International law is the most rarefied of social sciences. Even so, it has scarcely any sense of its intellectual history. International law is finely articulated, oblique in its analysis, and respectful of its position as an arbiter of national competition and conflict. But aside from the casual citation to an ancient arbitration or the consultation of a famous publicist for an essential principle, little credence has been given to its historical development as either a collection of doctrines or a learned study. This article offers both an intellectual history of an international law doctrine and a tour d’horizon of the nature of discourse in our discipline.

International agreements apparently treat an unauthorized threat of force and the actual use of force as equally grave, yet distinct, wrongs. If, however, formal legal appraisals of specific situations are taken as indicators of existing practice, it seems that the threat of force has no separate significance, as it were, beyond the use of force: either it precedes actual violence and therefore is eclipsed in legal appraisals by the latter, or it is not followed by the use of force and thus ceases to demand prompt legal consideration. Such an attitude toward the question of threat implicitly acknowledges that threats of force are a ubiquitous element of international relations and that they may not be detrimental, indeed may even be beneficial, to the preservation of international order. On the other hand, the attitude of apparent tolerance of threats of force ignores that they produce consequences whether or not they are followed by resort to force and for this reason need to be scrutinized more closely and their lawfulness evaluated. This situation reflects a dissonance between the absolutist aspiration of the international principle prohibiting the threat of force and the complex, often ambiguous and rather pragmatic code applied in international practice.

On October 22, 1981, the Governments of Iceland and Norway approved an agreement for the joint management of the resources of the Jan Mayen continental shelf. Incorporating the recommendations of a three-member conciliation commission, the Agreement obviated the need to draw a line demarcating the right to exploit the nonliving resources in the disputed area. The proliferation of boundary disputes during the intervening 7 years makes this an appropriate time to look at the potential benefits of using this approach in other maritime boundary disputes. After reviewing the stages in the resolution of the Jan Mayen dispute and the terms of the Agreement, this essay will discuss other situations in which the joint development approach has been used, the factors affecting its success and some examples of current delimitation disputes where this approach may be applicable.

The surprising thing about international law is that nations ever obey its strictures or carry out its mandates. This observation is made not to register optimism that the half-empty glass is also half full, but to draw attention to a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states. That they should do so is much more interesting than, say, the fact that most citizens usually obey their nation’s laws, because the international system is organized in a voluntarist fashion, supported by so little coercive authority. This unenforced rule system can obligate states to profess, if not always to manifest, a significant level of day-to-day compliance even, at times, when that is not in their short-term self-interest. The element of paradox attracts our attention and challenges us to investigate it, perhaps in the hope of discovering a theory that can illuminate more generally the occurrence of voluntary normative compliance and even yield a prescription for enhancing aspects of world order.

On October 7, 1985, the Achille Lauro, an Italian-flag cruise ship, was seized while sailing from Alexandria to Port Said. The hijackers, members of the Palestine Liberation Front (PLF), a faction of the Palestine Liberation Organization (PLO), had boarded the ship in Genoa, posing as tourists. They held the ship’s crew and passengers hostage, and threatened to kill the passengers unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if a rescue mission was attempted. When their demands had not been met by the following afternoon, the hijackers shot Leon Klinghoffer, a Jew of U.S. nationality who was partly paralyzed and in a wheelchair, and threw his body and wheelchair overboard. The United States characterized the seizure as piracy, a position that has been supported by some commentators and opposed by others.

The January 1959 issue of this Journal carried the famous proposal by Myres S. McDougal and Harold D. Lasswell to build a world public order based on human dignity that would save the world from nuclear Armageddon and protect democratic values. The authors expressed the belief that the democratic countries were responding ineffectively to Marxist-Leninist expansionism because they appealed to international law rules and principles that were asserted or assumed to be universal but, in fact, did not have universal effectiveness. Two dangers existed, therefore: the universal triumph of totalitarianism or nuclear war between blocs led by the United States and the Soviet Union. The proposed world public order would make it possible to escape this horrendous dilemma.

The distinction found in certain cases between “self-executing” and “non-self-executing” treaties is a judicially invented notion that is patently inconsistent with express language in the Constitution affirming that “all Treaties … shall be the supreme Law of the Land.” Indeed, such a distinction may involve the most glaring of attempts to deviate from the specific text of the Constitution. For some 40 years after the formation of the Constitution, President George Washington’s recognition in 1796 that “every Treaty [properly ratified]… thenceforward becomes the law of the land” was widely shared. Yet today not all treaties are thought to be capable of operating as supreme federal law of their own effect.

The October 1987 issue of the Journal contains an article written by Hans-Peter Gasser, the Legal Adviser to the Directorate of the International Committee of the Red Cross (ICRC), on the U.S. decision not to ratify Protocol I (on international armed conflicts) to the 1949 Geneva Conventions on the Protection of War Victims. Unfortunately, the Journal did not include any response by the administration, but only the President’s necessarily brief letter of transmittal to the Senate of January 18, 1987, recommending advice and consent to ratification of Protocol II (on noninternational conflicts). The President’s letter of transmittal was not intended to be an exhaustive statement of the U.S. objections to Protocol I, nor does it purport to be such.

It seems to me, with all respect, that the Comment by Professor Dorsey exhibits a minimum understanding both of the contemporary world and of the theory and intellectual procedures recommended by Harold Lasswell and his associates for inquiry about the role of international law in that world. Certainly Professor Dorsey and Lasswell and associates observe very different worlds, have very different conceptions of international law, and recommend very different methods of inquiry. It is not clear that Professor Dorsey is constrained by empirical observation and modern scientific methods of inquiry.

It was with great surprise and some disappointment that I took note in the July 1987 issue of the American Journal of International Law of the decision by the American Society of International Law to divest its investment portfolio of stocks in all corporations with direct investments in South Africa. Despite the sentiments that may have motivated this decision, many of which are reflected in the Note of Henry J. Richardson III, there were no doubt many arguments voiced to the contrary at the meeting of the Society when the matter was discussed.

Soviet positions on international law and organizations are changing sharply under the influence of the policy of perestroika (restructuring) introduced by General Secretary M. S. Gorbachev. This development was brought to the attention of the American Society of International Law at its Annual Meeting in April 1988 by the noted Soviet international lawyer, G. I. Tunkin.

I am pleased to have been given an opportunity to respond to Professor Barrie’s arguments that the decision of the Executive Council of the Society to divest its portfolio of stocks in all corporations with investments in South Africa was both substantively misguided and legally improper.