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Inserting Visions of Justice into a Contemporary History of International Law

Published online by Cambridge University Press:  23 January 2014

Shirley V. SCOTT
Shirley V. SCOTT*
Affiliation:
University of New South Wales, Australias.scott@unsw.edu.au
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Abstract

The history of international law is often told in terms of the rise and fall of great powers or as a mechanism of colonial subjugation. To the extent that these accounts consider justice, it is usually to demonstrate its absence. This paper points out that justice has been integral to the evolution of international law in the era of the United States. Individuals and members of civil society in the US and Europe have influenced systemic developments in international law through their efforts to realize a vision of justice in interstate relations, their vision being of a body of international law and a world court which together obviate the need for war. To suggest the possibility of an historical narrative constructed around justice is not to deny the validity of other histories focused on inequitable relations of power, but to point to the scope for nuance in the frameworks within which we portray international law and its history.

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Asian Journal of International Law , Volume 4 , Issue 1 , January 2014, pp. 41 - 53
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Copyright © Asian Journal of International Law 2014 

States have “a common nature and destination, whence an equality of rights arises. And hence proceeds the possibility of a law between nations which is just”.Footnote 1

Theodore Dwight Woolsey

Third World Approaches to International Law (TWAIL) and the “turn to history” in international law tend to have been characterized, appropriately, by critical narratives of international law as an instrument of colonialism and oppression. Antony Anghie has emphasized that colonialism was not an aberrant, peripheral concern of international law but central to its formation and determinative of its nature.Footnote 2 Falk, Rajagopal, and Stevens have opined that “the historic experience, with some exceptions, most clearly expresses the reinforcing interconnections between law, power, and injustice”.Footnote 3 Predating critical legal histories are those told in terms of the rise and fall of great powers and the impact that a sequence of hegemons, most recently the US, has had on systemic developments in international law.Footnote 4 Although acknowledging that for over two centuries international law has been a dimension of realpolitik as practised by the US,Footnote 5 this paper suggests that there is also space to insert into a contemporary history of international law an account of its growth and expansion as the embodiment of a quest—or more accurately, multiple interrelated though not uniform, quests—for justice. To the extent that such an account remains associated with the greatest power of the contemporary era, the narrative requires our disaggregating the American state to illuminate the role of civil society and individuals within what Schachter referred to as the “invisible college of international lawyers”. By this, he meant the professional community of international lawyers spanning the scholarly and government spheres, dedicated to a common intellectual enterprise.Footnote 6 The current system of international law embodies to a considerable extent a vision of formal interstate justice along the lines of the plan promulgated by William Ladd, nineteenth-century founder and president of the American Peace Society. It incorporates also the legacy of a number of other civil society groups including the turn-of-the-twentieth-century legalists and the 1920s’ movement for the outlawry of war.

I. THE JUSTICE VISION OF WILLIAM LADD: PEACE THROUGH AGREED RULES OF INTERSTATE RELATIONS

The organized peace movement in North America and Europe had its origins in the Napoleonic Wars; at least four peace societies were formed in 1815−16.Footnote 7 The peace movement in the US was composed mainly of the middle and lower-middle classes and included manufacturers and businessmen, non-conformist ministers, Quakers, philanthropists, philosophers and professors, political radicals, free traders and economic liberals.Footnote 8 In 1828, Ladd united various local and regional societies into a national body, the American Peace Society, dedicated to printing and distributing tracts on the subject of peace. The Society sought, inter alia, to “show war in its deformity, to search for the cause of war, to portray the consequences of war, to teach followers the precepts of the gospel of peace, to bring about a pacific spirit among Christians, a disgust for war, a relish for peace, and lessen the cause and frequency of war”.Footnote 9

This was before the era of multilateral treaty ubiquity, at a time when war was still regarded as an unfortunate but largely inevitable feature of interstate relations and there was as yet no sense of an international legal community spanning the entire globe. Ladd, like a number of his contemporaries, called for the development of a code of international law as a path to justice amongst nations. In the 1830s, the American Peace Society held an essay competition and five entries were selected for publication. The award committee requested Ladd to add a sixth essay, into which he was to incorporate all the matter from the rejected essays worth preserving. Ladd did not pretend that the resulting essay was all his own work but he did claim credit for separating the subject into two parts: plans for a congress of nations and for a court of nations. All the essayists had referred to a congress of nations as a single body with legislative and judicial duties. Ladd referred to public opinion as the executive and advocated for diplomacy to be entirely separated from the judiciary.Footnote 10

