Robert F. Turner*
What do we mean when we inquire whether International Law is law?
Over the centuries the term "law" has been used to identify
some quite different concepts. The Old Testament tells us that "law"
is "the will of God" -- as in the Ten Commandments.
Beginning about three centuries ago, writers like Thomas Hobbes
argued that "law" was but a command of a sovereign enforced
by a sanction. In this tradition, more than a century ago John Austin
wrote in The Province of Jurisprudence Determined that:
"[T]he law obtaining between nations is not positive law:
for every positive law is set by a given sovereign to a person
or persons in a state of subjection to its author."
By this definition, of course, "international law" is
admittedly not "law." Indeed, such a narrow definition
would exclude much of what we Americans regard as "law"
in the late 20th Century. It would certainly exclude, for example,
the U.S. Constitution and our Bill of Rights -- which are designed
in no small part to constrain government power rather than to issue
commands to individual subjects or citizens.
Clearly, any archaic definition that fails to include any of the
three categories which our Founding Fathers declared would be the
"supreme law of the land" within the United States is
not very useful for this afternoons inquiry.
What I would submit is far more indicative of the perceived binding
nature of International Law is that when States do find it in their
interest to violate International Law, they never seek to justify
their behavior by asserting that the rules dont matter or
that International Law is not legally binding and may be disregarded
- When Hitler invaded Poland, and Kim II Sung invaded
South Korea, they issued careful statements alleging that they
were acting in "self-defense."
- When the Soviet Union invaded Hungary, Czechoslovakia,
and Afghanistan, it alleged that it had been "invited"
in: and Leninist International Law experts also crafted the so-called
"Brezhnev Doctrine" to provide additional legal facade
to their aggression.(1)
- In 1960, North Vietnam engineered the creation
of a "National Liberation Front" in South Vietnam to
conceal its efforts to overthrow its neighbor -- a highly successful
strategy that persuaded many of Americans most respected
international lawyers to conclude that Hanoi was innocent of aggression
for many ears thereafter.(2)
- Colonel Khadaffi routinely denied any knowledge
of the terrorist attacks he had ordered; the Nicaraguan Sandinistas
swore to the World Court that they had not given any support to
guerrillas in neighboring El Salvador(3); and Saddam Husseins
spokesmen raised a panoply of alleged legal defenses for the invasion
of Kuwait -- ranging from the absence of agreed-upon borders to
alleged Kuwaiti theft of Iraqi oil deposits.
International Law is "Law"
under the U.S. Constitution.
Let me now turn to my second point -- that the United States Constitution
clearly establishes that international treaties are binding "law."
Few issues were debated at greater length during the Federal Convention
of 1787 than the allocation of the power to bind the Nation to solemn
commitments with foreign States. After more than three months of
deliberations during which treaties were discussed on scores of
occasions, concern over the magnitude of this power led the Framers
to require the consent of two-thirds of the Senate before the President
could ratify a treaty.
If treaties did not incur solemn legal obligations for the nation,
and could simply be ignored when inconvenient, there would have
been little reason for the framers to include this quite anti-democratic
provision in the new Constitution -- permitting one-third-plus-one
of the Senate to block the will of the majority.
There can be no doubt that the constitutional Framers viewed treaty
obligations as binding "law." Indeed, it was because treaties
were to be "law" that James Wilson, of Pennsylvania, proposed
on Friday, September 7, 1787, that the President also be required
to obtain the consent of the House of Representatives before ratifying
a treaty. Roger Sherman of Connecticut was one of several delegates
to argue that treaties required a degree of secrecy that would be
incompatible with a large deliberative assembly like the House of
Representatives, and Wilsons motion failed by a vote of 10
As finally approved, Article 6, paragraph 2, of the Constitution
provides in part that :
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall
be the supreme Law of the Land..."
Admittedly, the constitutional text does not expressly establish
a hierarchy among the three types of "supreme law of the land."
Clearly, a statute of Congress was to be inferior to the Constitution
itself, but how did Treaties fit into the picture.
Certainly the most authoritative public exposition of the treaty
power prior to ratification of the Constitution was John Jays
Federalist Essay No. 64, in which our most experienced diplomat
responded to critics of the new Constitution who argued "that
treaties, like acts of assembly, should be repealable at pleasure"
rather than being designated "supreme laws of the land."
Noting that other countries considered Treaties to be absolutely
binding legal obligations, Jay reasoned, and I quote:
This idea [that treaties should be repealable at pleasure] seems
to be new and peculiar to this country, but new errors as well
as new truths often appear. These gentlemen would do well to reflect
that ... it would be impossible to find a nation who would make
any bargain with us, which should be binding on them absolutely,
but on us only so long and so far as we may think proper to be
bound by it....The proposed Constitution...has not in the least
extended the obligation of treaties. They are just as binding,
and just as far beyond the lawful reach of legislative acts now,
as they will be at any future period, or under any form of government.
The Problem of Sanctions
First of all, I would suggest that "sanctions" and "enforcement
mechanisms" have more to do with the question of whether law
is effective than with whether it is law. Let me give you a couple
As most of you probably know, on April 27, 1861, President Lincoln
secretly authorized the Army to suspend the writ of habeas corpus.
