THE SHIELD OF ACHILLES

by Bobbitt, Philip

  16. Kontorovich, 35.

  17. Ibid.

  18. Ibid.

  19. Walter C. Uhler, “The Gorbachev Factor,” Bulletin of the Atomic Scientists 53 (1997): 65.

  20. Soviet forces crushed popular uprisings in East Germany (1953), Hungary (1956), Poland (1956), and Czechoslovakia (1968). There was a popular joke in Communist Hungary that while Hungarians could get a passport to travel abroad every three years, Russians were only given one every twelve years: 1944, 1956, 1968, and 1980 (Afghanistan).

  21. See Zbigniew Herbert, Barbarzynca w ogrodzie (Barbarian in the Garden), trans. Michael March and Jaros Law Anders (Carcanet, 1985); Václav Havel, “The Memorandum,” trans. Vera Blackwell, in Selected Plays, 1963 – 83 (Faber and Faber, 1992); Milan Kundera, Nesnesitelna lehkost byti (The Unbearable Lightness of Being), trans. Michael Henry Heim (Harper & Row, 1984); and the Russian glasnost literary journal, Glas: New Russian Writing, available both in Russian and in English translation.

  22. See Jacek Kuron's conception of “social self-organization” in Polityka i odpowiedzialnosc (“Aneks,” 1984); György Konrád, Antipolitics: An Essay, trans. Richard E. Allen (Harcourt, Brace, Jovanovich, 1984); and Václav Havel, “Power of the Powerless,” in Open Letters: Selected Writings, 1965 – 1990, ed. Paul Wilson (Knopf, 1991).

  23. Michael R. Beschloss and Strobe Talbott, At the Highest Levels: The Inside Story of the End of the Cold War (Boston: Little, Brown, 1993).

  24. Rey Koslowski and Friedrich Kratochwil, “Understanding Change in International Politics: The Soviet Empire's Demise and the International System,” International Organization 48 (Spring 1994): 215.

  25. Ibid. Compare Raymond Garthoff, The Great Transition: American-Soviet Relations and the End of the Cold War (Brookings Institution, 1994), for a contrary view.

  26. Kontorovich, 43.

  27. Pierre Lelloche, “Kohls Apart: Schemes of Reunification,” The New Republic, March 19, 1990, 12.

  28. Brian Beedham, “Baker and the Old One-Three-Two,” The Economist 316 (September 1, 1990): S10.

  29. Philip Zelikow and Condoleezza Rice, Germany Unified and Europe Transformed: A Study in Statecraft (Cambridge, Mass.: Harvard University Press, 1995).

  30. Ibid.

  31. James A. Baker, “The Common European Interest: America and the New Politics Among Nations,” U.S. Department of State Dispatch, vol. 1, September 3, 1990, 36.

  32. Michael F. Miley, “The CSCE Process and The Question of Sovereignty,” Southern University Law Review 19 (1992): 123.

  33. S. Roth, “The CSCE ‘Charter of Paris for a New Europe,’” Human Rights Law Journal 11, no. 3 – 4 (1990): 374.

  34. Note Miley, 116.

  35. “Conference on Security and Cooperation in Europe: Charter of Paris for a New Europe and Supplementary Document to Give Effect to Certain Provisions of the Charter,” International Legal Materials 30 (January 1991): 1993.

  36. R. W. Apple, Jr., “Summit in Europe: 34 Leaders Adopt Pact Proclaiming a United Europe,” New York Times, November 22, 1990, A1.

  37. Roth, 374. In a later article R. W. Apple observed that when “wars turn things upside down, the politicians, craving stability, always start trying to institutionalize the new world order. After Napoleon came the Holy Alliance, after World War I, the League of Nations, after World War II the United Nations. So last week [a congress of states] had a go, around a hexagonal table in Paris, at inventing something to replace the cold war.”

  38. At Paris, President Bush proclaimed that the “Cold War is over. In signing the Charter of Paris we have closed a chapter of history.” The New York Times commented that the Charter of Paris marked “the final denouement of the global conflict that began a half century ago.” See Apple, “Summit in Europe.”

  39. Le Monde, November 21, 1990. The summit at Paris spoke on behalf of the society of nation-states, it should be noted, in contrast to the Congress of Vienna, which spoke for the society of state-nations.

