sugar quota from 739,752 tons to 39,752 tons.) Foreign Assistance Act of

arbitral award to the United States (US) when the US refused to honor an
award in favor of Mexico in a prior arbitration;11 the US and European
countries froze Iranian assets after students took Americans hostage in
the US embassy in Teheran;12 France, Great Britain, and the US froze Iraqi
assets when Iraq invaded Kuwait;13 South Pacific Island nations seized
fishing vessels for illegal fishing;14 Canada imposed fees on American fish-
ermen when the US failed to honor bilateral conservation agreements.15
The US, Russia, and the European Union (EU) imposed sanctions on
Yugoslavia for human rights violations against Kosovo’s Albanians.16
As these examples suggest, states regularly use countermeasures for
coercing compliance with legal obligations. As measures of self-help, they
can be applied quickly and flexibly to almost any violation. The UN and
other organizations frequently resort to sanctions for the same reasons. In
addition to their ease of use, collective measures were seen in the 1990s as
important means of exacting accountability—more humane than armed
force but more serious than diplomatic protest. Yet, the sanctions against
Iraq, and to some extent those against Haiti and Afghanistan, raised the
issue of just how humane sanctions are and whether they should be per-
mitted at all as a tool of law enforcement. Despite the controversy, states
and organizations are not relinquishing the use of sanctions or counter-
measures. Moreover, the law governing their use is better understood all
of the time, including the need to coordinate with the law of human rights.
The United Nations International Law Commission’s Responsibility of
States for Internationally Wrongful Acts (Articles on State Responsibility)17
1961, 22 U.S.C. § 2370(a) (2008); Cuban Solidarity Act of 1992, 22 U.S.C. §§ 6001–10 (2008)
(trade embargo acts).
11
Philip C. Jessup, El Chamizal, 67AJIL 423, 440 (1973).
12
Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980
I.C.J. 3, 17-18; 13/4 Bull. Eur. Communities 20– 26 (1980).
13
Clyde H. Farnsworth, Bush, in Freezing Assets, Bars $30 Billion to Hussein, N.Y. Times, Aug. 3,
1990, at A9; Alan Riding, West Europeans Join U.S. in Condemning Invasion, N.Y. Times, Aug.
3, 1990, at A10. “France also followed Washington’s example in freezing Iraqi assets. . . .” Id.
14
Helen O’Neil, Pacific Row Brews over Fishing Rights, Sydney Morning Herald, Nov. 16,
1988, at 13.
15
Colin B. Picker, Fishing for Answers in Canada’s Inside Passage: Exploring the Use of the
Transit Fee as a Countermeasure, 21 Yale J. Int’l L. 349, 382 (1996).
16
See EU Agrees to Arms Embargo, Sanctions, Against Yugoslavia, Stars and Stripes, 22 Mar.
1998, at 18. (On file with the author).
17
International Law Commission, Responsibility of States for Internationally Wrongful Acts art.
22, G.A. Res. 56/83, UN Doc. A/RES/56/83 (Jan. 28, 2002) [hereinafter Articles on State
Responsibility]. See also, James Crawford, The International Law Commission’s
Articles on State Responsibility: Introduction, Text and Commentaries (2002).

have raised the visibility of the basic rules governing the use of counter-
measures, as have decisions of the ICJ,18 arbitral awards,19 and decisions of
the WTO Dispute Settlement Body.20 After a further discussion of the
nature of countermeasures in section one below, section two looks at the
law of countermeasures.
I. Reprisals become Countermeasures

In the 1928 Naulilaa case between Portugal and Germany, discussed in
Chapter Four, the classic definition of reprisal was restated by a Swiss
arbitral panel,
reprisals are an act of self-help (Selbsthilfehandlung) on the

part of the injured state, an act corresponding after an unsatis-
fied demand to an act contrary to the law of nations on the
part of the offending state. They have the effect of momentar-
ily suspending, in the relations between the two states, the
observance of such or such a rule of the law of nations. They
are limited by the experiences of humanity and the rules of
good faith applicable in relations between state and state. They
would be illegal if a preliminary act contrary to the law of
nations had not furnished a reason for them.21
The term countermeasure evolved to replace the term reprisal, fol-

lowing the adoption of the UN Charter and the prohibition on the use of
force. A state or organization takes a countermeasure when it takes an
action that would otherwise violate international law to respond to a
prior law violation. Countermeasures are the primary general means
available to states and organizations to enforce international law rights
18
See The Gabčikovo-Nagymaros Project (Hung. v. Slovak), 1997 I.C.J. 7 (Sept. 25) [hereinafter
Gabčikovo].
19
Contemporary use of the term is usually credited to the arbitrators in the Air Services
Agreement (U.S. v. Fr.), 18 R.I.A.A. 417, 444 (1978).
20
Banana Dispute between the EU and US. WTO Secretariat, (European Communities -
Regime for the Importation, Sale and Distribution of Bananas - Recourse to Arbitration by the
European Communities Under Article 22.6 of the DSU), Decision by the Arbitrators, WT/
DS27/ARB (Apr. 9, 1999) [hereinafter Banana Dispute, Decision of the Arbitrators].
21
Naulilaa Incident Arbitration (Port. v. Ger.), 2 RIAA 1011 (1928).

and obligations. What Oscar Schacther wrote in 1995 remains largely

true today:
It seems almost certain that non-violent self-help and counter-

measures will remain an important feature of international law
and perhaps even increase as the network of international law
and obligations expands. The more law, the more chance of
violation and the greater likelihood of counter-action by those
who feel injured and without other means of redress. Recent
actions such as trade embargoes, freezing of assets, suspension
of treaty obligations, expulsion of foreign nationals, confirm
this. Few areas of international law are in greater need of clari-
fication and analysis. It [is a] . . . relatively neglected subject.22
Schachter’s own work has contributed importantly to current understand-

ing of the law of countermeasures and in drawing other scholars into the
study of countermeasures and enforcement law more generally.
The need for a new term for peaceful reprisals arose with the UN
Charter and eventually countermeasure became that term. Omer Elagab
says the term countermeasure was first introduced to international legal
discourse in 1916.23 Nevertheless, until 1945 and for years after that, schol-
ars used the term reprisal—some still do.24 “[T]he conditions governing
the exercise of reprisals were developed when forcible and non-forcible
reprisals were regarded as a single category.”25 As the Naulilaa arbitrators
explained, reprisals were lawful if they responded to a prior wrong, fol-
lowing notice that they would be used. The measures chosen had to be
proportional in the circumstances. The requirement of notice particularly
distinguished reprisals from war. Since reprisals were not an act of imme-
diate self-defense, the injured party had to give notice to the wrongdoer of
22
Schachter, supra note 2, at 184–85.
23
Omer Y. Elagab, The Legality of Non-Forcible Counter-measures in International
Law 2 (1988).
24
See, e.g., Christian Hillgruber, The Right of Third States to Take Countermeasures, in The
Fundamental Rules of the International Legal Order, Jus Cogens and Obligations
Erga Omnes 265, 266 (Christian Tomuschat & Jean-Marc Thouvenin eds., 2006).
25
Elagab, supra note 23, at 35.

the intention to carry them out.26 The rules governing countermeasures

continue to include these three basic principles.27
The need for a new term for peaceful reprisals became more press-
ing after 1970, when the United Nations General Assembly in its
Declaration on Friendly Relations clarified that with the prohibition on
the use of force, armed reprisals also became unlawful.28 In 1978, arbitra-
tors in an important arbitration between France and the United States,
substituted the term countermeasures for peaceful reprisals. The peaceful
reprisals at issue were US restrictions on French landing rights in Los
Angeles. The arbitrators called these countermeasures and said they were
“contrary to international law but justified by a violation of international
law allegedly committed by the State against which they are directed. . . .”29
The International Law Commission (ILC) then adopted the term in its
work on state responsibility. In the resulting Articles on State Responsibility,
countermeasures are among the defenses to a claim of responsibility: “The
wrongfulness of an act of a State not in conformity with an international
obligation towards another State is precluded if and to the extent that the
act constitutes a countermeasure taken against the latter State in accord-
ance with chapter II of part three.”30 In the Gabčikovo-Nagymoros case
between Hungary and Slovakia in 1997, the ICJ said a countermeasure
was a measure adopted by one state in response to another state’s prior
failure to comply with its obligation under international law.31 As authority
26
Id. at 6–12 and the state practice gathered there.
27
Gaetano Arangio-Ruiz, Third Report on State Responsibility, (Special Rapporteur, International
Law Commission), UN Doc. A/CN.4/440 and Add., (June 10, 1991).
28
In the Declaration of Principles of Internatinal Law Concerning Friendly Relations and
Cooperation Among States, “[s]tates have a duty to refrain from acts of reprisal involving
the use of force.” G.A. Res. 2625 (XXV) para. 1, UN Doc. A/5217 (Oct. 24, 1970). See also
supra ch. 4.
29
Contemporary use of the term is usually credited to the arbitrators in the Air Services
Agreement case, 18 RIAA at 444.
30
Articles on State Responsibility art. 22. The previous version of the definition was somewhat
different: “The wrongfulness of an act of a State not in conformity with an obligation of that
State towards another State is precluded if the act constitutes a measure legitimate under
international law against that other State, in consequence of an internationally wrongful act
of that other State.” Report of the Commission to the General Assembly on the Work of its 31st
Session, II Y.B. Int’l L. Commission 115, para. 2 (1979). This definition remained unchanged
in the Draft Articles Provisionally Adopted by the Commission on First Reading. See Articles
on State Responsibility art. 30.
31
Gabčikovo, 1997 I.C.J. at 55.

for its formulation, the ICJ cited both the US-France Air Services case and
the ILC’s Draft Articles on State Responsibility.32
Scholars have sometimes defined the term countermeasure more
broadly than in these three instances. Schachter and Hillgruber use the
term to refer to reprisals and retorsions—lawful though unfriendly actions.33
Countermeasure is, however, now the common term for peaceful, unilat-
eral reprisals, reprisal being reserved for references to armed or belligerent
reprisals taken during armed conflict or military occupation.34
Almost any unlawful unilateral action short of armed force can be
considered a countermeasure, though pure reciprocity, reciprocal treaty
breach, and pre-agreed measures are special cases. Reciprocity occurs
where two or more parties are obligated to perform the same or similar
obligation, but one party discontinues or withholds performance following
the failure of performance by the other party.35 One of the ILC’s special rap-
porteurs on State Responsibility, James Crawford, questioned whether
reciprocal nonperformance properly falls within the law of countermeas-
ures.36 Crawford at one point suggested that a narrow version of the non-
performance rule (exceptio inadimpleti contractus) be given a separate
place in the Articles on State Responsibility from countermeasures. During
the 51st session of the ILC, members expressed the view that, given the
uncertainty of whether reciprocal nonperformance strictly fits the cate-
gory of countermeasures, states would be wise to follow the conditions on
countermeasures in taking such measures.37 Implied in these views is the
idea that under reciprocity, the nonperformance by one party triggers,
without more, the nonpreformance by the other. Crawford’s suggestion
32
33
For more on retorsions, see Schachter supra note 2; Hillgruber, supra note 24, at 265–66.
34
See, e.g., Frits Kalshoven, Belligerent Reprisals (2005).
35
“Reciprocal measures or measures ‘by way of reciprocity’ refer to nonperformance by the
injured state of its obligations toward the offending state when such obligations correspond to
or are directly connected with the obligations breached.” Louis Henkin et al., International
Law: Cases and Materials 570 (3d ed. 1993). Barton and Carter find reciprocity to be the
traditional, general means of enforcement: “The traditional, and still important, international
enforcement mechanism is reciprocity.” John H. Barton & Barry E. Carter, International Law
and Institutions for a New Age, 81 Geo. L.J. 535, 540 (1993). Zoller writes that the obligation
must be identical to be “reciprocity” but most writers except obligations in the same context
as fitting the meaning in international law. Elisabeth Zoller, Peacetime Unilateral
Remedies 28–29 (1984).
36
International Law Commission, Report on the Work of the 51st Session, paras. 332–33 U.N.
Doc. A/54/10 (May 3–July 23, 1999) [hereinafter ILC Report].
37
See ILC Report, at para. 340.

was not adopted and no distinction is made between reciprocal counter-

measures and other measures in the Articles on State Responsibility.38
II. The Law and Practice of Countermeasures

The Air Services Agreement case39 was the first judicial consideration of
countermeasures following the adoption of the UN Charter. The arbitra-
tors made clear that the rules for reprisals would continue to apply as they
had before 1945. The case occurred in 1978, when Pan American Airways
wished to schedule six weekly flights from the US West Coast to Paris via
London. Pan Am planned to change the gauge of the plane in London,
down-sizing from a Boeing 747 to a 727. France objected to the plan,
saying that, since changes of gauge were mentioned in the agreement only
in relation to stops in the two contracting countries, a change of gauge in
a third country was inconsistent with the agreement. Pan Am and the US
government argued that since the agreement did not expressly forbid such
a change, it should be permitted. On May 1 and 2, Pan Am completed
flights to Paris using the smaller plane. On May 3, however, when the third
flight landed, French police surrounded the plane, refusing to allow Pan
Am to disembark the passengers or unload cargo. The plane returned to
London and Pan Am suspended its flights.40
The next day, May 4, the United States proposed to France expe-
dited arbitration to resolve the issue, permitting Pan Am to continue the
flights with the change of gauge in the meantime. Time was of the essence
for Pan Am because of the summer tourist season. On May 9, US authori-
ties instituted a retaliatory measure against Air France, requiring it to file
all flight schedules within specific time limits.41 On May 13, France agreed
to arbitration but protested the retaliatory measures, saying negotiations
had not ended nor had remedies in the French system been exhausted.
France refused permission to Pan Am to resume flights. On May 31, the
United States issued an order, prohibiting Air France, starting July 12,
from operating its three-time weekly Paris-Montreal-Los Angeles schedule.
That measure was never implemented, however, because, on July 11,
38
Crawford, supra note 17, at 282.
39
Air Services Agreement, 18 RIAA at 420.
40
Id.
41
Id.

France and the United States signed a compromis setting out the terms for
binding arbitration.42
The arbitrators found both that Pan Am could change gauge in
London and that the United States had properly implemented counter-
measures. The threat to prohibit Air France service to Los Angeles, even
after France accepted in principle going to arbitration, were lawful. The
tribunal held regarding the lawfulness of US countermeasures:
Under the rules of present-day international law, and unless

the contrary results from special obligations arising under
particular treaties, notably from mechanisms created within
the framework of international organisations, each State
establishes for itself its legal situation vis-à-vis other States. If
a situation arises which, in one State’s view, results in the viola-
tion of an international obligation by another State, the first
State is entitled, within the limits set by the general rules of
international law pertaining to the use of armed force, to
affirm its rights through “counter-measures.”43
It goes without saying that recourse to counter-measures
involves the great risk of giving rise, in turn, to a further
reaction, thereby causing an escalation which will lead to a
worsening of the conflict. Counter-measures therefore should
be a wager on the wisdom, not on the weakness of the other
Party. They should be used with a spirit of great moderation
and be accompanied by a genuine effort at resolving the
dispute. But the Arbitral Tribunal does not believe that it is
possible, in the present state of international relations, to lay
down a rule prohibiting the use of counter-measures during
negotiations, especially where such counter-measures are
accompanied by an offer for a procedure affording the possi-
bility of accelerating the solution of the dispute.44
42
Id. at 420–21.
43
Id. at 443.
44
Id. at 445.

The arbitrators confirmed that the source of the rules on countermeasures

is found in the law of armed conflict. Those rules require that countermea-
sures be used in response to a prior wrong, be proportional in the circum-
stances, and may continue during negotiations. The case also provided a
prime example of a countermeasure—suspending flights where the other
party had itself refused to allow certain kinds of flights.
Just two years after Air Services, in the Hostages case, the ICJ com-
mented on the extensive economic and other measures by the US and
European states taken in response to the storming of the US embassy and
consulates by students in Iran. The court commented only with regard to
the fact that the US suspended a treaty subsequently cited by the US to
found the ICJ’s jurisdiction in the case.
The point has also been raised whether, having regard to cer-
tain counter-measures taken by the United States vis-à-vis
Iran, it is open to the Untied States to rely on the Treaty of
Amity, Economic Relations, and Consular Rights in the present
proceedings. However, all the measures in question were taken
by the United States after the seizure of its Embassy by an
armed group and subsequent detention of its diplomatic and
consular staff as hostages. They were measures taken in
response to what the United States believed to be grave and
manifest violations of international law by Iran, including vio-
lations of the 1955 Treaty itself. In any event, any alleged viola-
tion of the Treaty by either party could not have the effect of
precluding that party from invoking the provisions of the
Treaty concerning pacific settlement of disputes.45
The case indicates that countermeasures involving the suspension of trea-

ties may occur even though the treaty has a dispute settlement provision
and the dispute settlement mechanism is in operation.46 The ICJ did not
comment on the extent of the measures taken, including by states not
45
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, 27–28
(May 24) [hereinafter Hostages case].
46
Lori Fisler Damrosch, Retaliation or Arbitration-or Both? The 1978 United States-France
Aviation Dispute, 74 AJIL 785, 805–6 (1980).

directly injured.47 In the 1986, Nicaragua case, however, the ICJ cast doubt
on the right of states to participate in collective countermeasures. While it
said that imposing countermeasures is the appropriate response to inter-
vention short of an armed attack giving rise to the right of self-defense,
only the target of the unlawful intervention may respond.48
The ICJ’s decision in Gabčikovo-Nagymoros offers a far more exten-
sive discussion of countermeasures than the Hostages or Nicaragua cases.
The dispute concerned a treaty to construct a barrage system in the
Danube River between Hungary and first Czechoslovakia, then Slovakia.
Seeking to avoid a potential environmental disaster, Hungary decided to
pull out of the project. Slovakia went ahead with a unilateral solution
(designated Variant C) and put the system into effect to the extent it
could on its own. The ICJ held that both states had violated terms of the
bilateral Treaty on the Construction and Operation of the Gabčikovo-
Nagymaros System of Locks.49 Slovakia’s primary defense for its unilat-
eral implementation was that Czechoslovakia had attempted to implement
the original treaty as closely as possible under the “principle of approxi-
mate application.”50 The ICJ found no such principle in international law.
As an alternative defense, Slovakia had argued that even if the implemen-
tation of Variant C was unlawful, it was a response to Hungary’s prior
unlawful action of abandoning the treaty. As such, it was a lawful coun-
termeasure. The court rejected this defense as well because Variant C was
out of proportion to Slovakia’s injury. The court laid out four elements of
a lawful countermeasure:
1. “In the first place it must be taken in response to a previous inter-

national wrongful act of another State and must be directed
against that State.”51
2. “Secondly, the injured State must have called upon the State com-
mitting the wrongful act to discontinue its wrongful conduct or
to make reparation for it.”52
47
European countries imposed economic sanctions on Iran during the Iran hostage crisis
without Security Council authorization. 13/4 Bull. Eur. Communities 20, 25 (1980).
48
Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 110-11, para. 211 (June 27).
49
Gabčikovo, 1997 I.C.J. at 55–56.
50
Id. at 51.
51
Id. at 55.
52
Id. at 56.

3. “[T]he effects of a countermeasure must be commensurate with

the injury suffered, taking account of the rights in question.”53
4. “[I]ts purpose must be to induce the wrongdoing State to comply
with its obligations under international law, and that the measure
must therefore be reversible.”54
In this case, the countermeasure was disproportionate to the injury:

“Czechoslovakia, by unilaterally assuming control of a shared resource,
and thereby depriving Hungary of its right to an equitable and reasonable
share of the natural resources of the Danube—with the continuing effects
of the diversion of these waters on ecology of the riparian area of the
Szigetk’z—failed to respect the proportionality which is required by inter-
national law.”55 David Bederman argues that the ICJ raised the bar with
respect to proportionality, moving away from Air Service’s “not clearly
disproportionate” standard to “commensurate with the injury suffered,
taking account of the rights in question.”56 The ICJ also introduced a fourth
requirement—that the purpose of the countermeasure be for inducing
compliance. It is similar to the requirement of necessity in the law on the
use of force.
In April 1999, in the US-EC Banana Dispute, WTO arbitrators
made their first decision on countermeasures.57 The United States and
other countries interested in selling bananas in the European Community
(EC) had tried for years to negotiate removal of preferences in the banana
trade for former European colonies. The EC had promised to remove the
preferences in agreements reached during the Uruguay round of negotia-
tions leading to the founding of the WTO. Nevertheless, the EC did not
remove the preferences. Finally, in separate cases, first the United States,
then several Latin American countries took the EC to the WTO’s DSB. All
complainants received favorable reports from DSB panels.58 The EC
53
Id. at 56.
54
Id. at 56–57.
55
Id. at 56.
56
David J. Bederman, Counterintuiting Countermeasures, 96 AJIL 817, 821 (2002).
57
The first case in which a member of the WTO was permitted to take countermeasures was the
Banana case. The United States increased tariffs on a range of European luxury goods for
failure to comply with a decision on banana imports by the WTO Dispute Settlement Body.
See Pauwelyn, supra note 5.
58
WTO Panel Report, European Communities—Regime for the Importation, Sale and
Distribution of Bananas, Complaint by the United States, WT/DS27/R (May 22, 1997).

appealed but the reports were upheld by the DSB Appellate Body.59
Nevertheless, the EU consistently failed to adapt its banana regime to con-
form to its Uruguay Round commitments. The United States finally pro-
posed retaliation by raising tariffs on European luxury goods by $520
million.60 The EU invoked its right to have an arbitral panel determine the
proportionality of the US’s proposed measures. The panel, citing the Air
Services case, found the US measures were warranted but set the propor-
tional level at $191.4 million per year.61
In 2001, the ILC’s Articles on State Responsibility were accepted by
the United Nations General Assembly.62 They include seven articles on
countermeasures, discussed below under five headings. The first article is
a general one found with the other articles on circumstances precluding
wrongfulness:
Article 22
Countermeasures in respect of an internationally wrongful act
The wrongfulness of an act of a State not in conformity with

an international obligation towards another State is precluded
if and to the extent that the act constitutes a countermeasure
taken against the latter State in accordance with chapter II of
part three.
Prior Wrong
Every scholarly and judicial treatment of countermeasures emphasizes
that countermeasures must be a response to a law violation. The ILC’s
Articles on State Responsibility provide in Article 49 (1) that “[a]n injured
State may only take countermeasures against a State which is responsible
for an internationally wrongful act in order to induce that State to comply
with its obligations. . . .”63 Despite the clear and emphatic nature of this
59
WTO Panel Report, European Communities—Regime for the Importation, Sale and
Distribution of Bananas, Complaint by the United States, WT/DS27/AB/R (Sept. 9, 1997).
60
Banana Dispute, Decision of the Arbitrators, at para. 1.1.
61
Id. at para. 8.1.
62
See supra note 17.
63
Articles of State Responsibility, at art. 49(1).

requirement, there are some unresolved issues. For example, may a state
take countermeasures in the interest of the international community as
whole if it has not suffered a direct injury? What if countermeasures injure
a third state that is not responsible for the wrong? What are the conse-
quences of a mistake about whether there was a prior wrong or as to who
committed the wrong? 64
Whether an enforcing state must be directly injured is the topic of
strongly opposing views. The ILC’s Articles provide no express support for
the right to take countermeasures in the absence of a direct injury.
According to Denis Alland, the debate goes to the very legitimacy of “the
contemporary international practice of ‘sanctions’ for the most serious
breaches of international law. It is not too much to say that the problem—
the contradictions inherent in a self-assessed (i.e., autointerpreted or
autoappreciated) decentralized policing of an international ordre public—
is one of the more crucial questions in the development of public interna-
tional law.”65
Support for both sides of the debate is drawn from a small section
of the ICJ’s decision in the Barcelona Traction case. The ICJ said that some
obligations are owed to the community as a whole, but it also at least
implied that the means of enforcing such obligations may need to differ
from the means used for enforcing other types of obligations. It said,
an essential distinction should be drawn between the obliga-

tions of a State towards the international community as a
whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
64
It is in establishing whether a wrong has actually occurred, various compliance mechanisms,
such as monitoring, inspection, reporting, and assisting in implementation are useful. These
mechanisms aim to prevent wrongdoing in the first instance, but when a wrong nevertheless
occurs, they can substantiate the fact. On monitoring, see Harold K. Jacobson & Edith Brown
Weiss, Strengthening Compliance with International Environmental Accords: Preliminary
Observations from a Collaborative Project, 1 Global Governance 119, 123 (1995). See also,
Abram Chayes & Antonia Handler Chayes, The New Sovereignty: Compliance with
International Regulatory Agreements, ch. 8 (1995).
65
Denis Alland, Countermeasurs of General Interest, 13 EJIL 1221, 1223 (2002).

. . . Such obligations derive, for example, in contemporary

international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules con-
cerning the basic rights of the human person, including pro-
tection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body
of general international law (Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports 1951, p. 23); others are con-
ferred by international instruments of a universal or quasi-
universal character.66
Eight years after Barcelona Traction, many states froze Iran’s assets when it
allowed US diplomats and nationals to be taken hostage in violation of
basic principles of human rights.67 In the Hostages case that arose as a
consequence of that same hostage taking, the court did not mention the
measures taken by states not directly injured.
Since the Hostages case, there have been numerous examples of
states and organizations imposing sanctions against other states for human
rights violations, unlawful uses of force, nuclear weapon proliferation,
support for terrorism, and other serious violations of international law. In
1982, the Netherlands suspended a bilateral aid agreement with Suriname
following human rights abuses by authoritarian rulers there.68 Members of
the Organization of American States (OAS) imposed sanctions on Haiti
for human rights violations.69 The United States has imposed sanctions
regularly since the Hostages Crisis for human rights violations, weapons
proliferation, and support of terrorism.70 The United States imposed eco-
nomic sanctions on Iraq in the immediate aftermath of Iraq’s invasion of
66
Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5). The
court expressed a similar view in the East Timor case. See East Timor (Port. v. Austl.), 1995
I.C.J. 90, paras. 29–30 (June 30).
67
13/4 Bull. Eur.Communities 20–26 (1980).
68
R.C.R. Siekmann, Netherlands State Practice for the Parliamentary Year 1982–1983, 15 Neth.
Y.B. Int’l L. 267, 321 (1984).
69
Support to the democratic government of Haiti, OAS Council of Ministers Resolution MRE/
RES.1/91, OEA/Ser.F/V.1 (Oct. 3, 1991).
70
“Sanctions have been central to U.S. policy on Iran since the Islamic revolution in 1979.”
Barton Gellman, Iran Missiles Mire U.S. in a Debate on Sanctions, Int’l Herald Trib., Jan.
2, 1997, at 1.

Kuwait, before the UN mandated such sanctions.71 The United States

imposed sanctions against the Soviet Union for the 1979 invasion of
Afghanistan and for shooting down a Korean passenger plane, as well as
against Poland after the declaration of martial law.72 The EU and the
United States imposed economic sanctions on Yugoslavia for violations of
the human rights of Kosovo’s Albanians, even before the Security Council
mandated sanctions.73 African states imposed sanctions on Sierre Leone
through the organization ECOWAS74 and on Burundi in an ad hoc effort
of Africa’s Great Lakes states.75
Jochen Frowein acknowledges that scholarly opinion is divided,76
but cites the resolution of the Institut de Droit, indicating the weight of
opinion supports the right of states to take countermeasures in cases of
erga omnes obligations with a jus cogens character. At its 1989 session in
Santiago de Compostela, the Institut included in Article 2 of its resolution
that “States, acting individually or collectively, are entitled to take diplo-
matic, economic and other measures towards any other State which has
violated the obligations set forth in Article 1, provided such measures are
permitted under international law. . . .”77 The obligations in Article 1 concern
human rights.
For decades, the International Law Commission defined “injured
state” to include all states if the internationally wrongful act constituted an
71
Exec. Order 12,725, 55 Fed. Reg. 33,091 (1990); Exec. Order 12,723, 55 Fed. Reg. 31,805
(1990).
72
For more examples, see, Jochen A. Frowein, Reactions by not Directly Affected States to
Breaches of Public International Law, 248 Recueil des Cours 345, 416–420 (IV 1994)(1995).
73
William Drozdiak, EU and NATO Act to Raise Pressure on Milosevic, Int’l Herald Trib.,
June 9, 1998, at 1; Europe: The Kosovo Cauldron, Economist, Mar. 14, 1998, at 53.
74
ECOMOG Warns Ships, Aircraft Off Sierra Leone Waters, Deutsche Presse-Agentur, Aug.
6, 1997.
75
Regional Leaders Lift Sanctions on Burundi, Some Say Peace Still Far Off, Comtex News
Network, Jan. 25, 1999.
76
Frowein, supra note 72, at 408–09. Zoller, for example, considers human rights norms and the
others listed above are so important that they may be enforced by any member of the interna-
tional community, not just the collective acting through organizations. Zoller, supra note
35, at 114–15. Schachter, by contrast, states, “In some cases, environmental obligations are
regarded as erga omnes, owed to all States. In consequence, any State whether or not directly
injured, would have the right to take countermeasures, including reprisals otherwise illegal.”
Schachter, supra note 2, at 381. Accord Alfred Verdross, & Bruno Simma, Universelles
Völkerrecht 907–9 (3d ed. 1984). See also, Hillgruber, supra note 24 and Jonathan Charney,
Third State Remedies in International Law, 10 Mich. J. Int’l L. 57, 85–86 (1989).
77
Frowein, supra note 72, at 409, quoting Annuaire de l’Insitut de droit international, 63 II
(1990), 338, 340.

international crime.78 The ILC defined international crimes as acts of

aggression, apartheid, maintenance by force of a colonial regime, slavery,
genocide, and massive pollution.79 These were violations of the most
important obligations, the jus cogens or peremptory norms. They were
obligations owed to the whole international community, so they were also,
erga omnes.80 The ILC’s Articles, completed in 2001, no longer mention
“crimes.” In their place, the Articles set out in Article 42 that only injured
states may invoke responsibility, defining injured state to include the whole
of the international community in some cases, but making clear in Article
48 that the right to take countermeasures does not apply in every case
even to all injured states:
1. Any State other than an injured State is entitled to invoke the

responsibility of another State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including
that State, and is established for the protection of a collective
interest of the group; or
(b) the obligation breached is owed to the international commu-
nity as a whole.
2. Any State entitled to invoke responsibility under paragraph 1
may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assuran-
ces and guarantees of non-repetition in accordance with
article 30; and
78
Articles on State Responsibility art. 40.
79
80
There is an extensive literature on international crimes of states, jus cogens, erga omnes obliga-
tions, and their interrelationship: see, e.g., The Fundamental Rules of the Intenational
Legal Order, supra note 24; Shabtai Rosenne, Some Reflections Erga Omnes in Legal
Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry
509 (Antony Anghie & Garry Sturgess eds., 1998); Jochen Frowein, Obligations Erga Omnes,
in 3 Encyclopedia of Public International Law 757, 757–59 (Rudolf Bernhardt ed.,
1997); Maurizio Ragazzi, The Concept of International Obligations Erga Omnes
(1997); M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligations Erga Omnes, 59
Law & Contemp. Probs. 63 (1996); André de Hoogh, Obligations Erga Omnes and
International Crimes: A Theoretical Inquiry into the Implementation and
Enforcement of the International Responsibility of States (1996); Lauri Hannikainen,
Peremptory Norms (Jus Cogens) in International Law: Historical Development,
Criteria, Present Status (1988).

(b) performance of the obligation of reparation in accordance

with the preceding articles, in the interest of the injured State
or of the beneficiaries of the obligation breached.81
The state practice reviewed above and throughout this chapter, how-
ever, generally supports the right of states to take countermeasures, in cases
of obligations owed to the international community as a whole, whether a
state is especially affected or in James Crawford’s term “injured in its own
right.”82 Crawford concludes the practice is “sparse,” but the number of cases
cited above is not sparse. It may well be more extensive than what is availa-
ble on other aspects of countermeasures such as the requirement to give
notice or the requirement that the purpose of the measures aim at cessation
of the wrong, not punishment. These rules and others are discussed below.
Crawford writes that the ILC’s approach tracks that of the Vienna
Convention on the Law of Treaties (the Vienna Convention), Article 60.
The Vienna Convention specifies that only an injured state or state with a
special interest may suspend or terminate a treaty. Yet, as was discussed
above, state practice does not closely track Article 60.83 Crawford’s reports
reflect a serious policy concern in permitting the use of unilateral coun-
termeasures by states not directly injured. Countermeasures are more
available to states with greater economic and military power. Yet, in a
subtle and insightful analysis of countermeasures of a general character,
81
Article 54 appears to be a sort of saving clause for the use of countermeasures by states not
directly injured, but it is hard to see how it can overcome the express terms of Article 48. “This
chapter does not prejudice the right of any State, entitled under article 48, paragraph 1 to
invoke the responsibility of another State, to take lawful measures against that State to ensure
cessation of the breach and reparation in the interest of the injured State or of the beneficiar-
ies of the obligation breached.” Alland, supra note 65, at 1232–33.
82
Crawford also uses individually injured. Both phrases appear to be substitutes for the terms the
ILC used for many years: directly injured. Crawford, supra note 17, at 279. Crawford discusses
some of this state practice in his comment on Article 54: “This Chapter does not prejudice the
right of any State, entitled under article 48, paragraph 1 to invoke the responsibility of another
States, to take lawful measures against that State to ensure cessation of the breach reparation in
the interest of the injured State or of the beneficiaries of the obligation breached.” He writes, “the
current state of international law on countermeasures taken in the general or collective interest
is uncertain. State practice is sparse and involves a limited number of States. At present there
appears to be no clearly recognized entitlement of States referred to in article 48 to take coun-
termeasures in the collective interest. Consequently it is not appropriate to include in the present
articles a provision concerning the question whether other States, identified in article 48, are
permitted to take countermeasures in order to induce a responsible State to comply with its
obligations. Instead, Chapter II includes a saving clause which reserves the position and leaves
the resolution of the matter to the further development of international law.” Id. at 305.
83
Id. at 256–59.

Denis Alland suggests thinking of countermeasures in jus cogens cases not

so much in classic terms of the injured enforcing a binding obligation on
the wrongdoer. Rather he suggests, “it is not the bindingness of the norms
that countermeasures of general interest would defend, but the essential
nature of the principles they contain . . . [W]e have to choose between the
subjectivism of a decentralized response in defense of general interests
and the absence of any consequences for the most serious wrongful acts.”84
In this context, it would be the wealthier, more powerful states, upholding
the most important principles on behalf of the whole community. On bal-
ance, state practice supports the right of states to take countermeasures to
enforce the most important obligations—those with a jus cogens and erga
omnes character—including by the suspension of treaties.85
Countermeasures must generally be focused on the wrongdoer to
induce that state or organization to comply,86 and not on third parties.
States or organizations taking measures must attempt to protect third
parties from harm. One writer considered the US attempt to close the
Palestinian Liberation Organization (PLO) Observer Mission to the UN a
countermeasure for the PLO’s involvement in terrorism. If the attempt
had succeeded it would have been an unlawful measure because a third
party, the UN, would have been injured.87
With respect to mistake, as discussed earlier, no general principle exists
in international law as to a fault standard in the commission of a wrong.88
Some international law rules indicate a fault standard; others do not.
International law scholars who generally find that international law sup-
ports only an objective, not a subjective fault standard would reject mistake
as an excuse. This seems to be the position of the Articles on State Respons-
ibility, which do not include mistake as a circumstance that precludes wrong-
fulness. Crawford takes the view, in his Third Report as Special Rapporteur,
84
Alland, supra note 65, at 1238–39.
85
See also, De Hoogh, supra note 80; Michael Akehurst, Reprisals by Third States, 44 Brit. Y.B.
Int’l L. 1 (1970).
86
Gabčikovo, 1997 I.C.J. at 55–56.
87
Kimberly D. Reed, Note, Reviving the Doctrine of Non-Forcible Countermeasures: Resolving
the Effect of Third Party Injuries, 29 Va. J. Int’l L. 175, 176 (1988).
88
1 Oppenheim’s International Law 508–9 (Robert Jennings & Arthur Watts eds., 9th ed.
1996). See also Andrea Gattini, Smoking/No Smoking: Some Remarks on the Current Place of
Fault in the ILC Draft Articles on State Responsibility, 10 EJIL 397 (1999). But see Wilhelm
Wengler, Public International Law–Paradoxes of a Legal Order, 158 Recueil Des Cours 9, 20
(1977 V) (1982) (The state taking countermeasures does so at the risk of being held liable
should it in fact not be entitled to take such actions.).

that no excuse of good-faith mistake is recognized in international law.89

The circumstances that do preclude wrongfulness include necessity,
duress, force majeure, self defense, consent, and countermeasures. Arguably,
these are better thought of as excuses rather than “circumstances preclud-
ing wrongfulness,”90 but for our purposes the important point is that they
do not apparently require an inquiry into subjective fault.91 If the objective
fact of force majeure can be shown, for example, the state has committed
no wrong or the wrong can be excused.92 Thus, we tend not to speak of
whether officials “intended” a result or “knew” a result would occur.
Mistake, by contrast, will require a showing of what government offi-
cials knew. Did they act in a good-faith but mistaken belief that they were
correct as to a question of law or an important fact? In the claims and counter-
claims of states, the examples suggest that states will be excused for good-faith
mistakes. The cases of passenger planes being shot down support this conclu-
sion. If mistake is accepted as an excuse in those cases, the argument for
mistake is even stronger for countermeasures cases. Countermeasures
should be reversible, so any harm is only temporary. In the Tuna-Dolphin
case under the 1947 General Agreement on Tariffs and Trade (GATT)
between the US and Mexico, the US used countermeasures against Mexico
to induce it to protect dolphins in the course of tuna harvesting.93 A GATT
panel eventually found the United States had no right to take countermeas-
ures and the US ended them.94 The panel report gives no indication that the
United States owed Mexico compensation for having instituted unlawful
countermeasures. In a later case on similar facts, a WTO appellate body found in
the Shrimp-Turtle case that the United States was again using countermeasures
inconsistently with its GATT obligations. The measures had to be reformed,
but no responsibility was found for the original inadequate measures.95
89
James Crawford, Special Rapporteur of the International Law Commission, Third Report on
State Responsibility, para. 294, UN Doc. A/CN.4/507/Add.3.
90
See Vaughan Lowe, Precluding Wrongfulness or Responsibility: A Plea for Excuses, 10 EJIL 405,
406 (1999).
91
Gattini, supra note 88, at 397–98.
92
Id. at n. 30.
93
Laurence Boisson de Chazournes, Economic Countermeasures in an Interdependent World, 89
ASIL Proc. 337, 338–340; (1995); Mary Ellen O’Connell, Using Trade to Enforce international
Environmental Law: Implications for United States Law, 1 In. J. Glob. L. Stud. 273 (1994).
94
General Agreement on Tariffs and Trade: Dispute Settlement Panel Report on United States
Restrictions on Imports of Tuna, Aug. 16, 1991, 30 ILM 1594 (1991).
95
Appellate Body Report, United States—Importation Prohibition of Certain Shrimp and
Shrimp Products, WT/DS58/AB/RW (Oct. 22, 2001).

The state practice is not extensive but appears to support the excuse
of good-faith mistake. Schachter and Lori Damrosch take the position that
states imposing countermeasures in good faith should be excused, even if
the basis on which a state took them is later revealed to be erroneous.96 Their
position is based on the opinion of the dissenting arbitrator in Air Services.
Reuter agreed with the majority that the American countermeasures were
lawful but that the United States was mistaken regarding its interpretation
of the treaty in issue. Andrea Gattini appears to take this position as well,
but adds that the burden of proving good faith should fall on the party
claiming it.97 He argues further that if the state offers only equivocal proof,
other states should draw the inferences against the state claiming mistake.98
Gattini does not discuss the authority for these positions. They may well be
general principles of law. Little or no state practice supports them. Given
the opportunities states have to prevent mistakes through the requirement
of notice before implementing countermeasures, together with the possi-
bility of resort to third-party dispute resolution prior to applying them, the
burden and inference rules are certainly reasonable.99
Prior Notice
The Naulilaa tribunal clearly held that Germany should have provided
notice to Portugal before taking responsive armed measures. The Air
Services tribunal, too, observed that the United States gave notice to France
before imposing increased reporting requirements. In Gabčikovo, the ICJ
said, “. . . the injured state must have called upon the State committing the
wrongful act to discontinue its wrongful conduct or to make reparation
for it.”100 The ILC’s Article 52 requires:
1. Before taking countermeasures, an injured State shall:

(a) Call on the responsible State, in accordance with article 43, to
fulfill its obligations under Part Two;
96
Schachter, supra note 2, at 187; Damrosch, supra note 46, at 795.
97
Gattini supra note 88, at 403. Gattini suggests that to overcome the problem of proving intent
in international law, the burden should be on the party relying on an intention-based claim.
98
See Gattini supra note 88, at 402; Wengler, supra note 88 at 11, 20; and Damrosch, supra note
46, at 796.
99
These claims and counterclaims could emerge in litigation or in diplomatic exchanges among
governments and organizations.
100

(b) Notify the responsible State of any decision to take coun-

termeasures and offer to negotiate with that State.
2. Notwithstanding paragraph 1(b), the injured State may take
such urgent countermeasures as are necessary to preserve its
rights.
Providing notice makes clear that the state taking countermeasures

is acting out of necessity in response to the wrong and not for some other
purpose such as revenge. To prove necessity, the state needs a means of
demonstrating that other avenues would not work. This is easily shown
through rendering formal notice to the wrongdoer and allowing an oppor-
tunity to repair or to engage in negotiation or peaceful settlement of dis-
putes. If these overtures are ignored or rejected without further action by
the wrongdoer, the case for necessity is made. In the case of notice before
reciprocal breach of a treaty, the parties are required to allow three months
from the time of notice.101
Scholars, too, generally accept the need for notice,102 though some have,
in the past, questioned the requirement and what fulfills the requirement of
notice. Elisabeth Zoller, for example, writes that countermeasures should be
viewed as “a right of immediate action.”103 André De Hoogh maintains that
states need not give up the element of surprise.104 In a legal system, however,
where states are required to maintain friendly relations and to treat each other as
equals, the unfriendly nature of countermeasures requires that notice and an
opportunity to repair a wrong be given. There are certainly, however, situations
in which notice would render the countermeasure ineffective. One example
would be the freezing of assets, if notice might allow the assets to be withdrawn
prior to the freeze. Another is if a perpetrator flees or damage would be done
unless the arrest is made or a countermeasure is taken before notice. According
to Zoller, the ILC’s 1979 version of the Articles distinguished between measures
that are “equivalent,” which do not require prior notice, and those that are merely
“proportional,” which do.105 This distinction may be too subtle, however, to be
workable in international relations. Better to have a straightforward requirement
101
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331.
102
Schachter, supra note 2, at 186.
103
Zoller, supra note 35, at 119.
104
De Hoogh believes that states need not give up the advantage of surprise, De Hoogh, supra
note 80, at 239.
105
Zoller, supra note 35, at 126.

of notice prior in all cases, with an exception for emergency situations when
notice is required as soon after the implementation of measures as practicable.106
This appears to be the position of the current Articles on State Responsibility.
Giving notice, offering negotiations, and waiting for a response means
the state will not take measures immediately. On the other hand, the injured
party cannot wait indefinitely to act. At some point, the doctrines of laches,
acquiescence, or estoppel may bar a party from taking countermeasures.107
It is true, however, that in international law, as long as a state or organization
keeps a claim alive with regular protests, demands, or simple notice, it could
maintain countermeasures many decades after the original wrong.108 If a
party has begun a claim in good time, following notice, and remained per-
sistent, the international community has tolerated very long periods for the
application of countermeasures. British countermeasures against Albania
resulting from the Corfu Channel case lasted almost forty years.109 Mexico,
too, persisted with countermeasures for over fifty years to get the US to
comply with an award in the El Chamizal arbitration.110
Proportionality and Prohibitions

Countermeasures must be proportional in the circumstances, but even
some proportional measures are prohibited on other grounds.111 The Air
Services arbitrators stated,
106
In the Bananas Case, the arbitral tribunal treated “equivalence” as synonymous with “propor-
tional.” Banana Dispute, Decision of the Arbitrators, at 8–11.
107
John Norton Moore, Enhancing Compliance with International Law: A Neglected Remedy,
39 Va. J. Int’l L. 881, 949 (1999).
108
See e.g., The Ambatielos Claim (Greece v. UK), 12 RIAA 83, 103–4 (Mar. 6, 1956) (confirming
that undue delay can result in the termination of a claim).
109
Following Albania’s failure to pay the judgment it owed Great Britain in the Corfu Channel
case, Britain held monetary gold owned by Albania for almost fifty years. Norton-Taylor,
supra note 7. “The Bank of England yesterday released pounds 13 million of gold looted from
Albania by the Nazis–ending a dispute dating from the start of the Cold War. In return
Albania compensated Britain for the Corfu Channel Incident–the mining of two Royal Navy
destroyers in 1946 with the loss of 44 lives. Britain, which had blocked the return of the gold
until a settlement of its claim, agreed to an Albanian offer of pounds 1.2 million.” Id.
110
The two states agreed to arbitrate over title to territory in the Rio Grande area that was affected
by the movement of the river. The Rio Grande forms the international boundary. Mexico won
the decision but the United States refused to honor it for over fifty years. The US repudiation
outraged Mexico which took countermeasures in the form of suspending payments owed as
a result of the Pious Fund Arbitration and refusing concessions on other issues for about fifty
years. See Larman C. Wilson, The Settlement of Boundary Disputes: Mexico, the United States,
and the International Boundary Commission, 29 Int’l & Comp.L.Q. 38, 39 (1980).
111
See Articles on State Responsibility art. 50; but see Pierre Klein, Remarks, 96 ASIL Proc. 168,
168 (2002).

