German Yearbook of International Law / Jahrbuch für Internationales Recht: Vol. 20 (1977) [1 ed.] 9783428441587, 9783428041589

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G E R M A N Y E A R B O O K OF I N T E R N A T I O N A L Volume 20

LAW

GERMAN YEARBOOK OF INTERNATIONAL LAW JAHRBUCH FÜR INTERNATIONALES RECHT

Volume 20 · 1977

founded by RUDOLF LAUN

· HERMANN

VON

MANGOLDT

Editors: Jost Delbrück · Wilfried Fiedler · Wilhelm Α . Kewenig Assistant Editor: Eibe H . Riedel Institut für Internationales Recht an der Universität K i e l

DUNCKER

& HUMBLOT

/

BERLIN

The Editors and the Institut

für Internationales

Recht

do not make themselves in any way responsible for the views expressed by contributors

This Yearbook may be cited: G Y I L 20 (1977)

Communications should be addressed to: The Editors German Yearbook of International L a w Institut für Internationales Recht an der Universität K i e l Olshausenstrasse 40/60 D-2300 K i e l 1

A l l rights reserved © 1978 Duncker & Humblot, Berlin 41 Printed 1978 by Vollbehr u. Strobel, Kiel, Germany ISBN 3 428 04158 5

CONTENTS

Articles

(Utrecht): The Recognized Manifestations of International Law, A New Theory of "Sources"

9

(Helsinki) : The Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization

77

SCHREUER (Salzburg): Recommendations and the Traditional Sources of International Law

103

(Bonn) : Die Strafbarkeit der Rassendiskriminierung nach dem Internationalen Abkommen und die Verwirklichung der Verpflichtungen in nationalen Strafrechtsordnungen

119

M A A R T E N BOS

B E N G T BROMS

CHRISTOPH

K A R L JOSEF P A R T S C H

F. M.

AUBURN

VLADIMIR

(Auckland): Offshore Oil and Gas in Antarctica

139

(Zagreb): The Changing Law of the Sea as Affecting the

IBLER

Adriatic

I74

(Kiel): Versuche mit gemeinsamen Investitionsregelungen in Zentralafrika und Südamerika (with English Summary)

196

(Warsaw): L'Influence du droit international public sur le nouvel ordre économique du monde

217

HANS R . KRÄMER

JERZY M A K A R C Z Y K

B. A.

WORTLEY

(Wilmslow): Some Early but Basic Theories of Expropriation

(Bonn): Vertragskonkurrenz im Völkerrecht: Teil träge zwischen souveränen Staaten (with English Summary)

MANFRED ZULEEG

I:

236

Ver246

(Lund): Some Questions Arising from Reservations to the Vienna Convention on the Law of Treaties

277

(Bonn): Le Rapport entre l'accord relatif à l'institution d'un Fonds européen d'immobilisation de la navigation intérieure et la Convention révisée pour la navigation du Rhin du 17 octobre 1868 (with English Summary)

306

JERZY S Z T U C K I

HUBERT WEIS

6

Contents

R . ST. J. M A C D O N A L D / B A R B A R A H O U G H

(Halifax): The Nuclear Tests Case

Revisited

337 (Valencia): Mootness in International Law: The Nuclear

JOSÉ JUSTE R U I Z

Tests Cases

358

(Strasbourg): L'Affaire des essais nucléaires français et le contentieux de la responsabilité internationale publique

375

(Münster): Der Rechtsstaat in vergleichender Sicht. Zugleich ein Beitrag zur Rechtsquellenlehre des Europäischen Gemeinschaftsrechts (with English summary)

406

PIERRE M A R I E D U P U Y

ALBERT BLECKMANN

Reports SIEGFRIED M A G I E R A :

Die Rechtsprechung des Internationalen Gerichtshofes im

Jahre 1976

433

EIBE H . RIEDEL:

Die Tätigkeit der International Law Commission im Jahre 439

1976 JAN WILLISCH: HANS

R.

Die Tätigkeit des Europarats im Jahre

461

Die Europäischen Gemeinschaften im Jahre 1976 . . . .

486

Die Tätigkeit des Nordischen Rates im Jahre 1976 . . . .

501

KRÄMER:

WULF HERMANN:

1976

Die Tätigkeit der Organisation der Amerikanischen Staaten (OAS) im Jahre 1976

NIELS BRANDT:

514

Book Reviews Menschenrechte (Riedel) MEISSNER: MARIE:

Die Menschenrechtsbeschwerde vor den Vereinten Nationen

La Commission des Droits de l'Homme de I'O.N.U.

D A FONSECA: HOW to File Complaints of Human Rights Violations Université Catholique de Louvain: La présentation de la preuve et la sauvegarde des libertés individuelles BOSSUYT: L'interdiction de la Discrimination dans le Droit International des Droits de PHomme

Die Möglichkeiten der Grundrechtseinschränkung nach den Art. 8—11 Abs. 2 EMRK

HOFFMANN-REMY:

Abhandlungen zu Flüchtlingsfragen Band I X : Rechtspositivismus, Menschenrechte und Souveränitätslehre in verschiedenen Rechtskreisen

534

Contents

Internationales Binnenschiffahrtsrecht (Webser) JAENICKE:

540

Die neue Großschiffahrtsstraße Rhein - Main - Donau

Die Schiffahrtsfreiheit auf der Donau und das künftige Regime der Rhein-Main-Donau-Großschiffahrtsstraße ZEMANEK:

Das Recht der europäischen Wirtschaftsgemeinschaft im Verhältnis zur Rheinschiffahrtsakte von Mannheim

MEISSNER:

Straf- und Strafprozeßrecht sozialistischer Staaten (Regge)

544

Grundsätze der Strafgesetzgebung, Staatschutz und Militärstrafrecht der UdSSR Strafgesetzbuch und Strafprozeßordnung der DDR mit Nebengesetzen Ausländisches Straf- und Strafprozeßrecht, Straf rechtsvergleichung (Regge)

546

Die Musterstrafprozeßordnung für Argentinien Das schwedische Kriminalgesetzbuch Macht und Redit (Wege) GUNST:

548

Außenpolitik zwischen Macht und Recht

LUTZ/RITTBERGER:

Abrüstungspolitik und Grundgesetz

* ADAM: Les organismes internationaux spécialisés, Bd 4 (Riedel)

550

Arbitration in Sweden (Hermann) Bibliography on International Criminal Law.

551 D E SCHUTTER / E L I A E R T S

(Regge)

.

.

552

Die Entwicklung der Europäischen Rundfunkunion (U. Ε. R.) im Spiegel der Änderung ihrer Satzung 1950—1976 (Rinio)

554

(Hrsg.): Warenzeichengesetz nebst Pariser Verbandsübereinkunft und Madrider Abkommen (Rinio)

554

BRACK:

BUSSE/WOESLER

MCDOWELL:

(Lagoni)

Digest of United States Practice in International Law

GARCIA ARIAS:

1975

and

1976

Balance y Perspectivas del Tribunal Internacional de Justicia (Rinio)

556 557

Comparative Conflict of Laws. Selected Essays, Bd 1. One Law. On Jurisprudence and the Unification of Law. Selected Essays, Bd 2 (Riedel) . . . .

558

KÖCK: Die völkerrechtliche Stellung des Heiligen Stuhls (Rüfner)

560

GRAVESON:

MÜLLER /WILDHABER: RAISER:

Praxis des Völkerrechts (Fiedler)

Grundgesetz und paritätische Mitbestimmung (Rinio)

Die Vereinbarkeit des Vertrages zur Gründung der Europäischen Wirtschaftsgemeinschaft mit der britischen Verfassung (Rinio)

562 563

THELEN:

ZIVIER:

Der Rechtsstatus des Landes Berlin (Wilke)

564 565

Books Received

566

List of Contributors

568

A R T I C L E S

The Recognized Manifestations of International Law A N e w T h e o r y of " S o u r c e s " M a a r t e n Bos I. General Questions Introduction The meaning of "sources* Two approaches to the question of "sources" "Sources" and the normative concept of law Inadequacy of the term "source" Article 38, paragraph 1, of the Statute of the International Court of Justice I I . The Recognized Manifestations of International Law Individually Examined Introduction Treaty Certain decisions of International Organizations Custom General principles of law as recognized by civilized nations Complementary natural law Certain judicial decisions I I I . Some Alleged Manifestations of International Law Introduction Doctrine The work of the International Law Commission Resolutions of the United Nations General Assembly Unilateral acts IV. The Relations Between the Recognized Manifestations of International Law Introduction Mutual independence Coherence Relative place in a scale from induction to deduction L

General

Questions

I n t r o d u c t i o n T h e u n d i s p u t e d pièce de resistance

i n the m e t h o d o l o g y o f l a w is t h e t h e o r y

o f t h e "sources" o f l a w . Y e t , there h a r d l y is a n o t h e r subject t o be f o u n d o n w h i c h such r a d i c a l l y d i v e r g e n t o p i n i o n s are b e i n g h e l d , w i t h r e g a r d t o n a t i o n a l as w e l l as i n t e r n a t i o n a l l a w .

10

Maarten

Bos

A n analysis of existing doctrine on the "sources" of international law w o u l d certainly be an interesting exercise i n international legal methodology. The question is whether, in the end, i t would also be a fruitful one. For w o u l d not the only lesson to be drawn from i t be that every author thinks out the matter for himself and, consequently, that the same has to be done by anybody else setting out on an intellectual voyage in search of these "sources"? A t any event, a study of this magnitude would by far exceed the available space. I t is, therefore, preferred to use the latter for a critical re-appraisal of the major aspects involved in the subject. References to doctrine w i l l be limited to a small number of writers only — those, namely, whom the present writer happened to find on his path and to whom he owes a certain amount of food for thought, even i f he does not in all respects share their views. The

meaning of

"sources"

"Source" in its original meaning is a geological concept. I t denotes a place on earth where water rises from the soil and comes to light. The term most certainly does not connote the subterranean sheet of water from where the rising starts, nor the further origin of that water: rain, melting snow, a melting glacier. N o r is the geological concept supposed to include the chemical process through which water is made, or the chemical elements of water, as little as i t should cover the natural forces ultimately responsible for the hydrological world-situation. I n law, however, one cannot escape the impression that the term "source" has been, and still is being, used to indicate all and sundry of these very divergent factors behind the real source, and even more than that. I n order to avoid this confusion, the very first thing to be done is to l i m i t the use of "source" t o what corresponds to the geological concept, i. e.y to those places where law "comes to light". But confusion being so avoided, the term, as w i l l be shown below, for other reasons yet should be thrown out altogether to be replaced by the expression "recognized manifestation of l a w " . The expression is intended to cover all forms in which the normative concept of l a w 1 is "reflected and elaborated" in a given legal order, i. ethose which may properly be described as "sources", and those which may not. The expression does not relate to what, instead of "reflecting" the normative concept o f law, "represents" the concept of law, either general or normative: like the principle pacta sunt servanda and (possibly) the prohibition of a judicial non liquet 2. "Representing" the concept of law, such phenomena together, so to say, constitute the "definition" of law, and since the definition of l a w must logically 1

On the normative concept of law, see the present writer's Legal Archetypes and the Normative Concept of Law, Netherlands International Law Review (NILR), 72—87 (82—83). 2 See infra , 39—40.

he Recognized

Manifestations

of International

Law

11

precede the manifestations of law, the elements of the definition are not to be found i n these manifestations. They stand by themselves. As a result, a certain relativity attaches to the theory of the recognized manifestations of law, enhanced still by the apparent existence of t w o approaches to it. Two

approaches

to the

question

of

"sources"

The next question to deal w i t h , here, is the purpose of the quest for "sources". One of the functions of the manifestations of law recognized in a given legal order is their legitimizing rôle w i t h regard to legal reasoning. N o reasoning can purport to be a "legal" one unless i t is borne out b y one or more among the rules contained i n one or more of those manifestations (the elements of the definition of law now being left out of consideration). The purpose of the quest for "sources", consequently, must be to k n o w where the law may be found on the basis of which one should reason in case a "legal" reasoning is pursued. One stage further, one may say that the purpose of an enquiry as to what are the "sources" of law is to find out what the law is*. Both questions — where may the law be found? what is the law? — very clearly are "consumer's" questions, i. e., questions asked not by the "producer" of the law, the legislator, but by a subject of the law, himself devoid of all law-creating power. The interest in "sources" of law hence is a "consumer's" interest — chiefly, at least, as w i l l be seen. I n the national legal order, the principal "consumers" of law are individuals and corporations under private law. I n those national legal orders in which the State and the lower bodies corporate under public law are liable to appear in Court, they, too, i n their capacity as defendants may be termed "consumers" of the law. I n this capacity, indeed, they are not empowered to create law. Called upon to justify their acts according to law, they are not allowed to invoke any other rules than those appearing in the official "sources", exactly like their individual or corporate counterparts. This is why, before the Courts, the State and the lower bodies of necessity share the latter's interest in the "sources" of the law. But no sooner do they act as "producers" of law than they lose their interest: making the law themselves, how could they be interested i n existing law, i f not for purely informative purposes? The law-giver wants to be informed about the law so as to know what rules do exist, what rules not, where his action is desirable, what he should revoke, but not in order to gauge his o w n rights and obligations. For him, the law comes first, the "source" second, and i f a rule of law would not fit into existing "sources", he is able to invent a new "source" i n order to accommodate that rule. For i t should be realized that the "sources", as much as the law, are of the law-giver's making. 3

Cf. Clive Parry , The Sources and Evidences of International Law, 1965, 7.

12

Maarten

Bos

This being the situation i n the national legal order, i t should be clear from the outset that i n the international legal order, too, both approaches — the "consumer's" and the "producer's" — may be recognized, though t o different degrees. The origin of the difference is i n the absence of obligatory jurisdiction and the ensuing circumstance of the State being all too often iudex in causa sua. International adjudication of disputes still is an optional feature of international relations. I n the case of t w o States accepting i t either ad hoc or more durably, they w i l l , before the Court, be i n exactly the same position as individuals and corporations acting as parties in a national Court, or as the State or a lower community defending themselves against a claim brought against them. Their interest i n the "sources" of international law w i l l then be as keen as that of the latter in the "sources" of national law. States before an international Court are, indeed, "consumers" of international law, not "producers" of it. However, being optional international adjudication is the exception rather than the rule. States, normally, settle their disputes out of Court, i f they settle them at all. O u t of Court, they are fully aware of their rôle as "producers" of international law, and as a result the "sources" of international law lose much of their meaning to them. For the sake of argument, they then may, nevertheless, have recourse to the "sources", but also may assert a "source" which in Court w o u l d stand no chance of being accepted. The reason w h y the "consumer's" and the "producer's" approach to the question of the "sources" of international law should be distinguished is i n the key to the literature on the subject of "sources" they provide one w i t h . I f a writer is very strict on the "sources" of international law, he, either consciously or unconsciously, thinks of the position States are in before Courts. His w i l l be the "inductive" approach, and he w i l l be a believer in lex lata . Professor Schwarzenberger is believed to belong to this category of authors 4 . Professor Jennings in his Lord M c N a i r Memorial Lecture castigated "the present laxity and excessive flexibility i n the limits of what may plausibly be alleged to be international l a w " , and expressed his fear "that governments w i l l be disinclined to litigate disputes so long as the tests of what is law and what is not are both uncertain, and themselves disputed" 5 . Much of the "producer's" approach, on the contrary, may be found in Professor Parry's study on The Sources and Evidences of International Law already quoted before. I n his own words, " i t is not w h o l l y heretical to venture the suggestion that, i n imaginable theoretical circumstances, the States might be wiser than the Court . . . And, i f this be a true possibility, i t provides a very profound ground for an appeal 4

Georg Schwarzenberger , The Inductive Approach to International Law, London 1965, 4. 5 Robert Y. Jennings , The Discipline of International Law, Lord McNair Memorial Lecture delivered in the University of Madrid on 30 August 1976 at the 57th Conference of the International Law Association, London, 12; and see his reference to lex lata at 4.

he Recognized Manifestations

of International

13

Law

that the sources of international law, and therefore international law, should not only be looked at exclusively through the eyes of the Court, but should be looked at w i t h some urgency through other eyes as w e l l " 6 . Professor Parry makes i t abundantly clear that, in his view, these "other eyes" are those of the State, and this is where, in fact, he wishes to lay the emphasis in his enquiry 7 . Both approaches are valid, however different they may be. I t is the merit of the distinction between the "consumer's" and the "producer's" approach to explain this and to prevent the reader of the literature on the subject from being baffled by their discrepancies. The only problem remaining is to know which of the t w o approaches should be considered to be the more realistic one in international law, in the sense of corresponding most to the every-day reality. W i t h a view to the State being the homo liber of modern times 8 , there is no doubt that the "producer's" approach is the one most deserving the epithet of realism. This being so, the theory of "sources" in international law takes on an increased appearance of relativity, strengthened further by the fact that Courts occasionally act as legislators and, to the extent to which they thus are also creators of law, needs adopt the "producer's" approach to the problem of "sources". Asking once more what is the purpose of the quest for the "sources" of international law, the answer given above may now more accurately be formulated as follows: the purpose of this quest above all is to know where the rules of international law may be found on the basis of which a party should reason in Court; in all other circumstances, the importance of "sources" must depend on the intentions of those involved i n a given relationship. "Sources"

and

the

normative

concept

of

law

The answer thus reformulated directly leads to the third subject of a general nature, namely, the apparent link between the question which are the "sources" of law, on the one hand, and the normative concept of law, on the other hand. Strangely enough, writers hardly ever make the link, yet, how self-evident i t is! A n y enquiry into the "sources" of the " l a w " not only should define the notion of "sources", but that of " l a w " as well. A rare exception, here, is Sir Gerald Fitzmaurice who, in a contribution on the "sources" of international law, w r i t i n g down the words " l a w in the proper sense of the term", in a footnote at least commented them in the following terms: " i . e. as meaning rules of general v a l i d i t y for and application to the subjects of the legal system, β Parry (n. 3), 16—17. 7 Parry (n. 3), 27. 8 See this writer's forthcoming contribution entitled Old Germanic Law Analogies in International Law, or: The State as Homo Liber , N I L R 1978, No. 1.

14

Maarten

Bos

not arising from particular obligations or undertakings on their p a r t " 9 . As a result, the learned author declined to recognize treaties as a "source" of international law : i n his conception, they are mere "sources" of obligations . One is confronted, here, w i t h a very clear demonstration of the impact one's definition of law — and, therewith, one's normative concept of law lying at the root of that definition — must have on one's opinion on "sources". Another example of the same influence, also i n a narrowing sense, is the denial (or virtual denial), often to be found in Soviet doctrine, of custom as an independent "source" of international law. T o such a narrow concept of international law one may be motivated by the wish to leave as much room as possible to discretion, i. eto the domaine réservé or to politics. But the normative concept of law may also cause the range of "sources" to be widened. This is how, i n 1920, the general principles of law recognized b y civilized nations came to be inserted into Article 38, paragraph 1 (c), of the Statute of the Permanent Court of International Justice. I n short, it is the normative concept of law which decides about the need for , and the number of, " sources " of law . To these observations on the l i n k between "sources" and the normative concept of law, t w o remarks only are to be added in the present context. The first one is that the "consumer's" and the "producer's" approach discussed above in the last instance may stand for different normative concepts of law. The second one relates to the question whether the "sources" of international l a w can be exhaustively enumerated. Professor Parry denies the possibility. " W h a t the sources of international law are", he wrote, "cannot be stated; i t can only be discussed" 10 . The opinion here expressed necessarily implies that no single normative concept of l a w exists for international relations, but a plurality of such concepts leading to different theories on "sources". This is correct, and the "consumer's" and "producer's" approaches were a possible illustration of it. But i t should also be realized that w i t h i n each normative concept of law there can be but one conviction at a time w i t h regard to the "sources" of law and their number. A n y b o d y staying w i t h i n the limits of his own normative concept of law, therefore, should be able exhaustively to enumerate the "sources" of the law as he sees it, be i t only as categories, without any detailing of what they comprise (treaty, e. g., not which treaties). Even this, however, is rejected by Sir Gerald Fitzmaurice for reasons of logic. I t is proposed to revert to his thesis below 1 1 .

9 Sir Gerald Fitzmaunce, Some Problems Regarding the Formal Sources of International Law, in: Symbolae Verzijl, 1958, 153—176 (157, n. 2). Parry (n. 3), 27. 11 See Part I V , infra: The Relations Between the Recognized Manifestations of International Law.

Τ he Recognized

Inadequacy

Manifestations

of International

of the t e r m

Law

15

"source"

The normative concept of law thus being decisive in all matters of "sources", the question now arises whether the manifestations of law recognized in international law do all come under the designation of "source". Does, i n other words, i n all of them international law "come to light"? One cannot but answer in the negative. Fairly generally admitted as a recognized manifestation of international law, e. gare the "general principles of l a w " mentioned above. Below, i t w i l l be set forth that they reflect either a "fundamental", or a "comparative" l a w concept 12 . I n neither guise, however, they correspond to the notion of "source" as understood here. They are not, like treaty and custom, a place where the law "comes to l i g h t " : they are the law itself and, on top of that, a law which is "hidden" i f conceived of as fundamental, and "coming to light", though indirectly, in countless rules of national law in the comparative view of them. I n the first interpretation, the general principles of law, rather than flowing from a "source", are contained in a "subterranean sheet" of law not connected w i t h the surface, and are k n o w n through a process of "remote sensing", as i t were, whereas in the comparative perception national statutes figure as their "source". T o the general principles of law the w o r d "source" decidedly does not apply. For this reason, i t is proposed to abolish the term when recognized manifestations of law are being meant. Another reason to suppress it is in the confusion i t is liable to cause, as already hinted at i n the beginning of this paragraph. I n order to prove this point, the coming into being — and " t o l i g h t " , i f ever — of international law as the present writer sees i t w i l l now be shown i n five heads, together w i t h the corresponding notions from the w o r l d of nature regarding the production of water (an image imposed — alas! — by those insisting on the use of the w o r d "source"). This exercise (1) w i l l then be followed by a distribution over the survey thus obtained of the names and terminologies of a few authors, mainly as mentioned on the first pages of Professor Parry's book (2). The numbering in (2) w i l l closely follow that in (1). 1

a) The normative concept of international law, creator spiritus of the latter, component of the human mind, origin of the binding force of international law (corresponding to the natural potential surrounding the physical world). 12 See Part I I , infra: The Recognized Manifestations of International Law Individually Examined.

16

Maarten

Bos

b) The factual and moral elements of international law and the principles of rational organization (corresponding to oxygen and hydrogen). c) The process of international law production (corresponding to the process of the production of water), either formal or informal. Formal production of international law presupposes a legislative or judicial activity satisfying certain conditions for its " v a l i d i t y " (here connoting what in Dutch is called geldigbeid, in German Gültigkeit). d) The manifestations of international law (corresponding to a subterranean sheet of water or a source). They are treaty, certain decisions of international organizations, custom, general principles of law recognized by civilized nations, complementary natural law, certain judicial decisions 18 . The first t w o and the last among them need to be based on a " v a l i d " act 1 4 and, therefore, are subject to the same requirement of " v a l i d i t y " . " V a l i d i t y " i n this sense is a condition of " v a l i d i t y " i n the second meaning of gelding (Dutch) or Geltung (German), i. e.y being operative. W i t h regard to treaties and decisions of international organizations, Gültigkeit and Geltung may not coincide: a treaty or a decision of an international organization may be perfectly " v a l i d " i n the first connotation of the term, yet not be operative (a treaty for not having been ratified, for instance); in all other cases, completed manifestations o f international law have an immediate Geltung (under the proviso of Gültigkeit for judicial decisions) 15 . Geltung is to the binding force of international l a w 1 · what the particular is to the general. e) The official publications regarding treaties, certain decisions of international organizations, and certain judicial decisions (corresponding t o an official signpost at the source, or a label reading appellation contrôlée ).

2 a) To indicate what here is called the normative concept, Corbett, Brierly, and others spoke of the "basis" or the "source" (in the singular) of international law. Salmond, the British theoritician of the law, alluding to the influences shaping the normative concept in the national legal order, such, as Roman l a w , and calling them "historical sources", thus even saw a "source" beyond the "source" as understood b y the former. b) I n Corbett's terminology, elements and principles are "the sources" o f international law. Salmond would have included them i n what he termed the

ι» See below, Part I I . See (c), supra. 15 See supra. 16 See (a), supra. 14

he Recognized

Manifestations

of International

Law

17

"material sources". Fitzmaurice adopted the latter expression for "the stuff out of which the law is made" 1 7 . c) Fitzmaurice: the acts or facts whereby the content of the law, whatever it may be and from whatever "material source" i t may be drawn, is clothed w i t h legal v a l i d i t y and obligatory force, are the "Normal sources" of l a w 1 8 . Here, too, he appears to follow Salmond. Also to be mentioned, here, is Dehaussy's formula: "Nous entendrons par source du droit international tout processus juridique créateur de normes générales destinées à régir des rapports internationaux " 1 9 . d) Salmond here would have referred to "legal sources", whereas Fitzmaurice, rather inconsistently, again speaks of "formal sources" 20 . Oppenheim's term to denote the manifestations of international law simply was "source" 2 1 . e) Salmond's term for official publications was "literary sources". Corbett used "records or evidence", meaning the documents or acts proving the consent of States to the rules of international law. The few examples given may no doubt be increased many times. This would, however, be useless: they alone do amply demonstrate the confounding effect of the word "source". A t h i r d and last reason to abandon the expression is that, "source" and the "water" in i t being t w o things apart, it, strictly speaking, obliges to distinguish treaties, decisions of international organizations, and judicial decisions from the rules they contain. The expression "manifestation of l a w " implies no such artificial distinction 2 2 .

17

Fitzmaurice (n. 9), 153.

18

Fitzmaurice (n. 9), 154; and see 163: "There is, of course, no doubt that general consent is a way, and even a principal way, in which rules possessed of legal force come into existence (i. e. that it is a formal source of law) e . 19 Jacques Dehaussy , Sources du droit international: Introduction générale, in: Juris-Classeur de Droit International, Volume I, Fascicule 10, 4; and cf. Haro F. van Panhuys , Het recht in de wereldgemeenschap (Law in the World Community), 1974, 95: "procedures or mechanisms" (this writer's translation). 20

Fitzmaurice (n.9), 173: "the formal sources of international law are (i) international custom or State practice, based on, or evidencing consent". 21 Lassa Oppenheim, International Law, Vol. I, 8th ed. by Sir Hersch Lauterpacht, 1955, 25 : " 'Source of law' is therefore the name of an historical fact out of which rules of conduct come into existence and legal force". 22 See this distiction, e. g., in Professor Fritz Münch* s article on Die Völkerrechtslehre als Völkerrechtsquelle, Die Friedens-Warte 1961—1966, 349—356 (352): in Article 38, paragraph 1, of the International Court's Statute, the learned author holds, conventions and the general principles of law are to be understood as rules (norms), not as "sources".

2 G Y I L 20

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A r t i c l e 3 8 , p a r a g r a p h 1, o f t h e S t a t u t e the I n t e r n a t i o n a l C o u r t of Justice

of

Lastly under this heading a w o r d or t w o should be said about Article 38, paragraph 1, of the Statute of the International Court. Quite naturally, they cannot do justice to the ocean of ink spent on the provision, but this, as already indicated, should be reckoned impossible i n the present context. The paragraph is worded as follows: "The Court, whose function is to decide i n accordance w i t h international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as l a w ; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59 2 S , judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." The present writer merely wishes to endorse Sir Gerald Fitzmaurice's opinion that "Article 38 is simply a sort of standing directive to the Court as to what it is to apply in deciding cases brought before i t — much as, i n a compromis , the parties might refer a matter for decision by a tribunal on the basis of certain specific principles or elements, or categories of either" 2 4 . For the correctness of this view, reference may be made to the legislative history of Article 38 2 5 and especially to Baron Descamps' and L o r d Phillimore's statements on the subject 26 . Professor Parry, sharing Judge Fitzmaurice's opinion, adds that parties to the Statute may amend the provision 2 7 . The provision should not be considered to be an exhaustive statement of the manifestations of international law recognized either w i t h i n the Court's precinct, or outside. Suggestive as i t is, i t is, nonetheless, of very great importance i n the search for these manifestations. As Fitzmaurice puts it, Article 38 "clearly reflects an abstract view of what the sources of international law in general are" 2 8 .

23

Article 59 of the Statute: "The decision of the Court has no binding force except between the parties and in respect of that particular case". 24

Fitzmaurice (n.9), 173. 25 Cf. infra, 33—38. 2β See infra , 34. 27 2

Parry (n. 3), 15.

® Fitzmaurice (n.9), 173.

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II. The Recognized Manifestations of International Law Individually Examined Introduction The definition of the concept of a "recognized manifestation of l a w " as resulting from the foregoing observations and to be retained, here, is: recognized manifestations of law are the phenomena which i n a given legal order one is allowed to invoke in order to legitimize a reasoning alleged to be a legal one 29 . As suggested in the previous part, the number and character of sudi manifestations in any legal order depend on the normative concept of law prevailing i n that order 80 . Important factors in the determination under this concept of the manifestations as indicated are the historical background of the relevant community, and the degree of organization this background permits. I t is believed that the better a community is organized, the smaller the number is of its recognized manifestations of law. Taking the codification countries to be the best organized ones, one w i l l notice an extreme streamlining of their legal orders, to the effect that statute virtually is their only recognized manifestation of law, custom and case-law occupying a very secondary place 31 . Before codification, however, the situation w i t h regard to these countries very much resembled the one now known i n the international community, w i t h a multiplicity of recognized manifestations. These countries, then, dwelled on a lower level of organization, and the problems then surrounding the recognized manifestations of law show a surprising likeness to those now confronting the international lawyer 3 2 . The international community, accordingly, is far behind the modern State in the matter of its organization — and so much so that i t is commonplace to recall the fact. 29 Cf. Anthony d'Amato , The Concept of Custom in International Law, 1971, X I I I : custom is "a method of legal argumentation"; 23: "the words and concepts and modes of argumentation that make up international law"; 266: "law is . . . a form of language and argumentation"; and 270: "the legitimate argumentative procedures". 30 See supra , 14. 31 For custom in the Netherlands, see Article 3 of the General Provisions Act 1829 (Wet houdende algemeene bepalingen der wetgeving van het Koningrijk), together with Jacobus Th. de Smidty Rechtsgewoonten (Customary Law), 1954. 32 Cf. Professor J. P. A. Coopmans9 highly interesting and stimulating article Vrijheid en gebondenheid van de rechter vôôr de codificatie (Freedom and Limitations of the Judiciary before the Codification), in the collection of legal essays under the title Rechtsvinding, 1970, 71—109; and see Sybrandus J. Fockema Andreae , De Nederlandse Staat onder de Republiek (The Dutch State during the Republic of the Seven United Provinces), 1961, 132—133, on the traumatic experience under Spanish rule which especially prevented the Provinces of Holland and Zealand from arriving at a codification (the other Provinces knowing a primitive sort of codification in their Landrechten).

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I n the present part, an endeavour w i l l be made to describe the recognized manifestations of international law. Depending as they are on the normative concept of law prevailing in international relations, and the international community being a fairly chaotic one, one may expect a rather long list of them. Article 38, paragraph 1, of the Statute of the International Court of Justice w i l l serve as a starting-point and a guide-line, for did not Sir Gerald Fitzmaurice call it the reflexion of an abstract view of what the sources of international law in general are 38 ? A t the same time, however, the provision w i l l prove no more adequately to reflect the normative concept of international law and, consequently, to be too short, even in terms of the International Court itself. The notes to follow are strictly limited to the recognized manifestations as such and do not deal w i t h their implementation: this is a subject reserved for later treatment.

Treaty Under Article 38, paragraph 1, of the International Court's Statute, "the Court . . . shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states". What is meant by "conventions"? Treaties, perhaps? I n the words of Article 2, paragraph 1 (a), of the Vienna Convention on the L a w of Treaties, adopted on 23 M a y 1969, but not yet in force, "for the purposes of the present Convention, 'treaty 4 means an international agreement concluded between States i n written form and governed by international law, whether embodied in a single instrument or in t w o or more related instruments and whatever its particular designation". A comparison of Statute and Convention as quoted shows a difference i n scope between them. Whereas the Statute refers to "rules expressly recognized", the Convention focusses on agreements " i n written form" o n l y 3 4 . The text of the Statute clearly is the wider one, and no written form appears to be required for the international conventions the Court shall apply. I n the present context, therefore, speaking of "treaties" cannot mean to i m p l y the restriction contained i n Article 2, paragraph 1 (a), of the Vienna Convention. W i t h regard to Article 38, paragraph 1 (a), of the Statute of the Permanent Court of International Justice, Judge Hudson rightly came to the same conclusion. As he put it, "the term conventions is used here . . . in a general and inclusive sense. I t w o u l d seem to apply to any treaty, convention, protocol, or agreement, regardai Supra, 18. 34 The Convention, for that matter, does not deny the legal force of international agreements not in written form: see its Article 3.

