www.ndu.edu/inss SF No. 277 1 

Grand strategy is, or should be, the “calculated relationship of means to 

large ends.”1 Interrelated strategic and legal dimensions provide a leitmotif to 

the modern history of relations among powerful states. States employ an array of means to achieve their large ends—military power, as well as diplomatic, 

informational, economic/financial, and legal tools and influence. They differ in 

effectiveness and precision. In the web of interactions that shape contemporary international relations, the legal dimension as a framework and guide to 

choices is more often overlooked than particular legal instruments that might 

be invoked in the belief, or more often the hope, that they will serve policy and 

strategic objectives.

Views of the relevancy and content of international law vary. At one extreme, 

Dean Acheson famously remarked that “law simply does not deal with such questions of ultimate power—power that comes close to the sources of sovereignty.”2

At the other end of the spectrum is the view that the effectiveness of the International Criminal Court is the test of the health of international law and legal regimes.3

 The truth does not lie in between: whether or not the International 

Criminal Court is a success—and defining success depends on one’s perspective 

(for some, failure would be success)—is not a test of the health of international law.

As grand strategy deals with subjects that touch the sources of sovereignty, 

is there—can there be—a relationship between law, much less international law, 

and grand strategy? The answer, of course (despite the skeptics), is yes; it is a different “yes” than advocates of this or that legal or other international institution 

might intend. At the same time, the nature of the relationship is both complex 

and straightforward. To unravel it, this essay begins with the general subject, 

examines the U.S. relationship with international law, and offers some thoughts 

on U.S. grand strategy now and in the foreseeable future and its connection to 

international law.

Grand Strategy and 

International Law

by Nicholas Rostow

Strategic Forum

National Defense University

About the Author

Dr. Nicholas Rostow is Senior Director 

of the Center for Strategic Research, 

Institute for National Strategic Studies, 

at the National Defense University, 

and Senior Research Scholar, Yale Law 

School. An earlier version of this essay 

was delivered in the Brady-Johnson 

Grand Strategy Lecture Series at Yale 

University, October 12, 2011.

Key Points

◆ U.S. grand strategy, the calculated 

relationship between means and 

large ends, needs to be developed 

and implemented in an international legal context because of 

the nature of U.S. society and values, and the overriding requirement to prevent nuclear war.

◆ Since World War II, successive 

administrations have conceived of 

U.S. alliances, partnerships, arms 

control agreements, and international actions more generally as 

grand strategy. A central component of U.S. success has been 

creating, leading, and sustaining 

a minimum world order that all 

states have come to see as representing their core interests.

◆ International law cannot be and 

has never been far from U.S. 

policymaking because Americans 

have believed that it is essential to the maintenance of the 

minimum world order necessary 

for peace and the prevention of 

nuclear war insofar as it is possible to achieve these goals.

April 2012

Ce

nte

r for Strategic ReS

EARCH
2 SF No. 277 www.ndu.edu/inss

International law reflects the nature of the political system, framing the world as we know it.4

 For the 

moment, it reflects the strength, values, and purposes of 

the democracies more than of the dictatorships, although 

its elements respect the state system without regard to 

internal management. The legal regime as an effective 

framework for international politics and authoritative 

decisions is inseparable from the balance of power. The 

world, after all, is divided among independent states; 

there is no global government.

As the system is not hierarchical, international law is 

not either.5 Grand strategy operates within the same nonhierarchical system. Grand strategy and international law 

are, or should be, natural partners. Grand strategists consider power and values. Those are what the “ends and means” 

language and calculus of strategists involve. Legal concepts 

of “necessity” and “proportionality” imbue and frame the 

calculations of strategists. The law represents the pattern of 

behavior that a society deems right achieved through processes equally deemed right. The result is authoritative decisions infused with legitimacy. The definitions of legitimacy, 

strategy, and law are similar, although the definition of law 

is more aspirational in that it speaks in terms of right and 

wrong rather than in terms of what the great powers agree.6

In the present international arena, law and strategy 

are almost inseparable, especially when the use of force or 

other coercion is at issue. That is not to say that every use 

of force or strategy accords with international law. Rather, 

grand strategy is linked to the fundamental, constitutive 

norms of the international system because it is developed 

and implemented within the system even if it is sometimes apparently at odds or in tension with the system. 

Neither grand strategy nor international law is frozen in 

time or place. Moreover, neither is autonomous: each develops through interaction among independent states and 

other actors in the international system. At the same time, 

law has the aura of permanence, and strategy seems to 

be on the move all the time. Neither impression is quite 

right but each affects how the other is understood.

Let us begin by imagining that we are grand strategists on the Moon, contemplating Earth. With a lunar perspective, we see the Earth as a whole. As we travel from 

the Moon to Earth, we begin to see a world divided among 

states, but states having certain common interests that, over 

time, gave rise to norms of behavior. Norms of behavior constitute important features of law. We encounter international law as the political configuration of the Earth as it comes 

into relief. Just as the grand strategist must think about large 

ends—the definition and defense of vital national interests, 

for example—the relevant international law affecting grand 

strategy concerns war and peace, not the important legal 

arrangements that permit a bank account holder to withdraw funds from an ATM machine in New York, Beijing, 

or Ouagadougou, although they can become significant in 

the event states impose economic sanctions, seize assets, and 

engage in other forms of economic coercion.

