1 Franck, Thomasm Judging the World Court 14 (1986)Google Scholar. This founding followed by more than three decades the convening of the Institut de Droit International in 1873 at Ghent, which set as its purpose in Article 1 of its Statute, “to encourage the progress of international law in striving to become the organ of the juridical conscience of the civilized world.” Koskenniemi, Martti The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960, at 41 (2001)Google Scholar (trans, by author).

2 Closing the Conference, N.Y. Times, Apr. 20, 1890, at 5.Google Scholar

3 Instructions to the American Delegates, in 2 James Brown Scott, The Hague Peace Conferences of 1899 AND 1907: Documents 191 (1909).Google Scholar

4 Clark, Grenville & Louis, B. Sohn World Peace Through World Law (1958).Google Scholar

5 It was not shared, either, by an influential lawyer who had migrated to the field of international relations, Prof. Hans Morgenthau. See Morgenthau, Hans in Defense of The National Interest: A Critical Examination of American Foreign Policy (1951).Google Scholar

6 A leading, deeply historico-cultural exposition to the contrary is Bloody Constraint: War and Chivalry in Shakespeare, by Theodor Meron (1998), which makes a telling case based on the history of chivalrous warfare,to the effect that rules arise naturally out of societies—not necessarily ones in which the members are friendly with one another— on the basis of experience in calculating long-term mutual advantage.

7 Michael, J. Glennon The New Interventionism: The Search for a Just International Law, Foreign Aff., May/June 1999, at 2.Google Scholar

8 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order 220 (2004).

9 Michael, J. Glennon Limits of Law, Prerogatives of Power: Interventionism After Kosovo 84 (2001).Google Scholar

10 Jack, L. Goldsmith & Eric, A. Posner The Limits of International Law 13 (2005)Google Scholar. For a review of this book in this issue, see Edward, T. Swaine Review Essay, 100 AJIL 259 (2006).Google Scholar

11 This dissonance is surveyed in Rüdiger, Wolfrum American-European Dialogue: Different Perceptions of International Law—Introduction, 64 Zaörv 255 (2004)Google Scholar, and Neuhold, Hanspeter Law and Force in International Relations— European and American Positions, id. at 263.Google Scholar

12 I am particularly guilty of this hubris. See Thomas, M. Franck Fairness in International Law and Institutions 4–8 (1995).Google Scholar

13 Ian Brownlie has observed that, statistically, the domestic legal order of states much more frequently dissolves into revolution and civil war than the international legal order succumbs to the illegal recourse to force. Brownlie, Ian The Rule of Law in International Affairs 14 (1998).Google Scholar

14 This view of the law does not argue that international lawyers should deny the effects of nonlegal factors on national behavior. On the contrary, “international lawyers would . . . benefit from a broader perspective,” and a greater familiarity with the dynamics of political power “would in no way undermine the inherent stability and determinacy of international law.” Byers, Mlcfiael Custom, Power and The Power of Rules 15 (1999).Google Scholar This is more likely to prove true if the lawyer, in familiarizing herself with power dynamics, keeps uppermost the professional commitment to the law. For an excellent summary of the argument that all states have an interest in the efficacious operation of law within the community of states, written from the perspective of moral philosophy, see Buchanan, Allen Justice, Legitimacy, and Self-Determination: Moral Foundations For International Law 289–327 (2004).Google Scholar

15 Thomas, M. Franck The Power of Legitimacy Among Nations (1990).Google Scholar

16 If a state complies with a rule that, in the short run, operates to its disadvantage, it helps to deter other states that may be tempted to violate the same, or another, legitimate law in subsequent encounters by making itself “hostage” to the rule in question. Conversely, states that violate a law to preserve a short-term interest make it easier for other states thereafter to ignore the same, or other, legal obligations. See Thomas, M. Franck & Weisband, Edward Word Politics: Verbal Strategy Among the Superpowers 120–48 (1971).Google Scholar

17 See discussion in Simpson, supra note 8, at 334-39.

18 I realize that I have contributed to the confusion over this matter through the catchy title of my essay in this Journal, Who KilledArticle 2(4):’64 AJIL 809 (1973). The purpose of the article, of course, was not to claim that the prohibition on first use of military force was no longer binding on states but, to the contrary, to warn that, though an essential cornerstone of the postwar order, it was being progressively undermined by the conduct both of the Soviet Union and of the United States.

19 Franck, supra note 15, at 52.

20 Thomas, M. Franck Recourse to Force: State Action Against Threats and Armed Attacks 97–108 (2002).Google Scholar

21 A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565, at 63, para. 188 (2004), available at <http://www.un.org/secureworld/report.pdf>.

22 E.g., Michael, J. Glennon Why the Security Council Failed, Foreign Aff., May/June 2003, at 16.Google Scholar

23 Hart, H. L. A. The Concept of Law 214–15 (1961).Google Scholar

24 North Korean Communiques, N.Y. Times, June 26, 1950, at A3.Google Scholar

25 Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, 130 (Oct. 16) (De Castro, J. sep. op.).Google Scholar

26 Id., Advisory Opinion. For the concurrent view of the General Assembly, see Question of Spanish Sahara, GA Res. 3458 (XXX) (Dec. 10, 1975).