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less of its title or form". A n d he recalled that in its judgment of 5 A p r i l 1933 — Legal Status of Eastern Greenland — the Permanent Court recognized an oral statement, viz., the famous Ihlen-declaration of 22 July 1919, as a binding undertaking 3 5 . However the intention to be bound is, i n all circumstances, essential 36 . The question whether treaties are to be considered as recognized manifestations of international law was already mentioned before 37 . Sir Gerald Fitzmaurice was said to have denied them this quality: i n his view, they are but "sources" of obligations , not of law , or to quote the learned author's own words: " I n their contractual aspect, they are no more a source of law than an ordinary private law contract; which simply creates rights and obligations" 3 8 . Condensed, his entire argument in the matter comes to this: treaties are contracts which may do three things, namely, 1) just make use of existing international law, and, then, reflect i t on a limited scale, 2) reflect existing international l a w i n a more elaborate manner — a declaratory or codificatory treaty — , 3) create " n e w " obligations which in time become general customary international l a w ; in each of these three cases, the treaty is evidence of international law and is applied concurrently w i t h the latter; so-called "law-making treaties" ( traités-loi ), i n fact, do no more than 2) and/or 3), even i f universally accepted; i n case 3), what, actually, "makes" new international law is consent — a "formal source of l a w " in Fitzmaurice's first meaning of the term 3 9 4 0 . T o all intents and purposes, Professor Parry's opinion is the same as Sir Gerald Fitzmaurice's. "Treaties are sources of obligation rather than sources of l a w " , he w r o t e 4 1 , and he appears to have three reasons for this statement: 1) a quantitative consideration: the status of treaties in international law is peripheral, they still are less important than custom 42 ; 2) "the nature of the society of States and its basis i n a system of co-ordination rather than subordination may, indeed does, demand that international law shall have as its general basis a 35 See Manley O. Hudson , The Permanent Court of International Justice 1920—1942, 1943, 608; and Permanent Court of International Justice, Series A/B, No. 53, 73; on the Ihlendeclaration, cf., e. g.y Daniel P. O'Connell , International Law, Vol. I, 1970, 202—203; and see the judgment of the International Court of Justice of 20 December 1974 (Nuclear Tests Case), International Court of Justice Reports (ICJRep.) 1974, 269—270, on an oral statement made by the President of the French Republic. 3β Cf. Parry (η. 3), 49 (quoting J. E. S. Fawcett); and see Arnaud Cras , Les "executive agreements" aux Etats-Unis, Revue Générale de Droit International Public 1972, 973—1043 (1026—1030), on the legal force of executive agreements. 37 See supra , 14. 3 8 Fitzmaurice (n. 9), 157. 39 See supra , 17. 40 Fitzmaurice (n. 9), 157—160. « Parry (n. 3), 53. 42 Parry (n. 3), 34 and 42.

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process other than a legislative or quasi-legislative process" 43 ; and 3) the uncertainty surrounding treaties on account of their accumulation throughout a State's history 4 4 , their drafting defects 45 , and the fact that, after all, States are laymen, not lawyers, and do very much conduct their business themselves 46 . Treaties, in Professor Parry's view, only have an indirect influence upon international law, an influence which nowadays is increasing 47 . Continental international lawyers do not share what appears to be a typically Anglo-Saxon theory 4 8 . Professor Verdross, for instance, i n a recent work on "the sources of universal international l a w " , voices the opinion that treaties from the very beginning of international law ( von allem Anfang an) were recognized as such a "source" 49 . The same applies to Professor Dehaussy to w h o m treaties laying down rules of general application are, likewise, "sources" of international l a w 5 0 . The question n o w arises which of the t w o doctrines is correct. First of all, i t should be observed that Professor Parry's quantitative and qualitative considerations 51 are rather unconvincing: a small body of legislation which, i n addition, is confused can be no argument for the absence of legislation 5 2 . Consideration 2), though a l l right in itself, is as ineffective as 1) and 3) for the petitio principii i t contains: i f treaty-making is no legislation, there still is no proof that a treaty cannot be a manifestation of international law. Better grounds are, therefore, needed t o support the Anglo-Saxon doctrine on the nature of a treaty. But as the present writer sees it, the correctness of this doctrine can be proved only partly. H e , indeed, would like to take a middle position in between the Anglo-Saxon and the Continental schools of thought, and his argument runs as follows. « Parry (n. 3), 36. 44 Parry (n. 3), 44. 45 Parry (n. 3), 44—45. 4® Parry (n. 3), 49—52. 47 Parry (n. 3), 54—55. 48 Parry (n. 3), 76. 49 Alfred Verdross , Die Quellen des universellen Völkerrechts, 1973, 24—25 and 38 et seq. so Dehaussy (η. 19), 5—6; and see his definition of "source", " s u p r a a t 17. si See 1) and 3), supra. 52

As to the quantitative approach, Professor Verdross (η. 49), 38, takes exactly the opposite view: in his opinion, treaty nowadays outshines custom because of the great codifications of 1958 (sea law), 1961 (diplomacy), 1963 (consular law), 1967 (space law), and 1969 (law of treaties). As an additional support for Verdross 9 view may serve the fact that since 1946 about 15.000 treaties were registered with the United Nations, while a further 5.000 treaties remained unregistered. The United Nations Treaty Series now numbers some 900 volumes, none of which covers treaties more recent than those dating back to 1972, Nieuwe Rotterdamse Courant-Handelsblad, 23 February 1977.

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I f the State as we know i t is the lineal descendant of the O l d Germanic homo liber 53, the State undoubtedly, in its relations w i t h its fellow-States, should be deemed empowered to create law. One of the means to do so is to conclude a treaty, another to bring forth custom. W h y should custom be the only means, to the exclusion of treaty? The supporters of the Anglo-Saxon view should be asked w h y a homo liber is not liber enough t o choose himself the mould in which to cast the law. But the law-creating capacity of the State thus having been established, together w i t h its freedom of choice as to the means to be employed, the question still remains whether any treaty concluded by the State should be considered an expression of that capacity. The answer may be found on the strength of the following analogy. So long as custom was i n its beginnings, contracts between homines liberi under O l d Germanic law may be said to have held " l a w " : supposedly, every one of them did contribute to the growth of the law, irrespective of whether it was intended to last for a short or for a long period of time. But no sooner did custom develop on the basis of contractual practice than the position of contracts changed. The choice for contracts then became either to continue the creation of law, or to confirm existing custom. I n the former hypothesis, there clearly was no reason no more to recognize the law-making function of contracts, but what about the latter? There appear to be t w o ways to "confirm" custom by contract: to restate, or codify, it, and merely to avail oneself of a competence attributed under custom (to buy and sell, for instance). N o w , to which of these three contingencies does the term "manifestation of law " apply? Certainly, in this writer's submission, to the case of a contract creating new law. Also to that of a codifying contract: then, a less perfect "source of l a w " is replaced by a more perfect one which, as such, necessarily partakes of development 54 . N o more, however, to the case of a contract which neither adds new l a w to the existing one, nor codifies the latter. Translating this conclusion into the language of international law, one finds that treaties, whether bilateral or multilateral, are to be considered as manifestations of international law , provided they augment or codify the body of already existing rules 55 . "Sources" of obligations they are, on the contrary, when filling the rôle of a contract in modern municipal law. But whatever the character of a particular treaty, under Article 38 of its Statute the International Court w i l l always have to apply it. T o this extent, consequently, the 53

See supra, 13. 54 Jennings (n. 5), 4: a I t is now accepted that no sharp distinction is possible between codification and progressive development". 55 Professor Percy £. Corbett, The Consent of States and the Sources of the Law of Nations, British Yearbook of International Law (BYIL) 1925, 28, wrongly therefore declares "particular international law" to be a contradiction in terms.

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controversy studied here is of no practical significance. But as soon as the Court has to interpret the treaty, i t may become clear that i t is not altogether immaterial whether one adopts the Anglo-Saxon, the Continental, or the present writer's view of treaties and their status. Considered as "contracts", treaties w i l l , indeed, be interpreted w i t h a very heavy emphasis on the w i l l of the parties, whereas the accent may move in the direction of the collective State-interest as often as they are reckoned to be "manifestations of international l a w " 5 6 . I n order to solve the problem of the status of treaties as a possible manifestation of international law, writers on the subject occasionally proposed to distinguish traités-loi from traités-contrat . The substance of the difference between the t w o categories is supposed to be in the concurrent and opposite intentions, respectively, of the parties to such treaties: in a traité-loi , their identical wills would be directed towards the same goal, viz., the creation of a rule of law, whereas i n a traité-contrat they w o u l d envisage different, though complementary performances 57 . I t follows from the foregoing that traitéscontrat introducing one or more novelties should be considered as manifestations of international law between the parties, and not as "sources" of obligations. The distinction, therefore, is of no help i n the present context. Certain

decisions

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international

organizations

Decisions of international organizations (including decisions of their organs), a k i n d of unilateral act, do not appear in Article 38, paragraph 1, of the International Court's Statute among the manifestations of international law the International Court has to apply. The Court nevertheless applies such decisions, be i t only as a derivative manifestation. As it was rightly observed by Professor Tammes: "One is drawn to the conclusion that the Court, in applying resolutions of international organs, is basically applying the international conventions such as the Charter of the United Nations, from which the decisionmaking power of such organs is derived" 5 8 . The learned author, however, rejected this usage. I n his opinion, " f o r the purpose of clear legal distinctions decisions can most conveniently be considered as a separate source of international law . . .; just as in national law i t would be confusing to maintain that a court, dealing w i t h an act of parliament, is applying the Constitution, for the same reason in international law it w o u l d be unpractical not to recog56 Cf. d'Amato (n. 29), 150 et seq. 57 Jean P. A. François , Grondlijnen van het volkenrecht (Main Lines of International Law), 3rd ed., 1967, 318—319. 58 Arnold J. P. Tammes , Decisions of International Organs as a Source of International Law, Recueil des Cours de l'Académie de Droit International (RdC) 1958 I I , 265—364 (269).

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nize that applying a resolution is applying something different from a convention. The most obvious difference is that there are no parties to a decision" 5 9 . The present writer entirely subscribes to the statement. Meanwhile, not all decisions of international organizations deserve to be recognized as manifestations of international law, but those only which direct themselves to members of the organization and bind them as to their conduct. They are to be distinguished from decisions not directing themselves to members and merely asking to be respected by them. The latter variety is not to be considered as a manifestation of international law. As examples of both, one may point at the Rules of Court as amended by the International Court of Justice on 10 M a y 1972, on the one hand, and at the election by the General Assembly and the Security Council of the United Nations of the members of the International Court, on the other hand 6 0 . Sometimes, writers insist that decisions of international organizations in order to qualify as manifestations of international law should embody rules of a general nature 6 1 . The correctness of this view is to be doubted for the reason that i t is so clearly inspired by the concept of statute which, even in the relations between members of an international organization, is out of place 62 . C u s t o m

Article 38, paragraph 1 (b), of the International Court's Statute refers to "international custom, as evidence of a general practice accepted as l a w " . The words "as evidence of" should be taken to mean " i n the sense o f " , for were they taken literally, they w o u l d imply that a general practice is evidenced by custom, which is, of course, the reverse of ^ hat must have been intended 63 . Custom is what one is i n the habit of doing, convinced that such behaviour is legally obligatory (opinio iuris), although not ordered by a written rule. The latter words are not normally to be found in definitions of custom. They are, yet, deemed to be essential. Under the last heading — part I V : The Relations Between the Recognized Manifestations of International L a w — i t w i l l be made clear w h y . s» Tammes (n. 58), 269—270. 60 Cf. the Court's Statute, Articles 30 and 8, respectively. 61 See, e. gDehaussy (n. 19), 6, and supra , at 17, and Jan H. W. Verzijl , International Law in Historical Perspective, Vol. I, 1968, 75. 62 On the subject generally, see Tammes (n. 58), and Ingrid Detter, Law Making by International Organizations, 1965; with regard to the United Nations, see Edward Yemin , Legislative Powers in the United Nations and Specialized Agencies, 1969, and Jorge Castaneda, Legal Effects of United Nations Resolutions, 1969. 63 See Georg Schwarzenberger, International Law, Vol. I, 3rd ed., 1957, 39, and Parry (n. 3), 56.

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Which are the prerequisites of custom i n international law? I n his wellknown treatise, Professor Guggenheim gives an interesting account of the historical development of this part of doctrine. According to Suarez in his De legibus ac deo legislatore (1612), t w o things were required for custom to exist, namely, consensus, being the sovereign's consent, and compliance w i t h reason (ratio, i. e., God's w i l l as revealed to man). Grotius was satisfied w i t h the mere tacitus consensus populorum. I n the early nineteenth century, the Historical School harked back to Bartolus (1314—1357) and his requirement of vetustas: V o n Savigny and Puchta then laid down the doctrine which, eventually, came to be adopted in Article 38, paragraph 1 (b). I n their opinion, custom is based upon t w o assumptions, viz., durable and constant repetition, together w i t h the opinio iuris. N o more did, i n this view, custom need to correspond to ratio 64. I n a more elaborate manner, Judge Hudson defined "the elements which must be present before a principle or rule of customary international law can be found to have become established". H e d i d so i n 1950 i n his capacity as a Special Rapporteur to the International L a w Commission, specifying said "elements" in the following words: "(a) concordant practice by a number of States w i t h reference to a type of situation falling w i t h i n the domain of international relations; (b) continuation or repetition of the practice over a considerable period of time; (c) conception that the practice is required by, or consistent with, prevailing international l a w ; and (d) general acquiescence in the practice by other States." Judge Hudson then added: " O f course the presence of each of these elements is to be established as a fact by a competent international a u t h o r i t y " 8 5 . A t present, the two requirements of custom as embodied in the phrase " a general practice accepted as l a w " are under heavy attack. The first one is denied by those who express their belief i n "instant customary l a w " 6 6 , while others seek to do away w i t h both of them. I n the latter group, Professor d'Amato i n his stimulating study on The Concept of Custom in International Law, already quoted before, aims at a total reshuffle of ideas connected w i t h international custom. His proposition i n dealing w i t h international custom is, first, to look for a "claim" that a line of conduct not only reflects a social 64

Paul Guggenheim , Traité de Droit International Public, Vol. I, 2nd ed., 1967, 94—103. 65 Yearbook of the International Law Commission (YBILC) 1950, Vol. I I , 26.

66 See, e. g., Professor Louis B. Sohn, The Development of the Charter of the United Nations, in: Maarten Bos (Ed.), The Present State of International Law, 1973, 52—53.

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habit or political expediency, but is a matter of legal regulation; and, second, to examine whether the precedential force of this claim was enhanced by successful repetition, consent, estoppel, or reasonableness 67. I n his reference to reasonableness, a distant echo may be heard of Suarez' requirement of compliance w i t h reason. As to the so-called "instant customary l a w " , the concept, contradicting itself, clearly serves no other purpose than to support the conclusion that resolutions voted by the General Assembly of the United Nations i n spite of their recommendatory character yet can bind the Members of the Organization. Instead of falsifying custom to this end, one better concentrates on other means to explain the influence of such resolutions 68 . W i t h regard to Professor d'Amato's approach to custom, i t w i l l be interesting to quote his own definition of law as adopted for the entire work. As "a useful meaning of the term 'rule' or 'norm' of law"** the author selects that of "prescriptive statements which exert, in varying amounts, a psychological 'pressure' upon national decision-makers to comply w i t h their substantive content" 7 0 . H e then gives an example: "As we shall see later in an examination of McDougal's view of the function of rules of warfare, one might very well interpret many international rules relating to rights of neutrals, prisoners of war, and so forth, as 'pressures' that have some influence i n shaping the conduct of war, no matter how many outright violations of those rules occur" 7 1 . And, again, he insists that, " o f course, the degree to which the normative 'pressure' of various rules is felt is a function of the particular rule's degree of acceptance as a part of the general body of international norms, of the threat of sanctions behind the rule or the transference of the idea of sanction from other rules to that rule, of the 'morality' of that rule or of the body of rules of which it is a part, of the state's national interest i n following that rule and its perception of reciprocal behaviour on the part of other states, and of all the other considerations previously suggested" 72 . L a w as an instrument of pressure which "may vary from state to state and from rule to r u l e " 7 3 thus becomes the frame of reference for Professor d'Amato's study of international custom. A n extremely politicized view of law it certainly is. A n d i t should be recognized that his "claim-oriented" approach of international custom fits i n admirably. What, indeed, could be the use, i n 67 d'Amato (n. 29), 175, 187—199, 271. 68 See Part I I I , infra. 69 Italics supplied. 70 d'Amato (n. 29), 31—32. d'Amato (n.29), 32. 72 d'Amato (n.29), 33. 73 Ibid.

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such surroundings, of anybody's asking for a common opinio iuris and a common behaviour stretching over some period of time? Once more, one has occasion to point at the close link between the concept of law and the theory of "sources". But whosoever would not sympathize w i t h Professor d'Amato's concept of l a w most likely would reject his view of custom as well. The author himself, however, probably would not agree w i t h the present writer's reduction of his view of custom to his concept of l a w : does not this smell of the deductive method, and did he not resolutely opt for the inductive approach? "International law, as Georg Schwarzenberger has demonstrated, is an inductive process", d'Amato observes. "Even when authorities like Judge Fitzmaurice claim that international law is in part made up of natural law principles, they are really claiming this as a matter of inductive observation of the behaviour of national decision-makers and the decision-makers' conceptions of the content of international l a w " 7 4 . Here is the "consumer's" approach in f u l l bloom! I n addition, it cannot be correct that the existence of natural law principles should depend on the behaviour and opinions of practitioners only: for, i f this were true, on what basis should those practitioners themselves be able to determine their existence? A n d quite apart from this, the choice to be inductive re vera is a choice of a deductive character, and not the other way round, as the author suggests. I n actual fact, Professor d'Amato's method w i t h regard to custom is far less inductive than he himself considers i t to be. Under his theory, a Court at least enjoys a freedom in the matter of evidence of custom equal to its latitude under deductive doctrines. As a result, his theory is a pseudo-inductive one, instead of the rigorously inductive method i t purports to represent. Meanwhile, the theme of induction certainly is of interest i n the context of custom, as of almost all manifestations of international law. The manifestations of international law most permitting of induction no doubt are treaties and certain decisions of international organizations. Some deduction, however, is inherent even i n their handling. More deduction creeps in w i t h custom, more still w i t h the general principles of law, and, finally, w i t h complementary natural law i t may be said that deduction reigns supreme 75 . Professor d'Amato, quite naturally, finds himself at odds w i t h Judge H u d son's attempt t o define the "elements" of international custom. His criticism of i t is directed at well over a dozen points many of which, however, no doubt must have existed i n Hudson's own mind at the very moment of writing. T o this extent, therefore, the latter's survey of "elements" remains unscathed. But 74 d'Amato (n. 29), 14. 75 See infra, 76.

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t w o observations by Professor d'Amato are more incisive, although in the end they merely tend to underline his own misapprehension of the legal personality Judge Hudson was. The author, indeed, reacts against Judge Hudson's third "element" of international custom, seil., that there should be the "conception that the practice is required by, or consistent with, prevailing international l a w " ; and against his statement about the necessity for each of his four "elements" to be established as a fact by a competent international authority. Professor d'Amato avers to be unable to see how ever a new rule of customary international law can come to life i f i t has to be required by, or consistent w i t h , already existing law, nor how in Hudson's view a rule of existing customary international law can ever change 76 ; and he furthermore wonders how an international authority is to establish the existence of an international custom the existence of which depends on its establishment precisely by such an authority 7 7 . The "illogic" Professor d'Amato here imputes to Judge H u d son's concept of customary international l a w 7 8 in point of fact rests on an optical error of his own. As an inveterate inductivist, Professor d'Amato fails to appreciate that, according to the deductivist, people to a certain extent may carry the law in themselves. N o w , this is the perspective in which Judge H u d son viewed his third "element": of course did he not mean to say that the "prevailing international l a w " was anything detached from the States exercising the practice in question (as an inductivist would have seen things); in the words he used, he actually sought to refer to their opinio iuris , and to no more than that, an opinion to which they not only are entitled, but which, being the opinion of modern homines liberi , is utterly relevant and carries great weight. The same perspective explains how a competent international authority can validly pronounce about the existence of international customary law without any previous such pronouncement having been made by another authority of that kind: for international authorities, too (the International Court, for instance), may k n o w the law from within, be i t only vicariously. N o question of "logic" i t is to k n o w whether Judge Hudson was actually right in assuming that no international customary law can exist without an official certificate of birth extended b y a competent international authority. His contemporary, Judge De Visscher, was of like mind: he held that it is a judicial authority's w o r d which creates custom, never the uniformity or regularity in actual behaviour 79 . This, to be sure, must be the culminating point of deductivism, and a very one-sided, organizational or judicial variety of it, and ™ d'Amato (n. 29), 8. 77 d'Amato (n. 29), 9. 78 d'Amato (n. 29), 6. 7» Charles de Visscher, 1963, 220.

Problèmes d'interprétation judiciaire en droit international public,

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one feels inclined to approve of Professor d'Amato's observation that "international customary law obviously existed well in advance of the League of Nations or the Permanent Court of International Justice, and long before states began to have recourse to bilateral arbitral tribunals" 8 0 . A n y b o d y not adopting a totally deductive view of international customary l a w w i l l shrink from the lengths to which both learned judges here went. But not to follow them, here, is a matter not of "logic", but rather of taste. The four "elements" of international customary law as stated b y Judge Hudson may possibly benefit from being re-drafted, but w i t h a subject as involved as this one it probably is illusory ever to expect an ideal text. Much w i l l always have to be explained besides. One better, therefore, keeps Judge H u d son's statement as i t is, though w i t h a watchful eye on its inevitable deficiencies. "Prominent scholars still quote these elements", Professor d'Amato notes w i t h some regret 81 . I t should be understood that, i f this is so, i t may be because they value the deductive aspect in them and, also, the safer grip on legal reasoning they provide than the slippery political concept of Professor d'Amato can do. Something they, unfortunately, cannot do is to allow the determination of the precise moment a rule of customary international law comes into existence. But the vagueness of its beginnings are due to the nature of custom itself, and so i t is w i t h regard to its coming to an end, either through desuetudo , or by the creation of another, contradictory, custom. Intertemporal problems relating to custom, consequently, are among the most difficult ones to solve 82 . I f there was any merit in Judge Hudson's and Judge De Visscher's requirement of an authoritative finding as to the existence of a rule of customary law, i t surely was to diminish the scope of this predicament. A further question to be answered here is whether international customary law and "State practice" are identical concepts. Sir Gerald Fitzmaurice does not wish to distinguish between them 8 3 . I n his own words: " i t is believed to be a sound principle that, in the long run, i t is only the actions of States that build up practice, just as i t is only practice ('constant and uniform', as the Court has said) that constitutes a usage or custom, and builds up eventually a rule of customary international l a w " 8 4 . Professor Parry r i g h t l y observes that so d'Amato (n. 29), 9. si d'Amato (n.29), 10; see, e.g., Parry (n. 3), 62. 82 Wolf-Dietnch Krause- Ablass, Intertemporales Völkerrecht, 1970, 35. 83 Fitzmaurice (η. 9), 175. 84 Sir Gerald Fitzmaunce, The Law and Procedure of the International Court of Justice, 1951—54: General Principles and Sources of Law, B Y I L 1953, 67—68, as quoted by Parry (η. 3), 63; and note the putting on a par of "usage" and "custom".

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" i t is not all actions but merely actions done in the conviction of obligation" that count 8 5 . Speaking himself of "custom or the practice of States" 86 , "State practice" i n his opinion clearly means a practice accompanied by the opinio iuris. The present writer would follow neither of these terminologies, but rather think of State practice in three different connotations, namely, 1) as a k i n d of raw material coming under the "miscellaneous facts" the law-giver must or may take into consideration, 2) as the so-called "material" element i n custom, viz., the "actions of States" referred to by Fitzmaurice, and 3) as the result of the law-giver's usurpation of the judicial function. The distinction makes sense, for i n each of these three cases State practice may be differently looked upon: as a neutral datum awaiting to be processed; as the factual basis of a recognized manifestation of international law, "hallowed", so to say, by its symbiosis w i t h an opinio iuris; and as a form of implementation of the law, and possibly a regrettable one. Between the first and third connotation, there may be an interrelation to the effect that the results of party implementation may take on the rôle of a raw material for further law-creation. W i t h the aid of the triple distinction proposed here, it is submitted that the discussion of State practice may be clarified 87 . I n particular, this should apply to the evaluation of State practice in the sense of purely national practice i n the legislative and judicial fields 88. A special type of State practice to be mentioned in the context of custom is treaty practice. Treaty practice, indeed, is of some relevance to the creation of custom, for as provided in Article 38 of the Vienna Convention on the L a w of Treaties, "nothing in articles 34 to 37 precludes a rule set forth i n a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such" 89 . I n the same way, treaty practice may lead to the abolition of a rule of customary law. Thus, e. gthe droit d'aubaine came to 85 Parry (n. 3), 63. 8® Parry (n. 3), 56 et seq. 87 An interesting account of the changing significance of State practice in international law ever since Suarez, Grotius, and Pufendorf is to be found in Professor O'Connell's International Law for Students, 1971, 3—4. On Van Bynkershoek's requirements of conformity to ratio with regard to State practice, see Willem J. M. van Eysinga , Geschiedenis van de Nederlandsdie wetensdiap van het volkenredit (History of Dutch International Law Doctrine), 1950, 15 (and cf. 16, 17 and 19). As a practical example of State practice drawn upon by the International Court of Justice, see its advisory opinion of 28 May 1951 (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide), ICJRep. 1951, 21—22.

88 Parry (n. 3), 71 : in the International Law Commission's view, national judicial decisions have very little direct impact upon international law. 8β See Professor Jennings' most interesting observations on the subject (n. 5), 6—9, dealing inter alia with the International Court's judgment of 20 February 1969 (North Sea Continental Shelf Cases), ICJRep. 1969, 42 et seq.

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vanish in the course of the nineteenth century under the pressure of a number of treaties renouncing i t 9 0 . A rule of customary international law may be either general or special. Both varieties should be considered to come under the expression "a general practice" in Article 38, paragraph 1 (b). Referring to "an alleged regional or local custom peculiar to Latin-American States", the International Court of Justice in its judgment of 20 November 1950, the Asylum Case, observed: "The Party which relies on a custom of this k i n d must prove that this custom is established in such a manner that i t has become binding on the other Party. The Colombian Government must prove that the rule invoked by i t is i n accordance w i t h a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers t o international custom 'as evidence of a general practice accepted as law' " 9 1 . Clearly, the Court was of opinion that the w o r d "general", here, does not i m p l y a reference to the number of States partaking i n the custom. Special custom may even be restricted to t w o States as is evidenced by the same Court's judgment of 12 A p r i l 1960 — Case Concerning Right of Passage over Indian Territory , Merits 9 2 . O n the relative importance of international custom, finally, some divergence of opinion exists, as was already shown above 93 . Professor d'Amato is at Parry's side when stating that of treaty and custom, the latter in spite of an increasing significance of treaty perhaps remains the more important for its universal applicability, "whether or not any given state participated in its formation or later 'consented' to i t " 9 4 . A n d , he adds, treaties after all have to be interpreted, and the law of treaty interpretation is customary in character 95 . This is true, and for ever w i l l be, of course: for supposing the Vienna Convention on the L a w of Treaties to have entered into force, including its Articles 31—33 on treaty interpretation, then still these provisions would have to be interpreted themselves — and w i t h the aid of what else than customary international law could this be done? 90

On the droit d'aubaine , see Oppenheim (η. 21), 690. w ICJRep. 1950, 276—277. 92 ICJRep. 1960, 6 et seq.; Parry (η. 3), 59: "Beyond . . . a few scattered observations of the vaguest and most general sort the Court has said nothing else about customary law, and, in particular, about general as opposed to special custom". This situation was remedied in the International Court's judgment of 20 February 1969 (North Sea Continental Shelf Cases), ICJ Rep. 1969, pp. 37—45. 9 » See supra , 21, and n. 52. 9 * d'Amato (n. 29), 4. 95 d'Amato (n.29), 4; and see X I I : "custom is at the heart of what we mean by international law".

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law

As announced in Part I 9 6 , it is submitted here that, besides treaty, certain decisions of international organizations, and custom, the general principles of law recognized by civilized nations should be recognized as a manifestation of international law. The reason is that the normative concept of law for international relations as interpreted by the present writer would otherwise be insufficiently filled. The framers of Article 38 of the Statute of the International Court of Justice must have adhered to the same idea when in its paragraph 1 (c) they provided that the Court shall apply "the general principles of law recognized by civilized nations". Tracing back the history of the provision, one w i l l find this proposition confirmed, and most forcefully in the words of Professor Albert de Lapradelle, according to whom "the task of the Court would be limited to registering the acts of the powerful" unless the Court were obliged to apply more than treaties and custom alone 97 . For this legislative history, one has to turn to the Procès-Verbaux of the proceedings of the Advisory Committee of Jurists appointed by the Council of the League of Nations for the purpose of preparing plans for the establishment of the Permanent Court of International Justice provided for in Article 14 of the League Covenant. The Committee, meeting at The Hague from 16 June to 24 July 1920, produced a Draft-Scheme of what was to become the Statute of the Permanent Court 9 8 . Article 35 in the Draft-Scheme corresponds to the first paragraph of Article 38 of the Statute. The sub-paragraphs (a) to (d) in the latter provision practically show the same wording as the sub-paragraphs (1) to (4) in the former. To this extent, therefore, the Committee's draft proved to be definitive. Since Article 38 of the Statute of the Permanent Court's successor is identical to Article 38 as adopted for the Permanent Court itself, the history of this Article may also shed light on the present Article 38 and, particularly, help to understand the words "the general principles of law recognized by civilized nations" i n its subparagraph (c). For the first time, the expression "general principles of l a w " was used by Baron Descamps, the President of the Committee 9 9 . Since he was the author of a proposal on "the rules to be applied" by the future Court which very much foreshadowed the text finally adopted, it should be most useful, for present purposes, to search the Procès-Verbaux for all indications they may »6 See supra , 16. Permanent Court of International Justice, Advisory Committee of Jurists, ProcèsVerbaux of the Proceedings of the Committee, June 16th—July 24th 1920, with Annexes, 1920, 319—320. 98 Procès-Verbaux (η. 97), 673—691 ; and see 693—746 for the Committee's Report, being a comment of its Draft-Scheme. 99 Procès-Verbaux (η. 97), 318. 97

3 G Y I L 20

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contain of his views on the general principles of law and, generally, on the subject of the applicable rules as such. I n addition, one may look for the opinion of other Committee-members voiced in reaction to Baron Descamps* ideas. Baron Descamps' historical proposal was worded as follows: "The following rules are to be applied by the judge i n the solution of international disputes; they w i l l be considered by him i n the undermentioned order: 1. conventional international law, whether general or special, being rules expressly adopted by the States; 2. international custom, being practice between nations accepted by them as l a w ; 3. the rules of international law as recognised by the legal conscience of civilised nations; 4. international jurisprudence as a means for the application and development of l a w " 1 0 0 . I n his opinion, the order in which he listed these items was " a n order of natural précellence" , suggested by a professional practice which he described i n these terms: " I f t w o States concluded a treaty i n which the solution of the dispute could be found, the Court must not apply international custom and neglect the treaty. I f a well known custom exists, there is no occasion to resort to a general principle of l a w " 1 0 1 . The t h i r d item was meant to prevent the Court from committing a denial of justice in case no treaty or custom could be identified on the basis of which a dispute submitted to i t might be decided 1 0 2 . I t was, in other words, intended to be "a complement to the others" 1 0 3 . Urged to indicate what exactly should be understood by "the rules of international law as recognised by the legal conscience of civilised nations" (item 3), Baron Descamps made some interesting declarations. These rules, he said, together constituting "objective justice" 1 0 4 , were the "rules necessary for the system of international relations" ( certaines règles comme nécessairement liées à l'économie essentielle des rapports sociaux dans la vie internationale , as Descamps had i t i n his own authentic text, far more eloquent than its pedesloo Procès-Verbaux (η. 97), 306. ιοί Procès-Verbaux (η. 97), 337; cf. Lord Phillimore, ibid., 333: "in his opinion the order mentioned simply represented the logical order in whidi these sources would occur to the mind of the judge". 102 Procès-Verbaux (n.97), 323; and see 336: item No. 3 "was necessary to meet the possibility of a non liquet ". 103 Procès-Verbaux (η. 97), 323. 104 Procès-Verbaux (η. 97), 322—323.

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trian English translation) 1 0 5 . A n d to determine these rules, he added, a second safety device besides "the legal conscience of civilised nations" had to be built in, viz., that they should also be recognized b y "the concurrent teachings of jurisconsults of a u t h o r i t y " 1 0 6 . This is how doctrine came to play a rôle in the discussion. A further endeavour to make himself clear Baron Descamps made when speaking of "the conception of justice and injustice as indelibly written on the hearts of civilised peoples" 1 0 7 . When M r . Root, the former Secretary of State of the United States of America, said that such principles as envisaged by Baron Descamps "are interpreted differently in different countries" and that " i t is inconceivable that a Government would agree to allow itself to be arraigned before a Court which bases its sentences on its subjective conceptions of the principles of justice" 1 0 8 , Baron Descamps countered the argument w i t h the observation that "the fundamental law of justice and injustice deeply engraved on the heart of every human being and which is given its highest and most authoritative expression i n the legal conscience of civilised nations", actually, d i d not vary from country to country 1 0 9 . His proposal, on the contrary, imposed on the judges "a duty which would prevent them from relying too much on their own subjective opinion; it would be incumbent on them to consider whether the dictates of their conscience were in agreement w i t h the conception of justice of civilised nations" 1 1 0 . Once more, he stressed the objective character of the rules contemplated under his t h i r d item when asserting that, "when a certain solution is approved by universal public opinion, the judge is justified i n applying i t " 1 1 1 . Baron Descamps' gallant plea for something i n addition to conventions and custom bore fruit in that M r . Root, in collaboration w i t h Lord Phillimore, prepared a text which more closely resembled the final outcome than did Descamps' draft. Descamps' item N o . 3 was redrafted in the words which afterwards became so familiar to the international lawyer: "the general principles of law recognised by civilised nations" 1 1 2 . A n d i t was Baron Descamps who, subsequently, declared himself to be i n agreement w i t h M r . Root's formula 1 1 3 — a formula, as shown above, put together of t w o halves invented

3·

105 Procès-Verbaux ιοβ Ibid. 107 Ibid. ιοβ Procès-Verbaux 109 Procès-Verbaux no Procès-Verbaux m Procès-Verbaux us Procès-Verbaux

(η. 97), 324.

(η. 97), (η. 97), (η. 97), (η. 97), (η. 97),

us Procès-Verbaux

(η. 97), 331 and 332.

309. 310—311. 311. 318. 344.