Every state has an interest in the international legal 

order. International law limits and shapes grand strategic choices. Democracies require that their strategies be 

rooted in domestic and international law. Even tyrannies 

have an interest in law, although they may not profess it 

or know it. All states, whatever their governmental type, 

have certain rights; each, therefore, should have an interest in respect for such rights. The United Nations (UN) 

Charter expresses these rights as involving “matters 

which are essentially within the domestic jurisdiction of 

any state,”7

 unless and until the international community 

working through the UN Security Council determines 

that the internal so affects the external as to threaten 

or breach international peace and security or constitute 

acts of aggression.8 Technology has made that boundary 

smaller today than at any previous time. Events inside 

one country, perhaps too easily, may affect another, even 

distant, country in a matter of seconds.

Law is a process of authoritative decision. In 

regard to international law, one looks in vain for 

a single decision- or lawmaker. By encompassing 

grand strategy and international law 

are, or should be, natural partners
www.ndu.edu/inss SF No. 277 3 

different societies and cultures, with different conceptions of justice, mores, and customs, the international 

system contains numerous actors, values, and centers 

of authoritative decision for specific purposes. Some 

processes and decisions have wider application in the 

international system than others.9

Power and the balance of power are inescapable 

international realities. Thucydides described these twin 

forces best in the Melian dialogue in which the Athenians assert that “the standard of justice depends on the 

equality of power to compel and that in fact the strong 

do what they have the power to do and the weak accept 

what they have to accept.”10 Power and war go handin-hand. International organizations represent a stage in 

historical efforts to minimize the risk of general war by 

structuring international relations. That effort has paralleled the development of rules fundamental to the existence of the international system. But neither rules nor 

multilateral institutions have done away with power in 

human affairs. In my view, therefore, U.S. grand strategy 

involves keeping the arsenal intact.

International Law in Relation to 

Grand Strategy and Vice Versa

The state may well be the most effective warmaking 

machine the world has ever known.11 As a result, the international system built on states contains the potential 

for explosiveness at its core. Managing the risk of explosion is a responsibility of statesmanship conducted within a map drawn by grand strategists in a context shaped 

by international law.

The international system seems rigid, but in fact it 

is in motion. Some states are changing in character. Two 

decades ago, Yugoslavia disappeared. Sudan recently split 

into two states. Kosovo seems to be independent. Some, 

such as the Palestinian National Authority, are states coming into being because they already have attributes of statehood. Other states continue to exert power over groups 

that probably would prefer independence or at least a high 

degree of autonomy. In addition to independent states, 

voluntary groupings of states such as the European Union 

have acquired state-like characteristics, while their members retain important aspects of independence.

International organizations, such as the United 

Nations, are supposed to provide structure to international relations and safeguards against the propensity of states to use force. UN members have delegated 

certain authorities to the United Nations but without 

creating a world government. The United Nations has 

acquired additional authorities over time with member 

consent or at least acquiescence with the result that the 

UN family of organizations has grown, creating worlds 

within worlds. This fact adds actors to international affairs and additional complexity to the context within 

which grand strategy is made.12 When it spreads itself 

and its resources too thinly, the United Nations weakens its capacity to maintain peace.

From this brief and incomplete description of the 

international system, one may see how a classical statement of international law as the “rules and principles of 

action which are binding upon civilized states in their relations with one another”13 necessarily is incomplete. For 

one thing, international law is as comprehensive as domestic law, governing everything from war and peace to 

the environment, business and finance, and outer space. 

The classical definition leaves out, among other things, 

the law governing international organizations; treaties 

such as those concerning human rights that have made 

individuals subject to international law in a way not hitherto recognized; nongovernmental organizations, which 

play important roles in international relations and in the 

development of international law to which states consent; and the development of new fundamental norms 

that go beyond the realm of state-to-state relations.14

Another traditional starting point for understanding 

the reach and content of international law is Article 38 

of the Statute of the International Court of Justice:

The Court, whose function is to decide in accordance 

with international law such disputes as are 

submitted to it, shall apply: (a) international 

conventions . . . ; (b) international custom as 
4 SF No. 277 www.ndu.edu/inss

evidence of a general practice accepted as law; 

(c) the general principles of law recognized by 

civilized nations; (d) subject to the [provision 

of the statute restricting the binding force of 

the court’s decisions to the parties before it,]

judicial decisions and the teachings of the most 

highly qualified publicists of the various nations, as 

a subsidiary means for the determination of rules 

of law.15

The modest, authoritative reach of international judicial decisions as precedents reflects the lack of a single 

international decisionmaker or lawmaker. As a result, 

most international law is treaty-based, binding parties 

through their consent to be bound. In principle, treaties 

give the law certainty. The last time I looked, the UN 

Treaty Series contains 158,000 treaties. In theory, treaties 

clarify and simplify. What, however, is one to make of 

158,000 for 193 countries?16 The process of complication 

may dilute the effectiveness of law.

Useful as the Article 38 definition is for the International Court of Justice, it does not capture the generation 

and flow of authoritative prescription in the international 

system. For example, some treaties have become part of customary law. One pertinent example in view of the controversies of the past decade: all UN member states are party 

to the four 1949 Geneva Conventions. As a result, those 

Conventions have become customary, not just treaty-based, 

law. They are binding on all states, whether or not they are 

parties to them, and all face consequences for violations.17

They form the core of the law of armed conflict. Another 

example is the Universal Declaration of Human Rights. A 

substantial number of decisionmakers and commentators 

treat it as having become part of the fundamental law of the 

international community. Not all states act as if they agree.

