The American Challenge to International Law: A Tentative Framework for Debate

The United States often appears hypocritical in its commitment to International Law. It supports Nuremberg, Yugoslavia, and Rwandan tribunals, but opposes the International Criminal Court. It supports the creation of the United Nations, but seeks unilateral action in Iraq. This Essay explores these seeming contradictions in American stances toward international law. It argues that while such apparent hypocrisy might be explained by mere pragmatism, ideas prevalent in American foreign policy history seem to point in a more dangerous direction, that such divergent actions may actually be informed by a coherent, specifically American conception of international law. In particular, this Essay argues that when International Law is viewed through the prism of American liberal constitutionalism, a specifically American conception of international law, legality, and legitimacy emerges. Further, this Essay argues that if such a conception exists, it poses real challenges for traditional Positivist and Cosmopolitan conceptions of international law. This Essay tentatively argues that to meet such challenges, International Law must be reconceived as a dynamic process of institution building rather than the neutral application of static principles. By focusing on the role of international lawyers in the creation rather than the discovery of international law, we can begin to see a role for international law and the international lawyer in a world of ideology