His “An Essay on a Congress of Nations for the Adjustment of International Disputes Without Resort to Arms”Footnote 11 called for a set of agreed principles that could be applied by states to their foreign relations.Footnote 12 Central to this vision of international justice was the need for a system by which states could agree the principles and rules. Ladd proposed a Congress of Nations, a diet of ambassadors, which would enact laws that would then be ratified by governments and thereafter govern relations amongst states. He contrasted the international law that would be so created with what he termed the “voluntary” international law that had existed hitherto. Because this had not been confirmed in a compact, it was, according to Ladd, “little better than a nose of wax, which may be twisted either way, to suit the purposes of dominant nations”.Footnote 13

According to Ladd, the Congress of Nations could only include ambassadors from the “most civilized, enlightened, and Christian nations”, although he emphasized the perfect equality of those nations.Footnote 14 New members could join provided that they agreed to observe the rules and adopt the international laws the Congress had already enacted. Each nation could choose how many representatives to send, but would have one vote, and no principle could be established without the unanimous consent and ratification of all states. The primary purpose of the Congress was to end war, and for this reason it would be concerned only with intercourse amongst states, not with their internal affairs. The Congress would in turn establish a Court of Nations with a permanent membership and both judicial and advisory powers.

Ladd believed his plan to be not only practical, but wise and just.Footnote 15 He was envisioning a world in which states would no longer need to resort to arms to settle their controversies because there was a code of law in place to guide their decision-making. The completed code would be submitted to each nation, and then such articles as had been unanimously approved would be considered settled points of international law.Footnote 16 The Congress was to have four tasks:

1st. To define the rights of belligerents towards each other; and endeavor, as much as possible, to abate the horrors of war, lessen its frequency, and promote its termination. 2d. To settle the rights of neutrals, and thus abate the evils which war inflicts on those nations that are desirous of remaining in peace. 3d. To agree on measures of utility to mankind in a state of peace; and 4th, To organize a Court of Nations.Footnote 17

The Court was to have jurisdiction over cases brought by the mutual consent of the parties and “from time to time, to suggest topics for the consideration of the Congress”.Footnote 18 The judgment of the Court would derive from a majority vote, but would be merely advisory.

This, then, was the sense in which Ladd called for the development of international law as a path to international justice. In comparison with many more recent visions of how international law might enhance international justice, Ladd's was one of limited ambition. Its focus was on peace and justice in interstate relations. In terms of subject matter, it was primarily designed to address what in today's terms falls within the international law on the use of force, international humanitarian law, and international dispute resolution, although his outline of its functions touches on elements of citizenship and migration, title to territory, boundary disputes, diplomatic immunity, extradition, the slave trade, piracy, and more. Although not necessarily incompatible with, it did not address the rights of children or the disabled, economic divides, or the quality of the environment to be left for future generations.

II. REALIZING THE VISION OF WILLIAM LADD

Ladd remains well known in large part because so much of what he envisaged has become reality. This is not to say that Ladd invented the idea of a Congress of Nations—a range of such plans had been put forward between 1605 and 1795, including those by Sully, Henry IV, Nicole, Eméric Crucé, William Penn, the Abbé de St Pierre, J.J. Rousseau, Immanuel Kant, and Jeremy Bentham.Footnote 19 The difference now was the greater attention being paid to practical details, and the energy William Ladd, Elihu Burritt, and their followers expended in trying to induce the government of the US to propose its adoption by all governments.Footnote 20 Copies of the volume containing the six essays were sent to the US president and to each member of cabinet, the state governors, each ambassador in Washington except the British, every cabinet in Europe, and each American republic. The London Peace Society published 20,000 copies for publication in Great Britain. A copy was sent to Queen Victoria, to every college library at Oxford University, to newspaper and magazine editors, and so on,Footnote 21 with a view to bringing public opinion to bear on the British and American governments.

The US has played a key role in implementing this vision, often spurred on by civil society and key individuals within the transnational “invisible college of international lawyers”. Still in the nineteenth century, for example, were the movements for the codification of international law and for arbitration. They were interrelated insofar as a code of agreed rules and principles was regarded as a prerequisite for a far-reaching system of arbitration. One of the most important contributions to the codification of international law during that period was the Draft Outlines of an International Code published by David Dudley Field in 1872.Footnote 22 In 1873, the first meeting was held of the Association for the Reform and Codification of International Law, subsequently known as the International Law Association, as well as of the Institute of International Law, composed of distinguished jurists from around the world.