[i]t is generally agreed that all counter-measures must, in the

first instance, have some degree of equivalence with the alleged
breach; this is a well-known rule. . . . Indeed, it is necessary to
carefully assess the meaning of counter-measures in the frame-
work of proportionality. Their aim is to restore equality
between the Parties and to encourage them to continue nego-
tiations . . . the United States counter-measures restore in a
negative way the symmetry of the initial positions.112
The Restatement (Third) includes that lawful countermeasures “are not

out of proportion to the violation and the injury suffered.”113 In Article 51,
entitled “Proportionality,” the Articles on State Responsibility formulate
the proportionality requirement as follows: “Countermeasures must be
commensurate with the injury suffered, taking into account the gravity of
the internationally wrongful act and the rights in question.”114
There seems to be unanimity about the requirement for propor-
tionality, but also agreement that no formula exists for determining what
actually is proportional. Only reciprocal countermeasures can be consid-
ered entirely proportional. Zemanek proposes, therefore, regulating coun-
termeasures by prohibiting unwanted countermeasures rather than
judging them by proportionality.115 The Articles on State Responsibility do
not take this approach, requiring that measures be “commensurate” with
the injury and apparently allowing for stronger measures for more serious
violations. In this, the Articles differ from the practice of the WTO, which
only permits measures equivalent to the wrong.
The Articles on State Responsibility also categorically prohibit some
types of measures. Article 50(1) states that:
112
Air Services Agreement Case, 18 RIAA, at 443, 444–45.
113
Restatement (Third) of Foreign Relations Law, § 905(1)(b); Zoller draws a sharp dis-
tinction between the Air Services tribunal’s reference to equivalence, and proportionality.
Most authorities uniformly cite the requirement of proportionality, without referring to
equivalence or distinguishing it, type of proportionality. In the decision on retaliation in the
US-EU Banana Dispute before an arbitral tribunal of the WTO Dispute Settlement Body, the
arbitrators sought equivalence between the measures the US took and the nullification of
benefits caused by the EU. Bananas Dispute, Decision of the Arbitrators, para 4.1. In doing so,
the arbitrators cited the requirement of proportionality in the law of countermeasures; the
law within which WTO retaliation is situated. Id. 38, para. 6.16; see also Zoller, supra note
35, at 128.
114
115
Karl Zemanek, The Unilateral Enforcement of International Obligations, 47 ZaöRV (1987).

Countermeasures shall not affect:

(a) the obligation to refrain from the threat or use of force as embod-
ied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general interna-
tional law.
In June 1967, Guinean diplomats returning from meetings at UN

Headquarters in New York were forced due to bad weather to land in
Abidjan, Ivory Coast. Ivory Coast arrested them, announcing it would
hold them until Guinea freed a number of its citizens.116 Guinea and the
UN demanded the diplomats’ immediate release out of respect for diplo-
matic immunity. Guinea then freed the individuals in question and only
then did Ivory Coast free the diplomats.117
A similar and better-known case involves the taking hostage of US
diplomats and others during the take-over of the US embassy in Teheran,
Iran. Iran tried to justify this act in part as retaliation for US involvement
in the assassination of Muhammed Mossadeq in the 1950s. The ICJ held
in the case brought by the US against Iran:
In any case, even if the alleged criminal activities of the

United States in Iran could be considered as having been
established, the question would remain whether they could be
regarded by the Court as constituting a justification of Iran’s
conduct and thus a defence to the United States’ claims in the
present case. The Court, however, is unable to accept that
they can be so regarded. This is because diplomatic law itself
provides the necessary means of defense against, and sanction
for, illicit activities by members of diplomatic or consular
missions. . . .
The rules of diplomatic law, in short, constitute a self-
contained regime which, on the one hand, lays down the
receiving State’s obligations regarding the facilities, privileges
116
16 Keesing’s Contemporary Archive 22, 306 (1967–68).
117
Id.

and immunities to be accorded to diplomatic missions and,

on the other, foresees their possible abuse by members of the
mission and specifies the means at the disposal of the receiv-
ing State to counter any such abuse.118
Trade sanctions are generally permissible, but are now conditioned for
many states on the GATT. Freezing bank accounts or seizing other assets
are other common examples of countermeasures. Scholars have argued
that US sanctions against Cuba and their impact on the human rights of
individuals have become too severe over time.119 The Cuban government
did commit a wrong by expropriating property without compensation in
violation of international law.120 Yet broad sanctions on an entire econ-
omy for decades, and even applied to third-parties, appears out of pro-
portion to the original wrong. The case of the UN and sanctions for
thirteen years on Iraq is discussed in detail in the next section on collective
measures.
The Iraq and Cuba cases provide examples of countermeasures that
arguably became too severe over time and required loosening. Is the oppo-
site permitted? If a violation continues, can pressure be enhanced? Several
scholars take the position that countermeasures may be stepped up.121 At
the WTO, however, countermeasures are carefully calibrated to negate the
injury. If a trade violation costs $1 million, an equivalent trade tariff gen-
erating revenues of $1 million is all that is allowed. Cases outside the WTO
also indicate that states may start measures well below the limits of pro-
portionality, then step up to the level of the original injury, as in Air
Services. The cases do not support the argument for the right to step
beyond the original injury because of recalcitrance over time. The prac-
tice, together with the general concern about escalation and lawlessness in
the use of countermeasures, argues against the right to enhance measures
over time.
The US took a number of countermeasures in response to the
Iranian hostage-taking—in particular, it froze Iranian assets in the United
118
Hostages Case, 1980 I.C.J. at 38, 40.
119
See discussion of both cases in Lori Fisler Damrosch, Enforcing International Law Through
Non-Forcible Measures, 269 Recueil des Cours 9, 63–79, 108–21 (1997).
120
See Brice M. Clagett, Title III of the Helms-Burton Act is Consistent with International Law, 90
AJIL 434, 436 (1996).
121

States and convinced European states to do the same to enforce erga omnes
obligations.122 Two judges in the Hostages case wrote separately that the US
should have suspended countermeasures during the pendency of the case.123
In Air Services, the US suspended countermeasures when the agreement to
arbitrate was signed, but in that case France also agreed to permit Pan Am
to change gauge and land in Paris pending the outcome of the case.124 In the
Hostages case, by contrast, Iran neither freed the hostages when the US went
to the ICJ nor did it even participate in the case.125 The other judges did not
mention the need to suspend countermeasures. Schachter has concluded
that the US did not need to do so in the circumstances.126 This must be cor-
rect. If states are required to delay countermeasures pending the outcome of
a dispute resolution process, such a requirement can be included in a treaty,
as in the WTO Dispute Settlement Understanding.
The ILC does not explicitly include breaching an unrelated treaty as
a prohibited measure. This fact underscores the point already discussed
above that breaching a treaty as a countermeasure is permissible even if
the treaty itself has not been violated. Greig is clearly correct that the use
of treaty breach as a countermeasure may weaken the principle of pacta
sunt servanda,127 but state practice supports the Articles on State
Responsibility,128 as do scholars.129 Both reflect the interest of states in
having the means available for enforcing international law, especially
given the fact that treaty parties need only agree to keep a particular treaty
off-limits from countermeasures if that is what they wish. According to
Bruno Simma and Dirk Pulkowski:
Recourse to countermeasures under international law, critics

contend, may jeopardize the integrity of the particular [treaty]
122
European countries imposed economic sanctions on Iran during the Iran Hostages without
Security Council authorization. 13/4 Bull. Eur.Communities 20–26 (1980).
123
Hostages Case, 1980 I.C.J. at 53–54 (dis. op. Judge Morozov), 63–65 (dis. op. Judge Tarazi).
124
Air Services Agreement Case, 18 RIAA at 417.
125
Hostages Case, 1980 I.C.J. at 13–18.
126
Oscar Schachter, International law in the Hostages Crisis, in American Hostages in Iran:
The Conduct of a Crisis 325, 339–45 (Warren Christopher et al., eds. 1984); but see Ted
Stein, Contempt, Crisis and the Court, 76 AJIL 499 (1982).
127
D. W. Greig, Reciprocity, Proportionality and the Law of Treaties, 34 Va. J. Int’l L. 295, 373
(1994).
128
The Security Council called on all states to terminate treaty relations with Iraq following that
state’s invasion of Kuwait. See S.C. Res. 661, U.N. Doc. S/RES/661 (1990); Wengler, supra note
88, at n.2; but see Schachter, supra note 2, at 191–93.
129
Moore, supra note 107, at 908; Zemanek, supra note 115, at 36.

regime in question. Such critics close their eyes to an impor-

tant truth: while the unilateral enforcement of obligations
undoubtedly constitutes an ‘emergency operation’, counter-
measures contribute to creating future expectations of effec-
tive enforcement in the international community. As Michael
Reisman has noted, “the expectation of the effectiveness of
enforcement mechanisms is a factor inducing compliance.
Enforcement becomes a ‘self-fulfilling prophecy.’”130
As is discussed in more detail below, the existence of mandatory dispute

resolution prior to taking countermeasures is increasingly the case and is
an appropriate means to protect the integrity of a treaty or treaty regime
from unilateral action.131
Proper Purpose
The purpose of countermeasures must be to induce compliance and/or rep-
aration for a wrong. That means countermeasures must be terminated when
compliance or compensation is achieved. Again, the law of state respon-
sibility determines what is required to terminate the wrong or compensate.
“A reprisal would be unlawful—or it would become unlawful—when its
aim and demands go beyond the violation to include a different objec-
tive.”132 In particular, countermeasures to exact punishment or revenge are
unlawful.133 Measures merely to punish are widely regarded as unlawful,
though as Arrangio-Ruiz points out, it is difficult to keep the whole aspect
130
Bruno Simma & Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in
International Law, 17 EJIL 483, 509 (2006), citing W. Michael Reisman, The Enforcement of
International Judgments, 63 AJIL 1, 7 (1969).
131
Such dispute resolution will continue to be available even if it is the Security Council which
orders the countermeasure. This was demonstrated in the Lockerbie case. Libya successfully
sued the US and Great Britian for violating the ICAO Convention. The Convention was vio-
lated pursuant to Security Council sanctions. Though the Court found the convention could
not take precedence over Security Council mandated sanctions, the Court did hear the case
despite the involvement of the Security Council.
132
133
See comments of Argentina regarding the purpose of Article 41 of the UN Charter: “The
purpose of Article 41 of the Charter was to modify the behavior of States. It was not punitive
in intent, and it must not be interpreted as such.” Press Release, Security Council, Speakers
Call for Cleaner Definition, Tighter Targeting of UN Sanctions as Council Draws on “Lessons
Learned” to Refine Sanctions Regime, UN Doc. SC/6845 (Apr. 17, 2000) at 9.

of punishment out.134 Still, if the wrong has ceased and/or reparations

been made, it would be wrongful to continue or initiate countermeasures
at that stage.
In some formulations of the rules on countermeasures, reference is
made to the need for the countermeasures to be “necessary” in the circum-
stances. The Restatement (Third) of American Foreign Relations Law, for
example, uses this formulation. Necessity was mentioned by the Naulilaa
arbitrators. They mentioned that Germany had not first given notice to
Portugal of the intention to carry out reprisals. The failure to provide notice
and an opportunity to cease or repair the wrong, undermined the argu-
ment that the reprisals were necessary. The same can be said in cases where
a state takes countermeasures before first providing notice.
Prior Dispute Resolution

In addition to notice, must a state also offer or enter into third-party dis-
pute resolution if requested prior to applying countermeasures? The ILC’s
Special Rapporteur on State Responsibility Gaetano Arrangio-Ruiz argued
that offering dispute resolution before taking countermeasures is part of
the state’s obligation to peacefully settle disputes.135 He included the following
provision in one of his drafts of the Articles on State Responsibility:
In cases, however, where the dispute arises between States

Parties to the present articles, one of which has taken counter-
measures against the other, the State against which they are
taken is entitled at any time unilaterally to submit the dispute
to an arbitral tribunal to be constituted in conformity with the
Annex to the present articles.136
This provision would have created, in effect, a general compulsory bind-

ing dispute settlement requirement in international law. It would have
obviated the problem of self-judging, the abuse of countermeasures by
more powerful states and the problem of escalating measures.137 Such
134
See Gaetano Arrangio-Ruiz, Counter-measures and Amicable Dispute Settlement, 5 EJIL 20
(1994).
135
Roberto Ago, Special Rapporteur of the International Law Commission, Fourth Report on
State Responsibility – Addendum, Doc.A/CN.4/444/Add.1 (1992).
136
State Responsibility, UN Doc. A/CN.4/L.513 (July 14, 1995) art. 58(2).
137
See Report of the International Law Commission on the work of its fiftieth session, UN
GAOR, 53d Sess., Supp. No. 10, para. 35–37, U.N. Doc. A/53/10 (1998). Oscar Schachter,

problems were seen in the 1980s when small, South Pacific Island states
seized US fishing vessels for unlawful fishing. The US then took counter-
countermeasures, employing economic sanctions against the islands.138
Despite episodes like this, in the end, too few governments supported the
prior dispute settlement. It did not make it into the final version of the
Articles on State Responsibility. Instead the final version includes only
the requirement in Article 52 to offer negotiations before taking measures
and also in Article 52: “Countermeasures may not be taken, and if already
taken must be suspended without undue delay if: (a) the internationally
wrongful act has ceased and (b) the dispute is pending before a court or
tribunal which has the authority to make decisions binding on the parties.”
Arangio-Ruiz’s proposal may have been ahead of its time, but in fact
countermeasures are the subject of ever-greater restraint. His proposal is
being realized indirectly. Article 52’s requirement of offering negotiation,
for example, is now found in the countermeasure cases. Indeed, Crawford’s
commentary does not indicate the source of the requirement—other than
pointing out that the more demanding forms of dispute settlement are not
yet required of states.139 Negotiation is, however, a logical extension of the
notice requirement. Notice inherently incorporates an opportunity to
respond and that response is at least nascent negotiation.
More important, the many treaties now in force that require dispute
resolution prior to countermeasures are steadily building an equivalent.140
In particular, economic sanctions are now largely subject to review by the
WTO. The WTO dispute settlement system has the potential to reach
Dispute Settlement and Countermeasures in the International Law Commission, 88 Am. J. Int’l L.
471 (1994); De Hoogh supra note 80, at 234–41.
138
See Remarks of Camillus S.N. Narakobi, Emerging Legal Regimes in the Pacific, 82 Am. Soc’y
Int’l L. Proc. 351, 359–62.
139
Crawford, supra note 17, at 297–98.
140
See, e.g., Understanding on Rules and Procedures Governing the Settlement of Disputes,
Annex 2 to Agreement Establishing the World Trade Organization, reprinted in 33 ILM 1144
(1994) (consultation and trial-type procedures); North American Free Trade Agreement, Dec.
8, 11, 14, 17, 1992, ch. 20, U.S.-Can.-Mex., 32 ILM 289 (1993) (consultations and arbitration);
United Nations Convention on the Law of the Sea, 21 ILM 1241, Part XV (conciliation and
compulsory trial procedures); and the Vienna Convention on Succession of States in Respect
of Treaties, contained in Report of the International Law Commission to the General Assembly
on the Work of its twenty-sixth Session, UN GAOR, 29th Sess., Supp. No. 10, at 4, art. 41, UN
Doc. A/9610/Rev.1 (1974), art. 2(d), at 1490 (consultation and negotiation); the Convention
on the Law of the Non-Navigational Uses of International Watercourses, GA Res. 51/229, UN
Doc. A/RES/51/229 annex, art. 33 (May 21, 1997), 36 ILM 700 (1997) (consultation and nego-
tiation); Convention on Biological Diversity, art. 27, June 5, 1992 reprinted in 31 ILM 818
(1992) (consultation and negotiation).

most applications of unilateral economic sanctions. The WTO clearly

restricts the use of countermeasures pending the outcome of the dispute
resolution process—it is a so-called, self-contained regime.141 Questions
related to human rights and the environment, outside the WTO’s purview
of trade, have become the basis of cases on the use of economic sanctions
for the enforcement of international legal rights that have gone to the
WTO’s Dispute Settlement Body.142 The WTO’s control over the use of
economic sanctions, together with the many other treaty obligations
requiring prior third-party involvement, suggests we are nearing the situ-
ation de facto that the ILC wished to mandate de jure, namely, that the
imposition of countermeasures be subject to prior dispute resolution.
For example, the EU took the US to the DSB to protest two uses of
economic sanctions by the US to achieve nontrade goals. The Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1996143 focuses on
Cuba’s unlawful expropriation of alien property, but its general purpose is
to promote democracy in Cuba.144 Its aim is not primarily to regulate trade
between the two states, rather to impose a variety of measures to enforce
both a clear rule of international law (against the expropriation of alien
property) and a less clear one (the obligation of Cuba to be a democratic
state). According to Andreas Lowenfeld:
The Act is a mixture of codification of existing economic sanc-

tions previously imposed pursuant to executive orders; induce-
ments and promises related to restoration of democracy in
Cuba; threats against persons from third countries that do busi-
ness with Cuba; a new, unprecedented remedy for expropria-
tion; and restrictions on entry into the United States by persons
who “Traffic in confiscated property” or who are affiliated with
such persons by ownership, employment or family.145
Although the focus of the Helms-Burton Act is not a matter regulated

under the WTO, the EC took the United States to WTO dispute settlement
141
See generally, Simma & Pulkowski, supra note 130; Bruno Simma, Self-Contained Regimes,
16 Neth. Y.B. Int’l L. 111 (1985).
142
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).
143
22 U.S.C. § 6021 (2008).
144
Clagett, supra note 120.
145
Andreas F. Lowenfeld, AGORA: The Cuban Liberty and Democratic Solidarity (LIBERTAD)
Act, Congress and Cuba: The Helms-Burton Act, 90 AJIL 419 (1996).

because of the methods employed by the Helms-Burton Act, also called

the LIBERTAD Act. On May 3, 1996, the EC requested the establishment
of a dispute settlement panel with the United States, arguing that the US
was in violation of various GATT provisions as well as provisions of the
General Agreement on Trade in Services. The panel suspended its work at
the EC’s request on April 25, 1997,146 when President Clinton withheld
implementation of the Helms-Burton Act.
Europe again took the US to the DSB when the state of Massachu-
setts sought to prohibit state government purchases from corporations
doing business with the military dictatorship of Burma, also known as
Myanmar. The aim of the law was to induce Burma to respect human rights,
especially to desist from the practice of using forced or slave labor.147 The
EU and Japan initiated proceedings at the WTO, charging that the
Massachusetts law and, therefore, the US, were in violation of the WTO
agreement on government procurement.148 They suspended the case pend-
ing decision by US courts on the constitutionality of the law. The US
Supreme Court found the law unconstitutional.149
Thailand, India, and Malaysia took the US to the DSB in a case that
unlike the EU cases just reviewed, received a decision. The Shrimp-Turtle
case indicates how the DSB is likely to treat economic sanctions aimed at
nontrade wrongs. Shrimp-Turtle first showed the extent to which states
may take countermeasures inconsistent with the WTO agreement. Or, for
our purposes, this means to what extent economic sanctions inconsistent
with the WTO can be used as countermeasures. States may take GATT-
inconsistent measures to protect national security or the life or health
of nationals.150 States may take such measures to force compliance with
146
Communication from the Chairman of the Panel, United States-The Cuban Liberty and
Democratic Solidarity Act, WT/DS38/5 (April 25, 1997).
147
Douglass W. Cassel, Jr., Massachusetts Tossed from Foreign Policy Arena, Chi. Daily Bull.,
June 26, 2000, at 6.
148
Measures Affecting Government Procurement, Request for Consultations by the European
Communities, WTO Doc. WT.DS88/1 (June 26, 1997).
149
Crosby v. National Foreign Trade Council, 530 U.S. at 363.
150
“Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the
same conditions prevail, or a disguised restriction on international trade, nothing in this
Agreement shall be construed to prevent the adoption or enforcement by any contracting
party of measures: . . . (b) necessary to protect human, animal or plant life or health; . . . (g)
relating to the conservation of exhaustible natural resources if such measures are made effec-
tive in conjunction with restrictions on domestic production or consumption.” The General
Agreement on Tariffs and Trade, art XX Oct. 30, 1947, 61 Stat. pt. 5, 55 UNTS 19 (GATT 1994

environmental protection, even protection of the environment beyond

the national jurisdiction. Countermeasures must not be discriminatory
and must be the least trade-restrictive option that will accomplish the
purpose.
Sea turtles are an endangered species listed by the parties to the
Convention on the International Trade in Endangered Species. A chief
cause of their endangerment is shrimp trawling. Sea turtles become
enmeshed in shrimp nets and suffocate. Since 1987, the United States has
required all American shrimpers to either use turtle excluder devices on
their shrimp nets or limit the time when they trawl.151 Sea turtles are
migratory, however, and the US acting alone to protect sea turtles could
have little positive impact. In 1989, the US Congress added provisions to
the Sea Turtle Protection Law, requiring the US Secretary of State to
pursue negotiations with other countries aimed at developing turtle pro-
tection treaties and prohibiting shrimp imports from countries that
endanger turtles by not having a regulatory program comparable to that
in the US, as certified by the president.152
India, Pakistan, Malaysia, and Thailand requested a panel of the
WTO DSB to declare the US law GATT-unlawful.153 The panel, in a deci-
sion largely following a GATT panel decision prior to the formation of the
WTO, the Tuna-Dolphin decision,154 found the US statute unlawful on a
number of grounds, including that the US could not take measures to pro-
tect the environment beyond national jurisdiction nor take measures
aimed at how the processing of a product rather than at the product
itself—in this case the shrimp.155 The DSB Appellate body, however, while
includes the provisions in the General Agreement on Tariffs and Trade, dated Oct. 30, 1947,
see 33 ILM 1125, 1144 (1994). Final Act Embodying Results of the Uruguay Round of
Multilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments – Results of the Uruguay
Round vol. 1 (1994), 33 I.M 1125, 1144 (1994).
151
16 U.S.C. §§ 1531–44 (2008); 50 C.F.R. § 223.206 & 223.207 (1998).
152
Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations Act of 1990 § 609, Pub. L. No. 101-162, 103 Stat. 988, 1037-38 (1989); see also
Eric L. Richards & Martin McCroy, The Sea Turtle Dispute: Implications for Sovereignty, the
Environment and International Trade Law, 71 U. Colo. L. Rev. 295 (2000).
153
United States - Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc. WT/
DSB/7/31 (May 12, 1997).
154
Panel Report, United States—Restriction on Imports of Tuna (Aug. 16, 1991), GATT Doc.
D29/R (1991), 30 ILM 1594, P 5.13 (1991); Panel Report, United States—Restriction on
Imports of Tuna, GATT Doc. DS21/r (1994), 33 ILM 839 (1994).
155
Panel Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products,
37 ILM 832 (May 15, 1998).

still finding the US law GATT-unlawful, found the US purpose permissi-

ble. The US law “serves an environmental objective that is recognized as
legitimate” but it “has been applied by the United States in a manner which
constitutes arbitrary and unjustifiable discrimination between members
of the WTO. . . .”156
Thus, states may take unilateral countermeasures even in the form
of economic sanctions to enforce well-recognized international environ-
mental protection law. Arguably they may also use countermeasures to
enforce the labor standards of the International Labor Organization (ILO)
treaties. While some might be concerned by the potential negative impact
of such rights on free trade, the WTO’s dispute settlement system will
oversee such countermeasures ensuring they are the least trade restrictive,
non-discriminatory and aimed at one of the human health or environment
exceptions to the GATT.
As Arangio-Ruiz and Schachter have pointed out, in the current
state of international relations, countermeasures will remain at the core of
state responsibility. The reason for this is their wide availability and the
absence of centralized enforcement. States continue to use and insist on
the right to use coercive measures to protect legal rights. Even in those
cases in which states have agreed to resort to dispute resolution before
taking countermeasures, countermeasures may be the means to induce
parties to comply with that agreement. Article 50 does not require the
suspension of countermeasures “if the responsible State fails to implement
the dispute settlement procedures in good faith.”
The mechanism of countermeasures may be needed to bring
wrongdoers to dispute resolution in the first instance—very much as
was the case in the Air Services case.157 So, too, in the Hostages case, when
Iran ignored the appropriate remedy for its grievances, the US protected
its rights and the rights of its nationals with countermeasures. The US
tried to employ dispute resolution but Iran ignored the initiative. Thus,
states remain free to use countermeasures without prior dispute resolu-
tion. Nevertheless, considerable restraints exist on the lawful use of
countermeasures.
156
Appellate Body, United States – Import of Certain Shrimp and Shrimp Products, Oct. 12,
1998, 38 ILM 118, 174–75 (1999).
157
Schachter, supra note 2, at 188–89.

Self-help by victims of law violation is a feature of all law. It is prob-

ably correct to say it is a more important feature of international law than
national law. Lacking a central police force and compulsory courts, the
international legal system requires a flexible available means for enforcing
the law. Countermeasures are the means available to states and organiza-
tions acting on their own to ensure their rights. Although countermeas-
ures are measures of self-help, they are not “lawless” in the sense that
anything goes. Owing to a series of international decisions on counter-
measures and the work of the ILC, the application of countermeasures
must comply with four basic conditions: they must follow a wrong, after
giving notice, be proportional to the injury, and be aimed at inducing
compliance. Increasingly, they are subject to neutral dispute resolution
first, whether under the WTO agreements, the law of the sea, bilateral
treaties, or the like.
In actual practice, the need for effective sanctions to be coordinated
has meant that in a large number of cases international organizations are
deliberating about sanctions regimes. In these cases, the application of
coercive measures is not the idea of the victim of a law violation alone.
They avoid the subjectivity and potential bias inherent in that situation.
They are certainly preferable to unilateral measures and are the subject of
the next chapter. Still, it is central to every legal system that rule violations
be subject, at least potentially, to a sanction. Countermeasures provide the
potential sanction to every rule of international law. They are likely to
remain an important part of international law for the foreseeable future.

Chapter 7
Collective
Countermeasures
O n July 2, 2001, United States Secretary of State Colin Powell suc-

ceeded after intense negotiations in persuading the United Nations
(UN) Security Council to keep sanctions against Iraq in place, sanctions
that had originally been adopted in 1991.1 Powell made the case that Iraq’s
leader Saddam Hussein still intended to acquire weapons of mass destruc-
tion, and, therefore, the inputs to such weapons had to be kept out of Iraq.
The media reports of the suffering of the Iraqi people as a result of the sanc-
tions were failing to detect Saddam’s role in diverting food and medicine
from his own people. On March 19, 2003, the United States, Britain, and
Australia invaded Iraq, arguing that Saddam’s programs for developing
weapons of mass destruction had to be stopped. No weapons and no weap-
ons programs were ever found. Rather, the coalition found warehouses full
of food, medicine, and other goods for the population purchased by Iraq
under the UN’s oil for food program, but stored away so that the Iraqi
1
See, in particular, S.C. Res. 687, UN Doc. S/RES/687 (Apr. 3, 1991); S.C. Res. 1360, UN Doc.
S/RES/1360 (July 3, 2001).

people would suffer visibly for the cameras. The collective measures
against Iraq had worked for their intended purpose of preventing a ruth-
less dictator from getting some of the world’s most destructive weapons,
but at terrible cost.
This chapter discusses collective measures of enforcement, that is,
the use of measures by groups—mostly groups of states organized under a
treaty. Such groups tend to engage in two categories of enforcement action:
They enforce their own rules—those internal to the group or organiza-
tion—and they play a role in enforcing general rules of international law
or law external to the group. In considering either of these categories of
collective enforcement, the classic starting place is the treaty. Most groups
able to organize collective measures operate under a treaty, either a
constituent instrument establishing an organization or a regulatory treaty
implemented through various bodies but not amounting to a classic
organization. These two structural types, organizations and parties to a
multilateral treaty, are traditionally categorized separately. For purposes
of understanding how enforcement works, however, the principles are
similar, and the two categories can be considered together.2 A group of
states not organized under a treaty but simply coordinating their efforts
are treated as so many states acting unilaterally. The law applicable to
unilateral measures just discussed in Chapter Six, “Unilateral Counter-
measures,” generally applies in those cases.3
Familiar examples of multilateral treaties with enforcement provi-
sions include: the United Nations Charter (the UN Charter or the Charter)
with enforcement provisions that range from loss of voting rights to
major military operations; the Articles of Agreement of the International
2
Sands and Klein write that a variety of multilateral treaties, for example, in the area of the
environment, may not establish classic intergovernmental organizations but nevertheless,
“emerge in practice as international organisations.” Philippe Sands & Pierre Klein,
Bowett’s Law of International Institutions 15 (5th ed. 2001). See also José E. Alvarez,
International Organizations as Law-Makers 1–17 (2006); Dan Sarooshi, Inter-
national Organizations and their Exercise of Sovereign Powers (2005).
3
The Proliferation Security Initiative (PSI) is an example. President Bush described it as “part-
nerships of states working in concert, employing their national capabilities to develop a broad
range of legal, diplomatic, economic, military, and other tools to interdict threatening ship-
ments of WMD and missile-related equipment and technologies.” Rebecca Weiner, Proliferation
Security Initiative to Stem Flow of WMD Matériel (July 16, 2003), available at http://cns.miis.
edu/pubs/week/030716.htm. The law relevant to states participating in PSI is the same
whether they are seeking to interdict weapons unilaterally or collectively.

Collective Countermeasures
Monetary Fund;4 the Convention on the International Trade in Endan-

gered Species;5 the Vienna Convention on the Ozone Layer,6 and the
United Nations Convention on the Law of the Sea.7 Multilateral treaties
like these commonly feature provisions for assuring compliance by
parties. The theory is that enforcement provisions reassure the state that,
although it may have given up some sovereignty to accomplish the shared
goals agreed to in the treaty, it has done so on the basis of equality with
other parties. Enforcement mitigates any free-rider or related problems.8
Knowing that noncompliance will be detected and addressed is believed
to foster trust, and, in turn, cooperation in achieving the regime’s goal.
By contrast, few, if any, multilateral treaties include provisions for
violations of internal or external law by the international organization
itself.9 In some cases, in which organizations committed wrongs under the
constituent instrument or general international law, states have taken
countermeasures against the organization. For example, the Soviet Union,
France, the United Kingdom, and the United States have all at various
times withheld dues from the United Nations or its specialized agencies
when they believed the UN or agency was in violation of the UN Charter.
The right to withhold dues is not mentioned in the UN Charter. Similarly,
although many of the important multilateral treaties in the areas of human
rights, trade, and the environment have enforcement provisions, gaps are
filled by looking to customary international law. The question of whether
members of an organization can be held responsible for the wrongs of the
organization must also be answered in general international law.
Thus, the relevant treaty is the starting place, but the use of collec-
tive measures is also subject to the rules of customary law and general
principles. The examples are not as extensive as in the previous chapters,
4
Articles of Agreement Respecting the International Monetary Fund, Dec. 27, 1945, 20 UST
2775; 29 UST 2203 (as amended through 1992), 2 UNTS 39 [hereinafter Articles of
Agreement].
5
Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3,
1973, 27 UST 1087, reprinted in 12 ILM 1085 [hereinafter CITES].
6
Vienna Convention for the Protection of the Ozone Layer, Mar. 22, 1985, TIAS No. 11097,
1513 UNTS 293.
7
United Nations Convention on the Law of the Sea: Part XV, Dec. 10, 1982, UN Doc.
A/CONF.62/ 122 (1982), reprinted in United Nations, Law of the Sea (1997).
8
Ronald B. Mitchell, International Oil Pollution at Sea: Environmental Policy
and Treaty Compliance 39–51 (1994).
9
Sands & Klein, supra note 2, at 513. This section will not consider the European Union,
considering that it is a sui generis entity at present, somewhere between an international
organization and a federal state.

yet, what we can find does indicate that principles such as notice prior to
the application of measures, proportionality, targeting the wrongdoer, and
restricting the use to a proper purpose apply to enforcement measures
taken by groups.10 These apply even though a relevant treaty does not
specifically require them.
I. Collective Enforcers
Multilateral treaties commonly include provisions for enforcing the obli-
gations of organization members and treaty parties. Classic international
organizations are permanent establishments, usually with a headquarters.
They tend to have a plenary organ, an executive council, a secretariat, and
subsidiary organs.11 The secretariat is usually headed by a secretary general
or director, who has broad administrative authority and a leadership func-
tion. Examples include the United Nations, the International Monetary
Fund (IMF),12 the Chemical Weapons Organization,13 the International
Atomic Energy Agency (IAEA),14 and the World Trade Organization (WTO).15
Organizations with the attributes just described have international legal
personality, something beyond what is found among other groups of states
committed to the same treaty. The International Court of Justice (ICJ), in
an advisory opinion, Reparation for Injuries Suffered in the Service of the
10
“[I]t is largely accepted that the rules governing the responsibility of states may apply equally
to international organisations, with the necessary modifications.” Id. at 519–20.
11
“The term international organization denotes an association of States established by and based
upon a treaty, which pursues common aims and which has its own special organs to fulfill
particular functions within the organization. . . . [W]hen we speak of an international organ-
ization as an organized association of States with organs . . . having defined functions . . . these
organs are of the organization itself and not of the member States, even though composed of
the latter. Rudolf L. Bindschedler, International Organizations, General Aspects, 1289, 1289–90
in 2 Encyclopedia of Public International Law (Rudolf Bernhardt ed., 1992).
12
Articles of Agreement, supra note 4.
13
Convention on the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction, Jan. 13, 1993, 32 ILM 800 (1993).
14
Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 493, 79 UNTS
161.
15
Agreement Establishing the World Trade Organization, Apr. 15, 1994, 33 ILM 1144 [herein-
after WTO Agreement]; Understanding on Rules and Procedures Governing the Settlement
of Disputes, Apr. 15, 1994, WTO Agreement, Annex 2, 33 ILM 1224, 1226 (1994) [hereinafter
DSU].

United Nations, discussed international legal personality in the context of

the United Nations:
[Possessing international legal personality] is not the same

thing as saying that it is a State, which it certainly is not, or
that its legal personality and rights and duties are the same as
those of a State. Still less is it the same thing as saying that it is
“a super-State,” whatever that expression may mean . . . . What
it does mean is that it is a subject of international law and
capable of possessing international rights and duties, and that
it has capacity to maintain its rights by bringing international
claims.16
The ICJ’s finding on international legal personality suggests a strict

separation between those treaties establishing international organizations
with personality and those treaties that do not. Yet, a number of complex,
multilateral treaties devoted to programs in particular issue areas also
have secretariats, executive councils, and plenary organs. The treaty par-
ties convene periodically to review the implementation or revision of the
treaty. Rather than subsidiary organs, these programmatic treaties tend to
have working groups. The secretariats are usually administrative only,
without the ability to lead or take initiatives on behalf of the treaty parties.
But, in general, they are quite similar to international organizations. The
Convention on the International Trade in Endangered Species, the Vienna
Convention on the Ozone Layer, the United Nations Convention on the
Law of the Sea, most human rights treaties and many arms control agree-
ments are examples of complex treaty arrangements that are not strictly
international organizations in the same category as the UN, IMF, WTO, etc.
Despite the fact that some treaties establish organizations with
international personality and others do not, the strict separation is
difficult to maintain and for many purposes is not significant. Personality,
for example, is a question of degree—of how many rights and duties states
have conferred on an organization. It may be that parties to a multilateral
treaty have authority to bring a claim and an international organization
16
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
1949 I.C.J. 174, 179 (Apr. 11) [hereinafter Reparations case]; see also Derek W. Bowett, The
Law of International Institutions 299–304 (3d ed. 1975).

does not. A clear line separating organizations and multilateral treaty

parties acting collectively may not exist.17 The discussion shows that
multilateral treaties and organizations often have similar enforcement
provisions for ensuring compliance with the rules internal to the relevant
treaty.
II. The Law and Practice of Collective Enforcement

The discussion of law and practice considers first the enforcement of the
organization or treaty regime’s obligations on members or parties—what
will be referred to here as “internal” enforcement. This topic is contrasted
with the next one that concerns “external” obligations, which are generally
rules not found within the relevant treaty. Rights and responsibilities of an
international organization, for example, may be established by general
international law rather than the organization’s constituent instrument.
External enforcement will be discussed in the next section.
Internal Enforcement
Internal law, the subject here, refers to “any enactments made by the
organization, including those directly addressed to States and directly
regulating their conduct.”18 The internal law can include the rules relating
to the functioning of the organization or treaty or to the substantive
rules designed to fulfill the treaty’s particular purpose. Rules relating to
functioning include procedural and administrative rules such as rules on
voting, financial matters, conduct of meetings, and so forth. Even though
17
David Bederman has written:
In this century we have left a world of absolutes. States are no longer “absolute individuals,”
the sole subjects of international law. The idiom of juridical personality for institutions
is no longer absolute either, yielding now to its conceptual twin of community and
community interest in international law.
David J. Bederman, The Souls of International Organizations: Legal Personality and the
Lighthouse at Cape Spartel, 36 Va. J. Int’l L. 275, 377 (1996). Multilateral treaties are, like
organizations, communities, “epistemic communities” in Bederman’s terms. Id. at 373.
18
Krzysztof Skubiszewski, Enactment of Law by International Organizations, 41 Brit. Y.B.
Int’l. 198, 226 (1965–66), citing Cahier, Le Droit Interne des Organisations Internationales,
67 Revue Generale De Droit International Public 563, 581–82 (1963). See also Rudolf
Bernhardt, International Organizations, Internal Law and Rules, in 2 Encyclopedia of
Public International Law, supra note 11, at 1315.

internal to a treaty, these rules are still a type of international law.19

Sometimes parties to the treaty fail to abide by internal law and sometimes
the regime itself fails to comply. Both types of violations can result in
enforcement action, regulated by international law.
States that fail to comply with internal law may face denial of member
rights, denial of member benefits, denial of membership, penalties, and
countermeasures.20 If a member fails to pay assessed dues, for example, it
may lose voting rights.21 Violating substantive provisions may result in
loss or suspension of membership or access to benefits, such as financial
resources. In the absence of specific measures, the Vienna Convention on
the Law of Treaties also provides for the termination or suspension of a
multilateral treaty in whole or in part if a party has committed a material
breach. Nevertheless, the more common approach is to use countermeas-
ures against violators rather than suspension or termination.22
When the organization or treaty regime itself violates internal law,
the treaties provide for consequences. Some, like the UN Charter and the
treaties establishing the UN specialized agencies, provide for resort to the
ICJ for advisory opinions to clarify legal issues. But if an organization persists
in violating the law, even after resort to the ICJ, it is an open question as to
how members may respond. The Soviet Union, France, the United States,
and the United Kingdom have taken the position regarding the United
Nations and its specialized agencies that it is permissible to withhold dues
from the organization in certain situations, including as a response to
illegality. Withholding dues is not, however, specified in any treaty.
19
It is now accepted that the internal law of international organizations is also part of interna-
tional law. Bindschedler, supra note 11, at 1289–90:
An organization’s constituent treaty is the basis of both its establishment and its opera-
tion. It contains—in a substantive, not a formal sense—the organization’s constitution.
This constitution must at least provide for the organization’s chief organ and the powers
of that organ. In addition to rules prescribing the structure of the organization, there will
be provisions concerning the purpose of the association and the rights and duties of
member States. Along with provisions of this kind, rules are frequently encountered
which are similar in content to those of administrative law, the law governing civil serv-
ants, procedure and even criminal law in municipal systems. However, this internal law of
associations of States ranks as international law in the same way as the other provisions.
20
Frederic L. Kirgis, Jr., International Organizations in Their Legal Settings 555,
558, 564, 583 (2d ed. 1993).
21
See, e.g., UN Charter art. 19.
22
See infra pp. 273, 282–85.

