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The Search for the Foundation of International Law

Natural Law: a body of law determined by an innate human sense of justice
Webster's Dictionary

Introduction

The search for the foundation of international law (1) is really a search for its meaning and function in history. Traditionally, natural law jurisprudence, Judaeo-Christian edicts and humanitarian values have had the strongest historical influence on the international system that was unified in medieval Europe by Roman and canon law.(2) This influence took the form of normative restrictions on the arbitrary will of sovereign monarchs that prevailed until the demise of a culturally united Christian Europe in the seventeenth century.(3) Natural law principles were revived three hundred years later, in 1945, in the United Nations Charter.(4) But although this revival gave rise to international treaties and conventions against injustice and crimes against humanity,(5) natural law had long been considered an intellectual anachronism. Initially expressed in classical and Judaeo-Christian teachings, and later defined in medieval, Renaissance and, finally, Enlightenment thought,(6) natural law was to find itself with little or no intellectual or moral authority in the modern world. In the absence of a universally accepted conception of natural law and human rights, international law, as it developed after the Peace of Westphalia in 1648, has been without any effective legitimate authority over independent sovereign states.(7) Since the European Enlightenment of the eighteenth century legal theory has been unable to supply or make good this deficit, despite (or perhaps because of) its move towards pragmatism in the twentieth century.(8) Organized into three parts this paper will re-evaluate critically both the historical and theoretical foundations of international law in order to consider how natural law and universal human rights can acquire a new and effective legitimacy and a sound philosophical coherence.

Part One will explain how the idea of natural law jurisprudence influenced the development of classical and medieval conceptions of the ius gentium or 'law of nations'. It will also explain how the religious and humanistic natural law of Aquinas, Grotius and Roman Stoicism was eventually replaced by a "naturalistic" natural law theory that was derived from an Enlightenment concept of the "state of nature". Paradoxically, a rational natural law theory – ie., the "rights of man" - emerged at a time when the nation-state became the highest source of sovereignty, where no higher law could be appealed to with any real authority. In Part Two it will be argued that an irreconcilable contradiction in Enlightenment theory and practice emerged between universal inalienable human rights and a 'particular' state sovereignty, tending always to give priority to national interests. Two hundred years later, international law scholars are still struggling to resolve the same contradiction in a system that, on the one hand, validates state sovereignty and yet, on the other, endorses basic inalienable human rights. In this part it will be claimed that the almost "rightless"(9) status of refugees in modern international law indicates clearly that there is no morally or philosophically consistent foundation to international law.(10) Part Three will explain why this tension and conflict in current international law has finally brought into question its real function and meaning. Many jurists are now rejecting the restrictive Westphalian model, pointing to the gains made by the international human rights movement. However, in the conclusion it will be claimed that the for juristic thought to move beyond the mindset of unreflective pragmatism and relativism, the idea of state sovereignty as the highest source of legitimacy and authority (even if based on the "will of the people") needs to be clearly refuted – juridically, philosophically and morally. The overall purpose of this paper, then, will be to show that without a reformulated natural law theory and its closely-argued, rigorous philosophical defence, the science of modern jurisprudence will not be able to move beyond the limitations of the statist paradigm to its true objective: a Law of Nations respectful of the rights and independence of all nations, whilst guarding the rights and liberties of a universal humanity.

Part One: Natural Law

According to the influential jurist Lassa Oppenheim, international law is law between and not above states.(11) In contrast to municipal law, international law is not based on a "sovereign political authority" but on "common interests" – ie., law defined by customary rules developed over time by the common consent of states.(12) Oppenheim's state sovereignty approach to the study of international law is based upon a set of assumptions that increasingly appear erroneous. In a study of "sovereignty and rights in the Western legal tradition", Kenneth Pennington made the point that if individuals have inalienable rights, "we must believe the sovereignty of the state can be compromised."(13) History too puts a serious question mark against the positivist interpretation of international law as law between and not above states. As Pennington writes:

The horrors of the twentieth century have sparked a revival of interest in transcendental systems of law. Many modern jurists have argued for the superiority of norms over the positive law of the state. Today few jurists would hold, as no jurist of medieval and early modern Europe held, that positive law should reign supreme and untrammelled over all other norms.(14)

The physical and moral crisis of 'total war', which shattered the edifice of international order from 1939 to 1945, prompted a major re-evaluation and reconsideration of the nature of international law. This began with the International Military Tribunal's determination at Nuremberg that

Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced … individuals have international duties which transcend the national obligations of obedience imposed by the individual state.(15)

The Charter, which empowered the International Military Tribunal with jurisdiction over crimes against humanity and the judgments that were to follow, as Hersch Lauterpacht points out, "constitute[d] the recognition of fundamental human rights superior to the law of the sovereign state."(16) With more recent criminal cases before international tribunals and, eventually, the International Criminal Court,(17) Lauterpacht's observation, made in 1950, is even more compelling. Yet, the idea that individuals are not only answerable to a higher source of obligation but also have fundamental rights that transcend positive law, has been expressed in various ways throughout the course of Western civilization's history. Part One will attempt to clarify how natural law was developed in Western jurisprudence, theology and political theory. The claim will be made that despite the shift from a metaphysical and religious to a secular foundation, natural law, as an evolving discourse, exhibited several defining continuities.

The concept and philosophy of natural law, from the classical Athenian justification of the "rights of citizens"(18) to Ernst Bloch's defence of "human dignity" in the twentieth century,(19) expresses an idea of justice that transcends the state. In Stoic and Judaeo-Christian natural law, justice can never be subordinate to a plebicitory or representative democracy, nor to common social conventions, divine right of kings nor any other "legitimate" authority. While the foundations of natural law changed from "physical nature, to God, to reason, to human nature", what was essential to all natural law principles was the notion that law and justice are indivisible and universal.(20)

Influenced by the Greek Stoics, Roman lawyers articulated the view that universal reason was the foundation for the ius naturale (law of nature). Cicero, for example, understood the ius gentium (law of nations), which regulated contractual relations throughout the Empire, as being in harmony with the ius naturale.(21) And, of course, the development of the ius gentium by Roman magistrates also reflected the needs of an Empire that had to expand to maintain the pax Romana.(22) The peace that lasted for three hundred years, from the establishment of the Roman Empire under Augustus Caesar to the third century AD, was achieved in part by flexible and pragmatic application of the ius gentium.

Natural law, throughout the Byzantine Empire and Medieval Christian Europe, was to be re-invigorated and blended with a Christian theological worldview. During the later Middle Ages and Renaissance periods (1300 to 1600), independent states emerged as sovereign political entities in Europe.(23) The Church Canonists, during this time, argued that the power of kings should be in harmony with the common law of Europe (ius commune).(24) In Les Six Livres de la Republique, written in 1576, Bodin circumscribed the sovereign's will by appealing to natural law, divine law and the law common to all people (the ius gentium).(25)

The Thirty Years' War of the seventeenth century heralded the collapse of the supranational order of medieval internationalism. In this chaotic world, the state appeared to Hugo Grotius, the founder of modern international law,(26) to be the necessary embodiment of social order and civil society. The only candidate, as it were, left standing.(27) Clearly the murderous chaos of the Thirty Years' War motivated Grotius to consider how a universal natural law, reformulated and more embracing of secular and religious diversity, might provide the law of nations with an ethical foundation that would restore order to a European world at war.