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by Descamps. But were M r . Root and Lord Phillimore agreed w i t h Baron Descamps on the meaning of the words now commonly adopted? There is very little in the Procès-Verbaux to inform the reader about M r . Root's opinion on the subject. Lord Phillimore was more explicit. A t first, he declared himself against Baron Descamps5 item N o . 3 which, in his mind, either belonged under item N o . 2, international custom, or was an addition to i t 1 1 4 . A t the next meeting, he then gave as the reason w h y he opposed clause N o . 3 that, "generally speaking, all the principles of common law are applicable to international affairs. They are in fact part of international l a w " 1 1 5 . As such principles, he named res iudicata and "that by which the plaintiff must prove his contention under penalty of having his case refused" 116 . Lord Phillimore's thought, apparently, was that principles of common law, being part of the common law and also applicable to international relations, therefore belonged to the international common law called "international custom". Moreover, he definitely had a natural law conception of this international common l a w : when Baron Descamps observed that "he had formed the impression . . . that international law as understood by Lord Phillimore resembled natural l a w " , L o r d Phillimore agreed 117 . I n a later stage, however, he stated that " i t was through custom that general principles came to be recognised" 119, and although arguing that "the general principles of l a w " in M r . Root's text should, therefore, be included in "international custom", his argument as quoted shows that he was moving away from his former treatment of the principles referred to as identical w i t h international custom. Under a narrower concept of custom, he should be able now to acquiesce in the general principles of law as a category of their own. A n d thus, indeed, could he point out, a few moments later, "that the general principles referred to in point 3 (of M r . Root's text) were those which were accepted by all nations in foro domestico, such as certain principles of procedure, the principle of good faith, and the principle of res judicata, etc." 1 1 9 . Evidently marking off the general principles from custom, L o r d Phillimore, finally, explained "that by 'general principles of law' he had intended to mean 'maxims of law' " 1 2 ° . The other members of the Committee hardly made any contribution at all to the drafting of Article 35 of the Draft-Scheme i n so far as its clause N o . 3 on the general principles of law is concerned. I n order to find out its meaning, 114 Procès-Verbaux us Procès-Verbaux ne Ibid. 117 Procès-Verbaux ne Procès-Verbaux ne Procès-Verbaux 120 Ibid.

(η. 97), 295. (η. 97), 316. (η. 97), 318. (η. 97), 334 (italics supplied), (η. 97), 335.

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one is, consequently, left to the above-reported observations made by Baron Descamps and L o r d Phillimore. What do they demonstrate? I n the present writer's terminology, Baron Descamps' thought centred around a normative concept of law as applied to domestic and international relations as well. His constant reference to "the legal conscience of civilised nations" had a dual function, in this respect: for apart from indicating that normative concept as such, the words quoted also were the test of the quality of it. I n Baron Descamps' vision, indeed, the normative concept of law to be applied to domestic and international relations was a highminded one, bordering on the sublime. This, particularly, is the meaning of his ever recurrent use of the words "civilised nations". Baron Descamps very clearly believed in the importance of civilization in law. The normative concept of law he had in mind was one in which the accents laid on some of the elements and principles at the basis of all law were those generally adhered to by civilized nations. The expression remained crucial in all his thinking. I t was not the word "civilised nations", therefore, which he finally agreed to abandon, but the expression "the legal conscience". H e himself already had coined the expression "general principles of l a w " to denote the same idea. These words proved to be more acceptable than the former to M r . Root and Lord Phillimore who, as followers of an Anglo-Saxon tradition, could be expected to be more familiar w i t h them than w i t h what may have appeared to them to be too vague a concept. Yet, Lord Phillimore's profession as to the natural law character of his own view of international law shows his position to be practically identical to Baron Descamps'. The fact is further evidenced by the latter's reference to "objective justice". Objective justice is always foremost in natural law theories. This is not to say, however, that Baron Descamps was an advocate of natural law, for he may very well have thought of law as a product of civilization rather than of nature. But in L o r d Phillimore's thought, nature and civilization apparently were at one in matters of law, and to him "objective justice" in the natural law sense of the expression must have been lying i n the general principles of law as applied by civilized nations at home. A n d so i t was that the t w o chief protagonists in the debate could unite under the formula of "the general principles of law recognised by civilised nations". The phrase in the light of the Commission's discussions was intended to mean the normative concept of law, domestic and international, as living in the minds of civilized nations and as reflected in the general principles of law adopted in their legal systems . A link between national and international law was clearly envisaged. The Draft-Scheme was discussed by the Council and the Assembly of the League of Nations. I n the process, it was amended on a number of points. Article 35, which became Article 38, then acquired its definitive wording, but

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nothing happened to influence the meaning to be attached to the term "the general principles of l a w recognised b y civilised nations". O n 13 December 1920, the Statute of the Permanent Court of International Justice was unanimously adopted by the Assembly 1 2 1 . The question now to be elucidated is which general principles of law should be considered to be recognized by civilized nations. First of all, the expression on account of its origin as depicted above should be deemed not to include the general principles of l a w in the absence of which no law is to be imagined at all, i. e.y the so-called 'necessary' principles 1 2 2 . W i t h regard to them, indeed, no choice is left, whereas, as shown before, the originators of the general principles of law as an independent manifestation of international law definitely had i n m i n d such principles as chosen by civilized nations. I f no choice were involved, the reference to civilized nations w o u l d be devoid of all sense. N o general principles as meant i n Article 38, paragraph 1 (c), of the International Court's Statute, therefore, can be the principle that everyone is born into a general legal order or, in other words, that no legal order of a general nature is optional to its subjects; the principle that no subject can be allowed to frustrate the law through an act of his own volition; the principle pacta sunt servanda ; and the principle nemo plus iuris transferre potest quam ipse habet. These principles — and maybe some more — are to be considered as elements of the general concept of law. They are "necessary" for all law, and not the principles by which civilized nations distinguish their law from the law of other nations. But also apart from the intentions of the Advisory Committee of Jurists, there evidently is no point in raising these "necessary" principles to the rank of a separate manifestation of international l a w : no professional lawyer needs to be reminded of them, and being basic features only, they w i l l be of no help as rules of law. This is the less so when the general principles of law are to be considered as "complementary" 1 2 3 : what may be the use of pacta sunt servanda in the absence of a pactum? The maxim states the innermost foundation of the binding force of a pactum , but can never replace the latter. Professor François' view of the general principles of law is very much in harmony w i t h the present writer's one when he defines them as "certain rules to be considered fundamental under the prevailing concept of law (geldende recbtsidee)" 124. The learned author then quotes such principles as nemo plus iuris transferre potest quam ipse habet and prior in tempore potior in iure 125, 121 See Hudson (n. 35), 118—120. 122 A n expression to be understood otherwise than the one used by Baron Descamps ("rules necessary for the system of international relations") and quoted at 34, supra. 123 Cf. supra , 34. i 2 * François (η. 57), 347. 125 On the latter maxim, see Hersch Lauterpacbt, Private Law Sources and Analogies of

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together w i t h a number of other principles applied by the Permanent Court of International Justice, namely, the obligation of reparation of injuries in case of the violation of a right; the concomitant obligation of restitutio in integrum when possible; and the respect of acquired rights 1 2 6 . As a further illustration of what international lawyers of authority consider to come under the general principles of law recognized by civilized nations, Lord Phillimore's statement in the Advisory Committee of Jurists may be recalled t o mind. As set forth above, he referred to "certain principles of procedure, the principle of good faith, and the principle of res judicata" 127. Finally, Sir Hersch Lauterpacht's opinion on the prohibition of a judicial non liquet should be registered, here. I n Lauterpacht's view, i t is a general principle of law that no Court is allowed to pronounce a non liquet . These examples of general principles of law considered to be recognized by civilized nations should suffice. N o criticism of, or comment on, each and everyone of them is to be expected, here, except w i t h regard to the principle nemo plus iuris and the prohibition of non liquet. The former does, indeed, belong to the general concept of l a w 1 2 8 and is not to be considered, therefore, as a principle coming under Article 38, paragraph 1 (c), of the International Court's Statute. As to the latter, one may think of a logical contradiction between this alleged principle and the raison d yetre of the general principles of law as a separate manifestation of international law. For i f these principles should be accepted as such in order to avoid a denial of justice through a verdict of non liquet 129, how then could the prohibition of non liquet be itself such a general principle? The answer is in the fact that the prohibition of non liquet as seen by Lauterpacht is a general principle of a formal character only, unable by itself t o lead to a solution of a case i n Court. I n order to decide a case, material prescriptions are required. I n the absence of treaty and custom, the Court may have resort to the so-called "residual principle" being a material prescription under which whatever is not prohibited is lawful. This International Law, 1927, 253, where it is defined as follows: "that that creditor is entitled to preference who first takes action in order to protect his rights"; and see Henry C. Black's Law Dictionary, 4th ed., 1951, 1357. 126 François (η. 57), 347. 127

See supra , 36; and see ibid., where Lord Phillimore is quoted on the principle "by which the plaintiff must prove his contention under penalty of having his caj»c refused": one of his "principles of procedure", apparently. Following in Lord Phillimore ys footsteps, Professor Bin Cheng in his well-known treatise on General Principles of Law as Applied by International Courts and Tribunals, 1953, lists as such principles that of good faith and a number of principles relating to judicial proceedings. I n addition, the author includes two principles on State responsibility; cf. Parry (n. 3), 85—86. 128 See supra. " β See supra, 34.

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is w h y Ricci-Busatti considered a non liquet to be inadmissible 180 . Baron Descamps, however, clearly wanted to postpone the pis-aller of the residual principle until the general principles of law recognized by civilized nations had been exhausted. This is how, in the present writer's opinion, his position as reported above has to be interpreted. The implication of the foregoing is that, i f Lauterpacht was right and the prohibition of non liquet is a general principle of law recognized by civilized nations 1 3 1 , it cannot be among those meant in Article 38, paragraph 1 (c), of the International Court's Statute: for in this provision, general principles of a material character only can have been envisaged. But i f the prohibition of non liquet is not a general principle in the nature of those contemplated in Article 38, paragraph 1 (c), where then is it to be located? A t this point, the reader may be reminded of the principles pacta sunt servanda and nemo plus iuris , which were also denied a place among the principles in Article 38, paragraph 1 (c), and which were said to belong to the general concept of l a w 1 3 2 . A similar, though not identical solution applies to the present question. The prohibition of non liquet , indeed, i f existing at all, would come under the normative, not under the general concept of law: for i t would be an exaggeration to consider the prohibition as a condition for the very existence of law. To prohibit a non liquet or not is a matter of choice, and since the normative concept of law entirely depends upon choice w i t h i n the limits of the general concept, the prohibition of non liquet has its natural place w i t h i n the normative concept. I n the present writer's view, the solution found here demonstrates the indispensability of the normative concept of law in any methodology of international law, just like the answer given w i t h regard to the principles pacta sunt servanda and nemo plus iuris made i t clear that no such methodology is possible without adopting the notion of the general concept of law. Meanwhile, principles belonging to the general or normative concept of law for international relations are no less to be "applied" than the prescriptions contained in the recognized manifestations of international law. A n d applied they are, as a matter of course, even in case no recognized manifestation of international law other than the general principles of Article 38, paragraph 1 (c), would ever have adopted them among its prescriptions (as an example of such adoption, see Article 26 of the Vienna Convention on the L a w of Treaties). They represent the definition of international law, whereas the recognized manifestations of international law reflect (and elaborate) that definition. 130 Procès-Verbaux 131

(η. 97), 314—315, 332.

Whether actually a non liquet is prohibited, and by what kind of principle or rule, is a question reserved for later study. See supra , 38.

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The general principles enumerated so far and coming under the description of Article 38, paragraph 1 (c), of the Statute are all in the class of what Professor François termed "fundamental rules" 1 3 8 . Some writers, however, wish to go far beyond the fundamental in their search for the general principles of law recognized by civilized nations. One of them, Professor Tammes, includes among them: (1) concepts and institutions such as prescription, remedies, mandate, lease, secrecy, (2) standards of fair treatment as codified in the shape of human rights, (3) features characteristic of special branches of law such as constitutional and administrative law, the law relating to the civil service, and criminal law, all of which, he says, are more and more to be recognized in international l a w 1 8 4 . Professor Tammes' proposition leads to the key problem arising w i t h regard to the general principles of law as a separate manifestation of international law: the question whether or not a single normative concept of law for domestic and international purposes as well is acceptable. As stated above 1 3 5 , a l i n k between national and international law was clearly envisaged by the Advisory Committee of Jurists. The Committee obviously thought i n terms of a normative concept of law applicable to both spheres at a time. But i t is submitted that one cannot apply to international law the same normative concept one applies to national l a w 1 8 6 . Generally speaking, at any rate, a warning is in place against all facile copying of national law principles for use i n international relations. Professor Verzijl cautions the international lawyer in the following words: "the nature of inter-state relationships differs so radically from that of relationships between individuals (private law) or between the Government or State and their subjects (public and penal law) that there is a very strong presumption against the possibility of applying the general principles accepted in municipal orders for the latter groups of relationships without reservations or qualifications to the former group of interstate relations" 1 3 7 . I n fact, Professor V e r z i j l would admit this sort of reception only when authorized under a rule o f treaty or customary l a w 1 3 8 . I n the final analysis, therefore, he rejects the general principles of law as an independent manifestation of international l a w 1 3 9 . This, however, appears to be too radical a step. M i n d f u l of Professor Verzijl's warning as to the risks inherent in their application to international 133 134 1973, 135 136 137 138 139

See supra. Arnold J. P. Tammes , Internationaal Publiekredit (Public International Law), 2nd. ed., 29; and cf. Parry (n. 3), 83—91. See supra , at 37. See Bos (n. 1), 83. Verzijl (n. 61), 62. Verzijl (n. 61), 62—63. Verzijl (n. 61), 62.

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relations, the present writer would like to retain the general principles of law recognized by civilized nations. N o r is he deterred from this course by what Professor Verzijl calls their indeterminate character 140 . Recognized manifestations of law never are "finished articles", and the finished product does not exist before a final determination has been made of the incidence of a rule on one or more facts. From its legislative inception until that final determination, law is a "continuing process". The general principles of law certainly are less developed than most rules in a treaty, maybe not much more underdeveloped than a rule of customary law, but this, i t is proposed, cannot be held against them. They all are "unfinished": treaty, custom, and general principles of law, though not necessarily to the same degree. The general principles of law, either i n the fundamental or i n the more "progressive" sense of the word, should be recognized as an independent manifestation of international l a w 1 4 1 , be i t under the proviso that very special attention should be given to their transferability to international law. Handled w i t h a maximum of care and judgment, they should be able to provide international law w i t h a most welcome possibility for growth. The discipline of comparative law may render valuable services to international law, in this respect. Was i t not Baron Descamps w h o referred to "the concurrent teachings of jurisconsults of a u t h o r i t y " 1 4 2 as a safeguard for the Court i n the discovery of the general principles of law? But w i t h all the care and judgment to bestow upon the Court's efforts, one thing should not be overlooked, seil ., the idealism which animated Baron Descamps and which still resounds in the expression "civilized nations" — much maligned words, nowadays, but yet of lasting significance 148 . Complementary

natural

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Like the general principles of law recognized by civilized nations, complementary natural law was announced before as a recognized manifestation of international l a w 1 4 4 . The term "complementary" is to be understood, here, i n a double sense. First, natural law is complementary in the same w a y as the gene140 Verzijl (n. 61), 57. 141 François (η. 57), 348: the general principles of the first variety (fundamental rules) are part of positive international law, and no special permission for their application is required from the State with regard to which they w i l l be applied; but see Parry (n. 3), 84: "certainly not law as such", and 91 : "a method rather than a source". 142 See supra. 143 A good number of theories on the general principles of law was described by Julius Stone, Legal Controls of International Conflict, rev. ed., with Supplement, 1953—1958, 1959, 863—865. 144 See supra , at 16.

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ral principles of law, i. e., a complement to the other recognized manifestations of international l a w 1 4 5 . Second, i t is a complement to the general principles of law, in particular, inasmuch as the latter already may be considered as expressions of natural l a w 1 4 6 . As a further analogy w i t h the general principles of l a w i t may be recalled that no valid act either is required for complementary natural law to exist 1 4 7 . But i f Baron Descamps insisted on safeguards w i t h regard to the general principles of l a w 1 4 8 , i t is at least questionable whether the same guarantees for the recognition of complementary natural law may be required. For, indeed, where the general principles of l a w are "hidden" i f conceived of as fundamental, and are "coming to light" in an indirect manner in the comparative v i e w 1 4 9 , complementary natural law b y its very nature remains perceptible only to the lawyer's "second sight", to his imaginative vision. A n d i t is not easily seen what guarantees one may surround the object of this vision with, entirely deductive as i t is 1 5 0 . This may be the reason w h y complementary natural law as such is not to be found i n the enumeration of Article 38, paragraph 1, of the Statute of the International Court of Justice. I t nevertheless plays a role in the Court's case-law, as w i l l be shown below, be i t on a limited scale. Outside the Court, its role is more important, demonstrating that States, i n actual fact, do at times invoke a rule or principle of international law v a l i d only in their extrajudicial dealings w i t h one another 1 5 1 . O r should one say that they merely pretend to do so, and that there is no international l a w outside the corpus of rules and principles which international judicial authorities may apply? That there is no "international l a w for Statesmen only"? I n the present writer's opinion, such a l a w does, actually, exist. I n point of fact, saying so is only to underline once more that States as "producers" of international law do have no natural interest in the "sources" of i t 1 5 2 . Here may lie the deepest cause of the tension between States and Courts: for the latter, however much they may psychologically be subordinated to the legislator 153 , are functionally compelled to think in terms of manifestations of international law, and in their deter145 See supra , at 34. 146 See the debate as rendered supra , at 34—37 (especially 36); Stone (n. 143), 863, distinguishes "natural law versions" and "ius gentium versions" of the concept of the general principles of law; cf. supra , 41.

147 See supra , 16. 148 See supra, 35. 149 See supra. , 15. 150 See supra , 28. 151 See supra , 12. 152 See supra, 12. 153 Cf. Bos (n. 1), 74, n. 5.

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mination of what k i n d of manifestation they w i l l accept to live by, they w i l l far less than States be prepared to indulge in the "visionary". Complementary natural law as the present writer sees it has much to do w i t h a "natural order" in a context of world-geography. I n order to avoid confusion between this type of natural order and the pre-existing natural order 1 5 4 , the former w i l l be referred to, here, as "natural geographical order". I t is to be understood as an order emanating from the State as a power phenomenon radiating a geographical influence. The natural geographical order one asserts very often is intended to underscore claims to land-, sea-, air- and space-areas. The leading idea, here, is that of contiguity. As set forth by Grewe in his study of the different eras of modern international law, the concept of contiguity is typical of the period from W o r l d War I to W o r l d War I I . Together w i t h its derivative, the sector principle, it came to replace the principle of effectiveness which in the Anglo-American period (1815—1919) once was supreme, but then already had gradually been pushed back 1 5 5 . W i t h regard to both N o r t h and South Pole, the sector principle was advocated by a number of neighbouring States. As to the N o r t h Pole 1 5 6 , it was the Canadian Senator Poirier who in 1907 was first to suggest that States bordering on the Arctic terra nullius should be allowed to extend their sovereignty to a certain sector of it. I n Professor H a y ton's definition, the sector principle was to give title to "the exceptional extension of sovereignty by a well-established state (whose territory already extends into the Arctic Circle) to the polar extremities of the Continent and to the related islands lying poleward therefrom" 1 5 7 . The first sector to be actually proclaimed, however, concerned not the N o r t h , but the South Pole, and was that of the Falkland Islands Dependencies (South Georgia, South Sandwich Islands, South Orkney Islands) under British rule. But, as w i l l be seen below, this first proclamation, dating back to 1917, was not a true application of the sector idea. O n 10 June 1925, M r . Stewart in the British House of Commons, invoking the sector principle, alleged Canada's right to all land, k n o w n and unknown, lying w i t h i n a sector near the N o r t h Pole as indicated by him. O n 15 A p r i l 154 On natural order as a pre-existing order, see Maarten Bosy Principles of Rational Organization as Applied in the Process of Law, in: Essays in Honour of A. J. P. Tammes 1977, 48—50. 155 Wilhelm G. Grewe , Die Epochen der modernen Völkerrechtsgesdiidite, Zeitschrift für die gesamte Staatswissenschaft 1943, 38—66 and 260—294 (292—293). ΐ5β Fore more elaborate observations on the Arctic region, see Oscar Svarlien , The Legal Status of the Arctic, Proceedings of the American Society of International Law 1958, 136—143. 1 5 7 Robert D. H ay ton. The Ä American α Antarctic, American Journal of International Law (AJIL) 1956, 583—610 (603).

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1926, the Soviet Union availed herself of the same principle to claim land and islands, whether or not already discovered, north of the Siberian Continent. The question whether in the Arctic the sector principle should be recognized is no more a practical one, since the Canadian and Soviet claims appear to have been acquiesced in by other States 158 . As results from Professor Hayton's interpretation of it, the sector principle starts on the inhabited continent and then works away from it to the N o r t h Pole. Applied to the N o r t h Pole region, the principle thus has a certain logic to recommend it. This logic is failing in the attempts made to apply the same principle to the South Pole region. Here, indeed, one is faced not w i t h a number of islands adjacent to the continent, as in the vicinity of the N o r t h Pole, but w i t h a full-fledged continent, Antarctica 1 5 9 . I n addition, no State in the Southern Hemisphere has its territory stretching into the Antarctic Circle nor even beyond 60° southern latitude where the South Pole region is supposed to begin. Therefore, covering this region w i t h sectors the tip of which would touch the South Pole, and the legs of which would run north, one would do exactly the opposite as was proposed w i t h regard to the N o r t h Pole. Instead of starting from an inhabited continent and extending one's sovereignty to islands contiguous to it, one would, in the South Pole region, have to lay the basis of a State's sector in one or more islands or at an arbitrary parallel and, subsequently, have to divide an uninhabited continent. I t is obvious that, i f ever the sector principle would have to be applied to the South Pole region, this certainly could not be done on the strength of any doctrine of contiguity. For how could one ever claim a piece of continent to belong to an island or, worse still, to a parallel? A n d in the case of the Falklands, would i t not be more consonant w i t h the contiguity principle to link them to South America than to Antarctica which is at a greater distance 160 ? A l l claims to sectors in the Antarctic region were shelved when on 1 December 1959 i n Washington, D . C., the Antarctic Treaty was signed by Argentina, Australia, Belgium, Chili, France, Great Britain, Japan, N e w Zealand, N o r way, the Soviet Union, the United States of America, and South Africa. Article 4, paragraph 2, of the Treaty provides that "no acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create !58 See Martinus W. Mouton, The International Regime of the Polar Regions, RdC 1962 I I I , 175—286 (244). 159 In 1961, in the course of an Antarctic symposium in Honolulu, it was announced that there are two Antarctic continents instead of a single one. The western Antarctic continent was said to be analogous to the South-American Cordillera and geologically to be of the same age, cf. Nieuwe Rotterdamse Courant, 2 September 1961. 160 See further on the South Pole Hayton (n. 157), 597—610.

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any rights of sovereignty i n Antarctica. N o new claim, or enlargement of an existing claim . . . shall be asserted while the present Treaty is i n force". N o reference was made, here, to contiguity as a source of rights — and rightly so. What about the recognition of contiguity beyond the pale of interested States? Reactions to the asserted principle were diverse. I n his decision of 4 A p r i l 1928 in the Island of Palmas Case, when the United States pleaded contiguity, Judge Huber held that " i t is impossible to show the existence of a rule of positive international l a w to the effect that islands situated outside territorial waters should belong t o a State from the mere fact that its territory forms the terra firma". Neither "as a rule establishing ipso iure the presumption of sovereignty in favour of a particular State", nor "as a legal method of deciding questions of territorial sovereignty" was he able to accept the principle, and, as he added, this is "especially true in a case such as that of the island i n question, which is not relatively close to one single continent, but forms part of a large archipelago in which strict delimitations between the different parts are not naturally obvious" 1 6 1 . I t certainly is correct that contiguity offered no ready solution w i t h regard to the Island of Palmas. But in spite of its rejection as a rule or method, Judge Huber at least saw some use for the principle. H e did, indeed, observe that "the principle of contiguity, in regard to islands, may not be out of place when i t is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on l a w " 1 6 2 . The last words i n this statement, in particular, remind one of the international law "for Statesmen" suggested above. I n the same vein, Professor O'Connell seems to comment upon Judge Huber's view of contiguity in the following terms: "However, this doctrine must not be extended beyond the issues raised by the Palmas Island decision, and the persuasiveness of the notion of propinquity is demonstrated b y the evolution of the continental shelf conception" 1 6 3 . Looking at the Truman-Proclamation of 28 September 1945 concerning the continental shelf adjacent t o the United States coast, one, indeed, beholds a document based on the principle of contiguity and the success of which was tremendous in that i t was followed by many other proclamations i n the same or of a comparable nature, and finally led to an undisputed rule of international law. According to the Truman-Proclamation, "the Government of the 181

Reports of International Arbitral Awards (RIAA), Vol. I I , United Nations 1949, 854—855. *β2 ibid ., 854. les Daniel P. O'Connell , International Law, 2nd ed., Vol. I, 1970, 421. Professor O'Connell's favourable disposition towards contiguity at 419—421, 449, is not generally shared; see with regard to the "sector theory", e. g., Mouton (η. 158), 243—245, and Charles de Visscher, Théories et réalités en droit international public, 2nd. ed., 1955, 255, n. 2.

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United States regards the natural resources of the subsoil and seabed of the continental shelf beneath the high seas but contiguous to the coast of the United States as appertaining to the United States, subject to its jurisdiction and cont r o l " 1 6 4 . When making this declaration, the United States had no semblance of a right to do so under "positive" international law. Efforts were made afterwards to construe the Proclamation as the beginning of a process i n the course of which a rule of customary international law came into being, a process which was said to have been completed i n so short a time that a new record for customary law seemed to have been set up. But even i f this be true, i t would by no means legalize the very first act in that process of law-creation, the Truman-Proclamation. There is no other justification of the document than complementary natural law. The principle of natural law applied here was that of contiguity-invoked once more by the United States which i n 1928 in the Island of Palmas Case had so little success w i t h it. T w o factors were different in 1945: there was no law suit, and the circumstances to which the principle was applied allowed of a greater measure of precision than i n 1928, when an island in an archipelago was the object of its intended application. This is w h y from 1945 onward and w i t h regard to the continental shelf the principle of contiguity could succeed. But there certainly was another factor which contributed to this development, and i t is proposed to deal w i t h i t below 1 6 5 . The idea of contiguity was also present in the International Court's mind when in its judgment of 18 December 1951 in the Fisheries Case i t referred to "the character of territorial waters as appurtenant to the land t e r r i t o r y " 1 6 6 . I n this case, the Court also reminded the parties of "certain principles" relevant to the question of the validity of the delimitation of the territorial sea as undertaken by the Norwegian Government i n 1935 1 6 7 . These principles — or "basic considerations inherent i n the nature of the territorial seaa — were "the close dependence of the territorial sea upon the land domain" and "the more or less close relationship existing between certain sea areas and the land formation which divide or surround t h e m " 1 6 8 . T o these principles, the Court devoted a number of observations which are evidence of the Court's search for a natural order in the relations between land and sea. I t is very clear that what the Court here applied is complementary natural law, and most especially that its "principles" or "considerations" as quoted above are not to be found ι« 4 AJIL, 1946, Official Documents, 45—46 (italics supplied). Infra, at 49. ιοβ ICJRep. 1951, 128. ιβ7 ICJRep. 1951, 132. 168 ICJRep. 1951, 133 (italics supplied). Cf. the International Court's judgment of 20 February 1969 (North Sea Continental Shelf Cases), ICJRep. 1969, pp. 28—32.

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in anyone of the manifestations of international law enumerated in Article 38, paragraph 1, of its Statute. As stated above, the idea of a natural geographical order also served as an aid in the matter of claims to air- and space-areas. Here, too, contiguity was the conscious or unconscious foundation. I n 1901, Fauchille made an endeavour iifcthe opposite direction, advocating the extension to airspace above 1500 metres of the principle of freedom as applied to the high seas, but i n 1906 Westlake considered that the State should be sovereign i n the entire air column over its territory. I t is the latter opinion that prevailed and was laid down in Article 1 of the International Convention for the Regulation of A i r N a v i gation, concluded in Paris on 13 October 1919 and signed by 27 States. I t found further confirmation in Article 1 of the International Convention on C i v i l Aviation, concluded by 54 States at Chicago on 7 December 1944. Under this provision, "the contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory". The IberoAmerican Treaty of 1 November 1926 and the Pan-American Treaty of 20 February 1928 adopted the same principle. The principle developed into a generally accepted rule of international law. I f its immediate raison d'être is in the protection against danger from the air, it is the contiguity of airspace to a State's territory which is at the origin of such danger and, therefore, of the right to sovereignty over the airspace above that territory. I n the words of Professor Goedhuis, "sovereignty over this area is a necessary complement to the sovereignty of the State over its land and territorial waters" 1 6 9 . The idea of a natural geographical order is implicit in the phrase. I n Article 1 of the Paris Convention of 1919, the territorial sea was already included in the territory of the coastal State to the effect that the latter's sovereignty also extended to the airspace above the territorial sea. I n the airspace over the contiguous zone as meant in Article 24 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone no sovereignty may be claimed by the coastal State, since in that zone i t only has limited rights. However, contiguous air zones giving rights which are likewise limited are generally held to be permissible. O n account of the speed of aircraft, contiguous air zones came into being which exceeded by far the breadth of the airspace above the contiguous zone, i f any. This same tendency of extension was for some time t o be noted w i t h regard to outer space. Professor Paul de La Pradelle, for one, spoke out in favour of the territorial State's sovereignty in space 170 , but most writers declared them169 Daniel Goedhuis , An Evaluation of the Leading Principles of the Treaty on Outer Space of 27th January 1967, N I L R 1968, 17—41 (19), italics supplied. 170 Paul de Geouffre de La Pradelle , Les frontières de Pair, RdC 1954 I I 120—202 (126— 127).

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selves against 1 7 1 . Judge Lachs i n his study on 7he Law of Outer Space172 sums up the arguments militating against sovereignty in space as follows: "Can sovereignty extend ad infinitum ? I f so, how could a State assert the resultant rights and discharge the resultant obligations? Ad infinitum — would it not be tantamount to sovereignty ad absurdum? Moreover, taking into account the movements of the Earth, the sun and the planets, this could lead to strange and most unrealistic situations. The purview of a State's sovereignty would be subjected to continuous changes, its boundaries constantly shifted". There is no lasting contiguity, in other words, and i t is only natural, therefore, that Article I I of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer-Space, Including the Moon and Other Celestial Bodies, opened for signature on 27 January 1967 and in force since 10 October of that year, provided that "outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". I n the opinion of t w o foremost authorities on the subject, Professor Goedhuis and Judge Lachs, the provision holds a rule of general international law. N o appropriation of space is, consequently, open either to non-signatories, or to signatories who may w i t h d r a w from the Treaty 1 7 3 . From the foregoing examples, complementary natural law in the shape of a natural geographical order emerges as a concept which occasionally impelled States t o claim an extended jurisdiction 1 7 4 . Claims of this k i n d either succeeded or not. I f successful, complementary natural law was transformed into customary or treaty law. The International Court of Justice recognized complementary natural law as an independent manifestation of international law. But when successful, complementary natural law may owe its success to something more than to the persuasiveness of a natural geographical order alone. This, in the present writer's opinion, was the case w i t h regard to the continental shelf development and explains the extraordinary triumph of the idea of it. The factor meant here, and to which allusion was already made before 1 7 5 , is that of the immanent meaning of history. A t a time when history is moving from one period into another, the question arises to what extent the course of history should be allowed autonomously to abolish or modernize 171 Cf. / . G. Sauveplanne , Het regime van de lucht en de ruimte erboven (The Regime of the Air and the Space Above), in: Volkenreditelijke Opstellen, Recueil Telders, Van Asbeck, and Verzijl, 1957, 157, and doctrine as quoted there; and see further Goedhuis (n. 169), 19. 172 1972, 42. 173 Goedhuis (n. 169), 19—21, and Manfred Lachs (η. 172), 44. 174 In the same vein, one may think of the unity of the hydrological basin, cf. Münch (η. 22), 355, η. 18, quoting Charles de Visscher, and of geopolitics. 175 See supra, 47.

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established rules. The answer must depend on the objectiveness of the notion "course of history". The objectiveness of it is at its maximum when i t is the most powerful State i n the w o r l d which, i n its capacity as a vehicle of history, inaugurates a new legal concept holding a proportionate answer to a clearly foreseeable development 1 7 6 . Sudi development w i t h regard to the continental shelf was the technical possibility of the exploitation of the riches of its subsoil. Chaos i n the exploitation was to be prevented at any price 1 7 7 , and the only means to avoid i t was an extension of the coastal State's jurisdiction and, eo ipso, of the natural order at sea so far embodied i n the United States' territorial waters only. N a t u r a l geographical order and the expected course of history went hand in hand when i n 1945 President Truman issued his famous Proclamation. H a d i t not been he, but the Head of a small State, weighing so much less i n the scales of history, the effect might have been different. This is the plight of Iceland and her claim to an exclusive fishing zone, which certainly is as much in the line o f historical development as was the United States' claim to jurisdiction on the continental shelf. Iceland also had the "bad fortune" of seeing her dispute w i t h the United Kingdom and the Federal Republic of Germany regarding her claim submitted to the International Court of Justice. I n its judgment of 25 July 1974 i n the Anglo-Icelandic case, the Fisheries Jurisdiction Case — Merits, the Court found that the unilateral extension of the exclusive fishing rights of Iceland to 50 nautical miles from the baselines of the territorial sea was " n o t opposable to the Government of the United K i n g d o m " 1 7 8 . The Court d i d not endorse the British first submission that the claim by Iceland to be entitled to a zone of exclusive fisheries jurisdiction extending 50 nautical miles from baselines around the coast of Iceland was " w i t h o u t foundation i n international l a w " and " i n v a l i d " 1 7 9 . The fact is remarkable, since the Court had considered the various proposals and preparatory documents produced in the framework of the codification and progressive development of the international law of the 17* See this writer's article under the title Een moedig, maar onvoorzichtig wetsontwerp (A Daring, though Imprudent Draft-Act), Nederlands Juristenblad, 1964, 694; cf. the criteria proposed by Louis Cavarê, Le droit international public positif, Vol. I I , 1962, 830; and see Richard Falk , Law, Morality, and War, 1963, 36, 37; Myres S. McDougal and William 7. Burke , The Public Order of the Oceans, 1962, 579—581, appear to equate reasonableness with lawfulness. 177 Martinus W. Mouton , The Continental Shelf, RdC 1954 I, 347—465 (367): "for economic and practical reasons the coastal States should control the exploitation of mineral resources of the continental shelf adjacent to their coasts"; and 456: "new reasons for the coastal State to control the exploitation of minerals, being the economic practicability and considerations of security". 178 ICJRep. 1974, 34; the Court made an identical finding in the case submitted by the Federal Republic: ICJRep. 1974, 205; no further reference to this case w i l l be made here. π» ICJRep. 1974, 7.