The exercise of any of these forms of collective enforcement is argu-

ably conditioned. It seems reasonable to conclude that unless the relevant
treaty provides otherwise, in taking enforcement measures, states and
organizations need to respect the same enforcement principles applicable
to unilateral countermeasures: response to a prior wrong, following notice,
respecting proportionality, and with the goal of inducing compliance.
These conditions should apply even in the case of a treaty with detailed
enforcement provisions as part of general international law.
The general right to enforce internal obligations, even in the case of
a treaty without detailed enforcement provisions, can be found in the
implied powers doctrine. Courts have developed the doctrine of implied
powers to fill the inevitable gaps found in texts of living instruments. In
Jurisdiction of the European Commission of the Danube, the Permanent
Court of International Justice said “an international institution with a
special purpose . . . has the functions bestowed upon it by the definitive
Statute with a view to the fulfillment of that purpose, but it has power to
exercise these functions to their full extent, in so far as the Statute does not
impose restrictions upon it.”23 Twenty years later, the ICJ built on the
European Commission of the Danube in Reparation for Injuries Suffered in
the Service of the United Nations.24 It found that despite the silence of the
UN Charter on the question of the UN’s ability to bring a claim on its own
behalf on the international plane, such a claim could be made if it were
necessary to fulfill the UN’s objectives. The ICJ said that implied powers
must not be inconsistent with express powers; it indicated no other limits,
however, on the scope of implied powers.25 Bowett goes so far as to argue
that organizations even have powers simply relating to their functions and
not just those necessary to them.26 The Reparations case itself concerned
the UN’s right to bring a claim against Israel for the assassination of a UN
envoy, Count Folke Bernadotte. Being able to enforce the claim would be
23
The Jurisdiction of the European Commission of the Danube between Galatz and Braila,
Advisory Opinion, 1927 P.C.I.J. (ser. B) No. 14, at 64 (Dec. 8); cited in A.I.L. Campbell, The
Limits of the Powers of International Organizations, 32 Int’l & Comp. L.Q. 523 (1983). See also
Elihu Lauterpacht, The Legal Effect of Illegal Acts of International Organizations, in Cambridge
Essays in International Law: Essays in Honour of Lord McNair 88, 100 (1965);
Competence of the International Labour Organization to Regulate Incidentally, the Personal
Work of the Employer, 1926 P.C.I.J. (ser. B) No. 13 (July 23).
24
Reparations Case, 1949 I.C.J. at 180–81. See also Effect of Awards of Compensation Made by
the United Nations Administrative Tribunal, Advisory Opinion, 1954 I.C.J. 47 (July 13).
25
Campbell, supra note 23, at 524–25.
26
Bowett, supra note 16, at 301.

part of the right to make the claim in the first place. Israel paid the claimed
reparations following the ICJ advisory opinion.27
The IMF appears to offer an example against Bowett’s position. The
IMF decided in 1992 to formally amend its constituent treaty, the Articles
of Agreement, to add a new enforcement mechanism. The IMF chose not
to simply imply the right to take enforcement action. One writer has con-
cluded that the IMF may not lawfully imply sanctions. John Head describes
several instances of organizations implying powers to expel members or
suspend their participation in organization. Yet he concludes that
the preceding analysis of the relevant sources of international

law rejects the proposition that an international organization
has authority under the doctrine of implied powers to impose
exclusionary sanctions apart from those expressly provided
for in its charter. The practice of international organizations
does not prove the existence of any such general rule. Instead,
the practice strongly suggests just the opposite, that no such
implied power exists. Furthermore, the weight of legal scholar-
ship leans in the same direction. Commentators have generally
criticized exclusionary actions that can be justified only on
grounds of implied powers. While acknowledging that rules
of custom necessarily follow behavior (for better or worse),
the majority of commentators find, as a factual matter, no
general implied power of an international organization to
impose exclusionary sanctions.28
By exclusionary sanctions, Head means either expelling or suspending

members, including suspending voting rights. He seems to be right regard-
ing the IMF, not because of insufficient state practice to support implying
sanctions, but, rather, starting with the IMF Articles of Agreement and
what is properly implied from them: The IMF may not have an exclusionary
sanction because such a sanction would clash with express provisions.
As Judge Moreno Quintana wrote in the Certain Expenses case with regard
27
See David J. Bederman, The Reparation for Injuries Case: The Law of Nations is Transformed
into International Law, in International Law Stories 307 (John E. Noyes et al. eds.,
2007).
28
John W. Head, Suspension of Debtor Countries’ Voting Rights in the IMF: An Assessment of the
Third Amendment to the IMF Charter, 33 Va. J. Int’l L. 591, 628 (1993).

to the UN, “The implied powers which may derive from the Charter so
that the Organization may achieve all of its purposes are not to be invoked
when explicit powers provide expressly for the eventualities under consid-
eration.”29 In the case of the IMF, the Articles of Agreement already
provided for sanctions, so no additional ones could be implied. They had
to be formally adopted: “[T]he imaginativeness of the IMF is subject to
the limitation that it must remain with the boundaries of the treaty.”30
A similar conclusion was reached when numerous states tried to
exclude Israel and South Africa from the UN. Other members argued
such exclusion was inconsistent with provisions of the UN Charter, in
particular, Article 5:
A Member of the United Nations against which preventive or

enforcement action has been taken by the Security Council
may be suspended from the exercise of the rights and privi-
leges of membership by the General Assembly upon the
recommendation of the Security Council. The exercise of these
rights and privileges may be restored by the Security Council.31
Owing to this express provision, members could not imply that Israel or
South Africa could be expelled for reasons other than those set out in the
Article.
As with the IMF Articles of Agreement and the UN, many treaties
provide express enforcement measures that range from the use of armed
force to enhanced reporting requirements. The UN Security Council has
authority to use force against any state committing a threat to the peace,
breach of the peace or act of aggression. The Security Council also has
express authority in Article 41 to use economic and similar measures.32
Organizations and treaty regimes such as the Universal Postal Union, the
UN Convention on the Law of the Sea (UNCLOS), the Convention on the
International Trade in Endangered Species (CITES), the International
Atomic Energy Agency (IAEA), and the Organisation for the Prohibition
29
Certain Expenses of the United Nations Advisory Opinion, 1962 I.C.J. 151, 245–46 (July 20)
[hereinafter Expenses Case].
30
Joseph Gold, The IMF Invents New Penalties, in 1 Towards More Effective Supervision
of International Organizations, Essays in Honour of Henry G. Schermers 127, 134
(Niels Blokker & Sam Muller eds., 1994).
31
UN Charter art. 5.
32
See, generally, Mary Ellen O’Connell, Debating the Law of Sanctions, 13 EJIL 63 (2002).

of Chemical Weapons have similar authority to sanction noncomplying

states.
By 2000, the Security Council had imposed mandatory economic
sanctions in ten cases in which it had found international peace had been
threatened or breached.33 Two cases occurred during the forty years of
the Cold War, and eight in the first ten years after the Cold War. The first
time the Security Council called upon members to impose sanctions, they
were voluntary economic sanctions on the white minority regime in
Rhodesia in 1965. The Security Council made a finding that the situation
in Rhodesia threatened international peace.34 The Security Council then
imposed mandatory economic sanctions in 1966 under Articles 39 and
41.35 These sanctions were expanded in 1968.36 In 1977, the UN ordered all
members to join a comprehensive arms embargo on South Africa. The
Security Council found that, “the acquisition by South Africa of arms and
related material constitutes a threat to the maintenance of international
peace and security.”37
As discussed in Chapter Five, “Collective Armed Measures,” since
the 2005 United Nations World Summit, there is little doubt that the
Security Council has the authority to respond to serious humanitarian
crises.38 Some scholars argue that the economic sanctions applied to both
Rhodesia and South Africa are examples of the Security Council’s right
to enforce human rights norms unrelated to international peace and
security.39 Yet, the Security Council itself made formal findings in both
instances that international peace was endangered. International borders
had, in fact, been crossed by belligerents. In the South Africa case, both
sides violated the border. It was only in Rhodesia, therefore, that the
Security Council imposed sanctions on the entity that was arguably the
victim of the international aggression. The Security Council must act in
conformity with international law, but the minority regime in Rhodesia
33
Afghanistan, Iraq, Libya, Somalia, South Africa, Yugoslavia, Liberia, Haiti, part of Angola and
Southern Rhodesia.
34
S.C. Res. 217, U.N. Doc. S/RES/217 (Nov. 22, 1965).
35
S.C. Res. 232, U.N. Doc. S/RES/232 (Dec. 16, 1966).
36
S.C. Res. 253, U.N. Doc. S/RES/253 (May 29, 1968).
37
S.C. Res. 418, U.N. Doc. S/RES/418 (Nov. 4, 1977).
38
See supra, ch. 5.
39
See Fernando R. Tesón, Collective Humanitarian Intervention, 17 Mich J. Int’l L. 323, 369
(1996); see also Vera Gowlland-Debbas, Collective Response to Illegal Acts in
International Law: United Nations Action in the Question of Southern Rhodesia
(1990).

could be considered to have sparked the international armed conflict. The

Security Council would appear to have acted in conformity with the UN
Charter and general international law.
It is also likely that sanctions are no longer in the same legal cate-
gory as armed force. For a time, economic sanctions would clearly have
been considered “enforcement action,” in need of Security Council author-
ization per Article 53, but, for many years, states have imposed sanctions
without such authorization. Today, it would be difficult to conclude that
economic sanctions should be classified as “enforcement action.” 40 The
UN General Assembly organizes economic sanctions in situations in
which it has no authority to organize the use of armed force. This point
will be discussed in more detail below, but for purposes of the scope of the
Security Council’s authority it has used economic sanctions even in situa-
tions where it may not have had the authority to use force. This is certainly
the case with respect to the financial measures it has imposed in response
to the problem of terrorism.
The general international law rules respecting coercive measures
short of armed force arguably apply to Security Council sanctions. In the
case of the sanctions imposed on Iraq, at the outset, the purpose was
consistent with the law—providing for the defense of Kuwait and other
states by preventing Iraq from acquiring weapons of mass destruction.
How should the UN have responded, however, if a dictator did not
permit essentials to reach the population and was impervious to the
suffering that he created? In light of the requirement of proportionality,
sanctions should be modified as necessary, keeping them in line with the
injury. Rather than the UN’s wide, sweeping sanctions, an export-control
40
See Peter Malanczuk, Countermeasures and Self-Defense as Circumstances Precluding
Wrongfulness in the International Law Commission’s Draft Articles on State Responsibility, in
United Nations Codification of State Responsibility 197, 236 (Marina Spinedi &
Bruno Simma eds., 1987). Examples of economic sanctions prior to Security Council author-
ization include the European Union, Russian, and US economic sanctions on Yugoslavia
before the Security Council ordered such sanctions. See EU Agrees to Arms, Embargo,
Sanctions, Against Yugoslavia, Stars and Stripes, Mar. 22, 1998. The Organization of
American States imposed economic sanctions on Haiti before Security Council authoriza-
tion. See John M. Goshko, OAS Votes Tough Sanctions on Haiti, Seeks to Send Observer
Mission; Junta is Pressured to Resume Talks, Wash. Post, Oct. 9, 1991, at A1. The United States
imposed economic sanctions on Iraq immediately in the aftermath of Iraq’s invasion of
Kuwait, before the UN mandated such sanctions. See Exec. Order No. 12,723, 55 Red. Reg.
31,805 (Aug., 1990); Exec. Order No. 12,725, 55 Fed. Reg. 33,091 (Aug. 9, 1990). See also supra
ch. 6 pp. 243–48.

process focused narrowly on weapons inputs, especially for nuclear weapons,

would have been far more proportional to the danger and would have
been more appropriate. Post Iraq sanctions have focused on national lead-
ers rather than the populations as a whole. Such targeted sanctions also
have less potential to harm third states.41
The Security Council has followed the practice of giving transgressor
states notice before imposing sanctions. The UN Charter takes a stepped
approach, moving from less forceful to more forceful measures and the
Security Council has followed this approach, generally calling on a state to
conform, then imposing increasingly serious measures. This was the case
regarding South African sanctions. However, in the case of the Iraqi
invasion of Kuwait, economic sanctions were ordered within two days of
the invasion to prevent Iraq from removing assets from foreign control.42
In general, starting with the Security Council’s sanctions on
Afghanistan in 1999, new sanctions regimes have generally followed these
principles.43 The Security Council has spelled out the violations of interna-
tional law at issue; it has applied limited measures aimed at the violations
and requiring monitoring by the Secretary General for humanitarian
impact. With respect to Afghanistan, the Secretary General announced on
March 20, 2001, that no negative humanitarian impact could be traced to
the sanctions.44 This new approach to sanctions focuses far more on indi-
viduals and less on the state as a whole. The development of this approach,
known as “smart sanctions,” aims at decreasing the negative impact on
populations, which also means lessening their disproportionate effect.45
Smart sanctions have, however, raised new concerns respecting their
legality. The focus on individuals’ has raised the concern that individuals
41
UN Charter Article 50 requires that states facing special economic problems in carrying out
Security Council measures receive assistance, but the fulfillment of this obligation has been
spotty. Avoiding the problem through targeted sanctions is plainly preferable.
42
S.C. Res. 661, U.N. Doc. S/RES/661 (1990).
43
The Secretary-General, Report of the Secretary General on the humanitarian implications of the
measures imposed by Security Council resolutions 1267 (1999) and 1333 (2000) on Afghanistan
delivered to the Security Council, UN Doc. S/2001/241, (Mar. 20, 2001).
44
The Security Council’s sanctions aimed in part at eliminating Afghanistan’s poppy production—
an activity not falling clearly in the category of peace and security. Other aspects of the
sanctions aimed at forcing the extradition of Osama bin Laden. The Security Council has not
traditionally been in the business of aiding law enforcement efforts, even of notorious
suspected terrorists.
45
David Cortright & George A. Lopez, Smart Sanctions: Targeting Economic
Statecraft (2002); see also George A. Lopez, Uniting Against Terror: Cooperative
Non-military Responses to the Global Terrorist Threat (2007).

human rights are respected. The Security Council is not a court, so when
it applies sanctions against individuals suspected of support for terrorism,
human rights violations, weapons proliferation, and the like, questions of
due process, property rights and other human rights concerns arise.46 In a
case involving a resident of Saudi Arabia, Yassin Abdullah Kadi, whose
assets in the UK were frozen, the European Union’s Court of First Instance
held that the court could not rule on the legality of Security Council sanc-
tions unless there was an allegation that a jus cogens norm was violated.47
The Advocate General of the European Court viewed the matter differ-
ently. He believed that the EC must implement Security Council sanctions
in a manner consistent with the rule of law regardless of the Security
Council’s mandate.48 The right of a court to question the legality of Security
Council action is likely to arise again. Rather than face multiple contradic-
tory answers, the Council should request an ICJ advisory opinion.
Unlike the Security Council, the UN General Assembly cannot
itself mandate that members carry out sanctions. The General Assembly can
make recommendations and in doing so can be an effective coordinator.
States taking measures at the recommendation of the General Assembly
are bound to observe the conditions on countermeasures applicable to
states acting unilaterally. Still, such collective action is distinct from uni-
lateral acts. Self-judging is avoided if a majority or more members find a
violation of international law and recommend measures. Help for injured
third states can be coordinated. The resolution setting out the purpose of
the sanctions can be explicit about the conditions for their termination.
The collective wisdom can determine what is necessary and proportional,
protective of human rights, and other desiderata.
UNCLOS includes a creative means for enforcing the extensive
environmental law obligations contained in the treaty. So-called port state
enforcement permits port states to investigate ships voluntarily in their
ports for evidence of law violations, including illegal discharges in the
46
See Report of the UN High Commission for Human Rights on the Protection of Human
Rights and Fundamental Freedoms While Countering Terrorism, UN Doc. A/HRC/4/88
(2007).
47
Case T-315/01, Kadi v. Council & the Comm’n 2005 E.C.R. II-03649; see also Larissa van den
Herik, The Security’s Targeted Sanctions Regimes: In Need of Better Protection of the Individual,
20 Leiden J. Int’l L. 797 (2007) and John Dugard, Judicial Review of Sanctions, in United
Nations Sanctions and International Law 83 (Vera Gowlland-Debbas ed., 2001).
48
Case C-402/05 P, Kadi v. Council & Comm’n (Opinion of the Advocate General) (2008) at
para. 54, available at http://curia.europa.eu/en/content/juris/index.htm.

high seas. Should such evidence be found, proceedings may be instituted.49

This is a change from the traditional rules of near-exclusive flag state juris-
diction. At one time, a port state could only exercise jurisdiction for acts
done in the territorial sea or in port when they disturbed the peace of the
port.50 The UN Straddling Stocks Convention goes even further than
UNCLOS.51 It allows inspectors of any state party to the convention to
board ships of other parties on the high seas when they suspect violations
of regional fishing management schemes.52 The inspectors need to attempt
to contact the crew or flag state, but, in some cases, may take enforcement
action without consent.
In 1994, the CITES Standing Committee unanimously recom-
mended parties “consider introducing stricter measures, up to and including
trade sanctions in world wildlife products” against China and Taiwan for
repeated violations associated with illegal tiger and rhinoceros trading.53
As a result of the CITES recommendation, US President Bill Clinton
notified China and Taiwan that unless measures were taken to remedy the
situation, trade sanctions would be imposed.54 China responded by issuing
a decree which made selling, purchasing, importing, and exporting tiger
49
United Nations Convention on the Law of the Sea, art. 290, Dec. 10, 1982, UN Doc. A/
CONF.62/122 (1982), reprinted in United Nations, Law of the Sea (1997) [hereinafter
UNCLOS]. See also Ted L. McDorman, Port State Enforcement: A Comment on Article 218 of
the 1982 Law of the Sea Convention, 28 J. Mar. L. & Com. 305 (1997); Mary Ellen O’Connell,
Enforcing the New International Law of the Environment, 35 Ger. Y.B. Int’l L. 293, 298 (1992).
50
UNCLOS, at art. 218; see also Mitchell, supra note 8; Ted L. McDorman, Regional Port State
Control Agreements: Some Issues of International Law, 5 Ocean & Coastal L.J. 207 (2000).
51
Agreement for the Implementation of the Provisions of the United Nations Convention on
the Law of the Sea of 10 December 1982 relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, part VI, Aug. 4, 1995, 34 ILM 1542.
52
See Charlotte de Fontaubert, The United Nations Conference on Straddling Fish Stocks and
Highly Migratory Fish Stocks: Another Step in the Implementation of the Law of the Sea
Conventions, 12 Ocean Y.B. 82, 87 (1996); Moritaka Hayashi, Enforcement by Non-Flag States
on the High Seas Under the 1995 Agreement on Straddling and Highly Migratory Fish Stocks, 9
Geo. Int’l Envtl. L. Rev. 1, 11 (1996); David H. Anderson, The Straddling Stocks Agreement
of 1995—An Initial Assessment, 45 Int’l & Comp. L.Q. 463, 471–72 (1996) (citing the British
Fisheries Minister in the House of Commons).
53
Amy E. Vulpio, Note: From the Forests of Asia to the Pharmacies of New York City: Searching
for a Safe Haven for Rhinos and Tigers, 11 Geo. Int’l Envt’l L. Rev. 463, 479 (1979), quoting
CITES, Decisions of the Standing Committee on Trade in Rhinoceros Horn and Tiger
Specimens, Brussels, Belgium (Sept. 6–8, 1993). See also New Releases, Department of the
Interior, Fish and Wildlife Service, Taiwan Helps Protect Endangered Species; Interior
Secretary Removes Certification, available at 1996 WL 518611.
54
Tom Kenworthy, U.S. Pressures China, Taiwan on Animal Trade, Wash. Post, June 10, 1993,
at A28.

and rhino products illegal.55 Taiwan made no similar move, so on April 11,
1994, the US announced trade sanctions against Taiwan. The ban was only
on wildlife products, and only by the US. However, “with an estimated cost
to Taiwan of between US$ 10 and US$ 25 million, out of an annual foreign
trade revenue of approximately US$ 162 billion, the sanction on wildlife
products served as a stern but moderate warning.”56 Taiwanese authorities
objected to being singled out as the “global culprit behind the demise of the
world’s tigers and rhinos.”57 Nevertheless, it increased efforts to stop the trade
in tiger and rhino parts. As a result, the US Department of the Interior, after
an analysis of Taiwan’s efforts, lifted the sanctions in the summer of 1995.58
In 1994, the IAEA responded to North Korea’s failure to comply
with obligations under the Nuclear Non-Proliferation Treaty. The IAEA
has one method of coercing compliance—withholding technical assist-
ance. It resolved to withhold all but medical assistance until North Korea
came into compliance.59
The Chemical Weapons Convention (CWC) also contains specific
sanctions provisions: Article XII on “Measures to Redress a Situation and
to Ensure Compliance, Including Sanctions” provides, inter alia,
3. In cases where serious damage to the object and purpose of

this convention may result from activities prohibited under
this Convention, in particular by Article I, the Conference
may recommend collective measures to States Parties in con-
formity with international law.60
55
Id. See also Vulpio, supra note 53, at 480–81 for a discussion of why sanctions were only
against Taiwan and the reaction to the sanction.
56
Vulpio, supra note 53, at 480 (internal cites omitted).
57
Shennie Patel, Comment, The Convention on International Trade in Endangered Species:
Enforcement and the Last Unicorn, 18 Hous. J. Int’l L. 157, 199 (1995) (quoting Steven
Galster & Samuel Labudal, Crime Against Nature (Endangered Species Project) (1994) at 21.)
58
Id. Taiwan is not a member of the WTO and could not raise any possible conflict between
the WTO’s free trade provisions and trade sanctions to protect endangered species. But see
World Trade Organization, Report of the Appellate Body Report, United States—Import
Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998), 38 ILM
121 (1999).
In 1991–1992, Thailand was the subject of sanctions under CITES for failing to adopt domes-
tic legislation to enforce the treaty. It suffered serious losses in its orchid and crocodile trade.
See Mingsarn Kaosa-Ard & Sunil S. Pedneker, Environmental Strategy for
Thailand 83 (1996).
59
Board of Governors Resolution, IAEA Doc. GOV/2742, June 10, 1994.
60
Allan Rosas, Reactions to Non-Compliance with the Chemical Weapons Convention, in The
New Chemical Weapons Convention—Implementation and Prospects 415, 417

Allan Rosas has questioned whether the reference to collective measures

rules out unilateral countermeasures in all or some circumstances with
respect to CWC obligations. He notes that differing views were expressed
during the CWC negotiations but concludes that it would be “unrealistic to
believe that unilateral measures could have no place. . . .”61
The sanctions provisions of the CWC follow the general principles
governing the application of countermeasures: First, a state party to the
CWC addresses concerns about compliance to the other state in question
or the CWC Executive Council.62 The concerned state may also invoke an
on-site challenge to clarify any question of noncompliance.63 In urgent
situations, the concerned state may request a special session of the
conference of the parties.64 The technical secretariat may also inform the
executive council regarding concerns over a party’s compliance.65 Finally,
special sessions of the Conference of the Parties (COP) may be held at the
COP’s own discretion or as requested by the executive council to consider
any alleged noncompliance.66 If noncompliance is confirmed, the CWC
provides a stepped approach. The COP or executive counsel may first try
consultations or request legal interpretation from the ICJ. Failing these,
reports of the noncompliance may be published or measures for redress
ordered.67 Attention to the matter may be directed to the General Assembly.
Should noncompliance continue, a member’s rights and benefits may be
affected (though not membership).68 Finally, the COP may recommend by
a two-thirds vote sanctions in compliance with international law.
[S]uch a recommendation would not obligate a State Party to

resort to measures. On the other hand, it would function as an
authorization, and there would be a strong presumption, taking
also into account the minimum requirement of a two-thirds
majority in the Conference, that the measures specifically
(Michael Bothe et al. eds., 1998); see also A. Walter Dorn & Andrew Fulton, Securing
Compliance with Disarmament Treaties: Carrots, Sticks, and the Case of North Korea, 3 Glob.
Gov. 17, 20 (1997).
61
Rosas, supra note 60, at 420.
62
Id. at 435, citing CWC, art. IX(2), (3), (4).
63
Id. citing CWC art. IX(8).
64
Id. citing CWC art. IX(7).
65
Id. at 436, citing CWC art. VIII(40).
66
Id. citing CWC art. VIII(12).
67
Id. at 436–7, citing CWC art. VIII, IX, XIV.
68
Id. citing CWC art. XII(2).

recommended would be “in conformity with international

law.” This authorization can be likened to the recommenda-
tions issued by the UN General Assembly and the Security
Council to take measures of collective self-defence against an
aggressor.69
By the time the sanctions recommendation stage is reached, the COP has
established necessity for the sanction, the wrongdoer is on notice, and the
requirements of illegality and targeting are clearly met. Only meeting the
requirement of proportionality would depend the COP’s choice of sanc-
tion. Rosas argues that countermeasures involving termination or suspen-
sion of the CWC itself in whole or in part would be prohibited measures.70
He does not provide examples of permissible measures but presumably
trade sanctions, like those used in CITES, would work.
Loss of member rights is a type of enforcement measure unique to
organizations. A typical example of loss of member rights is the suspen-
sion of voting rights. Article 19 of the UN Charter provides that,
A Member of the United Nations which is in arrears in the

payment of its financial contributions to the Organization
shall have no vote in the General Assembly if the amount of its
arrears equals or exceeds the amount of the contributions due
from it for the preceding two full years. The General Assembly
may, nevertheless, permit such a Member to vote if it is
satisfied that the failure to pay is due to conditions beyond the
control of the Member.
In 2000, forty-five states lost their vote when they fell two years behind
in their payments.71 Although the United States is perhaps most famous
for nonpayment of assessed dues and cannot plead conditions beyond
its control as an excuse, it has never fallen two years behind. Thus, the
United States has not faced the UN’s specified sanction for nonpayment.
69
Id. at 439–40, citing CWC art. XII(3).
70
Rosas, supra note 60, at 455, 457, 459–61. He also concludes that although some possibility
for leaving the treaty might exist under Article 60 of the Vienna Convention, this result is
“improbable.”
71
45 Nations Lose Votes in U.N. for Not Paying Dues, San Diego Union Trib., Feb. 2, 2000, at
A12; 39 UNO-Mitgliedstaaten verlieren Stimmrecht, Süddeutsche Zeitung, Mar. 1, 1996, at
9; World Briefing: United Nations, N.Y. Times, Feb. 3, 2000, at A6.

Apparently because this is the response specifically mentioned, no other

sanction has been suggested as a substitute.
Other organizations require a vote of the plenary body before a
member loses its vote for failure to pay back dues—these include the
International Labour Organization, the Food and Agriculture Organization
(FAO), and the UN Educational, Scientific and Cultural Organization
(UNESCO).72 The IMF added suspension of voting rights as an enforce-
ment measure in 1992.73 The IMF provision requires notice. The sanction
is imposed only after the failure to fulfill obligations; the failure must be
persistent—suggesting the necessity of imposing a sanction and the sanc-
tion permits a proportional response—something short of the ultimate
penalty of expulsion. In 1993, the IMF denied Sudan’s voting rights74 and
in 1994, Zaire’s.75 In late 1994 Sudan reached agreement with the IMF
aimed at “normalization of relations.”76 The IMF has also used the lesser
sanction, ineligibility.
Similarly, the World Bank may withhold additional payments when
obligations under a loan or grant are not fulfilled and may deny a state
new loans or grants. If the International Civil Aviation Organization’s
Council “decides that an international airline is operating in a manner
contrary to the Chicago Convention, and the airline does not mend its
ways, member states are not supposed to allow it to use their airspace.”77 In
the Food and Agriculture Organization (FAO), a state more than two years
behind in the payment of dues is not eligible to be a member of the FAO
Council. It may not stand for election. If it is already a member of the
Council, it is deemed to have withdrawn. Federic Kirgis points out that
the United States was always careful not to fall two years behind in its dues
so as not to lose its place on the Council or its vote in the plenary body,
even though it was withholding dues in protest of the organization’s failure
to adopt consensus voting in the adoption of its budget.78
72
Frederic L. Kirgis, Jr., Remarks, 85 ASIL Proc. 434, 435 (1991) [hereinafter Kirgis, Remarks].
Some organizations clearly have discretion regarding suspension of dues. A developing coun-
try may be given extra consideration in the question of dues payments and not lose its vote
upon failure to pay.
73
Head, supra note 28, at 631, 632.
74
Sudan and IMF Reach Agreement, Agence Fr.-Presse, Dec. 7, 1994.
75
The IMF Suspends Zaire, Agence Fr.-Presse, June 3, 1994.
76
Sudan and IMF Reach Agreement, supra note 74.
77
Kirgis, Remarks, supra note 72, at 436.
78
Id. at 435–36. See also Ebere Osieke, Sanctions in International Law: The Contributions of
International Organizations, 31 Neth. Int’l L. Rev. 183, 185 (1984).

Another example is the World Meteorological Organization which

may suspend rights or privileges of a member that fails to meet financial
obligations or “otherwise fails in its obligations.” In addition to blocking
access to resources, the IMF may also penalize defaulters by increasing
charges for services. The Parties to the Montreal Protocol to the Vienna
Convention on Ozone Depletion79 have penalized failures to comply. The
Montreal Protocol has a funding mechanism designed to assist developing
countries to implement the Protocol.80 In order to distribute the funding,
the Fund managers need to know certain baseline data. In 1994, at a meet-
ing of the parties, the parties decided to cut funding to any state which
failed to report the required baseline data within one year of having been
approved for funding.81
More serious than losing voting rights, is the suspension or expul-
sion of a member for failure to follow the rules. The Soviet Union was
excluded from the League of Nations in 1939, pursuant to the League of
Nations Charter. The Cuban government was excluded from the Organ-
ization of American States in 1962 because its membership was “incompat-
ible with the principles and objectives of the inter-American system.”82 The
OAS Charter, unlike the League Covenant, however, contains no provision
for expulsion. Cuba protested that the expulsion was unlawful and even
asked that the Security Council request an ICJ advisory opinion. The
Council refused.83 Likewise, the UN Charter does not provide for expulsion,
but the UN has found ways to punish wrongdoers. During the apartheid
regime in South Africa, the United Nations rejected its representatives’
credentials. Serbia and Montenegro were not recognized as the successor
to Yugoslavia for membership purposes.84 Attempts have been made over
the years to exclude Israel from the General Assembly.85
79
Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, 26 ILM 1541.
80
Richard Elliot Benedick, Ozone Diplomacy: New Directions in Safeguarding the
Planet 186 (1991).
81
David G. Victor, The Operation and Effectiveness of the Montreal Protocol’s Non-Compliance
Procedure, in The Implementation and Effectiveness of International Environmental
Commitments: Theory and Practice 137, 148 (David G. Victor et al. eds., 1998).
82
Org. Am. Sts., 8th Mtg., Final Act, Doc. 68, OAS Doc. OEA/Ser.F/11.8, 56 AJIL 601, 611 (1962)
see also, Expulsion, Suspension, Forced Withdrawal and Forced Non-participation, 13
Whiteman’s Digest 248, 248 (1968).
83
Head, supra note 28 (internal citations omitted), at 614; Bowett, supra note 16, at 351.
84
S.C. Res. 777, U.N. Doc. S/RES/777 (Sept. 19, 1992).
85
See Malvina Halberstam, Note, Excluding Israel from the General Assembly by a Rejection of its
Credentials, 78 AJIL 179 (1984).

The International Civil Aviation Organization Constitution, known

as the “Chicago Convention,” provides for the expulsion of a member in
three cases under article 94: 1) for failure to ratify amendments to the
Convention; 2) on the recommendation of the UN General Assembly; and
3) on the expulsion of a member from the United Nations.86 The last two
bases need not be related to the state’s obligations under the Chicago
Convention itself. Apparently with regard to the first ground, the Organ-
ization is not obligated to act automatically since a number of members
have not ratified amendments and have not been expelled.87 The same is
true of the IMF. Even before the amendment of Article XXVI adding the
loss of voting rights, the IMF Executive Board could declare a member
ineligible to use IMF resources or expel a member. These actions were at
the Board’s discretion.88 Czechoslovakia was first made ineligible to benefit
from IMF credits for failing to provide information and failing to engage
in periodic consultations. Finally, in 1954 it was forced to withdraw,
following a reasonable period of ineligibility.89 The World Bank also
provides for suspension of a member upon the vote of a majority of the
Governors. Membership ceases one year from the date of the suspension
“unless a decision is taken by the same majority to restore the country to
good standing. While under suspension, a member is not entitled to
exercise any rights under the Bank’s Articles, except the right of with-
drawal, but remains subject to all obligations.”90
Though several examples are given above of expulsions, a general
view prevails in international relations that expelling a member may cause
more harm than good.91 As Wolfgang Friedmann pointed out in 1969,
however, the usefulness of the “sanction of non-participation” depends on
the importance of the organization for the state. He contrasts the IMF and
World Bank with the International Labor Organization.92 Suffering sus-
pension or termination from financial organizations creates real pressure
for credit-seeking states, but the ILO is not seen as equally essential to
governments. Membership in the United Nations probably ranks between
86
Osieke, supra note 78, at 185.
87
Id.
88
Head, supra note 28, at 630–32.
89
Gold, supra note 30, at 131.
90
Id. at 137.
91
Id. at 133.
92
Wolfgang Friedmann, General Course in Public International Law, 127 Recueil des Cours
39, 115 (1969 II).

the IMF and the ILO. While governments can survive without participat-
ing in the United Nations (Yugoslavia, South Africa), it is a powerful label
of opprobrium to be suspended from the organization. International
regimes require both a certain degree of independence from members to
perform their functions, but in the contemporary system of international
relations, they cannot be entirely free—states participate in organizations
voluntarily and their continued voluntary participation must in most
cases be won, rather than coerced. The more a regime is needed, such as
the IMF, the less the voluntary nature of organization membership comes
into play.93
The discussion above mentioned at least one instance of a state
using coercive measures to force a policy change—the US measures against
the Food and Agriculture Organization. We have examples of similar
attempts by a member state or state party to get an organization or treaty
regime to comply with obligations. France, the Soviet Union, the United
States, and Great Britain have all withheld dues owed to the United Nations
or its Specialized Agencies to induce compliance with Charter provisions,
which these states felt had been violated. It remains debated whether
members or parties may resort to such measures.94
In Certain Expenses of the United Nations,95 the ICJ was asked
whether expenses relating to peacekeeping missions approved by the
General Assembly but not the Security Council were properly expenses of
the organization. The Soviet Union argued that only the Security Council
could authorize peacekeeping missions and thus the General Assembly’s
authorization was ultra vires and could not create obligations for mem-
bers. France argued that the participation in such missions was voluntary
and payment for them was also voluntary. The ICJ found otherwise.
It decided that, although the Security Council had primary responsibility
for peace and security, when it was not addressing a matter, the General
Assembly could. Unlike the Security Council, the General Assembly could
93
Niels Blokker & Sam Muller, Towards More Effective Supervision by International
Organizations:—Some Concluding Observations, in Towards More Effective Supervision
by International Organizations: Essays in Honour of Henry G. Schermers, supra
note, at 273, 281.
94
See discussion in Sarooshi, supra note 2, at 111.
95
Expenses Case, 1962 I.C.J. at 151; see also, Rudolf Bernhardt, Ultra Vires Activities of
International Organizations, in Theory of International Law at the Threshold of the
21st Century, Essays in Honour of Krysztof Skubiszewski 599 (Jerzy Makarczyk
ed., 1996).

not order members to participate in peacekeeping, but it could require all

members to pay for operations approved and for which members volun-
teered their troops. The ICJ did not address the question of whether with-
holding dues would have been appropriate had the expenses not been the
proper expenses of the organization.
Despite the opinion, the Soviet Union continued to refuse to
contribute so that by 1964 it was a full two years behind in its assessed
contribution. The United States argued that the Soviet Union must auto-
matically lose its vote in the General Assembly. The failure to pay was not
excused because it was not related to conditions beyond the Soviet Union’s
control. The United States did not, in the end, force the issue. Rather, it
agreed informally that the General Assembly could “operate indefinitely
without formal votes.”96 In 1965, as France neared its two-year limit, the
United States agreed in the Goldberg Corollary not to press for the loss of
votes of states withholding dues, as opposed to those behind on payments.97
This case is certainly a precedent that other UN members may cite to
support the right to withhold dues without losing the right to vote. The
precedent is made stronger by the fact that the ICJ interpreted the UN
Charter differently from the Soviet Union and France on the question of
law that led to the withholding action in the first place, yet the two states
did not lose their right to vote.98
If the regime has no means of response and the Vienna Convention’s
Article 60 remedies are inadequate,99 the party taking enforcement action
may well have an augment for doing so, based on necessity. Remedies short
of countermeasures may be available, however. Elihu Lauterpacht, has, for
example, discussed nonrecognition of the illegal acts of organizations.
It is now necessary to refer to those cases where the relevant

constituent or other governing instrument contains no specific
provision regulating the effect of illegal acts of the organization
itself.
96
Richard W. Nelson, International Law and U.S. Withholding of Payments to International
Organizations, 80 AJIL 973, 979 (1986).
97
Id. at 980. See also, Stephen M. Schwebel, Goldberg Variations, in Justice in International
Law 372 (1994).
98
See also Frederic L. Kirgis, Jr., Admission of “Palestine” as a Member of a Specialized Agency and
Withholding the Payment of Assessments in Response, 84 AJIL 218 (1990); Expenses Case, 1962
I.C.J., at 204 (separate opinion of Judge Fitzmaurice). But see, Alvarez, supra note 2, at 231.
99
Kirgis, Admission of “Palestine,” supra note 98, at 224–27.

This is the position as regards the majority of international

constitutions. With the one exception of IMCO [Inter-
Govermental Maritime Consultative Organization], . . . the
non-political organizations do not seem to have experienced
any difficulty as a result of the absence of specific regulation of
this point. In the United Nations, on the other hand, although
there have been quite a number of allegations of unlawful or
ultra vires action by the Organization, these allegations and
the episodes in the context of which they were made, have not
led to the formation of any general theory about the effect of
such acts.100
Bernhardt, too, concludes that “acts which are obviously ultra vires are not
binding. . . .”101 He, however, cautions members about making unilateral
decisions that an organization has acted ultra vires, given that the organi-
zation’s constituent treaty is open to development over time. Under the
Vienna Convention, article 31(3)(b), practice under a treaty may be taken
into account in interpreting contemporary meaning. The plain terms of
the text may not indicate the full competence of the organization.
Bernhardt also urges compliance by members with majority decisions or
mandates of organs with the power to bind members.102
The US threatened to withhold its entire contribution to the
World Health Organization (WHO) as a countermeasure against the
impermissible inclusion of a nonstate, Palestine, in the membership of
the organization.103 The US had a strong case that the WHO was acting
ultra vires, but was its response proportional to the wrong, and did it need
to have been? Kirgis has concluded that the US contribution to WHO was
so substantial (about 25 percent) that withholding was “manifestly out of
proportion to a breach that would not significantly increase the burdens of
membership or go very far toward defeating accomplishment of the
organization’s goals.”104
The UN and its specialized agencies can obtain an authoritative
determination regarding legality and the consequences of illegality by
100
Lauterpacht, supra note 23, at 99–100 (footnotes omitted).
101
Bernhardt, Ultra Vires Activities of International Organizations, supra note 95, at 607.
102
Id. at 603–7.
103
Paul Lewis, U.N. Health Agency Seeks Compromise on P.L.O., N.Y. Times, May 7, 1989, at 15.
104
Kirgis, Admission of “Palestine,” supra note 98, at 226–27.

applying to the ICJ for an advisory opinion, as was done in Certain

Expenses.105 In a rare confluence of circumstances, Libya directly chal-
lenged the legality of a resolution of the UN Security Council before the
ICJ. Libya brought cases before the ICJ against the United States and the
United Kingdom under the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation of 1971 (the Montreal
Convention).106 Libya argued that the Montreal Convention did not
require it to extradite Libyan nationals suspected of blowing up a civilian
airliner over Lockerbie, Scotland, as long as Libya was willing to try the
individuals itself.107 The United Kingdom and United States were de-
manding the extradition. The Security Council supported their demand
and imposed sanctions to induce Libya to extradite.108 Libya asked the ICJ
for interim measures of protection—basically that the sanctions should be
suspended pending the outcome of the case. The ICJ found, however, that
under Article 103 of the Charter, the Security Council resolution took
precedence over Libya’s rights under the Montreal Convention.109 If the
ICJ agrees and the organization takes no remedial action, members might
be in a position to withhold dues. If the organization refuses to ask for a
third-party determination of its actions, and the member has made out a
strong case that the organization’s acts are unlawful, the member may have
some basis to take countermeasures, though the case for doing so is not
as strong.
Most US withholding of UN dues has not been in response to viola-
tions of UN internal law or even general international law.110 The US has
withheld generally over policy disagreements. Some in the US have charac-
terized UN activities regarding the PLO as unlawful and so the withholding
105
See also Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime
Consultative Organization, Advisory Opinion, 1960 I.C.J. 150, 171 (June 8); Appeal Relating
to the Jurisdiction of the ICAO Council (India v. Pak.), 1972 I.C.J. 46, 69–70 (Aug. 18);
Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal,
Advisory Opinion, 1973 I.C.J. 166, 213 (July 12).
106
Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177.
107
See Thomas M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN
Legality?, 86 AJIL 519 (1992).
108
S.C. Res. 731 UN Doc. S/RES/731 (Jan. 21, 1992) and S.C. Res. 748, UN Doc. S/RES/748
(Mar. 31, 1992).
109
Article 103 states: “In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any other international
agreement, their obligations under the present Charter shall prevail.” UN Charter art. 105.
110
José Alvarez, Legal Remedies and the United Nations’ A La Cárte Problem, 12 Mich. J. Int’l L.
229, 232–44 (1991).

of dues intended for these activities is appropriate enforcement.111 Similar

arguments were made regarding other groups, such as SWAPO, the South
West Africa People’s Organization.112 The US has also argued that financial
support by the UN for the Law of the Sea Preparatory Committee was
unlawful because it was not an organ of the United Nations.113 The US has
argued that some UN employees have paid kickbacks to their national
governments and thus payment of US dues in support of their salaries
would violate Articles 100 and 101 of the UN Charter.114 Alvarez has pro-
vided analysis casting doubt on the conclusion that any of these allega-
tions was ultra vires or was otherwise justified withholding dues.115
In addition to countermeasures of the dues-withholding type, some
judicial enforcement may be available against regime violations. Most of
the cases that arise in national courts involving organizations do not
involve the internal law of the organization, but rather treaties between
the organization and a member, torts of the organization, or other wrongs.116
For enforcement of internal law, many, if not most organizations are
immune from suit, as are their officers and employees.117 It was not possible,
for example, to sue the International Tin Council for negligent action
resulting in the bankruptcy of the organization. Nor was it possible for
employees of the United Nations to bring suit for sexual harassment of a
serious nature. Blokker and Muller argue for expanding the exposure of
111
Senator Moynihan argued, “the activities of the United Nations with respect to these
Palestinian committees violate the Charter of the United Nations.” 125 Cong. Rec. 10,434
(1979). Quoted in Alvarez, Legal Remedies, supra note 110, at 244.
112
Alvarez, Legal Remedies, supra note 110, at 245–56.
113
Id.
114
Article 100:
1. In the performance of their duties the Secretary-General and the staff shall not seek or
receive instructions from any government or from any other authority external to the
Organization. They shall refrain from any action which might reflect on their position as
international officials responsible only to the Organization.
2. Each Member of the United Nations undertakes to respect the exclusively interna-
tional characterof the responsibilities of the Secretary-General and the staff and not to
seek to influence them in the discharge of their responsibilities.
UN Charter art. 100.
115
Alvarez, Legal Remedies, supra note 110, at 295–301.
116
See U.S. v. Palestine Liberation Organization, 695 F. Supp. 1456 (S.D.N.Y. 1988).
117
See Michael Singer, Jurisdictional Immunity of International Organizations: Human Rights and
Functional Necessity Concerns, 36 Va. J. Int’l L. 53 (1995); Richard J. Oparil, Immunity of
International Organizations in United States Courts: Absolute or Restrictive?, 24 Vand. J.
Transnat’l L. 689 (1991); but see Charles H. Brower, II, International Immunities: Some
Dissident Views on the Role of Municipal Courts, 41 Va. J. Int’l L. 1 (2000).

organizations to national court enforcement, by limiting this immunity.118

Some national courts can enforce decisions of international organizations
against member states, though most raise prudential barriers to such suits.
This topic will be discussed further in Chapter Nine, “National Court
Enforcement.”119
Many international organizations have administrative tribunal
systems to handle employee grievances. This is true, for example, of the
United Nations, the International Labour Organization, the Organization
for Economic Cooperation and Development (OECD). Should an organi-
zation refuse to follow the decision of an administrative tribunal, however,
there is little an employee can do to get enforcement of a decision.
Enforcement through domestic courts may be a solution where an inter-
national organization does not have immunity. The United Nations does
have immunity, which it has used to the detriment of employees with
legitimate grievances, especially women employees.120
External Enforcement
External law enforcement falls into at least two categories. Organizations
and treaty regimes face the need to enforce their own rights on the inter-
national plane, and, with increasing frequency, organizations, in particular,
are called upon to aid in enforcing the law external to the organization or
regime in cases of wrongdoing by states and individuals. In carrying out
either type of action, the principles governing countermeasures apply.
On September 17, 1948, the United Nation’s chief truce negotiator,
Count Folke Bernadotte of Switzerland, was assassinated in Jerusalem.
The assassin’s organization was subsequently incorporated into the Israeli
armed forces. The UN took the position that Israel was responsible to the
UN for the loss of its representative. The UN requested an advisory opin-
ion of the ICJ to determine whether the UN could bring a claim on its own
behalf for this injury suffered by the organization.121 The ICJ decided, in
the Reparations case, that the UN could make a claim against Israel for
that state’s responsibility in the assassination of a UN employee. Israel paid
118
Blokker & Muller, supra note 93, at 302.
119
See infra; see also Elihu Lauterpacht, Implementation of Decisions of International Organiza-
tions Through National Courts, in The Effectiveness of International Decisions 5
(Stephen M. Schwebel ed., 1971).
120
See, e.g., Pauline Comeau, UN Sexual Assault Case May Have Happy Ending, Hum. Rts.
Trib., Sept–Oct., 1994.
121
Reparations Case, 1949 I.C.J. at 174.

reparations for the assassination of Bernadotte. If it had not, presumably the

UN could have imposed countermeasures, even though countermeasures in
such circumstances are not provided for in the UN Charter. But then, neither
is the right to make a claim on the international plane. The ICJ found, how-
ever,
[i]t cannot be doubted that the Organization has the capacity

to bring an international claim against one of its Members
which has caused injury to it by a breach of its international
obligations toward it. . . . As the claim is based on the breach
of an international obligation on the part of the member held
responsible by the Organization, the Member cannot contend
that this obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of an
international claim. . . .
When the organization has sustained damage resulting
from a breach by a member, it is impossible to see how it can
obtain reparation unless it possesses capacity to bring an
international claim. It cannot be supposed that in such an
event all the Members of the Organization, save the defendant
State, must combine to bring a claim against the defendant for
the damage suffered by the Organization.122
For an organization facing violations of agreements on privileges and

immunities for headquarters, Blokker and Muller suggest the only action
available to ultimately enforce such treaties is for the organization to leave
the state.123 The UN, however, was able to benefit from a US judicial deci-
sion requiring US compliance with the Headquarters Agreement when
the U.S. attempted to close the PLO mission to the United Nations.124 The
UN also filed suit in a case in which a US citizen took documents belong-
ing to a commission investigating the UN’s oil for food program. The indi-
vidual turned the documents over to a US Congressional committee.125
The US court ordered him to show the UN what he had taken and allow
copying. Eventually, the dispute was settled through negotiation.
122
Reparations Case, 1949 I.C.J. at 180–81.
123
Blokker & Muller, supra note 93, at 283–85.
124
See supra ch. 9.
125
UN v. Parton, 369 F. Supp. 2d (D.D.C. 2005) (order granting emergency motion).