States have the power to ignore or violate international law, as Germany did in 1914 when it invaded Belgium, a country whose neutrality Germany had guaranteed. But, as Germany discovered when it lost World War 

I, such violations may have legal, political, and strategic 

consequences. Similarly, Germany’s and Japan’s relations 

with their respective neighbors remain colored by their 

aggression and war crimes during World War II. These 

examples illuminate the enduring impact of war and peace 

on the subject at hand and how law and strategy have to 

work together. Wars have driven the international community to become an international community. The grand 

strategist develops designs and options in this context.

With the helpful pressure of progeny such as the 

United States, Europe and European wars generated the 

creative drive of the international system and made it a 

system. More than the Thirty Years’ War, the wars of the 

French Revolution and Napoleon introduced the idea 

of national and total war. Governments and commentators alike emerged from these conflicts agreeing that war 

among the great powers was the greatest evil—summum 

malum. Napoleon himself was designated an enemy of 

peace—a first—and exiled to St. Helena without judicial 

process as punishment for his aggressions. His fate was 

not taken to heart by the next pretenders to European 

hegemony. Had it been, perhaps World Wars I and II 

would not have happened.

In the wake of Napoleon, European governments 

conceived the first efforts at structured diplomacy to keep 

the peace—thus, the Concert of Europe. The Concert did 

not prevent war among the Great Powers, as the Crimean 

War and the wars of German unification showed, but it 

did induce a certain moderation in the conduct of diplomacy and military operations.18 Nor did the Concert mean 

that the Great Powers agreed on how states should best be 

organized. But, on matters of international conflict, the 

Concert played a usefully moderating role. Engaged early 

enough in a crisis, the Concert could facilitate agreement 

and prevent armed conflict among the Great Powers. It 

the 1949 Geneva Conventions are 

binding on all states, whether or not 

they are parties to them, and all face 

consequences for violations 
www.ndu.edu/inss SF No. 277 5 

was not always successful. In 1875, for example, the British had to signal to the Germans, outside the Concert 

system, that it would not tolerate a further diminution in 

France’s status as a great power. The British were responding to a provocative story in a German newspaper. The 

event was forgotten or rather the Germans dismissed the 

British army as a significant factor in 1914. The Concert 

of Europe disappeared in the catastrophe of 1914–1918.19

World War I, which started in Europe, provided impetus 

for the formation of the League of Nations; World War 

II, which started in Asia, produced the United Nations, 

and the Cold War, fought on every inhabited continent, 

resulted in the strengthening of the United Nations and 

the globalization of law.

While Europe can claim most of the credit for 

originating the contemporary international system and 

the international law governing war and peace, Europe 

was not alone. The Americas and Asia participated, and 

Africa now helps shape our world as well. Colonialism 

and other European interactions with the larger world 

expanded the European impact. But the present system 

truly is global in origin and reach.

Much international law owes its source to World 

War I. After that war, the international community codified the post-Napoleonic notion that aggression was a 

crime and agreed that there were such things as crimes 

against civilization. The few trials in Turkey as a result of 

the genocide of the Armenians and the few war crimes 

trials in Europe made this point clearly.20 The KelloggBriand Pact of 1928 outlawing aggressive war did nothing 

to prevent World War II but helped provide a basis for the 

Nuremberg and Tokyo trials afterward. This history is the 

backdrop for the UN Charter and the development of the 

contemporary law governing the use of force and the law 

of armed conflict. Its relevance for the grand strategist lies 

in the process and the result: structures for decisionmaking 

and heightened political, legal, and strategic consequences 

for wrong or wrong-headed strategic conceptions and tactical decisions. One feature of the last 40 to 50 years has 

been the invocation of criminal law in the context of policy disputes. In recent decades, Henry Kissinger, Donald 

Rumsfeld, and Israeli generals, among others, have faced 

criminal law entanglements as a result of national strategies and decisions. Others, such as Argentina’s General 

(and President) Augusto Pinochet, have faced trials as a 

result of domestic decisions and their vulnerability, unlike, 

for example, Adolf Hitler or Joseph Stalin or Mao Zedong, to judicial process at home or abroad.21

Contemporary international norms are fundamental 

to the international system and to the grand strategist, 

especially the American grand strategist, because international law reflects experience and the complexity of 

the global system. International norms seem to resonate 

with Americans especially, perhaps because of their attitude toward the Constitution, which has been called “the 

great unifying force and spiritual center of the nation’s 

life.”22 The drafters of the UN Charter aspired to a document that could achieve a similar status in the world.

The UN Charter sets forth principles for international relations that reflect global historical experience. 

They recognize the many forms of coercion and accept the 

reality that the United Nations was not replacing the independent state. These principles are easily summarized:

◆ the sovereign equality of all UN members

◆ the prohibition of the threat or use of force against 

the territorial integrity or political independence 

of any state

◆ the right of individual or collective self-defense 

against an armed attack.23

These principles form overriding law for the international system. From them follows the requirement to 

contemporary international norms 

are fundamental to the international 

system and to the grand strategist 

because international law reflects 

the complexity of the global system
6 SF No. 277 www.ndu.edu/inss

settle disputes peacefully and the direction to the UN 

Organization to see that nonmember states adhere to these 

principles as necessary to the maintenance of international 

peace and security.24 American diplomats were at the center of the conceptual and drafting process that resulted in 

the UN Charter. Parts of it echo the U.S. Constitution.

The principles were adopted, and the United Nations 

was created, at the dawn of the atomic age although the 

drafters of the UN Charter did their work unaware of the 

atom bomb: they learned of it when the world did. Their 

work nonetheless was realistic in that it captured the enduring state-based structure of the international system.

