¹ Among the earliest critics denying the legal character of international law, see T. Hobbes, De Cive (Warrender ed.), Chap. XIV, para. 4; Pufendorf, S., De Jure Naturae et Gentium (1688), Bk. II, Ch. III, para. 23Google Scholar; and Bentham, J., View of a Complete Code of Laws (Bowring ed.), Chap. IV, Vol. 3, 162.Google Scholar

² Austin, J., The Province of Jurisprudence Determined 122–25 (1832).Google Scholar

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⁴ This conclusion is most frequently deduced after a superficial appraisal of the apparent failure of the international legal system to possess, at an effective level, those attributes commonly associated with domestic legal systems — legislative, judicial, and executive organs. In response, see Scott, J. B., “The Legal Nature of International Law,” (1907) 1 Am. J. Int’l L. 831–66Google Scholar and D’Amato, A., “The Relation of Theories of Jurisprudence to International Politics and Law,” (1970) 27 Washington & Lee L. Rev. 257–77.Google Scholar

⁵ Brownlie, I., “The Reality and Efficacy of International Law,” (1981) 52 B.Y.I.L. 1, 8.Google Scholar

⁶ As a result, international legal commentaries are frequently prefaced by defences of the legal character of international law. See Lauterpacht, H., Collected Papers (1970), Vol. 5, 9–50 Google Scholar and Akehurst, M., A Modern Introduction to International Law 1 (6th ed., 1987).Google Scholar

⁷ Among the multitude of important decisions by municipal courts considering matters of international law, see Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] Q.B. 529, 553–54; Filartiga v. Pena-Irala, 630 F. 2d 876 (1980); and Greenham Women Against Cruise Missiles v. Reagan, 591 F. Supp. 1332 (1984).

⁸ At least one commentator has asserted that this exercise is merely a matter of linguistic semantics. See Williams, G.L., “International Law and the Con–troversy Concerning the Word ‘Law’,” (1945) 22 B.Y.I.L. 146, 163Google Scholar. See also D’Amato, A., International Law: Process and Prospect 10–13 (1987).Google Scholar

⁹ It is a trite observation to point out that, should international law fail to meet the qualifications or characteristics that have traditionally been identified as defining law, this would not necessarily imply ipso facto that international law does not exist. Such a conclusion would merely suggest that international law may be differentiated from other manifestations of legal bodies by application of a set of subjective criteria.

¹⁰ See Johnston, D. M., “Functionalism in the Theory of International Law,” (1988) 26 Canadian Yearbook of International Law 3, 14–29.Google Scholar

¹¹ See Landheer, B., The Sociology of International Law 27–35 (1966)Google Scholar; Gould, B.T. and Barkun, M., International Law and the Social Sciences 49–93 (1970)Google Scholar; and Barkun, M., Law without Sanctions 59–74 (1968).Google Scholar

¹² For a description and critique of the positivist movement in international legal analysis, see Boyle, W.A., World Politics and International Law 17–74 (1985).Google Scholar

¹³ Schwarzenberger, G., The Frontiers of International Law 21–42 (1962)Google Scholar; Carr, E.H., The Twenty Years’ Crisis 227–28 (1939)Google Scholar; and Murphy, C.P., “Some Reflections upon Theories Concerning the Nature of Law,” (1970) 70 Col. L. Rev. 447–63.Google Scholar

¹⁴ See Stein, P. and Shand, J., Legal Values in Western Society 1–17 (1974)Google Scholar; Ehrlich, E., The Fundamental Principles of the Sociology of Law 26–38 (1936)Google Scholar; and Friedmann, W., Law in a Changing Society 3–23 (1959).Google Scholar

¹⁵ See Friedman, L.M., Law and Society 3–9 (1977).Google Scholar

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¹⁷ These laws are most frequently moulded and forged by social forces which value the preservation of life and the protection of property. See Dinstein, Y., “International Law as a Primitive Legal System,” (1986) 19 New York Univ. J. Int’l L. and Pol. 1–32.Google Scholar

¹⁸ Since anarchy, chaos, and destruction are not, on the whole, either desirable or beneficial to the growth and development of a community, basic rules call for the protection of the individual from harm. See Black, D.J., The Behavior of Law 123–37 (1976).Google Scholar

¹⁹ Oppenheim, L., International Law, Vol. 1, para. 7, 11–13 (8th ed., 1955)Google Scholar; Brierly, J. L., The Law of Nations 41–45 (6th ed., 1963)Google Scholar; Friedmann, W., The Changing Structure of International Law 3–19 (1964)Google Scholar; and D’Amato, A., Jurisprudence: A Descriptive and Normative Analysis of Law 207–17 (1984).Google Scholar

²⁰ See generally, Pettman, R., State and Class (1976).Google Scholar

²¹ The use of this single term to identify entities which often have little in common in terms of social stratification, political organization, or cultural homogeneity is a gross oversimplification which in fact merely assists in obscuring the social forces and processes at work in international relations.