In 1899, the US government presented the First International Peace Conference with a plan, based on the work of William Ladd,Footnote 23 for a standing arbitral tribunal. By the plan, all differences between signatories “excepting such as may relate to or involve their political independence or territorial integrity” were to be submitted by the common consent of interested nations to the judgment of an international tribunal; its award would have to be accepted by the parties.Footnote 24 The conference gave rise to the Convention for the Pacific Settlement of International Disputes,Footnote 25 by which was established the Permanent Court of International Arbitration (PCA). This consisted of a Bureau in The Hague, which kept a list of arbitrators, four of whom had been nominated by each state and from amongst which ad hoc tribunals of five arbitrators could be selected to hear a case.

A. The Legalists and the Creation of a World Court

The idea of a world court was given a boost in the late nineteenth and early twentieth centuries through the campaigning of the “legalists”. In the period between 1898 and 1917, many thinkers in the US considered it imperative that the US pursue a war prevention programme, not out of some naive attraction to peace as an abstract ideal but in order to prevent a general European war into which the US could easily be drawn.Footnote 26 The programme was to include actively promoting international law and organizations and, in particular, codifying important areas of customary international law, seeking arms reduction, convening periodical conferences attended by all states, and creating a system for the obligatory arbitration of disputes between states and an international court of justice.Footnote 27

There had been a considerable volume of international arbitration in the nineteenth century; some 177 disputes were settled by arbitration in the period between 1794 and 1900.Footnote 28 The US was a great promoter of arbitration and was involved in nearly one-third of the arbitral tribunals established in the nineteenth century.Footnote 29 Significant arbitrations included the well-known Alabama arbitration of 1872, settling controversies with Great Britain arising from the Civil War, the arbitration between the US and Great Britain regarding the Northwestern or San Juan boundary before the Emperor of Germany, and that between Great Britain and Venezuela over the British-Guinea boundary.

The belief had grown amongst a number of lawyers and statesmen, however, that, while the experience with arbitration was encouraging, it had one “great defect”: compromise, “the almost irresistible tendency … to split the difference instead of doing justice though the heavens fall”.Footnote 30 Arbitration was perceived as little more than third-party diplomacy, as opposed to a judicial determination based on facts and the law.Footnote 31 Justice was associated with judicial determinations as per the municipal system of the US. The “legalists” believed that states would prefer the impartial application of the law by an international court to arbitration, but would only choose adjudication over warfare once it proved “at least as satisfactory a method of obtaining justice between nations as … municipal tribunals … afford between individuals”.Footnote 32

If there could be a tribunal which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States, or between foreign citizens and the citizens of the United States, there can be no doubt that nations would be much more ready to submit their controversies to its decision than they are now to take the chances of arbitration.Footnote 33

James Brown Scott, academic and Solicitor to the Department of State from 1906 to 1910, was a leading figure in this movement. “Dr Scott was inspired by one all-pervading ideal which burned from his heart into everything he applied his mind or laid hands to—that ideal was Justice!”Footnote 34 Scott was an expert in international law on the American delegation to the Second Hague Peace Conference, and it is likely that he contributed to the instructions by Secretary Root to the US delegation,Footnote 35 to propose a permanent tribunal

composed of judges who are judicial officers and nothing else, who are paid adequate salaries, who have no other occupation, and who will devote their entire time to the trial and decision of international causes by judicial methods and under a sense of judicial responsibility.Footnote 36

The Conference recommended the adoption of a Draft Convention Relative to the Institution of a Court of Arbitral Justice, and that it be established as soon as agreement was reached regarding the selection of judges.Footnote 37

Scott remained committed to the cause and encouraged Philander C. Knox, Secretary of State from 1909 to 1913, to pursue the project.Footnote 38 In order to foster public opinion for a Court of Arbitral Justice, James Brown Scott in 1910 established the American Society for the Judicial Settlement of International Disputes, of which he was president for the first year. The Society worked until 1917, advocating the establishment of a permanent tribunal for the judicial settlement of international controversies.Footnote 39 It was intended to co-exist with the Permanent Court of Arbitration, but unlike the PCA it was to be in session permanently; it was to consist of judges who bring legal standards and processes to their task.Footnote 40 In the tradition of William Ladd, the Society sought to achieve its objectives via public opinion: it aimed to “create the public sentiment … at home and abroad … to compel nations to submit their international disputes susceptible of judicial determination to a permanent international court”.Footnote 41