It was the Peace of Westphalia in 1648 which marked the dawn of a new international system, where independent states would be allowed to pursue their interests on an equal juridical footing; and respect for the sovereignty of states was thought to be essential to maintain international order. The treaties of Westphalia were of immense historical importance because they signified the transformation of Europe into an international society of independent states.(28)

As the Church lost power in Europe, the doctrine of natural law underwent a quiet transformation. This was the age of Enlightenment when the grande bourgeoisie, at the beginning of the epochal movement that would lead to the French Revolution, challenged the feudal state.(29) The monarchs and aristocracies of the ancien regime, and their social, economic and political order, were overthrown by the rise of industrial and merchant capitalism. Hence, the secularisation and "naturalization" of natural law theory occurred almost simultaneously with the Scientific and Industrial Revolutions, the Enlightenment, the French Revolution and the establishment of representative democracy. Theorists of natural law in the seventeenth century, such as John Locke, had clearly separated the law of nature from theology.(30) This secularization of natural law was later to be expressed in the French Declaration of the Rights of Man and Citizen, and the American Declaration of Independence. This rational, secular expression of inalienable human rights, in theory and practice, would legitimize the overthrow the old elite in Europe. These were defining moments of the Enlightenment and the new order, where "the people" or the nation or parliamentary sovereignty replaced feudal power structures, giving rise to the liberal capitalist state. But, paradoxically, the Enlightenment's universal ideals of the Rights of Man were contained – and constrained – within the sovereign nation state. The French Declaration of the Rights of Man and Citizen made clear that "the source of sovereignty resides essentially in the nation; no group, no individual may exercise authority not emanating expressly therefrom."(31) The absolutist tendency of national sovereignty thus gradually pervaded European thought. The important point, then, is that natural law was no longer founded on universal foundations as it had been in classical Greece and Rome and in Medieval Europe. The Rights of Man were to become synonymous with the will of the people and the nation state. The universal republic (civitas maxima) was a fiction, the new fathers of international law claimed, an irrelevant abstraction, with a long and venerable tradition but no longer required.(32) The medieval synthesis of reason and revelation had been eventually displaced by a reason without revelation by the philosophes of the Enlightenment, who dismissed the idea that any authority over autonomous sovereign states was legitimate or needed.

Part two: International Law and the Crisis of Modernity

The separation of the "is" and the "ought" in theory and practice

The secular conception of international law was originally conceived as a natural law theory minus its Judaeo-Christian and Stoic universalism. The Christian substance of order was replaced by scholars such as Emmerich de Vattel(33) and Henry Wheaton(34) with another metaphysical foundation – the Enlightenment's 'state of nature.' Jurists like Vattel and Wheaton effectively rejected the theorization of international society.(35) Without a coherent conception of a substantive international order, Enlightenment jurists achieved what no theorist in classical or medieval Europe could have imagined: they removed from the law of nations any higher ideal of international justice. The positivists of the late nineteenth century and early twentieth century then went further and removed the 'law of nature' ideology from the discipline altogether. Charles De Visscher, in Theory and Reality in Public International Law, written in 1953, explained what occurred:

As a reaction against a deformed and sterile law of nature, the positivist theorists had the indisputable merit of offering a clear and generally true picture of international relations in the period of relative political stabilization that characterized the nineteenth century. Their irremissible weakness was their moral indifference to the human ends of power and their passive acceptance of the individualism of sovereignties. Cutting norms off from their deepest roots for the sole purpose of integrating them in a scientific but purely formal system, they constantly desiccated and impoverished them. (36)

International law thus lost a "mediating principle" between sovereignty and international society.(37) The demise of natural law, in conjunction with a general move towards a positivistic jurisprudence, gave rise to the sovereign-centric conception of international law. As De Visscher explains:

[The positivist school's] avowed aim was to exclude all political elements from the statements of legal norms, it adopted as the decisive criterion of the validity of such norms the manifestations of will proceeding from political authority. This attitude paralysed the critical spirit and too often froze the law in positions ill adapted to the profound changes demanded by the times.(38)

With the rise of totalitarian regimes the stability of the international system was, according to De Visscher, destroyed. The ethical bases of international law, largely ignored or taken for granted by positivists, were meanwhile eroded. For jurists to continue to ignore the "relationship between the social data and the rules designed to govern them" is to pretend that international law is somehow complete.(39) Its completeness, De Visscher suggested, is an ideal, "a potentiality, like the aspiration to international community in which it originates"(40) According to De Visscher international law could only be understood by situating it within the complex realities of international relations. Similarly, the classical realist school of International Relations (Carr, Morgenthau, Keenan) was also dismissive of the formalistic approach of the positivists.(41) However, like the positivists, the classical realists abandoned all notions of higher values. For the realist school of IR, international law was almost irrelevant as governments, to quote Morgenthau, only "use international law … for the promotion of their national interests, and to evade legal obligations which might be harmful to them."(42) The study of international law and international relations, though strangely never reconciled at the academic level (except, perhaps, by De Visscher, a judge of the International Court of Justice), essentially became the study of what "is". The moral ought was buried in theory and, as the international system collapsed, in practice. Whatever the conventional and emerging theories of international law and international relations were claiming as Europe entered into the second phase of another Thirty Years' War (1914-1945), the reality for people without a national legal identity, became, as George Steiner put it, a "Season in Hell."(43)

The Rightless

The consequence of the destruction of natural law, first in theory and then in practice (sometimes the other way around) was predictable. The 'rightless' status of people in many states during the twentieth century was directly attributable to the doctrine of state sovereignty, as no higher law transcending the nation could be appealed to with any real and convincing authority.

In The Origins of Totalitarianism, Hannah Arendt said that the plight of refugees during the inter-war period was due to the ideology of the nation-state.(44) The Enlightenment's Rights of Man were restricted, she says, to those who identified with the culturally homogenous state. The refugee, whether she be a "Jew or Trotskyite", was "singled out by the perpetrator as scum of the earth [and] was received as scum of the earth everywhere."(45) Arendt views the European refugee as having been, in a sense, thrown out of legality. The refugee crises of the 1930s were symptomatic of the "supremacy of the will of the state over all legal and abstract institutions":(46)

The more the numbers of the rightless people increased the greater became the temptation to pay less attention to the deeds of the persecuting governments than to the status of the persecuted.(47)

Arendt's simple point is that for the rightless, that is to say, refugees, stateless people and national minorities, the sovereign state offered no guarantee or protection of their human rights and dignity. The notion of inalienable rights – including the most fundamental right, the right to life – could easily be removed from ideological or alien "enemies within" by arbitrary fiat of the sovereign state:

The survivors of the extermination camps … could see that the abstract nakedness of being nothing but human was their greatest danger. Because of it they were regarded as savages and, afraid that they might end by being considered beasts, they insisted on their nationality, the last sign of their former citizenship, as their only remaining and recognised tie with humanity … If a human being loses his political status, he should, according to the implications of the inborn and inalienable rights of man, come under exactly the situation for which the declarations of such rights provided. Actually the opposite is the case.(48)

Arendt's assessment of the swift degeneration of European civilization into barbarism was explained thus: After the First World War the Versailles Treaty and the League of Nations failed to restrain the aggressive nationalism of competing national and imperialist identities. The hegemonic nation-state had become an end in itself, unrestrained by international law, enlightened reason or custom.(49) The liberal idea of progress, reason and the Rights of Man, though having classical and Judaeo-Christian universal origins, had become, since the French Revolution, inseparably linked to the national sovereign state. Fifty years after Arendt's Origins of Totalitarianism was first published, the status of the refugee under international law,(50) and in constitutional democratic nations, is still poorly defined, legally weak and uncertain.(51)