If an organization has rights on the international plane, it very likely

has responsibilities, as well. These flow from general international law as
opposed to internal law.126 United Nations obligations to comply with
international humanitarian law and the law governing the use of sanctions
have already been discussed. The UN has accepted liability if responsibility
has been invoked and has paid claims to states related to peacekeeping.127
What recourse would be available to a state or organization should the UN
refuse to satisfy claims? Just as the UN could go to international or national
courts for enforcement of treaty rights, presumably, states could in some
circumstances appeal for enforcement against organizations as well. No
cases precisely on point are known, but the ICJ was asked to give an advi-
sory opinion as to whether the WHO could close its regional headquarters
in Cairo to protest Egypt’s agreement to the Camp David Accords.128 The
ICJ said that the WHO had an obligation to negotiate in good faith with
Egypt after giving notice. It could not simply close down the headquarters,
but had to comply with basic legal duties owed to Egypt given that “inter-
national organizations are subjects of international law . . . .”129
Collective countermeasures generally aim at the internal working
of an organization or to enforce general international law. Internal enforce-
ment either follows the provisions of the relevant treaty or the general
international law governing countermeasures—the cases show it is usually
a combination of the two. Respecting external enforcement, the interna-
tional community regularly takes collective action to enforce some of the
most important obligations in international law, particularly in the areas
of human rights, arms control, terrorism, and the unlawful use of force.
Such sanctions can be highly effective, as the arms control cases involving
Iraq, Libya, and North Korea have shown. Such regimes are, however,
blunt instruments—not as blunt as the use of armed force, perhaps, but
responsible for causing considerable suffering by innocent populations. In
recent years, Security Council sanctions, in particular, have been refined
to target responsible individuals rather than whole populations. It may be
that the use of major sanctioning programs against entire states will end
126
Reparations Case, 1949 I.C.J. at 174.
127
See generally, Daphne Shraga, UN Peacekeeping Operations: Applicability of International
Humanitarian Law and Responsibility for Operations-Related Damage, 94 AJIL 406 (2000).
128
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, 1980 I.C.J. 73 (Dec. 20)[hereinafter Interpretation of the Agreement].
129
Interpretation of the Agreement, 1980 I.C.J. at 89–90.

with the increasing focus on individuals and criminal liability. The ILC’s
elimination of the crimes of state provision from the Articles on State
Responsibility was an important theoretical step in this direction,130 as was
the founding of the International Criminal Court. In the meantime, sanc-
tions by or against international organizations and treaty regimes must
follow the general international law on law enforcement, as indicated by
the ICJ in the case of Egypt and the WHO.
130
See supra ch. 6.

Chapter 8
International Court
Enforcement
I n 1980, the United States and Iran established a claims tribunal as part
of an overall settlement of the Hostage Crisis.1 The tribunal operates
under standard international arbitration law, but, significantly, has control
of a fund out of which it may satisfy awards.2 This is truly an international
tribunal with the capacity to not only adjudicate questions of international
law but to enforce its decisions. Another, very different, international tri-
bunal with the same sort of capacity to enforce its judgments was the
International Military Tribunal (the Nuremberg Tribunal) that sat at
Nuremberg, Germany at the end of World War II. The Nuremberg Tribunal
was the first international criminal court and had the full cooperation of
1
For facts of the crisis see United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran),
1980 I.C.J. 3 (May 24)[hereinafter Hostages Case].
2
Declaration of the Democratic and Popular Republic of Algeria (“Algiers Declaration”), Jan.
19, 1981, reprinted in Iran-U.S. Cl. Trib. Rep. 13 (1981–82), 75 AJIL. 418 (1981). See also
David D. Caron, The Nature of the Iran-United States Claims Tribunal and the Evolving
Structure of the International Dispute Resolution, 84 AJIL 104 (1990) [hereinafter Caron, The
Nature of the Iran-United States Claims Tribunal].

Allied forces. Allied troops combed Germany for suspects at the end of
the war, arresting around a million people. The major war criminals to be
tried at Nuremberg were at first held prisoner “in a high-class hotel” in
Bad Mondorf, Luxembourg.3 They were then transferred to the Nuremberg
Court Prison for the trial. United States (US) military personnel served as
guards. After the trial, those to be executed were hanged in the prison
gymnasium. The others were transferred to the Spandau prison in the
British-occupied zone of Berlin and were guarded by American, British,
French, and Soviet military personnel by turns. The last prisoner, Rudolf
Hess, committed suicide in 1987 while being guarded by American troops.4
The question of how an international court or tribunal can enforce its
decisions has been around since the establishment of the first general interna-
tional court, the Permanent Court of International Justice (PCIJ), the direct
predecessor of the International Court of Justice (ICJ), principal judicial
organ of the United Nations (UN). The PCIJ was founded in 1920. The men
who drafted the PCIJ’s statute were concerned about how the court’s deci-
sions would be enforced should any state resist complying with a judgment.
Some were firmly of the view that a court does not enforce—that is the job of
a sheriff.5 So the PCIJ received no explicit right to enforce its decisions. Rather,
the Council of the League of Nations was mandated to enforce PCIJ judg-
ments and arbitral awards.6 By the end of the twentieth century, international
courts were proliferating, and a wider variety of solutions to the enforcement
problem emerged. Many involve enforcement by the court itself.
Courts, like organizations, are created under law and are limited to
the authority granted to them by their creators. Most national courts have
authority to enforce their decisions. Not all international courts do. The
premier international courts, the PCIJ and its successor, the ICJ, were not
given explicit authority to enforce their final judgments.7 The ICJ may
have inherent or implicit authority to enforce interim orders,8 but other
3
Werner Maser, Nuremberg: A Nation on Trial 35 (1979).
4
John Greenwald, The Inmate of Spandau’s Last Wish, Time, Aug. 31, 1987, at 31.
5
Procès Verbaux Des Séances Du Comité Consultatif de Juristes 125-26 (1920) [here-
inafter Procès-Verbaux].
6
The Covenant of the League of Nations, art. 13, April 28, 1919, reprinted in Manley O.
Hudson, International Legislation 7–8 (1931).
7
The human rights courts do not have means of coercing compliance. See, e.g., European
Convention for the Protection of Human Rights and Fundamental Freedoms, arts. 38–56,
Nov. 4, 1950, 213 UNTS 221 (1950); American Convention on Human Rights, arts. 52–73,
Nov. 22, 1969, 1144 UNTS 123 (1969).
8

International Court Enforcement
international court and tribunal treaties address enforcement explicitly: The

Iran-US Claims Tribunal, as just mentioned, has a fund out of which it may
satisfy judgments. The World Trade Organization (WTO) Dispute Settlement
Body (DSB) may authorize parties to use countermeasures for enforcement.
The International Tribunal for the Law of the Sea may also authorize
countermeasures in some cases.9 The Sea Bed Dispute Settlement Chamber
provides for enforcement in national courts.10 The International Criminal
Tribunal for the Former Yugoslavia has its own security personnel and access
to jail space to ensure that the penalties it imposes are effectively carried out.11
The International Criminal Court has similar arrangements and discussions
are underway about the creation of an international marshall service.12
Just as important, more and more international legal issues now reach
national courts. National courts generally have a sheriff for enforcement, and
so, by extension, those decisions involving international law are being
enforced on a regular basis in the most traditional way. This chapter looks at
the measures available to international courts. Chapter Nine, “National Court
Enforcement,” looks at courts in national systems. Both chapters consider the
impact of judicial enforcement on the international legal system as a whole.
I. Judicial Enforcement in General

Traditionally, compliance with international court judgments has not
been a problem and so enforcement was not much of a practical issue.
9
United Nations Convention on the Law of the Sea, art. 290, Dec. 10, 1982, UN Doc. A/CONF.62/122
(1982), reprinted in United Nations, Law of the Sea (1997) [hereinafter UNCLOS].
10
UNCLOS, supra note, at Annex VI, art. 39:
Enforcement of decisions of the Chamber
The decisions of the Chamber shall be enforceable in the territories of the States Parties in
the same manner as judgments or orders of the highest court of the State Party in whose
territory the enforcement is sought.
11
Julian J.E. Schutte, Legal and Practical Implications, from the Perspective of the Host Country,
Relating to the Establishment of the International Tribunal for the Former Yugoslavia, 5 Crim.
L.F. 423, 426 (1994).
12
See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International
Criminal Court, Rome, Italy, June 15–July 17, 1998, Rep. of the Prep. Comm. on the Estab-
lishment of an International Criminal Court, arts. 93–99, UN Doc. A/CONF.183/2Add.
1 (Apr. 14 1998).

Few states ever failed to comply.13 Sir Robert Jennings explains why:
A quite large proportion of judgments are in effect self-

enforcing, once the legal position is established. Decisions on
the existence of jurisdiction are self-executory. Findings
that there has been no violation of the law, or that there is no
liability raise no problem. Even in the Anglo-Norwegian
Fisheries case, the United Kingdom claim was precisely that
regulations that Norway was already enforcing, were contrary
to international law. The result of the Judgment was merely
that United Kingdom protests were deprived of cogency and
relevance. This is of course a very usual kind of situation.14
There have been long-delayed cases of compliance: Albania refused

to pay damages it owed to the United Kingdom as a result of the Corfu
Channel case for decades. The United States refused to pay damages to
Nicaragua after losing a judgment in the ICJ.15 Argentina refused to
respect an arbitral tribunal’s decision delimiting the Beagle Channel.16 The
examples are few, however, and in the cases just mentioned, Albania did
eventually pay the award; Nicaragua received a substantial aid transfer
from the US in exchange for withdrawing its damages claim from the ICJ;
and Argentina and Chile eventually settled the Beagle Channel boundary
dispute, incorporating points from the arbitration.17
13
Stephen M. Schwebel, Commentary, in Compliance with Judgments of International
Courts 39, 42 (M.K. Bulterman & M. Kuijer eds., 1996).
14
Sir Robert Jennings, The Judicial Enforcement of International Obligations, 47 ZaöRV 3, 4
(1987). See also Constanze Schulte, Compliance with Decisions of the International
Court of Justice 3 (2004).
15
Mary Ellen O’Connell, Preserving World Peace and the World Court, The Nicaragua Case, in
International Law Stories 339, 366–68 (John E. Noyes et al. eds., 2007).
16
The Argentine-Chile Frontier Case, 38 Int’l L. Rep. 10 (1966). See also Mark Laudy, The
Vatican Mediation of the Beagle Channel Dispute: Crisis Intervention and Forum Building, in
Words Over War: Mediation and Arbitration to Prevent Deadly Conflict 293,
299–300 (Melanie C. Greenberg et al. eds., 1999).
17
The Corfu Channel case was settled in 1992 by a payment of 1.2 million pounds by Albania to
Great Britain. Richard Norton-Taylor, Bank Returns Looted Nazi Gold to Albania, Guardian
(London), Oct. 30, 1996, at 15. “The Bank of England yesterday released pounds 13 million of
gold looted from Albania by the Nazis—ending a dispute dating from the start of the cold war.
In return Albania compensated Britain for the Corfu Channel Incident—the mining of two
Royal Navy destroyers in 1946 with the loss of 44 lives. Britain, which had blocked the return of
the gold until a settlement of its claim, agreed to an Albanian offer of pounds 1.2 million.” Id.

As international adjudication increases, inevitably, the problem of

noncompliance will increase, too. The WTO has faced noncompliance
problems.18 Ethiopia has resisted implementing a boundary award in favor
of Eritrea.19 The United States executed a German citizen in defiance of an
ICJ order to stay the execution.20 The US delayed implementing an ICJ
decision in a case brought by Mexico on behalf of certain of its citizens on
death row in the United States.21 The US Supreme Court continued the
delay by ruling it could not enforce the judgment.22
Although the problem of international court enforcement may be
growing as a practical matter, theoretically, it is not a new problem. Already
in 1916, a Committee on the League of Nations headed by Britain’s Lord
Phillimore planned for “the provision of means for disposing of disputes
[that] may arise between the members of the alliance.”23 The Phillimore
In, 1988, Nicaragua went back to the ICJ to get enforcement of the award. In 1991, it sent a
letter to the Court to withdraw the case. The letter contains the following passage:
Taking into consideration that the Government of Nicaragua and the Government of the
United States of America have reached agreements aimed at enhancing Nicaragua’s
economic, commercial and technical development to the maximum extent possible, the
Government of Nicaragua has decided to renounce all further right of action based on
the case in reference and, hence, that it does not wish to go on with the proceedings.
31 ILM 103, 105 (1992).
The Nicaragua case was in essence settled. Nicaragua Asks For Delay in Reparations Case
Against U.S., Associated Press, June 30, 1990; Mark A. Uhlig, U.S. Urges Nicaragua to
Forgive Legal Claim, N.Y. Times, Sept. 30, 1990; Chamorro Looking For Support, Seattle
Times, Apr. 16, 1991, at A3; Nicaragua No Longer Suing U.S., World Court Action filed by
Sandinistas has been Abandoned, San Diego Union-Trib., Sept. 21, 1991, available at 1991
WL 8898789.
Chile and Argentina eventually settled the boundary dispute through mediation by the
Vatican. Thomas Princen, International Mediation—The View from the Vatican: Lessons from
Mediating the Beagle Channel Dispute, 3 Negotiation J. 347 (1987).
18
WTO, European Communities-Regime for the Importation, Sale, and Distribution of Bananas-
Recourse to Arbitration by the European Communities Under Article 22.6 of the DSU-Decision
by the Arbitrators (Apr. 9, 1999) WT/DS27/ARB [hereinafter Banana Dispute, Decision of the
Arbitrators]; WTO, United States-Subsidies on Upland Cotton, Report of the Panel, WT/
DS267/R (Sept. 8, 2004) [hereinafter Cotton Subsidies].
19
State Dept. Issues Background, Note on Eritrea, US Fed. News, April 1, 1990.
20
LaGrand Case (F.R.G.v. U.S.), 2001 I.C.J. 466 (June 27) [hereinafter LaGrand].
21
See Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31).
22
Medellín v. Texas, 128 S. Ct. 1346, 1373 (2008). The court acknowledged that US courts have
enforced international and foreign court and tribunal decisions. It focused specifically on ICJ
judgments as not subject to direct enforcement by US courts.
23
Malcolm D. Evans, Religious Liberty and International Law in Europe 84, 85 (1997)
(citing the Minutes of first meeting of the League of Nations Commission, Annex II (Arts.
iv(d), vi(I))). See also 2 The Drafting of the Covenant (David Hunter Miller ed., 1928).

Plan included provisions for enforcing settlements that later became

Articles 13 and 15 of the Covenant of the League of Nations (the Covenant
of the League).24 Lord Phillimore wanted force to back dispute settlement:
“‘I want the Sheriff behind me.’ If a decision was resisted by any State, the
League of Nations should intervene. Failure to comply with a sentence
would constitute an act of war against the Members of the League of
Nations.”25 For Phillimore, the Great Powers were the sheriff. “They are the
police of the world, and in obliging them to have a direct interest, they
would be compelled to act when the situation demanded.”26
The drafters of the PCIJ Statute saw the need for Great Powers
enforcement, too. The Procès-Verbaux of the 3rd Meeting reports: “The Court
must have behind it a material force to ensure the execution of its decisions.
Governments must not be able to evade complying with the judgments of
the Court. With this in view the Court must be so constructed that it includes
the representatives of the ‘Great Powers.’”27 The drafters discussed giving the
PCIJ authority to impose penalties itself but concluded that enforcement
was not a judicial function. Enforcement would be a task for the League. The
judges of the PCIJ apparently concurred in this view. When the parties
asked the PCIJ in the Wimbledon Case to consider the possibility of non-
compliance, the PCIJ said it “neither can nor should contemplate such a
contingency.”28 In that particular case, the PCIJ was proven correct, and, in
fact, decisions of the PCIJ were complied with except in the Socobelge case,
which came on the eve of World War II.29
The League, however, was called upon to exercise its enforcement
authority in connection with two arbitrations. In the Rhodopia Forest
case,30 Bulgaria had at first appeared unwilling to comply with an award
against it in favor of Greece. Greece communicated its concern to the
24
1 The Drafting of the Covenant, supra note, at 9. Based on these provisions, Brownlie
has suggested that the Covenant created a “distinction between legal and illegal wars based
upon the formal criterion of compliance or non-compliance with obligations to use proce-
dures for pacific settlement of disputes.” Ian Brownlie, International Law and The Use
of Force by States 57 (1963).
25
Procés Verbaux, supra note 5, at 125–26.
26
Id. at 126.
27
Id. at 105.
28
The S.S. Wimbledon (Fr., Gr. Brit., Italy, Japan, Pol. v. Ger.), 1923 P.C.I.J. (ser. A) No. 1
(Aug. 17).
29
Societé Commercial de Belgique (“Socobelge”) (Belg. v. Greece), 1939 P.C.I.J. (ser. A/B) No.
78 (June 15).
30
Forests of Central Rhodopia (Greece v. Bulg.), 3 RIAA 1405 (1933).

League, which put the matter on its agenda. As soon as it did, Bulgaria
complied.31 By contrast to the PCIJ, another adjudicative body established
under the Treaty of Versailles did have means of enforcement. The treaty
established mixed arbitral tribunals to settle claims arising from World
War I. The German Claims Tribunal could make awards against control-
led German assets. Claimants recovered debts, contracts, and other
property losses through a clearing office using a similar process as the one
established to consider reparations claims.32
Thus, by the time the United Nations Charter (the UN Charter or
the Charter) was adopted, various models of enforcement already existed.
The German Claims Tribunal had control over assets to satisfy its awards.
The League Council was designated to enforce PCIJ judgments and
arbitral awards. Award creditors and beneficiaries also looked to national
courts for enforcement of arbitral awards, as Socobelge had done in its case
against Greece. Instead of building on these models, however, the UN
Charter represents a step backward. The 1981 Iran-U.S. Claims Tribunal,
however, initiated a period of innovation respecting international judicial
measures of enforcement almost forty years after the adoption of the UN
Charter.
II. The Judicial Enforcers

The International Court of Justice
The ICJ is the successor court to the PCIJ.33 Its statute is virtually the same
as the PCIJ’s, but it is the “principal judicial organ of the United Nations,”
of course, not the League of Nations.34 The UN Charter is significantly
different from the Covenant of the League respecting the court. The ICJ,
like the PCIJ before it, has no explicit authority to enforce its decisions.
31
International Arbitral Awards of Östen Undén: Arbitration Under Article 181 of the Treaty of
Neuilly, 28 AJIL 760, 760 (1934); W. Michael Reisman, Nullity and Revision; The
Review and Enforcement of International Judicial and Arbitral Decisions 686
(1971).
32
Wayne Mapp, The Iran-United States Claims Tribunal: The First Ten Years, 1981–
1991: An Assessment of the Tribunals’s jurisprudence and its Contribution to
International Arbitration 295 (1993), citing Treaty of Versailles, arts. 296, 297(e) and
303, June 28, 1919.
33
Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, T.S. No. 993, 3
Bevans 1179.
34
UN Charter art. 92.

The drafters of the UN Charter, like the drafters of the Covenant of the
League before them, decided enforcement was not the job of a court.
Manley O. Hudson explained at the time the UN Charter was drafted:
The function of an international court is exhausted when it

has given a judgment. Having no sheriff, no marshal, no
gendarmerie at its disposal, it cannot undertake to see that its
judgment is complied with. Compliance depends, in the first
instance, upon the good faith of States and upon their scrupu-
lous respect for their obligations. If more is needed, the
situation will present a political, not a judicial, aspect. This
was recognized in Article 13 of the [League] Covenant and . . .
it is again recognized in Article 94 of the [UN] Charter.35
Article 94 requires:
1. Each Member of the United Nations undertakes to comply

with the decision of the International Court of Justice in
any case to which it is a party.
2. If any party to a case fails to perform the obligations incum-
bent upon it under a judgment rendered by the Court, the
other party may have recourse to the Security Council,
which may, if it deems necessary, make recommendations
or decide upon measures to be taken to give effect to the
judgment.
The Security Council has the discretion to enforce judgments under

Article 94 rather than the obligation to do so, in contrast to Article 13(4)
of the Covenant of the League. Article 94 mentions only ICJ judgments
rather than international judgments in general. Finally, under Article 94,
the Security Council may only address those judgments brought by the
winning party in the case and not propio motu. Article 94 also introduces
an ambiguity by referring in paragraph one to ICJ “decisions,” then in
paragraph two to ICJ “judgments,” leaving it unclear as to whether the
35
Manley O. Hudson, The Bar Associations and the World Court, Committee I, as to the ICJ, 31
A.B.A.J. 383, 386 (1945).

Security Council plays the same role for interim decisions of the ICJ as it
does for final judgments.36
The negotiating history of Article 94 reveals little as to why these
changes were made. The most likely explanation for the primary change—
from mandating action by the Council of the League to discretionary
action—would have been to allow more flexibility in matters of peace and
security.37 The League had confronted the requirement to enforce an
arbitral award in the Optant’s Case. Members had been concerned that
enforcement could spark a violent reaction.38 As it turned out, the Security
Council, in the first sixty years following the adoption of the UN Charter,
received only one request for the enforcement of a final judgment. In 1986,
Nicaragua requested enforcement of its judgment against the United
States. The United States vetoed the request.39 It could well be argued that
the veto should not apply to Security Council action outside Chapter VII,
but the US precedent on this occasion, joined together with the long prac-
tice of applying the veto in other questionable contexts, probably settles
the issue.40 Nevertheless, Judge Stephen Schwebel (formerly judge of the
ICJ) is undoubtedly correct when he says, “If one looks dispassionately at the
processes of compliance set out in the UN Charter – the processes to give
effect to a judgment of the Court – the spectacle of a permanent member
vetoing a resolution to enforce a judgment against it is bizarre.”41
The American use of the veto in the Nicaragua case may or may not
have had a chilling effect on other states requesting Security Council
assistance. For example, Mexico and Germany both won final judgments
against the United States involving the consular rights of their nationals in
36
Hermann Mosler and Karin Oellers-Frahm, Article 94, in II the Charter of the United
Nations, A Commentary 1174–79 (Bruno Simma et al. eds., 2d ed. 2002).
37
Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the
United Nations 555–57 (3d ed., rev. 1969).
38
See Louis B. Sohn, How American International Lawyers Prepared for the San Francisco Bill of
Rights, 89 AJIL 540, 540, n.1 (1995).
39
The United States “veto[ed] a Security Council resolution calling upon it to comply,” Richard
B. Bilder, The United States and the World Court in the Post-“Cold War” Era, 40 Cath. U. L.
Rev. 251, 255 (1991) (citing United Nations Security Council: Excerpts from Verbatim
Records discussing I.C.J. Judgment in Nicaragua v. United States, 25 I.L.M. 1337, 1352, 1363
(1986)), and “ignor[ed] . . . [the ICJ’s] final Order,” Detlev F. Vagts, Taking Treaties Less
Seriously, 92 AJIL 458, 461 (1998).
40
Mary Ellen O’Connell, The Prospects for Enforcing Monetary Judgments of the International
Court of Justice: A Study of Nicaragua’s Judgment Against the United States, 30 Va. J. Int’l L.
891, 908–10 (1990).
41
Schwebel, supra note 13, at 42.

the United States.42 Going to the Security Council, may have some value in
the form of raising US non-compliance again in a world forum. Yet the
Council is not the whole story. Most states have complied with ICJ judg-
ments. In those few cases of non-compliance it is not clear the Security
Council would have aided enforcement regardless of the veto. For example,
if Iceland resisted the ICJ’s order to negotiate with the United Kingdom
and Germany over fishing jurisdiction, would any permanent member
have vetoed the request to place sanctions on Iceland until it engaged in
good-faith negotiations?43 As this example suggests, the bigger issue is
that states may well doubt that the Security Council is either able or
willing to help.
The Security Council, in fact, has great potential as a judgment
enforcer and for many policy reasons it can only be hoped the Council
will one day do more in this role—even with regard to permanent mem-
bers. The Security Council, as described in Chapter Five, “Collective
Armed Force,” has authority in Chapter VII to order all members to apply
the economic and other sanctions per Articles 41 and 42 of the UN
Charter.44 The Security Council may order states to terminate diplomatic
relations, cease trade, or even use armed force. The Security Council may
also call upon intergovernmental organizations like the International
Monetary Fund (IMF), World Bank, International Civil Aviation
Organization (ICAO), and World Health Organization (WHO) for assist-
ance. Presumably ordering armed force would only be appropriate if the
42
Avena, 2004 I.C.J. at 466; LaGrand, 2001 I.C.J. at 12.
43
See the Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.C.J. 3, 32–33, para. 73 (July 25).
44
UN Charter:
Article 41
The Security Council may decide what measures not involving the use of armed force are
to be employed to give effect to its decisions, and it may call upon the Members of the
United Nations to apply such measures. These may include complete or partial interrup-
tion of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means
of communication, and the severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade, and other operations by air, sea, or land
forces of Members of the United Nations.
UN Charter arts. 41 & 42.

ICJ decision concerned a matter of peace and security, but the extent of the
Security Council’s authority in response to judgment defaults below the
peace-security threshold is an open question.45 It could undoubtedly rec-
ommend negotiations or good offices under Chapter VI. Whether, how-
ever, it could order the seizing of assets per Article 41 to pay a monetary
judgment in a situation not involving peace and security is less certain.
The terms, history, objects, and purposes of Article 94 all argue in support
of robust authority to enforce.46 The Security Council’s subsequent prac-
tice in which it has ordered the application of sanctions in situations
beyond a strict reading of Article 39 and has even established criminal
courts, suggests that enforcing ICJ decisions using coercive methods is
permissible.47
To the extent the Security Council is unwilling or unable to help,
the judgment creditor may turn to other methods to induce compliance.
It could itself use countermeasures or, most usefully, it could request
assistance from third states, especially their courts.48 “If the courts of State
A are prepared to assist in the enforcement of judgments of the courts of
State B, might not the courts of State A and/or State B, be willing to lend a
hand in the enforcement of judgments of an international court?”49 We are
seeing growing acceptance that national courts should generally enforce
judgments of duly established courts, national or international.50 The Deep
Seabed Chamber of the United Nations Convention on Law of the Sea
45
Per Magid, The Post-Adjudicative Phase, in Increasing the Effectiveness of the
International Court of Justice 324, 328 (C. Peck & R. Lee eds., 1997).
46
Id. at 328; O’Connell, The Prospects for Enforcing Monetary Judgments, supra note 40 at 910;
Oscar Schachter, The Enforcement of International Judicial and Arbitral Decisions, 54 AJIL 1,
12, 22 (1960).
47
The International Criminal Court for Yugoslavia ruled on the Security Council’s competence
to establish the court in Prosecutor v. Tadić. Prosecutor v. Tacić, Case No. IT-94-1(AR72),
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 28 (Oct. 2,
1995).
48
The U.S. Supreme Court in Medellín v. Texas states that the “obligation on the part of signa-
tory nations to comply with ICJ judgments . . . derives from Article 94 of the United Nations
Charter—the provision that specifically addresses the effect of ICJ decisions.” Medellín v.
Texas, 128 S.Ct. 1346, 1358 (2008). This statement is erroneous in several regards: the binding
quality of ICJ judgments is derived from the court’s status as a court, the agreements commit-
ting states to the court’s jurisdiction, and the ICJ’s own statute, especially Articles 59 and 60.
See infra ch. 9. Moreover, as is discussed in this section, the Security Council is far from the
only source of assistance for states seeking judgment enforcement.
49
Jennings, supra note 14, at 8.
50
The 2008 decision of the U.S. Supreme Court in Medellín v. Texas is an exception to the trend.
See infra ch. 9 pp. 365–67.

already requires that parties treat its decisions like those of national
courts.51
If national courts do begin to regularly enforce international court
judgments, new issues are likely of the kind already seen in national court
enforcement of international arbitral awards. For example, an enforcing
court is generally limited in the extent to which it can review the underlying
decision.52 Article 60 of the ICJ Statute says the ICJ’s judgments are final:
“The judgment is final and without appeal. In the event of dispute as to the
meaning or scope of the judgment, the Court shall construe it upon
the request of any party.” In the Chorzów Factory case, the PCIJ said that
it is impossible to attribute to a judgment of a municipal court power
indirectly to invalidate a judgment of an international court.53 National
courts will, nevertheless, likely be tempted to look into judgments—as
they are in requests to enforce arbitral awards. Other issues will arise as
well, but, to a certain extent, these will be welcome because they will mean
national courts have opened their doors to enforcing international court
judgments.
In comparison with final judgments, enforcement of provisional
measures, and other interim orders raise more difficult questions.54
Provisional measures and interim orders refer to a range of possible deci-
sions prior to the final judgment. They can be procedural, such as orders
for the submission of written pleadings, or substantive, such as orders
requiring parties to cease certain activities pending the final judgment.
Enforcement of provisional measures raises particularly challenging issues
given the fact states generally do not comply with these orders. In contrast
to ICJ final judgments, for example, states rarely comply with ICJ substan-
tive interim measures orders.55 The US Congress did act to bring the US
51
UNCLOS, at Annex III, art. 21.
52
See, e.g., Convention on the Recognition and Enforcement of Foreign Arbitral Awards arts.
V & VI, June 10, 1958, 21 UST 2517, TIAS No. 6997 [hereinafter New York Convention].
53
Factory at Chorzów (Ger. v. Pol.), 1927 P.C.I.J. (ser. A) No. 17, 33 (Sept. 13).
54
Interim or provisional measures (the terms are used interchangeably) are provided for in
Article 41 of the ICJ Statute:
1. The Court shall have the power to indicate, if it considers that circumstances so require,
any provisional measures which ought to be taken to preserve the respective rights of
either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to
the parties and to the Security Council.
Statute of the International Court of Justice art. 41.
55
Schwebel, supra note 13, at 39–42.

into compliance with an ICJ interim order in the Nicaragua case. In 1984,
Congress cut off funding for mining Nicaragua’s harbors.56
The situation may improve generally following the 2001 decision in
the LaGrand case clarifying that ICJ provisional measures orders are, in
fact, binding. Until 2001, scholars debated whether ICJ interim orders
were actually binding or more of a recommendation pending the outcome
of the case. Article 41 of the ICJ Statute distinguishes measures which
“ought to be taken” and the measures “suggested.”57 The weight of opinion
always favored the position that provisional measures are binding on the
parties,58 but the court only confirmed that position in LaGrand.59
LaGrand concerned two German nationals, Walter and Karl
LaGrand, who were arrested, tried, and sentenced to death without first
being informed of their right to assistance from a German consul under
the terms of the Vienna Convention on Consular Relations.60 Germany
brought the case to the ICJ after Karl LaGrand had been executed but
while Walter was still alive. Germany requested an order of provisional
measures that Walter not be executed pending the ICJ’s decision on the
merits. The ICJ issued the order on March 3, 1999.61 On the same day,
Germany went to the US Supreme Court to enforce the order against the
United States and Arizona—the US state where the LaGrands were tried.
The United States argued the ICJ order was not binding. The Supreme
Court dismissed Germany’s motion citing lack of jurisdiction and timeli-
ness.62 Walter also attempted to appeal to the Supreme Court, which was
also denied. Walter LaGrand was executed later that day.
As a result, Germany requested in its submission to the ICJ on the
merits that
the United States, by failing to take all measures at its

disposal to ensure that Walter LaGrand was not executed
56
The ICJ acknowledged this compliance in its decision on the merits.
57
Article 41 of the ICJ Statute which in English uses the phrase measures which “ought to be
taken” and the measures “suggested.” John Collier & Vaughan Lowe, The Settlement of
Disputes in International Law Institutions and Procedures 174–75 (1999).
58
Id. at 174–75.
59
LaGrand, 2001 I.C.J. 466; see also, Bruno Simma & Carsten Hoppe, The LaGrand Case: A
Story of Many Miscommunications, in International Law Stories 371 (John Noyes et al.
eds., 2007).
60
Vienna Convention on Consular Relations, art. 36, April 24, 1963, 596 UNTS 261.
61
LaGrand Case (F.R.G. v. U.S.), 1999 I.C.J. 9 (Mar. 3).
62
Federal Republic of Germany v. United States, 526 U.S. 111 (1999).

pending the final decision of the International Court of Justice

on the matter, violated its international legal obligation to
comply with the Order on provisional measures issued by the
Court on 3 March 1999, and to refrain from any action which
might interfere with the subject-matter of a dispute while
judicial proceedings are pending. . . .63
The United States in defense argued that it had done all it could to comply
with the March 3 order even though in the US view, the order did not
create binding legal obligations for the US. In the US view:
The United States also alleges that the “terms of the Court’s 3
March Order did not create legal obligations binding on [it]”.
It argues in this respect that “[t]he language used by the Court
in the key portions of its Order is not the language used to
create binding legal obligations” and that
“the Court does not need here to decide the difficult and
controversial legal question of whether its orders indicating
provisional measures would be capable of creating interna-
tional legal obligations if worded in mandatory . . . terms.”
It nevertheless maintains that those orders cannot have such

effects and, in support of that view, develops arguments
concerning “the language and history of Article 41 (1) of the
Court’s Statute and Article 94 of the Charter of the United
Nations”, and “Court’s and State practice under these provi-
sions”, and the “weight of publicists’ commentary”.64
The ICJ carefully examined the English version of Article 41 comparing

it with the equally authentic French version. The French version is
more imperative.65 The ICJ reconciled the two versions applying the
63
LaGrand, 2001 I.C.J. 473, para. 32.
64
Id. at 500, para. 96.
65
“1. La Cour a le pouvoir d’indiquer si elle estime que les circonstances l’exigent, quelles
mesures conservatoires due droit de chacun doivent . . . tre prises B titre provisoire. 2. En
attendant l’arr . . . t définitif, l’indication de ces mesures est immédiatement notifiée aux par-
ties et au Conseil de sécurité.” (Emphasis added); LaGrand, 2001 I.C.J. at 501-02, para. 100.

Vienna Convention on the Law of Treaties’ rule of interpretation in Article

33 to look to the objects and purposes of the agreement. The ICJ decided
that the objects and purposes of its statute required a finding that provi-
sional measures are binding to “safeguard, and to avoid prejudice to, the
rights of the parties as determined by the final judgment of the Court.”66
The ICJ found the United States violated its obligation. The court went on
to state, however, that as Germany had only requested a finding and no
remedy for the violation, none would be ordered.
In two earlier cases, parties had asked for enforcement measures by
the ICJ after failures by a party to comply with provisional measures.67 In
Bosnia v. Serbia, both parties submitted to the court that the other had not
complied with the ICJ order of provisional measures.68 And Nicaragua
also asked for a response to the US’s failure to comply in that case.69 The
ICJ reacted ambiguously in both cases. Now that it has clarified the binding
nature of provisional measures, the next obvious issue to consider is how
these measures may be enforced by the ICJ itself and others.
The only real consideration governments have given to this ques-
tion occurred in connection with the Anglo-Iranian Oil Company case.70
Britain requested that the Security Council assist in enforcing an ICJ
provisional measures order against Iran.71 The Soviet Union and Yugoslavia
objected to Britain’s request, arguing that the Security Council’s enforce-
ment authority under Article 94 extended only to final judgments and that
the dispute was a matter of Iran’s domestic jurisdiction. They also argued
that the Security Council could not enforce an order before the ICJ had
determined whether it had jurisdiction.72 The British representative
argued, on the other hand, that the Security Council could decide its own
jurisdiction under Article 94 and that the Security Council had jurisdic-
tion regardless of the ICJ’s jurisdiction because the matter involved peace
and security.73 As to interim orders in general, the British representative
66
LaGrand, 2001 I.C.J. at 503, para. 102.
67
Thus, the ICJ stated that LaGrand was the first case in which it was asked to consider the legal
effects of provisional measures may not be exactly so. See id. at 501–12, para. 100.
68
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosn. & Herz. v. Yugo. (Serb. & Mont.)), 1993 I.C.J. 325 (Sept. 13)[hereinafter Genocide
Convention Case].
69
See infra.
70
Anglo-Iranian Oil Co. Case (U.K v. Iran), 1951 I.C.J. 89 (July 5).
71
O’Connell, The Prospect of Enforcing Monetary Judgments, supra note 40, at 909, n.75.
72
6 UN, 6th Sess., SCOR 559th mtg. at 3, UN Doc. S/2357 (Sept. 28, 1951).
73
Id. at 20.

argued that the Security Council had implied jurisdiction to enforce

interim orders because, in some cases, if the parties did not comply with
such an order, a final decision would be frustrated. The Security Council’s
ability to enforce the final judgment might depend on compliance with
the earlier order. The Security Council reached no conclusion regarding
its authority to enforce interim orders before the matter became moot.
Britain was likely correct, however, that the Security Council always has
authority to act regarding peace and security. It should also have the
implied power to enforce provisional measures in other cases, as an impli-
cation of its power to enforce judgments and decisions.74
Besides the Security Council, the ICJ itself might have authority to
enforce. Although the ICJ has no explicit authority to enforce its final
judgments, it, too, may have some scope to enforce decisions made in the
course of litigation. In particular, the ICJ may be able to enforce decisions
relating to the administration of a case or its orders of provisional
measures of protection. Such enforcement authority is derived from the
ICJ’s status as a court and the capacity inherent in the judicial process to
sanction noncompliance with a court’s orders.75 The argument for enforce-
ment authority is related to the argument that the court has authority to
issue binding orders to ensure the viability of final judgments.
The ICJ undoubtedly has authority to enforce some types of interim
orders—deadlines, procedures, page limits on pleadings, etc. According to
Shabtai Rosenne, the failure of a state to comply with an interlocutory
decision can lead to the automatic imposition by the ICJ itself of a sanc-
tion against that state.76 Rosenne has also written, however, that the ICJ
cannot sanction noncompliance with the substance of provisional meas-
ures orders. Bernard Oxman takes the same position: “The Court has no
power to ‘enforce’—that is to compel a recalcitrant state to obey—its final
judgments, no less its provisional measures.”77 Oxman’s argument is based
on the lack of explicit authority to enforce, but the ICJ has no explicit
authority to enforce any interim orders—procedural or substantive. The
fact that Article 94 of the UN Charter refers to “judgments” may strengthen
74
For a discussion of the implied powers of organizations see supra ch. 7 pp. 272–73.
75
See Parker Claim, (U.S. v. Mex.) 4 RIAA 35, 37–40 (1926) (Opinion of the Commission). See
also Schachter, supra note 46, at 230.
76
1 Shabtai Rosenne, The Law and Practice of the International Court 124–25 (1965).
77
Bernard H. Oxman, Jurisdiction and the Power to Indicate Provisional Measures, in The
International Court of Justice at a Crossroads 331 (Lori Fisler Damrosch ed., 1987).

the argument that other types of “decisions” belong in the same category
of interim orders that may be enforced by the ICJ itself. The LaGrand
judgment mentions that the drafters of the PCIJ Statute knew the court
would have no “means” of enforcing provisional measures.78
However, the lack of means of execution and the lack of

binding force are two different matters. Hence, the fact that
the court does not itself have the means to ensure the execu-
tion of orders made pursuant to Article 41 is not an argument
against the binding nature of such orders.79
But then the ICJ addresses the question of responding to the US failure to
comply:
The Court observes finally that in the third submission

Germany requests the Court to adjudge and declare only that
the United States violated its international legal obligation to
comply with the Order of 3 March 1999; it contains no other
request regarding that violation. Moreover, the Court points
out that the United States was under great time pressure in this
case, due to the circumstances in which Germany has instituted
the proceedings. The Court notes moreover that at the time
when the United States authorities took their decision the ques-
tion of the binding character of orders indicating provisional
measures had been extensively discussed in the literature, but
had not been settled by its jurisprudence. The Court would have
taken these factors into consideration had Germany’s submis-
sion included a claim for indemnification.80
Thus, the court could well have taken the noncompliance into account
in its final judgment, ordering, for example, indemnification. It stands to
reason that it could order indemnification before the final judgment
as well as other measures in response to noncompliance. In fact, during
the pendency of a case, the ICJ has more means and legal authority
78
LaGrand, 2001 I.C.J. at 505.
79
Id. at 505.
80
Id. at 508.

to enforce provisional measures than it does after a case to enforce final

judgments.
Nicaragua took the position that the ICJ could enforce interim
orders when it asked for sanctions following the US failure to comply with
the court’s order to cease military activities in Nicaragua pending the final
judgment. Nicaragua requested that the ICJ deny the United States all
access to the court until the US complied.81 The president of the ICJ, in a
letter to Nicaragua, however, denied Nicaragua’s request, finding the spec-
ified remedy “unusual” and advising Nicaragua to wait for the merits
phase of the case before raising its complaint.82 It is not clear from the
president’s response whether it was the remedy that was controversial—
denying all access to the court—or the request for a response to noncom-
pliance which was unusual. Certainly less drastic penalties are available to
the court—speeding up or slowing down timetables, suspending action
on a case until compliance, suspending participation of particular persons
in a case, adjusting the burden of proof, or striking a counterclaim.
Early in the Genocide Convention case,83 the ICJ again had to
consider responding to noncompliance with provisional measures. It was
not a straightforward request by one of the parties for action, as in the
Nicaragua case. Rather, the court had already issued provisional orders in
the case and the parties returned, each complaining about the noncompli-
ance of the other.84 In responding to the second set of requests, the court
did not completely ignore the noncompliance. It stated that its orders are
to be taken seriously. Two of the judges writing separately, Ajibola and
Shahabuddeen, however, indicated that the court could have done more.85
81
(June 27). Nicaragua had not itself fulfilled all interim measures, nevertheless, as the final
decision in the case shows, while the ICJ found some violations by Nicaragua, they were far
outweighed by the US’s own misconduct and Nicaragua apparently did not make the request
for interim sanctions with any concern over its “unclean hands.”
82
The letter is referred to by Judge Ajibola in the Genocide Convention Case, 1993 I.C.J. at
394–95 (Sept. 13) (separate opinion of Judge Ajibola).
83
Genocide Convention Case, 1993 I.C.J. at 25 (April 8).
84
Mary Ellen O’Connell, The Failure to Observe Provisional Measures of Protection in the Case of
Bosnia v. Yugoslavia, Walther-Schücking-Kolleg, No. 15 (Institut für Internationales
Recht an der Universität Kiel) (1994).
85
Genocide Convention Case, 1993 I.C.J. at 393, 364 (Sept. 13) (separate opinions of Judges
Ajibola and Shahabuddeen).

Judge Ajibola, for example, suggested that all requests for additional orders
should be rejected until the prior orders were fulfilled:
[T]he Court should have rejected or refused to issue the

request for another Order in this case, unless and until the
first Order of 8 April 1993 had been complied with by both
Parties, and I therefore agree with the Court, when it reaffirms
its first indication of provisional measures. . . . [A]n order . . .
ought not to be ineffective, artificial or illusory. It should be
binding and enforceable, otherwise, ab initio, there may be a good
and reasonable ground to question its being issued at all. The
Court, it is submitted, should not be seen to act in vain –Judicium
non debet esse illusorium; suum effetum habere debet.86
Other courts have followed the pattern established for the ICJ. The
European Court of Human Rights, like the ICJ, has no explicit authority to
enforce its own decisions. Rather, it, too, relies on a political body for
enforcement. Article 54 of the European Convention on Human Rights
obligates the Committee of Ministers of the Council of Europe (the
Committee) to “supervise” compliance.87 Should a state fail to comply, the
Committee may construct measures against it or, ultimately, expel a state
from membership in the Council.88 During the Council’s first fifty years,
no state has requested enforcement assistance.
The Iran-US Claims Tribunal

In late 1979, revolution broke out in Iran that led to the fall of the Shah
and his replacement by the Ayatollah Khomeini.89 Soon after the Ayatollah
took power, he allowed students to take over the US Embassy and two US
86
Genocide Convention Case, 1993 I.C.J. at 406 (Sept. 13) (separate opinion of Judge Ajibola).
Interestingly, Judge Ajibola believes the Court cannot “enforce,” but nevertheless offers the
suggestion quoted above. He does not explain the distinction he implicitly makes between
enforcement and his suggested sanction.
87
European Convention for the Protection of Human Rights and Fundamental Freedoms, art.
46, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention]. See also John M.
Scheib, Enforcing Judgments of the European Court of Human Rights: The Conduit Theory, 10
N.Y. Int’l. L. Rev. 101, 111 (1997).
88
Statute of the Council of Europe, art. 8.
89
Steven Erlanger, Militants: A New Seat of Power, Boston Globe, Dec. 27, 1979, 1979 WLNR
806.

consulates and hold persons there captive for more than a year. He also
oversaw the nationalization and elimination of billions of dollars worth of
US investments and property. Following provisional measures and a judg-
ment in the US’s favor by the ICJ,90 Algeria was able to mediate an agree-
ment between the US and Iran that led to the freeing of the hostages and
a process for adjudicating financial claims rising out of the revolution. The
US and Iran established a claims tribunal to resolve the thousands of
claims by mostly US nationals against Iran, but also by Iranian nationals
against the US and by the two states against each other. The tribunal could
also resolve disputes over the interpretation of the agreement, known as
the Algiers Accords.91 The tribunal would not have jurisdiction over claims
by Iran against U.S. nationals except as counterclaims.
The Algiers Accords establish a hybrid system for enforcement.
A security account, funded out of Iranian assets frozen by the US, exists
for satisfying claims of US nationals. The Algerian government is desig-
nated in the Accords as the escrow agent and pays out funds to claimants
upon the instructions of the tribunal. US and Iranian government claims,
counterclaims, or other claims, which the account cannot satisfy, must
fall back on national courts for enforcement.92 Early on, some expressed
concern about whether Iran would replenish the account should awards
outstrip available funds. Under the Algiers Accords, the account must be
maintained with $500 million as a minimum balance. Iran has replen-
ished the account several times from interest earned on the main account,
following a decision of the tribunal that interest earned by the account
could be held separately and would not be used to automatically replenish
the main account. Iran made the decision to use the interest for replenish-
ment. It did so even after the US released a sizeable portion of Iranian
assets under its control and no longer had the same leverage to pressure
replenishment.93 Thus, the security account functioned smoothly in its
first twenty five years and became a model for future international judicial
enforcement of all kinds.
90
Hostages Case, 1980 I.C.J. at 3.
91
See the Website of the Tribunal, http://www.iusct.org/; see also Caron, The Nature of the Iran-
United States Claims Tribunal, supra note 2, at 130, n.121.
92
Caron, The Nature of the Iran-United States Claims Tribunal, supra note, at 129.
93
Mapp, supra note 32, at 293–94.