As Legal Advisor to the American Commission to Negotiate Peace at Paris, Scott continued to urge for the establishment of a world court, which was in fact provided for in Article 14 of the Covenant of the League of Nations, in large part due to his efforts, and those of Elihu Root. The world court was, true to the vision of the legalists and William Ladd much earlier, entitled the Permanent Court of International Justice. The American Peace Society noted in a publication of October 1921 that it was “historically justifiable … to credit Mr William Ladd with being the father of the Permanent Court of International Justice”.Footnote 42

Although in practice most states were not as prepared to accept compulsory dispute resolution as the “legalists” of the early twentieth century might have hoped, it will be recalled that Ladd had not advocated compulsory dispute settlement, nor binding decisions. The provision for optional compulsory dispute resolution in Article 36 of the Statutes for the Permanent Court of International Justice and the International Court of Justice (ICJ) are in keeping with the vision of Ladd. And, one of the notable characteristics of systemic developments in international law during the late twentieth century was the supplementation of the ICJ by an array of other tribunals and courts, including the Dispute Settlement Body of the World Trade Organization and the International Tribunal for the Law of the Sea. Although it is far from the case that all disagreements among states are subjected to third-party adjudication before a court, it is also true that at a systemic level there have been considerable steps taken towards realizing this dimension of the vision of international justice held by the “legalists” and before that, William Ladd.

B. The Outlawists’ Efforts to Lessen the Frequency of War

Ladd's vision of justice via the development of a system of international law inclusive of provisions pertaining to the use of force and the conduct of war received a fillip following World War I from the US-based movement for the outlawry of war. On 9 March 1918, Salmon D. Levinson proposed the outlawing of war in an paper published in the New Republic.Footnote 43 The following year, he combined with Senator Philander C. Knox to devise a plan for the outlawry of war. This included abolishing war as an institution for the settlement of international disputes, declaring war to be a public crime, and defining war in a code in order to distinguish between war and the right of defence against imminent attack.Footnote 44 The logic was that peace inside a state is possible only because the use of violence to secure ends is absolutely denied to individuals and groups within the state, and the same should be true on the international plane.Footnote 45 Levinson and other members of the movement presented their ideas as in contrast to the Covenant of the League of Nations, which they regarded as an unjust settlement and unacceptable because war remained a legal method of settlement if peaceful methods failed.Footnote 46

In 1921, Levinson called for the nations of the world to follow a three-step process: to make the institution of war illegal, to codify international law, and to set up an effective world court with unquestioned automatic jurisdiction over all international disputes.Footnote 47 Levinson established the American Committee for the Outlawry of War to promote the outlawry of war, and it established its own representation in Europe. The movement gained the support of prominent intellectuals, and in his annual message to Congress in 1924, President Coolidge declared that he looked “with great sympathy” on the examination of the subject of outlawing aggressive war.Footnote 48

In 1927, Professor James Shotwell, Director of the Division of Economics and History at the Carnegie Endowment for International Peace, obtained a meeting with French President Aristide Briand and put the view that Briand could best meet US suspicions of French militarism by proposing the renunciation of war as an instrument of national policy. Briand subsequently put his name to a letter to the American people proposing the idea, which was published by the New York Times.Footnote 49 The succeeding process of diplomacy gave rise to the 1928 General Treaty for the Renunciation of War or Pact of Paris of 27 August 1928,Footnote 50 by which Parties condemned recourse to war and renounced it as an instrument of national policy in their relations with one another.

Ladd had wanted the Congress to lessen the frequency of war; the campaign to outlaw war can be seen as an attempt to move towards the same goal. The Pact of Paris was, however, far from the pure embodiment of the idea of a complete and unconditional outlawry of war as an institution. The outlawists could only realize their vision via governments, and once governments entered the equation, the vision necessarily came face to face with the reality of power politics. Briand had sought to use the proposal to negotiate with the US what would effectively have been a negative military alliance.Footnote 51 US Secretary of State Frank Kellogg steered the negotiations towards a multilateral document, but he also declared that every sovereign state would retain the right to self-defence and to decide for itself the circumstances in which it was necessary to exercise that right.Footnote 52 The practical implication of the multiple reservations and declarations made in respect of the treaty was arguably that, rather than outlaw war, the Pact of Paris effectively sanctioned all wars mentioned in the exceptions and qualifications,Footnote 53 and so was “faithful to the original idea neither in letter nor in spirit”.Footnote 54 The United Nations Charter provisions on the use of force, building as they did on the Pact of Paris and, prior to that, the Treaty of Versailles, were similarly integral to the politics of the day, the prohibition on first use of force serving the interests of the wartime victors by institutionalizing existing structures of power.