The similarity between the legal status of the German Jews in the 1930s and the situation of the refugee in international law was remarked upon by Arendt: effectively "no law exists for them."(52) The Nazis could only have murdered the Jews when they were stripped of all legal status. Only then could they be herded into ghettos, later into trucks and rail wagons and finally shot or gassed en masse in death camps. Only after a condition of "complete righlessness" was imposed on them was it possible for their right to life to be challenged.(53)

In the sombre assessment of George Steiner, the 'crisis of modernity' and the death of the idea of natural law in the Holocaust was so profound that it defied conventional understanding and sensibility. "When it turned on the Jew" Steiner wrote in 1971, "European civilization turned on the incarnation … of its own best hopes"(54)

The helplessness of international law in a time of war and Holocaust must be understood within a particular historical continuum – wherein the secularisation of European society, including its sources of law proved powerless against a nihilistic social and political order: fascism.(55) Steiner points out that the Holocaust "was far more than a political tactic, an eruption of lower middle-class malaise or a product of declining capitalism":

Today exactly two hundred years [after Voltaire and the Enlightenment] we find ourselves in a culture in which the methodical use of torture towards political ends is widely established. We come immediately after a stage of history in which millions of men, women, and children were made into ash. Currently, in different parts of the earth, communities are again being incinerated, tortured, deported. There is hardly a methodology of abjection and of pain which is not being applied to individuals and groups of human beings. That this should be the case is catastrophic. The wide scale reversion to torture and mass murder, the ubiquitous use of hunger and imprisonment as a political means, mark not only a crisis of culture but, quite conceivably an abandonment of the rational order of man.(56)

Part Three: The Human Rights Project in International Law after 1945

We the peoples of the United Nations … reaffirm a faith in fundamental human rights, in the dignity and worth of the human person … (57)

The Genocide Convention and the institutions of international law that currently exist to protect human rights, such as the International Criminal Court, can be seen to be a desperate attempt to curb the excesses of state absolutism and to prevent the negation of life such as occurred under the Nazis. It seems inconceivable that after Auschwitz and the Gulag, genocide has occurred again in Yugoslavia and Rwanda. The simple fact is that when people are rendered legally rightless by the State their only hope lies in international law to uphold their inalienable rights. Unfortunately, the institutions of international law are still politically and legally too feeble. The political will to strengthen international law has yet to develop. Nevertheless, the concept of universal human rights - which developed out of the crisis of the Second World War, the Nuremberg Judgment and post-Holocaust sensibility - has challenged the assumptions held by previous generations of international lawyers who understood the function of international law in quite different terms, eg the "balance of power" and diplomatic niceties in pursuit of "national interests."

According to De Visscher, the affirmation of core values within the community of nations must be incorporated into a juridical analysis. It is clear from the text of the Preamble to the United Charter what these core values are. The "authors of the Charter", De Visscher wrote, "saw in respect for [human rights] the 'matrix of the whole ideological structure of the new organization'":

This is plain from the Preamble, where the order of the text displays the sequence of ideas. The clause that proclaims the faith of the United Nations 'in fundamental human rights, in the dignity and worth of the human person' was quite deliberately inserted between that in which the peoples of the United Nations declare themselves 'determined to save succeeding generations from the scourge of war', and the paragraph asserting their resolution 'to establish conditions under which justice and respect from the obligations arising from treaties and other sources of international law can be maintained'. This was how eminent the place of the rights of man was fixed in the order of values. From the political point of view they stand forth as one of the guarantees of peace; from the legal, as a condition closely linked with respect for international law.(58)

Since De Visscher wrote his treatise in 1953, international human rights law has finally intruded into matters that were once the sole concern of the sovereign state. However, as Louis Henkin points out, the Charter Preamble "links human rights with human dignity and in effect justifies human rights as a state value by linking it to peace and security."(59) The Charter thus, on the one hand, seeks to "reaffirm a faith in fundamental human rights" and encourages "respect for human rights and for fundamental freedoms" (Article1), while on the other, it states that there shall be no intervention by the UN "in matters which are essentially within the domestic jurisdiction of any state" (Article 2, paragraph 7). To elevate human rights above the state by explicitly linking them to universal human dignity in the Preamble (ie., the 'worth of the human person') was a significant statement; the caveat, in Article 2 of the Charter, however, largely preserved the system.(60) This situation was clearly a contradiction. Human rights were universal (though not defined in the Charter) and yet state sovereignty was largely inviolable. Thus the same contradiction now becomes both united- and inter- national, in conflict with the universal.

The final part of this essay will consider the extent to which international human rights law since the Second World War has challenged traditional interpretations of international law and sovereignty, especially those interpretations based on a nation-state raison d'etre. In this development, a vision of international law based on universal human dignity is being deepened and legitimised. However, many regressive theories and attitudes still have currency.

What is 'sovereignty'?

The claim to "sovereignty" is the ultimate expression of authority and legitimacy. Viewed in this way, sovereignty is far from an abstraction. From medieval society through to the modern secular state, the concept of "sovereignty" has had an all-important influence on the development of international law. Yet its legitimate source and expression - that is, the sovereign ruler (the prince), the sovereign people, the sovereign state, nature or God - has undergone a dialectical development throughout history.(61)

Until the sixteenth century, juristic notions of sovereignty were interpreted in light of the 'common law' (ius commune) of Europe. Yet towards the end of the Renaissance, when religious and political divisions and the pursuit of territorial aggrandizement created international conflict,(62) the nature of sovereignty was to change. In a subtle investigation of the development of sovereignty in the course of Western political and legal history, FH Hinsley explains the transformation that took place in Europe:

When the idea of sovereignty was first formulated, in ancient Rome, it conspired with the continuation of the disorder and the need for government which had produced it … When this concept was next formulated, in Europe towards the close of the sixteenth century, its discovery was similarly a response to social disorder and political need ... But ultimately, if only when the thesis of popular sovereignty seemed everywhere to be driving theories of ruler sovereignty from the field, it was the doctrine of state sovereignty which prevailed.(63)

The schism that eventually developed between the monarchs and the Papacy was mainly caused by the secular sources of the sovereign's authority, which challenged canon law and ultimately deprived it of its power over the sovereign realm. By the seventeenth century, this schismatic tension led to the Reformation and, in effect, the demise of the Catholic legal system. After the Peace of Westphalia in 1648, the new hierarchy of order was based on the absolutization of the state, as Martti Koskenniemi writes:

The State – and a set of rights associated with it – [was] the professional a priori, the transcendental condition from which discourse proceed[ed] and [it] was not subject to discussion.(64)

From a human rights perspective this historical development is all-important because in the source of legitimate sovereignty lies the only possible repository and defence of human rights. When legitimate authority changes, so too does the source of rights.