In contrast to awards against Iran, the tribunal has encountered

problems having awards against US nationals enforced—awards not
subject to satisfaction out of the security account. In 1987, the tribunal
decided in Case No. A21 that the United States has a good-faith obligation
under the Algiers Accords to provide for enforcement of tribunal deci-
sions against US nationals in US courts.94 Claims against US nationals
resulted from counterclaims by Iran that turned out to be greater than the
original claim brought by the US national.95 The tribunal required that the
process for enforcing these awards be at least as good the process available
for enforcing international and foreign arbitral awards in US courts. In
the US, international commercial arbitral awards are enforced under the
New York Convention for the Recognition and Enforcement of Foreign
Arbitral Awards (the New York Convention).96 Iran then filed suit in the
US to get an award in its favor enforced for $3.16 million against Gould, a
US corporation.97 Gould contested the case but lost in the district court
and on appeal. The Supreme Court denied its petition for certiorari.98 Yet,
four years later, Iran was still attempting to get enforcement. The tribunal
had ordered Gould to deliver certain equipment to Iran, which Gould was
barred from doing under US law.99
In Avco Corporation v. Iran Aircraft Industries,100 attempting enforce-
ment in US courts proved even more difficult. Two Iranian state-owned
companies won counterclaims that resulted in a $3.5 million award against
claimant Avco Industries. Avco refused to pay. The Iranian companies
went to the US seeking enforcement. A US district court granted Avco’s
request for summary judgment because the Iranian parties had not filed an
opposition to the Avco request. The Iranians requested reconsideration but
lost again for failing to file a memorandum of law supporting their request.
94
The Islamic Republic of Iran v. The United States of America, DEC 62- A21-FT (May 4, 1987),
reprinted in 14 Iran-U.S. Cl. Trib. Rep. 324 [hereinafter Case No. A21].
95
Case No. A21; see also Anuj Desai, Case Note A27: The Iran-United States Claims Tribunal’s
First Award of Damages for a Breach of the Algiers Declarations, 10 Am. Rev. Int’l Arb. 229
(1999).
96
New York Convention, art. 1.
97
Ministry of Defense of the Islamic Republic of Iran v. Gould, 887 F.2d 1357 (9th Cir. 1989)
cert. denied, 494 U.S. 1016 (1990).
98
Ministry of Defense v. Gould, 887 F.2d at 1357.
99
Ministry of Defense of the Islamic Republic of Iran v. Gould, Inc., 969 F.2d 764 (9th Cir.
1992).
100
Avco Corp. and Iran Aircraft Indus., Partial Award No. 377-261-3 (July 18, 1988), reprinted in
19 Iran-U.S. Cl. Trib. Rep. 200 [hereinafter Avco].

The Iranian parties appealed to the Second Circuit Court of Appeals.101

In a two-to-one decision, the Second Circuit also refused to enforce the
award. This time, however, on the basis of an inquiry into the tribunal
proceeding, the Second Circuit decided that the tribunal’s handling of
certain evidence potentially favorable to Avco meant the court need
not enforce the tribunal’s award under the New York Convention. The
purpose of the New York Convention is to provide unproblematic enforce-
ment by national courts of international arbitral awards. It restricts review
of the arbitral decision or process with a few limited exceptions for fraud,
violations of due process, or if a tribunal exceeds its authority. The Second
Circuit decided the tribunal denied Avco a fair hearing because it was
unable to present its case.102 Avco had presented summaries of invoices to
the tribunal rather the invoices themselves. It believed the summaries
would be sufficient following a preliminary hearing. The tribunal did not
find the summaries sufficient.103 Iran chose not to appeal the Second
Circuit decision to the US Supreme Court, but went back to the tribunal,
complaining that the US government had refused to fulfill its obligation to
enforce the Avco award and for the undue delay in Gould. The tribunal
held in Case No. A27 that the United States itself was now liable for the
awards.104 It ordered the US to pay both awards plus interest.
The US planned to pay Iran, but before it could, the father of Alisa
Flatow, a victim of an Iranian-sponsored terrorist attack in Israel, filed a
writ of attachment against the US Treasury funds owed to Iran.105 The
father had won a judgment against Iran for $247.5 million in a case
pursued under the US’s Antiterrorism and Effective Death Penalty Act, an
amendment to the U.S. Foreign Sovereign Immunity Act designed to
sanction state sponsors of terrorism.106 The district court found, however
that the US Treasury funds were US funds protected from attachment by
101
See Iran Aircraft Indus., et al. v. Avco Corp., 980 F.2d 141, 144–45 (2d Cir. 1992).
102
Avco, 980 F.2d at 144–45.
103
Islamic Republic of Iran and United States, Award No. 586-A27-FT (Iran-U.S. Cl. Trib. June 5,
1998), available at http://www.iust.org/awards/award-586-a27-ft-eng.pdf [hereinafter Case A27].
104
Case A27, at para. 64. Desai is critical of the tribunal for not respecting the Second Circuit’s
decision and for Iran’s failure to exhaust local remedies. But the author’s evidence regarding
the exhaustion rule does not apply to enforcement. Moreover, it would be odd indeed for the
tribunal to respect the Second Circuit’s view that the tribunal’s own award was flawed and
unenforceable. Desai, supra note 95, at 233–34.
105
Flatow v. Islamic Republic of Iran, 74 F. Supp. 2d 18 (D.D.C. Nov. 15, 1999).
106
Sean D. Murphy, State Jurisdiction and Jurisdictional Immunities: Satisfaction of U.S.
Judgments Against State Sponsors of Terrorism, 94 AJIL 117, 118–20 (2000).

the US government’s own immunity and quashed the attachment.107 The

US paid Iran around $6 million, but took the funds out of Iranian assets
still held by the United States.108
Like the ICJ, the Iran-US Claims Tribunal has the power to order
interim measures. These measures are clearly binding on the parties and
there has never been any doubt about the tribunal’s ability to enforce them.109
The tribunal applies the United Nations Conference on International Trade
Law’s (UNCITRAL’s) arbitration rules,110 Article 26 of which provides for
interim measures:
At the request of either party, the arbitral tribunal may take

any interim measures it deems necessary in respect of the
subject-matter of the dispute, including measures for the con-
servation of the goods forming the subject-matter in dispute,
such as ordering their deposit with a third person or the sale
of perishable goods.
David Caron points out, however, that “[i]nterestingly, the Iran-United States
Claims Tribunal rarely has stated that it was relying on Art. 26 alone for its
authority to order interim measures. Instead, the Tribunal from the first has
relied, either alone or with Art. 26 on its ‘inherent powers’ to issue such
orders. . . .”111 Caron believes the tribunal’s reliance on inherent powers
derives from the arbitrators’ experience in other courts and tribunals where
interim measures powers were not spelled out. Nevertheless, arbitrators rou-
tinely award interim measures relying on inherent powers.112 The ability to
grant interim measures is a classic example of a tribunal’s inherent powers.
Equally, if a court or tribunal issues interim measures intended to
be binding on the parties, those measures are enforceable. They are
enforceable whether the tribunal relies on an explicit characterization in a
107
Flatow, 74 F. Supp. 2d, at 25–26.
108
U.S. Readies $6 Million Judgment Payment to Iran but Family Claims Money for Terrorist
Killing of Daughter, Kan. City Star, Dec. 4, 1999, at A11.
109
See generally, David D. Caron, Interim Measures of Protection: Theory and Practice in Light of
the Iran-United States Claims Tribunal, 46 ZaöRV 465 (1986) [hereinafter Caron, Interim
Measures of Protection].
110
United Nations Commission on International Trade Law Rules on International Arbitration,
art. 26, Dec. 15, 1976 [hereinafter UNCITRAL Rules].
111
Caron, Interim Measures of Protection, supra note, at 475 (citing E-Systems and the Islamic
Republic of Iran, Interim Award No. 13-388-FT).
112
Caron, Interim Measures of Protection, supra note 109, at 475.

text that they are enforceable or as part of what it means to be binding. The
latter case is true of the Iran-US Claims Tribunal. Nevertheless, the tribunal
has been reluctant to impose sanctions,113 perhaps also as a result of the
experience of the arbitrators in other arbitral tribunals in which enforce-
ment is usually left to national courts.114 Still, according to Caron:
All this is not to say, however, that a tribunal does not have
options regarding the real issue, that is, preservation of the
rights of the parties pending the decision of the tribunal. If a
tribunal cannot preserve these rights by interim measures
because a party refuses to implement such measures, then it
can reduce the time the rights are in jeopardy by expediting its
decision on the merits. I do not propose that the process be
accelerated so much that other rights of the parties, such as
the right to a hearing, are denied. Rather, I suggest that the
often generous amounts of time granted for preparation of
memorials be kept to a minimum and that motions for post-
ponement of hearing dates not be entertained except for the
most serious of reasons. In one case before the Tribunal, for
example, where a claimant indicated that the respondents
were not obeying the Tribunal’s order to suspend litigation in
Iran, the Tribunal moved the prehearing conference sched-
uled in that case forward by two months.115
If a tribunal did not have the power to order interim meas-
ures, its likely response to an action threatening the rights
of one of the parties under adjudication would be to render
its decision as quickly as possible. It is difficult to see why a
tribunal should not do so when the power is denied effectively
by the failure of a party to implement measures ordered.116
113
Caron, Interim Measures of Protection, supra note 109, at 511.
114
That is the case with ad hoc commercial arbitration under the primary rules. Grégoire
Marchac, Interim Measures in International Commercial Arbitration under the ICC, AAA,
LCIA, and UNCITRAL Rules, 10 Am. Rev. Int’l Arb. 123, 135–36 (1999).
115
See, RCA Globcom Communications, Inc. v. The Islamic Republic of Iran, Case 160, Chamber
One, Order of January 17, 1985, cited in Caron, Interim Measures of Protection, supra note
109 at 513 n. 186.
116
Caron, Interim Measures of Protection, supra note 109, at 513, n.186.

Like the Iran-US Claims Commission, the UN Claims Commission,

was established to settle claims arising from the Iraqi invasion of Kuwait.
It, too, had a fund out of which to pay claims. The fund was maintained
through sales of Iraqi oil. At the outset, the commission received more
than 2.5 million claims totaling $240 billion.117
The Law of the Sea Tribunal, too, has no explicit means for enforc-
ing its decisions. This fact is striking given that other courts established in
the 1990s do have means of enforcement and given that the Sea Bed
Chamber of the UN Law of the Sea Convention (UNCLOS) has an impres-
sive means of enforcement—its decisions should be treated as those of
foreign national courts by the courts of parties to UNCLOS.118
The International Criminal Court

The Statute of the International Criminal Court (ICC) was adopted in
Rome in 1998.119 Like its predecessor international criminal courts, the
Nuremberg and Tokyo Tribunals, as well as the International Criminal
Tribunals for Yugoslavia and Rwanda, the ICC has capacity for enforce-
ment similar to that of national courts.120 The ICC has security personnel
and jail space to handle prisoners before and during trials. Sentences will
be carried out in national prisons.121
The ICC was not established with authority to arrest indicted
persons, but discussions are underway for a marshall service. This compe-
tence is somewhat distinct from judgment enforcement authority. NATO
forces have provided assistance to the ICTY. Under the agreement that
ended the armed conflict among Bosnia, Croatia, and Yugoslavia, NATO
was given the discretion to assist.122 The Rome Statute does contain one
important change regarding enforcement over prior tribunals. It has two
means of dealing with parties that fail to cooperate. Article 87(7) permits
the court to make a finding that a party has failed to cooperate and to refer
117
Caron, Interim Measures of Protection, supra note, at 512–13.
118
UNCLOS, at Annex III, art. 21.
119
U.N. Doc. A/CONF.183/9 (Jul. 17, 1998) [hereinafter Rome Statute].
120
Schutte, supra note 11.
121
See ICC Report, supra note 12. See, also Antonio Cassese, Reflections on International Criminal
Prosecution and Punishment of Violations of Humanitarian Law, in Politics, Values, and
Functions: International Law in the 21st Century 261–64 (Jonathan I. Charney et al.
eds., 1997) [hereinafter Politics, Values, and Functions].
122
Mary Ellen O’Connell, International Legal Issues of the Dayton Accords: Arresting the Indicted
and Preventing Partition, in A Close-Up View of European Security (Institute for Strategic
and Defence Studies, Budapest, 1996).

the matter to the Assembly of the Parties (the Assembly). The Assembly
may then determine what measures should be taken to induce compli-
ance, including referring the matter to the UN Security Council. The
Security Council may also consider cases of noncooperation without a
referral, if it had initially sent the case to the ICC or a question of peace
and security is involved.123
Arbitration
Compliance is not a serious problem in state-to-state ad hoc arbitrations.
Typically, when states have reached the point that they can agree to go to
arbitration, they are usually pre-disposed to comply. Still, a few well-
known exceptions do exist. For example, the US delayed almost 50 years
complying with an arbitral award in the 1911 El Chamizal case with
Mexico,124 and Argentina refused to comply with the award in the Beagle
Channel case.125 States have reacted in a variety of ways to clear noncom-
pliance and feared noncompliance with arbitral awards. In El Chamizal,
Mexico resorted to countermeasures.126 In the Beagle Channel dispute,
Chile considered resorting to armed force but was prevailed upon to allow
the pope to mediate.127 In a number of cases in which one party resisted
compliance with an award, the case has gone to the ICJ for review.128
This ad hocism contrasts with the closely related process of enforce-
ment of international commercial arbitral awards. In arbitrations involving
private commercial parties or mixed private and sovereign parties, awards
are almost always enforced in national courts under the terms of an arbi-
tral award enforcement treaty or as part of the agreement to arbitrate.129
The ease with which commercial arbitral awards are enforced today
explains in part the great popularity of arbitration to resolve international
business disputes today. By the 1990s, scholars estimated that 90 percent
of all cross-border contracts provided for arbitration of any dispute arising
123
Rome Statute, art. 87(7).
124
Convention on Boundary Waters: Rio Grande and Rio Colorado, U.S.-Mex., Mar. 1, 1889, 26
Stat. 1512, see also Philip C. Jessup, El Chamizal, 67 AJIL 423 (1973).
125
Princen, supra note 17.
126
Jessup, supra note 124.
127
Princen, supra note 17.
128
See, e.g., Arbitral Award Made by the King of Spain (Hond.v. Nic.), 1960 I.C.J. 192 (Nov. 18);
Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 I.C.J. 53 (Nov. 12).
129
Volker Nienaber, The Recognition and Enforcement of Foreign Arbitral Awards, in
Understanding Transnational Commercial Arbitration (2000).

under the contract.130 In the overwhelming number of arbitrations result-

ing from these agreements, the losing party voluntarily complies with the
award.131 As already suggested in the case of ICJ judgments, national
courts could also enforce state-to-state arbitral awards, especially in cases
involving money damages in which the national court controlled assets of
the judgment debtor. In the case of Committee of US Citizens Living in
Nicaragua, the court suggested Nicaragua might have standing to enforce
an ICJ decision against the US in US courts. Interstate arbitral awards are
equally suitable for national court enforcement.
The cases below describe the process of enforcing ad hoc arbitral
awards if at least one party is a state. National courts are regularly asked to
enforce arbitral awards following arbitration of international commercial
disputes involving either private parties, commercial parties, or sovereigns
and private commercial parties. They also aid in enforcement of interim
awards.132 National courts have played a lesser role, if any, in enforcing
public international law arbitrations. Such enforcement is now explicitly
called for by the Iran-U.S. Claims Tribunal and in UNCLOS’s seabed
dispute provisions.
Several conventions for the enforcement of international arbitral
awards direct national courts to enforce arbitral awards. Among the
important conventions are the New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards,133 the Inter-American
Convention on International Commercial Arbitration,134 the Brussels
Convention,135 and the Convention on the Settlement of Investment
Disputes between States and Nationals of Other States.136 Building on the
acknowledged success of national court enforcement of international
130
See generally Ronald Bernstein et al., Handbook of Commercial Arbitration (1998).
131
Nienaber, supra note 129.
132
Marchac, supra note 114, at 133-36 (1999).
133
See A.J. van den Berg, The New York Arbitration Convention of  (). The
Convention states:
This Convention shall apply to the recognition and enforcement arbitral awards made in
the territory of a State other than the State where the recognition and enforcement of such
awards are sought, and arising out of differences between persons, whether physical or
legal. It shall also apply to arbitral awards not considered as domestic awards in the State
where their recognition and enforcement are sought.
New York Convention, art I.
134
O.A.S. Doc. OEA/Ser. A/20 (SEPF) (1975).
135
European Community Convention on Jurisdiction and the Enforcement of Judgments in
Civil and Commercial Matters, Sept. 27, 1968 [hereinafter Brussels Convention].
136
Mar. 18, 1965, 575 UNTS 159.

commercial arbitral awards, states are providing for enforcement of

state-to-state arbitral awards and other decisions in national courts. As
discussed above, the Algiers Accords establishing the Iran-US Claims
Tribunal, provides in Article IV(3): “Any award which the Tribunal may
render against either government shall be enforceable against such gov-
ernment in the courts of any nation in accordance with its laws.”137
Similarly, UNCLOS provides for national court enforcement in article 39
with regard to the Sea Bed Disputes Chamber.138
In Creighton v. Qatar, the parties contracted for Creighton, a
Cayman Islands corporation, to build a hospital in the Qatari capital, Doha.
The contract included an arbitration clause providing that all disputes
would be resolved through arbitration under rules of the International
Chamber of Commerce (ICC) in Paris. A dispute did arise and the parties
went to arbitration, in which Creighton prevailed. The ICC arbitrators
ordered Qatar to pay Creighton $8 million.139 Creighton tried to enforce
the award in the United States where Creighton had offices. A US Court of
Appeals determined that if the award had been against a private party, US
courts would have enforced it as though it was a US judicial decision
because the arbitration occurred in France, a party to the New York
Convention. Yet Qatar is a sovereign state, so the US court looked first to
the question of whether the court had jurisdiction over Qatar under the
Foreign Sovereign Immunity Act (FSIA). Congress amended the FSIA in
1996 adding an exception to sovereign immunity for enforcement of
arbitral awards if the award is covered by one of the enforcement
conventions. Even though Qatar itself was not a party to an enforcement
convention, the award was covered by the New York Convention. Thus,
the court lifted Qatar’s immunity. Yet, after having worked its way through
the FSIA to find jurisdiction over the subject matter of the case, the court
found Qatar had insufficient contacts with the forum to establish jurisdic-
tion over it in personam. The court regretted that Creighton had not
briefed the court on the question whether states have the same due
process rights as individuals. The court raised the question whether the
rules of in personam jurisdiction, designed to protect individual due
process, are relevant to states.140
137
Algiers Declaration, supra note 2; see also Case A21 supra.
138
UNCLOS, art. 288 & Annex VI, § 4, art. 39.
139
Creighton, Ltd. v. Government of Qatar, 181 F.3d 118, 119–21 (D.C. Cir. 1999).
140
Creighton, 181 F.3d, at 120–21.

Creighton’s experience in France was more positive. Again, in a

separate attempt to enforce the arbitral award Creighton attached Qatari
assets on deposit in the Qatar National Bank and the Banque de France.
The Cour de Cassation, the highest court for commercial matters, decided
the assets could be attached, even if noncommercial, because Qatar had
waived its immunity from execution when it signed the arbitration agree-
ment.141 Under a decision handed down shortly before Creighton’s, it was
decided that French courts would accord immunity only to assets covered
by diplomatic treaty. Noga, a Swiss corporation, attempted to enforce an
arbitral award against Russia, attaching accounts of the Russian embassy,
among other assets. The French courts decided that the embassy accounts
fell under the law of diplomatic immunity, and, under that law, were
immune from attachment in aid of execution.142
Besides immunity, there are a few other bases under the enforce-
ment conventions upon which a national court might refuse to enforce an
international award. The New York Convention provides a list of grounds
for refusing enforcement:
(a) invalidity of the arbitration agreement;

(b) violation of due process;
(c) . . . arbitrator [exceeds] . . . authority;
(d) irregularity in the composition of the arbitral tribunal or
in the arbitral procedure; and
(e) award not binding, suspended or set aside in the country
of origin.
Additionally, the court can refuse to enforce the award under

Article V(2) if its subject matter is incapable of settlement by
arbitration under the enforcing country’s laws or if recognition
or enforcement of the award would violate the enforcing
country’s public policy.143
141
Société Creighton v. Ministre des Finances de l’Etat du Qatar et autre, Cour de Cassation (1st
Civil Chamber), July 6, 2000, Bull. Civil I, no. 207 (2001).
142
Fédération de Russie v. Compagnie Noga d’importation et d’exprotation, Cour d’apple [CA]
[regional court of appeal] Paris, 1e ch., Aug. 10, 2000, 127 Int’l L. Rep. 156, 161 (2005).
143
Susan Choi, Judicial Enforcement of Arbitration Awards Under the ICSID and New York
Conventions, 28 N.Y.U. J. Int’l L. & Pol. 175, 189 (1999).

In the Matter of Chromalloy Aeroservices,144 a US federal district court

enforced an arbitral award against Egypt. It did so despite the fact that an
Egyptian national court had set the decision aside. Egypt argued that
under the New York Convention exception in Article V(1)(e), the US
court was barred from enforcing the award. The US court found V(1)(e) a
discretionary provision and given the pro-enforcement position of US law
and international law, the court declined to exercise this discretion.145
The pro-enforcement policy of international law is seen clearly in
the International Centre for Settlement of Investment Disputes (ICSID)
enforcement convention,153 which has an “automatic” enforcement provi-
sion in article 54(1): “States cannot refuse to recognize the award on the
basis of their law governing arbitral awards, public policy, non-arbitrability
of the dispute, or for any other reason.”146 Nevertheless, in three cases in
which parties sought to enforce ICSID awards, national courts did not
automatically enforce but turned to national law on enforcement or
arbitration.147 In two of the three, the private party seeking enforcement of
an award in its favor found no nonimmune assets to attach for execution.
Thus, issues remain for resolution in the area of arbitral award enforce-
ment against states. The clear trend, however, is toward ever smoother,
more efficient, indeed, “automatic” enforcement of awards, even those
involving states and international organizations.148
International courts and tribunals are a regular feature of the
international legal landscape 100 years after the formation of the first
permanent international court. The understanding of and possibilities for
enforcing final judgments and interim orders have grown impressively in
that time. International law plainly permits enforcement measures of a
wide variety by many actors but they are subject to restraint. As with
countermeasures, the principles of proportionality and necessity apply.
Notice is also indicated: A party must first be called upon to fulfill a judi-
cial decision before it can be concluded that forceful measures are needed.
Notice before the imposition of any sanction is a fundamental aspect of
fair process. Most international court and tribunal decisions are complied
144
939 F. Supp. 907 (D.D.C. 1996).
145
Chromalloy, 939 F. Supp. at 909.
146
Choi, supra note 143, at 180.
147
Id. at 180, at 181.
148
“Hybrid” courts would presumably have the same mechanisms available as national courts.
On these courts, see, Laura Dickinson, The Promise of Hybrid Courts, 97 AJIL 295 (2003).

with without the need of enforcement. The US delay in complying with

the ICJ’s judgment in the case of Mexican nationals’ consular rights is an
anomaly. The US Supreme Court’s decision not to enforce the judgment
rested apparently on misunderstandings with respect to the ICJ, its judg-
ments, and international law. By contrast, the more common role that
national courts are more playing today as principled and effective enforc-
ers of international law are the subject of the next, and last, chapter.

Chapter 9
National Court
Enforcement
A committee of United States (US) citizens living in Nicaragua tried to

enforce Nicaragua’s 1986 International Court of Justice (ICJ) judg-
ment against the United States in US courts.1 They argued that they were
beneficiaries of the ICJ judgment that found the US use of force against
Nicaragua in violation of international law. The plaintiffs argued that even
though they were not parties in the case before the ICJ, they were enforcing
the jus cogens norm against the unlawful use of force, and therefore had
standing under an erga omnes argument. In other words, the judgment
concerned a legal obligation the US owed to all. The plaintiffs succeeded in
defeating the application of the political question doctrine, a prudential
doctrine used by American courts to avoid deciding cases touching on
matters deemed to be delegated to the other branches, such as the conduct
of foreign affairs. The appellate court found that it had the constitutional
authority to decide the international law questions involved, but the plain-
tiffs did not succeed in convincing the court that they were the intended
1
Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).

beneficiaries of the ICJ judgment with standing to enforce it. Judge Abner
Mikva did indicate that Nicaragua might have standing or that if the plain-
tiffs were directly enforcing a jus cogens norm, as opposed to indirectly
enforcing it in the form of an ICJ judgment, they might have had standing.
Despite the loss, the lawyers representing the plaintiffs in Committee
of U.S. Citizens Living in Nicaragua, Jules Lobel of the University of
Pittsburgh and Michael Ratner of the Center for Constitutional Rights,
would continue to seek enforcement of international law, especially human
rights law in US courts. Ratner would later be a principal lawyer defend-
ing detainees at the prison at Guantántamo Bay, Cuba, and other persons
designated by the US as enemy combatants. He also joined human rights
lawyers in a number of other countries to request national criminal trials
of US officials for violations of the 1949 Geneva Conventions and other
international law.2
National courts are, in many respects, the most important institu-
tions for enforcement of international law. Cherif Bassiouini calls national
courts the “indirect enforcement system” of international law.3 Enforcement
through national courts is widely available for many different kinds of
international law violations. International law places few restrictions on
states that wish to subject violations of international law to their domestic
enforcement institutions. Despite this freedom, the method is not as
widely used as one might expect. States themselves restrict access to
their courts. In the 1990s, barriers were coming down to enforcement of
international human rights and humanitarian law but a certain backlash
followed. Belgium, for example, allowed its citizens to bring criminal
actions against perpetrators of serious violations of international law
regardless of where the perpetrator carried out violations or who he was.
The ICJ ruled in the Arrest Warrant case, however, that a person engaged
in diplomatic representation, such as a foreign minister, could not be sub-
jected to national criminal process in a foreign state without the consent
of the state of nationality.4
2
He coauthored a very different book from that by Goldsmith and Posner: see, Beth Stephens
& Michael Ratner, International Human Rights Litigation in U.S. Courts 213
(1996).
3
1 International Criminal Law 3 (M. Cherif Bassiouni ed., 1983).
4
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14) [hereinafter
Arrest Warrant].

National Court Enforcement
Nevertheless, national courts remain powerful fora for enforcing

international law. According to Anne-Marie Slaughter, “international law
works best when it can borrow the legitimacy of domestic law and the
coercive power of domestic courts.”5 Unlike the international legal system,
all functioning nation-states have institutions for enforcing the law. These
are principally the police and courts, but include administrative agencies
and the military. With the dearth of institutions for enforcing international
law on the international plane, it is attractive to borrow the existing means
in domestic systems, including a state’s police, courts, or other agencies
that exercise effective control over persons and assets. As just discussed in
Chapter Eight, “International Court Enforcement,” national courts often
enforce international arbitral awards, usually under the terms of an
enforcement treaty and could enforce international court decisions on the
same basis as arbitral awards.6
The enforcement of international law through national courts is the
most commonly used method of international law enforcement and in
many respects the most attractive.7 Perhaps the oldest and best known
example of the method is the use of national courts to enforce the interna-
tional law against piracy by arresting pirates, then subjecting them to judicial
process by the state’s courts and imprisoning them in the state’s prisons.8
5
Anne-Marie Slaughter, Review of Regime Theory and International Relations, Volker Rittberger
and Peter Mayer, 89 AJIL 454, 455–56 (1995).
6
See Mary Ellen O’Connell, The Prospects for Enforcing Monetary Judgments of the International
Court of Justice, 30 Va. J. Int’l L. 891, 908–9 (1990) [hereinafter O’Connell, Enforcing Mon-
etary Judgments].
7
The terms domestic and national law or courts are used interchangeably throughout the chapter.
The terms refer to the law of a state in distinction to international law. They have the same
meaning as the older, classic term, municipal law. See Peter Malanczuk, Akehurst’s
Modern Introduction to International Law 63 (7th rev ed., 1997); 1 Oppenheim’s
International Law 52 (Robert Jennings & Arthur Watts eds., 9th ed. 1996).
See generally on this subject: Enforcing International Human Rights in Domestic Courts
(Benedetto Conforti & Francesco Francioni eds., 1999); International Law Decisions in
National Courts (Thomas M. Franck & Gregory H. Fox eds., 1996); Benedetto Conforti,
International Law and the Role of Domestic Legal System, (1993); Christoph
Schreuer, Decisions of International Institutions Before Domestic Courts (1981);
Elihu Lauterpacht, Implementation of Decisions of International Organizations Through National
Courts, in The Effectiveness of International Decisions 57 (Stephen M. Schwebel ed.,
1971); Richard Falk, The Role of Domestic Courts in the International Legal Order
(1964); F.A. Mann, International Delinquencies Before Municipal Courts, reprinted in Studies in
International Law 366, 382 (F.A. Mann ed., 1973); Philip Quincy Wright, The Enforce-
ment of International Law Through Municipal Law in the United States (1916).
8
See United Nations Convention on the Law of the Sea art. 105, Dec. 10, 1982, UN Doc.
A/CONF.62/122 (1982), reprinted in 21 ILM 161 (1982). See, e.g., U.S. v. Smith, 18 U.S. 153

“The advantage of enforcing international criminal law on the national

level is obvious: the enforcement machinery of municipal criminal law,
can be used for enforcement purposes. The courts’ edicts can be easily
enforced. Sentences can be readily executed.”9 Although the example of
enforcing international law against pirates may be the oldest known use of
this method, enforcement through domestic institutions is in fact widely
available for many different kinds of international law violations—possibly
every kind. Indeed, international law is generally supportive of states that
wish to subject violations of international law to their domestic enforce-
ment institutions. National courts must respect some sovereign immunity
and the immunity of certain serving officials of foreign states. National
courts must also respect basic principles of procedural fairness. Any
remedy they impose must respect the principle of proportionality.10
Despite this relative freedom, states themselves have created various
impediments to enforcing international law—discretionary impediments.
In particular, states grant far more generous immunity than international
law mandates. Some states require minimum contacts with the jurisdiction
before enforcing, even in cases of universal jurisdiction crimes. Some have
also created prudential doctrines like act of state, political question, and
forum non conveniens to allow courts to decline to take jurisdiction.
Typically, these prudential doctrines aim at allowing the state’s executive
freedom of maneuver in conducting foreign policy. Still, these self-
imposed limits have been diminishing in recent decades. The United
Kingdom limited head-of-state immunity in the Pinochet extradition
proceeding.11 Senegal took a similar position in a case against the former
(1820) (discussing the well-settled definition of piracy under the law of nations and the
enforcement of that law in national courts). The phrase law of nations predates the term inter-
national law. References to the law of nations are not always equivalent to international law
but often are, including with respect to the of piracy. See Mark W. Janis, An Introduction
to International Law 1–2 (4th ed. 2003); Mark W. Janis, Jeremy Bentham and the Fashioning
of “International Law,” 78 AJIL 405 (1984).
9
G.O.W. Mueller & Douglas J. Becharov, Evolution and Enforcement of International Criminal
Law, in I International Criminal Law 257 (2d ed. 1999).
10
See generally, André Nollkaemper, Internationally Wrongful Acts in Domestic Courts, 101 AJIL
760, 761–62 (2007). Nollkaemper argues generally that the law of state responsibility be
applied along with substantive law when an international law issue is before a national court,
including the rules governing remedies.
11
R v. Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet Ugarte (No. 2), [1999]
1 W.L.R. 272; (No. 1) [1998] 3 W.L.R. 1456; Nehal Bhuta, Note, Justice Without Borders?
Prosecuting General Pinochet, 23 Melb. U.L. Rev. 499, 511–13 (1999).

Chadian dictator Hiss||ne Habré.12 Plaintiffs in the United States have

brought cases against former heads of state and sovereign states for human
rights violations.13 The United States Supreme Court in a 2004 case lifted
the sovereign immunity of states, retrospectively, in an important class of
international law cases.14 Some countertrends are apparent also, as the ICJ
ruled conservatively in a case of official immunity and some national
authorities are viewing immunity even more conservatively.15 In a 2008
decision, the US Supreme Court added a new barrier to enforcement of
ICJ judgments in the US: the need for statutory authority to do so—at
least for ICJ judgments enforcing the Vienna Convention on Consular
Relations16 Nevertheless, domestic institutions are and will remain the
chief means of enforcing international law.
While national courts offer real advantages over alternative enforce-
ment mechanisms, some concerns do exist, of course. One major concern
is that as multiple national courts enforce the same rules the potential for
different outcomes is real. Some refer to this problem as fragmentation in
international law, but as courts in federal states demonstrate, the problem
is not insurmountable. It certainly does not outweigh the advantages of
national court enforcement. Conforti goes so far as to say, “the truly legal
function of international law essentially is found in the international legal
systems of States. Only through what we could term ‘domestic legal opera-
tors’ can we describe the binding character of international law or, better
still, its ability to be implemented in a concrete and stable fashion . . . .”17
12
Norimitsu Onishi, African Dictator Faces Trial Where He Once Took Refuge, N.Y. Times, Mar. 1,
2000, at A1; Anne Penketh, ‘African Pinochet’ is Charged Over Torture and Killings, The
Independent (London), Feb. 4, 2000, at 15; Chad Investigation Begins, N.Y. Times, Jan. 29,
2000, at A4. The charges were subsequently dropped, however, when a judge determined
Senegal did not have jurisdiction over torture occurring abroad. Judge Dismisses Habre’s
Case, Africa News Serv., Jul. 4, 2000.
13
Hilao v. Estate of Ferdinand E. Marcos, 25 F.3d 1467 (9th Cir. 1994); In re Estate of Marcos
Human Rights Litig., 978 F.2d 493, 502 (9th Cir. 1992), cert. denied 508 U.S. 972 (1993). See
Ralph G. Steinhardt, Fulfilling the Promise of Filartiga: Litigating Human Rights Claims Against
the Estate of Ferdinand Marcos, 20 Yale J. Int’l L. 65, 68 (1995); Beanal v. Freeport-McMoRan,
Inc., 969 F. Supp. 362 (E.D. La. 1997). Richard L. Herz, Litigating Environmental Abuses Under
the Alien Tort Claims Act: A Practical Assessment, 40 Va. J. Int’l L. 545 (2000).
14
Republic of Austria v. Altmann., 541 U.S. 677 (2004).
15
Bruce Zagaris, French Prosecutors Dismiss Torture Case Against Rumsfeld, 24 Int’l Enf. L.
Rep. 84 (Feb. 2008).
16
Medellín v. Texas, 128 S.Ct. 1346 (2008).
17
Conforti, supra note, at 8–9.

The opportunities for enforcement are particularly strong in the

areas of international criminal law (including international humanitarian
law and human rights), environmental law, and economic law. In these
areas, rules target actions of individuals over which national courts have
considerable power. The chapter focuses primarily on what international
law says about national court enforcement. The chapter does not provide
a survey of national judicial systems but rather sets out the rules regulat-
ing national enforcement in international law, along with examples of the
rules in action. As already mentioned, international law imposes few
restrictions on national courts. The barriers tend to come from the national
legal systems themselves, but restrictions from both sources are in flux.
I. International Law Enforcement by National Courts

in General
The primary reason that national courts have been and will remain the most
common means of enforcement lies in the fact that international law never
developed a set of binding rules defining jurisdiction for states in general or
their courts in particular. Thus, national courts may take jurisdiction in a
very broad range of cases that involve the enforcement of international law.
A few exceptions exist to this broad right to exercise judicial jurisdiction,
but they are fewer than many realize. From the earliest days of international
law,18 national courts have been active in enforcement. “In the seventeenth
century, for example, English and French courts regularly applied interna-
tional prize law in cases concerning the lawfulness of seizures of a belliger-
ent’s commercial vessels during military conflict.”19 In an eighteenth-century
pirate case, Rex v. Dawson and Others, the charge to the grand jury by Sir
Charles Hedges included the following statement on the jurisdiction of the
English courts to enforce the law against piracy:
The King of England hath not only an empire or sovereignty

over the British seas for the punishment of piracy, but in
18
The term international law was introduced by Jeremy Bentham in 1789. Thus, courts in earlier
cases use other terms such as law of nations. Although an argument can be made that this is not
the same law as today’s international law, the connections are strong enough to point to these
early cases as the forerunners of contemporary international law cases in national courts. See
Michael Akehurst, Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. 145 (1972–73).
19
George Slyz, International Law in National Courts, in International Law Decisions in
National Courts, supra note 7, at 71.

concurrence with other Princes and States, an undoubted

jurisdiction and power in the most remote parts of the world.
If any person, therefore, native or foreigner, Christian or
Infidel, Turk or Pagan, with whose country we are in amity,
trade or correspondence, shall be robbed or spoiled, in the
narrow or other seas, whether the Mediterranean, Atlantic or
Southern, or any branches thereof, either on this or the other
side of the line, IT IS A PIRACY, within the limits of your
inquiry, and cognizable by this Court.20
Prize and piracy were probably the most common international law
questions in national courts but other questions appear in early cases as
well. A British court considered the question of the immunity from judicial
process of a foreign agent in 1737 in the case of Buvot v. Barbuit.21 The case
involved a claim of immunity by a commercial agent of the Prussian
government. In 1764, in Triquet and Others v. Bath, Lord Mansfield
discussed immunity under the law of nations in the case of a Bavarian
minister’s domestic servant. Mansfield specifically upheld the decision in
Buvot, and affirmed that international law is part of English law.22 United
States courts followed the English courts in viewing international law as
part of US law, enforceable in US courts.23 In 1784, a Pennsylvania court
held an individual in violation of the law of nations for assaulting the
French consul.24 Ware v. Hylton25 concerned property of nonnationals
during and after war and other questions of international law. Examples
could be cited from throughout the nineteenth century as well. National
courts enforced international law against their own nationals, their own
governments and nonnationals. Foreign states, however, enjoyed absolute
immunity until the twentieth century and thus do not appear as defen-
dants in early cases.
20
Rex v. Dawson, 8 William III, 1696, 5 State Trials, 1st edit. 1743, quoted in U.S. v. Smith, 18 U.S.
153, 163 (1820) (italics in the original removed).
21
Buvot v. Barbuit [1737] cas temp Ld Talb 281; see also Malcolm N. Shaw, International
Law 108 (3rd ed. 1991).
22
97 Eng. Rep. 936, 938; 3 Burr. 1478 (K.B. 1764).
23
Chisolm v. Georgia, 2 U.S. (2 Dall.) 419, 474 (1793).
24
Respublica v. de Longchamps, 1 U.S. (1 Dall.) 111, 1 L. Ed. 59 (1784).
25
3 U.S. (3 Dall.) 199, 281 (1796).

International enforcement cases reach domestic courts from two

avenues. First, national courts receive cases requiring the application of
international law as the substantive law of decision. Following judgment,
the court may have to enforce its decision. If a court, for example, decides
a person has committed an international crime, such as piracy, the court
may then sentence the person to a jail term. The second avenue to national
courts is in the context of enforcing foreign and international judgments
and arbitral awards. In addition to enforcing their own decisions, courts
regularly receive requests to enforce decisions of other courts on interna-
tional law questions.
From the middle of the twentieth century until today, international
law has changed fundamentally, largely in response to globalization. Along
with changes in the substance of the law, the opportunities to enforce
have grown. One of the most important events with regard to both the
substance and process of international law was the decision to hold the
trials at Nuremberg following World War II. The victorious Second World
War Allies decided to hold trials of individuals for violations of interna-
tional law. Although individuals had been held responsible in the past—
most notably in the pirate cases—at Nuremberg, high ranking government
officials were held responsible for violating human rights and for waging
aggressive war. Some were tried in an international court, the International
Military Tribunal (the Nuremberg Tribunal). Others were tried in national
courts but under international law.26 Another development in the mid-
twentieth century was the decline of absolute sovereign immunity, replaced
by restrictive immunity. These changes have meant that more interna-
tional law reaches national courts than ever before.
Once an international legal rule is applied by a domestic court,
enforcement will generally follow the pattern of a domestic decision.
However, the enforcement of international law by a domestic court can raise
legal issues unique to the application of international law. For example, in a
case brought by victims of the Philippine dictator Ferdinand Marcos, a US
court confronted the challenge of controlling assets in Switzerland to
26
The literature on the Nuremberg trials is vast and growing, see, e.g., War Crimes, The Legacy
of Nuremberg (Belinda Cooper ed., 1999); Robert E. Conot, Justice at Nuremberg
(1983); Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir
(1992); Ann Tusa & John Tusa, The Nuremberg Trial (1983); Airey Neave, On Trial at
Nuremberg (1978).

preserve the plaintiff ’s chance to recover damages.27 Or in the case

brought by the Flatow family, against Iran, discussed in Chapter Eight, the
Flatows learned that Iranian assets in the United States were immune from
attachment. The US Congress compensated the Flatows and directed the
executive branch to seek compensation from Iran.28
How a question of international law comes before a national court
depends on how the constitution of the state organizes the reception of
international law into the domestic legal system.29 Every state has its own
particular arrangements and practices regarding reception of interna-
tional law. The literature refers to states falling in either a dualist or monist
category in relation to international law. According to Robert Jennings
and Arthur Watts, the reality is that states are not purely dualist or monist
but tend to favor one category or the other.30 Moreover, regardless of the
constitutional arrangements for the reception of international law, some
international law is applied in national courts because it is the proper law
of the case. So the three main routes to international law becoming the
applicable law in a national court case are as follows:
Dualist/Transformationist: The state’s legislature may transform a rule

of customary international law or treaty law into rules of national law.
In some states, courts may not as a general matter apply or enforce
international law that is not first transformed.31
27
The Philippines has sought the assistance of the Swiss government to recover wealth held by
the Marcos family. Blanche S. Rivera & Donna S. Sueto, Government to Seek Help of Swiss
Parliament, Phil. Daily Inquirer, Mar. 17, 2001. The Philippines in turn would help the
plaintiffs in a class action lawsuit in the US against Marcos recover damages. But see U.S. Judge
Throws Out Marcos Lawsuit, Associated Press, Nov. 29, 2000, (a federal judge threw out a
settlement in the case because of the government’s failure to help get payments).
28
Flatow v. Alavi Foundation, 225 F.3d 653 (4th Cir. 2000) (unpublished); Flatow v. Islamic
Republic of Iran, 196 F.R.D. 203 (D.D.C. 2000); Flatow v. Islamic Republic of Iran, 74 F. Supp.
2d 18 (D.D.C. 1979); Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998); Bill
Miller, Terrorism Victims Set Precedent: U.S. to Pay Damages, Collect From Iran, Wash. Post,
Oct. 22, 2000, at A01. See also Sean D. Murphy, Contemporary Practice of the United States, 95
AJIL 134 (2001); Sean D. Murphy, Contemporary Practice of the United States relating to
International Law, 93 AJIL 181 (1999).
29
Antonio Cassese, Modern Constitutions and International Law, 192 Recueil des Cours 331
(1985 III); International Law and Municipal Law (G. I. Tunkin & R. Wolfrum eds.,
1988).
30
George Slyz, supra note 19, at 75. See also Oppenheim’s International Law, supra note 7,
at 54.
31
Malanczuk, supra note 7, at 63; Oppenheim’s International Law, supra note 7, at 53.

