In the bloody aftermath of World War I it became apparent that those in military or civilian authority provided a cornerstone for the good conduct of those under their command, and hence should carry some liability for their actions. A Commission established by the allies after World War I to assess the responsibility of German officers rightly assumed that a combination of power to intervene, knowledge of crimes and subsequent failure to act should render those concerned liable for the crimes of their subordinates. Despite United States and Japanese dissent, die latter arguing that highranking officials could not be held personally accountable under international law in accordance with the abstention theory of responsibility, trials instituted at the German Supreme Court in Leipzig recognized the existence of concrete duties pertaining to military commanders. Undoubtedly, two precursors to the Leipzig proceedings, the Hague Conventions IV (1907) and X (1907) created affirmative command duties in relation to the conduct of subordinate persons, establishing the doctrine of “command responsibility.”

The entry into force of the 1982 United Nations Convention on the Law of the Sea1 and its widespread ratification2 have renewed interest in the remaining gaps and ambiguities in its provisions on the control of shared marine resources. The discussion has recently focused on die regulation of common or transboundary fishing stocks3 and migratory species,4 a problem that was considered serious enough to merit the adoption of another multilateral convention. The 1995 Agreement on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks5 was designed to resolve the increasing number of disputes on this issue.6

In 1908 the second volume of the American Journal of International Law featured a piece by Lassa Oppenheim entitled The Science of International Law: Its Tasks and Method. Oppenheim began his article by noting, apparently with some approval, that the first volume of AJIL, stacked with articles only by Americans, had “shown to the world that America is able to foster the science of international law without being dependent upon the assistance of foreign contributors.” Concerned, however, that students were “at first frequently quite helpless for want of method [and] mostly plunge into their work without a proper knowledge of the task of our science, without knowing how to make use of the assertions of authorities, and without the proper views for the valuation and appreciation of the material at hand,” Oppenheim sought to bring “the task and the method of this our science into discussion in this Journal.” What followed was a comprehensive exposition of his views on the purposes of international law and the methods available to lawyers and scholars for approaching the problems they face.

This article is about a problem only just becoming visible: the legitimacy of international environmental law, and more specifically, the perception that the international environmental process is insufficiently democratic. Until now, international lawyers have tended to focus on what environmental standards are needed and how those standards can be made effective. But as decision-making authority gravitates from the national to the international level, the question of legitimacy will likely emerge from the shadows and become a central issue in international environmental law. This article seeks to clarify the nature of the legitimacy challenge and to survey possible sources of legitimacy for international institutions.

The object of this paper is to describe the negotiating process during the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. It is told from the perspective of those that were ex officio at the center of negotiations, as members of the Bureau of the Committee of the Whole (CW).1 It describes the main issues under consideration at the conference and the evolution of the negotiations, including an inside view of the development of the final package containing the principal elements of the statute of the court.

When we were invited to contribute a positivist perspective to the present symposium, we did not know whether to regard this invitation as flattering or as an insult: does positivism not represent old-fashioned, conservative, continental European nineteenthcentury views—naive ideas of dead white males on the possibility of objectivity in law and morals? There is little we can do about being male and white, but we have certainly not seen ourselves as positivists of that kind. From the range of methodologies that the editors assembled, we could associate ourselves with several approaches just as much as with positivism. But in reflecting on our day-to-day legal work, we realized that, for better or for worse, we indeed employ the tools developed by the “positivist” tradition.

After a long arbitration in New York, a Canadian company wins substantial damages against a British multinational, only to see a federal court vacate the award.1 Two grounds are given for vacatur: the arbitrator was biased, and the arbitrator manifestly disregarded the applicable law. Not deterred, the winning claimant seeks to enforce the award against the defendant’s London bank accounts.

What effect (if any) should a court in England give the American award? Should an English court ignore the arbitrator’s decision or the federal judge’s order? Should the English court make its own investigation into the legitimacy of the vacatur?