Universal human rights, realism and 'national interests'

According to Fernando Teson, positivism still provides the most widely accepted epistemological position for the 'realist' theory of international legal obligation.(65) Modern positivists,(66) acutely aware of the challenge of post-modern jurisprudence represented by 'New Stream' scholars such as Martti Koskenniemi(67) and David Kennedy,(68) have had to elaborate their empirical methodology to accommodate such phenomena as non-derogable jus cogens(69) rules of international law. Philosophically, however, positivism has changed very little since its expression in the work of Vattel. Any challenge made to its presuppositions is met with specious and disdainful objections.(70) Positivism's focus of inquiry and basic premise is the will or consent of states.(71) Customs and treaties are freely entered into by states in pursuit of their national interest. Despite the assertion by legal positivists that their methodology was descriptive and 'objective', it was never value-free. Teson suggests that the underlying justification of the positivist model of international law is in fact a "realist" political theory, based on either a "Hobbesian position that nations are at (potential) war with each other" or on a constitutional democratic liberalism.(72) With the latter, legitimate legal and political authority resides in the 'people', represented by their government.(73) Teson argues that normative realism is at the heart of legal positivism and international relations theory. He thus exposes the other side of the realist position: national interests will inevitably, in practice - speciously or blatantly - override universal human rights claims.(74) The positivist understanding of international law implicitly negates universal human rights. It must, to be logically consistent, even find legitimacy in the "legalised illegalities" of the Nazis.(75) Nineteenth and early twentieth century positivists wrote at a time when the United Nations and its ancillary human rights organs were not yet established, and before peremptory norms – jus cogens – on genocide, apartheid and the use of force gained recognition. While the post-war development of international human rights has rendered the extreme positivist view anachronistic in modern juristic thinking, the status of refugees brings into focus the perennial tension between state sovereignty and human rights. For the concept of human dignity enshrined in the United Nations Charter to have universal application in international law it must surely extend to people anywhere who are known by the international community to be in a perilous position. For such a development to occur national sovereignty will need to be compromised. But would such a compromise contradict the underlying rationale of state sovereignty? Fernando Teson thinks not:

Just as domestically the majority may not oppress minorities, so internationally the majority may not direct its own government to ignore the rights of individuals in other states. It follows that a government's duty to maximise the preferences of the citizens it represents cannot be a paramount and exclusive international duty.(76)

A corollary of this, according to Teson, is that "only a theory of international morality firmly grounded on human rights can avoid the pitfalls of realism. By extension, human rights (and not the rights of states) provide the ethical foundation of international law."(77)

In the next section, we shall see why common law judges are beginning to harmonise their domestic legal systems to the corpus of international human rights law. As W Michael Reisman accurately points out:

The international human rights program is more than a piecemeal addition to the traditional corpus of international law, more than another chapter sandwiched into traditional textbooks of international law. By shifting the fulcrum of the system from the protection of sovereigns to the protection of people, it works qualitative changes in virtually every component.(78)

Deconstructing the legitimacy of state sovereignty: the interaction of the domestic and international legal orders

To say that no universal mechanism exists for the incorporation of international law into domestic legal systems is merely to state the legal and practical implications and limitations of an international system based on sovereign statehood that is more than 350 years old. Of course, how, eventually, international law is incorporated into domestic law is the prerogative of individual sovereign states. The dualist model, adopted in the United Kingdom, Canada, Australia and New Zealand, though not the United States,(79) generally requires a separate act of legislative will.(80) Nevertheless, the impact of international law on domestic common law, though by no means uniform, ultimately challenges international jurists as well as constitutional lawyers to harmonize the two orders. In an illuminating essay, Justice Michael Kirby, of Australia's High Court, claims that Commonwealth judges are increasingly obliged to take into account international human rights standards when formulating their decisions, particularly in cases where there is ambiguity or uncertainty in a statute or in the common law.(81) His interpretative approach to judicial trends will now be considered, along with one of the cases to which he refers.

The High Court of Australia's decision in Mabo v Queensland (No2),(82) according to Kirby, exemplifies the impact of the growing international human rights jurisprudence on domestic law. In this case one of the judges said that it would undermine the common law to entrench discriminatory principles that were against international law.(83) Since Australia has ratified the International Covenant on Civil and Political Rights and the first Optional Protocol, where individuals can seek remedies at the international level, these treaties must be seen to have a very real influence on the common law. In finding international law a "legitimate and important influence on the common law", Justice Brennan recommended that such an influence should be brought to bear "when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration."(84) In considering the precise nature of this development and how far it might go, Justice Kirby explains the competing considerations that Australian and other Commonwealth judges increasingly have to weigh up:

Cautiously, the courts of Australia, New Zealand and England have begun to edge towards a new technique appropriate to the coming millennium. The full evolution of the technique has not yet been achieved. All of the difficulties have not yet been perceived, still less overcome … But we must earn the privilege of being worthy inheritors of this tradition by the response we give to harmonising domestic and international law in a principled manner.(85)

What these developments indicate is simply that human rights norms, as defined by international law, may be interpreted by Commonwealth courts (despite constitutional constraints) as norms that have to be considered in certain circumstances, even though they are not directly incorporated into domestic law. In so doing, common law judges, whether they realise it or not, are deconstructing the legitimacy of state sovereignty as the expression of absolute legal and political authority. The fact that citizens in some states can now look to international law as a protector of their inalienable rights indicates that a new foundation for the law of nations is gaining legitimacy and philosophical respectability. Present day American 'New Haven' scholars such as Richard Falk, Brad Roth and W Michael Reisman have attempted to explain this new direction that the law of nations has taken. Their important contribution to international legal scholarship will conclude the final part of this paper.

New Haven's Global Human Rights: A 'Constitutive' Process

Before proceeding it needs to be remembered that New Haven scholars were not the first in international law studies to criticise positivism's statism argument. International legal scholarship and jurisprudence during the inter-war period and immediately after the Second World War was astir with critical re-evaluation. For example, in The Renascence of International Law, Manfred Nathan, writing in 1925, was pessimistic about the future of international law.(86) European relations were heading toward an "anarchic" and "purposeless" breakdown.(87) His stated motivation for writing was, he said, "to arouse matters which … are of immense importance to the welfare of the world and the advancement of humanity."(88) Just over twenty years later, in the fourth edition to The Law of Nations, JL Brierly argued that international law should help to realize a "saner international order."(89) His text exemplifies the modernist's rejection of positivism and absolute state sovereignty as being symptomatic of a self-destructive European nationalism.(90) Brierly claimed that the doctrine of the equality, independence and absolute sovereignty of states was based on the mistaken assumption that absolute legal and political authority should reside in one institution (ie., the state in this instance).(91)

Arguably the most significant jurisprudential move away from the statist paradigm in the twentieth century is to be found in the work of the American 'New Haven' scholars, who, after the Second World War, made an intellectual break with positivism and attempted to link human dignity to world public order.(92) Myres McDougal and Harold Lasswell established a new intellectual enterprise that was consistent with the post-war development of universal human rights. "Our overriding aim", they wrote in 1959,

is to clarify and aid in the implementation of a universal order of human dignity. We postulate this goal, deliberately leaving everyone free to justify it in terms of his preferred theological or philosophical tradition.(93)

What was distinct about the New Haven school was its unorthodox conception of the purpose, function and process of international law. The New Haven model of international law is an abstract process of authoritative decision-making informed by the values of human dignity and respect.(94) The original New Haven scholars inspired other theorists such as Richard Falk who has attempted to describe this current transitional phase.(95) Falk identifies the Nuremberg Judgment as the standard for the modern world order.(96)

In more recent attempts to re-define international law, scholars such as Gregory Fox and Brad Roth claim that the post-Cold War era has witnessed the legitimate involvement of international law in the process of global democratization.(97) The scholarship in this area suggests that there is an emerging principle of democratic entitlement in international law. Fox and Roth claim that the insertion of "participatory rights" in treaty law (Article 25, International Covenant on Civil and Political Rights) as well as the United Nation's involvement in election monitoring, may have given rise to a new standard in international law whereby legitimate authority resides in a liberal democratic government.(98) It is "the people's sovereignty rather than the sovereign's sovereignty" which should now be protected by international law.(99) However, few answers are provided by these scholars about the possible conflict of interests and priority between sovereignty (based on either the most enlightened prince or the most enlightened democratic majority) and universal human rights claims. That the absolute sovereign state is now being challenged, after 350 years, by a universal human rights movement is a phenomenon that demands far more serious and probing investigation – in legal, philosophical and historical terms.