For Americans, even if unarticulated by such early 

post–World War II strategists as George Kennan, the 

fundamental norms expressed in the UN Charter guided 

the formation and execution of U.S. grand strategy during the Cold War. They remain significant in this regard 

today—significant because, for some commentators and 

officials, guiding principles seem to have fallen by the 

wayside. One does not have to go far to read that international law does not exist or does not matter if it 

does exist, at least not to matters of war and peace.25 A 

responsibility of grand strategists, concerned as they are 

with large issues, is to rearticulate principles at the core 

of grand strategy, lest those they advise be forced to relearn them through more bitter and bloody experience.

The United States and 

International Law

For the moment, the United States is the most 

important single participant in international relations. 

Therefore, the grand strategist on the ride from the 

Moon to Earth will seek to understand the sources of 

U.S. grand strategy.26 As part of this exercise, the grand 

strategist will need to consider the U.S. relationship to 

international law.

The Constitution signals the importance U.S. decisionmakers should attach to law, including international 

law. For example, it empowers Congress to define and 

punish offenses against the law of nations and makes 

treaties part of the supreme law of the land and requires 

the President to conclude them only after obtaining the 

advice and consent of two-thirds of the Senate—always 

a difficult task.27 A principal focus of the Constitution, 

perhaps the principal focus, concerns the lawful exercise 

of power; it is hardly surprising therefore that U.S. foreign policy and grand strategy, developed under the same 

Constitution, should involve the lawful exercise of power 

as well. This conclusion is consistent with the Framers’ 

view of the importance of law, particularly in light of the 

risk that failure of the constitutional experiment could 

result in the separate states preparing to cut one another’s 

throats.28 The Framers were realists. They designed a system to prevent tyranny through the inevitable friction 

among the parts of government.29 Just as overreaching 

and lawless politicians at home would not surprise them, 

so they would not have been surprised that some Presidents would disregard international law.

The U.S. commitment to foreign and national security policies grounded in law, domestic and international, nonetheless is not merely rhetorical; it reflects 

central ideas about America and significant instincts of 

Americans. It is part of what has been called American 

“exceptionalism.” One example is that American officials, 

civilian and military alike, and new immigrants take an 

oath to the Constitution, not to a flag or a territory (I 

therefore dislike the name “Homeland Security”). At 

bottom, we are a people of laws. For this reason, as Justice Stephen Breyer has observed, however disputed the 

Supreme Court’s decision in Bush v. Gore,

30 the country 

went along with it. A second example is that the first 

question the Chairman of the Joint Chiefs of Staff received from the press during his briefing on the 1989 

invasion of Panama was whether the operation was legal. 

No one was surprised or should have been. Finally, seeking political advantage, Congress and others have been 

more preoccupied with whether the recent Libyan affair was conducted in a manner consistent with the War 

Powers Resolution than whether it was effective or prudent. Americans tend to argue about policy and politics 

in the language of law. The explanation lies in the role 

of law in American life—or at least the national myth 
www.ndu.edu/inss SF No. 277 7 

that Americans act lawfully—and the historical context 

in which the United States took responsibility for maintaining minimum world order.

The United States grew to maturity in international 

relations in a period during which, for the most part, 

the British provided a protective cocoon. In the wake of 

the wars of the French Revolution and Napoleon, Great 

Britain and its navy anchored a balance of power within 

which the United States could pursue its goals. It could 

expand west, fight the Civil War, industrialize, and watch 

its economy and population grow without interference. 

The United States was not passive. But it was not internationalist in any systemic sense. Did it have a strategy 

during this period much less a grand strategy? George 

Washington’s Farewell Address articulated a strategic 

goal of freedom of action: “we may choose peace or war, 

as our interest guided by justice shall counsel.” The Farewell Address and Monroe Doctrine seemed to provide 

the United States with all the grand strategy it needed.

These documents were the sources of the first of the 

two ideas, isolationism and internationalism, that have 

competed to dominate American grand strategy. Isolationism reflects a simplified reading of Washington’s Farewell 

Address and his admonition to be wary of foreign entanglements. What he really meant was that the United States has 

to protect its own interests and should be no one’s pawn. 

World War I ended in the first disastrous American attempt to participate systemically in international affairs. 

Under President Woodrow Wilson’s leadership, the United 

States tried to shape and participate in global governance.31

The effort was disastrous, not because American ideas were 

horribly wrong-headed, but because Americans refused to 

carry through with them and abandoned Wilson’s ideas for 

maintaining international peace. Perhaps U.S. participation 

in the League of Nations would not have prevented World 

War II; U.S. absence from the League meant that the international police department was short-handed.

The attack on Pearl Harbor killed isolationism as a 

respectable American position. World War II meant that 

that the United States, as the most powerful democracy 

in the world, had to take responsibility for maintaining 

international order and building respect for international 

rules that could keep the dogs of war at bay and provide space for democracies, ruined by the war, to recover. 

One had only to recall the images of Hiroshima, Nagasaki, or Bikini Atoll to reinforce the message: nuclear 

weapons meant that there could be no retreat from the 

effort to build respect for basic legal principles of international conduct and to construct international institutions to foster and strengthen peace and prosperity. 

Success would be measured, not only in the number of 

crises averted but also in the avoidance of nuclear war. 