Monist/Incorporationist: International law may form part of the

nation’s law without the need for transformation. Courts may apply
and enforce international law directly from the international legal
system.32
Choice of Law: International law may be the appropriate choice of
law.33
In most cases, international law enforced by national courts is first

transformed into domestic law. A state’s legislature transforms interna-
tional law by implementing it in domestic law as a statute, code provision,
or regulation. In some states, such as Denmark and the United Kingdom,
the need for transformation was once considered a strict requirement.
That may be less the case today. Even in states that permit direct incorpo-
ration of international law, international law typically is transformed by
the legislature before being applied by courts, due to the fact that much
international law is not complete enough as adopted on the international
plane to be directly applicable in a domestic legal system. Indeed, treaties
often need implementation where the bulk of the treaty’s requirements are
addressed to individuals. Courts rarely cite the treaty after transforma-
tion. By applying the implementing statute, however, international law is,
of course, also applied.
The Convention on the International Trade in Endangered Species34
(CITES) is implemented in the United States in the Endangered Species
Act of 197335 and the Lacey Act.36 CITES sets up a system for listing
species that should not be traded or should be traded with care in order to
prevent extinction. The convention itself does not provide for inspectors
or police to do this. Rather, it depends on trading states to prevent the
export or import of listed species.37 Article VIII of CITES mandates that
states take appropriate measures to enforce the convention by assessing
32
Malanczuk, supra note 7, at 63; Oppenheim’s International Law, supra note 7, at 54.
33
See Mann, supra note 7, at 366, 382.
34
Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3,
1973, 27 UST 1087, 993 UNTS 243 [hereinafter CITES].
35
16 U.S.C. §§ 1531–1543.
36
16 U.S.C. §§ 3371–3378.
37
Jennifer Zoe Brooks, A Survey of the Court Enforcement of International Wildlife Trade
Regulations Under United States Law, 17 Wm. & Mary J. Envt’l. L. 145, 146 (1993).

penalties, confiscating illegally traded animals and animal parts, and assess-
ing fines for the cost of confiscation. In the US, the United States Fish and
Wildlife Service administers the Endangered Species Act. The act makes it
unlawful for any person subject to the jurisdiction of the

United States to—
(A) import any such species into or export any such species
from the United States;
(B) take any such species within the United States or the ter-
ritorial sea of the United States;
(C) take any such species upon the high seas; . . .
(F) sell or offer for sale in interstate or foreign commerce any
such species;. . . .38
Persons doing any of these acts face forfeiture of the shipment, fines, and
prison sentences. In December 2000, Keng Liang “Anson” Wong of
Malaysia pleaded guilty in the US to forty felony charges in connection
with a worldwide smuggling operation in highly endangered reptiles,
animals such as Komodo dragons protected under CITES.39 Wong had
already been indicted in the US in 1992 for smuggling endangered
species. He was careful, therefore, to stay out of the US but continued his
criminal activity, selling species on the brink of extinction by using phone
and fax communications. In 1998, he traveled to Mexico. US authorities
requested assistance from Mexico and Wong was arrested. He then fought
extradition to the US for over two years until August 2000.40 The result of
US enforcement efforts and those of other parties to CITES is that CITES
has been noted as the most effective treaty for the protection of wildlife.41
The Danish case, Director of Public Prosecutions v. T, is another
example of transformation. In D.P.P. v. T., the defendant, identified in the
press as Refic Saric,42 was a Croatian national living in Denmark under a
38
16 U.S.C § 1538 (a) (1).
39
Reptile Smuggler Pleads Guilty to Multiple Felony Charges, U.S. Fish & Wildlife Service, Dec.
13, 2000, available at http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=F41
A0A7C-C574-11D4-A17B009027B6B5D3.
40
Id.
41
See Simon Lyster, International Wildlife Law 240 (1985).
42
Bosnischer Muslim beteuert seine Unschuld, Süddeutsche Zeitung, Aug. 12/13, 1995, at 6.

temporary visa for persons from the territory of the former Yugoslavia.43
He was tried and sentenced to eight years in a Danish prison “for assault
of a particularly cruel, brutal or dangerous nature and of such a malicious
character and with such grave consequences as to constitute particularly
aggravating circumstances . . . on 5 August 1993 in the Croatian POW
camp of Dretelj in Bosnia. . . .”44 Saric’s crimes occurred in Bosnia. No
Danish citizens appeared to be among the victims. Nevertheless, since
Saric was in Denmark, Danish courts took jurisdiction under a law imple-
menting the Geneva Conventions in Danish criminal law. The court noted
in D.P.P. v. T. that
the Chief Prosecutor for Zealand has charged T upon an

indictment of 19 October 1994 and a supplementary indict-
ment of 4 November 1994, as these were amended during the
trial of the case, under para. 5 of Section 8 of the Danish penal
code, cf. articles 129 and 130, respectively articles 146 and 147
of the 3rd and 4th Geneva conventions of 1949 relative to the
protection of victims of armed conflicts. . . .45
The jury and the Supreme Court on appeal, found that Saric violated these
provisions of the Geneva Conventions as found in the Danish Penal Code.
He was sentenced to eight years imprisonment in a Danish prison.46
43
The Director of Public Prosecutions v. T (Sentence passed by the E. High Ct., (3rd Div. Den.
22 Nov. 1994) (Danish Ministry of Foreign Affairs, Legal Service, unofficial Translation) (on
file with the author).
44
Id.
45
Id. Article 129 of the Third Geneva Convention Relative to Prisoners of War requires:
The High contracting Parties undertake to enact any legislation necessary to provide
effective penal sanctions for persons committing, or ordering to be committed, any
of the grave breaches of the present Convention defined in the following Article.
Each High Contracting Party shall be under the obligation to search for persons
alleged to have committed, or to have ordered to be committed, such grave
breaches, and shall bring such persons, regardless of their nationality, before
its own courts. It may also, if it prefers, and in accordance with the provisions of
its own legislation, hand such persons over for trial to another High Contracting
party concerned, provided such High Contacting Party has made out a prima
facie case.
Third Geneva Convention relative to the Treatment of Prisoners of War, art. 129, Apr. 21,
1949, 75 UNTS 135.
46
In the 1980s, the French tried a nonnational, Klaus Barbie, head of the Gestapo in Lyons from
1942 to 1944. His trial was based upon Article 6 of the Charter of the Nuremberg International

The United States Supreme Court similarly applied the Geneva

Conventions in striking down the military commissions established to try
some detainees held at Guantánamo Bay, Cuba. The Court directly applied
the Uniform Code of Military Justice, which implements the law of
war, including the conventions. The commissions were inconsistent with
provisions of the Geneva Convention as to a fair trial.47
Certain countries will apply and enforce some international law with-
out transformation, by what is called, somewhat confusingly, incorporation
into domestic law. Article 25 of the German basic law provides: “The general
rules of public international law shall be an integral part of federal law. They
shall take precedence over the laws and shall directly create rights and duties
for the inhabitants of the federal territory.”48 This provision will allow German
citizens to challenge national laws that violate general principles of interna-
tional law. Article 25 also makes treaties directly applicable if widely
adopted.49 Germany has prosecuted dozens of cases against persons involved
in the fighting in former Yugoslavia in the 1990s. Unlike Denmark, Germany
had not placed the Geneva Conventions into its domestic criminal code at
the time these prosecutions began. They went forward under a penal code
provision obliging the Federal Republic of Germany to prosecute offenses
committed by non-nationals if Germany has an international obligation to
do so, even if the crime occurred abroad.50 In the case of Public Prosecutor
v. Djajić, a Bavarian criminal court determined that the obligation to
prosecute exists in the case of persons accused of war crimes.51
Djajić, a Serb from the area of Foca in present-day Bosnia, joined
a contingent of Serbs in the reprisal-execution of fifteen Muslims on
June 22, 1992. Earlier on that day ten Serb soldiers died when their minibus
Military Tribunal, among other grounds, as implemented in French law. Fédération Nationale
des Déportés et Internés Résistants et Patriotes and Others v. Barbie, Court of Cassation
(France) 20 Dec. 1985, 78 Int’l L. Rep. 125, 137 (1988). Brigitte Stern, Universal Jurisdiction
Over Crimes Against Humanity Under French Law – Grave Breaches of the Geneva Conventions of
1949 – Genocide – Torture – Human Rights Violations in Bosnia and Rwanda, 93 AJIL 525 (1999).
47
Hamdan v. Rumsfeld, 548 U.S. 557 (2006); see also Oona A. Hathaway, Hamdan v. Rumsfeld:
Domestic Enforcement of International Law, in International Law Stories 229 (John Noyes
et al. eds., 2007).
48
See Rudolf Geiger, Grundgesetz und Völkerrecht (3d ed. 2002).
49
Gerhard Werle, Völkerstrafrecht und geltendes deutsches Strafrecht, 2000 Juristen Zeitung
755; Christoph J.M. Saeferling, Public Prosecutor v. Djajić, No. 20/96, excerpted in 1998 Neue
Juristiche Wochenschrift 392, 92 AJIL 528, n. 25 (1998).
50
Saeferling, supra note 49, at 529, citing Sec. 6 Nr. 9 St. GB. (Strafgesetzbuch).
51
Id. at 530.

struck a landmine. Fifteen Muslims were rounded up indiscriminately

and taken to a bridge to be shot. One escaped by jumping off the bridge.
He survived and was a witness in the trial against Djajić after Djajić’s arrest
in Germany. The witness confirmed Djajić’s presence, though not that he
actually shot anyone. Djajić was found guilty of abetting murder in viola-
tion of the Fourth Geneva Convention and Additional Protocol I, to which
both Germany and Yugoslavia were party. The court sentenced Djajić to
five years in a German prison.52
In December 2000, Germany’s constitutional court determined that
Germany had jurisdiction in a genocide case based on customary law
universal jurisdiction.53 The fact that the Genocide Convention itself does
not direct national courts to enforce the convention – in distinction for
example to the Geneva Conventions – did not prevent Germany from
relying on the development of a customary right of national courts to
enforce the prohibition on genocide. The case concerned a Bosnian Serb,
Maksim Sokolovic who was charged with genocide for participating in
atrocities in the region around Osmaci, Bosnia, including “arbitrarily
imprisoning 56 people and beating five of them over a period of one-
and-a-half years.”54
The United States, too, permits the direct application and enforce-
ment of self-executing treaties and rules of customary law.55 Carlos
Vásquez explains that given the place of treaties in the US legal system,
individuals intended to benefit under a treaty are presumed to have the
ability to enforce the treaty in their favor in a US court of law:
The Framers intended to make treaties operative on individuals

and enforceable in the courts in cases between individuals. They
considered a judicial sanction to be an essential attribute of a
52
Id. at 528–30.
53
Bundesverfassungsgericht [BverfG][Federal Constitutional Court] Dec. 12, 2000, 2 B v R 1290/99,
paras. 1–49, available at http://www.bverfg.de.
54
German Court Dismisses Appeal by Convicted Bosnian Serb War Criminal, World News
Coun. Feb. 21, 2001.
55
Jordan J. Paust, et al., International Law and Litigation in the U.S. (2000); Richard
B. Lillich, International Human Rights Law in U.S. Courts 2 J. Transnat’l. L. & Pol’y 1, 2
(1993); Carlos Manuel Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 Colum.
L. Rev. 1082, 1096 n.54, (1992); M.W. Janis, Individuals as Subjects of International Law, 17
Cornell Int’l L.J. 61, 61–64 (1984); Harold Hongju Koh, Transnational Public Law Litigation,
100 Yale L.J. 2347, 2351–53 (1991); Jules Lobel, The Limits of Constitutional Power: Conflicts
Between Foreign Policy and International Law, 71 Va. L. Rev. 1071, 1100 (1985).

law, and by giving treaties the status of law they contemplated

that the judiciary would provide such a sanction and thus
prevent or remedy any violation before it escalated to the
international arena.”56
The United Nations Convention on Contracts for the International

Sale of Goods (CISG) is such a self-executing treaty directly received into
United States federal law.57 The convention provides rules to govern con-
tracts for the sale of goods between nationals of states party to the conven-
tion in lieu of the respective national laws in the case of the U.S., in lieu of
the sales law of the fifty states and territories. In MCC Marble,58 a US buyer
and an Italian seller reached agreement for the purchase and delivery of
ceramic tiles. They orally agreed to exclude the written terms on the reverse
side of a pre-printed order form. Under US law such an oral agreement
would be invalid. The US Federal court applied the CISG rule.59
The US Constitution does not refer specifically to customary inter-
national law or general principles. By now, however, US courts have made
clear that customary international law, too, is part of US law. Like treaties
it is part of federal law.60 Federal courts have been applying customary
international law in cases under the Alien Tort Statute (ATS).61 The ATS is
a grant of jurisdiction by the US Congress in 1789 to allow aliens to sue
“for a tort only in violation of the law of nations.” International law is not,
however, superior to US Federal law. Rather, treaties and customary law
are on the same plane as law enacted by the US Congress or applied by
federal courts, and the later in time will prevail. The federal courts have
adopted a canon of construction to avoid interpreting the law in such a
way as to violate international law.62 This is not always possible—one of
the disadvantages of the dualist and mixed systems over the monist ones.
In the case of Medellín v. Texas, the Supreme Court declined to enforce an
56
Vázquez, supra note 55, at 1110; see also Medellín v. Texas, 128 S.Ct. at 1356–57.
57
United Nations Convention on Contracts for the International Sale of Goods, April 11, 1980,
15 U.S.C. app. 52, 19 ILM 671 (1980).
58
MCC-Marble Ceramic Ctr. Inc. v. Ceramica Nuova d’Agostino, 144 F.3d 1384 (11th Cir.
1998).
59
MCC-Marble v. D’Agostino, 144 F.3d, at 1391.
60
See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). See also, Louis Henkin, International Law
as Law in the United States, 82 Mich. L. Rev. 1555 (1984).
61
Alien Tort Statute, 28 U.S.C. §1350.
62
United States v. Palestine Liberation Organization, 695 F.Supp 1456 (S.D.N.Y 1988).

ICJ judgment, opening the way for Texas to put the US in breach of its
international law obligations.63 It is noteworthy that the case concerned
the Vienna Convention on Consular Relations of 1963. The ICJ ordered
Iran in 1980 to comply with that treaty and others during the Hostages
Crisis in a case brought by the US. When Iran did not comply with the
judgment, the United States and other countries sought Iranian compli-
ance freezing Iranian assets.64
Domestic courts are called upon from time to time to apply foreign
law to a case rather than the court’s own national law. That foreign law
could, in turn, require the application of international law, or the parties
in the case might themselves have selected international law as their
choice of applicable law. F.A. Mann argued international law should be
applied in this way even in those courts that receive international law by
transformation:
Nor can any counter-argument be derived from the fact that

by the constitutional law of the majority of countries interna-
tional law has no . . . direct effect. . . . The constitutional law of
the forum is not in issue: even if the State of the forum does
not allow its courts to apply international law in derogation of
existing municipal law, this does not imply the necessity for an
analogous approach to the law of a foreign country. . . . [T]he
true construction of the conflict rule by which the judge is
referred to the foreign law is that it prescribes the application
of such foreign law as is internationally lawful. 65
In the case Banco Nacional de Cuba v. Sabbatino,66 a US court was

called upon to determine title to a shipment of sugar from Cuba to the
United States. The shipper claimed title under a nationalization decree of
the Castro government. The lower court found that although normally
Cuban law would apply, because the nationalization decree violated inter-
national law, the nationalization decree would not be applied. The United
States Supreme Court found that international law on the point was not
63
Medellín v. Texas, 128 S.Ct. 1372–75. (Stevens concurring).
64
United States Diplomatic and Consular Staff in Theran (U.S. v. Iran), 1980 I.C.J. 34 (May 24)
[hereinafter Hostages case]; see also 13/4 Bull. Eur. Communities 20–26 (1980).
65
Mann, supra note 7, at 366, 382.
66
376 U.S. 398 (1964).

clear and so international law could not be applied in preference to Cuban

law. In the Spaniard Decision, German courts refused to apply a Spanish
prohibition on remarriage because the courts found the international law
on the matter was clear: the ban violated international human rights.67
International law does not mandate that a state adopt a monist or
dualist approach to receiving international law into national law. It only
requires that a state’s international law obligations be fulfilled and that no
organ of a government put the state in violation of an obligation. This will
be more difficult for dualist and mixed states than in monist systems. Even
Germany, however, a mostly monist state, failed to apply international law
in some appropriate cases. That was certainly the view of the Prince of
Liechtenstein in a case brought against the Czech Republic in German
courts claiming title to a painting.68
This openness to the way international law is received in national
courts extends to the range of cases national courts may hear. Owing to
international law’s light restrictions on the judisdiction of national courts.
The restrictions that do exist may be grouped around the principles of
nonintervention and immunity. Additional limits are inherent in obliga-
tions to observe fair process and impose only appropriate remedies. In
addition to these limits on national court jurisdiction, national courts
have adopted a variety of barriers to jurisdiction not required by interna-
tional law. Some states require a connection based on territory or nation-
ality for a national court to exercise judicial jurisdiction in civil matters.69
Most courts in the world will refuse to exercise jurisdiction if the case
has no connection with the forum or if another court would be the
better forum. These are known as the minimum contacts and forum non
67
The Spaniard Decision (BverGhf 1971) is described in Bruno Simma et al., The Role of German
Courts in the Enforcement of International Human Rights, in Enforcing International
Human Rights in Domestic Courts, at 100–02.
68
For a description of the facts of the claim see Case Concerning Certain Property (Liech. v.
F.R.G.), 2005 I.C.J. (Feb. 10). (Application of Liechtenstein, available at http://www.icj-cij.
org/docket/files/123/7077.pdf.)[hereinafter Certain Property]. Liechtenstein brought this
case against Germany because German courts refused to hear a title claim by the Liechtenstein
royal family regarding a painting on display in Germany but loaned by the Czech Republic.
Liechtenstein argued German courts may have violated international law by refusing access
to their courts and denying justice to its nationals, by giving effect to a treaty that purports to
resolve property rights of non-Germans. See also, Andrea Gattini, A Trojan Horse for Sudeten
Claims? On Some Implications of the Prince of Liechtenstein v. Germany, 13 EJIL 513 (2002).
See also further discussion, infra, of the duty of national courts not to put the state in violation
of international law.
69
Akehurst, supra note 18, at 170.

conveniens doctrines. National courts also apply some less compelling

limitations derived from comity, such as the act of state doctrine.
Jurisdiction refers to the power or authority to prescribe, enforce,
or adjudicate the law. The right of national courts to adjudicate and enforce
international law depends on the rules of judicial or adjudicative jurisdic-
tion. The PCIJ explained the international law of jurisdiction in the Lotus
case, finding national courts generally free to exercise jurisdiction.
According to Judge Sir Gerald Fitzmaurice writing in the 1970 Barcelona
Traction case:
It is true that, under present conditions, international law does

not impose hard and fast rules on States delimiting spheres of
national jurisdiction . . . —but leaves to States a wide discre-
tion in the matter. It does however (a) postulate the existence
of limits—though in any given case it may be for the tribunal
to indicate what these are for the purposes of that case; and
(b) involve for every State an obligation to exercise moderation
and restraint as to the extent of the jurisdiction assumed by its
courts in cases having a foreign element, and to avoid undue
encroachment on a jurisdiction more properly appertaining
to, or more appropriately exercisable by, another State.70
In 1927, this relative free enforcement of international law, at least

in the cases of foreign nationals, could have changed. In that year the PCIJ
was asked to clarify and apply the law of jurisdiction in a case between
France and Turkey.71 This well-known case arose out of the collision
on the high seas of a French ship, the Lotus, with a Turkish ship, the
Boz-Kourt. Eight persons died. When the French ship entered the port of
Constantinople, the French officer of the watch, Lieutenant Demons, was
arrested. He and the Captain of the Boz-Kourt, Hassan Bey, were tried
70
Barcelona Traction, Light and Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 105 (Feb. 5) (Separate
Opinion of Judge Sir Gerald Fitzmaurice). “International law has failed to develop jurisdic-
tional rules that are as comprehensive or precise as the domestic jurisdictional rules of indi-
vidual nations.” Christopher L. Blakesley, Extraterritorial Jurisdiction, in 2 International
Criminal Law: Procedure (M. Cherif Bassiouni ed., 1986). “International law has not yet
developed a comprehensive set of rules defining with reasonable precision all forms of juris-
diction that may be exercised by states and other international legal persons.” Louis Henkin,
et al., International Law 821 (2d ed. 1987).
71
Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7).

under Turkish law and found guilty. Demons was sentenced to eighty
days’ imprisonment and fined. Hassan Bey received a more severe
sentence. The French complained that in exercising jurisdiction, Turkey
had violated international legal principles of jurisdiction. The PCIJ held
the following regarding jurisdiction:
Now the first and foremost restriction imposed by interna-

tional law upon a State is that—failing the existence of a
permissive rule to the contrary—it may not exercise its power
in any form in the territory of another State. In this sense
jurisdiction is certainly territorial; it cannot be exercised
by a State outside its territory except by virtue of a permis-
sive rule derived from international custom or from a
convention.
It does not, however, follow that international law prohibits a
State from exercising jurisdiction in its own territory, in
respect of any case which relates to acts which have taken
place abroad, and in which it cannot rely on some permissive
rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to
extend the application of their laws and the jurisdiction of
their courts to persons, property and acts outside their
territory, and if, as an exception to this general prohibition, it
allowed States to do so in certain specific cases. But this is
certainly not the case under international law as it stands at
present. Far from laying down a general prohibition to the
effect that States may not extend the application of their laws
and the jurisdiction of their courts to persons, property and
acts outside their territory, it leaves them in this respect a wide
measure of discretion which is only limited in certain cases by
prohibitive rules; as regards other cases, every State remains
free to adopt the principles which it regards as best and most
suitable.72
Thus, the PCIJ recognized at least one clear limit on the right of states to
enforce international law through their courts—states may not exercise
72
Lotus Case, 1927 P.C.I.J. at 18–19.

jurisdiction on the territory of another state. Subsequently the ICJ has rec-
ognized immunity of certain high government officials as another limit on
the jurisdiction of national courts to enforce international law. Diplomats
and international civil servants enjoy a measure of immunity from national
courts as a matter of international law. Sovereign states may also be enti-
tled to some immunity under international law.
Regarding judicial jurisdiction, in particular, it is “hard to resist the
conclusion that (apart from the well-known rules of immunity for foreign
States, diplomats, international organizations, etc.) customary interna-
tional law imposes no limits on the jurisdiction of municipal courts in
civil trials.”73 Many scholars believe that a court must have some link to a
crime to exercise criminal jurisdiction,74 although the examples generally
of such limits are of noninternational crimes. Otherwise, the forum state
risks violating the nonintervention principle.75 States try to avoid com-
plaints of interference or encroachment by basing exercises of jurisdic-
tion on one of the permitted bases: territoriality, nationality, passive
personality, protective, or universal jurisdiction.76 Except for the exercise
of enforcement jurisdiction on the territory of a state without consent, the
bases are more a means of avoiding conflicts than prohibitory rules.
The nonintervention principle means national courts may not order
police or agents onto the territory of another state to arrest a wrongdoer
or seize assets located there without the territorial state’s consent. Plainly,
this principle makes enforcement in some cases far more challenging than
in wholly domestic ones. Nevertheless, the principle persists. It both pre-
serves the independence and autonomy of states and raises no insurmount-
able obstacles to the administration of justice. Courts and law enforcement
agencies may seek the cooperation of other states in extraditing suspects
or controlling assets. Extradition agreements allow the arrest and return
of persons wanted in state who are located elsewhere.77 Judicial assistance
73
Akehurst, supra note, 18, at 177 (emphasis added).
74
Id.
75
“No State . . . has the right to intervene, directly or indirectly, for any reason whatever, in the
internal or external affairs of any other State.” Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in Accordance with the Charter
of the United Nations, G.A. Res. 2625, at (XXV), at 123 UN Doc. A/8082 (Oct. 24 1970).
76
Akehurst, supra note 18, at 152–66. See also Luc Reydams, Universal Jurisdiction:
International and Municipal Legal Perspectives (2003).
77
See generally on extradition, M. Cherif Bassiouni, International Extradition: United
States Law and Practice (1996); Geoff Gilbert, Aspects of Extradition Law (1991).

agreements permit a court in one state to get control of documents, evidence,

or assets in another.78 Treaties on recognition and enforcement of foreign and
international arbitral awards permit effective enforcement without violating
territorial integrity.79 In a case before US courts, Hilao v. Marcos, the events
occurred in the Philippines. The perpetrators and victims were all citizens of
the Philippines. The US federal court in question had jurisdiction under the
Alien Tort Claims Act.80 The substantive law applied in the case was interna-
tional law. The cases began when Ferdinand Marcos was forced into exile in
the US, bringing some but not all of the assets he controlled. Following his
death, the cases continued, even when it became clear that, for individual
plaintiffs, enforcement of any award would have to come from assets located
in Switzerland.81 Swiss courts cooperated by freezing Marcos’s assets to use in
enforcing US judgments in the case.82
The nonintervention principle means national courts will need
assistance in enforcing some of the international law-related decisions
they make. By contrast, international courts and tribunals will need assist-
ance in virtually every case where the losing party refuses to comply.
International courts and arbitral tribunals rarely control persons and
assets. Winning parties in international commercial arbitration regularly
petition national courts to enforce international commercial arbitration
awards. International judicial decisions can also be enforced by national
courts though this means is underused. In Europe, national courts can
readily enforce decisions of the European Court of Human Rights. Few
national courts have ever been asked to enforce decisions of the ICJ, the
international criminal tribunals, or state-to-state arbitrations. These are
generally complied with without the need for assistance, as discussed in
chapter 8.
In Medellín v. Texas, Chief Justice Roberts held that US courts could
not directly enforce an ICJ judgment despite the fact the judgment ordered
78
See generally on judicial assistance, David McClean, International Judicial Assistance
(1992).
79
80
“The district courts shall have original jurisdiction of any civil action by an alien for a tort
only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C.
§ 1350 (1999).
81
Steinhardt, supra note 13, at 65–66.
82
Cecil Morella, Victims Face Further Wait After Philippine Court Blocks Marcos Payout, Agence
Fr.-Presse, July 28, 1999; Court Blocks Settlement from Marcos Estate, Cinci. Enq., July 28,
1999, at A9.

review and reconsideration of the convictions and death sentences of 51

Mexican nationals. In other words, the ICJ judgment was one designed for
implementation by US courts. Roberts drew support for his position by
pointing to the paucity of cases finding ICJ judgments “binding” in
national courts.83 This can be explained, however, by the fact that states
almost always comply with ICJ judgments, obviating any need for recourse
to national courts. Rather than looking to enforcement of just ICJ judg-
ments, the majority in Medellin should have looked at the full range of
international and foreign court and tribunal decisions that national courts
regularly enforce either directly or under the terms of an enforcement
treaty. As Justice Breyer said in dissent, “Enforcement of a court’s judg-
ment that has ‘binding force’ involves quintessential judicial activity.”84
II. Immunity and Other Barriers to National

Court Enforcement
The most important barrier in international law to national court enforce-
ment is found in the law of immunity. Immunity from jurisdiction comes
in three categories: (1) diplomatic immunity, (2) official immunity, and
(3) sovereign immunity. Diplomatic immunity is one of the oldest princi-
ples of international law. Diplomats and personnel of international organi-
zations are generally immune from the national courts of states in which
they are properly accredited. High-ranking government officials involved in
diplomacy also generally have immunity from process in foreign courts.
States enjoy a certain amount of sovereign immunity under customary
international law, and international organizations also enjoy a certain
amount of immunity—as agreed by treaty.85 Diplomatic immunity flows
from the need of states to communicate with one another, a need that can be
hindered if diplomats are subject to the judicial process in foreign states.
Official and state immunity flows from the concept of states as coequal on
the international plane. States would appear to lose that equality should they
or their officials be subjected to judicial control in another state’s courts.
83
Medellín v. Texas, 128 S.Ct. 1346, 1363. Belgian courts were in principle open to enforcing a
PCIJ judgment between Belgium and Greece benefiting a Belgian company. The company
could not however meet a procedural requirement for enforcement. Société Commercial de
Belgique (Belg. v. Greece), 1939 P.C.I.J. (ser. A/B) No. 78 (June 15).
84
Medellín v. Texas, 128 S.Ct. 1346, 1383 (Breyer dissenting).
85
Restatement (Third) of Foreign Relations Law § 463 cmt. b.; European Convention on
State Immunity, May 16, 1972, reprinted in 66 AJIL 923 (1972).

Diplomats enjoy either absolute or functional immunity from the

enforcement institutions of the states to which they are sent.86 Diplomats
do not lose their immunity as a countermeasure for violations of interna-
tional law. The ICJ explained that the only recourse against a diplomat
with full immunity is to declare the person persona non grata and give
notice that he or she leave the state. This position suggests that even
someone guilty of serious violations of international law—a Pol Pot or
Pinochet—who happens to have diplomatic credentials is not subject to
national court adjudication. Chile took this position respecting General
Augusto Pinochet during proceedings for his extradition from the UK
in the 1990s. Pinochet’s credentials had not been properly accepted,
however, and so the British courts refused to consider a grant of immunity
based on Pinochet’s diplomatic status.87 Chile’s position raises the ques-
tion of whether diplomatic immunity should be a shield from national
courts in all cases.88 Vicuna takes the following view:
The essence of the theory of functional immunity is to exam-

ine whether a given act in relation to which such immunity is
invoked is necessary for conducting an accepted diplomatic or
consular function. As was boldly put by the House of Commons
Foreign Affairs Committee report:
it can hardly need saying that terrorism or other criminal activ-
ities can never be justified by reference to these functions. . . . An
86
Diplomats and their families have customarily enjoyed personal immunity from arrest, crim-
inal law, and civil and administrative jurisdiction. There are exceptions from immunity for
some commercial activities not within the scope of official duties. See Vienna Convention on
Diplomatic Relations art. 31(1), April 18, 1961, 23 UST 3227, 500 UNTS 95. See also United
Nations Centre for Human Rights, Status of the Individual and Contemporary International
Law Promotion, Protection and Restoration of Human Rights at National, Regional and
International Levels (study by Erica-Irene A. Daes 1992).
87
The Chilean government also sought diplomatic immunity proper for Pinochet. In the pro-
ceedings that plea soon became insignificant due to the lack of facts supporting that claim.
Suffice it to say therefore, that the fact that Pinochet traveled on a diplomatic passport and
that British officials had been informed by Chilean authorities of his travel plans and arrival
could by itself not convey onto Pinochet the status of a diplomat. Articles 4 (concerning the
head of the mission) and 10 (concerning other diplomatic staff ) of the Vienna Convention
require notification of that person’s entry as a diplomat. See Charles J. Lewis, State
and Diplomatic Immunity 128–29 (3d ed. 1990). That makes sense because it allows
the receiving state to reject that person before he would attain the far-reaching diplomatic
status.
88
Jürgen Brohmer, Diplomatic Immunity, Head of State Immunity: Misconceptions of a Notorious
Human Rights Violator, 12 Leiden J. Int’l L. 361, 363–66 (1999).

argument can be made that when diplomats act in fact as

terrorists, they are not diplomats at all, and thus must lose the
benefit of those immunities that diplomats are entitled to.
This reasoning can be applied mutatis mutandis to acts of dip-
lomatic or consular agents which might result in the violation
of human rights. By no standard can such acts be considered
as a part of the diplomatic or consular function, and thus nei-
ther can be considered an official act. If one aspect has been
perfectly established in the contemporary law of human rights,
it is that no State can stand above the requirements of protec-
tion of such fundamental rights, as a consequence of which
sovereignty or domestic jurisdiction can no longer be invoked
as a bar against these requirements. Immunities are just an exp-
ression of such sovereignty, and thus could not be a bar against
the protection of human rights either. This is why finally the
latter should prevail in case of conflict with immunities.89
Vicuna’s position may be appealing and could develop in the future.

Currently courts are not prosecuting diplomats or representatives to interna-
tional organizations for involvement in human rights abuse. States continue
to prefer the remedies available in the law of diplomatic immunity—request
that the individual leave the country or that his or her immunity be waived
by the sending state.
In contrast to diplomatic immunity, we have seen some movement
toward lifting immunity of officials, especially once they have left office.
The ICJ ruled in the Arrest Warrant case in 2000 that national courts may
be restricted regarding prosecution of sitting officials. Some ICJ judges
argued the immunity should reach farther, but that would conflict with a
number of national court decisions holding foreign officials accountable
for international crimes once they have left office.
These courts have ruled that former foreign government officials,
who may be immune for carrying out actions within their discretionary
functions, are not immune for violations of law, including international
89
Discussed in Francisco Orrego Vicuna, Diplomatic and Consular Immunities and Human
Rights, 40 Int’l & Comp. L.Q. 34, 47–48 (1991).

law.90 The United Kingdom took this approach in the Pinochet extradition
proceeding.91 The case began in April 1996 in Spain when the Salvadore
Allende Foundation, Izquierda Unida, and thousands of Chilean citizens
initiated a popular action against Pinochet, former dictator of Chile. The
popular action or accion popular “permits private citizens to begin criminal
actions in the public interest, whether or not the complainant is a victim
of the crime.”92 The action was joined with a complaint by Spanish prose-
cutors accusing the Argentine and Chilean militaries of the torture and
deaths of hundreds of Spanish citizens, as well as for genocide, terrorism,
and crimes against humanity. The Spanish National Audience sitting en
banc ruled on October 30, 1998, that Spain had jurisdiction to try these
crimes based on Article 23(4) of the Organic Law of Judicial Power which
gave “Spanish courts criminal jurisdiction in respect of genocide, terrorism
and any other crime that ‘according to international treaties or agreements
must be prosecuted in Spain.’”93
On September 22, 1998, Pinochet arrived in the United Kingdom
for back surgery. Amnesty International informed Spanish prosecutors of
his presence and on October 13 Judge Garzon issued two international
arrest warrants. Scotland Yard arrested Pinochet in his hospital bed on
October 16.94 Pinochet was temporarily detained with respect to extradita-
ble crimes. Two legal issues became the focus of attention: Did the warrants
concern an act that was a crime in both Spain and the United Kingdom?
If not, it failed the double criminality test. Further, did Pinochet enjoy
sovereign immunity as a former head of state?95 After three trials, the
British House of Lords eventually decided that torture was a crime in the
90
Marcos v. Hilao, 25 F.3d 1467.
91
See R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 3)
[1999] 2 WL.R. 827 HL; (No. 2) [1999] 2 W.L.R. 272 HL; (No. 1) [1998] 3 W.L.R. 1456 HL.
92
Bhuta, supra note 11, at 514.
93
Id. Spain codified the crime of genocide in the criminal code. The National Audience found
torture to be a constituent crime of genocide. The author does not explain whether terrorism
is codified in the Spanish code.
94
Id. at 513–14.
95
Id.

UK and Spain. They also decided Pinochet enjoyed no immunity for

torture owing to the adoption by the UK of the Torture Convention:
International crimes and extraterritorial jurisdiction in relation

to them are both new arrivals in the field of public international
law. I do not believe that state immunity ratione materiae can
co-exist with them. The exercise of extraterritorial jurisdic-
tion overrides the principle that one state will not intervene in
the internal affairs of another . . . . An international crime is as
offensive, if not more offensive, to the international community
when committed under colour of office. Once extra-territorial
jurisdiction is established, it makes no sense to exclude from
it acts done in an official capacity.96
In the end, Pinochet was not extradited owing to poor health.97

The Democratic Republic of the Congo (the Congo or the DRC)
filed an application instituting proceedings against Belgium in the ICJ on
October 17, 2000.98 Congo claimed that Belgium had violated both Congo’s
sovereignty and the diplomatic immunity of one of its officials. Congo
cited the United Nations Charter (the UN Charter or Charter), Article
2(1) in support of its sovereignty claim and the Vienna Convention on
Diplomatic Relations, Article 41(2), in support of its diplomatic immunity
claim.99 It requested that the the court find Belgium to have violated the
“absolute inviolability and immunity from criminal process of incumbent
foreign ministers” as set out in customary international law by issuing an
arrest warrant against Minister Ndombasi.100 Congo further requested
that the court hold Belgium’s violation of international law precluded any
state from executing the arrest warrant. It further requested the cancellation
of the arrest warrant, and that Belgium inform all foreign authorities to
96
Id. at 526, quoting R. V. Bow Street Metropolitan Stipendiary Magistrate; Ex Parte Pinochet
Ugarte (No. 3) [1999] 2 WLR 827, 924.
97
Pinochet Goes Free but Sets a Precedent, Christian Sci. Mon., Mar. 3, 2000, at 1.
98
Arrest Warrant, 2002 I.C.J. at 3.
99
Id. at 6.
100
Id. at 8. In its application and at the oral proceedings, the Congo claimed that the violation of
diplomatic immunity also violated the territorial sovereignty of the Congo, but the court
determined in its judgment that the Congo abandoned the sovereignty issue.

whom the warrant was circulated that it renounced and canceled the
warrant.101 A finding of a violation of international law by the ICJ would
satisfy the Congo and serve as reparations for “the consequent moral
injury to the DRC.”102
According to the court, it is firmly established in international law
that certain high-ranking officials of a state, including the minister for
foreign affairs, enjoy immunity from criminal and civil jurisdiction by
other states.103 The court cites three treaties for this proposition: the Vienna
Convention on Diplomatic Relations of 18 April 1961, the Vienna Conven-
tion on Consular Relations of 24 April 1963, and the New York Convention
on Special Missions of 8 December 1969.104 However, the ICJ found that
although these conventions are useful for general guidance in the area of
immunities, none of the three actually define those immunities as held
by ministers for foreign affairs. The court concluded that it must turn to
customary international law to define the immunities enjoyed by high gov-
ernment officials involved in diplomacy.105
Citing that customary international law confers immunities to
ministers for foreign affairs not for a personal benefit, but “to ensure the
effective performance of their functions on behalf of their respective
States,” the court held that such a minister is “entitled to inviolability and
immunity from criminal process being . . . subject to no exception.”106 The
court reasoned that immunity and inviolability protect the minister from
101
Id. at 7.
102
Id.
103
Id. at 21.
104
Id. In particular, the court cites the Preamble and Article 32 of the Vienna Convention on
Diplomatic Relations, the corresponding provisions of the Vienna Convention on Consular
Relations, and Article 21 (2) of the New York Convention. The court also states that applicable
provisions of the Vienna Conventions are part of customary international law. Both Belgium
and the Congo are parties to the Vienna Conventions, but neither are parties to the New York
Convention.
105
Arrest Warrant, 2002 I.C.J. at 21.
106
Id. at 21–22. In so holding, the court made determinations as to the functions of a minister
for foreign affairs, namely that such a minister is “in charge of his or her Government’s diplo-
matic activities and generally acts as its representative in international negotiations and
intergovernmental meetings, Ambassadors and other diplomatic agents carry out their duties
under his or her authority. His or her acts may bind the state represented, and there is a
presumption that a Minister . . . . has full powers to act on behalf of the State. . . . In the per-
formance of these functions, he or she is frequently required to travel internationally, and
thus must be in a position freely to do so whenever the need should arise. He or she must also
be in constant communication with the Government, and with its diplomatic missions
around the world, and be capable at any time of communicating with representatives of other
States.” Id.

interference with his or her official duties by the acts of another state, and
that “no distinction can be drawn between acts performed by a Minister for
Foreign Affairs in an ‘official’ capacity, and those claimed to have been per-
formed in a ‘private’ capacity, or, for that matter, between acts performed
before the person concerned assumed office as Minister for Foreign Affairs
and acts committed during the period of office.”107 Allowing a state to exer-
cise jurisdiction against an incumbent minister for foreign affairs would
allow a state to lawfully prevent such a minister from carrying out his or
her official duties.108
Belgium claimed that the court must find an exception to the invio-
lability and immunity enjoyed by incumbent ministers for foreign affairs
when they are suspected of committing war crimes and/or crimes against
humanity.109 In support of such an exception, Belgium cited instruments
creating international tribunals, national legislation, and national and
international cases.110 The court held that an incumbent minister for for-
eign affairs’ inviolability and immunity from the criminal jurisdiction, as
it exists under customary international law, is not excepted by his being
suspected of war crimes and crimes against humanity.111 The court did,
however, note, that four situations exist in which an incumbent or former
minister for foreign affairs may be subjected to criminal prosecution:
1. A minister for foreign affairs enjoys no immunity in his own state.

Thus, his own state may prosecute him criminally while he is in
office.
2. The state the minister represents may waive his immunity.
3. After the Minister ceases to hold office he no longer enjoys immu-
nity and inviolability in other states.
4. An incumbent or former minister for foreign affairs may be sub-
jected to criminal prosecution before an international tribunal
pursuant to the jurisdictional rules of that tribunal. As examples,
the court cited the International Criminal Tribunal for the former
107
Id. at 22.
108
Id. at 22.
109
Id. at 23.
110
Id. at 23.
111
Id. at 23.