²² Certain theorists believe that the international society is drifting away from the exclusive state paradigm. See De Lupis, I., The Concept of International Law 18–34 (1987)Google Scholar, and Sohn, L.B., “The New International Law Protection of the Rights of the Individual Rather than States,” (1982) 32 Am. Univ. L. Rev. 1.Google Scholar

²³ See Hinsley, F.H., Sovereignty (1966)Google Scholar; van Kleffens, E.N., “Sovereignty in International Law,” (1953) 82 Hague Recueil 13–39 Google Scholar; and Gross, L., “The Peace of Westphalia, 1648–1948,” in Essays on International Law and Organization 3–21 (1948).Google Scholar

²⁴ See Strayer, J.R., On the Medieval Origins of the Modern State (1970)Google Scholar. The interaction and influence of feudalism on the law of nations is described in Ward, R., An Enquiry into the Foundations and History of the Law of Nations in Europe (1795), Vol. 1, 337–95.Google Scholar

²⁵ De Visscher, C., Theory and Reality in Public International Law 3–8 (trans, by Corbett, , 1968).Google Scholar

²⁶ Perhaps the most important jurist to prescribe the subjection of the totality of international relations to the rule of law was Grotius, in De Jure Belli Ac Pads Libri Tres (1625). See Lauterpacht, H., “The Grotian Tradition in International Law,” (1946) 23 B.Y.I.L. 1, 19–21.Google Scholar

²⁷ In The Antelope, 10 Wheaton 66 (1825), Chief Justice Marshall stated: “No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one [state] can rightfully impose a rule on another.” See also the dictum of Judge Anzilotti, in the Austro-German Customs Union case (1931) P.C.I.J. Reports, Series A/B, No. 41, 34, 57.

²⁸ Kaplan, M. and Katzenbach, N., The Political Foundations of International Law 30–55 (1961)Google Scholar; Starke, J. G., “Elements of the Sociology of International Law,” (1965) I Australian Yb. I.L. 119–36Google Scholar; and Wright, Q., The Study of International Relations 222–28 (1955).Google Scholar

²⁹ Beitz, C. R., Political Theory and International Relations 154–61 (1979).Google Scholar

³⁰ Wight, M., Power Politics 105 (2nd ed., 1986).Google Scholar

³¹ See Schwarzenberger, G., Power Politics 24–41 (3rd ed., 1964)Google Scholar; Schwarzenberger, G., “Gitivas Maxima?,” (1975) 29 Yb. W.A. 337–68Google Scholar; and Corbett, P. E., Law and Society in the Relations of States 36–67 (1951).Google Scholar

³² See generally, Jacobsen, H., Networks of Global Interdependence (2nd ed., 1983).Google Scholar

³³ See Friedmann, W., The Changing Structure of International Law 152–87 (1964)Google Scholar, and the same author in “The Changing Dimensions of International Law,” (1962) 62 Col. L.R. 1147–65.

³⁴ See Bozeman, A., The Future of Law in a Multicultural World 180–81 (1971)Google Scholar; Schwarzenberger, G., The Dynamics of International Law 107–29 (1976)Google Scholar; and Green, L. C., “Is There a Universal International Law Today?,” (1985) 23 Canadian Yearbook of International Law 3–33.Google Scholar

³⁵ Note the comment of Fieldhouse, D. K. in Colonialism, 1870–1945, at 15 (1981)Google Scholar: “[T]he concept of a permanent unitary state with fixed frontiers was largely a European importation into other parts of the world and ‘nations’ based on such concepts and demarcations are the product of colonialism.” See also Cassese, A., International Law in a Divided World 47–50 (1986)Google Scholar; and Snyder, F. E. and Sathirathai, S., Third World Attitudes Towards International Law (1987).Google Scholar

³⁶ See Sinha, S. P., New Nations and the Law of Nations 64–134 (1967)Google Scholar; Gittleman, A., “The African Charter on Human and Peoples’ Rights: A Legal Analysis,” (1982) 22 Virginia J. Int’l L. 667 Google Scholar; and Bedjaoui, M., Towards a New International Economic Order 127 (1979)Google Scholar. For an analysis of this movement in the International Court, see McWhinney, E., The World Court and the Contemporary International Law-Making Process 17–33 (1979).Google Scholar

