The claim by the United States to a right of what has come to be known as “preemptive selfdefense” has provoked deep anxiety and soul-searching among the members of the college of international lawyers. Some have feared that the claim signaled a demand for the prospective legitimation of “Pearl Harbor” types of actions, that is, sudden, massive, and destructive military actions “out of the blue,” by one state against another in the absence of a state of war, with the objective of militarily neutralizing or even eliminating a latent or potential adversary. Since some public intellectuals within the American political system had recommended such a strategy with respect to the People’s Republic of China in the midst of the Cold War, the anxiety could not be dismissed as entirely unfounded or even hysterical. Nor could it be ignored as if it were some sort of exclusively American aberration that could be tolerated as the idiosyncrasy of one state. From the earliest unilateral claims to a continental shelf, a copycat or mimetic dynamic in modern international law has taken shape whenever an enhancement of state power has become available, so that the possibility of similar claims to an expanded notion of preemptive self-defense by many other states could not be excluded. Indeed, while the United States may now have retreated somewhat from its 2002 broad claim to preemption, various other states (including some with nuclear weapons) have adopted the preemptive self-defense claim as their own. If the U.S. claim posed potentially destabilizing consequences for world order, how much more so would proliferation of the claim?

Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of equal status must be balanced and reconciled to the extent possible. The mode of legal reasoning applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.

To discuss the history of international economic law since the American Journal of International Law was first published in 1907 requires the author to project categories common to the parlance of 2006 back to times when theywere unknown. So far as it appears, the term did not become current until after World War II. Its scope is controversial. According to one definition, it encompasses “the total range of norms (directly or indirectly based on treaties) of public international law with regard to transnational economic relations.” A wide variety of international law rules have been said to have a financial impact somewhere. For practical purposes, in this essay I define international economic law as the international law regulating transborder transactions in goods, services, currency, investment, and intellectual property. I exclude from the inquiry issues of private international law, as well as of economic warfare.

Just over sixty years ago, the international community, seeking to heal the wounds of a brutal war, embarked on a bold legal experiment. For the first time in history, legal mechanisms were invoked to bring to justice the perpetrators of war crimes and crimes against humanity in international tribunals specifically established for that purpose. The trials at Nuremberg and Tokyo were extraordinary and risky; and, above all, unique in their time.

The American Journal of International Law (AJIL) stands in dialectical tension between its American and its international identities. At its founding, and in periodic reassessments on the occasion of anniversaries or changes of leadership, its editors in chief have offered their understandings of the place for this Journal at the intersection of American and international life. One of our predecessors wrote in the Journal’s sixth decade of “a dual function, both that of laying international law material before American readers, and that of placing American viewpoints on international law before the rest of the world.” Poised at the threshold of a new century, we can take this opportunity for reflection in the image of Janus on both our American (internationalist) origins and our increasingly international (yet in some senses still American) future.

Few, if any, branches of international law have undergone such dramatic growth and evolution as international human rights in the one hundred years since the founding of the American Society of International Law. This branch of international law did not really come into its own until after World War II. Before then, what today we would broadly characterize as human rights law consisted of diffuse or unrelated legal principles and institutional arrangements that were in one way or another designed to protect certain categories or groups of human beings. Included in this mix prior to World War I were state responsibility for injuries to aliens, international humanitarian law (as we know it today), the protection of minorities, and humanitarian intervention.

International organizations (or IOs)—intergovernmental entities established by treaty, usually composed of permanent secretariats, plenary assemblies involving all member states, and executive organs with more limited participation—are a twentieth-century phenomenon having little in common with earlier forms of institutionalized cooperation, including those in the ancient world. The story of how, shortly after the turn of the last century, the Euro-American lawyers that dominated the field of international law sought to transcend the chaos of war by “moving to institutions” has been told elsewhere and needs no repeating here. David Kennedy, Martti Koskenniemi, and David Bederman, among others, have described the disparate individuals, separated by nationality, juridical philosophy, and competing “idealist”/“realist” schools of thought, who nevertheless shared a messianic, quasi-religious, and coherent “internationalist sensibility” that sought to institutionalize multilateral diplomacy with a view to promoting civilization and progress. Kennedy locates the move to international organization in turn-of-the-century reformist aspirations for parliamentary, administrative, and judicial mechanisms that, in the Victorian language of the day, would convert “passion into reason.” By the time this Journal was established, the Congress of Vienna’s concert system had provided a model for an incipient (albeit only periodic) pseudo-parliament; diverse public administrative unions and river commissions suggested the possibilities for international administration and even the interstate pooling of funds; and the Permanent Court of Arbitration presaged an international judiciary.