  40. Roth, 375.

  41. Thomas Buergenthal, “CSCE Rights,” George Washington Journal of International Law and Economics 25, no. 2 (1991): 361.

  42. “Conference on Security and Cooperation in Europe: Document of the Moscow Meeting on the Human Dimension, Emphasizing Respect for Human Rights, Pluralistic Democracy, the Rule of Law and Procedures for Fact Finding,” International Legal Materials, 30 (October 3, 1991): 1672.

  43. Buergenthal, 380 – 381 (emphasis supplied).

  44. Quoted in Daniel Patrick Moynihan, “The Time and Place for International Law,” Washington Post, April 1, 1990, C7.

  45. Harold Hongju Koh, “A World Transformed,” Yale Journal of International Law 20 (Summer 1995): ix.

  46. See David Kennedy, “The Move to Institutions,” Cardozo Law Review 8 (1987): 844; and Nathaniel Berman, “But the Alternative Is Despair: European Nationalism and the Modernist Renewal of International Law,” Harvard Law Review 106 (1993): 1792.

  47. Koh, 1045.

  48. Daniel Westberg, “The Relations between Positive and Natural Law in Aquinas,” Journal of Law & Religion 11 (1994 – 95): 1.

  49. Martin van Gelderen, “The Challenge of Colonialism: Grotius and Vitoria on Natural Law and International Relations,” Grotiana 14/5 (1993 – 94): 3 – 37.

  50. See Dennis Patterson, Law and Truth (Oxford: Oxford University Press, 1996).

  51. Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study (Oceana Publica-tions, 1951; first published 1930). This shocking remark was an extension of Holmes's celebrated observation that “Law is nothing more pretentious than the prediction of what courts will in fact do,” perhaps via Cook, who had suggested, regarding this passage, that “[t]he word ‘courts' should include some other more or less similar officials.” W. W. Cook, “The Logical and Legal Bases of the Conflict of Laws,” Yale Law Journal 33 (1924): 457.

  52. Abram Chayes, et al., International Legal Process 1 (1968): xi (emphasis supplied); see also William N. Eskridge, Jr., and Philip P. Frickey, “An Historical and Critical Introduction to Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process,” The Legal Process: Basic Problems in the Making and Application of Law (Foundation Press, 1994); ciii, note 232, dxiv, note 286, cxxxii, note 346, describing the origin of Chayes and Ehrlich's work in the legal process materials, cited in Koh, n. 94.

  53. See Roger Fisher, “Bringing Law to Bear on National Governments,” Harvard Law Review 74(1961): 1130.

  54. Akehurst, Michael, A Modern Introduction to International Law, 7th ed. (rev. ed., Peter Malanczuk) (Routledge, 1997), 6.

  55. Ibid.

  56. Akehurst, 2; see also Akehurst, “Custom as a Source of International Law,” British Year Book of International Law 47 (1974 – 75): 1.

  57. Tom J. Farer, “Human Rights in Law's Empire: The Jurisprudence War,” American Journal of International Law 85 (1991): 117.

  58. Ibid., 118.

  59. François, Duc de La Rochefoucauld, Maxims, trans. Leonard Tancock (Penguin Books, 1959), 65.

  60. Despite the fact that Europe, and especially Germany, were early contributors to legal realism, note the German Interessenjurisprudenz and Freie Rechtslehre, acknowledged by Llewellyn, as well as Geny's Libre recherche scientifique.

  61. “An examination of the Collected Courses of the Hague Academy of International Law… reveals that European scholarship in international law… [has] continued largely in the traditional, non-theoretical, doctrinal vein. International legal scholarship in other countries followed this doctrinal, Eurocentric pattern.” Cf. Yasuaki Onuma, “Japanese International Law in the Postwar Period—Perspectives on the Teaching and Research of International Law in Postwar Japan,” Japanese Annual of International Law 33 (1990): 25, 44.

  62. Farer, 117.

  63. Some say the earliest known writing is a treaty.

  64. Oscar Schachter, International Law in Theory and Practice: General Course in Public International Law (Academic Publishers, 1982), 24.

  65. Ibid., 25.
>
  66. Cf. Thomas Franck, “The Case of the Vanishing Treaties,” American Journal of International Law 81 (1987): 763.