³⁷ McDougal, M. S. and Reisman, W. M., “International Law jn Policy–Oriented Perspective,” in Macdonald, R. St. J. and Johnston, D. M., The Structure and Process of International Law 103–29 (1983)Google Scholar, and Garcia-Amador, , “Current Attempts to Revise International Law: A Comparative Analysis,” (1983) 77 Am. J. Int’l L. 286.Google Scholar

³⁸ See Pettman, op. cit. supra note 20, at 59–66; Jessup, P. C., Transnational Law 1–34 (1956)Google Scholar; and Keohane, R. O. and Nye, J. S., Transnational Relations and World Politics (1972).Google Scholar

³⁹ As one eminent political scientist observed, “Law is not an abstraction.… No political society can exist without law, and law cannot exist except in a political society. Politics and law are indissolubly intertwined; for the relations of man to man in society which are the subject–matter of the one are the subject matter of the other”: Ε. Carr, H., The Twenty Years’ Crisis 227–28 (1939)Google Scholar. See also Westlake, J., Chapters on International Law 3 (1894)Google Scholar; Oppenheim, L., International Law, Vol. 1, para. 7, 11–13 (8th ed., 1955).Google Scholar

⁴⁰ Murphy, supra note 13, at 451–52.

⁴¹ Hart, H. L. A., The Concept of Law 77–96 (1961).Google Scholar

⁴² See Green, L. G., “Is International Law Law?,” in Law and Society (1975) and Lauterpacht, H., Collected Papers, Vol. 1, 12 (1970).Google Scholar

⁴³ Note the comment of Brierly, , in The Law of Nations 113 (6th ed., 1963)Google Scholar: “No political institution can work unless it is adapted to the special conditions of its society, and it is no more possible to conjure away the weakness of the present loose society of independent states by endowing it with institutions appropriate to a society of a more advanced type than it is to turn a nation into a democracy by giving it a democratic constitution.”

⁴⁴ Indeed, quite the opposite, since a group, by constituting a society, will germinate law.

⁴⁵ For example, it is not necessary to delve far into the political history of England, the home of the common law tradition, to observe that the functions of legislative promulgation, judicial determination, and executive enforcement were all united under the absolute administration of the monarchy. See Pollock, F., and Maitland, F., The History of English Law, Vol. 1, 174–78 (2nd ed., 1898)Google Scholar, and Bracton, , On the Laws and Customs of England, Vol. 2, 19, 21–22 (trans, by Thorne, S. E., 1968).Google Scholar

⁴⁶ In reply to the assertion that the doctrine of the separation of powers is an element of the international legal system, the International Court stated: “The argument of the United States as to the powers of the Security Council and of the Court is an attempt to transfer municipal–law concepts of separation of powers to the international plane, whereas these concepts are not applicable to the relations among international institutions for the settlement of disputes.” Nicaragua v. United States {Jurhdiction) [1984] I.C.J. Rep. 169, para. 92.

⁴⁷ See Brownlie, I., “The Relation of Law and Power,” in Cheng, B. and Brown, E. D., Contemporary Problems of International Law 19–24 (1988).Google Scholar

⁴⁸ As one of the most prolific jurists of the twentieth century observed, “it is more scientific to regard international law as incomplete and in a state of transition to a true society of states under the organized and binding rule of law, as generally recognized and practised by civilized communities within their borders than that, as the result of the well–meant desire to raise its authority as law, it should be treated as a species of wider conception of law so diluted and deprived of its imperative essence that it is not law at all”: Lauterpacht, H., Collected Papers Vol. 1, 200 (1970).Google Scholar

⁴⁹ Bull, H., The Anarchical Society 136 (1977).Google Scholar

⁵⁰ If an identical profile could be established between prescribed conduct and actual behaviour, it would be unnecessary to create rules.