Conclusion: a 'natural law' foundation

In the final section of this essay it was argued that when taken to its logical conclusion state sovereignty, as an expression of legal authority, tends to become absolute, thus compelling jurists to accept and even legitimize the marginalization of universal human rights when in conflict with national interests. However, many jurists now reject this tendency. Pointing to the gains made by the international human rights movement in developing the International Bill of Rights, a growing number of modern legal scholars find the notion of sovereign statehood, as an absolute value, to be untenable. If modern scholars are increasingly compelled to move away from a positivist/Westphalian conception of international law, what, then, will be the foundation of this law?

From the inception of the law of nations in antiquity, scholars and philosophers of law, while appealing to various metaphysical foundations – universal reason, God, or Nature – have attempted to dignify a universal law with an authority that transcends the sovereign state, pragmatic rationalizations, or "nationalized" justice. Often desperately invoked after periods of intense crisis and upheaval, then dusted off and re-formulated anew, is a principle of natural law whose origins go further back than the Nuremberg Judgment (1945) or the Peace of Westphalia (1648) or even the Justinian Code (AD 533). The genesis of a certain conception of international justice that has persisted throughout history and philosophy was expressed in appropriately lofty terms by Cicero:

True law is indeed right reason … It is not lawful to alter this law, to derogate from it or repeal it. Nor can we possibly be absolved from this law, either by the senate or the people; nor may we seek any other standard by which it may be explained or interpreted. It cannot be one law for Rome and another for Athens, one thing today and another tomorrow; but it is a law eternal and unchangeable for all people and in every age … (100)

Throughout history, jurists have emphatically restated this natural law principle. Bodin in 1576. Grotius, who, in 1625, appealed to reason (citing the work of Cicero) and revelation as sources of order, to halt the murderous chaos of the Thirty Years' War.(101)

With the collapse of the Westphalian system in the First World War, the ideals of natural law - though not explicitly included in the League of Nations Covenant - were required of nations aspiring to join the League. They were, despite the hypocrisy of the system, a direct intrusion into domestic jurisdiction. For example, under the Polish Minorities Treaty: "Polish nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment in law and in fact as the other Polish nationals."(102) Natural law was later explicitly stated at the Nuremberg Trials, in the Preamble to the United Nations Charter and in the Universal Declaration of Human Rights. So what, finally, is natural law? And how can it be made more relevant and effective in the modern world?

Broadly speaking natural law, as a theory of justice, expresses the belief in a source of obligation that is higher than the state. This was the basis on which the Nuremberg Judgment (or "Nuremberg promise", as Richard Falk described it) was founded. It is also the only real justification for the existence of the International Criminal Court. While the natural law project is far from complete, empirically and pragmatically it has undermined the logic of the Westphalian system. However, until genocide, and the preconditions for genocide, can be stopped by international law the project will remain 'aspirational'. International law has set certain standards about human dignity to which the domestic legal orders often do not satisfy. However, this is the inevitable tension between the moral "ought" and the factual "is", which the positivists and realists have ignored or derided. This tension – or the gap between the true substantive order (universal human dignity) and the empirical, pragmatic order (sovereign state interests) – is the only real, existential field of any genuine legal science. As Voegelin put in The Nature of the Law:

Legal rules are meant to be "norms", and their purpose with regard to social order is "normative". [The science of law] must try to isolate the normative component in the meaning of legal rules …. There is …. the tension in social order between standard and achievement, between the achievement and the potentiality of falling short of it, between a groping for the knowledge of order and the crystallization of that knowledge in articulate rules, between order as projected and the order as realised, between what ought to be and what is.(103)

Natural law is established and made effective in the ontological and juridical sense when people are freed from slavery, apartheid, degradation and persecution. It cannot be understood in merely abstract, formulaic legal terms. While the requirements for any effective and respected international law must, of course, have a pragmatic and utilitarian dimension, natural law has always insisted on a more generous moral intention; and so it must today. A universal vision of one humanity, in the age of globalisation, mass population displacement, global warming, ethnic cleansing and AIDS, is the moral dimension necessary for a natural law foundation of international law. But it can only be achieved by going beyond mere law, to the acceptance by all of us of our common humanity. Which is really to say that any workable Law of Nations will need both the moral "spirit" and legal "letter" of the law. Certainly, as Robert Kennedy, one-time US Attorney General, well understood, "you cannot legislate morality." And here also we can recall also the wisdom of another famous American, Abraham Lincoln, who knew that the final appeal to preserve our humanity in the real world of politics and law would require nothing less than an appeal to the "better angels of our nature".(104)

Melville A Thomas is Associate Lecturer, School of Indigenous Studies, The University of Western Australia. This paper was presented at the Diversity Dialogues Conference at the University of Western Australia, July 29 2004.