Real problems, like the problem posed, are not amenable to simple solutions. Human rights abuses in internal conflicts usually have roots deep in history and the collective psyche of the individuals and groups involved. To prevent them, the certain prospect of a swift punitive reaction on the international plane might have a useful deterrent effect. But if a violent conflict or genocide is in progress, the expectation of punishment may not by itself be likely to end the conflict. Ironically, it may prolong the plight of the persecuted, since persecutors may conclude that they have no alternative but to fight to the bitter end to avoid the consequences of their misdeeds. To deal with major incidents of unauthorized coercion and violence, an amnesty for the violators might contribute to a lessening of the toll in blood of a particular ethnic or religious rage. But that, again, might be an incomplete reaction, since the victims of the atrocities committed will not find solace, satisfaction or rehabilitation. Nor will persons who may be pathologically violent be removed from circulation. Where society remains unreconciled, jarred, conflicted—in a state of continual animosity between warring families, clans or ethnic, religious or social groups—“cold” war might heat up and erupt at any time in the future even more violently than before. Thus, truth commissions have been established in various contexts at least to shine the light of searching inquiry on situations in which truth has always been the first casualty. Still, such agencies alone might not suffice to bring about social reconciliation and restoration. Neither might bodies set up to mete out justice in the form of civil compensation. International criminal courts may send a message to people elsewhere contemplating massive violations, but they may do nothing to reconstruct the civil society that has been disrupted.

The United States has had and will continue to have a compelling interest in the establishment of a permanent international criminal court (ICC). Such an international court, so long contemplated and so relevant in a world burdened widi mass murderers, can both deter and punish diose who might escape justice in national courts. Since 1995, the question for the Clinton administration has never been whether there should be an international criminal court, but rather what kind of court it should be in order to operate efficiently, effectively and appropriately within a global system that also requires our constant vigilance to protect international peace and security. At the same time, the United States has special responsibilities and special exposure to political controversy over our actions. This factor cannot be taken lightly when issues of international peace and security are at stake. We are called upon to act, sometimes at great risk, far more than any other nation. This is a reality in the international system.

International legal process (ILP) emphasizes understanding how international law works. It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy. It is a more limited methodology than some others discussed in the symposium in that it did not, as originally developed, expose the normative values of the methodology, or how the methodology could be used to achieve those values. Nevertheless, ILP, as a study of international law in its actual operation and the consideration of how international law could work better, has had a significant influence on American international law scholarship.

The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) took place in Rome at the headquarters of the Food and Agriculture Organization from June 15 to July 17, 1998. The participants numbered 160 states, thirty-three intergovernmental organizations and a coalition of 236 nongovernmental organizations (NGOs). The conference concluded by adopting the Rome Statute of the International Criminal Court by a nonrecorded vote of 120 in favor, 7 against and 21 abstentions. The United States elected to indicate publicly that it had voted against the statute. France, the United Kingdom and the Russian Federation supported the statute.

On July 17, 1998, the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Rome Conference) adopted the Rome Statute of the International Criminal Court (ICC). One of the many significant provisions of the ICC statute is Article 7, which defines “crimes against humanity” for the purpose of the ICC. A significant difference between the definition in the ICC statute and the major precedents on crimes against humanity is that the former definition was not imposed by victors (as were those in the Nuremberg and Tokyo Charters) or by the Security Council (as were those in the Statutes of the Yugoslavia and Rwanda Tribunals). In contrast, Article 7 was developed through multilateral negotiations involving 160 states. For this reason, one could reasonably expect Article 7 to be more detailed than previous definitions, given the interest of participating states in knowing the precise contours of the corresponding obligations they would be undertaking. For the same reason, one might expect the definition to be more restrictive than previous definitions. Fortunately, although the definition in the ICC statute is more detailed than previous definitions, it generally seems to reflect most of the positive developments identified in recent authorities. For example, the definition does not require any nexus to armed conflict, does not require proof of a discriminatory motive, and recognizes the crime of apartheid and enforced disappearance as inhumane acts.

As I started to think about how to respond to your kind invitation to participate in the symposium on method in international law, and what to write to the readers of the Journal, I soon noticed that it was impossible for me to think about my—or indeed anybody’s—“method” in the way suggested by the symposium format. This was only in part because I felt that your (and sometimes others’) classification of my work as representative of something called “critical legal studies” failed to make sense of large chunks of it whose labeling as “CLS” might seem an insult to those in the American legal academy who had organized themselves in the 1970s and early 1980s under that banner. You may, of course, have asked me to write about “CLS” in international law irrespectively of whether I was a true representative of its method (whatever that method might be). Perhaps I was only asked to explain how people generally identified as “critics” went about writing as they did. But I felt wholly unqualified to undertake such a task. Dozens of academic studies had been published on the structure, history and ideology of critical legal studies in the United States and elsewhere. Although that material is interesting, and often of high academic quality, little of it describes the work of people in our field sometimes associated with critical legal studies—but more commonly classed under the label of “new approaches to international law.“1 In fact, new writing in the field was so heterogeneous, self-reflective and sometimes outright ironic that the conventions of academic analysis about “method” would inevitably fail to articulate its reality.