⁵¹ Henkin, L., How Nations Behave 28–97 (2nd ed., 1979)Google Scholar, and Morgenthau, H., Politics among Nations 273–74 (5th ed., 1973).Google Scholar

⁵² Illustrations of diplomatic correspondence phrased in terms of international law are documented in Vallat, F., International Law and the Practitioner (1966)Google Scholar. See also Merillat, H. C. L., Legal Advisers and International Organizations (1966)Google Scholar; Jessup, P., “The Reality of International Law,” (1939–40) 18 Foreign Affairs 244–46Google Scholar; and Falk, R. A., “Law, Lawyers and the Conduct of American Foreign Relations,” (1968) 78 Yale L.J. 919–34.Google Scholar

⁵³ See Tunkin, G. I., Contemporary International Law 20 (1969)Google Scholar, and Brierly, J. L., The Basis of Obligation in International Law 310 (1958).Google Scholar

⁵⁴ Note the cogent comment made in connection with the principle of nonintervention by Ronnings, in Law and Politics in Inter-American Diplomacy 83 (1963)Google Scholar: “When the apparent necessity of intervention appears to outweigh any long–term advantages of preserving the principle of non–intervention, states will resort to the former.”

⁵⁵ As one commentator observed, “Powerful states may violate international obligations; they may do so with relative impunity or they may pay a price. But they also have a critical stake in stability and an acute sense of countervailing power. A decentralized legal system can operate because of the factors of self–interest and reciprocal reactions”: Schachter, O., “Intervention by Armed Force in International Conflicts,” (1982) 178 Hague Recueil 165.Google Scholar

⁵⁶ See the dictum of the International Court in the Case Concerning U.S. Diplomatic and Consular Staff in Tehran [1980] I.C.J. Rep. 3.

⁵⁷ Where self–interest is best promoted by egocentric policies, state foreign policy will be pursued according to this principle. In the Second World War, where many of the principles of the laws of armed conflict were engulfed by the concept of “total war,” such laws held limited utility. This was recognized by Hersch Lauterpacht in his article entitled “The Problem of the Revision of the Law of War,” (1952) 39 B.Y.I.L. 360–82, at 364.

⁵⁸ See Schwarzenberger, G., “Law, Order and Legitimation,” (1970) 23 Current Legal Problems 240–63.CrossRefGoogle Scholar

⁵⁹ Lotus case (1927) P.C.I.J. Reports, Series A, No. 10.

⁶⁰ See Hoffman, S., “The Uses and Limits of International Law,” in Art, R. J. and Jervis, R., International Politics 126–30 (2nd ed., 1985).Google Scholar

⁶¹ Consideration of this problem is undertaken by Georg Schwarzenberger in his article entitled “The Misery and Grandeur of International Law,” (1964) 17 Current Legal Problems 184–210. In this article this distinguished jurist considers the problems involved in the application of international law to a number of problems including apartheid, the Cuban missile crisis, and the application of the Nuclear Test Ban Agreement, 1963.

⁶² Schwarzenberger, G., Power Politics 218–31 (3rd ed., 1964).Google Scholar

⁶³ See Buergenthal, T. and Maier, H. G., Public International Law 9 (1985).Google Scholar

⁶⁴ See Higgins, R., Conflict of Interests: International Law in a Divided World (1965)Google Scholar; and McDougal, M. S., “International Law, Power and Policy: A Contemporary Conception,” (1953) 82 Hague Recueil 137–258.Google Scholar

⁶⁵ See, for example, Brownlie, I., “Certain Aspects of the Legality of Nuclear Weapons,” (1965) I.C.L.Q. 437–51.CrossRefGoogle Scholar

⁶⁶ From (1963) 57 Proc. A.S.I.L. 13–15, at 14. On the illegality of the American action at this time, see Wright, Q., “The Cuban Quarantine,” (1963) 57 Am. J. Int’l L. 546–65CrossRefGoogle Scholar, where the author concludes: “The Cuban quarantine … demonstrates the reluctance of a great Power to observe its legal obligations when dealing with unpalatable action or attitudes of a small state, especially when the small state is located in a position of strategic importance to the great Power.”

⁶⁷ For an evaluation of the role of legal advice in the Cuban Missile Crisis, see Chayes, A., The Cuban Missile Crisis 39–40 (1974)Google Scholar, and the statements made by Oliver, and Chayes, in The Inter-American Security System and the Cuban Crisis 55–56 (1964).Google Scholar

⁶⁸ (1965) 52 U.S. Department of State Bull. 745–46. The legal statements made by Johnson in this affair have been described as “clearly pretextual.” See Franck, T. and Weisband, E., “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own,” (1970) 22 Stanford L. Rev. 979.CrossRefGoogle Scholar