Endnotes

1. The term 'international law' has only been used since the mid-nineteenth century. However, international law as a phenomenon and body of rules has its genesis in Hellenic customary international law and the Roman ius gentium (law of nations). On this see C Phillipson The International Law and Custom of Ancient Greece and Rome, 2 volumes (London: Macmillan and Company, 1911). Before the nineteenth century the term used by publicists was 'law of nations' or ius gentium.
2. Known collectively as the ius commune or common law of Western Europe. On this see K Pennington The Prince and the Law 1200-1600: Sovereignty and Rights in the Western Legal Tradition (Berkley: University of California Press, 1993). See also HD Hazeltine 'Roman and Canon Law in the Middle Ages' in JR Tanner, CW Previte-Orton and ZN Brooke (eds) The Cambridge Medieval History Volume V 'Contest of Empire and Papacy' (Cambridge: Cambridge University Press, 1926) 697-702.
3. See AW Ward 'The Outbreak of the Thirty Years' War' in AW Ward, GW Prothero and S Leathes (eds) The Cambridge Modern History Volume IV 'The Thirty Years' War' (Cambridge: Cambridge University Press, 1907) 1-34. See also TL Knutsen A History of International Relations Theory (Manchester: Manchester University Press, 1992) 69-80.
4. The Charter's Preamble states: "We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm a faith in fundamental human rights, in the dignity and worth of the human person …" See Charles De Visscher's interpretation of the Preamble in Theory and Reality in Public International Law trans. PE Corbett (Princeton: Princeton University Press, 1957) 124-129. For a contrasting view see L Henkin International Law: Politics and Values (Dordrecht: Martinus Nijhoff Publishers, 1995) 174.
5. See, for example, The Convention on the Prevention and Elimination of the Crime of Genocide 1948, 78 UNTS 277.
6. On the history of natural law see E Bloch Natural Law and Human Dignity trans. DJ Schmidt (Massachusetts: The MIT Press, 1988) 10-16, 17-25, 45-47, 61-63.
7. N Polat 'International Law, the Inherent Instability of the International System' (1999) 19(1) Oxford Journal of Legal Studies 51, 53.
8. Koskenniemi argues that the modern lawyer "hold[s] a consensualist and non-consensualist view about sources [and] thinks of treaties, custom and general principles as binding because they express consent and because they express justice." See M Koskenniemi From Apology to Utopia, The Structure of International Legal Argument (Helsinki: Finnish Lawyers' Publishing Company, 1989) 139-140. See also David Kennedy's critique of the post-war generation of international law scholars in the United States in 'A New Stream of International Law Scholarship' in AJ Beck, AC Arend and RD Vander Lugt (eds) International Rules, Approaches from International Law and International Relations (Oxford: Oxford University Press, 1996) 231-235.
9. This expression was used by Hannah Arendt to describe the status of refugees in Europe during the 1930s. See H Arendt The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979) 292-293.
10 The intellectual confusion about the "foundation" of international law is exemplified in Louis Henkin's International Law: Politics and Values supra n 4, 99-108. The international system, he claims, is a states' system and yet, he points out, state values – "autonomy, inviolability, equality" - are increasingly being eroded by, amongst other things, the international human rights movement. The contradiction in theory and practice between a community of nations (interdependence) and independence (state sovereignty) has no coherent theoretical or jurisprudential construction in Henkin's work. The scholarship of critical theorists such as Martti Koskenniemi (supra n 8, 131-187), which exposes this unresolved contradiction in modern doctrine, is ignored.
11. L Oppenheim International Law: A Treatise, Vol I, 6th edition, H Lauterpacht (ed) (London: Longmans, 1947) 35.
12. Ibid, 11-12,16-18.
13. Pennington supra n 2, 288.
14. Ibid, 120 - 121.
15. Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, November 14 1945 - October 1 1946, Volume 1, 223 (emphasis added). See also the Texts for the Establishment of an International Military Tribunal and Annexed Charter. Article 6 defined three offences (a) Crimes against peace, (b) War crimes, and (c) Crimes against humanity.
16. H Lauterpacht International Law and Human Rights (London: Steven and Sons, 1950) 38. For similar interpretations of the Nuremberg judgment see also R Falk Revitalizing International Law (Ames: Iowa State University Press, 1989) 220-223; Pennington supra n 2, 289-290; and M Moskovitz Human Rights and World Order (New York: Oceana Publications, 1950) 164.
17. For a case decided by the Yugoslav Tribunal see Proctor v Anto Furundzija United Nations International Tribunal 10 December 1998 No. IT-95-17/I-T10 http://www.un.org/icty/furundzija/trial2/judgment/main.htm. For a commentary on the Hague Tribunal see G Robertson Crimes Against Humanity – The Struggle For Global Justice (Ringwood: Penguin Books, 2000) 285-323. The Hague Tribunals are ad hoc bodies. Both the Yugoslavian and Rwandan Tribunals are vested with 'the power to prosecute persons responsible for serious violations of international humanitarian law'. See also Slobodan Milosovic v The State of the Netherlands (2002) 41 ILM 86. The tribunal's web page is at: http://www.un.org/icty/. The Statute of the International Criminal Court Treaty was adopted in Rome on 17 July 1998. It entered into force on July 1 2002. Under Article 5, the jurisdiction of the court is limited to genocide (Article 6), crimes against humanity (Article 7), war crimes (Article 8) and aggression (Article 9). See also the International Criminal Court's web page at: http://www.icc-cpi.int/.
18. On this see AS Rosenbaum The Philosophy of Human Rights – International Perspectives (London: Greenwood Press, 1987) 9-10.
19. See Bloch supra n 6. According to V Geoghegan the object of Bloch's critique is dehumanisation. Hence "natural law cannot be outdated." See V Geoghegan Ernst Bloch (London: Routledge, 1996) 135.
20. See DJ Schmidt's introduction to E Bloch's Natural Law and Human Dignity ibid, xiv – xv.
21. See Cicero 'The Laws', extracts reprinted in MR Ishay The Human Rights Reader (New York: Routledge, 1997) 24-29. According to Cicero: "True law is indeed right reason, conformable to nature, pervading all things, constant, eternal … It is not lawful to alter this law, to derogate from it or repeal it. Nor can we possibly be absolved from this law, either by the Senate or the people; nor may we seek any other standard by which it may be explained or interpreted. It cannot be one law for Rome and another for Athens, one thing today and another tomorrow; but it is a law eternal and unchangeable for all people and in every age; it becomes as it were general master and governor, the one God of all, itself its own author, promulgator, and enforcer. He who does not share this sentiment flies from himself and nature as a man despised." The original source of this is not known. It has, according to Cowell, survived in secondary sources. He suggests that it is either from the Laws or the Commonwealth. I have cited it from FR Cowell Cicero and the Roman Republic Harmondsworth: Penguin Books, 1964) 354-355.
22. Maine claims that "[t]he Roman Law transformed a large number of the ideas of a great portion of the world; but its own transformation from a technical to a plastic system was one of the results of the so-called Roman Peace… during which the Law of Nations or Nature transformed itself into an ideal system specially distinguished by simplicity and symmetry … [It] became a standard for the legal institutions of all systems of jurisprudence." See H Maine International Law – A Series of Lectures Delivered Before The University of Cambridge 1887 (London: John Murray, 1888) 29-30.
23. See, generally, J Kirshner The Origins of the State in Italy 1300-1600 (Chicago: The University of Chicago Press, 1995); AG Smith The Emergence of a Nation State – The Commonwealth of England 1529-1660 (Harlow: Lonngman House, 1985) 18-26; JR Strayer On the Medieval Origins of the Modern State (Princeton: Princeton University Press, 1970) 9-10, 15-17, 23, 89-111.
24. Pennington supra n 2, 288.