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sea "as manifestations of the views and opinions of individual States and as vehicles of their aspirations, rather than as expressing principles of existing l a w " 1 8 0 . I n refraining from a sweeping condemnation as proposed in the United Kingdom's first submission, the Court, apparently, did not wish to emphasize this consideration i n a dictum . The gesture may certainly be interpreted as a token of doubt i n the Court's own mind. But i t is not the Court's fault i f its verdict gave little satisfaction. A natural order in the shape of an exclusive fishing zone w i t h more or less arbitrary limits is a far more difficult proposition for the Court to endorse than a marginal sea as upheld in its judgment of 18 December 1951 i n the Fisheries Case1* 1. The difficulties inherent in the natural geographical order concept were well brought out by Judge De Castro in his separate opinion as appended to the Court's judgment, and in which he expressed the view that, in addition to the recognition of British fishing rights, the Court should have laid down "guidelines to define the conditions on which the extension may be regarded as legally justified" 1 8 2 . According to Judge De Castro, indeed, the development of the international law of the sea in the direction of a right to exclusive fishing zones already had proceeded considerably farther than the Court had felt able to see. I t is highly interesting t o note the learned judge's considerations to this effect. Rightly placing the Icelandic case in the context of the Truman-Proclamation and the Fisheries Case, and recalling the concepts of "special interest", "preferential requirements", and "just treatment" 1 8 3 , Judge De Castro then observed that these concepts, together w i t h the concept of preferential fishing rights for coastal States i n areas of the high seas adjacent to their territorial sea, "are accepted as something natural" 1 8 4 . The idea of a natural geographical order is very conspicuous, here. Somewhat earlier in his opinion, the Spanish judge also made a l i n k w i t h the history of the coming into being of the territorial sea. Quoting Grotius, Bynkershoek, and Pufendorf, he wrote: "The mare adjacens is subject to the jurisdictio et protectio of the ruler of the territory. Over that area the potestas of the master of the coast is recognized w i t h o u t difficulty. Its foundation is the fact that the adjacent sea is necessary to the defence of the territory itself; the coastal zone has the same value as a moat or a rampart. Once jurisdictio over the adjacent sea has been recognized, there is no difficulty i n extending i t to fisheries, w i t h the possibility 180 ICJRep. 1974, 23. 181 See supra , 47. 182 ICJRep. 1974, 104. 183 Article 6 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas; and see the Resolution on Special Situations Relating to Coastal Fisheries adopted on 26 April 1958 by the United Nations Conference on the Law of the Sea. 184 ICJRep. 1974,98.

4'

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of excluding foreign vessels from that area, or of demanding tribute for permission to fish there" 1 8 5 . Here, too, natural geographical order is paramount. But i t was the Truman-Proclamation which triggered off the present movement for exclusive fishing zones18®, "a sort of chain reaction" 1 8 7 , as Judge De Castro called it. H i s natural law thinking is still further, and definitively, illustrated when, i n the end of his opinion, stating "that i t is difficult to see how the concepts of special rights, preferential rights and historic rights can be brought under the heading of one of the sources of international l a w " , he made an attempt at a solution of the problem w i t h the help of "the principles of l a w " — clearly not the category meant i n Article 38, paragraph 1 (c), of the Court c s Statute, but principles i n the sense of an opinio communis . I n his own words: " I n order to be binding as a legal rule , the general conviction (opinio communis) does not have to fulfil all the conditions necessary for the emergence of a custom" 1 8 8 . But „binding" as the general conviction he saw w i t h regard to exclusive fishing zones was, Judge De Castro, nonetheless, recognized that " t o leave to the unfettered w i l l of each State the uncontrolled power to lay down the limits of exclusive fishing zones is contrary to the spirit of international l a w " 1 8 9 . This, i t is understood, was the gap which the Court in his view should have closed. Judge De Castro's position was one in between the Court's and that of Judges Forster, Bengzon, Jimenez de Aréchaga, Nagendra Singh, and Ruda. I n the latter group's mind, the Icelandic claim was not without foundation i n international law and invalid erga omnes. They merely concluded " t h a t there is at present a situation of uncertainty as to the existence of a customary rule prescribing a maximum l i m i t of a State's fisheries jurisdiction" 1 9 0 . The implication is that coastal States may unilaterally proclaim exclusive fishing zones. However, in her relations to the United Kingdom, Iceland was bound by her agreement w i t h that country, and this is w h y the Court considered the Icelandic extension not opposable to the latter, and w h y , i n spite of their view as to the general state of the law, the five judges were able to subscribe to the Court's decision. But i t is not clear how they could pretend to "concur i n the 185 ICJRep. 1974, 81. ιββ ICJ Rep. 1974, 83. 187 ICJ Rep. 1974, 84. 188 ICJ Rep. 1974,100 (italics supplied). is» ICJ Rep. 1974,96. 190 ICJ Rep. 1974, 52; cf. Lord Phillimore's statement in the Advisory Committee of Jurists, Procès-Verbaux (η. 97), 319: "territorial waters always exist, regardless of their extent"; and Ricci-Busattiy ibid., at 315: owing to the absence of a general rule regarding the breadth of the territorial sea, "rulings of different countries are equally legitimate in so far as they do not encroach on other principles, such for instance, as that of the freedom of the seas".

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reasoning of the C o u r t " 1 9 1 , which, as shown above, saw views, opinions, and aspirations, but no principles of existing law. Before concluding this — necessarily incomplete 1 9 2 — exposé on a natural geographical order as an example of complementary natural law thinking, two more remarks should be added to it. The first one relates to the "proportionate answer" to a clearly foreseeable development referred to above. I n matters touching upon the international law of the sea, the criterion of proportionality should operate to bring forth an equilibrium between national claims, on the one hand, the idea of domaine public or of a "common heritage of mankind", on the other hand. " N a t u r e " as inherent in the concept of natural geographical order, in other words, is to be understood i n a global sense. But even i f proportionate, and this is the second remark to be made, natural geographical order claims w i l l not always be recognized by the international judiciary. Much depends here on factual circumstances, and i f no judicial recognition can be obtained, the claimant State is left w i t h an "inchoate title", at most. So much then about natural geographical order and the uneasy position a Court may find itself in on account of it. To end these observations on complementary natural law, a few words may now be devoted to Sir Gerald Fitzmaurice's opinion on the subject of natural law as a "formal source" of international law. I t is proposed first to look at what, according to this opinion, should be considered as coming under natural law, and then to examine the theoretical basis of this "formal source". As Fitzmaurice sees it, "there are and must be rules of law that have an inherent and necessary validity, in whose absence no system of law at all can exist or be originated" 1 9 3 . As such, he lists "the rule pacta sunt servanda" 194, "the rule that a State or government cannot plead the provisions or deficiencies of its own internal laws or constitution as a ground or excuse for noncompliance w i t h its international obligations" 1 9 5 , the companion rule "that changes of regime, government or sovereign in a State, even revolutionary or I " ICJRep. 1974, 46. 1 9 2 A further case in point is the Dutch Wet Installaties Noordzee (Act Concerning Installations on the North Sea Continental Shelf) of 3 December 1964, extending Dutch criminal jurisdiction to any installation, whether or not coming under Article 5, paragraph 2, of the 1958 Convention on the Continental Shelf (installations necessary for the exploration and exploitation of the natural resources of the continental shelf), built on the "Dutch* part of the North Sea continental shelf. The object of the Act was to silence the "R.E.M.'-television tower standing outside Dutch territorial waters. On this Act, see François (η. 57), 70; and cf. Bos (η. 176) and Tammes (n. 134), 154. 193 Fitzmaurice (n.9), 164. 194 Ibid . 195 Ibid.

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unconstitutional changes, do not of themselves affect or alter such obligations, or constitute a valid ground of non-compliance α 1 9 β , the analogous rule "that a State cannot plead its o w n wrong as a ground of non-compliance, or plead impossibility of performance arising from a situation i t has itself brought a b o u t " 1 9 7 , and "the somewhat mysterious rule that a new State, recognized as a member of the international community, becomes ipso facto and necessarily a subject of international law and bound by i t " 1 9 8 . I t is easy enough to agree w i t h all these rules, and also to recognize their character as rules of natural law. However, the question arises whether all these rules are not part and parcel of the general concept of law and, therefore, must fail to belong to an independent manifestation of international law. For indeed, was i t not said to be pointless to raise the "necessary" principles making up the general concept of l a w to such rank 1 9 9 ? I t is submitted that Sir Gerald's "rules having an inherent and necessary v a l i d i t y " do i n actual fact belong to the general concept of law. As to the pacta sunt servanda principle, i t may suffice to recall the observations made before on that subject. The other rules Fitzmaurice quotes can conveniently be reduced to t w o other principles already discussed, vizthat no legal order of a general nature is optional to its subjects, and that no subject can be allowed to frustrate the law through an act of his own volition 2 0 0 . As a result, nobody accepting the idea of the general concept of law stands i n need of natural law as conceived of by Judge Fitzmaurice or, which amounts to the same, the latter, when recognizing natural law as a „formal source" of international law, actually deals w i t h the general principles of law as contained i n the general concept of law, but which, for that reason, cannot be considered to constitute a manifestation of international law of their own. The theoretical basis of Judge Fitzmaurice's natural law as a "formal source" does equally call for some comment. The learned author, who considers consent to be a "formal source" of international l a w 2 0 1 , at the same time holds that i t cannot be the only such source because of the probatio diabolica involved or, i n his own words, the "infinite regress" consent as sole "formal source" would necessitate 202 . This is how he concludes to the inevitability of rules of law w i t h

ι»» Fitzmaurice

(n. 9), 165.

197

Ibid.; and see n. 2: " A n enquiry would probably reveal the existence of a surprising number of such rules in the international law field, though by no means all the rules often attributed to natural law have this quality of necessity." i»8 Fitzmaurice (n. 9), 165, and see further 165—167 on this particular rule. 19» See supra, 38. 200 See supra , 38. 201 See supra, 17, and Fitzmaurice (n. 9), 175—176. 202 Fitzmaurice (n. 9), 163, 167.

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an inherent and necessary v a l i d i t y from where no further regress is, therefore, required 203 . As a first criticism of this position, the present writer w o u l d like to point at the difference i n quality between consent and pacta sunt servanda , the former of which i n Fitzmaurice's o w n system clearly is entirely dependent upon the latter. Is i t not questionable, therefore, to put consent and natural law on a par and to consider both of them as "formal sources" i n their own right? A n d if, in Fitzmaurice's view, consent cannot do without pacta sunt servanda , and if, for that reason, the binding force of what is consented to is to be explained as the result of two "formal sources", does this not sound rather artificial and does not his concept of "source" need to be reconsidered? One may also wonder what, in the end, the " f o r m a l " element is i n a rule like pacta sunt servanda . I n the present writer's opinion, Fitzmaurice's riposte to the positivists should have been a different one. Consent, indeed, is no „formal source" at all, but a condition of Gültigkeit for agreements: i t is the " v a l i d act" referred to above and in the absence of which no agreement can ever have any Geltung 204. But besides being a condition of Gültigkeit and Geltung, consent is also the nearest cause of the binding force of the agreement. This is so because it is a dictate of that maxim inherent in the general concept of l a w : pacta sunt servanda , a precept of natural law. The advantage of this view over the one presented by Fitzmaurice is that no longer one "source" is being reduced to another one. But the price to be paid for i t — suppression both of consent and of natural law (as understood by Sir Gerald) as "formal sources" — no doubt would be too heavy a sacrifice for him to consider its adoption. Certain

judicial

decisions

Baron Descamps' historical proposal as made i n the Advisory Committee of Jurists has already been recalled 2 0 5 . Under this proposal, "the judge in the solution of international disputes" was to consider, inter alia , "international jurisprudence as a means for the application and development of l a w " . I n M r . Root's subsequent draft-text, "the Court" was to consider, also inter alia , "the authority of judicial decisions and the opinions of writers as a means for the application and development of l a w " 2 0 6 . Baron Descamps then wished this phrase to be amended so as to reflect the idea that "the judge must use the authority of judicial decisions, and the coinciding doctrines of jurists, as

203 Fitzmaurice (n.9), 164. 204 See supra, 16. 205 Supra , at 34. 206 Procès-Verbaux (η. 97), 344.

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auxiliary and supplementary means, o n l y " 2 0 7 . To this end, he himself proposed to insert somewhere i n i t the words "as subsidiary means for the determination of rules of l a w " 2 0 8 . Later again, Baron Descamps, as a more formal expression of his thought, suggested that "the Court shall take into consideration judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of l a w " 2 0 9 . This is, but for the six initial words, the text which finally landed i n the Draft-Scheme as unanimously adopted by the Committee on 22 July 1920 2 1 0 . I n article 35 of the Draft-Scheme, the six initial words were replaced by the terms "The Court shall. . . apply . . .". Left untouched in the discussions which took place in Council and Assembly of the League of Nations 2 1 1 , these terms made i t necessary for the Council to have them preceded by the words "subject to the provisions of Article 5 9 " 2 1 2 . So amended, the provision passed both organs. Renumbered to 38, i t was adopted on 13 December 1920 2 1 3 , together w i t h the Statute as such, and remained unchanged ever since. N o r was the wording of Articles 38 and 59 revised when in 1945 the Statute of the Permanent Court of International Justice under Article 92 of the Charter of the United Nations became the Statute of the International Court of Justice, v i r t u a l l y without alterations. I t remains, therefore, interesting to see which was the meaning the drafters of Article 38, paragraph 1 (d), attached to i t and to list here the views on i t voiced by a number of members of the Advisory Committee of Jurists. Baron Descamps, whose conception of the subsidiary character of judicial decisions was already called to mind, further explained his o w n view of the subject when discussing M r . Root's formula as reported above. According to the Procès-Verbaux, "as to the objections raised to point 4, the President 2 1 4 was astonished to find that M . Ricci-Busatti did not accept doctrine as an element of interpretation. This element could only be of a subsidiary nature; the judge should only use i t in a supplementary way to clarify the rules of international law. Doctrine and jurisprudence no doubt do not create l a w ; but they assist in determining rules which exist. A judge should make use of both jurisprudence and doctrine, but they should serve only as elucidation" 2 1 5 . This statement 207 Procès-Verbaux (η. 97), 332. 208 Procès-Verbaux (η. 97), 584. 209 Procès-Verbaux (η. 97), 620. 210 Procès-Verbaux (η. 97), 680, 652. 211 See supra, 37. 212 See Hudson (n. 35), 195; Article 59 was worded as follows: "The decision of the Court has no binding force except between the parties and in respect of that particular case." 213 See supra , 38. 214 Being Baron Descamps himself. 215 Procès-Verbaux (η. 97), 336.

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appears to have reassured M . Ricci-Busatti, who then declared himself: "at any rate jurisprudence and doctrine may not be placed on the same level as the other sources and must not be used in the same way; although they must always be borne i n mind by the judge" 2 1 6 . Lord Phillimore was on the same wavelength when pointing out "that judicial decisions state, but do not create, l a w " 2 1 7 . Leaving aside, for the moment, the references made to doctrine, the statements by Baron Descamps, M . Ricci-Busatti, and L o r d Phillimore are evidence that their authors did fundamentally agree on the significance of judicial decisions as an element in the Permanent Court's law-finding process. The silence of the other members of the Advisory Committee can be interpreted only as an approval. The question is whether now, so many years afterwards, judicial decisions still are to be considered as a "subsidiary means for the determination of rules of l a w " , not at the same level as conventions, custom, and the general principles of law recognized by civilized nations. I t may even be asked whether this view was ever correct. Before going into this matter, i t may be useful to have a look at some prominent authors. I n Judge Fitzmaurice's view, decisions of international tribunals are not in the strict sense "formal sources" of international law: "they are only binding on the parties to the dispute, and binding on them only for the purpose of the particular case; they need not be followed by other international tribunals, or even by the same tribunal in another case" 218 . For t w o reasons, however, he considers i t not satisfactory to classify them w i t h the "material sources" of international law: 1) i n the Fisheries Case, for instance, the International Court gave a decision on straight base lines in the context of the delimitation of territorial waters the principle of which no third State since would have been able successfully to challenge in other legal proceedings, "even (in all probability) before a tribunal other than the International C o u r t " 2 1 9 , 2) the same or another tribunal w i l l , in fact, follow some kinds of decisions subject to various limitations 2 2 0 , because of "an actuality and a concrete character" 221 distinguishing them from doctrine. As the learned author sees it, decisions of international tribunals, therefore, rate at least as a "quasi-formal source" 222 . The latter expression, ambiguous as i t is, betrays a certain amount of theoretical hesitation the cause of which, in the present writer's opinion, is in 216 217 213 219 220 221 222

Procès-Verbaux (η. 97), 338. Procès-Verbaux (η. 97), 584. Fitzmaurice (n.9), 170. Ibid. Fitzmaurice (n.9), 171. Fitzmaurice (n.9), 172. Fitzmaurice (n. 9), 173.

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Fitzmaurice's too rigid concept of "formal source" leaving insufficient room for so unpredictable a manifestation of law as are judicial decisions. I t is proposed to come back to this point below. A very different theory is Professor Schwarzenberger's. Structuring the whole of Article 38, paragraph 1, of the International Court's Statute on the basis of the last words of subparagraph (d), he says that, i f there are "subsidiary means for the determination of rules of l a w " , there must also be "principal" ones. They are treaties, custom, and the general principles as mentioned in subparagraphs (a)—(c). Reading then "law-determining agencies" for "means", he distinguishes principal and subsidiary law-determining agencies. Principal agencies are the parties to a treaty, "the collective body of subjects of international l a w " as regards custom, and civilized nations w i t h respect to the general principles of law. Subsidiary agencies are judicial institutions and writers, to whom one turns only " i f the principal law-determining agencies do not speak w i t h one voice". Treaties, custom, and the general principles of l a w Professor Schwarzenberger calls "law-creating processes" 228 . Judicial decisions are not included in this category 224 . Professor Parry, after a discussion of both Fitzmaurice's and Schwarzenberger's opinions on the subject, in the end appears to remain hesitant as to "the precise status of international decisions", adding that further exploration of i t "ought to take account, not so much of the parallels offered by the common law, wherein the principle of stare decisis applies, but of those systems of law, and notably the German and the French, where judicial decisions play a large part notwithstanding that that principle does not a p p l y " 2 2 5 . I t is now to be examined what the position of judicial decisions is from the methodological point of view upheld i n this study. One w i l l remember that law was considered to be a "continuing process" and that recognized manifestations of law were said to be "unfinished" rather than "finished articles" 2 2 6 . Elsewhere, i t was submitted that "applying the law is marked by service rather than by sovereignty" 2 2 7 . O n the basis of the first two elements (which may boil down to a single one, i n the final reckoning), it should be understood that it is impossible not to conceive of judicial decisions as a manifestation of law. O n the strength of the t h i r d element, however, judicial law-finding is, in principle at least, restricted in scope, to the effect that, normally, judicial mani223 Georg Schwarzenberger , International Law, Vol. I, 3rd. ed., 1957, 26—28; and see his Inductive Approach (n. 4), 5. 224 Cf. Parry (ru 3), 92: e he (Schwarzenberger) says in effect that courts and writers do not make law: they only say what it is a . 225 Parry (n. 3), 94. 22« See supra , 42. 227 See Bos (n. 1), 74.

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festations of law cannot be of the same weight as legislative ones. But exceptionally, the sovereign may allow the servant to adapt the law to modern conditions 2 2 8 , and in this situation, depending on the authority of the judge involved, there can be no objection against attributing the same importance to judicial decisions as to the manifestations already dealt w i t h before. Such decisions, of which the judgment by the International Court in the Fisheries Case is a fine example, should be admitted as full-fledged manifestations which any subject of the law has to obey as much as all the others. A k i n d of "feedback" takes place, in other words, the outcome of the "continuing process" reverting into the system of the latter to take a place besides the other recognized manifestations. Herewith, not everything has been said. I t is felt that not only innovating decisions like the one i n the Fisheries Case are "fed back" into the system of the law, but that — again: depending on the authority of the judge involved — many lesser decisions are sucked up by it, provided they shed a new light on one or more of the other manifestations. The element of "newness" is as important, here, as it is in the context of treaties 229 . But the newness may wear off, and the rule contained i n a judicial decision may become custom. The judicial decision then loses its character as a recognized manifestation. A last peculiarity of judicial decisions as recognized manifestations of international law is that, being "finished products" and, therefore, individualized w i t h an eye on the specific parties in Court, the all too individual should be peeled off before they can start to function in an earlier stage of the process. Everyone familiar w i t h the handling of judicial "precedents" w i l l admit that the operation is a delicate one. Summing up, judicial decisions emanating from authoritative judges are to be considered as recognized manifestations of international law provided they are of an innovating character or shed new light on existing law, and provided also they are capable of generalization. As compared to the other recognized manifestations of international law, they are an intermittent and uneven rather than a regular manifestation, and eminently temporary. H o w does this result compare w i t h the views expressed in the Advisory Committee and by the authors reviewed above? I t is believed that judicial decisions indeed are „subsidiary" as indicated b y the Advisory Committee, i. e.y that the Court can " a p p l y " them only when no manifestations as enumerated i n sub-paragraphs (a)—(c) are at hand, or in the event they are deficient, one w a y or another. But "applying" them the Court applies a manifestation of international law which is not different i n nature from those 228 See Bos (n. 1), 74—75. 229 See supra, 23.

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i n (a)—(c). A t this point, i t is submitted that the Advisory Committee and Professor Schwarzenberger held views which now belong to the past. They wrongly assumed that the Court cannot create international law. Identity i n nature, meanwhile, does not i m p l y an identical make-up and identical conditions for application. These, i t was seen, are highly specific. But, after all, is this not true for each of the manifestations in sub-paragraphs (a)—(c), as well? Judge Fitzmaurice's view appears more closely to correspond to those supported here. H o l d i n g on to the concept of "formal source" as a "source" valid erga omnes, yet hesitating to put judicial decisions w i t h i n that bracket entirely, he invents the hybrid notion of a "quasi-formal source" to use as a caption sui generis . But, as observed above, his "formal source" concept is too rigid. I t fails to take into account the specific make-up of, and working conditions for, every single manifestation of international law hinted at a moment ago — in his own doctrine: custom and natural law. Widening the concept of "formal source" so as to enable i t to accommodate the intermittent and uneven, i t is thought that Judge Fitzmaurice might well have come to consider judicial decisions as a "formal source" on the same footing as custom and natural law. But apart from semantics, the learned author for all practical purposes seems to be at one w i t h the present writer in his opinion on judicial decisions. The same applies to Professor Parry w h o rightly points at German and French practice as the nearest equivalent to the practice w i t h regard to international judicial decisions. To conclude, three more observations have to be made. The first one bears on the relation between judicial decisions and the other manifestations of international law. The judgment i n the Fisheries Case, for instance, informs one of the existence of complementary natural law as a recognized manifestation of international l a w 2 3 0 . I t is from this decision that one may learn about that existence and, thus, may conclude to complementary natural law. I t would be wrong, however, not to acknowledge the decision itself as something beyond such evidence. The decision is also important as a manifestation in itself for all i t does to define and delimit the functioning of complementary natural law i n the relevant case i n such a manner as to allow a certain amount of generalization. The second observation deals w i t h the rôle judicial decisions may play besides being recognized manifestations of law, or instead of it. The fact that Courts w i l l not easily come back on their decisions makes for a second "feedback", this time into the legislative phase of the process of law-creation. Here 230 See supra , 47.

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they may, as "miscellaneous facts", influence the legislator 2 3 1 . I n Judge Fitzmaurice's terminology, they then w i l l be identified as "material sources". I t is suggested that this rôle , too, is an important one for judicial decisions to fill. A third function of judicial decisions is to be purely informative, but i t is readily agreed that this is no more a function belonging to the process o f lawcreation. Finally, i f in 1920 the Advisory Committee could have a view of judicial decisions differing from the one advocated here, this certainly is to be attributed to the circumstances in which i t had to operate. The Committee still had to convince States of the necessity to have an International Court, and i n inserting the general principles of law as recognized by civilized nations i t was already bold enough. Adding the judicial decision — or certain judicial decisions — as recognized manifestation of international law might have been too much. But after over a half century of case-law made by the W o r l d Court, one is in a better position to judge the quality and value of it. Quite apart from the Committee's circumstances, i t is legitimate to think that the Committee's conception was in harmony w i t h the general legal outlook of the day, and that the cultural atmosphere has since evolved. The normative concept of law and, in its wake, the status of judicial decisions were correspondingly affected. III.

Some Alleged Manifestations

of International

Law

Introduction Under this heading, four subjects are shortly to be dealt w i t h , namely doctrine, the work of the International L a w Commission, the resolutions of the General Assembly of the United Nations, and unilateral acts, all of which were occasionally proposed as additional recognized manifestations of international law, but none of which really are. Doctrine 232

Doctrine made its entry into the discussion i n the Advisory Committee w i t h Baron Descamps' statement about "the concurrent teachings of jurisconsults of authority" as a second device, besides "the legal conscience of civilised nations", to discover rules of international law outside the ones contained in treaties and custom. T o his mind, both devices were to be used in conjunction, to the effect that no rules as envisaged could exist unless consecrated by "jurisconsults of authority". Their teachings thus became identical w i t h "the legal conscience of civilised nations". M r . Root then sub231 Cf. supra , 31, on State practice. 232 As shown supra, at 35.

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mitted a text i n which "the opinions of writers" came to take an official place 2 8 3 . Baron Descamps' reaction to i t stressing the "auxiliary and supplementary" character of doctrine was noted above 284 , as was the expression he suggested and which finally was adopted for what became subparagraph 1 (d) of Article 38: "the teachings of the most highly qualified publicists of the various nations" 2 8 5 . Doctrine, he also said, only serving " t o clarify the rules of international l a w " , no doubt did not create l a w 2 3 6 . Ricci-Busatti appeared to be of a similar m i n d 2 3 7 and, indeed, doubted whether doctrine could ever be of help i n case there were no rules in treaties or custom: "he hardly thought that i t w o u l d be possible to find coinciding doctrines concerning points i n relation to which no generally recognised rules existed. Further, he denied most emphatically that the opinions of authors could be considered as a source of law , to be applied b y the Court, and he was above all astonished that M r . Root had agreed to a formula containing this idea" 2 3 8 . Amusing is his skirmish w i t h L o r d Phillimore on the value of doctrine. Point-blank, he asked the latter "whether England w o u l d accept a sentence based not on a rule of law accepted as such, but upon the doctrine of legal writers". The Procès-Verbaux have i t that " L o r d Phillimore thought that this was possible", but soon afterwards L o r d Phillimore explained that "custom is formed by the usage followed i n various public and formal documents, and from the works of writers w h o agree upon a certain point". Ricci-Busatti then observed "that what L o r d Phillimore had just said coincided w i t h his own ideas" 2 8 9 . A t a later stage, he was t o maintain his objections, yet did not wish to vote against the final text arrived at in the Committee 2 4 0 . Scepticism as to the value of doctrine was also present in Professor Albert de Lapradelle's words. H e said that, " i f it were wished to include doctrine as a source it should be at any rate limited to coinciding doctrines of qualified authors in the countries concerned in the case. I t certainly w o u l d be necessary to make a classification: the various expressions of doctrine should be arranged according to their importance. The resolutions of the Institute of International Law, for example, would have to be taken into account to a considerable extent" 2 4 1 . From these quotations i t may be understood that the import of doctrine was less a matter of agreement between 233 234 235 236 237 238 239 240 241

See supra , 55. See supra , 55—56. See supra , 56. See supra, 56. See supra, 57. Procès-Verbaux (η. 97), Procès-Verbaux (η. 97), Procès-Verbaux (η. 97), Procès-Verbaux (η. 97),

332. 333—334. 584, 652. 336.

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the members of the Advisory Committee than was the significance of judicial decisions i n the process of international l a w 2 4 2 . The inference is that i n the eyes of some of them the w o r d "subsidiary", applied to doctrine, implied a distance from the recognized manifestations of international law considerably greater than in the eyes of others. However this may be, i n 1920 the premises for doctrine as a recognized manifestation of international law were lacking and doctrine since then failed to outgrow its original status before the Court. One may, therefore, agree w i t h Sir Gerald Fitzmaurice who, as recalled under the preceding heading, saw "an actuality and a concrete character" in judicial decisions which he denied to doctrine and which may cause the same or another tribunal to follow them 2 4 3 . Should one also agree w i t h Professor Schwarzenberger according to whom one may turn to writers only " i f the principal law-determining agencies do not speak w i t h one voice" 2 4 4 ? The suggestion seems to be too narrow to anyone believing i n a doctrinal mission not limited to a comment of "existing l a w " or proposals de lege ferenda. This function of doctrine certainly is not to be belittled, but more important still appears to be the influence doctrine can exert on the normative concept of law. A n y view of a treaty, a custom, or a general principle of law recognized by civilized nations is subject to this normative concept, whether these "principal means for the determination of rules of l a w " , as Professor Schwarzenberger calls them, are equivocal or not. The normative concept itself may be called many-faceted, gradually emerging, and ever-changing 245 . I t is, consequently, of the greatest practical significance for Courts to stay in contact w i t h anything likely to influence the normative concept, particularly w i t h doctrine as "the legal conscience of civilised nations" (Descamps). But even so, doctrine as a recognized manifestation of international law is an untenable proposition. A n d i f Professor Parry w i t h equal firmness states that " t o deny to the literature the title of a source of international law i s . . . simply not possible" 2 4 6 , there is only a seeming contradiction w i t h the present writer's view: for, as i t appears from the lines immediately preceding his statement, the author, i n fact, alludes to the influence writers directly had on the l a w 2 4 7 . A n d on that score, there can be no difference of opinion w i t h him. 242 See supra , 57. 243 See supra , 57. There sometimes is outright mistrust of doctrinal works; see Sdowarzenberger , Inductive Approach (n. 4), 30; and Parry (n. 3), 105: "One of the most striking things about international law as it appears to a ministry of foreign affairs is how different it is from the law of the books". 244 See supra , 58. 245 Cf. Bos (n. 1), 83. 246 Parry (n. 3), 107. 247 I t is in this same sense, as well as in that of mere documentation, that Professor Μϋ ηώ

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The work

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Commission

The work of the International L a w Commission ( I L C ) , i n the eyes of the same authority, has an importance transcending that of doctrine for t w o reasons. Though representing, like doctrine, the teachings of the most highly qualified publicists, it, indeed, has an international quality which doctrine lacks, and, moreover, reflects the thought of a quasi-diplomatic body many members of which w i l l partake in the debate on the Commission's w o r k as members of the Sixth (Legal) Committee of the General Assembly of the United Nations. The latter fact imparts a definite sense of reality to the Commission's proceedings and lessens the distance separating the Commission from the political organs of the United Nations, or from other international organizations 2 4 8 . This being so, there is no w a y for Professor Parry but to consider the Commission's work as a source of international law a fortiori: i f doctrine is to be so qualified, then certainly the work of the I L C . However, in view of the circumstance that diplomatic conferences are required to elaborate draft-conventions based on the w o r k of the Commission, and that these draft-conventions have to be adopted and, subsequently, sufficiently ratified before they may be considered regular manifestations of international law, i t is not feasible to place on the same level w i t h them what i n actual fact are but their travaux préparatoires . The latter may have a significance of their own as long as the General Assembly of the United Nations or a diplomatic conference takes no action upon them, either positively or negat i v e l y 2 4 9 . But as soon as such action has been taken, their significance needs must dwindle to nothing, except a documentary one. I t should be clear, therefore, that, i f the w o r k of the International L a w Commission for the reasons given by Professor Parry is to be rated higher than doctrine, this can only temporarily be so. I n addition, even in the limited period of time over which the influence of the w o r k of the Commission extends i t can never be considered to be an independent manifestation of international law. I n fact, i t is but a statement illustrative of an official preparatory body's normative concept of law for international relations. A matter apart is the value to be attached to the — positive or negative — action taken by the General Assembly or a diplomatic conference on the International L a w Commission's proposals. The General Assembly may adopt (n. 22), 354—356, recognizes doctrine as a "source® of international law. He, especially, points at its role in the definition of custom, cf. Lord Phillimore as quoted supra, at 62. 248 Parry (n. 3), 114—115. 249 Negatively: see, e. g., G. A. Resolution 989 (X) of 14 December 1955 in the matter of arbitration; cf. Yearbook of the International Law Commission (YBILC), Vol. I I , 1958, 1 et seq.

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a resolution. The worth of such resolutions w i l l be studied below. A diplomatic conference may vote a convention and sign it. But quid in case the convention never comes into force for lack of a sufficient number of ratifications? A celebrated example, here, is the Vienna Convention on the L a w of Treaties adopted on 23 May 1969. Though the Convention is widely quoted, i t is not to be deemed a recognized manifestation of international law unless one would agree to put a premium on laxity and imprecision, and would be prepared to erase the difference between convention and non-convention. The Convention nevertheless carries great authority, though not on all points, and the fact is to be explained as a result of t w o considerations, viz .: 1) that the Convention went through the three stages of the International L a w Commission, the General Assembly, and a diplomatic conference, and 2) that the Convention, in part, is acknowledged to be declaratory of existing general international law, i. e., of custom. I n the latter respect, the significance of the Convention is clearly documentary. For the remainder, its value is, like the work of the International L a w Commission before it sinks back to the documentary level, in its being a sign of a normative concept. I t is readily conceded, however, that the overall significance of the Vienna Convention is almost on the verge of that of a recognized manifestation of international l a w 2 5 0 . Resolutions of the U n i t e d N a t i o n s General

Assembly

A first remark to be made w i t h regard to resolutions of the United Nations General Assembly is that the subject should be well distinguished from the one dealt w i t h before, namely, that of certain decisions of international organizations 2 5 1 . What is meant, here, is resolutions in which "recommendations" are made to the Members of the United Nations or to the Security Council or to both on any question or matter w i t h i n the scope of the United Nations Charter or relating to the powers and functions of any organs provided for in the Charter (Article 10 of the Charter). Generally speaking, recommendations "recommend" and do not bind, therefore. But does not their weight vary from one case to another and, by times, approach the binding character of a decision, or even attain it? I n order to answer this question, it is thought best first to examine the intrinsic meaning of resolutions adopted by the General Assembly on a subject 250 But see Professor Parry (n. 3), 22, according to whom the 1958 and 1960 Geneva Conferences on the Law of the Sea significantly changed the law of the sea, "and this quite irrespective of the formal inconclusiveness of the second Conference or of the extent to which the conventions drawn up by the first Conference have or have not been accepted by States and have or have not had a formal effect". 251 See supra , 24—25.