⁶⁹ For a legal formulation that accommodates the doctrine of the spheres of influence, see Reisman, W. M., “Old Wine in New Bottles: The Reagan and Brezhnev Doctrines in Contemporary International Law and Practice,” (1988) 13 Yale J. Int’l L. 171–98Google Scholar, and Reisman, W. M., “Critical Defense Zones and International Law: The Reagan Codicil,” (1982) 76 Am. J. Int’l L. 589 Google Scholar. Finally, note the Separate Opinion of JudgeMcNair, in the International Status of South–West Africa case, [1950] I.C.J. Rep. 153.Google Scholar

⁷⁰ See Franck, T. M. and Weisband, E., “Regional Intervention by the Superpowers: A Study of Words and Acts as Inchoate Law-Making,” in Rodley, N. S. and Ronning, C. N., International Law in the Western Hemisphere 99–111 (1974).CrossRefGoogle Scholar

⁷¹ (1968) 20 Current Digest of the Soviet Press, No. 46, 3–4. See Tunkin, G., Theory of International Law 435–36 (1974).Google Scholar

⁷² In relation to changes in Soviet foreign policy, see Quigley, J., “Perestroika and International Law,” (1988) 82 Am. J. Int’l L. 247–54.Google Scholar

⁷³ For an excellent study of the Reagan administration record on foreign policy and international law, see Malawer, S., “Reagan’s Law and Foreign Policy, 1981–1987: The ‘Reagan Corollary’ of International Law,” (1988) 29 Harv. Int’l L.J. 85–109 Google Scholar. See also Henkin, L., “International Law and National Interest,” (1986) 25 Col. J. Transnat’l L. 1 Google Scholar, and Comment, “Does the U.S. Government Think that International Law Is Important?,” (1986) 11 Yale J. Int’l L. 479.

⁷⁴ See Dore, I. I., “The United States, Self–defence and the U.N. Charter: A Comment on Principle and Expediency in Legal Reasoning,” (1987) 24 Stanford J. Int’l L. 1–19.Google Scholar

⁷⁵ For example, Art. 3 of this treaty states: “In order more effectively to achieve the objectives of this treaty, the Parties, separately and jointly, by means of continuous and effective self–help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack.” 34 UNTS 243.

⁷⁶ (1972) 11l Int’l Leg. Mat. 784–803.

⁷⁷ Also the Test Ban Treaty, 1963, Art. 4, 480 U.N.T.S. 43.

⁷⁸ See the Connally Amendment and the reservations made to the compulsory jurisdiction of the ICJ by the United States and the United Kingdom. On the legality of such reservations, see the Separate Opinion of JudgeLauterpacht, in the Certain Norwegian Loans case, [1973] I.C.J. Rep. 9, 101–2Google Scholar, and the Separate Opinion of JudgeSchwebel, in Nicaragua v. United States (Jurisdiction) , [1984] I.C.J. Rep. 169, 601–2.Google Scholar

⁷⁹ This declaration was revoked with effect six months from Oct. 7, 1985. See U.S. Department of State File No. P.85 0189–0461.

⁸⁰ In recent years, several parties to the Statute have modified their acceptance of the compulsory jurisdiction of the Court to exclude matters relating to national security and self-defence.

⁸¹ On the whole, this assertion has been rejected by most commentators, or at least restricted to narrow parameters. See Lauterpacht, H., The Function of Law in the International Community 139–65 (1933)Google Scholar; Sohn, L. B., “Exclusion of Political Disputes from Judicial Settlement,” (1944) 38 Am. J. Int’l L. 694–700 Google Scholar; and Williams, J. F., “Justiciable and Other Disputes,” (1932) 26 Am. J. Int’l L. 31–36 Google Scholar. More recently, see Brownlie, I., “The Justiciability of Disputes and Issues in International Relations,” (1967) 42 B.Y.I.L. 123–43.Google Scholar

⁸² Nicaragua v. United States (Jurisdiction), [1984] I.C.J. Rep. 392, para. 92.

⁸³ United States Diplomatic and Consular Staff in Tehran, [1980] I.C.J. Rep. 21.

⁸⁴ (1985) 24 Int’l Leg. Mat. 246. See also Moser, Judge, “The Doctrine of Non–Justiciability in International Law,” in Cheng, B. and Brown, E. D., Contemporary Problems of International Law (1988)Google Scholar, and D’Amato, A., International Law: Processes and Prospect 223–32, esp. 224 (1987).Google Scholar

⁸⁵ Hence the examples of resort to the International Court of Justice on numerous occasions, by the mutual agreement of the parties concerned.