This understanding underlay the Cold War division of 

the world into spheres of influence where two bodies of 

international law effectively operated. The nuclear reality 

became perhaps the most important influence on U.S. 

grand strategy.32 Concerns about proliferation of nuclear 

and other highly lethal weapons and fear that proliferation would increase the probabilities of a third, nuclear 

world war became the central point of U.S. strategy and 

policies. No administration has trusted nuclear weapons 

to restrain their possessors. This technological context 

of international politics helped the United States define 

its vital national interests, for which it would fight and 

maintain the means necessary to do so.

U.S. diplomacy and military operations since World 

War II have taken place as a result of this historical development. Of course, these operations defended an international system that suited American interests. Above 

all, nuclear weapons exerted hydraulic-quality pressure. 

They reinforced the need for rules of minimum order, 

rules the UN Charter articulated and the United States, 

with or without the formal blessing of the UN Security 

Council, has defended in the conflicts since World War 

II: Korea, Vietnam, Iraq in 1991, the Balkans in 1999, and 

since September 11, 2001, each conflict accompanied by 

more or more or less controversy. These actions should not 

obscure the fact that policies of minimum international 

order, codified in the UN Charter, were the effort of many 

nations and work for all states. They are neither American 

nor Chinese, European nor African, but the world’s. At 

the same time, for the past nearly 70 years, these policies 
8 SF No. 277 www.ndu.edu/inss

have driven U.S. foreign actions even when the principal 

actors and decisionmakers did not use the language of the 

law to explain their thinking and decisions.

Grand Strategy

Our travelling grand strategist arrives in 

Washington and is invited to advise the U.S. 

Government. What is or should be the advice? As 

a first step in formulating this advice, it is useful to 

recall first principles:

1. Because of nuclear weapons, peace is the absence 

of nuclear war.

2. Because of nuclear weapons, the United States may 

not relapse into isolationism, leaving to unspecified 

others responsibility for peace.

3. Because of nuclear weapons and because of the 

kind of people Americans are or like to think of 

themselves as—people of the law—international 

law is important to U.S. security and policy because 

it can strengthen the barriers to international conflict and provide boundaries on those that occur.

4. Because the United States is a democracy, its natural allies are democracies.

5. Because the United States is an island off the Eurasian landmass, it is the natural enemy of would-be 

hegemonic powers in Europe or Asia.

6. Because, for the moment at least, the United States 

is the single most important international actor, it 

is “‘the critical margin’ required to make any international collaborative effort succeed.”33 Others 

may replace the United States in this role. But for 

the moment none does—not China, not Russia, 

not India, not Brazil, not the European Union. 

The recent Libyan enterprise made this point clear 

to even the heartiest of skeptics.

These points constitute themes for U.S. policy because they reflect abiding interests rooted in historical 

experience. They lead naturally to certain conclusions 

about strategy, diplomacy, and military requirements. 

For example, the United States needs close diplomatic 

relationships with the great democracies in Europe and 

Asia, backed by military capability, to ensure that no 

power is tempted to follow the example of Napoleon or 

Hitler or Hirohito. In certain cases—India and Pakistan come to mind—the United States needs energetic 

diplomacy to prevent rivalries, particularly between 

nuclear weapons states, from spinning out of control. 

Why the United States? The risks from inaction, from 

just assuming that other states will perform this function, are too great.

The United States also needs nuclear deterrence 

capabilities to have the hope of preventing nuclear 

war. The United States and Russia seem to share the 

same or much the same perspective on nuclear weapons, with which they have many arms control treaties 

going back to the days of the Soviet Union and opposition to nuclear proliferation. Do the United States 

and China have a common understanding about nuclear weapons and proliferation? Over the last couple 

of decades, China has transformed a deficient military 

into one capable not only of dominating its own littoral but also of reaching distant continents through 

long-range delivery systems with nuclear weapons. 

China’s public doctrine of minimal nuclear deterrent capability remains as it was in Mao’s time. Has 

it changed in fact during this period of military modernization? Does the United States or international 

community more broadly understand how to ensure 

that North Korea refrains from reckless proliferation 

and nuclear weapons development? Or how to contain Iran’s nuclear weapons aspirations and wish to 

the contemporary grand 

strategist must take account of 

contextual realities
www.ndu.edu/inss SF No. 277 9 

dominate its region using proxies? The same holds true 

for other countries.

In addition, the contemporary grand strategist must 

take account of contextual realities. Dominating these realities are high-velocity changes in computing, information technology, nanotechnology, biotechnology, robotics, 

and cognitive technology, and the sociological changes 

they bring. The law has not been able to keep up with 

these changes—nor has the grand strategist. It has proved 

difficult to integrate rapid technological change into 

strategic thinking. Strategists therefore rely on timeless 

principles of war and politics and hope they remain relevant in new contexts. Rapid technological change puts 

particular pressure on defense budgets because the development of new weapons and delivery systems, whether 

offensive, defensive, or dual-use, takes decades.34 Costs 

rise as new technologies need to be incorporated. We are 

a far cry from the Manhattan Project, development of the 

Spitfire, or invention of the V1 and V2.

U.S. grand strategists similarly rely on what they hope 

are still relevant longstanding ideas about U.S. interests and 

how to defend them. Therefore, the goals of U.S. foreign 

policy remain what they have been since World War II, that 

is, the minimization of the risk of great power conflict together with its threat of the use of weapons of mass destruction—nuclear, but also biological and chemical weapons 

capable of inflicting massive casualties. Consequently, if the 

United States is not to cede its interest in regional balances 

of power in Eurasia, it should maintain the ability to project 

its power to maintain those balances. I understand the need 

to restore our economic well-being and confidence. The 

need is particularly acute in this politico-military context. 

