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OF LEGAL NORMS AND RESTRAINTS



International law, based on its European origins, has continued to develop in scope and precision during the twentieth century despite the occurrence of two great world wars. An important part of our contemporary law has arisen from the customary practices of states over many decades and centuries. In many cases, governments have assembled to translate customary practices into multilat­eral treaties or codes, thus setting custom in a more precise framework of written rules. International and domestic tribunals have handled thousands of cases involving conflicts between citizens and governments of diverse states, and their decisions, although not strictly binding on subsequent cases, have established many impor­tant principles and precedents considered to be part of the modern law of na­tions. Finally, states have concluded thousands of bilateral and multilateral treaties establishing new mutual rights and obligations as well as restrictions on what governments may or may not do in their external relations. Unlike the customary sources of international law, treaties can be drafted, changed, and adapted to particular needs and circumstances and can, therefore, establish immediately new principles, rights, and obligations to regulate the relations between states. For example, since there is no precedent or precise analogy to the problems presented by space exploration, the law covering this area must be created by governments through negotiated treaties. Treaties cannot establish new rights or obligations for those states that are not parties to them, whereas customary rules of law can be invoked by all states.

From these sources has grown a modern international law that displays, through custom and precedent, continuity with the past but is infinitely more complex than it was in the past. It seeks to regulate, stabilize, and make predict­able types and quantities of commercial and political transactions that are largely unprecedented. In addition, the new law reflects contemporary ethical values that condemn the use of force as an instrument of inducement. The nineteenth-century attitude and doctrine toward war as an instrument of policy to be un­leashed by any government solely at its own discretion has been replaced by prohibitions in the United Nations Charter against recourse of force and even the threat to use force, except in cases of self-defense or in conformity to a collective decision. The old laws of neutrality have been superseded by the obligation of all states to assist victims of aggression. As an outcome of the Nuremberg trials of Nazi war criminals and the Genocide Convention, personal criminal liability can be imposed against those who launch wars of aggression. In short, as Quincy Wright points out, under the new international law, war is no longer viewed as a duel between legally equal belligerents to be regulated only in its scope, but rather as a crime against all nations that must be prevented.12

12 Wright, The Role of International Law in the Elimination of War, pp. 27-28.

366 Law and World Opinion in Explanations of Foreign Policy

It would be difficult to deny the existence of a comprehensive set of rules, rights, obligations, and legal doctrines in numerous treaties, in customs and codes, and in the thousands of decisions of national and international tribu­nals. These are designed to define rights, limit a state's freedom of action, and prescribe rules of conduct for all types of transactions—technical, commer­cial, diplomatic, and military. Before we investigate the extent to which these rules and customs effectively restrain action—or in some cases, compel states to take certain actions—it is necessary to point out some of the shortcomings of modern international law, faults found in the body of norms rather than in the actions of governments.

In the first place, no legal norm is so precise as to convey absolutely clear meaning to all people. Although that part of international law based on custom may be more enduring because it reflects common usage and needs,13 some aspects of it are also vague and imprecise, leaving each state to interpret the custom according to its own interests. Treaties can be formulated more precisely, but these, too, may contain phrases too vague to guide behavior in predictable fashion. Many provisions of the United Nations Charter have been interpreted in different ways by states. Until the day when all conflicts arising out of different interpretations of the law are submitted to impartial tribunals, each government—as do private citizens—will usually construe the meaning of treaties and conventions in such a way as to favor its own political objec­tives.

Second, legal norms, when they are not legislated by a central political body, tend to change very slowly, with the result that some rules of international law become obsolete before governments acknowledge their obsolescence. Al­though some governments may feel strong pressures to violate obsolete and unjust norms, their actions are violations nevertheless until a majority of states in the system agree, through practice or conventions, upon new norms. Is it valid, for example, to criticize or make claims against the Allies' persistent viola­tions of the law of neutrality during World War II when the kind of warfare made possible by new industrial technology required vast sources of raw materi­als, which the neutrals supplied to the Axis powers? The laws of neutrality were drafted in an age of relative economic independence, a condition that no longer prevails. Can the killing of civilians be prevented, as required by the laws of land and naval warfare, when antagonists use nuclear-tipped missiles, long-range artillery, or conventional heavy bombs, or where military and civilian targets are inseparable? The continuing and tortuous debates in the Law of the Sea conferences illustrate the great difficulties involved in trying to fashion a consensus among more than 150 states. Every state agrees there is a problem— the inadequacy of old rules governing maritime matters—but a solution is difficult

13 De Visscher, Theory and Reality in Public International Law, p. 155.

367 Law and World Opinion in Explanations of Foreign Policy

to arrange. On the other hand, if changing conditions excuse violations of rules and doctrines, very few norms would be entirely effective, and little predictability would be possible in the relations among states.

Developments in technology require all sorts of new international re­gimes to regulate the actions and transactions of states and private bodies. Among the problems being grappled with today are those relating to communica­tion. As direct satellite television broadcasting becomes available, what rules should be developed so that two possibly incompatible principles can be ob­served: free flow of information versus sovereignty? Should the major industrial countries, because they own the technology, be able to broadcast what they wish directly to the citizens of other countries? Or should governments have the right to screen such broadcasts, to black out those programs they judge to be undesirable for their citizens? Such questions are almost impossible to resolve in a manner mutually satisfying to more than 150 governments, yet these are the sorts of issues for which new rules have to be devised. Unlike the nineteenth century when the European countries simply imposed their legal norms on colonial peoples, those who today develop and own technology are finding it increasingly difficult to develop rules which in any way imply inequality between the industrial and developing countries.

We should not place too much emphasis on these inadequacies of the body of legal norms, for it might lead us to conclude that the ineffectiveness of some legal restraints and limitations arises from deficiencies in the law itself. Nor should we assume that the behavior of governments in this respect will change simply because norms are brought up to date or made more precise. Despite the existence of hundreds of arbitration treaties between states, the League of Nations Convenant, the Geneva Protocol of 1924, the Treaty for the Renunciation of War (The Kellogg-Briand Treaty, 1928), the Anti-War Treaty of Rio de Janeiro in 1933, and the United Nations Charter, the use of force has not been effectively regulated yet. Some of these treaties and charters are not entirely clear in their details, but this should not suggest that more and better treaties or international institutions will solve the problem of war.

/ More important is that relatively few disputes and conflicts of objectives arise

I out of differing interpretations of law. If international politics were defined only

у as the problems and processes of adjusting conflicts arising from differing con-

l ceptions of legal rights and duties, we should be concerned with studying ways

n to improve the content of the law. But since international politics involve, in

rf addition to collaborative and competitive relationships, the problems and pro-

)n cesses of adjusting conflicts arising from more or less incompatible collective

_ objectives, then no matter how clear, precise, and logical the law is, it would

alt not be observed in all instances. The body of the law is far from perfect, but

failure to observe legal norms does not necessarily result from imperfections of the law.

 




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