  67. Schachter, International Law in Theory and Practice, 44.

  68. Oscar Schachter, “The Legality of Pro-Democratic Invasion,” American Journal of International Law 78 (1984): 645, 649.

  69. See Leland M. Goodrich, Edvard Hambro, and Anne P. Simons, Charter of the United Nations (Columbia University Press, 1969), 629 – 632.

  70. Oscar Schachter, “United Nations Law in the Gulf Conflict,” American Journal of International Law 85 (July 1991): 464.

  71. Compare the strikingly similar hypothetical exercise used by Justice Hugo Black in his Charpentier Lectures to ridicule the position of Justice Frankfurter; see Hugo L. Black, “The Bill of Rights,” New York University Law Review 35 (1960): 877 – 878. It suggests that even the plainest of the textual provisions of the Bill of Rights of the U.S. Constitution could be overridden by an appeal to extratextual values, like necessity.

  72. Most of McDougal's most important early work is collected in Myres S. McDougal and Associates, Studies in World Public Order (Yale University Press, 1960), although in many ways McDougal's Hague lectures provide more insight into the development of his unique framework. Other important articles, although only a limited selection from a vast corpus, include: Myres S. McDougal, “Law as a Process of Decision: A Policy-Oriented Approach to Legal Study,” Natural Law Forum 1 (1956): 53; Myres S. McDougal, “Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry,” Journal of Conflict Resolution 4 (1960): 337; Myres S. McDougal and W. Michael Reisman, “The World Constitutive Process of Authoritative Decision,” Journal of Legal Education 19 (1967): 253; Myres S. McDougal, Harold D. Lasswell, and W. Michael Reisman, “Theories about International Law: Prologue to a Configurative Jurisprudence,” Virginia Journal of International Law 8 (1968): 188; Myres S. McDougal, “International Law and Social Science: A Mild Plea in Avoidance,” American Journal of International Law 66 (1972): 77; Myres S. McDougal and W. Michael Reisman, “International Law in Policy-Oriented Perspective,” in The Structure and Process of International Law, ed. Ronald St. J. Macdonald and Douglas M. Johnston (Martinus Nijhoff, 1983), 103 [hereinafter Policy-Oriented Perspective]. On the contributions of his many students, see the Festschrift published on the occasion of his retirement: Toward World Order and Human Dignity, ed. W. Michael Reisman and Burns H. Weston (Free Press, 1976) [hereinafter Toward World Order], also containing a complete bibliography of works by and relating to McDougal; see also “International Law and International Relations Theory: A Dual Agenda,” American Journal of International Law 87 (1993): 205.

  73. Anthony Kronman, “Jurisprudential Responses to Legal Realism,” Cornell Law Review 73 (1988): 335; Jan Vetter, “Postwar Legal Scholarship on Judicial Decision-making,” Journal of Legal Education 33 (1983): 412.

  74. As Anne-Marie Burley (herself one of the most insightful and distinguished of McDougal's heirs) concluded, “Although many of his students profited from his insights when turned to their own purposes, McDougal's most prominent disciple and heir to his jurisprudential approach is W. Michael Reisman.” See, e.g., W. Michael Reisman, “A Theory about Law from the Policy Perspective,” in Law and Policy, ed. D. N. Weisstub (Osgoode Hall Law School, 1976), reprinted as abridged in Myres S. McDougal and W. Michael Reisman, International Law Essays: A Supplement to International Law in Contemporary Perspective (Foundation Press, 1981), 1; and [other] co-authored works also written with McDougal.

  75. Reisman, 273.

  76. Richard Falk, “Casting the Spell: The New Haven School of International Law,” Yale Law Journal 104 (1995): 1991 – 92.

  77. Reisman, 277.

  78. See generally Myres S. McDougal, “Legal Bases for Securing the Integrity of the Earth-Space Environment,” Annals of the New York Academy of Sciences 184 (1971): 380; Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” American Journal of International Law 53 (1959): 1; Winston Nagan, “Civil Process and Power: Thoughts from a Policy-Oriented Perspective,” University of Florida Law Review 39 (1987): 453; W. Michael Reisman, “A Theory about Law from the Policy Perspective,” in Law and Policy, ed. Weisstub, 75.