5 GYIL 20

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w i t h regard to which under its own Charter i t can merely "recommend". Such resolutions were interpreted in three different ways: 1) as a "climate" or influence, 2) as a reflection of State practice, and 3) as a creation of new law. Professor Parry sees a "general change in the climate of international l a w " brought about, inter alia , by resolutions of the General Assembly 252 . Elsewhere, he refers to the United Nations' "great and growing influence upon international l a w " , recognizing though that the Organization did not take on the features of an international legislature 253 . Professor Schachter, when still a member of the United Nations Legal Department (as i t was then styled), thought of resolutions i n the second sense of the w o r d 2 5 4 . I n Professor Parry's paraphrase, "he was claiming no more than that, firstly, the practice of the organization was part of the practice of States, and, secondly, that an internal law of the organization was develo p i n g " 2 5 5 . As a species of United Nations practice, one may quote interpretation by the General Assembly of the United Nations Charter. However, whether a specific resolution merely interprets or, on the contrary, creates new law (the t h i r d of the three possible views mentioned above) has occasionally been a matter of debate. Whereas Professor Akehurst attributed no more than an interpretative purport to Resolution 1514 ( X V ) of 14 December 1960, holding a "Declaration on the Granting of Independence to Colonial Countries and Peoples" 2 5 6 , Professor Sohn, here and i n Resolution 2625 ( X X V ) of 24 October 1970 (the "Declaration on Principles of International L a w Concerning Friendly Relations and Cooperation Among States in Accordance w i t h the Charter of the United Nations"), saw "important extensions of the Charter" 2 5 7 and a true "legislative activity of the General Assembly, leading to the creation of new international law applicable to all States" 2 5 8 . The confused state of the law is w e l l defined i n an original metaphor by another member of the United Nations Secretariat, D r . Engers, when writing: "Chapter X I of the Charter has not been amended; i t has become the bottom layer of a palimpsest of which the upper layers are formed b y the Declarations contained i n the Resolutions of 1960 and 1970. This surely is not an elegant way of legislating, but the Declarations do represent the current status of the international law pertaining 252 Parry ( n . 3), 22. 253 Parry (n. 3), 111. 254 Oscar Schachter , The Development of International Law through the Legal Opinions of the United Nations Secretariat, B Y I L 1948, 91. 255 Parry (n. 3), 20. 25β Michael B. Akehurst , A Modern Introduction to International Law, 2nd ed., 1971, 282. 257 Sohn (η. 66), 50. 258 Sohn (η. 66), 52.

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to non-self-governing territories, whatever measure of validity one wishes to ascribe to t h e m " 2 5 9 . As to the t h i r d interpretation, viz., the proposed creation of new law by the General Assembly's resolutions, reference may be made to Professor Sohn's observations just called to mind. Once having realized these very different appreciations of the intrinsic meaning of General Assembly resolutions, one w i l l be in a better position to answer the question whether they may have a significance exceeding that of a recommendation. But this main problem cannot be solved before an examination of the merits of the three propositions dealt with. Starting w i t h the second one, the "State practice" view of General Assembly resolutions is rightly cautioned against b y Sir Gerald Fitzmaurice. Endorsing Thirlway's opinion on the subject, he emphasizes the indispensability of evidence of actual State practice, adding "that Assembly resolutions are not per se evidence of that, by however big majorities adopted: they are not even (owing to the play of Assembly politics) always reliable evidence of the genuine opinions of the voting States" 280 . I n other words, something may have to come on top of a resolution before a claim of State practice can be admitted. Professor Jennings, furthermore, stresses "the need . . . to take into consideration all the cogent evidence from the actual practice of States . . . and not just selected parts of i t " 2 6 1 . But what, then, is the value of State practice, and what, in particular, is its value in matters pertaining to the United Nations? I n Judge Fitzmaurice's terminology, State practice and customary law are identical 2 6 2 . The learned author apparently, therefore, acknowledges a rôle for customary law w i t h i n the frame-work of the United Nations Charter. Supposing this to be correct, does this proposition also hold good in case the result of such customary law would be to amend the Charter? I t is thought not, and a weighty argument is to be found, here, i n the International Court's advisory opinion of 13 July 1954, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal : i f " w i t h i n the organized legal system of the United Nations" the General Assembly may not refuse to give effect to an award of compensation made by the Administrative Tribunal since this

259 Jacob F. Engers y From Sacred Trust to Self-Determination, in: Essays in Honour of A. J. P. Tammes, 1977, 87—88. 260 Sir Gerald Fitzmaurice , The Future of Public International Law and of the International Legal System in the Circumstances of Today, in: Institut de Droit International, Livre du Centenaire 1873—1973, Basel 1973, 270, η. 179, quoting H.W. A. Tbirlway, International Customary Law and Codification, Chapter Five, 1972. 261 Jennings (n. 5), 11. 262 See supra , 30.

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would imply a means of redress not actually provided f o r 2 6 3 , i t likewise cannot be possible for the General Assembly to amend the Charter i n proceedings other than those laid down i n its own Chapter X V I I I . I n all other cases, however, there may be some scope for customary law in the United Nations, and i t may, indeed, take its root in a resolution adopted by the General Assembly. As to the evidence of custom (the question raised by Sir Gerald), one feels tempted to say that in these political surroundings, especially, no opinio iuris should too rashly be deemed to exist, and that every MemberState voting i n favour of a resolution should be required to demonstrate that i t does itself fulfil the criteria embodied i n the resolution and may be expected to do so in the future. I n international law, reciprocity is of the essence. The question of evidence is the more pressing since Member-States may have voted in favour of a particular resolution on the understanding that nothing binding is involved because of the wording of Article 10 of the Charter 2 6 4 . General Assembly resolutions as an element in United Nations customary l a w 2 8 5 quite obviously differ from such resolutions as customary law tout court. Judge Fitzmaurice appears to reserve the latter possibility, but in this writer's opinion no General Assembly resolution can ever be taken to be customary law b y itself. The idea of "instant customary l a w " , nowadays adopted by some i n this context, was already rejected before 26 *. As an element i n U n i t e d Nations customary law, General Assembly resolutions correspond to "State practice" in the second sense indicated above 2 6 7 . I n the event of an "interpretative" resolution 2 6 8 , one is rather in the presence of the third variety stated there. W i t h regard to the latter type of resolution, i t seems to be superfluous to ask for any evidence in addition to the resolution itself: it is perfectly legitimate for the General Assembly to "usurp the judicial function" and itself to interpret the Charter. But just as State practice is no recognized manifestation of international law, just so it is impossible to lend this character to the t w o kinds of United Nations practice described. Coming now to the t h i r d proposition, viz., of General Assembly resolutions as a squarely legislative activity, one cannot do better than refer to Judge Fitzmaurice's criticism of i t and the system he devised to create a legislative 263 ICJ Rep. 1954, 55—56. 204 See Fitzmaurice (n. 260), 269 and Jennings (n. 5), 11. 265 a view suggested by Professor Pitman Potter as quoted by Parry (n. 3), 20; in the same vein Edvard I. Hambro , The Sixth Committee in the Law Creating Function of the General Assembly, in: Essays in Honour of D. Antonio de Luna, 1968, 239—243 (241). 266 See supra, 27. 2«7 See supra, 31. 268 See supra, 66.

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process in the United Nations really w o r t h the name. According to Judge Fitzmaurice, "legislation" b y General Assembly resolution is inconsistent w i t h the basic constitution of the United Nations and the structure of the Charter, nor is the General Assembly a suitable forum for this k i n d of development 2 6 9 . For these reasons, there can be no question of any legislation properly speaking through the resolutions adopted by the General Assembly. A t most, they may lead to, or reflect, State practice as claimed in the preceding paragraph. Furthermore, any "legislation" by resolution amending the Charter w o u l d be suffering from the same defect as a resolution conceived of as "State practice" and also amounting to an amendment, namely, from being contrary t o Chapter X V I I I of the Charter and being, thereby, "inconstitutional". I t is, certainly, needless to say that a General Assembly resolution interpreted as a piece of legislation does no more than a resolution not so qualified represent a recognized manifestation of international law. The first one of the three propositions w i t h regard to the intrinsic meaning of General Assembly resolutions is altogether non-controversial. There can be little doubt that resolutions of the General Assembly affected the "climate" of international law and had considerable influence on it. The mistake of many a writer is that he cannot sufficiently take this into account without promoting these resolutions to the rank of a "source" of international law. But here, like w i t h doctrine and the work of the International Law Commission, the solution lies elsewhere, namely in the recognition o f the normative concept of l a w and its fundamental importance in the entire process of law. As i t was said w i t h regard to doctrine, any rule of law, in whatever shape it may appear, is under the impact of the observer's normative concept of l a w 2 7 0 , and the same may be said w i t h respect to the w o r k of the International L a w Commission and resolutions adopted by the General Assembly. The paramount significance of doctrine, I L C work, and General Assembly resolutions is to influence the normative concept of law for international relations and, thus, through the handling of the recognized manifestations o f international law, to make their impact felt. But i t is a misconception to make them recognized manifestations themselves, therefore. The main question asked above — what is the weight of General Assembly resolutions? — now seems to be ready for an answer. Such resolutions were found to be a possible element either i n State practice, or in the normative concept of law. I n the former capacity, they can be "binding" only i n conjunction w i t h further data together making custom. I n the latter capacity, the question of their "binding force" loses all sense. The origin of all binding force See Fitzmaurice 270 See supra. , 63.

(n. 260), 270—274; and see Jennings ' acclaim (n. 5), 12.

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of rules of law is i n the normative concept of law. "Binding force", consequently, is not a question to be asked w i t h regard to the normative concept itself: the concept of law, both general and normative, is the alpha and omega of all law. Implicit in this view is a scale of infinite possibilities for General Assembly resolutions to make their impact felt in the process of law. I t is but natural that, in a matter as involved as the present one, other opinions were held. I n fact, any opinion on the subject to be well grounded should rest upon a comprehensive methodology of international law. T o give a mere catalogue of opinions must, therefore, be pointless, but i t would, certainly, take the present writer too far afield to enquire into the methodological motivations behind them. As a last observation, the reader may once more be referred to the distinction made above between the "consumer's" and the "producer's" approach 271 . I t is obvious that in the United Nations General Assembly the latter approach prevails. N o real interest in "sources" can, consequently, exist in the General Assembly. The General Assembly may, for the same reason, wish to create a new "source" 272 . But i t is a serious question whether " w i t h i n the organized legal system of the United Nations" such an undisciplined attitude, borrowed from the chaotic society of homines liberty is admissible. For is i t not contrary t o the Organization's Charter? Unilateral

acts

Finally, a word has to be said about the asserted character of unilateral acts as recognized manifestations of international law. Professor Dehaussy, w h o appears to be their greatest champion, sees t w o varieties of them, viz., 1) acts of international organs, 2) acts of national organs. Acts i n the first category (and the only ones he names) are resolutions adopted by international organizations "ayant un caractère plus ou moins superétatique" . The unilateral acts of national organs he envisages are, e. g., those concerning the attribution of nationality, those delimiting the State's territorial and maritime jurisdiction, and those determining the rights and obligations of aliens w i t h i n the State's jurisdiction 2 7 8 . As to the first category, the reader may be referred to the observations made above on certain decisions of international organizations 274 and on resolutions 271 272 273 Droit 274

See supra, 11—13. See supra, 11. Dehaussy (n. 19), 6; and see the author's elaboration of his view in Juris-Classeur de International, Vol. I, Fascicule 14. See supra, 24—25.

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of the General Assembly of the United Nations 2 7 5 . I t follows that Professor Dehaussy, to an extent, is right. Certain decisions of international organizations, actually, are to be considered as independent manifestations of international law. I t was preferred, however, to list them as such and not to place them in a category as non-descript as the one of unilateral acts. Thus, their significance was far better underlined. Resolutions of the General Assembly, on the contrary, were found not to be acceptable as recognized manifestations of international law. W i t h regard to acts of national organs, Professor Dehaussy, while considering them as "sources" of international law, admits that they are but "secondary sources" which may not contradict treaty and custom, being the "principal sources" of international l a w 2 7 6 . For t w o reasons, the present writer cannot agree w i t h Professor Dehaussy's idea of unilateral acts b y national organs, i. e., by States, as recognized manifestations of international law. The first one is that he finds himself unable to go along w i t h a concept of "sources" allowing "sources" to depend on each other 2 7 7 . "Secondary sources" which are prevented from contradicting "principal sources" do, however, depend on the latter. I n actual fact, therefore, they can be no "sources" at all. The second, and even more fundamental, reason is that in a society of homines liberi no law can exist which is unilateral in origin. This is how i t could be said above 2 7 8 that i n international law — being a law for the lineal descendants of the homines liberi of old — reciprocity is of the essence. This being so, how ever could international law flow from an unilateral act? I f an act is involved i n the genesis of international law (which, basically, is not so w i t h regard to complementary natural law), i t should at least be a bilateral one. But what about certain decisions of international organizations admitted as recognized manifestations of international law, one may ask? Are they no unilateral acts? They certainly are, but not in the sense of unilateral acts in a world of homines liberi . I n them, another world, that of an organized community, is being revealed, and this is w h y i t was so justified to place them in a class of their own. As to judicial decisions, certain of which were equally recognized as manifestations of international law, Judge Morelli rightly observed that they cannot be considered as "acts" i n international law. Acts, he held, are those "legal facts" which may be attributed to a subject of law, and international Courts are no subjects of international law. Judicial decisions, therefore, are mere "facts" carrying certain consequences in l a w 2 7 9 . 275 27β 277 278 27»

See supra , 65—70. Dehaussy (n. 273), Fascicule 14, 18. Cf. supra y 55. See supra , 68. Gaetano Morelli, Théorie générale du procès international, RdC 1937 I I I , 257—373

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Professor Dehaussy's unilateral acts of State organs, instead of being "sources" of international law, i n point of fact are "sources" of obligations , to use a term which Judge Fitzmaurice applied to treaties 280 , but which really fits i n the context of unilateral acts not being decisions of international organizations. States performing such acts simply avail themselves of a competence given them in a recognized manifestation of international law. IV. The Relations Between the Recognized Manifestations of International

Law

Introduction I n Part I above, dealing w i t h a number of general questions, i t was suggested that anybody should be able, on the basis of his normative concept of law for international relations, exhaustively to enumerate the "sources" of international law. Sir Gerald Fitzmaurice's opposition to this proposition was noted, and reasons of logic were said to have withheld him from adopting i t 2 8 1 . The analysis of these reasons is important in that they show the absence in Judge Fitzmaurice's thought of a fundamental condition for any relations between the recognized manifestations of international law — the subject w i t h which the present study is going to be concluded. Paraphrasing a statement by Professor Ross, Judge Fitzmaurice observes that "any proposition to the effect that a, b, c, and d .... are the sources, and the only sources of law, must immediately be falsified by the fact that this proposition could only be established by invoking a further and independent proposition which would give the original proposition itself its validity, but which (requiring as i t must a further and separate source) w o u l d then, by its very existence, be simultaneously destructive of the original proposition" 2 8 2 . But i f these are the reasons w h y the "sources" of international law can never be exhaustively enumerated, then there neither can be any relations between the recognized manifestations of international law. For how are such relations to be imagined on such an open-ended assumption as Judge Fitzmaurice's in which no actual limits between the "sources" can exist since the entire contents of the l a w are constantly adrift to an indefinite horizon? Yet, relations of the k i n d indicated exist, and they can exist because Professor Ross's logic, left to itself as i t is, and not bound to some substantive (276—278) ; and see Maarten Bos, De betekenis van het rechterlijk procès voor de rechtsvorming (The Significance of Judicial Proceedings in the Process of Law) in the volume Quid Iuris, Deventer, 1977, 13—34 (32—33). 280 See supra , 14. 281 See supra , 14. 282 Fitzmaurice (n. 9), 161; and see 175.

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concept, is an empty shell 2 8 3 . Overlooking the normative concept of law, its proponent cannot t h i n k of a "source" not derived from another "source", instead of realizing that i t is the normative concept which determines the presence of a recognized manifestation of international law, and that i n this normative concept a stop is being put to any further search for the basis of the validity of such manifestations. Does not, by the w a y , Sir Gerald's own introduction of natural law as a "formal source" of international l a w 2 8 4 , equally implying such a stop, hold an implicit recognition of the shallowness of Professor Ross's reasoning? A t any rate, natural l a w as a "formal source" of international law does not appear to be consistent w i t h Judge Fitzmaurice's belief in the impossibility exhaustively to enumerate the "sources" of international law. A n y recognized manifestation of international law directly derives from the normative concept of law for international relations, w i t h o u t making a detour over another one. I t is the normative concept which, as needs command, invents a recognized manifestation and delimits i t as i t sees fit. I t is the existence of these limits which is the fundamental condition for relations between manifestations. These relations revolve around three principles: 1) the mutual independence of the recognized manifestations of international law, 2) their coherence inter se, and 3) their private and characteristic place i n a scale from induction to deduction. T o each of these principles, a number of observations may now be devoted. Mutual

independence

I n this writer's opinion, recognized manifestations of international law are recognized on their o w n and inalienable merits. Treaties have merits differing from those of custom, custom has qualities differing from those of the general principles of law recognized by civilized nations, and the properties of the general principles again are not to be identified w i t h those of complementary natural law. A l l of them are recognized for their o w n sake, for their very special contribution towards the translation of the normative concept of law for international relations into rules of law. They are so recognized because otherwise this concept would not be sufficiently reflected in practice. The addition to their series of certain decisions of international organizations and of certain judicial decisions bears witness to the fact that they, too, i n their own inimitable way, give body to this concept. 28S See Bos (n. 154), 44. 284 See supra, 53.

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This origin for each and every manifestation in the normative concept makes for their mutual independence. One type of manifestation is not subservient to another, not to be reduced to i t 2 8 5 , even i f the former owes its practicability to the latter, like in the case of certain decisions of international organizations made possible by treaty, namely, the constitution of the organization 2 8 6 . Treaty and custom are not only independent of each other, but mutually exclusive in this sense, that a rule valid between t w o States cannot be a treaty rule and a rule of customary law at the same time. This is w h y custom was defined as what one is in the habit of doing, convinced that such behaviour is legally obligatory, although not ordered by a written rule 297. The latter, italicized, words, not normally to be found in definitions of custom, are, nevertheless, essential, for the habit of doing something from a conviction as described may also be based on a treaty. H o w is i t that a rule "cannot" be a treaty rule and a rule of customary law at a time, as just stated? First, i f a treaty is a better "source" of a rule than custom, as suggested above 2 8 8 , i t is not clear w h y the less perfect "source" should survive. Second, i f "codification" of custom is necessarily "development", as rightly claimed by Professor Jennings 289 , a customary rule becomes ipso facto abrogated by its codification, an automatism which occasionally did not prevent the law-giver from expressly proclaiming the end of custom 2 9 0 . Meanwhile, i t should be clear that a rule of customary international law may be prevailing between more than t w o States and is codified only between a restricted number of them. The rule then continues to exist between the State or States not consenting to the codification and the others u n t i l i t is replaced or terminated. Replacement may occur in the way stated i n Article 38 of the Vienna Convention on the L a w of Treaties already quoted above 2 9 1 . The "rule set forth i n a treaty" may, indeed, be the customary rule as codified. I n the event of a rule of customary international l a w covering more ground than the rule as embodied in a treaty text i t may be difficult to decide whether the surplus part of the customary rule survives or not. There appears to be one exception, only, to the rule of treaty and custom being mutually exclusive, namely, that Articles 31—33 of the Vienna Conven285 Cf. supra , 55, where in Fitzmaunce's system consent was shown to be entirely dependent upon pacta sunt servanda. 28« See supra, , 24—25. 287 See supra , 25. 288 See supra, 23. 289 Jennings (n. 5), 4, as quoted at (n. 54) supra. 290 See Article 3 of King Louis-Napoléon's Decree of 24 February 1809 to introduce the first Civil Code in the Netherlands: De Smidt (n. 31), X I . 291 See supra, 31.

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tion, dealing w i t h treaty interpretation, necessarily did leave the original customary rules of the same content untouched. Otherwise, no rules would exist w i t h the help of which these very articles could themselves be interpreted 2 9 2 . Or, seeing that "codification" is always "development" 2 9 3 , should one rather say that here treaty created identical and simultaneous custom between the parties to the treaty (instead of leading to an identical, but subsequent custom for third parties, like in Article 38)? I t would be the only case of treaty-made custom! Save for this exception, mutual exclusion appears to be a feature most typical of the relations between treaty and custom. The same certainly does not exist in the relations between the other recognized manifestations of international law. The rules of the latter, therefore, could (theoretically) be identical. N o r is there any mutual exclusion between these rules, on the one hand, and treaty or custom, on the other hand. Coherence I n spite of their mutual independence, generally speaking, and the mutual exclusion of treaty and custom, in particular, there is a great deal of coherence between the different recognized manifestations of international law. As institutions, they closely link up w i t h each other, constituting together a single whole representing the fullness of the law. This is inherent i n a view of international law as clearly adopted in the Advisory Committee of Jurists i n 1920, seeking to avoid lacunae to any possible extent 2 9 4 and by other means than the "residual principle" declaring everything permissible unless prohibited. I t certainly is a definite normative concept of law for international relations which is responsible for this v i e w 2 9 5 . Those not accepting this normative concept, but given to a narrower one, w i l l not exclude lacunae and see less coherence, therefore. They may welcome this for the political leeway i t implies. A possible hierarchy among the recognized manifestations of international law is a problem à cheval between their mutual independence and their coherence. A l l that could be said about it, here, is to be found i n the above observations on the "complementary" or "subsidiary" character of the general principles of law recognized by civilized nations, complementary natural law, and certain judicial decisions 296 . 292 Cf. supra. , 32. 2M Cf. supra , 23. 2»4 See supra , 34 and cf. supra , 42. 295 See supra, 13—14.

29« See 34, 42—43, and 55—56 supra.

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R e l a t i v e place in a scale f r o m i n d u c t i o n to d e d u c t i o n The recognized manifestations of international law are either written or unwritten. W r i t t e n manifestations are treaties, certain decisions of international organizations, and certain judicial decisions. U n w r i t t e n manifestations are custom, general principles of l a w recognized by civilized nations, and complementary natural law. Written and unwritten manifestations all have their own raison d'etre 297 and character. Their character, it is submitted, largely depends on the measure of induction or deduction they represent. A maximum degree of induction is made possible in the handling of written manifestations, though deduction even then w i l l not be absent. Deduction increases w i t h custom, still more w i t h the general principles of law recognized by civilized nations, to become complete in the application of complementary natural l a w 2 9 8 . The observations made in Part I I — The Recognized Manifestations of International L a w Individually Examined — hold materials sufficient to make the reader understand that rather divergent views were taken w i t h regard to the relative place, especially, of custom and the general principles of law recognized by civilized nations in the scale running from induction to deduction. I t is believed that i n this respect, too, it is one's normative concept of law which is at the origin of one's opinion in the matter. The relations between the recognized manifestations of international law are a subject which, sofar, did not attract much attention. There is no doubt that there is far more to be said about them than could be done, here, and a systematic study of them would be in place. The present writer, however, has to be satisfied w i t h a statement of the fact.

297 See M u t u a l 298 See supra, 28.

i n d e p e n d e n c e , supra.

The Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization Bengt Broms /.

Introduction

A t the time when the League of Nations was established President Wilson submitted that i t was necessary to include in the Covenant provisions concerning the amendment of the constituent document. Accordingly Article 26 of the Covenant provided that amendments entered into force once they had been ratified by all members of the Council and by a majority of members represented in the Assembly of the League of Nations. This was a notable exception to the principle of unanimity, which generally governed voting in the Assembly 1 . The solution was theoretically based on the interpretation that the Covenant of the League of Nations was ius commune to all member Nations. During the existence of the League of Nations the amendment procedure was used as far as five articles of the Covenant were concerned. None of these amendments can be classified as of decisive importance for the development of the organization 2 . Seen against the background of the Covenant it was but natural that the Conference of San Francisco adopted a similar stance and that, consequently, Chapter X V I I I of the Charter of the U n i t e d Nations includes provisions for amendments to the Charter. Indeed, the opinions expressed prior to the adoption of the provisions for the amendment procedure reveal clearly enough the great hopes that existed among the delegates of the medium and small States. They had found themselves at the Conference faced w i t h a unanimous Great Power front in regard to the composition and voting methods of the Security Council; something that the smaller and medium States were rather reluctant to accept 3 . O n the insistence of the States opposed to the privileged 1 On the exceptions to the rule of unanimity see Bengt Broms , The Doctrine of Equality of States as Applied in International Organizations, 1959, 137—138 and 141—144. 2 Bengt Broms y Yhdistyneiden Kansakuntien peruskirjan muuttaminen, 1967, 319. 3 The situation culminated in the United States delegate, Senator Connally dramatically tearing up a copy of the proposed Charter and reminding the delegates of the small and

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position of the Great Powers in the Security Council, Article 109 received a wording that permits the convening of a general conference of the members of the United Nations for the purpose of reviewing the Charter at a date and place to be fixed by a two-thirds majority of the members of the General Assembly and by a vote of any seven members of the Security Council. Thus the exercise of the right of veto cannot alone prevent the convening of such a general conference. However, any alteration to the Charter recommended by the general conference shall take place only after i t has been ratified by a two-thirds majority of members of the United Nations, including all the permanent members of the Security Council. H a d such a conference not been held previously the matter was to be included in the agenda of the tenth session of the General Assembly 4 . I f the provisions on amendments to the Covenant and the Charter are compared, those concerning amendments to the Covenant turn out to be more flexible 5. This was the case w i t h regard to the ratification requirement and, for instance, provisions concerning the election of non-permanent members to the Council of the League of Nations, which could be amended by a two-thirds majority of the members of the Assembly. Furthermore, the Council of the League of Nations could, w i t h the consent of the Assembly, nominate new members to hold a permanent seat in the Council. I n this respect the election of non-permanent members as well as the number and names of permanent members of the Security Council have been mentioned in the Charter of the United Nations and any amendment has to be adopted in accordance w i t h the relevant provisions of the Charter. Nevertheless, by the time of the San Francisco Conference i t was widely believed that the permanent members of the Security Council would not w a n t to prevent amendments to the Charter which could be regarded as reasonable. A t this stage, however, there was no indication of the future worsening of the relations between the Great Powers, a fact which was likely to complicate efforts to strengthen the activity of the United Nations. The first proposals directed towards amending the Charter were optimistically presented already during the first session of the General Assembly 6 . Once these proposals had been defeated some further proposals were presented medium States that if they insisted on opposing the right of veto they would be guilty of the same behaviour; Senator Connally went on to say: "You may, if You so wish, go home from this Conference and say that You have defeated the veto. But what w i l l be Your answer when You are asked: "Where is the Charter?"; F. Ο. Wilcox , The Yalta Voting Formula, American Political Science Review, 1945, 954. 4 Article 109 (3) of the Charter of the United Nations. 5 On a detailed comparison of these provisions see Bengt Broms, (η. 2), 319—323. * United Nations General Assembly 1/2, First Com., 19th—23rd, 33rd and 42nd mtgs.

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during the second and t h i r d sessions of the General Assembly and many members expressed the hope that a general conference would be convened to consider a revision of the Charter in accordance w i t h Article 109 7 . After the failure of these proposals no further proposals to amend the Charter were made u n t i l the eighth session of the General Assembly. This was due to the conviction that the permanent members of the Security Council were not prepared to accept any amendments affecting their privileged position in the Security Council. Again the cold war increased their reluctance. M a i n l y owing to the provision of Article 109 (3), the matter of the revision of the Charter came up again during the eighth session of the General Assembly. Certain preparatory w o r k was decided on prior to the tenth session, as i t was believed that, in deciding upon the convening of the general conference, additional information regarding the activities of the United Nations would in itself prove beneficial 8 . I n accordance w i t h Article 109 (3), an item concerning the convening of the general conference was included in the agenda of the tenth session of the General Assembly. A majority of members felt, however, that the time was not right for this purpose and a lengthy debate resulted in Resolution 992 ( X ) whereby it was stated that the general conference would be arranged at a suitable time and whereby also a committee to prepare the conference was set up. During the next twelve years this preparatory committee reported either annually or semi-annually that the time was not ripe for the convening of the general conference and the matter was accordingly postponed. I n the meantime, however, specific proposals to increase the membership of the Economic and Social Council and the number of non-permanent seats in the Security Council resulted in 1963 i n amendments to the Charter, which were accordingly ratified. II. The Establishment of the Ad Hoc Committee on the Revision of the Charter of the United Nations The idea of a general review of the Charter had not been entirely forgotten, however, and once i t had been decided by the General Assembly i n 1967 that the above-mentioned preparatory committee need not meet annually anymore, the delegation of Colombia i n 1969 asked that an item on the revision of the Charter be added to the agenda of the General Assembly. This item was called "Need to consider suggestions regarding the review of the Charter of the 7 U N G A I I , First Com., 112th—115th mtgs; U N G A I I I , Suppl. No. 10, A/578; GAOR Res. 267 (III). 8 This preparatory work resulted in the publishing of the Repertory of Practice of United Nations Organs as well as in the publishing of the San Francisco documents with indexes.

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United Nations". When the item was taken up by the General Assembly i t became clear that the viewpoints on the issue were rather divided. As a result of this the General Assembly decided to ask the governments of member States to present their opinions to the Secretary-General of the U n i t e d Nations. When the matter was discussed t w o years later by the General Assembly it was again postponed for t w o years owing to the relatively few replies which had been forwarded by the governments 9 . When the General Assembly took up this item in 1974 i t was debated at great length. By this time 38 States had sent i n their replies to the SecretaryGeneral. These replies had included both statements expressing strong support for certain amendments to the Charter of the United Nations and statements expressing strong opposition to any proposal to amend the Charter. The Sixth Committee had received a report by the Secretary-General and the debate took place between 2 and 9 December 1974 10 . D u r i n g the debate the divisions of opinion became clear. O n the whole the non-aligned countries, including the majority of the Latin-American States, were strongly in favour of establishing a committee to study the issue. Some members of the Western group of States, notably I t a l y and Japan, shared this opinion. China was of the same opinion. The other permanent members of the Security Council were, however, strongly opposed to the establishment of a committee. They argued that the setting up of a committee was premature and that a decision could at least be held over t i l l the next session of the General Assembly, i f such a decision were to be reached at all. Eventually a draft resolution was presented by the Argentine 1 1 . This draft resolution provided for the establishment of an Ad Hoc Committee. The Soviet Union presented another draft resolution which was against the setting up of any committee 12 . Later the Soviet Union withdrew this draft resolution in favour of another draft resolution presented by Saudi Arabia 1 3 . I n accordance w i t h the last-mentioned draft resolution, the item was to be postponed t i l l the thirtieth session of the General Assembly and there was no mention of an Ad Hoc Committee. A f t e r a procedural vote on the order of voting, the Sixth Committee rejected the draft resolution presented by Saudi Arabia 1 4 . I n the final voting the original draft resolution presented by the Argentine was » Res. 2552 (XXIV) of 12 December 1969, 2697 (XXV) of 11 December 1970 and 2968 ( X X V I I ) of 14 December 1972. io A/9739. n U N Doc. A/C. 6/L. 1002. is U N Doc. A/C. 6/L. 1001. ι» U N Doc. A/C. 6/L. 1011. 1 4 The result of the voting was 60—50—17.

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adopted 15 . The General Assembly still debated the item. The report of the Sixth Committee was, however, adopted on 17 December 1974. I n the final voting the result was 82 States for, 15 against and 36 abstaining. Resolution 3349 ( X X I X ) includes a lengthy preamble in addition to the operative part. The first t w o paragraphs of the preamble include references to previous resolutions by the General Assembly 16 . I n accordance w i t h the third preambular paragraph, the General Assembly took note of the observations which were submitted by Governments in response to the inquiry made pursuant to Resolutions 2697 ( X X V ) and 2968 ( X X V I I ) and which had been set out in the reports of the Secretary-General. The fourth paragraph referred to views expressed by the member States on this issue during the consideration of the item at various sessions of the General Assembly, including the twentyfourth, twenty-fifth, twenty-seventh and twenty-ninth sessions. The last preambular paragraph reaffirmed the support of the General Assembly for the purposes and principles set forth in the Charter of the United Nations. This statement was considered as a gesture of compromise to reassure those who had expressed a fear that the establishment of the Ad Hoc Committee would lead to a complete revision of the Charter leading to chaos. By paragraph 1 of the operative part the General Assembly decided to establish an Ad Hoc Committee on the Charter of the United Nations, consisting of 42 members to be appointed by the President of the General Assembly w i t h due regard to the principle of equitable geographical distribution. The aims of the Committee were hotly debated. I n accordance w i t h paragraph 1 they were defined as follows: "(a) T o discuss in detail the observations received from Governments; (b) To consider any additional, specific proposals that Governments may make w i t h a view to enhancing the ability of the United Nations to achieve its purposes; (c) To consider also other suggestions for the more effective functioning of the United Nations that may not require amendments to the Charter; (d) To enumerate the proposals which have aroused particular interest in the Ad Hoc Committee." Resolution 3349 ( X X I X ) went on to invite Governments to submit or to bring up to date their observations pursuant to General Assembly Resolution 2697 ( X X V ) 1 7 . The Secretary-General was asked to submit to the Ad Hoc Committee his views i n the light of the experience acquired by the Secretariat 15

The result of the voting was 77—20—32. ι * The first paragraph refers to Res. 992 (X) of 21 November 1955 and 2285 ( X X I I ) of 5 December 19b/ concerning the procedure for the review of the Charter of the United Nations; the second paragraph refers to Res. 2552 (XXIV) of 12 December 1969, 2697 (XXV) of 11 December 1970 and 2968 ( X X V I I ) of 14 December 1972 entitled e Need to consider suggestions regarding the review of the Charter of the United Nations". 17 Paragraph 2 mentioned 31 May 1975 as a preliminary deadline.