But a choice between needed defenses and economic health 

is a false choice. Our alliance commitments may one day 

need to be fulfilled. However exceptional Americans may 

think their country is, the United States has responsibilities 

for the hope of controlling nuclear proliferation and preventing nuclear conflict. It cannot escape them.

To enlarge on this point, consider China, another 

state that thinks of itself as “exceptional.” For millennia, 

China thought of itself as the center of the world. Only 

in recent decades has it talked about itself as a developing power. As it has become an economic behemoth 

in recent years, it has flexed its political-military muscle. 

It asserts sovereignty over islands claimed by Japan and 

Vietnam and indicates no desire for adjudication as a 

means of peaceful dispute resolution. It claims sovereignty in the South China Sea. All states with coastlines 

on that sea and all seafaring states disagree with China’s 

position. So far, no resolution is in sight. China is investing heavily in its armed forces and advanced defense 

technologies. Yet it has no obvious enemies, nearby or 

far away. The United States, whose armies fought Chinese soldiers in Korea and Vietnam, has no interest in 

armed conflict with China. At the same time, it would 

find Chinese domination of Asia and perhaps more than 

Asia a threat just as it found Japanese and German imperialism a threat. Will the United States have to choose 

sides? It would be better to manage the relationship. To 

do so requires reducing American economic dependence 

on China and maintaining sufficient military strength 

to deter would-be hegemonial assertions. The United 

States should conduct itself so that no power, including 

China, can assume the United States away. As Washington remarked in a less well-known part of his Farewell 

Address: “Excessive partiality for one foreign nation and 

excessive dislike of another cause those whom they actuate to see danger only on one side, and serve to veil and 

even [put in] second [place] the arts of influence on the 

other.” The time is more than ripe for the “arts of influence” to have their day.

In addition, the United States should maintain and 

nurture its existing alliances with democracies in Europe 

international law is a necessary 

element of maintaining and 

strengthening international 

peace and security and preventing 

nuclear war
10 SF No. 277 www.ndu.edu/inss

and Asia. Those relationships constitute reserve strength 

in the sense of Thucydides’ analysis of power. They also 

support the rule of law in international affairs. China 

in the South China Sea—and elsewhere other states, 

such as Iran—challenge the rule of law. They must be 

deterred. But that requires a grand strategy and willingness to maintain defense capabilities. If the United 

States maintains its capabilities, it will deter would-be 

aggressors, strengthen international law and order, and 

help maintain peace.

International law is a necessary element of maintaining and strengthening international peace and security and preventing nuclear war. Skeptics should recall 

the powerful taboo codified in the Non-Proliferation 

Treaty of 1968. The Treaty divided the world into nuclear weapons and nonnuclear weapons states. Nonnuclear 

weapons states undertook not to obtain nuclear weapons 

in return for a guarantee by the nuclear weapons states 

against any nuclear threat against states without nuclear 

weapons. In addition, the nuclear weapons states pledged 

to work to reduce their arsenals. However real the risk of 

nuclear proliferation, new nuclear weapons states have to 

contend with the fact that the international community 

will not welcome them but coalesce in an effort to understand how to induce the new nuclear weapons state to act 

responsibly, recognizing that the weapons are not to be 

used except as a last resort to defend itself, and certainly 

not as a political stick. Perhaps to reinforce this fact, the 

1968 Security Council nuclear weapons states’ guarantee of nonnuclear states against nuclear weapons states 

should be revised and reissued for present circumstances. 

China should join it. One does not have to reach back as 

far as Thomas Hobbes or use his graphic language to understand the point that most law, and international law is 

no different, needs a policeman to enforce it.35

The history of the Non-Proliferation Treaty and guarantee to nonnuclear weapons states emphasize another 

aspect of U.S. grand strategy that often is overlooked. To 

advance U.S. national interests—such as the prevention of 

proliferation, struggles against terrorism and transnational 

crime, and the need to protect the environment—requires 

international cooperation. This fact means leveraging 

global assets and spreading risks and costs. A substantial 

number of other international problems, including those 

requiring regional peacekeeping, invite multilateral approaches as well. Multilateralism from this perspective is 

particularly practical given the diversity of international 

threats and challenges. While the United States has vital 

interests it must and will defend alone if necessary, they 

are few in number: nuclear and conventional deterrence, 

fulfillment of alliance commitments, and the like.

If we do not put our strategic thinking caps on, our 

fiscal managers will determine our interests and our strategy. And, in their bones, they approach international affairs, 

whether political or military, whether diplomatic or strategic, with the words of Hilary Mantel’s Thomas Cromwell 

firmly in mind: “No ruler in the history of the world has 

ever been able to afford a war. They’re not affordable things. 

No prince ever says, ‘This is my budget; so this is the kind of 

war I can have.’ You enter one and it uses up all the money 

you’ve got, and then it breaks you and bankrupts you.”36

Grand strategy is too important to be left to chief financial officers—or, one might add, to international lawyers, 

although I would argue they have much to contribute.

Conclusion

We live in a world of rapid change. Despite claims to 

the contrary, certain institutions, such as the state, show 

resiliency. Accordingly, the law governing their relations 

with each other must be equally resilient. New challenges 

emerge in each historical and technological period. Because the law is not ossified, whether domestic or international, policymakers and citizens alike turn to it for help in 

sorting through competing priorities and challenges. It is 

instrumental to strategy, and strategists should appreciate 

this feature of law. That is its strength and the reason why 

it is important—and why it is a process of authoritative 

decision through the identification of participants, objectives and values, methods and claims.