The similarities between the plan of Ladd, the principles embodied in the Hague conferences, the League of Nations, and the United Nations, are striking.Footnote 55 In a relatively short historical timeframe, great strides had been made towards realizing one particular understanding of international justice-through-international law. By some point in the twentieth century, and certainly by today, such a global community of international law can be said to be in existence: we do now have a relatively complex system of codified international law, agreed to by states, and regulating their relations in a great many spheres, including, importantly, in respect of the first use of force. Although too many people still experience civil war, and violence in all its forms remains far too common, the world of interstate relations has changed. There has been no World War III. Civil and interstate conflict, as measured by the number of battle deaths, both appear in decline.Footnote 56 It is of course difficult to prove that this is due to the expansion of international law, including its prohibition on the use of force, but, in the words of Louis Henkin:

Expectations of international violence no longer underlie every political calculation of every nation, and war plans lie buried deep in national files. Even where force is used, the fact that it is unlawful cannot be left out of account and limits the scope, the weapons, the duration, the purposes for which force is used.Footnote 57

C. Creating a Body of International Law Through the Law of Treaties

The vision of peace and justice via international law captured in the work of Ladd was a vision of formal justice, of what Terry Nardin has more recently described as a “rule-governed community”.Footnote 58 Ladd's primary objective was to obfuscate the need for war through “the impartial application of rules that are themselves impartial in the sense that they reflect the liberty and formal equality of the members of the community”.Footnote 59 This raised the question of the process by which a body of law “of utility to mankind in a state of peace” was to come into being. Ladd's plan had incorporated a Congress of Nations, which would create a body of law that would be circulated to all states. In practice, the rapid growth of international law since the mid nineteenth century has come about primarily via the multilateral treaty.

The principle of the sovereign equality of states was widely accepted in the nineteenth century, and yet operationalizing that principle in respect of the rules relating to the process by which to develop a body of international law proved difficult. Ladd had proposed that provisions would only acquire legal status once they had been adopted unanimously by all states, and this was also the starting point for those leading the 1864 Geneva Conference for the Amelioration of the Condition of Soldiers Wounded in Armies in the Field, one of the earliest attempts at multilateral treaty-making.Footnote 60 The First Hague Conference in 1899 gave all states one vote. But the powers of the day soon perceived that this might not produce their desired outcomes and a system of quasi-unanimity, which incorporated abstentions, was developed. The theory behind this was that abandoning unanimity was consistent with the sovereign equality of states insofar as states were not legally bound by the draft treaty text. The great powers drafted the treaties and decided which voting method was to be used for each.Footnote 61

Methods of voting remained contentious and unsettled for decades.Footnote 62 By Article 9 of the Vienna Convention on the Law of Treaties (VCLT), a treaty text is adopted by a two-thirds vote of those states present and voting unless a two-thirds majority agree to a different rule; even when the Vienna Convention was adopted in 1969, this was regarded as representing the progressive development of international law as opposed to the codification of existing practice.Footnote 63 A related question addressed by the International Law Commission (ILC) in its work on the law of treaties between 1949 and 1966 was that as to whether a threat to use force could be used to bring about the desired vote. The ILC noted that the traditional doctrine prior to the Covenant of the League of Nations was that the validity of a treaty was not affected by the fact that it had been brought about by the threat or use of force, but that this had simply been a reflection of the general attitude of international law towards the use of force during that era.Footnote 64 Article 52 of the Vienna Convention, by which a treaty is void if its conclusion has been procured by the threat or use of force, was crafted so as to reflect the changed attitude towards the use of force represented by Article 2(4) of the UN Charter.Footnote 65 This was an important, and as many states from around the Asian region and elsewhere would attest, long overdue, step. Writing in 1972, Agrawala described Article 52 as “perhaps the boldest and most decisive innovation in the history of the law of treaties”.Footnote 66