6 GYIL 20

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in the application of the Charter. Furthermore, paragraph 4 included a request directed to the Secretary-General to prepare, for the use of the Ad Hoc Committee, an analytical paper containing the observations which had been presented by the Governments or which had been expressed by the States while this item had been discussed by the General Assembly. Finally, the Ad Hoc Committee was asked to submit its report to the General Assembly during its thirtieth session. I t was decided to include an item entitled "Report of the Ad Hoc Committee on the Charter of the United Nations" in the provisional agenda of that session. III.

The Session of the Ad Hoc Committee in 1975

Later the President of the General Assembly, after appropriate consultations, appointed the 42 members of the Ad Hoc Committee 1 8 . The Ad Hoc Committee met at the United Nations Headquarters from 28 July to 22 August 1975 19 . The Secretary-General submitted to the Committee two documents i n accordance w i t h General Assembly Resolution 3349 ( X X I X ) . These were an analytical paper containing the observations received from Governments pursuant to Resolutions 2697 ( X X V ) and 2968 ( X X V I I ) in addition to the above-mentioned resolution, and the views expressed at the twentyseventh and twenty-ninth session of the General Assembly 20 . The other document was one on the experience acquired by the Secretariat in the application of the provisions of the Charter 2 1 . The Committee devoted its 5th to 17th meetings to a general debate, during which 35 members made statements 22 . The debate reflected quite closely the basic attitudes that had been expressed by the member States previously i n 18 These were Algeria, the Argentine, Brazil, China, Colombia, Congo, Cyprus, Czechoslovakia, Ecuador, El Salvador, Finland, France, the German Democratic Republic, Germany (Federal Republic of), Ghana, Greece, Guyana, India, Indonesia, Iran, Italy, Japan, Kenya, Liberia, Mexico, Nepal, Nigeria, New Zealand, Pakistan, the Philippines, Poland, Rwanda, Sierra Leone, Spain, Tunisia, Turkey, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Venezuela, Yugoslavia and Zambia. 19 I t should be mentioned that all members of the A d Hoc Committee took part in its work. The Ad Hoc Committee elected the following officers: Chairman: Bengt H.G.A. Broms (Finland), Vice-Chairmen: Mario Aleman (Ecuador), Edward W. Blyden , III (Sierra Leone) and Bernhard Neugebauer (German Democratic Republic), Rapporteur: Lauro L. Baja , Jr. (the Philippines). 20 U N Doc. A/AC. 175/L. 2 and Corr. 1. 21 U N Doc. S/AC. 175 L. 3 and Corr. 1 and A/AC. 175/L. 3/Add. 1. 22 These were Algeria, the Argentine, Brazil, China, Colombia, Congo, Cyprus, Czechoslovakia, Ecuador, France, the German Democratic Republic, Germany (Federal Republic of), Greece, Guayana, India, Indonesia, Iran, Italy, Japan, Kenya, Mexico, New Zealand, Nigeria, the Philippines, Poland, Rwanda, Sierra Leone, Spain, Tunisia, Turkey, the Union of Soviet

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their comments or statements when the matter had been debated i n the Sixth Committee or the General Assembly. There were t w o different main lines of thought on the central problem of revising the Charter. Whereas some members regarded revision as liable to lead the organization into a state of chaos, there were other members who concluded the exact opposite. They said that i t was in the interest of the United Nations to develop the Charter to meet w i t h the requirements of the present time. What, then, were the arguments used by the opposing sides? Taking first the arguments presented in favour of amending the Charter, it is possible to conclude that the most popular argument was that t h i r t y years had passed since the Conference of San Francisco and that the w o r l d had undergone significant changes since then. Closely connected w i t h this view i t was argued that, whereas there were only 51 original members i n the organization, this number had nearly trebled since 1945. I n addition i t was often pointed out that the new members admitted to the United Nations had not had any share in the formulation of the constituent document 23 . I n opposition to these arguments there were members who drew from these facts the contrary conclusion, saying that the Charter had proved to be sufficiently elastic and i t had been on the basis of the present Charter that so many new States had been born. T o this i t was added that the willingness of so many new Nations to become members of the United Nations immediately after having gained their independence was by itself evidence of satisfaction w i t h the Charter 2 4 . A n important line of argumentation of the proponents of a Charter review stressed that the United Nations was nearing a point of stagnation, at least, and that it was therefore necessary to fight this trend by resolutely amending the Charter. Various reasons were given to underline the necessity of improving the constituent document. Foremost among the examples cited was the composition of the Security Council together w i t h the principle of veto. The fact that there were five permanent seats granted to the Great Powers together Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Yugoslavia and Zambia. A l l these statements are reproduced in an annex to the Report of the A d Hoc Committee, GAOR, X X X S ess., Supplement No. 33, A/10033, 5—107. 23 For instance, the delegate of China joined with those who pointed out that "since the Charter was formulated 30 years ago, tremendous changes have taken place in the world and that as the Charter can no longer reflect these changes in a number of respects, it is only natural that necessary revision should be made in the Charter on the basis of adherence to the purposes and principles of the Charter". Doc. A/10033, 10. 24 The delegate of the Soviet Union added that the newly independent States naturally wanted to play an active role in the United Nations but that the Charter gives them the necessary scope and unlimited opportunities for this purpose, ibid., 91.

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w i t h their privilege of veto was mentioned as being the prime cause for the inefficiency of the Security Council and, indeed, of the United Nations as a whole in the final instance. Among the strongest advocates of this view were numerous non-aligned States. A t this stage some States were satisfied to refer to their own older proposals without developing these any further 2 5 . The composition of the Security Council and the rules of procedure governing the vote-taking in the Council proved to be two of the most delicate problems. Indeed, these problems seemed to constitute some k i n d of a dividing line between the members of the Ad Hoc Committee. England, France, the Soviet U n i o n and the United States, supported by various other members, were very sensitive about the provisions of the Charter governing the work of the Security Council. Their argument was that it was neither the composition of the Security Council nor the right of veto that constituted the primary causes of the inability of the United Nations to function well. This was explained as being due rather to the unwillingness of the members to make full use of the Charter and to the lack of political w i l l to implement the resolutions by the organs of the United Nations. To begin to present proposals to change the composition of the Security Council as well as its voting procedure was viewed w i t h the utmost abhorrence by the above-mentioned Powers. These Powers asserted that attempts to revise the Charter " w o u l d merely result in 'confrontation' between large countries without giving the small ones any more special privileges than they already have" 2 6 . What, then, were the proposals to amend the rules governing the Security Council? I n the first place i t might be worth while pointing out that, even i f several speakers referred to the position of the permanent members of the Security Council as a feature which i n their opinion had been forced upon other delegates at the San Francisco Conference, there was no common belief that the permanent membership as such could be abolished, at least not in the near future. Accordingly, many members, even i f reluctantly, admitted that the present permanent members of the Security Council were f u l l y i n control of the situation as they were able to prevent any Charter amendment from entering into force should they so wish. Knowing this full well, the abovementioned four permanent members of the Security Council did not care to stress it. They only expressed the belief that the Ad Hoc Committee should fulfil its task b y consensus. 25

See, for instance, the statement by the delegate of the Philippines, ibid., 70. This was the wording used by the delegate of the Soviet Union, ibid ., 94. The delegate of the United States said that he continued to believe that the risks in any effort at comprehensive Charter review at this stage far outweighed the chances of accomplishment. He went on to conclude that there was a substantial risk to all if this matter was pressed at a time so clearly unfavourable, ibid., 100—101. 26

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The realization of the factual situation led the proponents of a revision of the Charter to stress that they d i d not want to change the position of the existing permanent members of the Security Council. I t was rather their opinion that some additional permanent seats ought to be created in order to obtain a better balance i n the composition of the Security Council. Accordingly, there was a concrete proposal to create t w o new permanent seats to be distributed between the countries representing the Afro-Asian and Latin American groups of States. This proposal was coupled w i t h the idea that the right of veto be established on a regional basis. Nigeria, which developed this line of thinking, proposed that one veto should remain to be exercised by Western Europe, Eastern Europe and Asia, respectively, and the privilege of veto be extended to the regional groups of Africa and Latin America. I n actual fact this proposal meant that of the present permanent members of the Security Council the United States, the Soviet Union and China would have continued as permanent members, but w i t h a new task of representing their regional groups, whereas it was apparently the intention of Nigeria that France and the U n i t e d Kingdom were to be replaced by the t w o new permanent members 27 . A variation of this proposal was put forward by the delegate of Sierra Leone, who also stressed the importance of permanent membership being established on a geographical basis. Thus, the seats could be redistributed in the same manner as in the proposal presented by Nigeria. However, should i t not be possible to deprive England and France of their permanent seats, then the possibility of adding t w o more permanent seats should be considered 28 . The African and Latin-American States were to determine who should have the veto power at any one time. Thus these t w o geographical groups of States were expected to apply some k i n d of rotation system w i t h i n their respective groups. The holder of the rotating permanent seat was, of course, to be entitled to the right of veto. Whereas the idea of permanent regional representation in the Security Council was apparently rather attractive to the members representing the African and Latin-American States, there were also other members, even w i t h i n these t w o groups, who expressed a certain scepticism. The delegate of Guyana, for one, stated the need for realism and maintained that there was no reason to believe that any of the present permanent members would like to have their right of veto tampered w i t h 2 9 . The same delegate, however, expressed his doubts also as to the feasibility of giving the right of veto to 27 Nigeria expressed the belief that this would be "an equitable and wise solution to the problem of the veto", ibid., 67. 28 With regard to the reasoning of Sierra Leone, which preferred the first-mentioned solution, see ibid., 78. 2 » Ibid., 37.

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more States. I n his opinion this would not create any greater degree of democracy in the decision-making process. H e added that "we might simply have more vetoes being cast and that's a l l " . A rather similar line of thinking was followed by the delegate of India, who pointed out that, although the veto system was clearly discriminatory, that was the price that had to be paid for the creation of the United Nations 8 0 . The proponents of the Charter review who adopted a more moderate approach drew attention to another alternative. They proposed that, while the composition of the Security Council could remain the same as now and while the permanent members would continue to have the right of veto, i t might be possible to l i m i t the use of this right either b y means of an amendment to the Charter or, should this not be an acceptable solution, b y means of a gentleman's agreement. By this agreement the permanent members were to promise not to make use of the right of veto in, for instance, matters concerning the admission of new members to the organization. I t should be mentioned that the most often quoted example as far as the misuse of the right of veto was concerned was just the case of admission to the organization 8 1 . As far as the amendment proposals concerning the Security Council were concerned, England, France, the Soviet U n i o n and the United States d i d not at this stage care to go into the details of the proposals. Their reply was rather a general unwillingness to consider any proposals which w o u l d have meant amendments to the Charter. They stressed, however, that the right of veto had always been a prerequisite for their participation i n the United Nations. They also argued that the right of veto had several times saved the organization from making grave political mistakes. The right of veto was, therefore, not to be abolished. There were certain other members who adopted a similar position 8 2 . The debate on the necessity of amending the provisions on the Security Council played a major role in the exchange of views. I t had clearly been one of the most important factors determining the general attitude of many of the members of the Ad Hoc Committee as far as the revision of the Charter 30 The delegate of India regarded the right of veto as the principal basis for the membership and co-operation of the Great Powers in the United Nations. He called the veto system a mixed blessing. On balance, in his opinion, the existence of the veto and the likelihood of its use had deterred a world war, but had moderated the search for realistic solutions to problems of breaches of peace, ibid., 40. 31 The delegate of New Zealand went so far as to regard the membership of the United Nations "primarily as a duty". Furthermore, the issue of membership ought in the opinion of this delegate to be subjected only to the criteria of statehood generally accepted in international law, ibid., 62. 32 See for instance the statements by the delegates of the German Democratic Republic, ibid., 32, and Poland, 73.

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was concerned. There were, however, several other amendment proposals presented by the proponents of the revision of the Charter, even i f several members stressed that they were not at this early stage of the w o r k prepared to make any specific proposals. Among the important proposals for amending the Charter there were proposals w h i d i concentrated on the peace-keeping machinery. I n this connection various members argued that there was a growing need to strengthen the United Nations b y making i t more effective in solving armed conflicts. The lack of agreements under Article 43 of the Charter was referred to in this context together w i t h the consequent ineffectiveness of the M i l i t a r y Staff Committee. Although these members were not so far prepared to present any detailed proposals, they stressed the importance of the peace-keeping role of the organization. I n reply to this criticism i t was proposed that, in this particular case, it would be most important to investigate all the means which existed on the basis of the present Charter before proposals for amendment were even considered 38 . Several members drew attention to the need to develop the machinery for the settlement of disputes. I n this connection attention was also drawn to the position of the International Court of Justice. Especially from the point of view of the peaceful settlement of disputes were voices now raised to argue the need. Here again the differences of opinion were centered around the necessity of amending the Charter. I n several statements i t was mentioned that there seemed to be a considerable distrust of the work of the International Court of Justice. This was likely to reflect in the reluctance to accept the optional clause in accordance w i t h Article 36 (2) of the Statute of the International Court of Justice 34 . While i t was generally recognized that a Group of Experts had just drafted a study of the structure of the United Nations system from the point of view of international economic co-operation, many speakers called attention to the need to reform the Economic and Social Council to enable i t to deal more effectively w i t h the tasks entrusted to i t 3 5 . I n this connection many members, representing mainly the non-aligned States, spoke warmly of the Declaration and the Programme of Action on the Establishment of a N e w International 33

See the statement by the delegate of New Zealand, ibid ., 61—62. See Bengt Broms , Yhdistyneet Kansakunnat, 1976, 530—537 and 549—559. 35 See Doc. E/AC. 62/9 including the study by the above-mentioned Group of Experts and the statement by the delegate of Iran, Doc. A/10033, 46. In this statement the overlapping of undefined mandates, confrontation between the United Nations organs and the Secretariat units, and the lack of a clear policy orientation and firm co-ordination have been mentioned as factors leading to the lack of power and mandate in the areas with which the Economic and Social Council is concerned. 34

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Economic Order as well as the Charter of Economic Rights and Duties of States as being important new steps to diminish the economic disparity between the haves and have-nots. The delegate of Mexico underlined i n this context that the Economic and Social Council should regain the function of a coordinating body accorded to i t i n the Charter of the United Nations 3 6 . The proponents of the Charter revision suggested in many statements that the Trusteeship Council had to the abolished or reorganized w i t h new tasks i n view of the rapid progress towards independence which had left the Trusteeship Council w i t h only a minimum of work. As far as the future position of the Trusteeship Council was concerned, there was a general feeling among the delegates of the need to do something. The main deterrent was again to be found i n the fear of some delegates that a reorganization could not be accomplished without amending the Charter. W i t h regard to the provisions on the Secretariat of the United Nations, some delegates regretted the fact that, in their opinion, the study prepared by the Secretary-General on these aspects did not include any specific proposals. N o r was it considered to include sufficient material to form an adequate basis for detailed proposals affecting the Charter. Many States drew attention to the so-called "enemy clauses" of the Charter. These clauses, they said, were obsolete in view of the fact that 30 years had already passed since the end of the Second W o r l d War and by now all the States which fell i n 1945 w i t h i n the category of "enemies" had become members of the U n i t e d Nations. I n this connection i t might be w o r t h while noting that, in addition to the statements by some of the losers in the Second W o r l d War, quite a few other members of the Ad Hoc Committee were of the opinion that the time was ripe to delete the reference to enemies and enemy States in Articles 53 and 107 of the Charter 3 7 . I t was, however, stated by several delegates that, in their view, the Charter was a historical document which should not be amended even in this respect 88 . 36

Doc. A/10033, 60. Mexico also suggested that Chapter I X of the Charter on international economic and social co-operation should be brought up to date by a series of elements approved by the international community in recent years. 37 In accordance with Article 53 (2) the term "enemy State" as used in para. (1) of Article 53 applies to any State whidi during the Second World War has been an enemy of any signatory of the present Charter. The provision of Article 107 is more important materially because it states that nothing in the present Charter shall invalidate or preclude action, in relation to any State which during the Second World War has been an enemy of any signatory to the Charter, taken or authorized as a result of that war by the Governments having responsibility for such action. 38 See, for instance, the statement by the delegate of Poland, Doc. A/10033, 72—73. On the other hand the delegate of New Zealand was of the opinion that there was no need, thirty years after the end of the Second World War, to retain references to enemy States

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The main arguments of those members opposed to any Charter amendments have already been mentioned. They boiled down to the standpoint that not a single amendment was necessary. I f there was anything to be done at all it would, in the opinion of these States, have to be something which d i d not affect the text of the Charter. I n a way an approach like this is surprisingly firm. I t has to be seen as an indication of the fear that even a minor amendment of the Charter was seen as a harmful step leading possibly to further demands for amendments. I t d i d not help to refer to the fact that the Charter had been amended previously. The four Great Powers were adamant. Towards the end of the session this controversy resulted in a situation where there was no unanimity about the continuation of the work of the Ad Hoc Committee. During the closing debate there was no agreement on giving any recommendation i n this respect. Therefore, the report of the Ad Hoc Committee included merely a statement that many members of the Committee were of the opinion that the General Assembly should allow the Committee to continue its w o r k next year. The next session should be sufficiently long and summary records should be provided 3 9 . According to the following sentence some members opposed this opinion. IV .

The Establishment of the Special Committee on the Charter of the United Nations and the Strengthening of the Role of the Organization As the report of the Ad Hoc Committee thus differed from the usual practice in a case where an Ad Hoc Committee had not been able to conclude its w o r k owing to the lack of time, and as there was no recommendation about the continuation of the work, the Sixth Committee could only base its decision on the views of individual members participating i n the debate when the item about the report of the Ad Hoc Committee came up. There was, however, one interesting development which gave a new impulse to the idea of continuing the work that had been based on Resolution 3349 ( X X I X ) . I t has been mentioned above that the Ad Hoc Committee was limited to 42 members. The Socialist States had been allotted five members w i t h the result that this time Rumania had not been elected by the group. Rumania had been very interested in the subject matter and later she submitted to the General which have now become members of the United Nations in good standing, in some cases leading members, ibid 64. 39 Doc. A/10033, 4. The reference to the summary records was due to the fact that as summary records had not been mentioned by Resolution 3349 (XXIX) establishing the Ad Hoc Committee, the Secretariat had not provided them, thus following the normal practice. There had been some complaints about this omission.

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Assembly a letter wherein her position was clarified 40 . O n the initiative of Rumania the General Assembly had already in 1972 included on the agenda an item called "Strengthening of the Role of the United Nations w i t h regard to the maintenance and consolidation of international peace and security, the development of co-operation among all nations and the promotion of the rules of international law in relations between States" 41 . This item was allocated to the Sixth Committee b y a letter dated 19 September 1975 from the President of the General Assembly addressed to the Chairman of the Sixth Committee 4 2 . The Sixth Committee decided to consider this item together w i t h the item concerning the report of the Ad Hoc Committee on the Charter of the U n i t e d Nations. This was undoubtedly correct because the Rumanian proposal included a suggestion that a special commission be established to investigate matters which belonged also to the mandate of the Ad Hoc Committee. As Rumania, however, also supported the continuation of the mandate of the Ad Hoc Committee there would have been overlapping tasks. When supporting the continuation of work by the Ad Hoc Committee Rumania put forward the idea, too, that the membership of this Committee should be increased. During the debate i t became clear that it was generally felt that there was no reason to have t w o bodies for substantially similar tasks. As Rumania eventually announced that she would not object to a solution whereby the Ad Hoc Committee or its successor would be the only organ to be established — w i t h the condition that Rumania became one of the members of this Committee — this was regarded as the best solution. What, then, did Rumania propose? I n her proposal i t was stressed that Rumania was keenly interested in the strengthening of the role of the United Nations. Regardless of success in many important tasks during the last 30 years the United Nations had not been able to solve all the problems that belonged to it. I n the opinion of Rumania the structure of the United Nations no longer conformed w i t h the political and economic changes that had occurred in the w o r l d since the end of the Second W o r l d War. The new realities should be reflected in the Charter of the United Nations. The Charter should condemn colonialism, neo-colonialism, racism and apartheid. Furthermore, the Charter should eliminate all inequalities between the States. The United Nations should also do more to develop international relations. As a means towards this end Rumania proposed the establishment of a universal code of conduct concerning the rights and duties of States. Also Rumania proposed that the General Assembly should establish a permanent commission to deal w i t h international 40 U N Doc. A/C. 6/437. « Item 29. 42 U N Doc. A/C. 6/434.

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conflicts. The membership of this commission was to be open to all interested members of the organization. Especially i n so far as the position of the General Assembly was concerned Rumania suggested that the role of the General Assembly be strengthened in so far as disarmament was concerned. Further special sessions of the General Assembly to deal w i t h specific questions should be arranged and the working methods of the General Assembly should also be improved. W i t h regard to the Security Council, Rumania thought that i t was necessary to increase the number of members of this organ so i t could better safeguard the interests of the small and medium States 48 . I t was natural that the decision to combine the t w o items led to a debate which produced substantially more material than would have been the case i f the debate had concerned proposals that w o u l d simply have meant a revision of the Charter. The Rumanian proposal was greeted w i t h satisfaction apparently because both the proponents of the Charter revision and their opponents considered i t beneficial for their o w n purposes, although their motives differed. As far as the proponents were concerned, Rumania had stressed the importance of reviewing the Charter as a whole and the Rumanian proposals had also included several new suggestions which were found to be of interest no matter whether they would eventually require amendments to the Charter or not. From the point of view of the opponents of any Charter revision, these proposals widened the scope of w o r k of the Committee i n charge and i t was probably felt that such a widening might presumably open up new alternatives i n a situation which was otherwise nearing a deadlock. I n this connection i t should be remembered that during the final meetings of the Ad Hoc Committee the proponents of the Charter review had indicated their preparedness to let the question of the continuation of the work of the Committee be put to a vote should i t t u r n out to be necessary. The debate i n the Sixth Committee concentrated mainly on the issue whether or not to continue the w o r k of the Ad Hoc Committee. I n this connection the widening of the mandate of the Committee was also considered. There was no basic change i n the previously adopted attitudes of the delegations. This time, however, a considerable majority of those who participated i n the debate made i t abundantly clear that, in their opinion, the w o r k which had only just begun must go on. The views of France, England, the Soviet U n i o n and the 43 These and several other suggestions appear in an annex to Doc. A/C. 6/437 of 3 November 1975, entitled "Romania's position on the improvement and democratization of the activities of the United Nations and the strengthening of its role in achieving co-operation among all States without distinction as to social system, in building a more just and a better world, and in securing a durable peace". The over-all position of Rumania is also reflected in documents A/31/51, A/9128, A/9695, A/PV. 2086, A/PV. 2307, A/PV. 2363 and A/C. 6/SR. 1563.

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U n i t e d States u n d e r w e n t a s l i g h t s h i f t . T h e y r e m a i n e d s t r o n g l y o p p o s e d t o a general revision o f t h e C h a r t e r , b u t this t i m e t h e y let i t be u n d e r s t o o d t h a t t h e y were p r e p a r e d t o consider other suggestions t o strengthen t h e role o f t h e United

Nations

if

such suggestions

did

not

require

amendments

to

the

C h a r t e r 4 4 . A c c o r d i n g l y , these States d i d n o t m a k e a n y c a t e g o r i c a l r e f u s a l t o p a r t i c i p a t e i n the c o n t i n u e d w o r k o f the C o m m i t t e e , a l t h o u g h there w a s n o sign o f enthusiasm i n t h e i r n e w approach either. N o t a b l e a m o n g t h e o t h e r supporters o f this v i e w were m o s t members o f the Socialist g r o u p o f States. I n t h i s g r o u p Y u g o s l a v i a i n a d d i t i o n t o R u m a n i a was o f the o p i n i o n t h a t t h e Ad Hoc C o m m i t t e e h a d an i m p o r t a n t role t o p l a y i n the m o d e r n i z a t i o n o f t h e U n i t e d N a t i o n s . E v e n m i n o r amendments t o the C h a r t e r w e r e r e g a r d e d as acceptable b y Y u g o s l a v i a 4 5 . T h e g r o u p o f L a t i n A m e r i c a n States w a s this t i m e perhaps even m o r e s t r o n g l y t h a n ever i n f a v o u r o f a r e v i e w o f t h e C h a r t e r . T h e members o f t h i s g r o u p stressed i n t h e i r statements the f a c t t h a t the C h a r t e r w a s , i n o p i n i o n , o u t m o d e d a n d i n need o f a m e n d m e n t s 4 8 . N e a r l y

a l l the

their

African

States stressed also the i m p o r t a n c e o f b r i n g i n g the C h a r t e r u p t o d a t e 4 7 . T h e A r a b States were s o m e w h a t d i v i d e d . S a u d i A r a b i a a d o p t e d a v e r y c a u t i o u s a t t i t u d e whereas A l g e r i a s t r o n g l y s u p p o r t e d a r e v i e w o f the C h a r t e r . A m o n g 44 The statement by the United States concluded as follows: "There is clearly much to be done in the field of dispute settlement and prevention, and much to be done in terms of making the United Nations system more effective. We must seek to accomplish as much as is humanely possible within the existing Charter before distracting ourselves with more ambitious and less likely schemes involving amendments to the Charter". Press Release USUN148 (75), November 14, 1975, 4. The statement by the Soviet Union included a reference to what had been said by A. A. Gromyko, Minister of Foreign Affairs of the USSR, on 23 September, 1975, during the general debate in the plenary session of the General Assembly. I t was in part as follows: "The Charter is the foundation of the entire structure of the United Nations. It has stood the test of time, and fully retains its significance for the future. I t is in the strict observance of the Charter, rather than in its revision, that one should look for resources for the further enhancement of the effectiveness of the United Nations and the strengthening of its authority" (A/PV. 2357). The statement ended, however, w i t h a mention of several topics that could be considered as measures contributing to the strengthening of the United Nations and to increasing its prestige and authority. These included disarmament, above all nuclear disarmament; convocation of a World Disarmament Conference; non-use of force in international relations and the prohibition for all time of nuclear weapons; making the definition of aggression mandatory; final and complete elimination of colonialism, racism and all forms of racial discrimination; and further development of equal economic, commercial, scientific, technical and cultural relations among States. Press Release 191 of 18 November 1975. 45 As to the view taken by Yugoslavia see Feodor Starcevic , The United Nations and Revision of the Charter, Review of International Affairs (Yugoslavia) X X V I I , 1976, 20. 46 Opinions following this trend were put forward among others by the Argentine, Colombia, Ecuador, Guatemala, Guyana, Nicaragua, Peru, Uruguay and Venezuela. 47 Among those who spoke in this way were Benin, Chad, the Congo, Madagascar, Nigeria, Senegal and the Sudan.

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the Western group of States rather few members spoke in favour of a Charter review. Such members included, among others, Greece and Spain. I t a l y took a moderate view in declaring its readiness to accept in particular such amendments as concerned the methods of procedure. The Federal Republic of Germany adopted a rather similar stance by saying that the basic principles of the United Nations should not be amended even i f the role of the United Nations could be otherwise strengthened. Most members of the Western group were cautious and tended to recommend changes which would not affect the Charter. Their opinion was that the Charter should only be touched once there was a fair consensus to do so. Well before the end of the general debate in the Sixth Committee it became apparent that the w o r k of the Ad Hoc Committee was to be continued. Simultaneously there was a general understanding that the Ad Hoc Committee could be replaced by a Special Committee because it seemed probable that the work w o u l d require several years. This was especially the case once the Rumanian initiative was combined w i t h the mandate of the Ad Hoc Committee. N o w there was no opposition and by Resolution 3499 ( X X X ) the General Assembly decided on 15 December 1975 that the Ad Hoc Committee established pursuant to General Assembly Resolution 3349 ( X X X I X ) should be reconvened as the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization and should continue its w o r k in pursuance of the tasks w i t h which it was now entrusted. I n accordance w i t h para. (1) of the operative part of the resolution the tasks of the Special Committee were threefold. By subpara, (a) the Special Committee was to examine in detail the observations received from Governments concerning (I) Suggestions and proposals regarding the Charter of the United Nations and ( I I ) The Strengthening of the role of the United Nations w i t h regard to the maintenance and consolidation of international peace and security, the development of co-operation among all Nations and the promotion of the rules of international law in relations between States. According to subpara, (b) the Special Committee was expected to consider any additional specific proposals that Governments may make w i t h a view to enhancing the ability of the United Nations to achieve its purposes. By subpara, (c) the Special Committee had to list the proposals put forward in the Committee and to identify those which had awakened special interest. I n accordance w i t h para. (2) of the operative part the General Assembly requested the Committee to examine the proposals which had been made or were to be made w i t h a view to according p r i o r i t y to the consideration of those fields w i t h regard to which general agreement was possible. Following the compromise which had been reached in view of the Rumanian proposal t o establish a new organ the General Assembly decided by para. (3)

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to enlarge the Ad Hoc Committee by the addition of five new members. These new members were mentioned already i n the resolution and they were: Barbados, Belgium, Egypt, I r a q and Rumania. Thus the Special Committee has 47 members in all. The resolution went on to invite Governments to continue the submission of, or to bring up to date, their observations and proposals i n accordance w i t h para. (1) of the operative part of the resolution. From the practical point of view para. (5) included a very important provision i n so far as the Secretary-General was requested to prepare for the use of the Special Committee a study to complement those submitted pursuant to General Assembly Resolutions 3073 ( X X V I I I ) of 30 November 1973 and 3349 ( X X I X ) of 17 December 1974. This study was to present analytically the views expressed by Governments w i t h respect to the various aspects of the functioning of the United Nations, including those relating specifically to the Charter. The Secretary-General was also asked to render all necessary assistance to the Special Committee, including the preparation of summary records of its meetings. The Special Committee was requested to submit its report to the General Assembly at its thirty-first session. I n accordance w i t h the last paragraph of the resolution the General Assembly decided to include i n the provisional agenda of its thirty-first session an item entitled "Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization". V.

The Session of the Special Committee

in 1976

The Special Committee met at the U n i t e d Nations Headquarters from 17 February to 12 March 1976. A l l members of the Special Committee participated i n its work. A t the first meeting the Special Committee elected its officers, who were i n fact the same persons w h o had been elected to the bureau by the Ad Hoc Committee. The Secretary-General distributed to the members of the Special Committee an analytical study in accordance w i t h General Assembly Resolution 3499 ( X X X ) 4 8 . Another document which was presented to the members of the Special Committee contained the observations submitted by Rumania pursuant to the above-mentioned resolution 49 . The session of the Special Committee continued w i t h a general debate that lasted from the 4th to the 12th meeting. This time only 19 members of the Committee made a statement 50 . The first speaker i n the general debate was the delegate of Rumania w h o dealt first w i t h the background of Rumania's « U N Doc. A/AC. 182/L. 2 and Corr. 1. « U N Doc. A/AC. 182/L. 3. 50 These were Rumania at the 4th meeting, the United Kingdom at the 5th meeting, Turkey and the German Democratic Republic at the 6th meeting, Egypt, France and the United States

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interest in the subject matter. After this his statement included references to the most important matters requiring attention. These included first a proposal to broaden the powers and competence of the General Assembly, including decision-making procedures, and to encourage participation by and contributions from all members in the discussion and the solution of the problems considered and to enhance the prestige and role of the General Assembly in the solution of disputes and the prevention of international conflicts 51 . Rumania proposed also that the membership of the Security Council be increased. I t is worth noticing that Rumania did not propose the establishment of any new permanent seats. Furthermore, Rumania considered that i t was essential to retain the right of veto, although i t was pointed out that undue use should not be made of the right of veto simply in order to further the interests of a few countries at the expense of the general interests of peace. The right of veto should only be used in special situations and exceptional cases i n order to uphold international security and the interests of all peoples and to safeguard peace. Rumania reminded the members also of the proposal to prepare and adopt a universal code of conduct to promote the rules of international law in relations between States 52 . I n conclusion Rumania expressed the belief that by the adoption of Resolution 3499 ( X X X ) the work on the Charter and the strengthening of the role of the organization had now entered a new phase characterized by a new spirit and atmosphere of constructive dialogue 53 . During the general debate several speakers paid attention to the Rumanian statement which led to an exdiange of views w i t h further clarifications by Rumania. O n the whole the Rumanian approach was found interesting, especially as it included concrete proposals. The other proponents of the review of the Charter continued to support their previous suggestions, although some

at the 8th meeting, Belgium and Poland at the 9th meeting, the Soviet Union at the 11th meeting, and Liberia, Czechoslovakia, Venezuela, Greece, China, Yugoslavia, Iran and Cyprus at the 12th meeting. These statements are to be found in the summary records of the Special Committee, Doc. A/AC. 182/SR. 4—12. si Doc. A/AC. 182/SR. 4, 2—5. 52 According to the statement of the Rumanian delegate this code of conduct would lead the United Nations to play an increasingly important role in the consideration and solution of the real issues of the contemporary world, such as the elimination of under-development, the establishment of a new economic order, the achievement of general disarmament and the promotion and generalization of new and democratic international relations, U N Doc. A/AC. 182/SR. 4, 4. 53

Further, the delegate of Rumania added that the adoption of the said resolution had created a suitable framework for a joint and concerted effort on the part of all who wished to make a contribution by laying the groundwork for an auspicious beginning to the work of the Special Committee. The time had come to move beyond the stage of theoretical and abstract discussions and begin considering concrete measures.

