Mutual and Balanced Force Reductions § 8 War Powers of the President and the Congress Chapter 1 INTERNATIONAL LAW IN GENERAL 8 1 Nature, Basis, Purpose International Law and National Policy Secretary of State Henry A. Kissinger delivered an address on international law, world order, and human progress to the annual convention of the American Bar Association at Montreal on August 11, 1975. He emphasized the decisive influence of international law and the legal profession in the making of American foreign policy. An excerpt from his address follows: The aspiration to harness the conflict of nations by standards of order and justice runs deep in the American tradition. In pioneering techniques of arbitration, conciliation, and adjudication, in developing international institutions and international economic practices, and in creating a body of scholarship sketching visions of world order, American legal thinking has reflected both American idealism and American pragmatic genius. The problems of the contemporary world structure summon these skills and go beyond them. The rigid international structure of the cold war has disintegrated. We have entered an era of diffused economic power, proliferating nuclear weaponry, and multiple ideologies and centers of initiative. The challenge of our predecessors was to fashion stability from chaos. The challenge of our generation is to go from the building of national and regional institutions and the management of crises to the building of a new international order which offers a hope of peace, progress, well-being, and justice for the generations to come. Justice Holmes said of the common law that it ". . . is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified." But international politics recognizes no sovereign or even quasi-sovereign power beyond the nation-state. Thus in international affairs the age-old struggle between order and anarchy has a political as well as a legal dimension. When competing national political aims are pressed to the point of unrestrained competition, the precept of laws proves fragile. The unrestrained quest for predominance brooks no legal restraints. In a democratic society law flourishes best amidst pluralistic institutions. Similarly in the international arena stability requires a certain equilibrium of power. Our basic foreign policy objective inevitably must be to shape a stable and cooperative global order out of diverse and contending interests. But this is not enough. Preoccupation with interests and power is at best sterile and at worst an invitation to a constant test of strength. The true task of statesmanship is to draw from the balance of power a more positive capacity to better the human condition-to turn stability into creativity, to transform the relaxation of tensions into a strengthening of freedoms, to turn man's preoccupations from self-defense to human progress. An international order can be neither stable nor just without accepted norms of conduct. International law both provides a means and embodies our ends. It is a repository of our experience and our idealism-a body of principles drawn from the practice of states and an instrument for fashioning new patterns of relations between states. Law is an expression of our own culture and yet a symbol of universal goals. It is the heritage of our past and a means of shaping our future. The challenge of international order takes on unprecedented urgency in the contemporary world of interdependence. In an increasing number of areas of central political relevance, the legal process has become of major concern. Technology has driven us into vast new areas of human activity and opened up new prospects of either human progress or international contention. The use of the oceans and of outer space, the new excesses of hijacking, terrorism, and warfare, the expansion of multinational corporations will surely become areas of growing dispute if they are not regulated by a legal order. The United States will not seek to impose a parochial or selfserving view of the law on others. But neither will we carry the quest for accommodation to the point of prejudicing our own values and rights. The new corpus of the law of nations must benefit all peoples equally; it cannot be the preserve of any one nation or group of nations. The United States is convinced in its own interest that the extension of legal order is a boon to humanity and a necessity. The traditional aspiration of Americans takes on a new relevance and urgency in contemporary conditions. On a planet marked by interdependence, unilateral action and unrestrained pursuit of the national advantage inevitably provoke counteraction and therefore spell futility and anarchy. In an age of awesome weapons of war, there must be accommodation or there will be disaster. Therefore there must be an expansion of the legal consensus, in terms both of subject matter and participation. Many new and important areas of international activity, such as new departures in technology and communication, cry out for agreed international rules. In other areas, juridical concepts have advanced faster than the political will that is indispensable to assure their observance such as the U.N. Charter provisions governing the use of force in international relations. The pace of |