At the conference to conclude the Vienna Convention on the Law of Treaties, a group of nineteen African, Asian, and Latin American countries tabled an amendment that sought to define “force” as including “economic” and “political” pressure. The vast majority of Western states expressed their opposition to this proposal on the basis that the vagueness of the wording and the variety of interpretations to which these could be subjected would endanger the stability of treaty relations.Footnote 67 The nineteen-power amendment was not pressed to a vote, because the Western powers hinted that they would not support a Convention containing such a provision.Footnote 68 The call to address economic, as opposed to simply threatened military, pressure in the conclusion of treaties was met merely by an annexed Declaration that condemned the threat or use of pressure in any form, “whether military, political, or economic, by any State in order to coerce another State to perform any act relating to the conclusion of a treaty in violation of the principles of the sovereign equality of States and freedom of consent”.Footnote 69

The current trend towards consensus voting in international institutions, which does not require all to positively agree to the text, as per nineteenth-century unanimity, but which means that “no participant opposes it so strongly as to insist on blocking it”,Footnote 70 is somewhat akin to the quasi-unanimity of the late nineteenth century.Footnote 71 In practice, adoption of a text by consensus can often leave space for the application of political pressure and hence for unfair outcomes. And yet it is not only, of course, in the process by which a treaty text is adopted that power may enter the equation of the development or codification of international law via multilateral treaty. In the case of, for example, the United Nations Framework Convention on Climate Change,Footnote 72 what could be regarded as “radical” provisions differentiating in favour of developing countries were effectively negated when the US simply did not proceed to ratification of the Protocol embodying that differentiation.Footnote 73

III. CONCLUSION

In recent decades, leading Western scholars of international law have announced not only that justice is beyond the grasp of international law,Footnote 74 but even that the very concept of justice is irrelevant to international law.Footnote 75 This paper has sought to make the somewhat simple point that the present system of international law does in fact manifest to a considerable degree one particular vision of justice. To put forward the possibility of framing a history of key systemic developments in the contemporary evolution of international law in terms of a quest, or multiple quests, for justice, is not to advocate replacing a critical understanding of international law centred on power and oppression with a celebratory narrative focused only on success and emancipation. Nor is it to offer false reassurance that international law ineluctably embraces all proffered visions of justice. But it is to warn against anachronism in any assessment of the success of international law in enhancing international justice. Justice has served a normative role within international law, inspiring individuals from within what Schachter referred to as the “invisible college of international lawyers” and civil society groups to work for the manifestation of what we can view as particular dimensions of Ladd's plan. The contemporary system of international law may not appear just to observers of today but, perhaps ironically, it is to a considerable degree the product of previous visions of international justice, albeit that during the process of their realization those visions have necessarily intersected with the realities of national interest and political power.

Footnotes

*

Associate Professor, Faculty of Arts and Social Sciences, University of New South Wales. A previous version of this paper was presented in the opening plenary of the First Joint Conference of the Asian Society of International Law and Australian & New Zealand Society of International Law, held at the University of New South Wales on 25 and 26 October 2012.

1. WOOLSEY, Theodore Dwight, Introduction to the Study of International Law Designed as an Aid in Teaching and in Historical Studies, 6th ed. (New York: Charles Scribner's Sons, 1901) at 2 (emphasis in original).

2. ANGHIE, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007).

3. Richard FALKet al., “Introduction” in Falk et al., eds., International Law and the Third World. Reshaping Justice (London: Routledge-Cavendish, 2008), 1−7 at 5.

4. See, inter alia, BYERS, Michael and NOLTE, Georgeds., United States Hegemony and the Foundations of International Law (Cambridge: Cambridge University Press, 2003);

KOSKENNIEMI, Martti, “International Law and Hegemony: A Reconfiguration” (2004) 17 Cambridge Review of International Affairs 197;

VAGTS, Detlev F., “Hegemonic International Law” (2001) 95 American Journal of International Law 843;

Wilhelm Georg GREWE, trans. Michael BYERS, The Epochs of International Law (Berlin: Walter de Gruyter, 2000).

5. SCOTT, Shirley V., “Is There Room for International Law in Realpolitik? Accounting for the US ‘Attitude’ Towards International Law” (2004) 30 Review of International Studies 71.

6. SCHACHTER, Oscar, “The Invisible College of International Lawyers” (1977) 72 Northwestern University School of Law Review 217.

7. WHITNEY, Edson Leone, The American Peace Society. A Centennial History (New York: J.S. Ozer, 1928) at 9.

8. PHELPS, Christina, The Anglo-American Peace Movement in the mid-Nineteenth Century (New York: Columbia University Press, 1930) at 36.