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e n t i r e l y n e w proposals w e r e also m a d e 5 4 . Members w h o h a d i n the past recomm e n d e d t h a t w i d e - r e a c h i n g amendments t o the C h a r t e r be a d o p t e d h a d n o w t a k e n a seemingly m o r e cautious a t t i t u d e . Several o f t h e m stressed t h e i m p o r tance o f progressing o n t h e basis o f consensus a n d c o n t i n u e d dialogue. T h e m a i n emphasis was n o w l a i d o n v a r i o u s measures t o enhance the role o f the U n i t e d N a t i o n s . Whereas amendments t o the C h a r t e r were t o be c o n s t a n t l y s u p p o r t e d s h o u l d t h e y p r o v e t o be necessary, there was a t r e n d t o u n d e r l i n e t h e fact t h a t such a m e n d m e n t s s h o u l d n o t lead t o a c o m p l e t e reassessment o f t h e v a r i o u s m a i n organs o f t h e U n i t e d N a t i o n s 5 5 . A m o n g t h e p e r m a n e n t members o f the S e c u r i t y C o u n c i l the delegate o f C h i n a was t h e o n l y one t o stress the need t o r e v i e w the C h a r t e r . T h i s was necessary, i n the o p i n i o n o f C h i n a , " w i t h a v i e w t o changing the u n j u s t i f i a b l e s i t u a t i o n o f s u p e r - P o w e r m a n i p u l a t i o n o f the U n i t e d N a t i o n s a n d i m p l e m e n t i n g the p r i n c i p l e o f t h e e q u a l i t y o f a l l States" 5 ®. T h e delegate o f F r a n c e p a i d great a t t e n t i o n t o t h e R u m a n i a n

statement

w h i c h was c a l l e d " t h e m o s t exhaustive synthesis o f t h e concepts w h i c h s h o u l d serve as guidelines f o r t h e O r g a n i z a t i o n a n d h a d t h e m e r i t o f s i t u a t i n g t h e debate o n its p r o p e r l e v e l , t h a t o f the g l o b a l c o n c e p t i o n o f the place o f t h e O r g a n i z a t i o n i n the c o n t e m p o r a r y

w o r l d " 5 7 . T h e delegate o f France

said,

h o w e v e r , t h a t a l t h o u g h he c o u l d agree w i t h a n u m b e r o f the elements i n t h e 54 See, for instance, the statement by Liberia, which was delivered by a former President of the General Assembly, Mrs . Angie Brooks-Randolph . In this statement proposals for amendment extended to cover, among other provisions, the Preamble to the Charter and Art. 2 (7) of the Charter. Further, new proposals in this statement included one to establish a world board of arbitrators and a world panel of mediators, a peace force established in sudh a way that its loyalty would rest solely with the United Nations, as well as the establishment of a new method of financing, U N Doc. A/AC. 182/SR. 12, 2—4. 55 Thus the delegate of Italy said that the Charter was still valid as a basic document governing peaceful relations between States. Therefore, the fundamental lines of the Charter, including the balance of power between the General Assembly and the Security Council, together with the essential structural lines of those bodies, should not be changed. Italy was prepared to consider possible improvements. A l l such improvements would not involve changes in the rules of the Charter, for much could be achieved through procedural and practical adjustments. The Italian delegate added that a comprehensive reappraisal might moreover show that in many cases it was rather the attitude of member States towards existing rules that should be reconsidered. The Special Committee should determine whether that was so by carrying out a thorough study, which would also reveal possibilities that existed in the Charter but had not yet been used to the full, U N Doc. A/AC. 182/SR. 7, 2. 56 The delegate of China went on to say that it was a just demand by the medium-sized and small countries that had led to the adoption of General Assembly Resolutions 3349 ( X X I X ) and 3499 (XXX) and to the establishment of the Special Committee. She added that "however, the super-Powers mortally feared review of the Charter and were doing their utmost to resist the trend. Practically every constructive proposal placed before the Special Committee in the past 10 days had met with obstruction from the super-Powers." Doc. A/AC. 182/SR. 12, 27. On the reply by the delegate of the Soviet Union, see ibid ., 14. 57 U N Doc. A/AC. 182/SR. 8, 3.

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study presented by Rumania, he could not approve of its general philosophy. After warning against radical changes, the French delegate's statement went on to say that the Special Committee should make a detailed and systematic study of the role of the U n i t e d Nations i n the contemporary world. The new economic order was mentioned as one of the examples for topics that were to be faced. O n behalf of the U n i t e d States a warning was similarly given against a review of the Charter. Such a review was not regarded as a useful or productive exercise but rather as one which might maximize areas of disagreement and harden positions, thus hindering the flexible development of the United Nations, and might also lead to the dissipation of the Committee's energies i n fruitless controversy 58 . The statement went on to say that the United States had agreed to join i n the consensus on Resolution 3499 ( X X X ) out of respect for a genuine effort to conciliate different views, because i t was w i l l i n g to examine ways and means of strengthening the United Nations on which general agreement was possible and because i t was felt that there might be useful work that could be done in those areas. The delegate of the Soviet Union stressed that the Soviet Union stood firmly behind its position of supporting a greater role for the United Nations. I n so far as the revision of the Charter was concerned the Soviet position of principle remained unchanged. H e stated, however, that the discussions i n the Special Committee were gradually becoming constructive now that the basic thrust of delegations was directed towards the problem of enhancing the effectiveness of the U n i t e d Nations 5 9 . The statement of the United Kingdom included several references to the Rumanian statement. The Rumanian initiative i n keeping alive the subject of strengthening the role of the United Nations i n previous years was praised, although the United Kingdom could not agree w i t h all the Rumanian proposals. Among these especially the peaceful settlement of disputes was found to be a suitable topic for further study 6 0 . The statements of the last-mentioned permanent members of the Security Council were rather similar in so far as all of them indicated a willingness at least to consider proposals for strengthening the role of the United Nations. Simultaneously their grave suspicions were still manifest in so far as proposals for a review of the Charter were concerned. I n comparison w i t h their position at the end of the session of the Ad Hoc Committee a little over six months earlier the tone of these statements had shifted towards finding a compromise se U N Doc. A/AC. 182/SR. 8,6. se U N Doc. A/AC. 182/SR. 11, 2—5. eo U N Doc. A/AC. 182/SR. 5, 2—3.

7 GYIL 20

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line stressing the importance of the strengthening of the role of the organization at the expense of the review procedure. Even before the general debate was concluded the Special Committee decided on 2 M a r d i 1976 to establish an open-ended W o r k i n g Group whose officers were the same as those of the Committee. The W o r k i n g Group was asked to carry out the task entrusted to the Special Committee by paras. 1 (a), (b) and (c) and para. 2 of Resolution 3499 ( X X X ) , on the basis of the SecretaryGeneral's above-mentioned analytical study, which reflects the views, suggestions and proposals submitted by Governments. N o delegation was, however, precluded from submitting any other proposals w i t h i n the mandate of the Special Committee. The Working Group devoted eight meetings to the first reading of the analytical study. The study consists of 144 paragraphs and paragraphs 4 to 42 were covered. There are t w o main sections in the study. Section I includes views of a general nature and it is divided into subsection A , which deals w i t h the role of the United Nations in the present-day world, and subsection B, dealing w i t h the strengthening of the role of the U n i t e d Nations 6 1 . Section I I is more extensive and it deals w i t h views expressed w i t h respect to the various aspects of the functioning of the United Nations, including those relating specifically to the Charter. This section is divided into subsections A - G . The Working Group could only discuss subsection A , dealing w i t h the maintenance of international peace and security. Even here only the first part of the subsection including general remarks was fully covered 62 . I n the course of the examination Rumania, Colombia, Mexico, Cyprus and the Philippines submitted working papers containing suggestions, observations and concrete proposals for consideration 63 . I n the Working Group members expressed their comments on 28 of the first 42 paragraphs of the analytical study. These comments are briefly presented in the report of the Working Group which has been annexed to the report of the Special Committee 6 4 . Following the normal practice of the United Nations legal bodies the comments are not attributed to the particular dele€1 Sub-section Β has been divided in the following way: 1. General observations. Attitude of Member States. 2. The Charter in its historical, legal and political perspective. 3. The Charter and the present conditions of international relations. 62 The other sub-sections of section I I are: B. Means, methods and procedures for the peaceful settlement of disputes. C. Economic and social questions. D. Decolonization. E. Rationalization of existing procedures. F. Administrative, financial and other aspects of the functions of the United Nations. G. Other matters. 63 These working papers were circulated under the symbol numbers A/AC. 182/L. 4, L. 5, L. 6, L. 7 and L. 9. I t was later decided that the working papers would not be annexed to the report of the Special Committee. 64 See Doc. A/31/33, 6—30.

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gâtions. This has always been regarded as a good procedural solution leading to a frank exchange of views. O n the whole one might conclude, however, that these preliminary comments followed in the main the same lines that the particular delegations concerned had pursued earlier. The working papers now went somewhat further than the previous comments by the same States and some of them included detailed proposals on certain articles of the Charter 6 5 . The report of the Working Group was put to the Special Committee, which had a short exchange of views on this report. I t was then annexed to the report to the General Assembly. I n presenting its report the Special Committee explained that there was a widespread view that progress had been achieved in the work on the basis of its mandate, although the mandate had not been completed 66 . I t was further stated that many delegations supported the renewal of the mandate and that there were other delegations which were not prepared to support the suggestion at this time 6 7 . VI.

The Debate in the General Assembly in 1976

The Sixth Committee debated item 110, the report of the Special Committee, between 11 and 22 November 1976. Almost 80 speakers participated in the general debate which was held between 11 and 19 November. A l l permanent members of the Security Council followed their previous statements. Most of the non-aligned members spoke in favour of a Charter review. A notable exception was formed by the Arab group of States, which was divided. While Saudi Arabia suggested that it was wiser to refrain from amendments to the Charter, Egypt, for instance, took the opposite view. The delegate of Egypt went so far as to argue that the main task of the Special Committee was to complete a revision of the Charter, because to leave the Charter untouched was, in the opinion of Egypt, in contradistinction w i t h current international l a w 6 8 . Members of the Latin-American group of States often underlined that the work of the Special Committee was now progressing well and that the mandate had to be continued. I n these statements amendments to the Charter were generally favoured 6 9 . Provisions on the new economic order were also pro65 See, for instance, the working paper by Colombia which concentrates on amendments to Articles 4, 18 (2), 27, 53, Chapter X I I I and Articles 97, 99, 106, 107 and 109 (3). Doc. A/31/33, 4. 67 Some of the last-mentioned delegations had referred to the lack of time to obtain instructions in regard to this. 68 See Press Release GA/IV1837, 7. 69 For instance, Colombia, Mexico, Nicaragua, Panama and Peru considered amendments to be necessary as far as the Security Council was concerned.

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posed by this group as well as amendments either to renew the Trusteeship Council or to bring its w o r k to an end. A majority of members belonging to the Western group was of the opinion that measures which would not signify amendments to the Charter were to be favoured. This attitude followed basically the views of France, the Soviet Union, the United Kingdom and the United States. Some members, notably I t a l y and Japan, let i t be understood, however, that they might also consider certain amendments to the Charter. The German Federal Republic joined the sponsors of the draft resolution to renew the mandate of the Special Committee but explained that as a member of the Special Committee i t would rather present proposals at the session of the Special Committee 7 0 . Among the Socialist States the attitudes had not basically changed. Poland remained very reserved, although she no longer opposed a renewal of the mandate. Yugoslavia adopted a compromise line by saying that many provisions of the Charter were ripe for amendment. Yugoslavia was satisfied w i t h the present spirit that existed in the Special Committee 7 1 . The recent cases of the use of veto in the Security Council concerning the membership applications of Angola and the Democratic Republic of Vietnam were severely criticized by many members of the African and Asian group of States. This led to a proposal to l i m i t the right of veto so as to exclude applications of membership. The strengthening of the new economic order was also stressed by insisting that provisions on this order be incorporated into the Charter. After the general debate had ended, the Sixth Committee adopted by consensus a draft resolution which was co-sponsored by 62 members 72 . This draft resolution was adopted by consensus also b y the General Assembly on 29 November 1976. I n accordance w i t h para. 2 of the operative part i t was decided to renew the mandate of the Special Committee w i t h reference to the mandate included in Resolution 3499 ( X X X ) . Governments were again asked to submit new comments and proposals or to bring up to date their previous observations. The Secretary-General was asked to provide the Special Committee w i t h assistance at its forthcoming session. The Special Committee was asked to report to the General Assembly at its thirty-second session. The item

70

Certain other members of the Special Committee adopted a similar stand explaining that in this way those States whidi were not among the members of the Special Committee would have a better opportunity to present their views and proposals during the ongoing debate in the Sixth Committee. 71 Yugoslavia mentioned the work of the Economic and Social Council as well as the peaceful settlement of disputes as examples of fields wherein progress could be made. 72

Doc. A/C. 6/31/L. 6.

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concerning the report was added to the preliminary agenda of the t h i r t y second session. VII .

Conclusions

The Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization is scheduled to meet at the Headquarters of the United Nations between 14 February and 11 March 1977. I n numerous statements made during the general debate i n the Sixth Committee i t was stressed that the method adopted by the Special Committee at its first session was the right one. Accordingly, there was a general understanding that the Special Committee should now complete the first reading of the analytical study prepared by the Secretary-General and then list the proposals made i n the Special Committee and identify those which have awakened special interest. This is not the time to present any prognosis of the coming events and of the final results of a work which might continue for a long time yet. I n any case i t seems correct to say that the atmosphere, in so far as this issue is concerned, became much better towards the end of 1976. A t least some of the fears expressed at the outset of the w o r k of the Ad Hoc Committee i n 1975 have proved to be unfounded. A l l members of the Special Committee have let i t be understood that they do not want to be destructive and that they do understand that amendments to the Charter require consensus and that, for the time being at least, such a consensus does not exist. Therefore, the search must go on to find the necessary elements of a generally acceptable solution. Again, i t seems as i f on the one hand the proposals for Charter review are not as radical as had been feared by some delegations, at least when the matter was first taken up by the General Assembly. Similarly, on the other hand, the proponents of Charter amendments have now noticed that the four permanent members of the Security Council, which have often been singled out here, are interested i n the development of the United Nations in such a way that i t w i l l be better able to cope w i t h increasing criticism. A common denominator is surely to be found in the interest of the organization itself to fulfil all its tasks as efficiently as possible 73 . The task ahead of the Special Committee and the General Assembly is a delicate one. I t is made difficult not so much by legal problems as by the necessity to find political compromises that would be generally acceptable. 73 This goal was stressed in several explanations of the manner of voting given after the General Assembly had adopted the resolution renewing the mandate of the Special Committee. This was a view expressed, for instance, by Byelorussia, France, Poland, the Ukraine and the Soviet Union. Colombia, Mexico, Rumania and Spain underlined in their explanations their satisfaction with the progress made in the Special Committee, which had been reflected in the consensus.

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Should the opposition to amending the Charter continue to be as strong as it is now, it should nevertheless be remembered that, in so far as the strengthening of the role of the United Nations is concerned, there are also other means available. Let i t suffice to refer to those provisions of the Charter which have not been made f u l l use of as yet. Arrangements complementing the peaceful settlement of international disputes and peace-keeping, to mention but two examples, could be resorted to without amending the Charter. To take up another alternative solution, reference might be made to the proposal to l i m i t the right of veto so as not to cover the admission of new members. The well-known interpretation of not regarding an abstention from voting in the Security Council as equal to the use of the right of veto provides a precedent. Assuming that the prerequisite consensus w i l l one day be reached, a series of gentleman's agreements could also solve disputes concerning the admission of members. One could also argue validly that i f there are provisions in the Charter which have ceased to have any application, as presumably may one day be the case regarding provisions governing the Trusteeship Council, the disputed issue would not be so grave because the provisions themselves would have fallen into disuse. Perhaps in this situation their abolition becomes acceptable, too. I n this connection one should remember also that the General Assembly may establish new subsidiary organs in accordance w i t h Article 22 of the Charter. O f course, many proposals have already been put forward which require amendments to the constituent document. The proposals concerning the composition of the Security Council are a sufficient example. Before they can be implemented the political difficulties have to be solved. From the practical point of view i t is important to underline that any unnecessary overlapping of w o r k between the Special Committee and other expert organs investigating possible future improvements in specific fields ought to be avoided. This is, however, a problem which could be solved rationally by a flexible approach and by making use of the possibility of obtaining mutual expert assistance from the various organs representing perhaps mainly legal, economic or technical expertise. To sum up, and taking our imagery from the field of athletics, i t may be said that the task of the Special Committee is hardly to be compared to a 110 metres hurdles dash. I t recalls rather a 3000 metres steeplechase. Reporting from the ongoing race i t seems as i f the field is right now running rather well together. What w i l l happen during the last laps, however, cannot be accurately predicted — there are still many waterjumps to be crossed. Yet i t looks as i f the necessary elements of a most interesting finish — and i n a fair, sportsmanlike spirit — are there. There may not, of course, be any w o r l d records. However, what the United Nations needs is a solid performance.

Recommendations and the Traditional Sources of International Law Christoph Schreuer L

Introduction

The formulation in recommendations of general standards of international conduct is a common feature of the w o r k of contemporary international organizations. I t is characterized by procedures strongly reminiscent of the activities of a legislative body without carrying the typical consequences of legislative functions. The conflicting interests in cooperation and in freedom of action have led to a compromise i n which the limited authority of the prescriptions involved is designed to encourage maximum participation i n their adoption and implementation. The legal status of recommendations emanating from organs such as the United Nations General Assembly has been the subject of much discussion. Viewpoints have not only varied according to the theoretical standpoint of the observer, but also according to sympathy for the contents of a particular recommendation or the political inclinations of the majority controlling the organ 1 . First i t is appropriate to warn against a superficial literal interpretation of the term "recommendation". I t w o u l d be misleading necessarily to understand it as non-binding or even legally irrelevant 2 . There are provisions in which the term "recommendation" is clearly used to denote an obligation of compliance 3 , 1

A. C. Castles , Legal Status of U.N. Resolutions, Adelaide Law Review, 3, 1967, 68; Krzysztof Skubiszewski , Resolutions of International Organizations and Municipal Law, The Polish Yearbook of International Law, 2, 1968/69, 80 at 95; Jan H. W. Verzijl , International Law in Historical Perspective, 1968, vol. 1, 76; Heribert Golsong , Das Problem der Rechtsetzung durch internationale Organisationen (insbesondere im Rahmen der Vereinten Nationen), Berichte der Deutschen Gesellschaft für Völkerrecht, 10, 1971, 1—47 (8 et seq.;) Henn-Jüri Uibopuu, Die sowjetische Doktrin der friedlichen Koexistenz als Völkerreditsproblem, 1971, 146. 2 Cf. also Antonio Malintoppi, Le Racomandazioni Internazionali, 1958, 115 et seq.; Georg Dahm, Die völkerrechtliche Verbindlichkeit von Empfehlungen internationaler Organisationen, Die öffentliche Verwaltung, 1959, 361—367. 3 Art. 14 (3) E.C.S.C.: "Recommendations shall be binding with respect to the objectives which they prescribe, . . . a . Art. I I of the Agreement between the U.N. and the U.N.E.S.C.O., United Nation Treaty Series (UNTS), vol. 1, 240: . . such recommendations shall be accepted . .

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t o i n d i c a t e an o b l i g a t i o n t o t a k e c e r t a i n a c t i o n s 4 , t o describe s i t u a t i o n s

in

5

w h i c h n o n - c o m p l i a n c e can d r a w c e r t a i n adverse consequences , o r t o represent cases i n w h i c h the r e c o m m e n d a t i o n constitutes a n a u t h o r i z a t i o n t o a c t o n l y w i t h i n the confines o f its clauses 6 . T h e r e is n o o b v i o u s o r necessary m e a n i n g attached t o its use. Nevertheless there is general consensus t h a t , i n t h e absence o f evidence t o t h e c o n t r a r y , a r e c o m m e n d a t i o n does n o t c a r r y the same legal consequences as a t r e a t y o r a r e g u l a t i o n . I t does n o t n o r m a l l y c o n t a i n b i n d i n g rules 7 . F o r some authors this r e c o g n i t i o n is the c r u x o f the m a t t e r 8 ; a legal relevance s h o r t o f b i n d i n g rules is either n o t c o n t e m p l a t e d o r c a t e g o r i c a l l y rejected. I n t e r n a t i o n a l p r a c t i c e , h o w e v e r , shows a constant reliance o n t h e r e c o m m e n d a t i o n s t y p e o f decisions o f i n t e r n a t i o n a l o r g a n i z a t i o n s 9 . State organs, i n c l u d i n g domestic c o u r t s 1 0 , i n t e r n a t i o n a l j u d i c i a l b o d i e s 1 1 a n d p o l i t i c a l i n t e r 4 See the obligations to submit recommendations to the legislative bodies of Members or to furnish reports: Art. 19 (6) I.L.O., Arts. I V (4) and V I I I U.N.E.S.C.O., Art. X I (1) F.A.O. and Art. 15 (b) Council of Europe. 5 Art. 31 (3 and 4) E.F.T.A.; Art. 33 I.L.O. 6 Cf. the cases under the U.N. Charter providing for e a decision of the General Assembly upon the recommendation of the Security Council" and see especially the Competence of Assembly regarding admission to the United Nations, Advisory Opinion: International Court of Justice, Reports of Judgements, Advisory Opinions and Orders (ICJ Rep.) 1950, 4 et seq. 7 Cf. the travaux préparatoires to the U.N. Charter: United Nations Conference on International Organization, vol. I l l , 536 et seq., vol. I X , 70, 316, vol. X I I I , 709 et seq. See also Pat Sloan, The Binding Force of a 'Recommendation' of the General Assembly of the United Nations, British Year Book of International Law. (BYIL), 1948, 1—33 (6); Gaetano ArangioRuiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Recueil des Cours (RdC), 1972, I I I , 419—628 (504). 8 H. A. Smith , The Binding Force of League Resolutions, BYIL, 1935, 157—159; Josef L. Kunz , The United Nations Declaration of Human Rights, American Journal of International Law (AJIL), 1949, 316—323; Hans Kelsen , The Law of the United Nations 1951, 195; Ignaz Seidl-Hohenveldern , Die Allgemeine Deklaration der Menschenrechte als Reditsquelle, Juristische Blätter, 1952, 558; Alexandre C. Kiss , Nature juridique des actes des organisations et des juridictions internationales et leurs effets en droit interne, Etudes de droit contemporain 1970, 260; Heinz Guradze , Are Human Rights Resolutions of the United Nations General Assembly Law-Making?, Human Rights Journal, 1971, 453—462; ibid., Zur Rechtsnatur normativer Entschließungen der Vollversammlung der Vereinten Nationen, Zeitschrift für Luftrecht und Weltraumrechtsfragen, 19, 1970, 49. 9 On the impacts of the Universal Declaration of Human Rights see esp. Myres S. McDougal & Gerhard Bebr , Human Rights in the United Nations, AJIL, 1964, 603—641 (615 et seq.); Egon Schwell·, The Influence of the Universal Declaration of Human Rights on International and National Law, Proceedings of the American Society of International Law (PASIL), 1959, 217—229; Krzysztof Skubiszewski, Legal Nature and' Domestic Effects of Acts of International Organizations, Rapports polonais présenté au V i l l e Congrès international de droit comparé 1970, 194 at 204; Louis Sohn, The Universal Declaration of Human Rights, Journal of the International Commission of Jurists, 1967, 17. 10 Krzysztof Skubiszewski , Recommendations of the United Nations and Municipal Courts, BYIL, 1972—73, 353; Christoph H. Schreuer , The Impact of International Institutions on the

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5

national organs 12 frequently rely on them and apply them to specific situations. Furthermore there is an evident reluctance openly to contravene recommendations such as resolutions of the United Nations General Assembly 13 . Whenever possible, States confronted w i t h recommendations w i l l not attempt to rely on an assertion of their legal irrelevance, but w i l l either deny violations, assert the inapplicability of a recommendation to the specific case or w i l l claim that the particular recommendation was irregular or ultra vires. Comparison w i t h other types of international prescription sometimes suggests that the effectiveness of some recommendations does not fall short of certain treaty provisions or customary rules 14 . Practice thus supports the view that recommendations, though not binding i n the sense of a municipal statute, exercise a considerable influence on the international decision-making process 15. Their dismissal as an extra-legal phenomenon is therefore probably just the result of a too limited conception of the law, which does not offer appropriate categories for this type of international prescription. Recommendations are difficult to reconcile w i t h the typology of the law that we know from contemporary municipal legal systems, but the fundamentally different structure of the present international community makes such an analogy w i t h municipal law of doubtful validity. I n a horizontal system characterized by reciprocities and retaliations, such as international law, the authoritative enactment of generally binding rules is only of minor importance. The emphasis of the decision-making process is on the joint development of common standards of conduct by the members of the community themselves. From this perspective a recommendation worked out Protection of Human Rights in Domestic Courts, Israel Yearbook on Human Rights, 1974, 60 at 76 et seq. 11 Salo Engel , "Living" International Constitutions and the World Court, International and Comparative Law Quarterly (ICLQ), 1967, 865—910. Schwel b, (n. 9), 228; Schreuer (n. 10), 78; A. J.P. Tammes , Decisions of International Organs as a Source of International Law, RdC 1958, I I , 265—362 (268 et seq.). 12 Thomas Buergenthal , The United Nations and the Development of Rules Relating to Human Rights, PASIL, 1965, 132—139; Samuel A. Bleicher , The Legal Significance of ReCitation of General Assembly Resolutions, AJIL, 1969, 444—478 (458); Egon Schwelb , An Instance of Enforcing the Universal Declaration of Human Rights Action by the Security Council, ICLQ 1973, 161—163. 13

Rudolf L. Bindsdoedler , La delimitation des competences des Nations Unies, RdC 1963, I, 307—421 (348); Michel Vir ally, La valeur juridique des recommandations des organisations internationales, Annuaire Français de Droit International (AFDI), 1956, 66—96 (87). 14 Egon Schwelb , Neue Etappen der Fonentwicklung des Völkerrechts durch die Vereinten Nationen, Archiv des Völkerrechts, 1966, 1—52 (42). 15 Cf. Wolfgang G. Friedmann , The Changing Structure of International Law 1964, 138; Michel Vir ally. Droit international et décolonisation devant des Nations Unies, A F D I 1963, 508—541.

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w i t h i n the organized framework of an international institution appears to be a particularly apt device w i t h which to influence international behaviour. Most of the more recent writings on this question support the view that the discovery of the non-binding nature of recommendations is a truism which misses the core of the problem. O n the other hand, the explanations offered for their legal significance differ widely. N o t infrequently a choice of solutions is offered, sometimes distinguishing between different types of recommendations 16 . One feature which most of these attempts have in common, is their endeavour to accommodate this relatively new phenomenon w i t h i n the confines of the established sources of international law as laid down in A r t . 38/1 of the Statute of the International Court of Justice. Almost every heading of A r t . 38/1 has been offered as an explanation for the legal character of recommendations. II.

Recommendations

as Part of Treaty

Law

Some authors see recommendations as a modern supplement to the law of treaties 17 . Especially in the case of unanimous resolutions, the concurrent casting of votes is sometimes seen as a new and simplified procedure for the conclusion of agreements 18 . Understandably enough, this interpretation is usually accepted only subject to the condition that there are unmistakable indications that the States concerned intended to enter obligations in the nature of treaties 19 . Although there are some odd examples which might support this view 2 0 , they are limited to a few cases and can by no means offer a satisfactory general explanation for the legal nature of recommendations. 16

Cf. e. g. the generous selection offered by Skubiszewski (n. 9), 202 et seq. See Jorge Castaneda , Legal Effects of United Nations Resolutions 1969, 150 et seq.; Skubiszewski (η. 1), 83 et seq.; ibid. (η. 9), 195 et seq.; ibid., Enactment of Law by International Organizations, B Y I L 1965—66, 198—274 (220 et seq., 242 et seq.); ibid., A new Source of the Law of Nations: Resolutions of International Organisations, Recueil d'études de droit international en hommage à Paul Guggenheim 1968, 508 at 517 et seq.; Tammes (η. 11), 269; Louis Dubouis , Le Juge administratif français et les règles du droit international, A F D I 1971, 9—60 (23). 18 See especially the references to soviet authors by Uibopuu (η. 1), 122 et seq.; by Skubiszewski (n. 1), 95; and by Grigorij-Jvanovic Tunkin, Das Völkerrecht der Gegenwart, 1963, 103. 19 Arangio-Ruiz (η. 7), 486 et seq.; Obed Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966), 63 et seq.; ifrWic^eJ/er (η.13), 349; Castarieda (η. 17), 154; D. Η. Ν. Johnson, The Effect of Resolutions of the General Assembly of the United Nations, BYIL 1955—56, 97—122 (121); Sloan (n. 7), 22; Vitally (n. 13), 85. 20 This interpretation was given to the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space of 13 December 1963, GA Res. 1962 ( X V I I I ) : Castaneda (n. 17), 162; Edward McWhinney , International Law and World Revolution, 1967, 80. 17

Recommendations

and Traditional

Sources of International

Law

A somewhat different opinion of the rôle of recommendations in the law of treaties sees them as authoritative interpretations or guidelines for the interpretation of existing treaties. I n particular, resolutions of the United Nations General Assembly are regarded as nothing more than specifications of the provisions of the Charter 2 1 . Thus the Universal Declaration of Human Rights has repeatedly been conceived as a detailed statement of the obligation to respect human rights as already contained in the Charter 2 2 . The value of recommendatory resolutions of international institutions for the interpretation of treaties is indisputable. Nevertheless this theory also does not offer an adequate general explanation 2 3 . N o t all recommendations can be reasonably regarded as deriving their material contents from treaty provisions. Even in those cases where they could be taken as just a detailed exposition of the obligations assumed by the Members in the constitutive agreement of the organization, i t is difficult to see w h y they should fundamentally differ in their authority from other recommendations which also lie w i t h i n the functions of the organization. 777. Recommendations

as Part of Custom

The most widely accepted theory about the legal nature of recommendations sees them w i t h i n the framework of international customary law. A casting of votes by State representatives is either regarded as a form of the practice of States 24 or as an expression of an opinio iuris 25. The evolution of 21 Asamoah (n. 19), 6, 35 et seq., 42 et seq.; Bleicher (η. 12), 448 et seq.; Castles (η. 1), 82; Mario Miele, Les Organisations internationales et le domaine constitutionel des Etats, RdC, 1970, I I I , 319—391 (366); Oscar Schachter, The Relation of Law, Politics and Action in the United Nations, RdC, 1963, II, 169—256 (186); Tunkin (n. 18), 107; ibid., Theory of International Law, 1974, 171; see also the references by Uibopuu (η. 1), 125 et seq. 22 Bleid>er (n. 12), 461; G. Piotrovski, Les résolutions de l'Assemblée générale des Nations Unies et la portée du droit conventionnel, Revue de droit international, 1955, 111—125, 221—242 (229); Nehemiah Robinson, The Universal Declaration of Human Rights, 1958, 36 et seq., 43 et seq.; Egon Schwelb, Die Menschenrechtsbestimmungen der Charta der Vereinten Nationen und die Allgemeine Erklärung der Menschenrechte, Vereinte Nationen, 1973, 180—186; Marcel Sibert, Traité de droit international public, 1951, vol. 1, 454 et seq.; cf. also Louis Sohn, Protection of Human Rights through International Legislation, René Cassin Amicorum Discipulorumque Liber, 1969, vol. 1, 325 at 328. 2 3 Cf. also Castaneda (n. 17), 193 et seq. 24 Arangio-Ruiz (n. 7), 471 et seq.; Asamoah (n. 19), 52; Kenneth Bailey , Making International Law in the United Nations, PASIL 1967, 233 at 235; Rosalyn Higgins, The Development of International Law through the Political Organs of the United Nations 1963, 2 et seq.; Constantin A. Stavropoulos , The United Nations and the Development of International law, U N Monthly Chronicle, 1970, 6, 78—84 (80); Cf. also the dissenting opinion of Judge Tanaka to the South-West Africa, Second Phase, Judgment, I.C.J. Reports 1966, 291. 25 Arangio-Ruiz (n. 7), 478; Asamoah (n. 19), 55 et seq.; Bleicher (η. 12), 450; Internationales Symposium des Max-Planck-Instituts für ausländisches öffentliches Recht und Völkerrecht, 1972, 445; H. W. A. Thirlway, International Customary Law and Codification 1972, 66 et seq.

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a general practice of States which used to be unorganized and often spread over a long period of time, is thus coordinated and channeled into certain directions. Sometimes the result can be the sudden emergence of a new customary rule, an "instant custom" 2 6 . I t is, however, usually admitted that the subsequent conduct of the States concerned is also of material importance. N o t infrequently, the aspirations nursed in the hot-house 27 atmosphere of an organ, like the United Nations General Assembly, do not withstand the rough climate of international everyday life. For this reason, a recommendation is often seen only as a step towards the formation of customary law or as a starting-point for such an evolution 2 8 . A strong emphasis on the subsequent State practice to a recommendation, however, runs the danger of seriously underrating its significance. I n such a situation, i t is not the recommendation which serves as a standard for the conduct of States, but the conduct which serves as the standard for the evaluation of the recommendation. This applies particularly to areas like the rights of individuals, minorities or ethnic groups which are usually not the object of traditional international intercourse and are therefore not subject to the process of reciprocities and retaliations between States. I n assessing the situation at law, a heavy reliance on examples of practice deviating from the principles of a recommendation would largely deprive it of its value 2 9 . References to recurrent violations of human rights i n various parts of the w o r l d can hardly serve as proof that States are entitled to disregard recommendations of international organizations on human rights questions. A n attempt to quant i f y the State practice i n favour or against the material provisions of, for 26 Judge Tanaka (n. 24), 291 et seq.; Bin Cheng, United Nations Resolutions on Outer Space: 'Instant' International Customary Law?, Indian Journal of International Law (IJIL), 1965, 23—48; and cf. Thirlway (n. 25), 72 et seq. and Antony D'Amato, On Consensus, Canadian Yearbook of International Law (CYIL) 1970, 104—122 (110 et seq.). 27 Cf. Engel (η. 11), 910. 28 Asamoah (η. 19),7; Lino Di Qual, Les effets des résolutions des Nations Unies, 1967, 249 et seq.; Salo Engel, Procedures for the de facto Revision of the Charter, PASIL 1965, 108—116 (116); Golsong (n. 1), 32 et seq.; Edvard Hamhro , Some Notes on the Development of the Sources of International Law, Scandinavian Studies in Law, 1973, 77 et seq.; ibid., The Sixth Committee in the Law Creating Function of the General Assembly, Revista Espanola de Derecho Intemacional, 1968, 387 at 389; Manfred Lachs, Le rôle des organisations internationales dans la formation du droit international, Mélanges offerts à Henri Rolin 1964, 157 at 166; The Domestic Status of the Human Rights Clauses of the United Nations Charter, California Law Review, 1973, 110 at 145 et seq.; Thirlway (η. 25), 73; Tunkin (η. 18), 110 et seq.; ibid. (η. 21), 172 et seq.; Alfred Verdross , Kann die Generalversammlung der Vereinten Nationen das Völkerrecht weiterbilden?, Zeitschrift für ausländisches öffentliches Redit und Völkerrecht, 1966, 690—697 (693) et seq., ibid., Die Quellen des universellen Völkerrechts, 1973, 139. 29 Cf. also Rosalyn Higgins, United Nations and Lawmaking: The Political Organs, PASIL 1970, 37—48 (42).