Strategists and students of strategy often deny the relationship between law and strategy. Yet the international 

political system in Europe that emerged from the Roman 
www.ndu.edu/inss SF No. 277 11 

Empire developed rules and habits within which grand 

strategists considered their goals and means for achieving 

them. It became a system of law in development, as the 

commentaries of Grotius and his successors showed. In 

addition, of course, there were specific grand strategic decisions with legal consequences. They built and globalized 

the present international legal and political regime, which 

is supposed to serve all states. However exceptional a state 

may believe itself to be, its stake in this regime is real, as it 

finds out when its independence is threatened.

Since World War II, international law, broadly understood, has never been far from U.S. policymaking and 

grand strategy because it has been consistent with U.S. 

interests in the balance of power in Eurasia and the prevention of another world war. When Iraq invaded and 

purported to annex Kuwait in 1990, the international 

community rallied, not out of love for Kuwait, but in order to preserve the bedrock principles of international 

order, of vital interest to every state, that aggression cannot be allowed to prevail.

Similarly, the North Atlantic Treaty Organization 

campaign in Kosovo in 1999, carrying out a threat made 

by President George H.W. Bush in 1992, preserved the 

postwar arrangements in Europe. President Bush had 

stated that, while the United States had no vital interest 

in the outcome of the breakup of Yugoslavia, the use of 

force against Kosovo could not be tolerated. President 

Bill Clinton acted on his predecessor’s insight because 

both Presidents understood that a failure to protect 

Kosovo would allow aggression in the center of Europe 

to succeed. That the aggression technically did not cross 

international boundaries did not negate the conclusion 

that, if tolerated, Europe’s post–World War II order 

would be threatened.

Of course, at various times in the history of the 

Arab-Israeli conflict, the United States worked to 

contain conflict. The reason is simple: the goals were 

to avoid nuclear confrontation and preserve a balance 

of power that would permit the international system 

to function according to law as an essential interest of 

every member of the international system. These goals, 

which are both legal and strategic, remain core elements of U.S. grand strategy and foreign policy. They 

have and should continue to guide us as we make a 

new grand strategy for our times.

Notes 1 John Lewis Gaddis, “What Is Grand Strategy?” Karl Von Der 

Heyden Distinguished Lecture, Duke University, February 2009, 7, 

available at <www.duke.edu/web/agsp/grandstrategypaper.pdf>. I intend this essay to be a foretaste of a short book on the topic. The book 

will examine a number of subjects, including the different schools of 

grand strategy and skepticism about international law, that this essay 

does not.

2 American Society of International, Law Proceedings 57, no. 13 

(1963), 14.

3 See “The condition of international law,” The Ditchley Foundation, May 20–22, 2010, available at <www.ditchley.co.uk/page/367/

international-law.htm>.

4 Cf. Morton A. Kaplan and Nicholas deB. Katzenbach, The 

Political Foundations of International Law (Hoboken, NJ: Wiley, 1961), 

3–4: “Perhaps the purest analytical concept of ‘law’ is that in which 

an impartial judge objectively applies a pre-established rule to decide 

a controversy. And perhaps the purest analytical concept of ‘politics’ 

is that in which the stronger influence or interest regulates the social 

distribution of values. In the real world, however, judges cannot avoid 

exercising at least some political discretion in the decision of cases. 

And in any stable political system, the political process is also subject 

to normative constraints. . . . When we speak of the ‘rule of law’ or a 

‘government of laws,’ we clearly do not mean the rule of judges or a 

government of judges. We are talking about the larger, formal process, 

through which members of the society pursue and realize values in an 

orderly way.”

5 In the 19th century, John Austin argued that law required a 

hierarchical structure to exist, thus negating the possibility of international law. Ibid., 6.

6 Henry Kissinger sees legitimacy in international relations as “no 

more than an international agreement about the nature of workable 

arrangements and about acceptable aims and methods of foreign 

policy. It implies the acceptance of the framework of the international 

order by all major powers, at least to the extent that no state is so dissatisfied that, like Germany after the Treaty of Versailles, it expresses 

its dissatisfaction in a revolutionary foreign policy. . . . Diplomacy in 

the classic sense, the adjustment of differences through negotiation, is 

possible only in ‘legitimate’ international orders.” Henry A. Kissinger, 

A World Restored: Metternich; Castlereagh, and the Problems of Peace 

1812–22 (London: Weidenfeld and Nicolson, 1957), 1–2. See also 

Kissinger, Diplomacy (New York: Simon & Schuster, 1994), 82.

7 United Nations (UN) Charter, Art. 2, para. 7.

8 Ibid., Art. 39.

9 For example, by Article 25 of the UN Charter, states agree to 

carry out the decisions of the UN Security Council. Ibid., Art. 25. 

With respect to the judgments and opinions of the International 

Court of Justice, states “undertake[] to comply with the decision of 

the International Court of Justice in any case to which it is a party.” 

Ibid., Art. 94, para. 1. No similar requirement binds the entire international community, or even those UN bodies that request and receive 

advisory opinions of the court. Ibid., Art. 96.