Yugoslavia, the International Criminal Tribunal for Rwanda, and

the International Criminal Court.112
Applying the general principle that no exception exists whereby an

incumbent minister for foreign affairs may be deprived of his rights to
inviolability and immunity to the facts of the case, the court found that
Belgium had violated the inviolability and immunity of Mr. Ndombasi
and ordered the cancellation of the arrest warrant.113 The ICJ held that the
mere issuance of the arrest warrant was a violation of Ndombasi’s rights to
inviolability and immunity under international law, and thus, “constituted
a violation of an obligation of Belgium towards the Congo, in that it
failed to respect the immunity of that Minister and, more particularly,
infringed the immunity from criminal jurisdiction and the inviolability
then enjoyed by him under international law.”114 Although the court ruled
that the moral injury to the Congo was made good by the court’s finding
that Belgium violated international law by issuing the warrant, it noted a
holding of the PCIJ stating, “‘that reparation must, as far as possible, wipe
out all the consequences of the illegal act and reestablish the situation
which would, in all probability, have existed if that act had not been com-
mitted.’”115 Determining that a mere finding that the arrest warrant was
unlawful would not return the situation to what it would be had
the arrest warrant not been issued, the ICJ ordered Belgium to cancel the
warrant by a means of its own choosing and to inform the authorities to
whom the warrant was circulated of the cancellation.116
President Guillaume agreed with the judgment of the court, but
wrote separately to address the issue of universal jurisdiction as applied by
the Belgian court issuing the arrest warrant as mentioned in Congo’s
application.117 According to President Guillaume, states may exercise
112
Id. at 25.
113
Belgium argued that despite the Court’s findings on the inviolability and immunity of incum-
bent ministers for foreign affairs that it had not violated international law because the warrant
was only circulated so as to authorize the arrest of Mr. Ndombasi if he visited Belgium in an
unofficial capacity (i.e., not at the invitation of Belgian officials) and that its international
circulation was only to set the grounds for arrest and extradition by a third state after
Mr. Ndombasi no longer held the position of minister. Id. at 27.
114
Id. at 29.
115
Id. at 32–33, citing Factory v. Chorzow (P.C.I.J., Series A, No. 17, p. 47).
116
2002 I.C.J. at 31–32.
117
Id. at 35, (Separate Opinion of President Guillaume). The court did not address this issue
in the judgment because of the non ultra petita rule. Id. at 18–19. The Belgian law under

criminal jurisdiction in certain circumstances: (1) for crimes committed

on their own territory, (2) “in respect of an offence committed abroad
only if the offender, or at least the victim, is of their nationality, or if the
crime threatens their internal or external security,” (3) in cases of piracy,
and (4) in cases provided for by international conventions they may
exercise subsidiary universal jurisdiction if the offender is on their
territory.118 Thus, at the most, Belgium was entitled to subsidiary universal
jurisdiction through the law under which the arrest warrant was executed,
but to have the right to such jurisdiction, Belgium must have authority
from an international convention to which it is a party, or presumably is
part of customary international law, and the offender must be on Belgian
territory at the time jurisdiction is exercised.
Belgium accused Mr. Ndombasi of violating the 1949 Geneva
Conventions (war crimes) and of committing crimes against humanity
(for which the Belgian judge cited the 1984 Convention against Torture).119
President Guillaume found that although the Geneva Conventions include
provisions calling for each party to “search for persons alleged to have
committed . . . grave breaches [of the Convention], and. . . bring such
persons, regardless of their nationality, before its own courts”, the conven-
tion did not create an obligation for a party to find, arrest, or prosecute
any offenders who were not on the state party’s territory.120 Guillaume
reasoned this precluded Belgium from claiming a right to universal juris-
diction in abstentia under the Geneva Conventions. Furthermore,
Guillaume found that as to the charge of crimes against humanity, no
international convention existed to confer such jurisdiction.121 Thus, as
which the arrest warrant was issued conferred on the Belgian Court universal jurisdiction. Id.
at 35. Article 7 of the Belgian Law stated that “The Belgian courts shall have jurisdiction in
respect of the offenses provided for in the present Law, wheresoever they may have been com-
mitted.” Id. at 9.
In its application, the Congo claimed not only that the arrest warrant violated Mr. Ndombasi’s
inviolability and immunity under international law, but that the Belgian law also violated the
international law principle of state sovereignty through its application of universal jurisdic-
tion. 2002 I.C.J. at 10.
118
Id.
119
Id.
120
Id. at 40, citing First Geneva Convention, Article 49; Second Geneva Convention, Article 50;
Third Geneva Convention, Article 129; Fourth Geneva Convention, Article 146.
121
Id. Guillaume noted that the Rome Convention of July 17,1998 would apply to crimes against
humanity, but that it was not in force at the time of the case. He also noted that the Belgian
judge’s attempt to link the Convention against Torture to allow universal jurisdiction was not
applicable and compared it to an Advisory Opinion of the PCIJ stating that it is impermissible

international law does not confer a right to universal jurisdiction in abs-

tentia, and Belgium had no international convention to rely on for such a
right in this particular case. Belgium, therefore, lacked the jurisdiction to
proceed against Ndombasi.122
Judges Higgins, Kooijmans, and Buergenthal wrote separately to
address the question of universal jurisdiction and to dissent from the
judgment’s remedy ordering the cancellation of the arrest warrant.123 As to
the issue of universal jurisdiction, they found that it was necessary for the
court to decide on the issue of jurisdiction prior to ruling on the question
of immunity because without proper jurisdiction a question of immunity
need not be decided.124 In response to Belgium’s contention regarding the
non ultra petita rule, the judges pointed out that although the court was
not permitted to rule on the issue of universal jurisdiction, it was not
precluded from discussing that issue.125 The court should have “found it
appropriate” to discuss whether the issue and circulation of the interna-
tional warrant pursuant to universal jurisdiction was lawful prior to
making a determination on the question of immunity.126
They concluded that, with the exception of the Belgian law at issue,
no state had applied a true version of universal jurisdiction.127 Moreover,
most of the treaties providing for universal jurisdiction are tempered by
requiring some link to the state.128 As a result, no established practice for
to reason by analogy in criminal proceedings, stating: “There too, proceedings were instituted
by a judge not competent in the eyes of international law.” Id. at 45, citing Consistency of
Certain Danzig Legislative Decrees with the Constitution of the Free City, Advisory Opinion,
1935 P.C.I.J., Series A/B, No. 65, pp. 41 et seq.
122
Id. at 45 (separate opinion of President Guilluame).
123
Id. at 63 (separate opinion of Judges Higgins, Kooijmans and Buergenthal).
124
Id. at 64. This opinion states that “‘[i]mmunity and jurisdiction’ are inextricably linked.”
Id.
125
Arrest Warrant, 2002 I.C.J. at 64. While the Court acknowledged this in Paragraph 43 of the
Judgment, it failed to address universal jurisdiction in its reasoning. 2002 I.C.J at 67.
126
Id. at 67–68.
127
Id. at 69. Instead, most states provide for a more limited universal jurisdiction, or subsidiary
jurisdiction, that requires some tie or link to the state exercising jurisdiction.
128
Id. at 74–75 (separate opinion of Judges Higgins, Kooijmans, and Buergenthal).These treaties
are often tempered by requiring links between the state exercising jurisdiction and the
“nationality of the offender, or the ship or aircraft concerned, or of the victim.” The opinion
designates these as “treaty-based broad extraterritorial jurisdiciton.” Id. The treaties also
provide for jurisdiction when the offender is found on the territory of the state exercising
jurisdiction. Id.

universal jurisdiction existed because national legislatures tend to require

some links prior to invoking jurisdiction and no case law exists which
condones the exercise of pure universal jurisdiction.129 At the same time,
however, no clear indications exist that the exercise of universal jurisdiction
is per se unlawful.130 They cited Lassa Oppenheim for the proposition:
While no general rule of positive international law can as yet

be asserted which gives to states the right to punish foreign
nationals for crimes against humanity in the same way as they
are, for instance, entitled to punish acts of piracy, there are
clear indications pointing to the gradual evolution of a
significant principle of international law to that effect.131
Turning to the question of whether the offender must be within the

territory of the acting state for universal jurisdiction to be properly applied,
these judges found that no such rule exists.132 Instead, the only prohibitive
rule requires “that criminal jurisdiction should not be exercised without
permission, within the territory of another State.”133 The Belgian arrest
warrant was issued with the intent of arresting Ndombasi either in Belgium
or in one of the states to which the warrant was circulated. However, there
was no intention by the Belgium court to enter the Congo to exercise
criminal jurisdiction.134
Still the judges cautioned that if a state exercises universal criminal
jurisdiction in abstentia it must activate certain procedural safeguards to
prevent abuse and maintain stability between states.135 First, a state may
not exercise such jurisdiction in a way that fails to respect the inviolability
or immunity of the person concerned.136 Second, a state must “first offer to
the national State of the prospective accused person the opportunity itself
to act upon the charges concerned” before commencing criminal charges
129
Id. at 76.
130
Id.
131
Id. at 79.
132
Id.
133
Id.
134
Id.
135
Id.
136
Id. at 80. The opinion notes here that “commencing an investigation on the basis of which an
arrest warrant may later be issued does not of itself violate those principles.” Id.

of its own.137 Third, the charges may only be brought by a prosecutor

or judge d’instruction who acts independently of the state.138 Finally,
it is necessary that “universal criminal jurisdiction be exercised only
over those crimes regarded as the most heinous by the international
community,”139 including war crimes and crimes against humanity.140
Applying this reasoning to the case, they concluded that Belgium did
properly exercise universal jurisdiction against Ndombasi as the acts
alleged “do fall within the concept of ‘crimes against humanity’ and would
be within that small category in respect of which an exercise of universal
jurisdiction is not precluded under international law.”141 Nor did they find
the status of a minister for foreign affairs on par with the status afforded a
head of state.142
Judge Al-Khasawneh dissented from the judgment on two
grounds: (1) A foreign minister is not entitled to absolute immunity, but
to functional immunity that exists when he is on an official mission and
(2) that certain exceptions exist to the immunity of high-ranking officials
who are accused of grave crimes.143 As to the first ground, Judge Al-
Khasawneh argued that the court erred in linking the importance and
function of a foreign minister to that of a head of state in order to find
such ministers entitled to absolute immunity under international law.144
Quoting Sir Arthur Watts, “heads of governments and foreign ministers,
although senior and important figures, do not symbolize or personify
their States in the way that Heads of States do. Accordingly, they do not
enjoy in international law any entitlement to special treatment by virtue
of qualities of sovereignty or majesty attaching to them personally.”145
137
Id. at 80.
138
Id. The opinion notes here that interstate stability will only be maintained if some special
circumstances exist warranting the exercise of universal jurisdiction. As an example, the
opinion cites when “persons related to the victims of the case” request the prosecutor or judge
to institute the criminal proceedings. Id.
139
Id. The opinion notes that piracy is the classic example meeting this last requirement because
the international community regarded it “as damaging to the interests of all.” Id. at 81.
140
Id. at 80–81.
141
Id. at 83. The acts alleged were “charges of incitement to racial hatred, which are said to have
led to murders and lynchings.” Id.
142
Id.
143
Id. at 95, 98–99. (dissenting Opinion of Judge Al-Khasawneh).
144
Id. at 96.
145
Id. citing A. Watts, The Legal Position in International Law of Heads of States, Heads of
Governments and Foreign Ministers, Recueil des Cours, 9, 102–03 (1994 III).

Arguing that immunity is an exception from “the general rule that man is
responsible legally and morally for his own actions,” Al-Khasawneh argues
that immunity must be narrowly defined.146 A minister for foreign affairs
is entitled to immunity when he is on an official mission, but is not
entitled to immunity against the general opening of criminal proceedings
against him.147 Because the Belgian arrest warrant contained an express
provision stating that it may not be enforced if Ndombasi was visiting
Belgium in his official capacity, the arrest warrant served as no more than
an opening of criminal proceedings and was lawful.148 Furthermore,
although the arrest warrant was circulated internationally, it was not
circulated with a Red Notice actually requiring third states to enforce the
warrant.149
Judge Al-Khasawneh also argued that an exception to immunity
should be provided if the person subject to the warrant or criminal proceed-
ings is charged with violating international law norms found in interna-
tional humanitarian law that have assumed the character of jus cogens. Such
violations should be included as a fifth exception to immunity as enunci-
ated by the court in its judgment.150 Thus, because Mr. Ndombasi was
accused of crimes of war and crimes against humanity, which are at the
level of jus cogens, any immunity he was entitled to is excepted under
international law.
Much was written following the Arrest Warrant case, but the only
clear rule that can be derived from it regarding national court enforce-
ment of international law is that a public official at least of the rank of
foreign minister may not be arrested by a foreign state while in office even
for serious violations of international law. A hybrid court in Sierre Leone
found, subsequent to the arrest warrant case, that it could try Liberia’s
146
Id.
147
Id.
148
Id.
149
Id. Al-Khasawneh notes that the Red Notice was not issued until after Mr. Ndombasi stepped
down as minister. Furthermore, he states that without the Red Notice any third state acting
on the warrant would have acted at its own risk.
150
Id. at 97–98. In the judgment, the court held that immunity would be excepted when it was
waive by the home state, when the home state was the one instituting criminal proceedings,
after the minister leaves office, and when the prosecution is before an international court.

head of state, Charles Taylor, because the hybrid court was of the nature of
an international court.151
As the ICJ acknowledges in the Arrest Warrant case, the immunity
granted to high public officials is intertwined with another category of
immunity—that owed to the state itself. When the entity of the state was
inseparable from the person of the monarch, sovereign immunity referred
to both persons and entities. Today, it is only the entity that receives what
we call sovereign immunity. In the United Kingdom, the State Immunity
Act 1978 modifies the traditional absolute immunity normally afforded by
the common law in claims for damages against foreign states.152 In the
Pinochet case, discussed above, a majority of the Law Lords found that
international crimes such as torture could not be official acts of a head of
state. Nor could a crime which is an international crime against humanity
and jus cogens validly be committed in an official capacity on behalf of the
state resulting in sovereign immunity. The Greek courts, too, have limited
sovereign immunity for violations of international law but on a different
basis. In Prefecture of Voitia v. Federal Republic of Germany,153 the prefec-
ture brought a case against Germany for violations of international law
that allegedly occurred during the Second World War. Greece’s highest
court found that Article 11 of the European Convention on State
Immunity154 had entered customary international law and that Article 11
limits sovereign immunity for any torts—regardless of whether they are
jure gestionis or jure imperii.155 Thus actions in violation of international
law were torts for which a state enjoyed no immunity.156
151
Prosecutor v. Taylor, Case No. SCSL-2003-01-I, Decision on Immunity from Jurisdiction,
(May 31, 2004.)
152
The Schooner Exchange v. McFaddon, 11 U.S. 116 (1812).
153
Case No. 11/2000. Aerios Pagos (Hellenic Supreme Court), May 4, 2000. See also Bernard H.
Oxman, Maria Gavouneli & Ilias Bantekas, Sovereign Immunity-Tort Exception-Jus Cogens
Violations-World War II Reparations-International Humanitarian Law, 95 AJIL 198 (2001).
154
European Convention on State Immunity, May 16, 1972, ETS No. 74, 11 ILM 470 (1972)
[hereinafter European Convention]. The text of, and other information about, the convention
is available online through the Council of Europe Web site, <http://www.coe.int/>.
155
Prefecture of Voitia, at 4.
156
But see Andreas Zimmerman, Sovereign Immunity and Violations of International Jus Cogens –
Some Critical Remarks, 16 Mich. J. Int’l L. 433 (1995); responding to Mathias Reimann,
A Human Rights Exception to Sovereign Immunity: Some Thoughts on Princz v. Federal Republic
of Germany, 16 Mich. J. Int’l L. 403 (1995).

The United States position is rather more ad hoc. The US has

amended its Foreign Sovereign Immunity Act (FSIA). to limit immunity
for torts and commercial transactions. The first version of the act also lifted
immunity for at least one violation of international law—expropriation
of property. In subsequent amendments, immunity has been lifted for
terrorism.157 Otherwise, the Supreme Court held, in Argentine Republic v.
Amerada Hess, that states enjoy immunity in US courts even for violations of
international law unless the US Congress explicitly modified the FSIA.158
While this ruling limits the scope of international law open to enforcement
against states in US courts, in Altmann v. Austria,159 the Supreme Court
applied the new restrictions on immunity retroactively. Altmann opens the
possibility for US courts to enforce more international law, but, as interna-
tional law does not support retroactive application of law, enforcement in
such cases will rest on a questionable basis.160 Greek courts lifted German
immunity retroactively but only in a case involving jus cogens norms—not
the issue in Altmann v. Austria.161
In the first successful case under the FSIA anti-terrorism provi-
sions, a family sued Iran following the death of a daughter, as discussed in
Chapter 8, the twenty-year-old was killed when the bus she was riding in
157
See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 221, 110
Stat. 1214, 1241 (codified at 28 U.S.C. §§ 1605(a), 1610(a).
158
The Foreign Sovereign Immunity Act of 1976, 28 U.S.C. §§ 1330, 1332(a)(2)-((4), 1391(f),
1441(d), 1602–1611-1336; see also Amerada Hess, 488 U.S. 428 (1989).
159
The United States Supreme Court radically limited the reach of sovereign immunity by
making the restrictions of the FSIA applicable retroactively. Austria v. Altmann, 541 U.S. 677.
160
International law includes a general principle of law against the retroactive application of new
law to past acts. Giving retroactive effect to law is “contrary to the general principles of inter-
national law.” Multiplex v. Croatia, App. No. 58112/00, Eur. Ct. H.R. (2002), available at
http://www.echr.coe.int/echr. Canada—Term of Patent Protection (2000) WT/DS170/
(Report of the Panel) para. 3.10. The Vienna Convention on the Law of Treaties restates this
general principle with respect to treaties in Article 28:
Non-retroactivity of treaties Unless a different intention appears from the treaty or
is otherwise established, its provisions do not bind a party in relation to any act or
fact which took place or any situation which ceased to exist before the date of the
entry into force of the treaty with respect to that party.
Similarly to the Greek decision in Prefecture of Voitia, an Italian court ruled that an exception
to sovereign immunity could be applied retroactively in the case of a violation of a jus cogens
norm. Ferrini v. Federal Republic of Germany (Cass., s. un. n.5.044) reprinted in 87 Rivista
a di diritto internazionale 539 (2004); Prefecture of Voitia.
161
Prefecture of Voitia, at 4.

was blown up in Gaza, in the Palestinian Territories. A faction of the

Palestine Islamic Jihad claimed responsibility. The Flatows sued Iran as a
sponsor of the Palestine Islamic Jihad in US courts. Iran denied the charges
but did not appear to defend against them. The Flatows were awarded $247
million. They have pursued enforcement of the award by attaching Iranian
funds in the US and US funds owed to Iran in a decision of the Iran-US
Claims Tribunal.162 These were found to be immune from attachment.163
Finally, the US Congress provided some funds that it required the US gov-
ernment to seek in turn from Iran.164
International organizations usually enjoy immunity from the
national courts of the states where their headquarters exist or where they
have activities.165 In recent years, scholars have called for restrictions on
international organization immunity so that they would also be answerable
in court for law violations.166
Judicial enforcement must be fundamentally fair for international
law to condone its use. Although this principle is well known, its details
are not. No classic general authority spells out the requirements of fair-
ness. Looking to a variety of sources instead, this section provides some
arguments as to what is required for the use of judicial measures to be fair.
Basically, judicial enforcement measures can be imposed if the judicial
process relating to them has the following characteristics:167
The charge or claim at issue is based on law.

The defendant received notice of the proceeding.
The judge or decision-maker is impartial.
All parties have the right to be heard.
162
U.S. Readies $6 Million Judgment Payment to Iran but Family Claims Money for Terrorist
Killing of Daughter, Kan. City Star, Dec. 4, 1999, at A11.
163
Flatow v. Islamic Republic of Iran, 196 F.R.D. 203 (D.D.C. 2000).
164
Miller, supra note 28.
165
See August Reinisch, International Organizations Before National Courts (2000).
166
But see Charles H. Brower, II, International Immunities: Some Dissident Views on the Role of
Municipal Courts, 41 Va. J. Int’l L. 1 (2000).
167
See Trial of Joseph Alstotter & Ors, United Nations War Crimes Commission, Law Reports
of Trials of War Criminals 103 (1948). The trial established the following minimum
standards for a fair criminal trial: (1) to have timely notice of the charge; (2) to have defense
counsel; (3) to have an independent judge, and (4) to have a full hearing and knowledge of
evidence for and against the accused. Essays on ICTY Procedure and Evidence in
Honour of Gabrielle Kirk McDonald, (Richard May et al. eds., 2001); John E.
Ackerman & Eugene O’Sullivan, Practice and Procedure of the International
Criminal Tribunal for the Former Yugoslavia (2000).

The decision is based on adequate evidence.

The charge or claim is not already subject to a final decision
(res judicata).
If courts respect these principles, they will decline jurisdiction or other-

wise find a case inadmissible.
Courts may decline to exercise jurisdiction on other grounds. In the
US, courts invoke prudential doctrines, declining to decide by invoking
such rationales as the political question doctrine, the Act of State Doctrine,
forum non conveniens, comity, and barriers to the recognition of judg-
ments.168 These doctrines are often criticized as resulting in miscarriages of
justice. To overcome them to some extent, states have adopted treaties clari-
fying national court jurisdiction. Several treaties direct states to try or extra-
dite persons accused of violating international law.169 A few international
court decisions also imply obligations to investigate and prosecute. In the
Velasquez Rodriguez Case,170 the Inter-American Court of Human Rights
spoke of an obligation by states to investigate and punish individuals for
violation of the American Convention on Human Rights. The UN Human
Rights Committee, which oversees implementation of the International
Civil and Political Rights Covenant, has also referred to an implied obliga-
tion to prosecute violators.171 Further, plaintiffs in civil cases have asserted
rights of access to courts to enforce rights under international law.172
Other treaties commit national courts to enforce foreign and
international judgments and arbitral awards. These treaties began to
appear in the 1920s and 1930s. The most important of them, the New York
Convention on the Recognition and Enforcement of Foreign Arbitral
168
These rationales are explained with respect to US courts in Gary B. Born & Peter B.
Rutledge, International Civil Litigation in United States Courts (4th ed. 2007).
169
See generally M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The
Duty to Extradite or Prosecute in International Law (1995).
170
Inter-Am. Ct. Hum. Rts. (Ser. C), No. 4 (1988) (judgment), para 174. See also Naomi Roht-
Arriaza, Sources in International Treaties of an Obligation to Investigate, Prosecute, and Provide
Redress, in Impunity and Human Rights in International Law and Practice 24
(Naomi Roht-Arriaza ed., 1995).
171
Roht-Arriaza, supra note 170, at 29–30.
172
See, e.g., Harbury v. Deutch, 233 F.3d 596 (D.C. Cir. 2000); International Covenant on Civil
and Political Rights, art. 14(1), Dec. 19, 1966, 999 UNTS 171. (“All persons shall be equal
before the courts and tribunals. In the determination of any criminal charge against him, or
of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal. . . .”)

Awards (the New York Convention), was adopted in 1958.173 Other more
subtle changes have increased the willingness of courts to recognize causes
of action and to eliminate barriers to claims under international law since
World War II. These changes began occurring owing to the impact of
globalization sparked in many respects by technological and cultural
changes begun during the war.174 The interaction of people on a global stage
as a result of advances in communication and transportation means that the
demand for international law solutions is increasing exponentially. National
courts will continue to play a central role in enforcing global norms.
Indeed, the clear trend in international law is toward an ever larger
role for national courts in enforcing international law. National courts have
the capacity to be effective and principled enforcers of international law.
With their control over people and assets they can induce compliance with
international law in ways not always open to international courts or even
states and international organizations. International law places few restric-
tions on national court enforcement and much law is enforced in such courts.
Executive enforcement on foreign territories and immunity doctrines are
the primary obstacles in international law. National courts themselves raise
these barriers, few of which are actually required by international law. As
national courts play a larger role, however, conflicts may well increase as
to the meaning of rules, including rules on the proper scope of national
court enforcement.175 To preserve international law as a unitary and uni-
versal system, it is important for national courts to respect what the posi-
tive law says about the sources of international law and the structure of
legal process for application and enforcement. Clearly international law
will be well served if national courts respect the authority of international
courts on questions of international law.
To be appropriate enforcers for international law, as legal process
teaches, courts should decide in fidelity to the purposes of the community.
The international community expresses its consensus regarding its pur-
poses through international law. This means that national courts need to
173
New York Convention, on the Recognition and Enforcement of Foreign Arbitral Awards,
June 10, 1958, 21 UST 2517, 330 UNTS 38.
174
See Philip C. Jessup, Transnational Law (1956).
175
On whether or not international law is “fragmenting” see Fragmentation of International
Law: Difficulties Arising from the Diversification and Expansion of International Law, Report
of the Study Group of the International Law Commission 6, UN Doc. A/CN.4/L.702 (July 18
2006); see also, Joost Pauwelyn, Conflict of Norms in Public International Law
(2005).

decide international legal issues in deference to the international commu-

nity’s understanding of its law. Courts should look not only to the sources
of international law but to the international community’s courts and
tribunals, in particular, the ICJ, as the principal judicial organ of the
United Nations. The international community established the ICJ to be
oriented to the international community’s law with its fifteen judges from
fifteen different countries and its mandate to apply international law.
National courts support the international rule of law when they aid in the
enforcement of ICJ decisions and defer to its findings as to the meaning of
the law. In Sanchez-Llamas v. Oregon,176 a majority of the United States
Supreme Court refused to order Oregon’s courts to adopt the interpreta-
tion of the ICJ as to the requirements of the Vienna Convention on
Consular Relations.
That decision contrasts with the approach of the German Federal
Constitutional Court, which did adopt the ICJ’s interpretation. Judge
Bruno Simma and Carsten Hoppe write of the German decision:
On September 19, 2006, a Chamber of the Bundesverfassungs-

gerichthof (Federal Constitutional Court) in Karlsruhe
decided unanimously that a violation of the individual right
enshrined in Articles 36 [of the Vienna Convention on
Consular Relations] in criminal proceedings amounted to a
violation of the constitutional right to a fair trial, and remanded
the underlying cases back to the competent criminal courts,
obligating them to ‘take account of ’ the decisions of the ICJ in
LaGrand and Avena in interpreting and applying Article 36.
Article 36 was confirmed as being directly applicable in
German domestic law. Further, decisions of the ICJ were said
to be persuasive even in cases in which Germany was not a
party; they have a ‘normative guiding function’ and share the
binding quality of international law in the German system.177
176
548 U.S. 331 (2006).
177
Bruno Simma & Carsten Hoppe, The LaGrand Case: A Story of Many Miscommunications, in
International Law Stories 371, 402–03 (John Noyes et al. eds., 2007) citing Bundesverfas
sungsgerichthof [BVerfG][Federal Constitutional Court] Sept. 19, 2006, 2 BvR 2115/01; see
also Carsten Hoppe, Implementation of LaGrand and Avena in Germany and the United States:
Exploring a Transatlantic Divide in Search of a Uniform Interpretation of Consular Rights, 18
EJIL 317 (2007).

German courts take international law seriously in part as a legacy of

the Second World War and the continuing influence of the Nuremberg
precedent. Their decision applying the ICJ’s interpretation of the Vienna
Convention on Consular Relations is a model for national courts, a model
that helps to ensure a coherent and effective international law in aid of
the hopes and aspirations of the whole world.

Conclusions
T his book has presented both a history of ideas about the role of
sanctions in international law and an overview of the actual use of
sanctions in the enforcement of international law. Sanctions are the signal
of a legal rule and distinguish legal rules from moral, social, and other
kinds of rules. Every international legal rule has a potential sanction. It is
the simple existence of the potential sanction that is central to the
pedigree of the rule—not that rule violations are always and effectively
sanctioned. In no legal system are all rule violations always sanctioned.
Domestic systems are not held to such a standard. International law need
not be either. So long as sanctions exist and support widespread law com-
pliance, international law is a legal system worthy of the name. International
law’s sanctions are in the form of armed measures, countermeasures, and
judicial measures. These are used regularly and support compliance by
bringing an end to and remedying non-compliance and by demonstrating
the international community’s seriousness about its rules. These are rules
that are subject to coercive sanction for non-compliance. The existence of
sanctions and their use support the conclusion reached by Louis Henkin
in 1968 (and still true today) that “almost all nations observe almost all
principles of international law and almost all of their obligations almost all
of the time.”1
The scholars who have over the decades insisted that international
law lacks sanctions altogether or that it lacks adequate sanctions to truly
command the respect of sovereign states have typically fallen into one of
two categories: They have been focused on national legal systems or have
1
Louis Henkin, How Nations Behave 47 (2d ed. 1979)(emphasis in the original).

Conclusions
been interested in freeing national leaders from believing that they are
bound by international law. By contrast, the scholars who think about the
world community and its law and achieving the purposes of that commu-
nity have tended to recognize that international law has sanctions. They
have also tended to see those sanctions as playing only a contributing, not
an essential, role. More important than the sanction is the fact that inter-
national law has the acceptance of the international community, which is
evidenced in part by the agreement to sanction law violations. Acceptance
has also meant acceptance of rules binding equally on states, large and
small. It has meant restrictions on the use of force and obligations to use
legal mechanisms for the resolution of disputes. With the growth of these
mechanisms, the teaching of international legal process will become
increasingly important to ensure that decisions are consistent with the
purposes of the international community, especially the higher purposes
understood through the application of natural law theory to the positive
law rules.
International law needs improvement. The new work being done in
the areas of natural law and process law theory—and even in rational
choice analysis—can improve the system. International law needs improve-
ment, however, not demolition, because it remains the single, generally
accepted means to solve the world’s problems.2 These problems will not be
solved by armed conflict or the imposition of a single ideology or religion.
Through international law diverse cultures can reach consensus about the
moral norms that we should commonly live by. People everywhere believe
in law, believe in this alternative to force, as they believe in higher things.
They want the power of law to be used to achieve the community’s most
important common goals. International law reflects that the international
community’s shared goals today are peace, respect for human rights, pros-
perity, and the protection of the natural environment. Understanding
what international law really is and what it is about and promoting accept-
ance of it should enhance its authority and, thereby, its power to achieve
these goals on behalf of us all.
2
C.G. Weeramantry, Universalising International Law 1–3 (2004).

Index
A Alvarez, José, 289

Abu Ghraib scandal, 147 American Convention on Human
Addington, David, 103n19 Rights, 364
Administrative tribunals, 291 American Journal of International Law, 13
Adorno, Theodor, 79n98 American Society of International Law
Afghanistan (ASIL), 13, 70, 158
sanctions against, 212, 232, 277 Amnesties, 35, 37, 196
Soviet invasion of, 245 Anglo-Iranian Oil Co. case (1951), 202,
U.S. and allies invasion of, 147, 182, 309–310
184–185, 188, 190, 191, 210 An-Na’im, Abdullahi, 105, 141, 142
Africa. See also specific countries Annan, Kofi, 146
division by Europeans, 38 Antiterrorism and Effective Death Penalty
African Union (AU), 154, 221 Act of 1996, 316
Agenda for Peace (Boutros-Ghali), 224 Apartheid, 9, 54
Air France, 237–239 Aquinas, Thomas, 20, 22–23, 28, 30, 49, 52,
Air Services Agreement case (1978), 142n165
236–238, 242, 250–253, 256, 263 Arab-Israeli War 1967, 175, 175n88, 176
Aix-la-Chapelle, Treaty of, 34 Arbitration. See also specific decisions
Ajibola, Judge, 313 Congress of Vienna and, 37–38
al Qaeda, 101, 182, 185, 186, 190 Germany and, 158
Alabama Claims, resolution of, 156 Grotius on, 12–13, 30
Albania, 231, 252, 298n17. See also Ethnic Inter-American Convention on
Albanians International Commercial
Alexandrov, Stanimir, 170 Arbitration, 321
Algeria, 231, 314 international court enforcement
Algiers Accords (1981), 314–315, 322 and, 320–325
Alien Tort Statute of 1789 (ATS, U.S.), 341 national court enforcement and,
Alland, Denis, 243, 248 306, 347
Allott, Philip, 90, 135 PCA and, 157–158
Altmann v. Austria (2004), 362 Spanish Scholastics on, 25
Alva, Duke of, 35 UNCITRAL Rules and, 317

Index
U.S. and, 235 Avco Corp. v. Iran Aircraft Indus. (1988),

Vattel on, 34 315–316
Arend, Anthony Clark, 225 Avena case (2004), 299, 304, 325, 366
Argentina, 298 Avoidance of war
Argentine Republic v. Amerada Hess Ayala, Balthazar, 25
Shipping Corp. (1989), 362
Aristotle, 20, 21 B
Armed measures, 153–227. See also Banana Dispute, 233, 241–242, 252,
Collective armed measures; 253, 299
Unilateral armed measures Banco Nacional de Cuba v. Sabbatino
Armed reprisals. See Reprisals (1964), 342
Arrangio-Ruiz, Gaetano, 257–259, 263 Barcelona Traction case (1970), 80,
Arrest Warrant case (2000), 328, 143, 243–244, 344
350–352, 361 Barkun, Michael, 69
Arrest Warrant case (2002), 352–361 Bartolus, 23
Articles of State Responsibility (UN, ILC) Bassiouini, Cherif, 328
Countermeasures see Chapter 6 passim Bederman, David, 241, 270
prior dispute resolution and, 258–264 Behavioral scientists and international law,
prior notice under, 250–252 68–69, 78
prior wrong under, 242–250 Belgium, 204–205, 328, 348n83, 352–361
proper purpose under, 257–258 Belief in law, 132, 133, 136
proportionality and prohibitions Belli, Pierino, 24
under, 252–257 Benedict XVI, 110, 136. See also
creation of, 235–237, 242 Ratzinger, Josef
role of, 232–233 Berlin Congress of 1878, 38
state crimes and, 96 Berlin Congress of 1885, 38
Ashburton, Lord, 173–174 Berlin disco bombing, 183
ASIL. See American Society of Bernadotte, Folke, 272, 291
International Law Bernhardt, Rudolph, 288
ATS (Alien Tort Statute of 1789, U.S.), 341 Bilateral treaties. See Treaties
AU. See African Union bin Laden, Osama, 184, 277n44
Augustine, 19–22, 49, 52 Blair, Tony, 194, 195n5
Austin, John Blokker, Niels, 274, 286, 290–291, 292
compliance theorists and, 98 Boer War, 117–118, 119
Fisher on, 81 Bolton, John, 4, 100n5, 128, 227
Hart on, 7–8, 72, 73, 74 Boniface I, 21
Heidelberg University colloquium Bosnia, 208, 221–222, 319, 339–340
and, 83 Bosnia v. Serbia (1993), 213–214, 309
Henkin on, 75 Boundary law, 114
Kelsen on, 47 Boutros-Ghali, Boutros, 209, 210
New Haven School and, 69 Bowett, Derek W., 272–273
Oppenheim on, 43, 44 Breyer, Stephen, 348
positive morality and, 4, 40–41 Briand, Aristide, 160
on sanctions, 42 Brierly’s International Law, 74
Australia, 188–189, 195, 265 Brownlie, Ian, 160, 162, 169, 179, 224, 300
Austria, 37, 38, 196, 362 Brussels Convention, 321
Austria-Hungary, 196–197 Buergenthal, Judge, 357–358
Autonomous sovereign states, 90 Bulgaria, 231, 300–301

Index
Burma, Massachusetts law prohibiting Christianity, 22, 27

transactions with, 261 Chromalloy Aeroservices, In re (1996), 324
Burundi, 245 Churchill, Winston, 218
Bush, George W. Cicero, 20, 21
global war on terrorism and, 101–103, CIS (Commonwealth of Independent
122n133 States), 220
Goldsmith & Posner and, 106n30 CISG (United Nations Convention on
neoconservatives and, 99n1, 100 Contracts for the International Sale
on PSI, 266n3 of Goods), 341
Torture Memos and. See Torture Memos CITES. See Convention on the
UN speech of, 146, 193–194 International Trade in Endangered
West Point 2002 speech on Species
preemption, 178 Civil War (U.S.), 116, 117, 117n72, 119
Bush Doctrine, 146, 178 Clark, Grenville, 81
Buvot v. Barbuit (1737), 333 Classical enforcement theory
Bynkershoek, Cornelius van, 27, 32 just war for peace and, 21–26
law over nations and, 26–33
C law over sovereigns and, 48–55
“Cabinet wars,” 38 sovereigns over law and, 33–48
Cambodia, 180, 207n61 Clinton, William Jefferson, 99n1, 261, 279
Camp David Accords (1978), 293 Coercive sanctions. See Sanctions
Canada, 229, 232 Cognitive psychology, 109, 110
Cançado Trindade, Antonio A., 143 Collective armed measures, 193–228
Cape Breton, 34 prelude to charter and, 195–199
Caroline, scuttling of, 173–174 UN Charter and, 199–228
Caron, David, 317 Collective countermeasures, 155, 265–294
Carter, Jimmy, 209 collective enforcers, 268–270
Carty, Anthony, 68, 91, 93 external enforcement, 291–294
Certain Expenses case (1962), 273–274, internal enforcement, 270–291
286, 287, 289 law and practice of, 270–294
Chad, 331 Committee of Ministers of the Council of
El Chamizal arbitration (1911), 252, 320 Europe, 313
Charlemagne, 22 Committee of U.S. Citizens Living in
Chayes, Abram & Antonia, 71, 71n62, 86, Nicaragua v. Reagan (1988), 321,
87, 111n54, 112, 219, 243 327–328
“Cheap talk,” 125–126, 125–126n114 Common good, concept of, 137, 140
Chemical Weapons Convention (CWC), Common will of states, 41–42
280–282 Commonwealth of Independent States
Chemical Weapons Organization, 268 (CIS), 219
Cheney, Richard, 99n1 Communication technology advances,
Chicago Convention, 285 effect of
Chicago Council on Foreign Relations, 111 Compliance theory, 57–98
Chile, 298, 349–350 Austin, John, 91, 98
China Franck on, 85–86
CITES and, 279–280 Goldsmith & Posner on, 107, 112–113
United Nations and, 198 Henkin on, 132
Choice of law, 336 international law without sovereigns
Chorzów Factory case (1927), 306 and, 91–98

Index
law compliance and, 68–91 Morgenthau on, 64

no law without sanctions and, 62–68 role of, 12–14, 137–139
United States and, 85–86 sanctions and, 62, 88
voluntary compliance, 11–12, 126 World War I and, 158–159
Compulsory system of dispute Covenant of the League of Nations, 46, 49,
resolution, 7 65, 159–161, 165, 197
Computer attacks, 163, 163n45 Crawford, James, 236–237, 247–249
The Concept of Law (Hart), 7, 72, 74 Creighton v. Qatar (1999), 322–323
Conference for Security and Cooperation Crimean War (1856), 38
in Europe (CSCE), 220. See also Crimes of state, 294
Organization for Security and Criminal courts, 13, 88. See also
Cooperation in Europe (OSCE) International Criminal Court (ICC)
Conforti, Benedetto, 331–332 Criminal tribunals, 96. See also specific
Congo, 172n74, 210, 352–361 tribunals
Congo case (2005), 177, 182 Critical legal theorists, 61–62, 91–92
Congo Crisis (1960), 204–205 Criticism of international law, 14–15
Congress of Vienna, 37–38 Croatia, 207, 208, 319
Consent, 9–10, 43, 90, 126–127, 134–135, Cuba
136, 249 armed force use in, 167
Constitution for international society, Guantánamo Bay detention in, 102, 147,
135–136 328, 339
Constructivist international relations Kurdish separatists in Iraq and, 207
theorists, 110 Missile Crisis, 219
Contract law, 104, 121 OAS and, 284
Convention on the International Trade in U.S. sanctions against, 231n10, 255,
Endangered Species (CITES), 262, 260–261
267, 269, 274, 279–280, 336–337 Cuban Liberty and Democratic Solidarity
Convention on the Settlement of (LIBERTAD) Act of 1996, 260–261
Investment Disputes between States Culture, loss of, 94
and Nationals of Other States, 321 Customary international law
Corfu Channel case (1949), 252, 298n17 collective armed measures, 215, 216
Corporate nationality, 143 collective countermeasures and, 267
Council of Europe, 184 common will of states and, 41
Council of the League of Nations, 49–50, Goldsmith & Posner on, 108, 115–121
51, 166, 296 ICJ Statute, art. 38, 176n91
Countermeasures. See Collective national court enforcement and, 335,
countermeasures; Unilateral 341, 346, 348, 352–356, 361
countermeasures negative consent to, 134n140
Courts. See also International court positive law and, 39
enforcement; National court self-defense and, 173, 186
enforcement; specific courts as source of law, 9, 12, 79n96, 138
development of new, 61 UN Charter and, 173
Fisher on, 82 unilateral countermeasures, 229
general principles of international law United States and, 116–121, 118n78,
and, 143 340, 341
hierarchy of, 144 CWC (Chemical Weapons Convention),
Kelsen on, 49, 50, 51 280–282
legal process theory and, 137–139 Czechoslovakia, 167, 240–241, 285

Index
D Economic coercion, 163

D’Amato, Anthony, 83n121 Economic Community of West African
Damrosch, Lori, 250 States (ECOWAS), 221, 245
Dar-es-Salaam, embassy bombing, 184 Economic sanctions, 97, 97n159, 230
Dawson; Rex v. (1742), 332–333 Egypt
De Hough, André, 246, 251 Arab-Israeli War 1967, 175–176, 175n88
Death penalty, 143, 299, 307–308. See also Suez Crisis and. See Suez Crisis
Avena case (2004); LaGrand case WHO and, 293, 294
(2001) Ehrlich, Thomas, 71n62
Declaration of Paris of 1856, 116, 119 Eisenhower, Dwight, 173
Declaration on Friendly Relations, 235 El Salvador, 171n74, 176
Deep Seabed Chamber of United Nations Ellickson, Robert, 107–108
Convention on the Law of the Sea, Employee grievances, 291
297, 305–306, 319 Endangered Species Act of 1973 (U.S.),
Defense ministries, 52n175, 163n40 336, 337
Delbrück, Jost, 213 Tiger and rhinoceros trading, 279–280
Democracy, 127–128 Enemy combatants, 102, 328
Democratic Republic of the Congo. See Enforcement practice, 129, 144, 151–367
Congo collective armed measures, 193–228
Denmark, 58n5, 336, 337–338, 339 collective countermeasures, 265–294
Detainees, U.S., 102, 102n15, 102n19, 147, international court enforcement,
328, 339. See also Torture Memos 295–325
Diamond trade, 212 national court enforcement, 327–367
Dictators, 47, 193 principles underlying, 30
Diplomatic immunity, 119, 119n82, unilateral armed measures, 153–191
348–350, 352 unilateral countermeasures, 229–264
Director of Public Prosecutions v. T (1994), Enforcement theory, 16, 17–149, 230
337–338 classical enforcement theory, 19–55, 155
Dispute resolution systems, 7, 258–259 compliance theory, 57–98
Dispute Settlement Body (DSB, WTO), new classical enforcement theory, 3, 16,
231, 233, 241–242, 259–264 62, 99–149
Dispute Settlement Understanding Enlightenment, 37
(DSU, WTO), 13, 96, 124–125, Environmental protection, 140, 262–263.
231–232, 256, 297 See also endangered species
Divine law, 23 Convention on the International
Dodge, William, 120 Trade in Endangered Species
Dogger bank dispute (1906), 157 (CITES)
Domestic law sanctions, enforcement of, 8 Eritrea, 177–178, 299
Dominican Republic, 167 Eternal law, 23
Donatists, 19–20, 19n2 Ethiopia, 185–186, 197, 299
Downs, George, 89n133 Ethiopia-Eritrea Claims Commission,
DSU. See Dispute Settlement Understanding 177–178
Dualism, 42, 335, 343 Ethnic Albanians, 180, 220, 226, 245
European Community (EC), 207,
E 241–242
East Timor, 210 European Convention for the Protection of
ECOMOG (ECOWAS Cease-fire Human Rights and Fundamental
Monitoring Group), 221 Freedoms, 122–123, 313

Index
European Convention on State arbitration and, 235

Immunity, 361 Article 51 and, 172
European Court of Human Rights, 13, Congo Crisis and, 205
122–123, 142, 313, 347 Congress of Vienna and, 37, 38
European Court of Justice Court of First Kurdish separatists in Iraq and, 206–207
Instance, 278 MFN treaty clauses and, 124
European Union (EU) self-help countermeasures and, 231–232
banana dispute and, 241–242 Suez Crisis and. See Suez Crisis
sanction protests in DSB by, 260–261 UN dues withholding by, 267, 271, 286, 287
sanctions by, 245 Vienna treaty and, 196
self-help countermeasures and, 232 Franck, Thomas, 8–9, 71, 84–87, 167
Turkey and, 184 Free ships, free goods, 116–119, 121
Executions. See Death penalty French Revolution, 37
Extradition agreements, 346 Friedman, Wolfgang, 71, 285
Extrajudicial killing, 9, 54 Frowein, Jochen, 200–201, 245, 246
FSIA. See Foreign Sovereign Immunity Act
F Fuller, Lon, 79
Falk, Richard, 69 The Function of Law in the International
FAO. See Food and Agriculture Community (Lauterpacht), 52
Organization
Feinstein, Lee, 226–227 G
Feith, Douglas, 147 Gabcikovo-Nagymoros case (1997), 233,
Felciano, Florentino, 69 235, 240–241, 250, 253
Feminist scholarship, 95, 95n155 Game theory, 108n33
Final Act of the Congress of Vienna of Gardam, Judith, 214
1815, 37, 196 Gardner, John, 133–134, 139n157
Finland, 159 Gathii, James Thuo, 95
Finnis, John, 79, 142n165 Gattini, Andrea, 251
Fisher, Roger, 71, 81–82, 81n106, 85, 86 General Agreement on Tariffs and Trades
Fisheries Jurisdiction cases (1974), 144 (GATT), 124, 249, 261–263
Fisheries Jurisdiction case (1995), 229 General Assembly (UN)
Fishing vessels, immunity from capture Articles of State Responsibility and, 242
during war, 120–121 definition of aggression, 177
Fitzmaurice, Gerald, 80–81, 90, 344 Operation Enduring Freedom and, 185
Flatow, Alisa, 316, 335, 362–363 sanctions and, 278
Flexibility and law, 75 General Principles, 9, 12, 39, 79, 115, 134,
Food and Agriculture Organization (FAO), 137–38, 143–44, 171, 228, 250, 267,
283, 286 281, 339, 341, 362n.160. See also
Force majeure, 249 sources
Foreign Sovereign Immunity Act of 1976 Geneva Conventions, 39, 102n19, 126, 156,
(FSIA, U.S.), 316, 322, 362 328, 337–339
Formalism, 138–139n154 Genocide, 9, 54, 210, 340
Forum non conveniens, 330, 343, 364 Genocide Convention, 122, 126
“Four Policemen,” 198 Genocide Convention case (1993), 182,
Fragmentation, 88, 92n132, 144n176, 331, 312–313
366n175 Gentili, Alberico, 25–26
France. See also Air Services Agreement Georgia, 220
case (1978) German Claims Tribunal, 301