27 Becker, Elizabeth When the War Was Over 355 (1986).Google Scholar

28 W. Michael, Reisman & Silk, James Which Law Applies to the Afghan Conflict? 82 AJIL 459 (1988).Google Scholar

29 “The dossier. . . suggests that Iraq could deploy chemical or biological weapons within 45 minutes of an order being given.” Philip Webster, Roland Watson, & Hurt, Greg Labour MPs Split over Iraq Dossier, Times (London), Sept. 25, 2002, Home News, at 1.Google Scholar

30 THE 9/11 Commission Report: Final Report of The National Commission on Terrorist Attacks upon the United States 334 (2004).

31 Borger, Gloria A Vice President Unbound, U.S. News & World Rep., June 28, 2004, at 34.Google Scholar

32 Ex-Inspector [David Kay] Again Says Forbidden Arms Probably Didn’t Exist, Wash. Post, Jan. 29, 2004, at A1.Google Scholar

33 Bush Stands Firmly Behind His Decision to Invade Iraq, Wash. Post, Feb. 6, 2004, at A16.Google Scholar

34 For an assertion of this obviousness, see Kofi Annan Interview (BBC News television broadcast Sept. 16, 2004), available at <http://news.bbc.co.Uk/l/hi/world/middle_east/3661640.stm>..>Google Scholar

35 The Security Council has been scrupulous in its resolutions pertaining to Iraq to avoid anything that could be interpreted as a retrospective validation of the invasion.

36 Subbiah, Sumathi Note, Security Council Mediation and the Kashmir Dispute, 27 B.C. Int’l & Comp. L. Rev. 173 (2004).Google Scholar

37 Ganguty, Sumit India and China: Border Issues, Domestic Integration, and International Security, in The India-China Relationship: What The United States Needs to Know 103 (Francine, R. Frankel & Harding, Harry eds., 2004).Google Scholar

38 These began with the decolonization of the Belgian Congo in 1960 and the efforts of the United Nations to deal with the ensuing warfare. Cf. SC Res. 143 (July 14, I960); SC Res. 169 (Nov. 24, 1961).

39 See Frederic, L. Kirgis The Security Council’s First Fifty Years, 89 AJIL 506, 532–37 (1995).Google Scholar

40 Boundary cases disposed of by the International Court of Justice include Frontier Dispute (Benin/Niger) (July 12,2005); Application for Revision of the Judgment of 11 September 1992 in the Case Concerning the Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua intervening) (El Sal. v. Hond.) (Dec. 18, 2003); Sovereignty over Pulau Litigan and Pulau Sipadan (Indon./Malay) (Dec. 17, 2002); Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nig.: Eq. Guinea intervening) (Oct. 10,2002); Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahr.), 2001 ICJ Rep. 40 (Mar. 16); Kasikili/Sedudu Island (Bots./Namib.), 1999 ICJ Rep. 1045 (Dec. 13); Request for Interpretation of the Judgment of 11 June 1998 in the Case Concerning the Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections (Nig. v. Cameroon), 1999 ICJ Rep. 31 (Mar. 25); Territorial Dispute (Libya/Chad), 1994 ICJ Rep. 6 (Feb. 13); Maritime Delimitation in the Area Between Greenland and Jan Mayen (Den. v. Nor.), 1993 ICJ Rep. 38 (June 14); Land, Island and Maritime Frontier Dispute (El Sal./Hond.: Nicar. intervening), 1992 ICJ Rep. 351 (Sept. 11); Arbitral Award of 31 July 1989 (Guinea-Bissau v. Sen.), 1991 ICJ Rep. 53 (Nov. 12). The opinions of the Court are available at its Web site, <http://www.icj-cij.org>.

41 The National Security Strategy of The United States of America, pt. V (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>..>Google Scholar

42 Thucydides, The History of The Peloponnesian War (Crawley, Richard trans., Dutton 1950) (412B.C).Google Scholar

43 Thus, the charge of “common plan or conspiracy” was linked only to the charge of waging aggressive war, i.e., after 1939. Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir 75–76 (1992)Google Scholar; Robert, H. Jackson Statement at London Conference for the Preparation of the Trial (July 23, 1945)Google Scholar, quoted in Michael, R. Marrus The Nuremberg War Crimes Trial 1945-46: A Documentary History 45–46 (1997).Google Scholar Although the Nuremberg Tribunal was assigned jurisdiction over “crimes against humanity,” nevertheless

William, A. Schabas An Introduction to the International Criminal Court 42 (2d ed. 2004)Google Scholar (footnote omitted). The result was that crimes against the Jews of Germany were off limits.