10 Thucydides, History of the Peloponnesian War, trans. Rex Warner 

(New York: Penguin Classics, 1954), 402. See also Donald Kagan, The 
12 SF No. 277 www.ndu.edu/inss

Peace of Nicias and the Sicilian Expedition, vol. 3, A New History of the 

Peloponnesian War (Ithaca: Cornell University Press, 1991), 149–152.

11 Cf. Philip Bobbitt, The Shield of Achilles War, Peace, and the 

Course of History (New York: Knopf, 2002).

12 One of the more insightful observers of UN realities had this 

to say as a caution: “I found it very difficult and exacting to write about 

the UN, that complex and unpredictable institution, which is at one 

and the same time intimately immersed in world events and yet primly 

self-contained—truly, a ‘play within the play.’ Pascal, if he had lived in 

our times, might well have written the definitive book about the United 

Nations—and perhaps would have concluded that l’ONU a des raisons 

que la raison ne connaît pas.” Hernane Tavares de Sá, The Play Within the 

Play: The Inside Story of the UN (New York: Knopf, 1966), ix.

13 J.L. Brierly, The Law of Nations: An Introduction to the International 

Law of Peace, 6th ed. (New York: Oxford University Press, 1963), 1.

14 Traditional definitions simplify the ways in which states 

consent to be bound by international legal obligations.

15 International Court of Justice Statute, Art. 38.

16 Nothing requires a state to join a treaty, and probably no state 

is party to 158,000 treaties.

17 Opprobrium, more than prosecutions, has proved a powerful 

agent for positive change in the wake of U.S. violations of international law in the past decade and before.

18 This moderation did not extend to the European empires. See 

Isabel V. Hull, Absolute Destruction: Military Culture and the Practices 

of War in Imperial Germany (Ithaca: Cornell University Press, 2005). 

It did mean, however, that conflicts among empires in Africa, for 

example, were not allowed to escalate, as the Fashoda crisis, among 

others, provides an example.

19 One might note that the ferocity of the U.S. Civil War 

showed the direction war was likely to take when the Great Powers 

again engaged in battle. They seem to have ignored the warning.

20 Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of 

War Crimes Tribunals (Princeton: Princeton University Press, 2001), 

chapter 4.

21 These proceedings represent more than victor’s justice and 

less than the universal application of one law. They might best be 

understood as steps toward a universal view that does not presently 

obtain and may never obtain. Yet as Amin Maalouf writes, “It is an 

unforgiveable error to compromise on fundamental principles on the 

perennial pretext that others are not ready to adopt them. There is no 

one set of human rights for Europe and another for Africa, Asia, and 

the Muslim world . . . every time this fundamental truth is overlooked, 

we betray humanity and we betray ourselves.” Times Literary Supplement, January 20, 2012, 13.

22 Eugene V. Rostow, The Ideal in Law (Chicago: University of 

Chicago Press, 1978), 4. On the powerful mythology of the rule of 

law, see Paul W. Kahn’s illuminating examination, The Reign of Law: 

Marbury v. Madison and the Construction of America (New Haven: Yale 

University Press, 1997).

23 UN Charter, Art. 2, paras. 1 and 4; Art. 51. Article 51 is worth 

quoting because its construction has been the subject of academic and 

diplomatic exchanges: “Nothing in the present Charter shall impair 

the inherent right of individual or collective self-defence if an armed 

attack occurs against a Member of the United Nations, until the 

Security Council has taken measures necessary to maintain international peace and security.” See, inter alia, Nicholas Rostow, “International Law and the Use of Force: A Plea for Realism,” Yale Journal of 

International Law 34, no. 549 (2009).

24 UN Charter, Art. 2, para. 6.

25 One needs to distinguish between the charter that codified 

overriding and fundamental norms and the organization it created, 

which has been the subject of much criticism, particularly in the 

United States.

26 The reference is to George F. Kennan’s celebrated article, “The 

Sources of Soviet Conduct,” published under the pseudonym “X” in 

Foreign Affairs in July 1947.

27 This is not the place to analyze the constitutional meaning of 

executive agreements or other agreements, which also are treaties for 

purposes of international law.

28 Benjamin Franklin, speech at the Conclusion of the Constitutional Convention, September 17, 1787. See Bernard Bailyn, ed., 

The Debate on the Constitution: Federalist and Antifederalist Speeches, 

Articles, and Letters During the Struggle over Ratification, vol. 1 (New 

York: Library of America, 1993), 4.

29 Myers v. United States, 272 U.S., 52, 293 (1926) (Brandeis, J., 

dissenting).

30 531 U.S. 98 (2000).

31 To be contrasted with global government.

32 Truman made it the central theme of his administration and 

memoirs. See Harry S. Truman, Year of Decisions, vol. 1, Memoirs

(Garden City, NY: Doubleday, 1955), xi.

33 W.W. Rostow, Concept and Controversy: Sixty Years of Taking 

Ideas to Market (Austin: University of Texas Press, 2003), 355.

34 It is interesting to compare the time necessary to produce 

the revolutionary vessel, the Monitor, during the Civil War, with the 

lead times required for contemporary advanced weaponry. See John 

Tierney, “A Brief Dry Spell for the U.S.S. Monitor,” The New York 

Times, August 8, 2011, available at <www.nytimes.com/2011/08/09/

science/09monitor.html?pagewanted=all>.

35 Thomas Hobbes, Leviathan, 1651 (Menston, West Yorkshire: 

Scolar P., 1969), chapter XVII: “And covenants, without the sword, 

are but words and of no strength to secure a man at all.”

36 Hilary Mantel, Wolf Hall (New York: Henry Holt, 2009), 182.

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