International law is a system; its environment is the field of international relations. Although the word system is often used generically, it has a formal meaning in “general systems theory,” an interdisciplinary methodology that grew out of cybernetics research in the 1970S. Since then, general systems theory has proved to be a significant heuristic in hundreds of disparate research areas. In describing international law from the viewpoint of an autopoietic system (to be defined shortly), this article intends not just to reexamine the foundations of international law but also to help litigators and negotiators make their international-law arguments sounder and more persuasive.

Writers of science fiction have often speculated about what it would be like to discover, on a planet in outer space, a much higher form of intelligence. How would we react to those creatures? Would we be so fearful of them that we would try to kill them? Or would we welcome the opportunity to attempt to understand their language and culture? Stranger than fiction is the fact that there already exists a species of animal life on earth that scientists speculate has higher than human intelligence. The whale has a brain that in some instances is six times bigger than the human brain and its neocortex is more convoluted. Discussing the creative processes of whales, Dr. John Lilly says that a researcher “is struck with the fact that one’s current basic assumptions and even one’s current expectations determine, within certain limits, the results attained with a particular animal at that particular time.” Whales speak to other whales in a language that appears to include abstruse mathematical poetry. They have also developed interspecies communication with dolphins. Whales are the most specialized of all mammals.

What Professors Tom Farer and Ved Nanda do not seem to understand is the positive implication for the development of human rights resulting from the United States intervention in Panama. Their views are so conditioned by a statist conception of international law that they seem unable to see through the abstraction that we call the “state” to the reality of human beings struggling to achieve basic freedoms. I am not talking about the human rights of American “matrons domiciled in Panama,” as Professor Farer puts it, who were “rescued” in 19th-century expeditionary-force style. Rather, I am talking about the human rights of Panamanian citizens to be free from oppression by a gang of ruling thugs. My focus is on the basic civil liberties and fundamental freedoms of the people of Panama themselves.

A common assumption underlying nearly every book or essay on the global environment is that the present generation owes a duty to generations yet unborn to preserve the diversity and quality of our planet’s life-sustaining environmental resources. This duty is sometimes said to be an emerging norm of customary international law, including the more recently treaty-generated custom of the “common heritage of mankind.” Professor Edith Brown Weiss lists three different approaches one might take in response to an asserted environmental obligation to future generations: the “opulent” model, which denies any such obligation and permits present extravagance and waste; the “preservationist” model at the other extreme, which requires the present generation to make substantial sacrifices of denial so as to enhance the environmental legacy; and the “equality” model—favored by Professor Weiss—which says we owe to future generations a global environment in no worse condition than the one we enjoy.

Nations typically act first and worry about legalities afterwards. International lawyers thus find themselves relegated, for the most part, to the passive role of sorting out rationalizations of past events. Once in a while, however, when a democratic government is contemplating an action that is legally questionable, international lawyers may have a chance to play a more active role. The government at that time might decide to introduce the issue of the legality of its contemplated action into the public forum, either in the hope that open debate may help pave the way for public acceptance of whatever action the government ultimately chooses to take or, more charitably, in a genuine search for the public will on the matter. The primary forums are the daily media aimed at an informed readership—in the United States, one thinks of the editorial pages of the New York Times and the Washington Post. In contrast, a quarterly journal such as the American Journal of International Law in nearly all cases is not published on a timely enough basis to influence specific planned policy initiatives.