Problems and Process: International Law and How We Use It.

• Author: Sohn, Louis B.

The international community is used to receiving path-breaking treatises from the pen of Rosalyn Higgins.(1) Her first book challenged the conventional wisdom that only lawyers and tribunals can develop international law. It presented the thesis that the political organs of the United Nations can also develop international law, especially through the practice of interpreting and applying international treaties.(2) In another series of books Professor Higgins documented and analyzed the burgeoning practice of the United Nations in the area of peackeeping and thereby helped to crystallize the rules governing this crucial field.(3) In Problems and Process: International Law and How We Use It, she tackles the even more daunting task of examining the various preconceptions about international law and showing how we can and do use it to solve even the most difficult problems.

Professor Higgins points out that international law has many facets and serves a multitude of purposes. First, international law is a "process" that entails hard work in identifying relevant sources and discovering applicable norms. It is not a mechanistic process but a rational one, taking into account the political and social context. It must be based on decisions made by those authorized to make them. In turn, these decisions rely on past decisions as important guides, selecting from among available choices those that best reflect community interest and promote common values (pp. 8-9). Second, international law is a "system," in which "norms" emerge either because express consent is given, or because there is no opposition, or because the opposition has been overcome.(4) As she explains, international law is composed of norms that states believe to be necessary to guide their relations with each other (pp. 18, 95).

In discussing the sources of international law, Professor Higgins seems to have changed her evaluation of the role of resolutions enacted by international organizations in crystallizing international norms. In her 1963 book on the development of international law through the political organs of the United Nations, she pointed out that the existence of the United Nations, with an almost universal membership, provides "a very clear, very concentrated, focal point for state practice."(5) In particular, the votes cast by the states and the views expressed by them constitute "collective acts" that, when "repeated by and acquiesced in by sufficient numbers with sufficient frequency, eventually attain the status of law."(6) She admitted at the time that it may be difficult to determine at which point "a repeated practice has hardened into a rule of law," how large a majority of votes is required, or whether the acceptance of this practice by the major powers would be necessary.(7) She concluded that the decisive fact would be when a considerable majority of states would "regard themselves as legally bound by the practice," as evidenced by states' attitudes and public statements.(8)

In her new book, Professor Higgins discusses in more detail the recent emphasis on United Nations resolutions and points out that resolutions are only a limited part of the normative efforts of international organizations. What matters is the whole process of dealing with complex legal issues -- exchanging views and taking positions publicly, expressing reservations on views taken by others, and preparing drafts intended to become legal instruments in the form of treaties, declarations, binding resolutions, or even codes (pp. 23-24). All these activities end in a decisionmaking process that...