Rediscovering international law through dialogue rather than diatribe: reflections on an international legal conference in the aftermath of operation Iraqi freedom.

• Author: Jividen, David D.

1. INTRODUCTION

   The articles in this symposium were among the many presented by distinguished scholars and policymakers who attended the Ninth Annual Joint United States European Command and Federal Republic of Germany Ministry of Defense Legal Conference held in picturesque Garmisch, Germany. Entitled "The Rule of Law in Conflict and Post-Conflict Situations," the conference was hosted by the bi-national George C. Marshall Center and was attended by over sixty participants from twenty-five countries who were either senior attorneys or other government officials from their nation's defense and foreign ministries. (1) Most of the countries represented hailed from the Marshall Center's region of emphasis--East/Central Europe, the Balkans, and the States of the former Soviet Union. (2) As such, this mix of participants provided the catalyst for a frank, but always respectful, exchange of ideas and viewpoints on the state of international law following Operation Iraqi Freedom.

   Although contentious debate is not uncommon at legal conferences, what was striking about the discourse during this multilateral conference was that the divide over the legality of United States' actions generally reflected two approaches to international law. (3) Specifically, those critical of Operation Iraqi Freedom or humanitarian intervention tended to focus on the war's alleged incompatibility with the U.N. Charter, customary law, or International Court of Justice (ICJ) precedent, thereby limiting their analysis to "internal" sources of law--those that can be traced to a manifestation of state consent. (4) In contrast, those more supportive of Operation Iraqi Freedom or humanitarian intervention tended to employ a more normative approach. They thereby allowed, in addition to traditional manifestations of sovereign consent, "external" references to enter into their legal calculus, whether directly or by way of interpreting traditional sources of sovereign consent. Providing some of these external reference points for the assembled attorneys were Dr. Martin L. Cook and Professor Michael Novak's presentations on Ethics, Just War and Just Peace. (5) The conference, in short, was a prototypical example of what one academic, Professor David J. Bederman, astutely observed as today's "debate" in international law:

   [T]he issue is whether law for the international community is exclusively the product of consent by the participants in the system (however manifested) or also of enduring truths that somehow reflect the fundamental values of that community. Put another way, are all rules in a legal community internally generated by means and institutions chosen by the participants, or is there also a metaphysic of first principles that governs the system? (6) The purpose of this article is to examine these two approaches through the illustrative use of the articles in this symposium issue, to highlight how this debate is fueled by increasingly normative judgments by States and NGOs, and to suggest a third approach to international law to better foster the rule of law, one consisting of recognizing the key values held on both sides of the debate.

2. TWO APPROACHES TO INTERNATIONAL LAW

   For ease of discussion and analysis, this article refers to a positivist and a naturalist approach to international law in generic fashion, although there are many historical and modern variations within each approach, and other approaches to law have evolved from these approaches. Moreover, although seemingly mutually exclusive, positivism and natural law may not be as doctrinally incompatible as they appear at first glance. Nevertheless, as a general description, these two designations do signal a legal perspective or mindset that many times results in disparate analysis and conclusions regarding the lawfulness of international actions, and these terms are used in this Article to illustrate the divide.

   1. Positivism

      Those favoring the view that international rules are "internally" generated by a legal community's participants are essentially espousing a positivist approach to international law, founded on the binding force of expressed or implied state consent. (7) Rejecting any nexus between laws and morality, positivism injects sovereign lawmaking legitimacy into legal tradition. (8) The first international legal positivist might have been John Austin, whose nineteenth century attack on the existence of international law as "law" and his focus on the "fact" of obedience to a superior sovereign did away with what one legal expert, Professor Philip Bobbitt, described as "two of the core ideas that had shaped international law from its inception at the time of the birth of the modern state: natural law and the theory of the just war." (9) Thus, to a positivist, although "law might well be derived from moral precepts, such precepts become law only when commanded by a sovereign." (10) Positivists, faced with an international system consisting of independent sovereigns unanswerable to a higher authority, understandably emphasize tangible treaties and state customs as "the supreme sources of international norms." (11) Currently, these formal sources of international law are described in many sources, among them the Restatement (Third) of the Foreign Relations Law of the United States, official U.S. government sources, and Article 38 of the Statute of the ICJ, which identifies sources of law as follows: treaties, customs as evidence of general practice, principles of law recognized by civilized nations, and as subsidiary sources, judicial decisions and the writings of jurists. (12)

   2. Natural Law

      In contrast to self-generating legal positivists, international legal practitioners and academics taking the other side of the debate, those that allow for the existence of a metaphysics of first principles in international law, can be characterized as naturalists, taking a natural law approach to international law. Natural law can be defined as a "system of deductive reasoning from which the natural rights of men and sovereign nations may be discovered," with its binding force resulting from "its adherence to reason." (13) Natural law in this sense serves both as "'a guide to individual conduct' and ... 'as a standard for the laws enacted by the state.'" (14) Contrary to the positivist perspective, naturalists note that "[n]atural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment." (15) Historically, international law was first formulated by proponents of natural law theory, who provided the foundation of international law principles such as the peaceful resolution of disputes, self-defense, and the right of humanitarian intervention. (16) Although many, in the words of one writer, have attempted to describe the natural law approach as "relegated to the yellowed annals of legal history," (17) recent history, and the ongoing debate in international law that underlay the conference in Garmisch, indicates that it is the doctrine that "just will not die." (18)

   3. A Crucial Aside

      As noted earlier, positivism and natural law have variants within themselves, are not recent approaches to the international law, or law in general, and have spawned other approaches to law. (19) Although seemingly mutually exclusive, positivism and natural law at some level may not be as doctrinally incompatible as they appear at first glance.

   4. Positivism and Natural Law As Approaches to the Nature of Law

      As the confirmation debate over the Supreme Court nominations of Robert Bork and Justice Clarence Thomas illustrated, the debate between natural law and positivism is not a sterile modern equivalent of the medieval dispute over the number of angels that can dance on the head of a pin. (20) On the contrary, these approaches are embedded in many States' domestic law concepts. From the debate between Thrasymachus and Socrates over the nature of justice, continuing through the Roman era, and up to the present, those who believe in a natural law have clashed with positivists who deny that law is integrally laden with morals or values apart from personal preferences and choice. (21) Current approaches to law roughly reflect this division. The New Haven, Neo-Realism, and Perspective schools, because they look toward something outside of the fact of the law itself to validate international law, have been described as developing from naturalism, while the Legal Process, Nominalism, and Consensualism schools have been characterized as developing from a positivist focus on the fact of a rule as law, irrespective of the content. (22)

   5. The Mutuality of Natural Law and Positivism

      Naturalism and positivism, as described above, are based on disparate conceptions of the legitimizing factors of international law. Nevertheless, despite the historical longevity of this debate, the separation of naturalism and positivism as mutually exclusive options in international theory developed only in the nineteenth century, and gained increased vitality in the twentieth century. (23) This division, according to at least one commentator, has been an unfortunate distraction in the development of a coherent and full theory of international law, one alien to past international legal theoreticians. (24) Both naturalism and positivism can encompass elements of their opposing theory, and studying this relationship could contribute to a fuller, more robust approach to international law. (25) Thus, with regard to positivist theory, some argue that when the nature of international consensus is assessed, the continuing role of naturalist analyses becomes apparent. (26) Others have asserted modern positivism recognizes that the law is not independent of its context, and some authors have commented that because secondary rules (those that determine the conditions under which particular acts give rise to legal obligations) are not validated by state consent, a State cannot...