The existence of a significant relationship between the concept of the balance of power and international law would be regarded as improbable by most modern international lawyers. They would think of the balance as a wholly obsolete conception and, in any case, as a part of international policy, or worse, part of cynical Realpolitik rather than of law. Earlier generations of jurists, however, did see international equilibrium either as an integral part of the system of rules of the law of nations or at least as a necessary precondition to the existence of such a law. Such a view of the interrelationship was never unanimous; indeed, there were in the past many legal observers who saw the balance of power as an obstacle to the development of an international legal order based on something more moral than force alone. This article is devoted to a study of the relationships between those two concepts as seen by the publicists who created the corpus of international law, principally during the period from the Peace of Westphalia in 1648 to the outbreak of World War I in 1914. It is not a study of the balance of power at large—a topic to which volumes might be dedicated—but only of that idea’s relationship with law.

Since 1964 the United States has restricted military exports to the Republic of South Africa and to Namibia in compliance with a voluntary arms embargo established by the United Nations. In 1977 the United Nations, with United States support, made this ban mandatory. Shortly thereafter, the Department of Commerce significantly broadened U.S. export restrictions by prohibiting all exports—not merely arms and other military equipment—that the exporter knows or has reason to know are destined for use by the South African military or police.

The phenomenon to which the expression “flags of convenience” is applied dates back to the end of the First World War when certain nontraditional maritime countries, especially Panama, Liberia, and Honduras, started to register foreign-owned vessels under their flags for economic reasons and exercised minimal control over the activities and operations of these vessels. This practice aroused considerable controversy and opposition. The seafarers’ unions were concerned about the low standards alleged to prevail on these vessels and about the loss of job opportunities for seamen from traditional maritime countries. The shipowners from certain European countries, supported by their governments, saw the practice as one that generated serious competition against them, especially because of the virtual tax-free concessions accorded to the owners of flags of convenience vessels.

In a series of articles in this Journal, Professor Robert Wilson drew attention to the incorporation of references to international law in United States statutes, a technique designed to allow recourse to international law by the courts in interpreting and implementing those statutes, and, consequently, to help ensure conformity between international and U.S. law. The purpose of this article is to survey the references, direct and indirect, to international law in the 20th-century statutes of two Commonwealth countries in order to see to what extent similar techniques have been adopted. The choice of the United Kingdom and the Commonwealth of Australia as the subjects of this survey is no doubt somewhat arbitrary (although passing reference will be made to the legislation of Canada and New Zealand). But the United Kingdom, a semi-unitary state whose involvement in international relations has been substantial throughout the century, and the Commonwealth of Australia, a federal polity with substantial legislative power over foreign affairs and defense -whose international role has changed markedly since 1901, do provide useful examples of states with constitutional and legislative continuity since 1901, and (as will be seen) considerable legislative involvement in this field.

The material in this section is arranged according to the system employed in the annual Digest of United States Practice in International Law, published by the Department of State.