25. Bodin's limit on sovereignty was expressed thus: "For if we say that to have absolute power is not to be subject to any law at all, no prince of this world will be sovereign, since every earthly prince is subject to the laws of God and of nature and to various human laws that are common to all people." See J Bodin On Sovereignty – Four Chapters From 'The Six Books of the Commonwealth' translated and edited by JH Franklin (Cambridge: Cambridge University Press, 1994) 10. See also JH Franklin 'Sovereignty and the Mixed Constitution: Bodin and His Critics' in JH Burns (ed) The Cambridge History of Political Thought 1450-1700 (Cambridge: Cambridge University Press, 1991) 298-328. According to some historians Bodin's theory of sovereignty was incoherent since "law is at once the will of the sovereign and an expression of eternal justice; yet the two may be in conflict." See especially GH Sabine and TL Thorson A History of Political Theory, 4th edition (Illinois: Dryden Press, 1973) 379-380.
26. For three hundred and fifty years jurists have referred to Hugo Grotius as the "Father of the law of nations" or the founder of international law. The writers listed below either say this or acknowledge the significance of his major work De Jure Belli Ac Pacis. From the eighteenth century see: CV Bynkershoek Quaestionum Juris Publici Libri Duo trans. T Frank (New York: Oceana Publications, 1930) Book I, Chapter I, Sections 2, 3, and 4, 15-17; E de Vattel The Law of Nations or the Principles of Natural Law Applied to the Conduct and the Affairs of Nations and Sovereigns trans. CG Fenwick (Washington: Carnegie, 1916) 'Preface', 4a-5a. From the ninteenth century see: H Wheaton Elements of International Law, 8th edition, RH Dana (ed) (Washington: Carnegie, 1936) 3-5; WE Hall A Treatise on International Law, 3rd edition (Oxford: Clarendon Press, 1890) n 3, 579. From the twentieth century see: J Westlake International Law (Cambridge: Cambridge University Press, 1910) 12-13; MN Nathan The Renascence of International Law (London: Sweet and Maxwell, 1925) 10; Oppenheim supra n 11, 5, 87; G Fenwick International Law, 3rd edition (New York: Appleton-Century Crofts, 1948) 51-53; JL Brierly The Law of Nations – An Introduction to the Law of Peace, 4th edition (Oxford: Clarendon Press, 1949) 28-35; R Falk Revitalizing International Law (Ames: Iowa State University Press, 1989) 19-20.
27. H Grotius De Jure Belli Ac Pacis, trans. FW Kelsey (Washington: Carnegie, 1925), Book II, Chapter V, Section XXIII, 253.
28. The peace treaties were signed at Munster and Osnabruck on October 2nd 1648 bringing an end to the Thirty Years' War in Europe. See 'The Articles of the Treaty of the Peace, signed and sealed at Munster, in Westphalia, October 24th, 1648' in The Consolidated Treaty Series, Vol 1 1648-1649 (Oceana Publications, 1969). See also Ward supra n 3. 1-34; TL Knutsen supra n 3, 418-419.
29. On this see: J Bowle A History of Europe (London: Martin Secker and Warburg Ltd, 1979) 483-495.
30. J Locke Two Treatises of Government edited with an introduction and notes by P Laslet (Cambridge: Cambridge University Press, 2004).
31. The French Declaration of the Rights of Man and Citizen article 3, reprinted in MR Ishay The Human Rights Reader (New York: Routledge, 1997) 138-140. For the original version of the seventeen articles of the Declaration Des Droits de L'Homme et du Citoyen see S Robbins (ed) Law: A Treasury of Art and Literature (New York: Harkavy Publishing Service, 1990) 139.
32. In 1836 the American jurist Henry Wheaton declared: "There is … no universal law of nations, such as Cicero described in his treatise De Republica, binding upon the whole human race – which all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recognised in theory or in practice, have professed to obey, or have in fact obeyed." See H Wheaton Elements of International Law, 8th edition, RH Dana (ed) (Washington: Carnegie, 1936) Part I, Chapter I, Section 9, 11-12; Section 11, 15-16.
33. In 1758, Vattel, the Swiss diplomat wrote: "Since Nations are composed of men who are by nature free and independent, and who before the establishment of civil society lived together in the state of nature, such Nations or sovereign States must be regarded as so many free persons living together in the state of nature." See E de Vattel The Law of Nations or the Principles of Natural Law Applied to the Conduct and the Affairs of Nations and Sovereigns trans. CG Fenwick (Washington: Carnegie, 1916) 'Introduction', Section 4, 3.
34. Wheaton rejected Grotius's natural law theory and argued that the utilitarian principle of "general happiness" is the real foundation of the law of nations as it is in accord with 'nature': "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent." Supra n 32, Part I, Chapter I, Section 9, 11-12. The contradiction implicit in this statement is self-evident, as Koskenniemi points out: "Such a construction allows recourse to descending arguments about justice, reason etc. as well as ascending points about consent, independence etc. which can always be presented as "modifications" of the former. No primacy between the two is established but harmony between them is assumed. The system is infinitely flexible. Anything goes as anything may be referred to justice or consent. The substance of the work hides this indeterminacy as it amounts to an impressive historiography of State behaviour." See Koskenniemi supra n 8, 115.
35. However, as Janis points out, "the struggle with universality" evident in the writings of Grotius, Vattel, Wheaton and Oppenheim had totally lapsed by the time Ian Brownlie wrote his late twentieth century text book Principles of Public International Law (Oxford: Oxford University Press, 1998). Brownlie, Janis notes, "addresses neither cultural or legal diversity. Instead Brownlie moves further along [the] positivist course … 'the all-important evidences of the existence of consensus among states concerning the particular rules or practices.'" See MW Janis 'Religion and the Literature of International Law' in MW Janis (ed) The Influence of Religion on the Development of International Law (Dordrecht: Martinus Nijhoff Publishers, 1991) 80.
36. C De Visscher Theory and Reality in Public International Law trans. PE Corbett (Princeton: Princeton University Press, 1957) 124-129.
37. See N Polat's argument in 'International Law, the Inherent Instability of the International System' (1999) 19(1) Oxford Journal of Legal Studies 51, 51-55.
38. Ibid, xi.
39. Ibid, 138.
40. Ibid.
41. Classical realism is explained in RJ Beck, AC Arend and RD Vander Lugt (eds) International Rules – Approaches from International Law and International Relations (New York: Oxford University Press, 1996) 94-109. In the preface to this book the authors explain why international law and international relations became discrete academic disciplines. "For nearly three hundred years, scholars commonly examined international phenomena through the lens of international law. Even during much of the twentieth century, international legal approaches were popularly so employed. After World War II, however, the study of international law essentially became alienated from that of political science. Indeed, only recently have scholars of International Law and International Relations made conspicuous efforts to end this estrangement." (p. vii). See also EH Carr The Twenty Years' Crisis 1919-1939 (London: MacMillan, 1991).
42. Hans J Morgenthau Politics Among Nations: The Struggle for Power and Peace cited in Beck et al ibid, 95-96.
43. G Steiner In Bluebeard's Castle – Some Notes Towards a Re-definition of Culture (London: Faber and Faber, 1971) chapter two.
44. H Arendt The Origins of Totalitarianism (New York: Harcourt Brace Jovanovich, 1979) 290-302.
45. Ibid, 269.
46. Ibid, 275.
47. Ibid, 292-293.
48. Ibid, 300.
49. Ibid, 272-276.
50. See Article 1A (2) of the Convention Relating to the Status of Refugees (1951) 189 UNTS 137, 152. In an article for the London Review of Books, J Harding noted a disparity in the number of asylum seekers taken in by countries such as Britain, France, Germany and Canada. He made the point that the Convention is constantly interpreted according to the "political priorities of signatory states." See J Harding 'The Uninvited' (2000) 22(3) London Review of Books 11. Jeremy Harding's article has subsequently been adapted into a book-length version. See J Harding The Uninvited, Refugees at the Rich Man's Gate (London: Profile Books, 2000). On the "protection" afforded refugees under international law since the 1951 Convention see, generally, J Hathway The Law of Refugee Status (Toronto: Butterworths, 1991) 6-10. See also L Gordenker Refugees in International Politics (London: Croom Helm, 1987) 31; GS Goodwin-Gill The Refugee in International Law (Oxford: Clarendon Press, 1983) 215-231. For a more critical analysis see: J Habermas Between Facts and Norms, Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 1996) 491-515; S Goulbourne (ed) Law and Migration (Chettenham: Edward Elgar Publishing, 1998) ix-xvii.