⁸⁶ Brierly, J. L., “Matters of Domestic Jurisdiction,” (1925) 6 B.Y.I.L. 8–19 Google Scholar, and contrast with Brownlie, I., Principles of Public International Law 291–93 (3rd ed., 1979).Google Scholar

⁸⁷ See Henkin, L., “International Law as Law in the United States,” (1984) Mich. L. Rev. 1555 Google Scholar; Henkin, L., Foreign Affairs and the Constitution (1972)Google Scholar; and Jackson, J. H., “Treaties in United States Law,” in Jacobs, F. G. and Roberts, S., The Effect of Treaties in Domestic Law 123–39 (1987)Google Scholar. See also Whitney v. Robertson, 124 U.S. 190 (1888). For the United Kingdom, see Mann, F. A., Foreign Affairs in English Courts (1986)Google Scholar; and R. Higgins, “Treaties in the United Kingdom,” in Jacobs and Roberts, ibid. For Canada, see Macdonald, R. St. J., “The Relationship between International Law and Domestic law in Canada,” in Macdonald, R. St. J. and Johnston, D. M.1, Canadian Perspectives on International Law and Organization 88 (1974)Google Scholar. Also Attorney–General for Canada v. Attorney–General for Ontario, [1937] A.C. 326.

⁸⁸ See I Congreso del Partido, [1983] A.C. 244, and Alcom v. Republic of Colombia, [1984] 2 W.L.R. 750. As Chief Justice Marshall once observed, “[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains” : The Charming Betsy, 6 U.S. (2 Cranch) 56, 118 (1804).

⁸⁹ In the Paquete Habana, Mr. JusticeGray, stated that “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending on it are duly presented for their determination”: 175 U.S. 677, 700 (1900)Google Scholar. See also Respublica v. De Longchamps, 1 U.S. (1 Dallas) 111 (1784).

⁹⁰ 28 U.S.C, para. 1331.

⁹¹ 28 U.S.C, para. 1332.

⁹² 28 U.S.C, para. 1333.

⁹³ 28 U.S.C, para. 1251.

⁹⁴ 28 U.S.C, para. 1350. See Filartiga v. Pena-Irala, 630 F. 2nd 876 (1980) and Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (1983). For commentary on the application of this section, see Cole, D., “Challenging Covert War: The Politics of the Political Question Doctrine,” (1985) Harv. Int’l L. J. 155–88.Google Scholar

⁹⁵ Lieverman, T. M., “Law and Power: Some Reflections on Nicaragua, the United States and the World Court,” (1986) 10 Maryland J. Int’l L. Google Scholar and Trade 295, and Brown, C., “Enforcement of ICJ Decision in United States Courts,” (1987) 11 Maryland J. Int’l L. and Trade 73.Google Scholar

⁹⁶ See Jones, , “The Legal Nature of the European Communities : A Jurisprudential Analysis Using Hart’s Model of Law and a Legal System,” (1984) 17 Cornell Int’l L.J. 1.Google Scholar

⁹⁷ See International Fruit Company case, [1973] E.C.R. 1219, and Pescatore, P., “Treaty-Making by the European Communities,” in Jacobs, F. G. and Roberts, S., The Effect of Treaties in Domestic Law 171–95 (1987).Google Scholar

⁹⁸ Duffy, , “English Law and the European Convention on Human Rights,” (1980) 29 I.C.L.Q. 585 Google Scholar, and Drzemczewski, , European Human Rights Convention in Domestic Law 177–98 (1982).Google Scholar

⁹⁹ This is particularly the case in relation to the futility of applying rules of international law in attempts to outlaw nuclear weapons. Certain jurists attempt to construct arguments to ban such weapons, including Meyro-witz, E. L., “The Laws of War and Nuclear Weapons,” (1983) 9 Brooklyn J. Int’l L. 227–58Google Scholar; and Falk, R., “Towards a Legal Regime for Nuclear Weapons,” in Miller, A. and Feinrider, M., Nuclear Weapons and Law 107–28 (1982)Google Scholar. However, Hersch Lauterpacht, commenting on the legal propriety of such formulations, stated: “It would appear that the total elimination or limitation … of the use of the atomic weapon cannot be accomplished by way of a restatement of an existing rule of law. Such a restatement denying the legality of the use of the atomic weapon must, of necessity, be based on controversial deductions from supposedly fundamental principles established in conditions vastly different from those obtaining in modern—total and scientific — war.” Lauterpacht, H., “The Problem of the Revision of the Law of War,” (1952) 39 B.Y.I.L. 360–82, 364.Google Scholar