Within the existing framework of international law, is it legitimate for an occupying power, in the name of creating the conditions for a more democratic and peaceful state, to introduce fundamental changes in the constitutional, social, economic, and legal order within an occupied territory? This is the central question addressed here. To put it in other ways, is the body of treaty-based international law relating to occupations, some of which is more than a century old, appropriate to conditions sometimes faced today? Is it still relevant to cases of transformative occupation—i.e., those whose stated purpose (whether or not actually achieved) is to change states that have failed, or have been under tyrannical rule? Is the newer body of human rights law applicable to occupations, and can it provide a basis for transformative acts by the occupant? Can the United Nations Security Council modify the application of the law in particular cases? Finally, has the body of treaty-based law been modified by custom?

The observation that a century in the life of any person, entity, or institution is a worthy milestone holds just as true for a scholarly journal. The prevalence and permanence of academic serials, especially in the legal field, has spawned a growing literature of centennial commemorations. And while too much can be made of the anniversary of a law journal, it does serve as a propitious moment to take stock, not so much of the achievement of longevity as of its intellectual content and scholarly character. That is precisely what I intend for this appreciation of a hundred years of writing in the American Journal of International Law (AJIL).

Nongovernmental organizations (NGOs) have exerted a profound influence on the scope and dictates of international law. NGOs have fostered treaties, promoted the creation of new international organizations (IOs), and lobbied in national capitals to gain consent to stronger international rules. A decade ago, Antonio Donini, writing about the United Nations, declared that “the Temple of States would be a rather dull place without nongovernmental organisations.” His observation was apt and is suggestive of a more general thesis: had NGOs never existed, international law would have a less vital role in human progress.

The resolution of conflicting claims to land has long stood at the heart of the project of international law. Indeed, the encounter between the order envisaged by advocates of the law of nations and what Georges Scelle called the “obsession with territory” has been a defining struggle for our field, demonstrating to some its promise and to others its futility. Much, perhaps even most, legal scholarship on this subject over the last century has focused on adjudication by ad hoc tribunals or standing courts, in which jurists have derived and invoked hallowed principles that enabled them to draw lines—across mountains, deserts, rivers, and human settlements—where mere politicians had never succeeded. The doctrines on territorial sovereignty emanating from these decisions suggested a bright future for law. Yet a more pessimistic appraisal would see a darker image, one characterized by war—interstate, colonial, and civil—and territorial settlement whose lines have reflected power and politics, but surely not norms. Adjudications could be viewed as a sideshow for addressing small-scale conflicts, the results dictated more by a desire to appease both parties than by reasoning toward some principled solution.

A hundred years ago, the American Journal of International Law (AJIL) was founded by a group of publicists who believed that international law could abolish (or at least substantially diminish) the role of power in world affairs. So deep was this belief that it often served as a background operating assumption in international legal scholarship and did not even require discussion. But since 1940, dozens of articles in the Journal have focused on the relationship between law and power. Indeed, many AJIL articles have been written by scholars and practitioners whose life work has focused on power and international law—how power constrains international law (or dooms it to irrelevance), how the powerful can harness international law to their ends, and how international law may autonomously reconfigure power in its own right.

The last fifteen years have seen a proliferation of peace agreements. Some 50 percent of civil wars have terminated in peace agreements since 1990, more than in the previous two centuries combined, when only one in five resulted in negotiated settlement. Numerically, these settlements amount to over three hundred peace agreements in some forty jurisdictions. International standards have even begun to regulate peace agreements. United Nations guidelines, guidelines and recommendations of the secretary-general, and Security Council resolutions have all normatively addressed peace agreements: both the processes by which they are negotiated and their substance, particularly with relation to accountability for past human rights abuses.

The American Society of International Law (ASIL), incorporated by Act of Congress in 1950, was founded in 1906 “to promote the establishment and maintenance of international relations on the basis of law and justice.” As we celebrate the centennial of this, the Society’s principal publication, it is appropriate to examine the present and future prospects of this project. Is it still a compelling aspiration in the era of U.S. superpower-dom?

The founding of the Society and initiation of the Journal (AJIL) must be seen in the context of the then-prevalent American commitment to the idea that a world of international law and international tribunals would be a natural, even historically inevitable, extrapolation of a good American idea. Speaking in 1890 to the first Pan-American Conference, President Benjamin Harrison congratulated the delegates on formulating a hemispheric arbitration agreement. “We rejoice,” he said, “that you have found in the organization of our Government something suggestive and worthy of imitation.” At The Hague in 1907, Secretary of State Elihu Root, the founding president of the ASIL, called for the creation of an international court “which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States.”