51. According to Justice French of Australia's Federal Court: "The power to determine who may come into Australia is so central to its sovereignty that it is not supposed that the government of the nation would lack under the power conferred upon it directly by the Constitution, the ability to prevent people not part of the Australian community, from entering." See Ruddock v Valdaris [2001] FCA (18 September 2001) per French J at 193. On the Howard Government's "Pacific Solution" to boat people see, especially, M Flynn and R LaForgia "Australia's Solution to Asylum Seekers" [2002] LAWASIA Journal, 31-43. Refugees are still denied a coherent legal identity in international law, which, as Louis Henkin points out, only "affords a refugee half a right (or less)": "[A person] has the right to become a refugee, not the right to cease to be one. Indeed the right to become a refugee is itself half a right at most … The refugee has no right to enter any country unless that state consents to his entry, a stark expression of the fundamental state value of autonomy and impermeability. A person who has exercised the right to leave, then loses the human rights he had in his country of origin. He would enjoy human rights in another country if that country admitted him. But until a country consents to admit him, the refugee's rights fall between states; he (she) is in a human rights "no-man's land"…The closed border remains the ultimate state value, and – even for refugees – human values penetrate only by consent, by grace, not by compulsion of international law." See: L Henkin International Law: Politics and Values (Dordrecht: Martinus Nijhoff Publishers, 1995) 195.
52. Arendt supra n 44, 295-296.
53. Ibid, 296.
54. Steiner supra n 43, 42.
55. See I Muller Hitler's Justice – The Courts of the Third Reich (Cambridge: Harvard University Press, 1991) and G Balakrishnan The Enemy – An Intellectual Portrait of Carl Schmidt (London: Verso: 2000) 190-201.
56. Steiner supra n 43, 42-48.
57. United Nations Charter, signed at San Francisco, 26th June 1945.
58. De Visscher supra n 36, 125-126 (footnote omitted).
59. Henkin supra n 50, 174 (emphasis added).
60. For an assessment of how Article 2 paragraph 7 has been interpreted since 1945 and the extent to which there has been an erosion of the "reservation of domestic jurisdiction" see I Brownlie Principles of Public International Law (Oxford: Oxford University Press, 1998) 294-297, 557-558. See also G Robertson Crimes Against Humanity, The Struggle for Global Justice (New York: Penguin Books, 2000) 24-26.
61. R Falk 'Sovereignty' in J Krieger (ed) The Oxford Companion to Politics of the World (Oxford: Oxford University Press, 1993) 852-853.
62. TK Rabb (ed) The Thirty Years' War, 2nd edition (Lexington: DC Heath and Co, 1972) ix-xxiii.
63. FH Hinsley Sovereignty, 2nd edition (Cambridge: Cambridge University Press, 1986)126-127 (emphasis added).
64. Koskenniemi supra n 8, 107.
65. FR Teson 'Realism and Kantianism in International Law' (1992) ASIL Proceedings 113.
66. Positivists assert that international law is "law" solely because it is based on the consensus of independent sovereign states as law between them. Of course all modern positivists have dispensed with the law of nature ideology (ie. social contract theorising) that initially inspired them (ie. Vattel). See, for example, M Byers Custom, Power and the Power of Rules (Cambridge: Cambridge University Press, 1999) 166-203.
67. See, for example, Koskenniemi supra n 8.
68. See, for example, D Kennedy 'International Legal Education' (1986) Harvard International Law Journal 361.
69. Translated from the Latin jus cogens means compelling law. Under the Vienna Convention of the Law of Treaties, jus cogens (or peremptory norms) are rules of international law that cannot be derogated from by any state, such as the prohibition of the use of force.
70. For example, the "disquiet" and unease felt by international lawyers with regard to the 'deviant strands' – 'New Stream' and Feminist legal theorists – is addressed by M Byers supra n 66, 45-46, 210-213.
71. See Oppenheim supra n 11, 92-93.
72. Teson supra n 65, 113-114.
73. Ibid, 113-114.
74. Ibid, 116-117.
75. Note the Hart/Fuller debate: H Hart 'Positivism and the Separation of Law and Morals' (1958) 71 Harvard Law Review 593; L Fuller 'Positivism and Fidelity to Law – A Reply to Professor Hart' (1958) 71 Harvard Law Review 630.
76. Teson supra n 65, 117.
77. Ibid, 118.
78. W Michael Reisman 'Sovereignty and Human Rights in Contemporary International Law' in GH Fox and BR Roth (eds) Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000) 250.
79. On this see RMM Wallace International Law (London: Sweet and Maxwell, 1997) 36-58.
80. Note the majority decision of the Federal Court of Australia in Nulyarimma v Thompson (1999) 165 ALR 621.
81. M Kirby 'The Impact of International Human Rights Norms: A Law Undergoing Evolution' (1995) 25(1) The University of Western Australia Law Review 30, 32-48.
82. Mabo v Queensland No 2(1992) 175 CLR 1.
83. Ibid, per Brennan J at 42.
84. Ibid.
85. Kirby supra n 81, 45.
86. M Nathan Renascence of International Law (London: Sweet and Maxwell, 1925) v-vi.
87. Ibid.
88. Ibid.
89. JL Brierly The Law of Nations – An Introduction to the Law of Peace, 4th edition (Oxford: Clarendon Press, 1949 'preface'.
90. Ibid, 13-17. On why Brierly was a 'modernist' see Koskenniemi supra n 8, 139-141.
91. Brierly ibid, 14-16.
92. See, especially, MS McDougal, HD Lasswell and L Chen Human Rights and World Public Order, the Basic Policies of An International Law of Human Dignity (New Haven: Yale University, 1980) xvii-xxiv. See also Harold Lasswell's introduction to WM Reisman and BH Weston (eds) Toward World Order and Human Dignity, Essays in Honour of Myres S McDougal (New York: The Free Press, 1976) xiii –xviii. For critical appraisals of the New Haven school see: Koskenniemi supra n 8, 170-178; P Allott Eunomia – New Order for a New World (Oxford: Oxford University Press, 1990) xviii-xix. As to why McDougal et al were anathema to Cambridge scholars see C Warbrick's introduction to P Allott et al Theory and International Law: An Introduction (London: The British Institute of International and Comparative Law, 1991) xi-xii. The extent to which McDougal and his co-authors are still influential is exemplified by M Byers' Custom, Power and The Power of Rules (Cambridge: Cambridge University Press, 1999) 207-210.
93.. MS McDougal and HD Lasswell 'The Identification and Appraisal of Diverse Systems of Public Order' in RJ Beck, AC Arend and RD Vander Lugt (eds) International Rules – Approaches from International Law and International Relations (New York: Oxford University Press, 1996) 122.
94. Respect being the most strongly emphasized; the other human dignity values are power, enlightenment, wellbeing, wealth, skill, affection and rectitude. See McDougal et al supra n 92, 85
95. See especially R Falk Revitalizing International Law (Ames: Iowa State University Press, 1989) 19-20.
96. According to Falk, the "Nuremberg Promise" is the "expectation that in the future international relations would be carried on within the limits set by the Nuremberg Judgment, or else the wrong doers, even government officials not defeated in war, would be subject to some effective procedures of legal challenge." Ibid, 222.
97. GH Fox and BR Roth (eds) Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000) 48, 50, 53-59.
98. GH Fox 'The Right to Political Participation in International Law' in GH Fox and BR Roth, Ibid 48, 50, 53-59.
99. W Michael Reisman 'Sovereignty and Human Rights in Contemporary International Law' in Fox and Roth (eds) supra n 97, 243 –250.
100. Cicero cited in FR Cowell Cicero and the Roman Republic (Harmondsworth: Penguin Books, 1964) 354.
101. H Grotius De Jure Belli Ac Pacis trans. W Kelsey, (Washington: Carnegie, 1925) Book I, Prolegomena, Section 28, 20 and Section 46, 26; Book I, Chapter III, Section 6, 54; Book II, Chapter XX, Section XL, 504.
102. Article 8 'The Polish Minorities Treaty', signed at Versailles, June 28th, 1919, reprinted in P Thornberry International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991) 401.
103. RA Pascal, JL Babin and LW Corrington (eds.) The Collected Works of Eric Voegelin Volume 27 The Nature of the Law and Related Legal Writings (Baton Rouge: Louisiana State University Press, 1991) 43.
104. First inaugural address, 4 March 1861, quoted in E Knowles The Oxford Dictionary of Quotations, 5th edition, (New York: Oxford University Press, 1999) 468 (par 9).

Reference this article as:
Thomas, Melville A. "The Search for the Foundation of International Law". Outskirts: feminisms along the edge. 12 (2005). http://www.chloe.uwa.edu.au/outskirts/archive/volume12/thomas