9. Whitney, supra note 7 at 21.

10. Ibid., at 53.

11. LADD, William, “Advertisement” in An Essay on a Congress of Nations for the Adjustment of International Disputes Without Resort to Arms, Together with a Sixth Essay Comprising the Substance of the Rejected Essays (Boston: Whipple and Damrell, 1840).

12. Ibid., at iii.

13. Ibid., at 11.

14. Ibid., at 8.

15. James Brown Scott, cited in “Permanent Court of International Justice, a Fact” (1921) 83 Advocate of Peace, 323−4 at 323.

16. Phelps, supra note 8 at 105.

17. Ladd, supra note 10 at 16.

18. Ibid., at 45.

19. Phelps, supra note 8 at 103. See also

HEMLEBEN, Sylvester John, Plans for World Peace Through Six Centuries (Chicago: University of Chicago Press, 1943).

20. Phelps, supra note 8 at 104.

21. Whitney, supra note 7 at 54.

22. FIELD, David Dudley, Draft Outlines of an International Code (New York: Diossy & Company, 1872).

23. DAVIS, Calvin De Armond, The United States and the Second Hague Peace Conference: American Diplomacy and International Organization 1899−1914 (Durham, NC: Duke University Press, 1975) at 21.

24. Ibid., at 21.

25. SCOTT, James Browned., The Hague Conventions and Declarations of 1899 and 1907 Accompanied by Tables of Signatures, Ratifications and Adhesions of the Various Powers and Texts of Reservations, 3rd ed. (New York: Oxford University Press, 1918) at 41ff.

26. BOYLE, Francis A., “American Foreign Policy Toward International Law and Organizations: 1898−1917” (1983) 6 Loyola of Los Angeles International and Comparative Law Journal 185−329 at 204.

27. Ibid., at 204.

28. BEALES, Arthur C.F., The History of Peace: A Short Account of the Organized Movements for International Peace (London: G. Bell & Sons, 1931) at 239.

29. CORY, Helen May, Compulsory Arbitration of International Disputes (New York: Columbia University Press, 1972) at 12, ftn 2.

30. DENNIS, William Cullen, “Compromise—The Great Defect of Arbitration” (1911) XI Columbia Law Review 493−513 at 494.

31. Address by Senator Elihu Root at the first national meeting of the Society for the Judicial Settlement of International Disputes, Washington, DC, 15 December 1910. Reprinted in (1911) 73 Advocate of Peace 81−3.

32. Dennis, supra note 30 at 494.

33. Carnegie Endowment for International Peace, Instructions to American Delegates to the Hague Peace Conferences and Their Official Reports (New York: Oxford University Press, 1916) 79−80 at 79.

34. FINCH, George A., “James Brown Scott, 1866−1943” (1944) 38 American Journal of International Law 183−217 at 183.

35. Ibid., at 200.

36. Carnegie Endowment for International Peace, supra note 33.

37. “Final Act and Conventions of The Hague Peace Conference, 18 October 1907, Annex to the First Recommendation Uttered by the Second Peace Conference, Draft of a Convention Relation to the Institution of a Court of Arbitral Justice”, reprinted in [Supp. 1908] 2 American Journal of International Law 29−43.

38. Finch, supra note 34 at 200.

39. Editorial comment, “The American Society for the Judicial Settlement of International Disputes” (1910) 4 American Journal of International Law 930 −932 at 932.

40. Ibid., at 931.

41. Editorial comment, supra note 39 at 930.

42. “Permanent Court of International Justice, a Fact” (1921) 83 Advocate of Peace, 323 at 323.

43. LEVINSON, S.O., “The Legal Status of War” (1918) New Republic 171.

44. HARLE, Vilho, “The Implementation of Peace Ideas: The Case of Outlawry of War” (1989) 10 History of European Ideas 677 −688 at 678−9.

45. “The Outlawry of War” (1928) 18 The Round Table: The Commonwealth Journal of International Affairs 455 at 461.

46. Ibid., at 464.

47. Harle, supra note 44 at 680.

48. “President Coolidge's Annual Message to Congress, 3 December 1924. Extracts Concerning Foreign Affairs” (1925) 19 American Journal of International Law 167 at 169.

49. “Briand Sends Message to America on Anniversary of Entering the War” New York Times (6 April 1927) at 5.