When John Merryman, a Maryland state legislator, was arrested by
the Army and imprisoned at Ft. McHenry, Chief Justice of the United
States Roger Taney promptly issued a writ of habeas corpus ordering
the Commanding General at Ft. McHenry to produce Merryman the following
day. But the General elected instead to obey his Commander in Chief,
Chief Justice Taney declared that the President had acted unconstitutionally
and that Merryman should be released. He noted that his Marshal
had authority to summon the posse comitatus to assist in seizing
the General and bringing him before the Court on a contempt charge;
but he acknowledged that the General commanded a more powerful force
and could successfully resist capture. The Chief Justice concluded
his ruling in Ex parte Merryman with these words: "I have exercised
all the power which the constitution and laws confer upon me, but
that power has been resisted by a force too strong for me to overcome."
Does it follow that the U.S. Constitution is not law because there
are instances in which its provisions can not be enforced?
Consider for a moment what might have happened in 1974 if President
Nixon had defied the Supreme Courts order in United States
v. Nixon and simply asserted that the tapes had already been erased
and thus could not be produced? Did the Court have the coercive
power to compel compliance by the President with its order? Could
it have sent a Marshal over to the White House gate armed with a
search warrant? It would not have been a pretty sight.
Fortunately, we need not get bogged down on the question of whether
unenforceable law is really law, because the reality is that International
Law is regularly enforced through a wide-range of quite effective
sanctions. Our time is limited, so let me just touch on a few examples
of ways in which International Law is enforced:
- Under Chapter 7 of the UN Charter, the Security
Council is expressly empowered in the event of an act of aggression
or threat to the peace to take appropriate action "to maintain
or restore international peace and security." While largely
ineffective during the Cold War, North Korea and Iraq can confirm
that the system can work. Countless other potential aggressors
may also have been deterred.
- Dont forget that for more than 50 years
there has been an International Court of Justice, in The Hague,
which I might add since February has had a brilliant American
national as its President. The ICJ -- which in 1980 unanimously
ordered Iran to return the American diplomats it was holding hostage
-- currently is considering nine cases.
- Article 94 of the Charter requires UN Members
to "comply with the decisions of the International Court
of Justice" in any case to which they are a party, and empowers
the Security Council to enforce such decisions.
- In 1993 the Security Council established the
International Criminal Tribunal for the former Yugoslavia, to
prosecute persons responsible for serious violations of international
humanitarian law. As of July, the Tribunal had indicted 77 individuals
and 10 were in custody awaiting trial. Evidence had been taken
from nearly 200 witnesses, and the first two trials had led to
convictions and lengthy prison sentences.
- International Law is routinely enforced by individual
States through their domestic laws, courts, and police forces.
Thus Article I, Section 8, of the U.S. Constitution empowers Congress
to "define and punish .... offenses against the Law of Nations."
- Ultimately, a fundamental
reason International Law is effective is because States perceive
it to be in their self-interest to have legal rules and to be
perceived by other States as a law-abiding member of the International
Let me conclude by addressing another question. Does it really
matter whether we view International Law as being really "law"?
It does matter, and I suggest it matters tremendously. To think
otherwise is to misunderstand the power of the Rule of Law in promoting
human freedom and world peace.
In June of 1993, at another program sponsored by the ABA Standing
Committee, I recall hearing Ambassador Max Kampelman discussing
Gunnar Myrdals distinction between the "is" and
the "ought" in political institutions and societies. Max
observed that agreeing upon the "ought" -- even if we
sometimes fail to achieve that standard -- is a terribly important
In retrospect, getting the Soviet Union to accept Basket Three
in the Helsinki Process in 1975 was a grand accomplishment. It took
a few more years before the Iron Curtain and the Berlin Wall crumbled,
but once Moscow had acknowledged that individuals had rights which
were beyond the reach of governments a major bridge had been crossed
over which they were never able to retreat.
Ideas have consequences. It is tremendously important to establish
as legally binding rules -- obligatory upon all nations, and enforceable
by a range of sanctions in many if not most cases -- certain key
- That aggressive war is a crime against all people
and its perpetrators are subject to prosecution and punishment;
- That sovereign power ultimately resides not in
kings, queens, and dictators, but in the will of the people, authoritatively
expressed through free and democratic elections;
- That individuals have certain fundamental rights
that can not be denied them even by a majority of the people.
- Thanks to International Law, each of these "oughts"
is now becoming firmly established as a legally binding principle
throughout much of the world.
*Professor Robert Turner is the Associate Director of the Center
for National Security Law at the University of Virginia School of
Law, from which he holds both professional and academic doctorates.
A veteran of two Army tours in Vietnam and former Public Affairs
Fellow at Stanfords Hoover Institution, he spent five years
as national security adviser to a member of the Senate Foreign Relations
Committee and has also served as Principal Deputy Assistant Secretary
of State for Legislative Affairs and as the first President of the
U.S. Institute of Peace. During 1994-95 he held the Charles H. Stockton
Chair of International Law at the U.S. Naval War College, and he
has also been a Distinguished Lecturer at the U.S. Military Academy
at West Point. The author or editor of more than a dozen books and
numerous articles, he has testified before more than a dozen committees
- See John Norton Moore & Robert F. Turner,
International Law and the Brezhnev Doctrine (1987).
- See Robert F. Turner, Vietnamese Communism:
Its Origins and Development (1975).
- See Robert F. Turner, Nicarugua v. United States:
A Look at the Facts (1987).