44 Secretary-General Presents His Annual Report to the General Assembly, UN Press Release SG/SM/7136, GA/9596 (Sept. 20, 1999) (text of address by Kofi Annan).

45 SC Res. 143 & 169, supra note 38 (Congo); SC Res. 794 (Dec. 3, 1992) & 923 (May 31, 1994) (Somalia); SC Res. 1529 (Feb. 29, 2004) (Haiti); SC Res. 1101 (Mar. 28, 1997) (Albania).

46 An account of the futile effort in the Security Council to prevent or mitigate this crisis is in 1995 UN Y.B. 281-317, UN Sales No. E.95.I.50.

47 SC Res. 1497 (Aug. 1, 2003) (Liberia); SC Res. 1315 (Aug. 14, 2000) (Sierra Leone).

48 This can be inferred from Resolution 1244 (June 10, 1999), which welcomed the acceptance by the Federal Republic of Yugoslavia of the settlement imposed upon it as a consequence of NATO’s recourse to force. Franck, supra note 20, at 163-71.

49 Article 4(h) of the Constitutive Act stipulates “the right of the Union to intervene in a Member State pursuant to a decision of the Assembly in respect of grave circumstances, namely: war crimes, genocide and crimes against humanity,” when such intervention is authorized by two-thirds of the members. Constitutive Act of the African Union, July 11, 2002, Art. 4(h), available at <http://www.africa-union.org>.

50 See James, E. Hickey Jr. Challenges to Security Council Monopoly Power over the Use of Force in Regional Enforcement Actions: The Case of Regional Organizations, 10 Ius Gentium 75 (2004).Google Scholar

51 Military and Paramilitary Activities in andAgainst Nicaragua (Nicar.v. U.S.), Merits, 1986 ICJ Rep. 14,109, para. 207 (June 27).

52 Letter from Daniel Webster, U.S. secretary of state, to Henry Fox, British minister in Washington (Apr. 24, 1841), quoted in 2 John Bassett Moore, A Digest of International Law 412 (1906)Google Scholar, and in 29 Brit. & Foreign St. Papers 1840-1841, at 1138 (1857).Google Scholar For a discussion, see 1 Oppenheim’s International Law 420-27 (Jennings, Robert & Watts, Arthur eds., 9th ed. 1992).Google Scholar

53 The difference, in this respect, between imminent attack and latent danger was amply evident to British foreign secretary Lord Castlereagh who, in 1820, wrote: “We shall be found in our place when actual Danger menaces the System of Europe, but this Country cannot and will not act upon abstract and speculative Principles of Precaution.” Castlereagh’s State Paper of 1820, Minute of Cabinet (May 5, 1820), quoted in Simpson, supra note 8, at 348.

54 Goldsmith, Lord Attorney General Clarifies Legal Basis for Use of Force Against Iraq, para. 11 (Mar. 18, 2003), at <http://www.fco.gov.uk> (statement in answer to a parliamentary question).Google Scholar

55 George, W. Bush Address Before a Joint Session of the Congress on the State of the Union (Jan. 28, 2003), 39 Weekly Comp. Pres. Doc. 109 (Feb. 3, 2003).Google Scholar

56 William, H. Taft IV & Todd, F. Buchwald Preemption, Iraq, and International Law, 97 AJIL 557 (2003).Google Scholar

57 The National Security Strategy of The United States of America, pt. III, at 6 (Sept. 17, 2002), available at <http://www.whitehouse.gov/nsc/nss.pdf>..>Google Scholar

58 Abraham, D. Sofaer On the Necessity of Pre-emption, 14 Eur. J. Int’l L. 209, 211 (2003).Google Scholar

59 A More Secure World, supra note 21, at 54, para. 188.

60 “Imminent threats are fully covered by Article 51 . . . . “ In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005, para. 124, available at <http://www.un.org/largerfreedom/contents.htm>.

61 An example is Israel’s attack on Egypt in 1967, after the Egyptian government unilaterally had ordered the withdrawal of the United Nations Emergency Force, which since 1956 had served as a buffer between the two enemies, and had redeployed its own forces to occupy the buffer zone in threatening posture, while declaring the closure to Israeli shipping of the Gulf of Aqaba and the Strait of Tiran. 1967 UN Y.B. 164-68.

62 A More Secure World, supra note 21, at 54-55, para. 189.

63 Resolutions 1368 (Sept. 12, 2001) and 1373 (Sept. 28, 2001), respectively, recognize the right to take individual and collective measures in the aftermath of the attack by Al Qaeda on the United States.

64 This view was best (and surprisingly) expressed recently by Prime Minister Tony Blair: “The best defence of our security lies in the spread of our values. But we cannot advance these values except within a framework that recognises their universality. If it is a global threat, it needs a global response, based on global rules.” Full Text: Tony Blair’s Speech, Guardian Unlimited, Mar. 5, 2004, available at <http://politics.guardian,co.uk/iraq/story/0,12956,1162991,00.html#article_continue>..>Google Scholar