50. General Treaty for the Renunciation of War (Kellogg-Briand Pact), 27 August 1928, 94 L.N.T.S. 57, (entered into force 24 July 1929).

51. SCOTT, Shirley V., International Law, US Power. The United States’ Quest for Legal Security (Cambridge: Cambridge University Press, 2012) at 111.

52. “Identic Notes of the US Government to the Governments of Australia, Belgium, Canada, Czechoslovakia, France, Germany, Great Britain, India, the Irish Free State, Italy, Japan, New Zealand, Poland, South Africa, 23 June 1928” reprinted in [Supp. 1928] 22 American Journal of International Law at 109.

53. Harle, supra note 44 at 684.

54. Ibid., at 683.

55. For a table comparing the plan made for a Congress of Nations in 1840 and the constitution of the League of Nations as finalized in 1919, see Appendix 1 of Phelps, supra note 8 at 193−206.

56. LACINA, Bethany and GLEDITSCH, Nils Petter, “The Waning of War is Real: A Response to Gohdes and Price” (2013) 57 Journal of Conflict Resolution 1109 −1127.

57. HENKIN, Louis, “The Reports of the Death of Article 2(4) are Greatly Exaggerated” (1971) 65 American Journal of International Law 544 at 544.

58. NARDIN, Terry, Law, Morality and the Relations of States (Princeton, NJ: Princeton University Press, 1983) at 258.

59. Ibid., at 264.

60. Louis B. SOHN, “Voting Procedure in International Conferences for the Codification of International Law, 1864−1930” in Gabriel WILNER, ed., Jus et Societas. Essays in Tribute to Wolfgang Friedmann (The Hague: Martinus Nijhoff, 1979), 278−296 at 279.

61. Ibid., at 281.

62. During the era of the League of Nations, unanimity remained most common, although the rules of procedure for the 1930 Conference for the Codification of International Law provided that Conventions be adopted by majority vote. SABEL, Robbie, Procedure at International Conferences. A Study of the Rules of Procedure at the UN and at Inter-Governmental Conferences, 2nd ed. (Cambridge: Cambridge University Press, 2006) at 313.

63. SOHN, Louis B., “Voting Procedures in United Nations Conferences for the Codification of International Law” (1975) 69 American Journal of International Law 310−353 at 332.

64. Report of the Commission to the General Assembly, UN Doc. A/6309/Rev. 1 (1967) 61 American Journal of International Law 253 at 408−9.

65. MALAWAR, Stuart S., “A New Concept of Consent and World Public Order: ‘Coerced Treaties’ and the Convention on the Law of Treaties” (1970−71) 4 Vanderbilt Journal of International Law 1−43 at 28.

66. S. AGRAWALA “Introduction” in (1972) Essays on the Law of Treaties, at xxxiii, cited in

MALAWER, Stuart S., Imposed Treaties and International Law (Buffalo, NY: Hein, 1977) at 129 ftn 852.

67. SINCLAIR, I.M., The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1973) at 98.

68. Ibid., at 99.

69. “Convention on the Law of Treaties” (adopted 22 May 1969; opened for signature 23 May 1969), (1969) 8 International Legal Materials at 733−4.

70. SZASZ, Paul C., “Improving the International Legislative Process” (1979) 9 Georgia Journal of International and Comparative Law 519 at 529. On consensus voting in the WTO, see

TIJMES-LHL, Jaime, “Consensus and Majority Voting in the WTO” (2009) 8 World Trade Review 417.

71. FENWICK, Charles G., “Notes on International Affairs: The Meeting of the Assembly of the League of Nations” (1921) 15 American Political Science Review 94 at 96.

72. United Nations Framework Convention on Climate Change (New York, 9 May 1992; entered into force 21 March 1994).

73. Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11 December 1997; entered into force 16 February 2005).

74. BRILMAYER, Lea, “International Justice and International Law” (1996) Faculty Scholarship Series. Paper 2441, online: 〈http://digitalcommons.law.yale.edu/fss_papers/2441〉.

75. FRANCK, Thomas M., “Is Justice Relevant to the International Legal System?” (1989) 64 Notre Dame Law Review 945 at 945.

* Associate Professor, Faculty of Arts and Social Sciences, University of New South Wales. A previous version of this paper was presented in the opening plenary of the First Joint Conference of the Asian Society of International Law and Australian & New Zealand Society of International Law, held at the University of New South Wales on 25 and 26 October 2012.