  79. See for example, Samuel P. Huntington's well-known argument in The Clash of Civilizations.

  80. Emphasis supplied. Paula Wolff, “McDougal's Jurisprudence: Utility, Influence, Controversy,” Proceedings of the American Society of International Law 79 (April 25 – 27, 1985): 270 – 271. One might add that even if there is a universal consensus on what people want for themselves, it does not follow, alas, that there is an identical consensus on what we are prepared to accord to others.

  81. Ibid., 284.

  82. Franck, 765.

  83. Louis Henkin, How Nations Behave (Columbia University Press, 1979), 40; see also Louis Henkin, “Force, Intervention and Neutrality in Contemporary International Law,” Proceedings of the American Society on International Law 57 (1963): 168.

  84. Ervin H. Pollack, Jurisprudence, Principles and Applications (Ohio State University Press, 1979), 788.

  85. Dean Acheson, “The Arrogance of International Lawyers,” International Law 2 (1968): 592; and also Dean Acheson, Fragments of My Fleece (Norton, 1971), 156.

  86. “The law is what the judges say it is,” Charles E. Hughes, The Supreme Court of the United States (Columbia University Press, 1928), 120; “the Constitution is what the Supreme Court says it is,” Charles E. Hughes, Addresses and Papers of Charles Evans Hughes (Putnam, 1908), 139 – 141.

  87. Proceedings of the American Society of International Law 13 (1963): 14.

  88. See John Lewis Gaddis, “The Tragedy of Cold War History,” Diplomatic History 17 (1993): 1.

  89. Vladislav Zubok and Constantine Pleshakov, “Great Britain,” in The Origins of the Cold War in Europe: International Perspectives, ed. David Reynolds (New Haven: Yale University Press, 1994).

  90. “The Soviet occupation of the Western Ukraine and Byelorussia from 1939 – 41 provide an example of how the Soviet system foreshadowed the policies Stalin would pursue after World War II. The entire program of phony elections, purges and mass shootings was carried out during the invasion of Poland in 1939.” The security police murdered 400,000 persons and expelled another 1.5 million to the interior. Jacob Heilbrun, “Who Writes the History: Neo-Revisionism and the Cold War,” Current, December 1994, 12.

  91. Quoted by Heilbrun, ibid.

  92. Douglas Brinkley, Dean Acheson: The Cold War Years 1953 – 71 (Yale University Press, 1992); see also Dean Acheson, Present at the Creation: My Years at the State Department (Norton, 1969); and Gaddis Smith, Dean Acheson (Cooper Square Publishers, 1972).

  93. Brinkley, p. 66.

  94. Perhaps women will not fall prey to this conceit; in Acheson's day there were virtually no females at the Harvard Law School.

  95. See David McCullough, Truman (Simon & Schuster, 1992), 760 – 761.

  96. Acheson, “The Arrogance of International Lawyers,” 592.

  97. Brinkley, Dean Acheson; also quoted in Hodgson.

  98. Acheson, “The Arrogance of International Lawyers,” 598.

  99. Bobbitt, Tragic Choices, 18.

  100. Karl N. Llewellyn, The Bramble Bush; this is also a popular assertion in critical legal studies.

  101. Wolff, “McDougal's Jurisprudence,” 272.

  102. Judith Gail Gardam, “Gender and Non-Combatant Immunity” (Symposium: Feminist Inquiries into International Law), Transnational Law and Contemporary Problems 3 (1993): 345.

  103. Hilary Charlesworth, Christine Chinkin, and Shelly Wright, “Feminist Approaches to International Law,” American Journal of International Law 85 (1991).

  104. The constitution of the society of state-nations was very different: the Ottoman Empire was not admitted to this society until 1856.

  105. David A. Westbrook, “Islamic International Law and
Public International Law: Separate Expressions of World Order,” Virginia Journal of International Law 33 (Summer 1993): 829.

  106. See also David N. Kennedy, “A New Stream of International Law Scholarship,” Wisconsin International Law Journal 7 (1998): 1, and his book International Legal Structures (Nomos, 1987); James Boyle, “Ideas and Things: International Legal Scholarship and the Prison-House of Language,” Harvard International Law Journal 26 (1985): 327; and Phillip Trimble, “International Law, World Order and Critical Legal Studies,” Stanford Law Review 42 (1990): 811; and Nigel Purvis, “Critical Legal Studies in Public International Law,” Harvard Journal of International Law 32 (1991): 81.

  107. Bobbitt, Constitutional Interpretation.