Index
Germany. See also Naulilaa case (1928) enforcement and, 20–21, 45

arbitration and, 158 as founder of international law, 5–6, 16
death penalty and consular rights, Just War Doctrine and, 26, 30, 38
303–304, 307–308 Kelsen and, 49, 52
fishing and, 144, 304 Lauterpacht and, 52, 53–54
free ship rule and, 117–118 natural law and, 39, 143
ICJ decisions and, 366–367 new classical theory and, 62
multilateral treaty-based restraints on norms and, 9
war and, 46–47 revival of, 55
national court enforcement of self-defense and, 171
international law in, 339–340, 343, Vattel and, 33, 34, 35, 36, 45
343n68 Grundnorm, 48, 136
natural law in, 79n98 Guantánamo Bay, Cuba, detention in, 102,
Nazis. See Nazi regime 147, 328, 339
positivism in, 79 Guarantors, use of, 34, 36, 38, 64–65
post-World War II military tribunals in, Guillaume, President, 355–356
51, 52, 58n5, 62 Guinean diplomats, arrest in Ivory
sovereign immunity in, 361, 362 Coast, 254
World War II and, 162 Gulf War, 77, 96, 153–154, 170–171,
Gerson, Alan, 225 189–190, 206. See also Iraq
Ghana, 231
Glennon, Michael, 168–169, 227 H
Globalization, 15, 128, 334 Habermas, Jürgen, 136
God as source of authority for law, Habré, Hissène, 331
132–133 Hague Peace Conferences of 1899
Goldberg Corollary, 287 and 1907, 46, 118–119,
Goldsmith, Jack, 2–5, 8, 14, 102nn18–19, 157–158, 197
103–130, 135 Hague Regulations of 1907, 147
Goldsmith, Lord, 194, 195n5 Haiti, 209, 211, 232
Golove, David, 106, 115n61, 116–117 Hart, H.L.A.
Good faith, 9, 24–25 Henkin and, 7, 60, 74–75
Gould, Inc., 315 natural law and, 79
Gowlland-Debbas, Vera, 214 as positivist, 133–134
Gray, Christine, 168, 180 on sanctions, 7, 8, 72–76
Gray, Justice, 120–121 voluntary compliance and, 127
Great Britain. See United Kingdom Hathaway, James C., 134n140, 143
Greece, 300–301, 348n83, 361, 362 Head, John, 273
Greece, ancient, 20 Headquarters Agreement, 292
Grenada, 86, 217–218 Heidelberg University colloquium (1986),
Grieg, D.W., 256 83–84
Gross, Leo, 26, 31 Heineccius, Johann Gottlieb, 32
Grossraum, 58, 58n4 Helms-Burton Act of 1996 (U.S.),
“The Grotian Tradition in International 260–261
Law” (Lauterpacht), 5 Helsinki Summit Declaration (1992), 220
Grotius, Hugo Henkin, Louis
arbitration and, 12–13, 30 on Austin, 75
development of international law and, on compliance, 60–61, 132
3–4, 5–6, 16, 26–32 on democracy, 128

Index
development of international law and, 16 as norms, 94, 97

Fisher on, 81 sanctions for violations of, 97, 179–181,
Goldsmith & Posner on, 107–109 244–245
Hart and, 7, 60, 74–75 support of, 95n155
on inherent right theory, 175 Humanitarian impact of sanctions, 212,
Morgenthau and, 6–7, 71 277–278
norms and, 9, 88 Humanitarian intervention, 179–181, 207,
positivism and, 62 214, 225, 275
real world observations of, 78 Hungary
realist critics and, 71 Austria-Hungary, 196–197
on sanctions, 71, 75–77, 80, 369 Soviet invasion of, 204n44
on self-defense, 179 UN Charter violation in, 167
on UN Charter, 167–168, 179 unilateral countermeasures and, 231,
on U.S. interest in international law, 235, 240–241
77–78 Hussein, Saddam, 97n159, 146, 147
Hess, Rudolf, 296
Hezbollah, 188 I
Hierarchy of norms in international law, IAEA. See International Atomic Energy
13, 142–143 Agency
Higgins, Rosalyn, 69, 357–359 ICAO. See International Civil Aviation
High-Level Panel on United Nations Organization
Reform, 147–148, 180–181, 211n75, ICC (International Chamber of
227 Commerce), 322
Hilao v. Marcos (1996), 347 ICCPR (International Covenant on
Hillgruber, Christian, 236 Civil and Political Rights), 94,
Hitler, Adolph, 79, 126, 127, 162, 178. See 122n93, 364
also Nazi regime Iceland, 144, 304
Hobbes, Thomas, 5, 27, 40 ICISS (International Commission
Hockett, Robert, 114n60 on International and State
Holt, Wythe, 67n45 Sovereignty), 225–226
Holy Roman Empire, 13, 22, 24, 31 ICJ. See International Court of Justice
Hoppe, Carsten, 366 ICSID (International Centre for Settlement
Hostages, holding of, 34 of Investment Disputes), 324
Hostages case (1980), 239–240, 244, IFOR (Implementation Force), 222
254–256, 263, 295, 314, 342 ILC. See Articles of State Responsibility
How Nations Behave (Henkin), 7, 60, 71, (UN, ILC)
72, 107 Illegal acts, nonrecognition of, 287–289
Howse, Robert, 100n4 ILO. See International Labour
Hudec, Robert E., 124 Organization
Hudson, Manley O., 302 IMF. See International Monetary Fund
Hudson, Walter M., 106n30, 108n33 Immunity, 291, 292, 330–331, 333, 346,
Human dignity, promotion of, 69–70 348–367. See also specific types of
Human rights immunity
abuse, 14 Imperialism, 43n132, 94
courts, 88, 296n7 Implementation Force (IFOR), 222
European system for, 122–123 Improving Compliance with International
global war on terrorism and, 122n93 Law (Fisher), 81
law and treaties, 79, 122 India, 180, 261, 262

Index
Individual responsibility and boundary cases in, 114

accountability, 13, 51 on countermeasures, 96, 229–230,
Informal networks, 89 235–236, 268–269
Inherent right theory of self-defense, creation of, 51–52
172–175 death penalty and. See Death penalty
Injured states, 246–247 diplomatic immunity and, 349–350
Inquiry, use of, 34 establishment of, 296
Institut de Droit International, 245 general principles in, 143–144
Inter-American Commission on Human international court enforcement
Rights, 142–143 through, 301–313
Inter-American Convention on official immunity and, 346
International Commercial Security Council and, 166, 201–203
Arbitration, 321 as source of international law, 365–367
Inter-American Court of Human Rights, state responsibility requirement in,
13, 364 181–182
Interim orders, 306–310. See also UN Charter and, 166, 168–169, 289
Provisional measures International Covenant on Civil and
Internalization of norms, 88 Political Rights (ICCPR), 94,
International Atomic Energy Agency 122n93, 364
(IAEA), 268, 274, 280 International Criminal Court (ICC), 61,
International Centre for Settlement of 128, 139n154, 140, 294, 319–320
Investment Disputes (ICSID), 324 International criminal courts and
International Chamber of Commerce tribunals, 13, 51, 88, 96. See also
(ICC), 322 specific court or tribunal
International Civil Aviation Organization International Criminal Tribunal for
(ICAO), 283, 285, 304 Rwanda, 319
International Commission on Intervention International Criminal Tribunal for the
and State Sovereignty (ICISS), Former Yugoslavia, 96–97, 143,
225–226 181–182, 297, 319
International Commission on the International Labour Organization (ILO),
Danube, 38 283, 285–286, 291
International courts International Law Commission. See
arbitration, 320–325 Articles of State Responsibility
early attempts to create, 157–158 (UN, ILC)
enforcement, 295–325 International legal process, 71–72n62
increase in, 88, 88n132 International military tribunals, 51, 52,
International Court of Justice. See 58n5, 62. See also Nuremberg
International Court of Justice (ICJ) Tribunal
International Criminal Court. See International Monetary Fund (IMF), 268,
International Criminal Court 269, 273–274, 283, 285–286, 304
(ICC) Articles of Agreement, 266–267
Iran-U.S. Claims tribunal, 295, 297, 301, International organization immunity, 363
313–319, 321, 322, 363 International organizations, 268n11,
judicial enforcement in general, 297–301 271n19
International Court of Justice (ICJ). See Exclusionary sanctions, 273–274
also specific cases; Permanent Court Expulsion or suspension of members of
of International Justice (PCIJ) organizations, 274, 284–285
Article 2(4) and, 164, 175 International Tin Council, 290

Index
International Tribunal for the Law of the sanction protests in DSB by, 261
Sea, 297 World War II and, 79, 162
Interrogation methods, 147. See also Jellinek, Georg, 41, 42, 135
Detainees, U.S.; Torture Memos Jennings, Robert, 298, 335
Iran Jessup, Philip, 71, 77n89
freezing assets of, 243–244 Jews, Nazi persecution of, 6, 58
hostage crisis, 232, 239–240, 244, John Paul II, 137
254–256, 263, 295. See also Jurisdiction, 343–346
Iran-U.S. Claims Tribunal Jurisdiction of the European Commission of
Kurdish separatists and, 183–184 the Danube (1927), 272
Iran-U.S. Claims Tribunal, 295, 296, 297, Jus cogens norms
301, 313–319, 321, 322, 363 anticipatory self-defense and, 175
Iraq Article 2(4) as, 168, 191
freezing assets of, 232 countermeasures and, 248
Iran invasion by, 183 death penalty and, 142–143
Kurdish separatists in, 183–184, 206–207 establishment of, 138
Kuwait, invasion of, 77, 96, 153–154, hierarchy of norms and, 13
170–171, 189–190, 206, 223 international law based on, 9
looting in, 147, 153 natural law and, 54–55, 79–80
occupation by U.S. and international positive law and, 132, 137
law, 106n30 Security Council and, 216, 227
oil for food program in, 265–266, 292 Just War Doctrine, 21–26
Saddam Hussein Aquinas and, 22–23
sanctions against, 97, 97n158, 212, Augustine on, 19–20
212n80, 232, 244–245, 255, 265, 276 Christian empire and, 22
weapons of mass destruction in, 146, determination of, 148n193
265, 266n3 Grotius and, 26, 30, 38
Iraq war Kelsen and, 48n149, 49, 52–53, 156, 170
necessity and proportionality principle Lauterpacht and, 53
and, 188–189 self-defense and, 156
neoconservatives and, 99n1, 146n185 Spanish Scholastics and, 24
sanctions and, 96, 97n159, 265–266 state use of, 38–39, 46, 155
UN and, 146–147, 191, 227 Vitoria and, 24–25, 25n27
Iraqi Exclusion Zone, 183, 206, 207
Israel. See also Reparations for Injuries K
Suffered in the Service of the United Kadi, Yassin Abdullah, 278
Nations (1949) Kant, Immanuel, 33
Arab-Israeli War 1967, 175–176, 175n88 Kellogg, Frank, 160
Lebanon invasion by, 187–188 Kellogg-Briand Pact of 1928, 49, 50, 145,
UN exclusion and, 274, 284 160–161, 162, 165, 168
Italy, 23, 197, 220n119, 362n160 Kelsen, Hans
Ivory Coast, 254 on Austin, 47
Izquierda Unida, 351 on authority, 6
and Carl Schmitt
J on consent, 136
Japan on courts, 49, 50, 51, 82
Manchuria invasion by, 197 on Covenant of League of Nations,
post-World War II military tribunals in, 159–160
51, 62, 319 development of international law and, 16

Index
enforcement model of, 86 Latin America, 216, 218. See also specific
Grundnorm and, 136 countries
Hart on, 72, 73 Lauterpacht, Elihu, 213, 287
Just War Doctrine and, 20, 48n149, 49, Lauterpacht, Hersch, 3–6, 9, 13, 16, 20,
52–53, 156, 170 52–54, 139
law over sovereigns and, 47–53 Law and law enforcement, 23, 28
Morgenthau on, 66–67 Law for nations as moral imperative, 3–4,
in Nazi Germany, 58–59 179
norms of international law and, 9 The Law of Nations (Vattel), 33, 37
as positivist, 53, 133–134 Law of the Sea, 118, 119–120. See also
post-World War II and, 5 United Nations Convention on the
pure theory of law of, 48 Law of the Sea (UNCLOS) Law of
on sanctions, 61–63, 83, 144 the Sea Tribunal
on self-defense, 170 Law of the Sea Preparatory Committee, 290
UN Charter and, 59, 166, 213 Leaders
in United States, 59–60 conscience and use of force by, 25, 32
on war and reprisals, 7, 13 enforcement and, 96
Keng Liang “Anson” Wong, 337 influence of international law on,
Kennan, George, 7, 71, 72, 78 110–111, 125
Kennedy, David, 91, 93 punishment of, 29, 52
Kenya, 185, 209 League Council, 301
Khadr, Omar, 102n15 League of Arab States, 221
Al-Khasawneh, Judge, 359–360 League of Nations, 46–50, 65, 159,
Khomeini, Ayatollah, 313–314 162, 197, 284, 299–301. See also
Kingsbury, Benedict, 44 Covenant of the League of Nations
Kirgis, Frederic L., Jr., 283, 288 Lebanon, Israeli invasion of, 187–188
Klein, Pierre, 266n2 Legal process theory, 137–139, 139n157
Koh, Harold, 11, 87–88 Legitimacy, concept of, 85
Kooijmans, Judge, 357 Liberal states, theory of, 89
Korean passenger plane downing, 245 Liberalism, 89–90n135, 94
Korean War, 76, 203–204 Liberia, 212, 221, 359–360
Koskenniemi, Martti, 91, 93, 95–96, LIBERTAD (Cuban Liberty and
138–139n154 Democratic Solidarity) Act of 1996,
Kosovo, use of force in, 97 260–261
Kosovo crisis, 146, 180, 191, 199, Libya, 182–183, 230n4, 289, 293
225–226 Liechtenstein, 343n68
Kratochwil, Friedrich, 131, 132 Lillich, Richard, 179–180
Krauthammer, Charles, 100–101, 102, 131 The Limits of International Law
Kunz, Josef, 80, 170 (Goldsmith & Posner), 2–3,
Kurdish separatists, 183–184, 206–207 4, 5, 8, 14, 103–130
Kuwait, Iraq’s invasion of, 77, 96, 153–154, Lobel, Jules, 328
170–171, 189–190, 206, 223 Lockerbie airplane bombing, 183,
230n4, 290
L Lockerbie case (1992), 214
Lacey Act of 1900 (U.S.), 336 Looting, 147
LaGrand, Karl & Walter, 307–308 Lotus case (1927), 344–346
LaGrand case (2001), 303–304, 307–311 Low Countries, German invasion of,
Landmines Conventions, 129 58n5, 178
Lasswell, Harold, 68–69 Lowenfeld, Andreas, 71n62, 260

Index
Luban, David, 170–171 Mossadeq, Mohammed, 254

Luxembourg, 38, 196 Most-favored-nation (MFN) clauses, 124
Mueller, John & Karl, 212
M Muller, Sam, 290–291, 292
Machiavelli, Niccolo, 3, 5, 27 Multilateral treaties. See Treaties
Maine, Henry Sumner, 42 Multistate conferences, 34
Maine, sinking of, 156–157 Municipal law, 40
Malaysia, 261, 262 Myanmar, prohibiting transactions
Manchuria invasion, 197 with, 261
Mann, F.A., 342
Marcos, Ferdinand, 334–335, 335n27, 347 N
May, Larry, 137n148 Nairobi embassy bombing, 184
McDougal, Myres, 68–69, 70, 71–72n62, 75 Namibia Court, 213
Medellín v. Texas (2008), 203, 299n22, Nanda, Ved, 69
341–342, 347 Napoleonic wars, 37, 196
Mexico Nasser, Gamal Abdel, 173
El Chamizal arbitration, 253, 320 National court enforcement, 327–367
consular rights of nationals in U.S., immunity and other barriers to,
303–304 348–367
death penalty and, 299 international arbitral awards in,
self-help countermeasures and, 231–232 306, 347
tuna harvesting and, 249 international law enforcement by, 77,
MFN (Most-favored-nation) clauses, 124 332–348
Migrant workers, rights of, 143 Prudential doctrines, 327, 330, 364
Mikva, Abner, 328 regime violations and, 290–291
Military tribunals, 51, 62, 319. See also rule internalization and, 11
specific tribunals National Security Strategy (U.S. 2002),
Milošević, Slobodan, 97, 180 146, 178
Minimum contacts requirement, 343–344 National Security Strategy (U.S. 2006), 178
Mistake, 35, 248–249 Native Americans, 25n27
Moldova, peacekeeping missions in, 220 NATO. See North Atlantic Treaty
Monism legal system, 48, 136, 336, 343 Organization
Monroe Doctrine, 58n4 Natural law
Montreal Convention for the Suppression as basis of legal authority, 132
of Unlawful Acts, 289 courts and tribunals and, 12
Moore, John Norton, 218 Finnis on, 79
Moral v. immoral law, 127–128 Grotius on, 27–28
Morgenthau, Hans Kelsen on, 52–53
on courts, 64 Lauterpacht on, 54
Hart on, 72 limitations of, 23, 137
Henkin and, 6–7, 71, 75, 77–78 positivism and, 39–40
on Kelsen, 66–67 Vattel on, 36, 37
law without sanctions and, 62–67, 68, Naturalism, 39n116, 43, 48n149, 67
105, 135 Naulilaa case (1928), 161–162, 233, 234,
neoconservatives and, 99 250, 258
personal story of, 59–60 Nazi regime, 6, 57–59, 79, 126. See also
on sanctions, 4–5 Hitler, Adolph; Nuremberg Tribunal
United States and, 60, 160 Necessity, 9, 186–191, 215, 258

Index
Negation, use in multilateral North Atlantic Treaty Organization (NATO)

conferences, 30 Afghanistan and, 185
Negative consent, 134n140 Bosnia-Herzegovina and, 222
Negative or passive action by states, 156 judgment enforcement authority
Negotiation practice, 81n106 of, 319
Neoconservatives, 62, 98–100, 99n1, Kosovo crisis, 97, 146, 225
102n17, 127, 129, 131, 146, 147 police actions by, 154–155
Netherlands, 35, 38, 196 UN and, 216–217
Neutrality, 36–37, 38, 156n9 use of force by, 228
New classical enforcement theory, 3, Yugoslavia and, 180, 225
99–149 North Korea, 203–204, 230n4, 280, 293
natural law and, 132–149 Northern Alliance, 188
law and sanctions, 5, 16, 62, Norton, Anne, 100n4
105–131 Norway, 58n5, 178
New Haven School, 69–71, 89 Notice, 250–252, 277, 324–325
The New Sovereignty (Chayes), 86–87 Nuclear Non-Proliferation Treaty, 280
New York Convention for the Recognition Nuclear Weapons case (1996), 186
and Enforcement of Foreign Nuremberg Tribunal, 52, 58n5, 62, 79,
Arbitral Awards, 315, 321, 322–324, 295–296, 319, 334
364–365 Nussbaum, Arthur, 31, 38, 196
NGOs. See Nongovernmental
organizations O
Nicaragua case (1986) OAS. See Organization of American States
customary principles and, 215 OECS. See Organization of Eastern
enforcement of, 299n17, 303, 327–328 Caribbean States
Henkin’s view and, 168 Official immunity, 346, 348, 350–361
interim orders in, 306–307, 312 Oil for food program, 265–266, 292
restricted rights to use armed force Oil Platforms case (2003), 177–178
in, 84 On the Law of War and Peace (Grotius),
self-defense and Security Council and, 12, 26
171n74 Operation Alba, 220, 220n119
state responsibility under, 182 Operation Desert Fox, 189. See also Iraq
UN Charter and, 176–177 War
U.S. refusal to comply with, 86, 298 Operation Enduring Freedom, 185. See also
U.S. veto in Security Council and, 303 Afghanistan
Niemeyer, Gerhard, 80 Oppenheim, Lassa, 39n116, 42–45, 46, 49,
Nineteenth century international law 67–68, 248
developments, 39 Organisation for the Prohibition of
Non-Europeans and Just War Doctrine, Chemical Weapons, 274–275
24, 25n27 Organization for Economic Cooperation
Non ultra petita rule, 355n117, 357 and Development (OECD), 291
Nonbinding agreements, 121n88 Organization for Security and Cooperation
Noncompliance, 87 in Europe (OSCE), 219–21
Nongovernmental organizations (NGOs), Organization of American States (OAS),
98, 109, 122n93, 125, 128 218, 219, 221, 244, 284
Nonintervention principle, 346–347 Organization of Eastern Caribbean States
Nonrecognition of illegal acts, 287–289 (OECS), 217–218, 219
North Atlantic Fisheries Organization, 229 Otto, Dianne, 95n155, 141

Index
Oxman, Bernard, 310 Pinochet, Augusto, 330, 349, 349n87. See

also Arrest Warrant case (2000)
P Piracy, 51n169, 155, 329, 332–333
Pacific island states and fishing boat PLO. See Palestine Liberation Organization
seizure, 259 Poland, 231
Pacta sunt servanda, principle of, 256 Political coercion, 163
Palestine, 288 Political question doctrine, 327
Palestine Liberation Organization (PLO), Politics Among Nations (Morgenthau),
187–188, 248, 289–290, 292 63–64
Pan American Airways, 237–239 Polling data, 111
Panama, invasion of, 86 Pope and emperor, authority of, 13, 23, 24,
The Paquete Habana (1900), 120–121 25, 30
Paris, Treaty of (1856), 38 Port state enforcement, 278–279
Paris Congress, 38 Portugal, 38. See also Naulilaa case (1928)
Paris Declaration on Maritime Law of Positive morality, international law as, 4,
1856, 39, 155–156 40–41
Paris Peace Conference, 159 Positivism
Paulus, Andreas, 93, 141–142 as basis of legal authority, 132–137
PCA (Permanent Court of Arbitration), critical theorists on, 62
157–158 development of, 34–47
PCIJ. See Permanent Court of Fuller on, 79
International Justice general principles of international law
Peace movements, 156 and, 12
Peace of Westphalia, 12, 22, 26, 31–33, 66, Grotius on, 28
195–196 Hathaway, James, 134, 143
Peaceful reprisals. See Reprisals limitations of, 105
Peacekeeping, 205, 207n61, 208, 210, 220, natural law and, 23
223–224, 286–287, 293 Oppenheim on, 67
Peremptory norms. See Jus cogens norms use of force under, 155–162
Permanent Court of Arbitration (PCA), Vattel on, 33
157–158 Posner, Eric, 2–5, 8, 14, 103–130, 135
Permanent Court of International Justice Postmodernism, 62, 92–96, 97
(PCIJ). See also International Court Pound, Roscoe, 48
of Justice Poverty, 14
creation of, 50 Powell, Colin, 265
doctrine of implied powers and, 272 Power, pursuit of, 59–60, 62–63, 66, 91
enforcement and, 300, 301 The Power of Legitimacy Among Nations
general principles of international law (Franck), 84–85
and, 143 Preemption doctrine, 146, 146n184, 178
ICJ as successor to, 51 Prefecture of Voiotia v. Federal Republic of
jurisdiction and, 344 Germany (2000), 361
League of Nations and, Prisoners and detainees, U.S. See
166, 202 Detainees, U.S.
Philippines, 334–335, 335n27, 347 Privileges and immunity, 292
Phillimore, Lord, 299–300 Prize cases, 120–121
Phillimore Plan, 299–300 Project for a New American Century, 99n1
Physical coercion, 163 Proliferation Security Initiative (PSI),
266n3

Index
Property of nationals, attachment of, 156 Restatement (Third) of American Foreign

Proportionality, 9, 156, 212–213, 215 Relations Law, 253
Prussia, 38, 196, 197 Retorsions, 230n2, 236
PSI (Proliferation Security Initiative), Reuter, Paul, 250
266n3 Rex v. See name of opposing party
Psychological element international law, Rhodesia, 206n52, 275–276
8–9 Rhodopia Forest case (1933), 300–301
Public Prosecutor v. Djajic (1998), 339–340 Ribbentrop, Joachim von, 58n5
Pufendorf, Samuel, 27, 32 Rickert, Heinrich, 41
Pulkowski, Dirk, 256–257 Rights and privileges in organizations, loss
Punishment, 23, 28–30, 33, 35–36, 41 of, 282–284
Rio Treaty (1975), 165, 218, 219
Q Roberts, John, 347–348
Quantitative methods, 89n133 Romania, 231
Quintana, Moreno, 273–274 Romans, ancient, 20
Roosevelt, Franklin, 145, 162, 198–199, 218
R Root, Elihu, 158, 159, 197
Radbruch, Gustav, 79n98 Rosas, Allan, 281, 282
Rational being, man as, 5–6 Rosenne, Shabtai, 310
Rational choice methodology, 14n59, Roth, Brad, 94–95
107–110, 108n33 Rubin, Alfred, 25
Ratner, Michael, 328 Rule internalization, 11
Ratzinger, Josef, 110–111, 136. See also Rule legitimacy, 85
Benedicth XVI Rumsfeld, Donald, 99n1, 147, 178n99
Reagan, Ronald, 120, 179 Russia
Realist theories, 55, 60, 61, 105, 145n183 enforcement practice and, 118, 157
Reciprocal nonperformance, 236–237 European Convention and, 123
Reed, Esther, 133n136, 137, 142n165 self-help countermeasures and, 232
Reformation, effect of, 23 Vienna treaty and, 37, 38, 196, 197
Regime theorists, 9, 61 Yugoslavia and, 180
Reisman, Michael, 69–70, 211 Russo-Japanese War, 118, 119
Religious norms, 142 Rwanda, 96, 209–210, 319
Reparations, 35, 258, 301
Reparation for Injuries Suffered in the S
Service of the United Nations St. Pierre, Abbé, 33
(1949), 214, 268–269, 272–273, Salvadore Allende Foundation, 351
291–292 San Francisco Conference, 162–166, 218
Reprisals Sanctions. See also specific agencies and
armed, 52n175, 161–162 countries
Bartolus on, 23–24 Austin on, 42
countermeasures and, 233–237 Chayes on, 86–87
definition of, 233 coercive, 10–11, 86–87, 88, 163
Goldsmith & Posner on, 5 courts and, 62
Kelsen on, 7, 13, 49 domestic law sanctions and, 8
peaceful, 234, 235 economic, 230
use of, 39, 156 effectiveness of, 63–65
Vattel on, 35 elimination of, 86, 88
Responsibility to Protect, 225–227 exclusionary, 273–274, 284

Index
Fisher on, 81, 85 Secular theory of human reason, 142n165

Fitzmaurice on, 80 Secularization of society, 23
Frank on, 84–85 Security, use of, 34
Hart on, 72–73 Security Council
Heidelberg University colloquium on, 83 Article 2(4) and, 163, 164–165, 167
Henkin on, 71, 75–77, 369 Article 27(3) and, 165–166
humanitarian impact of, 212, 277–278 authorization to assess use of force, 148
Kelsen on, 6, 7–8 bypassing, 226–227
Koh on, 87–88 collective armed measures and, 199–228
McDougal on, 69 collective security and, 65
minimizing importance of, 61, 90 creation of, 162, 198
Morgenthau on, 4–5 enforcement of judgments by, 302–305
new classical enforcement theory and, 5, establishment of, 145
16, 62, 105–131 humanitarian intervention and, 275
NGOs and advocacy groups and, 98 Iran and Kurdish separatists in, 183–184
overview of, 9–12, 369–370 Iraq invasion and, 97n159, 146,
positive morality and, 4 189, 194
prosanction view and, 96 Iraq sanctions and, 97, 265
quantitative methods to study effect of, Kuwait invasion and, 189–190, 206, 223
89n133 notice to transgressor states, 277
reaction against, 90 Operation Enduring Freedom and, 185
self-help, 8, 50–51, 72, 88, 144, peace enforcement by, 203–204
230–234, 264 police actions by, 171
soft law and, 90–91 role of, 52, 154, 166
trade, 255 sanctions by, 180–181, 275–278, 293
WTO actions and, 231n5 self-defense and, 171–172n74, 174
“Sanctions of Mass Destruction” UN Charter and, 199–216
(Mueller), 212 WTO actions and, 231n6
Sands, Philippe, 266n2 Self-defense, 170–191
Saric, Refic, 337–338 on Article 51, 173
Saxony and Congress of Vienna, 37, 196 armed attack, 172–181
Schachter, Oscar collective action in, 171
on countermeasures, 234, 236, 249, 256, Grotius on, 171
263, 264 Henkin and Gray on, 169
as member of New Haven School, 69, 70 Henkin on, 179
on obligation, 136n145 inherent right theory of, 172–175
on retorsions, 230n2 jus cogens norms and, 175
Schindler, Dietrich, 214 Just War Doctrine and, 156
Schmitt, Carl, 6, 47, 52, 57–59, 59n7, Native Americans and Spaniards
126, 135 and, 25n27
Scholastics, 12–13, 24, 27 necessity and proportionality,
Sea turtles, protection of, 261–262 186–191
Sea Turtle Protection Act of 1989 state responsibility, 181–186
(U.S.), 262 UN Charter and, 20, 170
Secret detention locations, 1, 102, 147 war and, 28, 34–35
Secretary General’s High-Level Panel on Wright on, 144
United Nations Reform, 147–148, Self-help sanctions. See Sanctions
211n75, 227 Senegal, 330–331

Index
September 11, 2001 terrorist attacks, 101, Stein, Eric, 83

184, 185 Steinberg, Richard, 105–106
Sexual harassment, 290 Stengel, Baron von, 158
Shelton, Dinah, 13, 142 Strauss, Leo, 79n98, 100
Shrimp-Turtle decision (WTO DSB, 1998), Suárez, Francisco, 24–25, 30, 143
261–262 Sudan, 210, 221, 283
Sierra Leone, 221, 245, 360–361 Suez Crisis, 173, 204n44, 231, 231n8
Simma, Bruno, 256–257, 366 Supplement to Agenda for Peace (Boutros-
Slaughter, Anne-Marie, 89, 226–227, 329 Ghali), 210
Slavery, 9, 54, 128 Sureties, use of, 34
Slovakia, 235, 240–241 Surprise and countermeasures, 251
Slovenia, 208 Swaine, Edward, 106n30, 130
Smith, Steven, 111, 132–133, 135–136 SWAPO (South West Africa People’s
Sociological jurisprudence, 68–69, 69n48 Organization), 290
“Soft law,” 12, 90–91 Sweden, 38
Sohn, Louis, 81 Switzerland, 38
Sokolovic, Maksim, 340
Somalia, 185–186, 191, 208 T
Sources of international law, 12. See also Tadić case (1999), 181–182
Customary international law, Taiwan, 279–280
general principles, treaties Tajikistan, 220
South Africa Taliban, 182, 188
sanctions on, 206n52, 275, 277 Tanzania, 180, 185
UN exclusion and, 274, 284, 285 Taylor, Charles, 361
South Korea, 203–204 Territorial sea rules case study, 119–120
South West Africa People’s Organization Terrorism, 14, 167n57, 182–186. See also
(SWAPO), 290 War on Terror
Sovereign, law derived from, 40 Thailand, 261, 262, 280n58
Sovereign immunity, 331, 348, 361–362 Third World Approaches to International
Sovereignty of individual states, 33–48, 90 Law (TWAIL), 95
Soviet Union Thirty Years’ War, 12, 22, 31, 33, 195–196
Cold War, end of, 84 Thucydides, 30
Congo Crisis and, 205 Tokyo Tribunal, 319
Cuban Missle Crisis and, 112n54 Torture, 9, 54, 55, 102, 131
League of Nations exclusion of, 159, 284 Torture Memos, 1–2, 102–103,
sanctions by U.S. against, 245 102n18, 147
Security Council and, 204n44 Trade rules, 14
UN dues withholding by, 267, 271, Trade treaties, 123–125
286, 287 Trade tribunals, 88
UN formation and, 198 Transformationist approach to national
Spain, 35, 229, 351–352 court enforcement, 335, 336, 339
Spaniard Decision (1971), 343 Treaties. See also specific treaties
Spanish-American War, 117, 119, 156–157 bilateral, 3, 14, 107n31, 123–124,
Spanish Scholastics, 12–13, 24, 35 130–131
Stark, Barbara, 95n155 case studies on, 115, 121–125
“State crimes,” 96–97 enforcement of, 34
State Immunity Act of 1978 (U.K.), 361 of guarantee, 64–65
State interest, 36 most-favored-nation (MFN) clauses, 124

Index
multilateral, 46, 123, 266n2. See also Chapter VIII, 211, 213, 215–216, 218–
Collective countermeasures 219, 221–222, 224
post-World War I, 50 Chapter XII, 213
self-help and, 230 collective enforcement and, 65–66,
as source of international law, 12, 39 199–228, 271
state self-interest and, 36 creation of, 126
trade, 123–125 as multilateral treaties with enforcement
Treatise on Military Matters and Warfare provisions, 266
(Belli), 24 other organizations and, 216–228
Triepel, Heinrich, 41–42 Preamble to, 140
Triquet v. Bath (1764), 333 prelude to, 195–199
Tuna Dolphin case (1991), 249, 262–263 prohibition of force, 20, 153–154,
Turkey, 38, 123, 184, 344–346 162–169
TWAIL (Third World Approaches to purpose of United Nations, 148–149
International Law), 95 Security Council. See Security Council
Twelve-mile nautical limit, 119–120 self-defense and, 20, 144, 153, 170–191
self-defense under, 20
U terrorism and, 167n57
Uganda, 172n74, 180, 209 United States and, 146
Ultra vires acts, 286, 288, 290 use of force under, 20, 144–149,
UN Charter, 199–228 153–155
Article 2(4), 162–169, 174–176, 191, veto power in, 65–66, 145, 198, 206
206, 230 violations of, 145
Article 2(7), 200, 208 Yugoslavia and, 97
Article 24, 214–215 UN Educational, Scientific and Cultural
Article 24(1), 199–200 Organization (UNESCO), 283
Article 24(2), 213 UN Human Rights Committee, 364
Article 25, 200 UN Straddling Stocks Convention, 279
Article 27(3), 165–166 UNCITRAL (United Nations Commission
Article 39, 200, 201, 208, 222–223, on International Trade Law Rules
275, 305 on International Arbitration)
Articles 41 and 42, 200, 201, 223 Rules, 317
Article 41, 200, 201, 223, 275, 304, 305 UNCLOS. See United Nations Convention
Article 42, 200, 201, 223, 304 on the Law of the Sea
Articles 43 to 49, 222–223 Unified legal system, 48
Article 43, 223 Unilateral armed measures, 153–191
Article 43(1), 201 defense of rights with force, 170–191
Article 51, 163n39, 164–165, 170, positive law and use of force, 155–162
172–176, 181, 184–185, 189, 211, UN Charter prohibition of force,
216, 223n132, 224 162–169
Article 94, 202–203, 302–303, 305, 309, Unilateral countermeasures, 229–264. See
310–311 also Articles of State Responsibility
Article 103, 200 (UN, ILC)
Chapter I, 215 law and practice of, 237–264
Chapter I, Article 1(I), 213 reprisals as countermeasures, 233–237
Chapter VI, 205, 213 United Kingdom
Chapter VII, 211, 213, 220, 221–222, Afghanistan and. See Afghanistan
223–224 Alabama claims, resolution of, 156

Index
Albania, freezing assets of, 231 United Nations Convention on Contracts

Anglo-Iranian Oil Co. case, 309–310 for the International Sale of Goods
Article 51 and, 172–173 (CISG), 341
Caroline, scuttling of, 173–174 United Nations Convention on the Law of
Corfu Channel case and, 252, 298n17 the Sea (UNCLOS). See also law of
court proposal of, 157 the sea; Law of the Sea Tribunal
dues withholding by, 267, 271, 286 court enforcement of, 305–306
fishing and, 144, 304 enforcement of, 274, 278–279, 319, 321
free ship rule and, 117–118 international organizations and, 269
head-of-state immunity and, 330 as multilateral treaty, 267
imperialism and, 43n132 nautical limit under, 120
Iraq and, 183, 188–189, 194–195, United Nations International Law
265–266 Commission’s Responsibility
Kurdish separatists in Iraq and, 207 of States for Internationally
Libya, extradition, 289 Wrongful Acts. See Articles of State
multilateral treaty-based restraints on Responsibility (UN, ILC)
war and, 46 United Nations Protection Force
national court enforcement in, 336 (UNPROFOR), 208
peace movements in, 156 United Nations resolutions
Pinochet and, 351–352 Resolution 678, 207, 223
sanctions on Iraq and, 212n80 Resolution 688, 206–207
self-help countermeasures and, 231–232 Resolution 713, 207–208
sovereign immunity in, 361 Resolution 743, 208
Suez Crisis and. See Suez Crisis Resolution 781, 221
United Nations and, 198 Resolution 794, 208
Vienna Congress and, 37, 38 Resolution 814, 208–209
Vienna treaty and, 196 Resolution 940, 209
World War I, actions prior to, 158 Resolution 1101, 220
United Nations. See also General Assembly; Resolution 1441, 194–195
Security Council; specific agencies United Nations World Summit (2005), 169,
and initiatives; United Nations 181, 195, 210–211, 275
Charter United States. See also Bush, George W.
Bush speech (9/12/2002), 193–194 Afghanistan invasion. See Afghanistan
collective countermeasures and, 268, 269 Air Services Agreement case. See Air
development of, 62 Services Agreement case (1978)
dues withholding and, 267, 271, 286, Alabama Claims, resolution of, 156
287, 289–290 arbitration and, 235
employee grievances and, 291 banana dispute and, 241–242
exclusion of countries from, 274, 284–285 benefits of international law for, 7
Kelsen and, 59 Caroline, scuttling of, 173–174
oil for food program in Iraq, El Chamizal arbitration, 253, 320
265–266, 292 collective security organizations and,
police actions by, 154 216, 218
purpose of, 148–149 consular rights of foreign nationals in,
resolutions. See United Nations 303–304, 307–308. See also Avena
resolutions case (2004); LaGrand case (2001)
sexual harassment in, 290–291 crisis of confidence in law in, 136
vote, loss of, 282–283 Cuba, sanctions against, 231n10, 255

Index
customary international law and, sanctions and, 71, 84, 86

116–121, 118n78 self-help countermeasures and, 231–232
death penalty. See Death penalty Somalia and, 186
detainees of. See Detainees, U.S. sovereign immunity in, 362
embassy bombings, 184–185 Taiwan sanctions by, 280
enforcement and, 86 torture use and. See Torture; Torture
execution. See Death penalty Memos
founding and international law, 77–78 treaties and, 126
free ship rule and, 116–119 tuna harvesting and, 249, 262–263
Grotian tradition, reemergence in, 55 Turkey and, 184
Haiti and, 209 UN Charter and, 197–199
human rights violations sanctions and, UN dues withholding by, 267, 271,
244–245 282–283, 286, 287, 288, 289–290
ICJ judgments. See specific cases use of force by. See specific action
Iran hostage crisis, 232, 239–240, 244, or war
254–256, 263, 295. See also Hostages WTO DSB sanctions, 260–263
case (1980); Iran-U.S. Claims Uniting for Peace Resolution, 204
Tribunal Universal Declaration of Human Rights,
Iraq, invasion of. See Iraq War 94, 126
Iraq sanctions and. See Iraq Universal law, 94
Israel and, 188 Universal Postal Union, 274
Kelsen in, 59–60 UNPROFOR (United Nations Protection
League of Nations and, 160, 197 Force), 208
Libya and, 182–183, 289 Uruguay Round, 125n110, 242
limit of international law on, 4, 6 Ury, William, 81n106
litigation to enforce international USS Cole bombing, 185
norms in, 88
military power, use in advising, V
100–101 Vagts, Detlev, 57
moral obligation and international Velasquez Rodriguez case (1988), 364
law, 127 Validity, concept of, 48
Morgenthau and, 60, 106 Vásquez, Carlos, 340–341
multilateral treaty-based restraints on Vattel, Emmerich de, 27, 33–38, 45,
war and, 46 64–65, 156
national court enforcement of Versailles, Treaty of, 49, 160, 197, 301
international law in, 340–341 Veto power in UN Charter, 65–66, 145,
neutrality and, 156n9 198, 206
Nicaragua and. See Nicaragua case Victim states, actions on behalf of,
(1986) 165–166
peace movements in, 156–157 Vicuna, Orrego, 349–350
PLO and, 248, 292 Vienna Congress, 37–38
preemption doctrine and, 146, Vienna Convention on Consular Relations,
146n184, 178 331, 366–367
pursuit of power by, 66 Vienna Convention on the Law of Treaties,
realists and regime theorists in, 61 80, 247, 271, 287–288
reputation of, 131 Vienna Convention on the Ozone Layer,
respect for international law in, 11 267, 269
role in international law, 129–131 Vietnam, 167, 180

Index
Vining, Joseph, 133 World Trade Center bombings (1993),

Vitoria, Franciso de, 24, 25n27, 143 184–185, 190
Vote suspension in organizations, World Trade Organization (WTO),
282–284 124, 139n154, 255, 268. See also
Dispute Settlement Understanding
W (DSU, WTO)
Waldock, Humphrey, 173 World War I, 50, 158, 197
War ministries, 52n175, 163n40 World War II
War on Terror, 101–103, 105, 122n93. See military tribunals after, 51, 52, 58n5, 62,
also Detainees, U.S. 319. See also Nuremberg Tribunal
Ware v. Hylton (1796), 333 Nazi regime. See Nazi regime
Warsaw Treaty Organization (WTO), Wright, Quincy, 51, 80, 144, 219
216, 217 WTO. See Warsaw Treaty Organization;
Waterboarding, 102 World Trade Organization
Watts, Arthur, 335
Weapons of mass destruction, 146, 265, Y
266n3 Yale University, 69–71
Weber, Max, 41 Yemen, 185, 207
Webster, Daniel, 173–174 Yerodia Ndombasi, Abdulaye, 352–361
Weeramantry, Christopher, 15–16, 105, Yoo, John, 103n18
141, 214 Yugoslavia. See also International Criminal
West Pakistan, 180 Tribunal for the Former Yugoslavia
Western Europe. emergence of sovereign NATO bombing of, 180
states in, 26 sanctions and, 207–208, 232, 245
WHO. See World Health Organization UN exclusion and, 285
Wilson, Woodrow, 159, 197 use of force against, 97, 180, 221–222
Wolff, Christian, 27, 32, 48 war crimes and, 337–338
Wolfowitz, Paul, 99n1, 147
Wolfrum, Rüdiger, 213 Z
World Bank, 283, 285, 304 Zasloff, Jonathan, 105–106
World government, 81–82 Zemanek, Karl, 253
World Health Organization (WHO), 288, Zimbabwe, 207
294, 304 Zoller, Elisabeth, 251
World Meteorological Organization, 284 Zorn, Philipp, 158

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The Power and Purpose

Oxford New York

Copyright © 2008 by Oxford University Press, Inc.

Oxford is a registered trademark of Oxford University Press

Library of Congress Cataloging-in-Publication Data

O’Connell, Mary Ellen, 1958–

Printed in the United States of America on acid-free paper

(Based on the Declaration of Principles jointly adopted by a Committee of the

And my students—past, present and future

Part I. Enforcement Theory . . . . . . . . . . . . . . . . . . . . . . . 17

Part II. Enforcement Practice. . . . . . . . . . . . . . . . . . . . . 151

No previous publications have been reprinted in the book but some

Responsibility Today: Essays in Memory of Oscar Schachter 49

x The Power and Purpose of International Law

AJIL American Journal of International Law

The Power and Purpose of International Law 1

[t]he international lawyer’s task is like that of a lawyer called

In other words, Goldsmith and Posner claim that international law

2 The Power and Purpose of International Law

“we cannot condemn a state merely for violating international law.”10

The Power and Purpose of International Law 3

4 The Power and Purpose of International Law

Goldsmith and Posner apparently share Morgenthau’s narrow view

The Power and Purpose of International Law 5

6 The Power and Purpose of International Law

to Morgenthau and, even more, to the realist diplomat George Kennan, in

The Power and Purpose of International Law 7

More or less consciously, more or less willingly, all governments

8 The Power and Purpose of International Law

cannot be demonstrated by reference to any other validating

As Grotius, Kelsen, Lauterpacht, Henkin, Franck, and others indicate,

The Power and Purpose of International Law 9

Nevertheless, consent and sanctions are vital aspects of interna-

10 The Power and Purpose of International Law

required not as the normal motive for obedience, but as the

The Power and Purpose of International Law 11

not be possible to claim that the community believes in the authority of

12 The Power and Purpose of International Law

to fill the gap in intercommunal relations left by the declining earthly

considerably shift lawmaking from states to international

The Power and Purpose of International Law 13

With the growth of courts, international law is becoming more

14 The Power and Purpose of International Law

attacked by postmodern critics for failing to be inclusive and for perpetu-

The inadequacies of globalisation, the paucity of its philo-

The Power and Purpose of International Law 15

If the past gives any indication of the future, Judge Weeramantry

16 The Power and Purpose of International Law

I n a radical departure from other communities of the ancient world,

The Power and Purpose of International Law 19

20 The Power and Purpose of International Law

I. Just War for Peace

Peace should be the object of your desire; war should be waged

The Power and Purpose of International Law 21

Within this broader category of fighting to restore peace, Augustine included

22 The Power and Purpose of International Law

The Power and Purpose of International Law 23

24 The Power and Purpose of International Law

absolve the party of any wrongdoing in waging an objectively unjust war.27

[i]t is true, the prince is still considered as bound to examine

The Power and Purpose of International Law 25

Hugo Grotius, the renowned Dutch scholar and diplomat, in con-

II. Law over Nations