Recommendations

and Traditional

Sources of International

Law

example, the Universal Declaration of H u m a n Rights, is hardly possible and would not make much sense. The seemingly plausible view of recommendations of international organs as an element in the creation of customary rules, i n particular as part of State practice, is therefore not without doubts and difficulties 30 . To regard the international organ as nothing more than a trading centre for the statements and votes of individual States, would not do justice to its express competence to pass resolutions in its capacity as an international body 3 1 . The international organ w o u l d thus be seen purely as a permanent conference of States; its resolutions would be nothing more than the aggregate of the communications of States represented in it. This question becomes particularly acute in cases where the persons acting in the organ are not State representatives in the traditional sense. The General Conference of the International Labour Organization and the Consultative Assembly of the Council of Europe are pertinent examples. To regard the voting behaviour of representatives of employers and of workpeople in the Labour Conference and of parliamentarians in the Consultative Assembly as State practice is unorthodox, to say the least, and w o u l d give a somewhat novel interpretation to this concept. Even the acceptance of recommendations w i t h i n the framework of customary law not as State practice but as practice of the organization itself, is not w h o l l y satisfactory. There can be no doubt that every international organization develops its practice in making decisions on problems that arise from day to day 3 2 . T o equate formal recommendations or solemn declarations of a general character concerning the future conduct of members of the international community w i t h this everyday practice, is hardly convincing. IV.

Recommendations as an Expression of General Principles of Law

Another explanation for the place of recommendations in international law is their accommodation w i t h i n the general principles of law recognized by civilized nations 3 3 . They are thus considered as a convenient expression of the 80 Cf. also the comments by Günther Jaenicke in Berichte der Deutschen Gesellschaft für Völkerrecht (Berichte der DGV), 1969, 229—230; Golsong (n. 1), 23. 31 Cf. Constantin P. Economides, Nature juridique des actes des organisations internationales et leurs effets en droit interne, Revue Hellénique de Droit International, 1970, 225— 238 (226 et seq.). 32 See esp. Higgins (n. 24); ibid., The Development of International Law by the Political Organs of the United Nations, PASIL 1965, 116—124; Arangio-Ruiz (n. 7), 505 et seq.; Golsong (η. 1), 18 et seq.; C. Wilfred Jenks , The Impact of International Organisations on Public and Private International Law, Transactions of the Grotius Society, 1951, 23—60 (38). 33 Asamoah (n. 19), 61 et seq.; René Cassin , La Déclaration universelle et la mise en oeuvre des droits de Phomme, RdC 1951, I I , 237—367 (294); Golsong (η. 1), 34; Stevan

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legal ideas and concepts common to the States represented in the respective organs. The persuasive force of an acceptance of recommendations as an expression of general principles of law w i l l largely depend on the observer's view about this enigmatic concept. The subject-matter of most recommendations w i l l make it difficult to regard them as a statement of corresponding principles of domestic law. This w o u l d leave the possibility of taking them as pronouncements of universal legal principles or of general principles of international law. A survey of recommendations passed by international organs, however, creates the impression that a large number of their material provisions are of an operative and specific character, which makes their characterization as general principles in this sense somewhat unconvincing. V.

Recommendations

as Means for the Determination

of Rules of Law

Finally, another commonly held theory sees recommendations, or at least part of them, as declaratory statements of existing law or as evidence of international l a w 3 4 . The authentication of certain prescriptions by representatives of a large number of States is, therefore, to be accepted as a common authoritative confirmation of the existence and contents of rules of international law. I t is beyond doubt that part of the resolutions of, for example, the General Assembly of the United Nations are declaratory in nature and are based on already existing law. However, it seems questionable whether this fact is really of much help in determining their legal character. A n y attempt to draw a sharp line between an official statement of the law and a creation of new law is already of doubtful value 3 5 . Every authoritative determination or application of the l a w partakes of a certain degree of its development. Even i f i t were possible to make a clean theoretical distinction between application and formation of the law, we would be left w i t h the problem of discovering whether a particular recommendation restricted itself to a statement of the lex lata or attempted to set new standards. The necessity of such an investiTchirkovitcb, La declaration universelle des droits de l'homme et sa portée internationale, Revue Générale de Droit International Public, 1949, 359—386 (380 et seq.); Verdross , Kann die Generalversammlung (n. 28), 694; Karl Zemanek , The United Nations and the Law of Outer Space, Yearbook of World Affairs 1965, 199—222 (208 et seq.). 34 Asamoah (n. 19), 47 et seq.; Castaneda (n. 17), 165 et seq.; Ingrid Detter , Law Making by International Organizations 1965, 213; Di Qual (n. 28), 243 et seq.; Golsong (n. 1), 28 et seq.; Leo Gross , The United Nations and the Role of Law, International Organization, 1965, 537—561 (557); Johnson (n. 19), 116; Krzysztof Skubiszewski , The General Assembly of the United Nations and its Power to Influence National Action, PASIL 1964, 153—162 (156 et seq.); Sloan (η. 7), 24; Max Serensen, Principes de Droit international public, RdC 1960 I I I , 1—257 (98 et seq.); Tunkin (η. 21), 175 et seq.; cf. also D'Amato (η. 26), 106. 35 Cf. also Castaneda (η. 17), 39.

Recommendations

and Traditional

Sources of International

Law

gation would, however, largely offset the cognitive value of the recommendation itself. Sometimes resolutions contain specific indications that their material contents are based on existing law. They themselves assert to be only declaratory and might therefore readily be applied as positive l a w 8 6 . Nevertheless, it seems doubtful whether even such a self-professed restriction to existing law can always be relied upon. O n l y part of the resolutions purporting to contain statements on legal questions, are drafted by expert bodies like the International L a w Commission. I n some cases the expert knowledge of authors of such "authoritative restatements" is, to say the least, subject to doubt. Spontaneous announcements of political organs are not necessarily a good guide to discovering the state of the law. There is, moreover, a distinct danger that in preparing an allegedly declaratory resolution, Members w i l l be strongly influenced by their political preferences 37 . I f so-called declaratory resolutions really become accepted as an authoritative expression of existing international law, there w i l l be a strong temptation to establish legislative desiderata by way of declarations. A majority strongly committed to a particular policy in a legal controversy, would find it only too easy decisively to improve its position by declaring its opinion as a statement of the existing law. Apart from the theoretical difficulties engendered by these attempts to fit recommendations into the accepted compartments of legal sources, these explanations are also of doubtful practical value. A decision-maker such as a court can find little help in the proposition that a recommendation, invoked by a party, may possibly and under certain circumstances play a rôle in the formation of a legal rule or may be declaratory of an existing rule. The detailed examination required to establish whether the provisions of the recommendation are really supported by a general practice accepted as law or are really an expression of already existing rules of law would deprive the recommendation of its practical significance for a particular decision. VI.

Is Art. 38 (1) of the Statute an Exhaustive Statement of the Sources of International Law ?

As we have seen, the various attempts to explain recommendations of international institutions i n terms of the established sources of international law are not entirely satisfactory. While some authors rely on the absence of any mention of recommendations in A r t . 38/1 as an additional argument against their legal nature 3 8 , others t r y to fit them into every conceivable category of 3β Bleicher (η. 12), 447. 37 Higgins (η. 29), 39 et seq. 38 Verdross , Kann die Generalversammlung (η. 28), 692; Cur adze , Zur Rechtsnatur (η. 8), 54; ibid., Are Human Rights Resolutions (η. 8), 456 et seq.

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this inventory of the sources of l a w 3 9 . The diversity and incongruity of these different constructions create the strong impression that an attempt is being made to tackle new legal phenomena w i t h a set of unsuitable theoretical tools. The difficulties caused by a strict adherence to the rigid pattern of sources, as presented by A r t . 38/1, has already repeatedly given rise to doubts whether this provision can really be taken as a complete list of the procedures whereby legal prescriptions are created 40 . A t the beginning of our century, this catalogue could still claim to be an exhaustive description of the sources of international law. Today such a restrictive view of the sources of l a w can hardly cope w i t h the new realities of organized international cooperation and communication. Even as an account of legal sources to be applied by the International Court of Justice, A r t . 38/1 does not appear to be complete. The International Court of Justice, especially when giving advisory opinions, has relied on decisions of international organs, including recommendations, to an extent and i n a way which would make any attempt to explain this practice by reference to A r t . 38/1 hardly plausible 41 . The United Nations General Assembly has not been oblivious of this development. I n Resolution 3232 ( X X I X ) of 22 November 1970 42 i t found that: . . . the development of international law may be reflected inter alia , by declarations and resolutions of the General Assembly which may to that extent be taken into consideration by the International Court of Justice, . . . A closer look at the realities of international decision-making shows that an attempt to divide the law into neatly separate rules which can be allocated to official types of sources is not satisfactory. Very often it is impossible to base a decision or even a general prescription on any one type of source. The pro39 See esp. Asamoah (n. 19); Skubiszewski (n. 9), 202 et seq. and the examples presented by Arangio-Ruiz (n. 7), 435 et seq. 40 Clive Parry , The Sources and Evidences of International Law, 1965, 21 et seq.; 109 et seq.; Richard Α. Falk, On the Quasi-legislative Competence of the General Assembly, A J I L 1966, 782—791; ibid., The Status of Law in International Society 1970, 141 et seq.; Castaneda (η. 17), 2 et seq.; Verzijl (η. 1), vol. 1, 74; Wolfgang Friedmann, General Course in Public International Law, RdC, 1969, 39—246 (142 et seq.); Alf Ross, Lehrbuch des Völkerrechts, 1951, 81 et seq.; Felix Ermacora, Das Problem der Rechtsetzung durch internationale Organisationen (insbesondere im Rahmen der UN), D G V 1971, 51 at 73 et seq.; cf. also the comments by Münch and by Zemanek loc. cit. at 200 and 203; Bruno Simma, Völkerrecht und Friedensforschung, Die Friedenswarte, 1974, 65 at 75. 41

The advisory opinion of 16 October 1975 on the Status of the Western Sahara is a pertinent example. See also the references (n. 11) above. 42 Resolution on the Review of the Role of the International Court of Justice. Reprinted in: AJIL 1975, 249.

Recommendations

and Traditional

Sources of International

Law

cess of communication leading to legal expectations and to a conduct corresponding to them, can take place in a variety of forms which are interrelated and often not clearly distinguishable 43 . Even a relatively clear-cut prescription like a treaty provision is i n constant interaction w i t h other types of international law, from its drafting up to its application, and can lead a decisionmaker through the whole maze of sources of international law, including the resolutions of international institutions. Each of several relevant elements for a particular decision may not, on its own, be authoritative enough to qualify as a binding rule or to present a sufficient basis for the decision. Their combined effect, however, can be conclusive. For example, the old principle whereby reservations to a multilateral treaty are only admissible i f they are accepted by all other parties has practically lost its v a l i d i t y today 4 4 . A n advisory opinion of the International Court of Justice 45 , a resolution of the United Nations General Assembly 46 containing instructions to the Secretary General and a recommendation to Members, the work of the International Law Commission 47 , and provisions of a treaty 4 8 , not yet in force, have all contributed to this change. Anybody trying to base the new and "flexible" practice concerning reservations exclusively on any one of the categories of A r t . 38/1 would find i t very difficult to offer a plausible explanation. Rather than searching for abstract rules classified by types of sources, i t seems more appropriate to examine the entire body of legally significant authority for a particular decision. The traditional procedures of concluding treaties by explicit submission or of creating customary patterns of behaviour by implicit conduct are t w o very important and typical ways to secure an orderly and predictable conduct of international relations. Since the establishment of organized new machineries for cooperation and intercourse in the international community, the law-creating process of communication has been expanded and diversified. Therefore i t does not seem useful a priori to reject the results reached in these new procedures just because they do not fit the traditional pattern of sources of law. I t would, however, be equally mistaken to t r y and see these organized community acts entirely detached from the traditional sources.

« Ross (n. 40), 90; Falk, The Status (n. 40), 142 et seq.; Friedmann, (η. 15), 138 et seq. Cf. also R. Y. Jennings, Recent Developments in the International Law Commission: Its Relation to the Sources of International Law, ICLQ, 1964, 385—397 (391). 45 Reservations to the Convention on Genocide, ICJRep. 1951, 15. 46 Reservations to multilateral conventions 598 (VI) of 12 January 1952. 47 See the references by Shabtai Rosenne, The Law of Treaties, 1970, 182 et seq. 48 Articles 19—23 of the Vienna Convention on the Law of Treaties. 44

8 GYIL 20

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Just as the material prescriptions of international law are subject to development and change, so are the procedures whereby the law is created. A r t . 38/1 should not therefore be seen as a petrified constitutional rule of international law which determines once and for all i n what w a y the law is created and changed and from which the authority of international rules is derived. I t is probably no more than a descriptive catalogue w i t h a reasonable degree of historical accuracy 49 . Some authors have drawn the consequences from these difficulties b y suggesting the acceptance of decisons of international institutions as a new formal source of international l a w 5 0 . This suggestion is supported by the importance of international institutions for contemporary international law. Furthermore, the social process governing decision-making i n international organs, is quite different from the process of explicit submission to treaty obligations or from the often haphazard and slow evolution of State practice. O n the other hand, the heterogeneous legal nature of various acts of international institutions, ranging from recommendations to regulations and from specific decisions to general declarations of principle, makes the usefulness of such a new category in the sources of international law doubtful, unless i t is accepted for the sake of classification itself 5 1 . I t seems hardly helpful rigidly to divide international law into individual sections by allocating them to different types of sources. As has been pointed out before, the sources of law can never be stated exhaustively 5 2 and, even less, can they be laid down by a legal norm 5 3 . The alternative w o u l d be a flexible extension and adjustment of the concept of international law sources 54 . This new approach should not be based on any notion of mutually exclusive types of sources, but on the awareness that the evolution of the law is a process of communication which can take place i n a variety of forms. This does not i m p l y that certain typical forms of this process should not be characterized and described, as long as any such theoretical system remains sufficiently flexible and adaptable to accommodate new phenomena. A classification of sources of law is only questionable where i t « Cf. Parry (n. 40), 109 et seq.; Tammes (η. 11), 270 et seq. Hans Kelsen, Principles of International Law, 1967, 506 et seq.; Economides (n. 31), 228; Tammes (n. 11), 269 et seq.; Krzysztof Skubiszewski, A new Source (η. 17), 520; ibid., Enactment of Law (n. 17), 245 (with further references); Georg Dahm, Völkerrecht, 1958, vol. 1, 19, 25. 51 Cf. also Castaneda (n. 17), 5 et seq.; Golsong (η. 1), 16. 52 Sir Gerald Fitzmaunce, Some Problems Regarding the Formal Sources of International Law, Symbolae Verzijl, 1958, 153 at 161. 53 Ross (n. 40), 81; cf. also Thirlway (n. 25), 36 et seq. 54 Cf. also Falk, The Status (η. 40), 141 et seq.; Hambro, Some Notes (n. 28), 83 et seq.; Simma (n. 40), 75 et seq. 50

Recommendations

and Traditional

Sources of International

Law

JJ5

becomes rigid and exclusive and attempts to measure new methods for the creation of legal expectations by the standards of a past period of international relations. VII.

The Authority

of Recommendations

A n approach not exclusively directed at the discovery of rules, but at a critical examination of the decision-making process and all factors legitimately affecting it, w i l l lead to the realization that recommendations of international organizations can exercise an important influence on this process. I n a community whose law-creating process is not dominated by a central legislator but works through the co-equal interaction of its Members, the expectations of compliance attached to prescriptions can be of differing intensity 5 5 . Where the creation of a binding rule is not a realistic possibility, a recommendation can be an appropriate means to create legal expectations 58 . The function of certain tenets of behaviour as law is, therefore, not necessarily limited to binding rules 57 . Conduct w h i d i is i n accordance w i t h recommendations need not be carried by a sense of unqualified obligation or binding force but may be prompted by other considerations 58 . A n individual Member is left w i t h a large amount of discretion 59 and a contravention is not automatically an illegal act. A consistent disregard of the standards set by the international community in the form of recommendations may, however, ultimately expose a State to legitimate counter-measures 60 . As Judge Lauterpacht has pointed out: [ i t ] may find that i t has overstepped the imperceptible line between propriety and illegality, between discretion and arbitrariness, between the exercise of the legal right to disregard the recommendation and the abuse of that right, and that i t has exposed itself to consequences legitimately following as a legal sanction 61 . 55 cf. Tammes (n. 11), 335; Sden Staat als Arbeitgeber c verpflichte 185 , entschied er zugleich daß A r t . 11 Abs. 1 E M R K keine bestimmte Behandlung seitens des Staates zusichere und deshalb auch keine Verpflichtung zum Abschluß von Tarifverträgen begründe 186 . Auch liege kein Verstoß gegen A r t . 14 E M R K vor, da die unterschiedliche Behandlung der einzelnen Gewerkschaften von legitimen Gründen getragen werde. D a der Rechtsweg vor das Arbeitsgericht eröffnet gewesen war und die beschwerdeführende Gewerkschaft ihn zunächst auch beschritten habe, sei eine Verletzung des A r t . 13 E M R K nicht ersichtlich. b)

Engel und andere gegen die Niederlande 18 E M R K )

187

(Art. 5, 6, 10, 11, 17 und

Der Beschwerde wurde hinsichtlich einer Verletzung des A r t . 5 Abs. 1 E M R K im Falle Engel und hinsichtlich einer Verletzung des A r t . 6 Abs. 1 E M R K i m Falle de Wit , Dona und Schul stattgegeben; i m übrigen wurde die Beschwerde für unbegründet erklärt. Durch weiteres U r t e i l entschied der Gerichtshof gem. A r t . 50 E M R K , daß die Niederlande dem Beschwerdeführer Engel eine symbolische Entschädigung in Höhe von 100 Gulden zu zahlen haben 1 8 8 . Die fünf Beschwerdeführer, gegen die aus verschiedenen Gründen während ihres M i l i tärdienstes Disziplinarmaßnahmen verhängt worden waren, trugen i m wesentlichen vor, diese Maßnahmen stellten einen mit A r t . 5 Abs. 1 E M R K unvereinbaren Freiheitsentzug dar, die Verfahren vor den Militärinstanzen hätten den Anforderungen des A r t . 6 E M R K nicht genügt und die A r t und Weise ihrer Behandlung sei diskriminierend gewesen und verstoße deshalb gegen A r t . 5 und 6 i n Verbindung mit A r t . 14 E M R K . Alle Beschwerdeführer verlangten Entschädigung. Der Fall ist nidit nur bemerkenswert, weil er als 184 Publications of the European Court of Human Rights, Series A : Judgments and Decision (Judgments) vol. 20; Series B: Pleadings, Oral Arguments and Documents (Materials) vol. 18; Yearbook 1976, 478 ff; zum Verfahren vor der Kommission: Yearbook 1972, 594—603; ferner Schütz (Anm. 1), 482. 185 Judgments vol. 20, 14. is* EuGRZ 1976, 62. 187 Judgments vol. 22, Materials vol. 20; Yearbook 1976, 480 ff; 1972, 508 ff; Urteilsanmerkung EuGRZ 1976, 363 von Tnffterer; Zusammenfassung auf deutsch in EuGRZ 1976, 221, ferner Activities, 10 ff. 188 Judgments, vol. 22, 66 ff (70); EuGRZ 1976, 422 ff (424).

31 GYIL 20

Jan Willis

482

einziger i m Berichtszeitraum vor dem E u G H M R jedenfalls teilweise Erfolg hatte, sondern auch, weil dem Urteil nicht weniger als acht Richter 1 8 9 persönliche Meinungen beifügten. c) Schmidt und Dahlström

gegen Schweden 190 (Art. 11 und 14 E M R K )

Die Beschwerde wurde für unbegründet erklärt. Die Beschwerdeführer rügten, ihren tarifvertraglichen Anspruch auf rückwirkende Lohnerhöhung wegen eines Streiks ihrer Gewerkschaft verloren zu haben, obgleich sie sich persönlich n i d i t an dem Streik beteiligt hatten. Der E u G H M R entschied, daß A r t . 11 E M R K weder alleine noch in Verbindung mit dem Diskriminierungsverbot in A r t . 14 E M R K verletzt sei, da A r t . 11 den Mitgliedern von Gewerkschaften keine bestimmte Behandlung seitens des Staates zusichere und darüber hinaus der i m schwedischen Arbeitsrecht geltende Grundsatz ,Streik bricht Rückwirkung c eine Ungleichbehandlung gegenüber Angehörigen einer nichtstreikenden Gewerkschaft rechtfertige. Daß die Beschwerdeführer an dem Streik nicht persönlich teilgenommen haben, sei unbeachtlich, da sie sich aus Solidarität den Streik anderer Mitglieder ihrer Gewerkschaft zurechnen lassen müßten. d)

Kjeldsen, Busk-Madsen und Pedersen gegen Dänemark („Sexualkundefall« 1* 1 ( A r t . 14 E M R K ; A r t . 2 Zusatzprotokoll N r . 1)

Die Beschwerde wurde ebenfalls für unbegründet erklärt 1 9 2 . Die Beschwerdeführer, Eltern von Kindern i m schulpflichtigen Alter, hatten die Einführung des integrierten Sexualkundeunterrichts in dänischen Volksschulen als Verstoß gegen A r t . 2 Zusatzprotokoll gerügt. Seine abweisende Entscheidung begründet der Gerichtshof damit, daß zwar entgegen der Rechtsauffassung der dänischen Regierung auch Volksschulen i n den Schutzbereich des A r t . 2 Satz 2 Zusatzprot o k o l l fielen, das Recht jedoch nicht verletzt sei, da der in Frage stehende Unterricht weniger zum Ziel habe, den Schülern Kenntnisse beizubringen, die sie nicht bereits haben oder sidi auf andere Weise besorgen können, als vielmehr ihnen diese Kenntnisse richtiger, genauer, sachlicher und wissenschaftlicher zu vermitteln. Eine Verletzung fehle um so mehr, als es den Eltern freistehe, ihre Kinder auf (staatlich erheblich unterstützte) Privatschulen zu schicken oder zu Hause zu unterrichten oder unterrichten zu lassen. Eine abweichende Auffassung vertritt Richter Verdross. 18» Α. Verdross; M . Zekia; J. Cremona; P. OTDonoghue; H . Pedersen; Th. Vilhjalmsson; D. Bindsdiedler-Robert; D. Evrigenis. i«» Judgments, vol. 21; Materials, vol. 19; Yearbook 1976, 484; 1972, 576; EuGRZ 1976, 68; Activities, 8. 191 Judgments, vol. 23; Materials, vol. 21; Yearbook 1976, 502 ff ; 1972, 482 ff, 1973, 340 ff, 344 ff; Activities, 13; EuGRZ 1976, 478 ff; Schütz (Anm. 1), 481 ff; Rinio (Anm. 153), 379. 192 Judgments, vol. 23, 31 ff; deutsche Übersetzung: EuGRZ 1976, 488 ff.

Die Tätigkeit

des Europarates

e) Handyside gegen Großbritannien Zusatzprotokoll N r . 1)

198

1976

483

(Art. 10 und 18 E M R K , A r t . 1

Die Beschwerde w a r erfolglos. Der Beschwerdeführer hatte sich gegen die Beschlagnahme des von ihm verlegten ,Little Red Schoolbook c sowie der Druckmatritzen gewandt. Der Gerichtshof sieht die Konvention durch die Beschlagnahme nicht verletzt, weil der Eingriff in die Pressefreiheit gem. A r t . 10 Abs. 2 E M R K gerechtfertigt gewesen sei. Ebenso finde der Eingriff in das Eigentum seine Rechtfertigung i n den in A r t . 1 Abs. 2 Zusatzprotokoll N r . 1 niedergelegten Ausnahmen, da die Beschlagnahme lediglich die Benutzung des Eigentums betreffe 194 . Richter Mosler hält in seiner persönlichen Meinung den Eingriff i n die Pressefreiheit nicht für ,notwendig' und damit nicht für gerechtfertigt 1 9 5 . 4. Das M K , vertreten durch die Ministerdelegierten, faßte i m Zusammenhang m i t dem Schutz der Menschenrechte drei Beschlüsse gem. A r t . 32 Abs. 1 EMRK: a) I m Falle Levy gegen die Bundesrepublik Deutschland 196 hat das M K eine Verletzung der Konvention verneint 1 9 7 . b) Der Fall Müller gegen Österreich ebenfalls für unbegründet erklärt 1 9 9 .

198

(Art. 5 E M R K )

(Art. 14 E M R K , A r t . 1 N r . 1) wurde

Der Beschwerdeführer hatte sich gegen eine angeblich rückwirkend belastende Rechtsänderung gewandt, aufgrund derer er seine durch Zahlung entsprechender Beiträge bereits erworbenen Pensionsansprüche wieder verloren habe und beklagte zudem den diskriminierenden Charakter der Rechtsänderung, die ausschließlich in Liechtenstein beschäftigte Österreicher benachteiligte, sofern sie sich freiwillig versichert haben. c) A u d i im Fall Hätti gegen die Bundesrepublik Deutschland 200 (Art. 6 E M R K ) , in welchem die Länge des gegen den Beschwerdeführer anhängigen Strafverfahrens gerügt wurde, hatte vor dem M K keinen Erfolg 2 0 1 . 193 Judgments, vol. 24; Materials, vol. 22; Yearbook 1976, 506 ff; 1974, 228 ff; Activities, 14; EuGRZ 1977, 38 ff; Rinio (Anm. 4) 450 f. 194 A. A. Richter Zekia, der in der Einziehung eine Entziehung i. S. d. Art. 1, Abs. 1 Zusatzprotokoll sieht, welche jedoch ebenfalls gerechtfertigt gewesen sei; vgl. Judgments, vol. 24, 36. i»5 Judgments, vol. 24, 32; deutsche Übersetzung EuGRZ 1977, 50 ff.

ΐ9β Zum Sachverhalt siehe Rinio (Anm. 153), 380. 197

Resolution D H (76) 1, abgedruckt i n Yearbook 1976, 950 ff. Zur Zulässigkeit siehe Yearbook 1974, 374 ff. i " Resolution D H (76) 2, abgedruckt in Yearbook 1976, 994 ff. 200 Zur Zulässigkeit siehe Yearbook 1974, 430 ff. 198

201 Resolution D H (76) 3, abgedruckt in Yearbook 1976, 1024 ff.

3·

484

Jan Willis

d) I m Fall Golder gegen Großbritannien 202 (Art. 6 Abs. 1 und A r t . 8 E M R K ) nahm das M K , vertreten durch die Ministerdelegierten, seine Überwachungsfunktion nach A r t . 54 E M R K wahr und schloß den Fall damit endgültig ab 2 0 8 . 5. Die Menschenrechte und Grundfreiheiten stellen ein eigenes Arbeitsgebiet des mittelfristigen Rahmenplanes 204 dar, welches in drei Sektoren zerfällt und dessen erster darauf gerichtet ist, das System der internationalen K o n trolle der E M R K neuen Situationen anzupassen, um so den Schutz des Einzelnen zu verstärken. I n Hinblick auf dieses Ziel ist etwa dem Expertenausschuß für Menschenrechtsfragen aufgegeben, die sich aus A r t . 32 E M R K ergebenden Probleme zu untersuchen 205 . Der zweite Sektor betrifft die Angleichung der E M R K an den am 23. März in K r a f t getretenen Pakt der Vereinten Nationen über bürgerliche und politische Rechte 206 , welcher zum Teil dieselben oder ähnliche Rechte wie die E M R K enthält 2 0 7 . Angesichts eines ebenfalls die unmittelbare Individualvorlage ermöglichenden Fakultativprotokolls zu diesem Pakt w i r d den Mitgliedstaaten des EuR anheimgestellt, zur Vermeidung einer endlosen Verfahrensverlängerung durch Inanspruchnahme beider Institutionen bei der Ratifizierung des Fakultativprotokolls einen Vorbehalt dahingehend zu erklären, daß sich die Zuständigkeit des Menschenrechtsausschusses der Vereinten Nationen zum Empfang oder zur Prüfung von Individualbeschwerden nicht auf solche Fälle erstreckt, welche bereits nach der E M R K geprüft werden oder geprüft worden sind 2 0 8 . I n diesem Zusammenhang hat die B V dem M K die Prüfung der Frage vorgeschlagen, um welche Bestimmungen des Paktes zweckmäßigerweise die E M R K erweitert werden könnte 2 0 9 und regte an zu untersuchen, ob dem Pakt — und möglicherweise auch der E M R K — ein Protokoll zugefügt werden soll, welches die Unabhängigkeit der rechtsberatenden Berufe sicherstellt. Zugleich wurde dazu aufgefordert, die Regierungen der Mitgliedstaaten dazu zu bewegen, die i n A r t . 41 des Paktes vorgesehene Erklärung abzugeben 210 . M i t 202 Dazu auch Schütz (Anm. 1), 481. 203 Resolution (76) 35. 204 Dazu auch oben, 464. 205 Doc. 3760, 5. 20» Englischer Text und deutsche Übersetzung in JIR 15 (1971) 788—823; vgl. auch Doc. 3773, 3629; ferner Rechtsbeilage Nr. 15, 11; ME 2 (1976) 22 sowie FHedrich Meißner, Die Menschenrechtsbeschwerde vor den Vereinten Nationen, Völkerrecht und Außenpolitik Bd. 24, 1976, passim. 207 Vgl. Doc. 3773, 3 ff (11). 208 Bisher haben Dänemark, Schweden und Norwegen einen solchen Vorbehalt erklärt. 20» Empfehlung 791. 210 Entschließung 635.

Die Tätigkeit

des Europarates

1976

485

dieser Erklärung w i r d die Zuständigkeit des Mensdienrechtsausschusses für Staatenbeschwerden anerkannt. Der dritte Sektor des Arbeitsbereiches Menschenrechte und Grundfreiheiten zielt auf eine bessere Kenntnis dieser Materie nicht nur i n juristischen Kreisen, sondern auch i n der breiten Öffentlichkeit ab. Der Expertenausschuß für Menschenrechte hat dazu eine Reihe von Vorschlägen ausgearbeitet 211 .

211 Doc. 3760, 5.

Die Europäischen Gemeinschaften im Jahre 1976 Hans R. Krämer I.

Überblick

1. Wie schon i m letzten Berichtszeitraum 1 so standen die Europäischen Gemeinschaften (EG) auch im Jahre 1976 unter dem Eindruck der schwersten Wirtschaftskrise in ihrer Geschichte2. I n dieser Lage war die Kommission vorwiegend darum bemüht, wenigstens den „Besitzstand der Gemeinschaft" zu wahren 8 und mußte sich i m Hinblick auf weitere Fortschritte auf „die systematische Erkundung aller Möglichkeiten" beschränken. Wie groß die Gefahren waren, die sich aus der Wirtschaftskrise für den Bestand der Gemeinschaft ergaben, zeigt die Aussage der Kommission, es sei „ein hartes Stüde Arbeit" gewesen, den Ministerrat zu Beschlüssen für gemeinschaftliche Lösungen zu bringen, „ u m die Mitgliedstaaten so von einem Rückzug auf die eigenen Grenzen abzubringen" 3 . Z u der m i t Recht als notwendig erkannten Konvergenz der Wirtschafts- und Währungspolitiken registriert die Kommission bescheiden: „ M a n spricht aber anscheinend miteinander . . . " 3 . 2. I m deutlichen Kontrast zu diesem Befund steht der Beridit, den der belgische Premierminister Leo Tindemans dem Europäischen Rat über das Thema „ D i e Europäische U n i o n " am Anfang des Berichtszeitraums erstattete 4 . Seine Empfehlungen zum Ausbau der Gemeinschaften in Richtung auf eine umfassende Europäische U n i o n wurden auch i m Laufe des Jahres 1976 in den Gremien der Gemeinschaft diskutiert und v o m Europäischen Rat Ende N o vember „ausführlich erörtert" 5 . Mehr als eine Willenserklärung der Regierungschefs, „die Autorität u n d Effizienz der Gemeinschaftsorgane sowie deren Bejahung durch die Völker zu fördern" 6 und die Aufforderung an die Kommission, über die erreichbaren Fortschritte Bericht zu erstatten, löste der Tindemans-Bericht aber nicht aus. ι Vgl. den Bericht German Yearbook of International Law (GYIL), vol. 19 (1976), 484— 493. 2 So fast wörtlich Zehnter Gesamtbericht über die Tätigkeit der Europäischen Gemeinschaften, Brüssel / Luxemburg, Februar 1977 (im folgenden zitiert: Zehnter Gesamtbericht), Ziff. 1. 3 Ebenda. 4 Beilage 1/76 zum Bulletin der EG. 5 Zehnter Gesamtbericht, Ziff. 22. β AaO., Ziff. 23.

Die Europäischen

Gemeinschaften

im Jahre 1976

487

3. So war der Berichtszeitraum für die Gemeinschaft vorwiegend damit ausgefüllt, die bereits beschlossene Politik in den verschiedenen Zuständigkeitsbereichen durchzuführen — wie etwa den weiteren Zollabbau zwischen den sechs alten und den drei neuen Mitgliedstaaten — , Krisenerscheinungen mit Hilfe von Schutzmaßnahmen zu bekämpfen und die Außenbeziehungen gegenüber dritten Ländern auszubauen. A u f diesem letzten Gebiet waren sogar einige besonders wichtige Ereignisse zu verzeichnen: das Inkrafttreten des EWG/AKP-Abkommens von Lomé, die Bemühungen um den Ausbau der Beziehungen zu Griechenland, Portugal und Spanien sowie die Ausdehnung der Fischereizonen der Mitgliedstaaten. II.

Die institutionelle

Entwicklung

1. Die jährlichen drei Tagungen des Europäischen Rates fanden 1976 in Luxemburg 7 , Brüssel 8 und Den Haag statt, auf deren letzter, wie erwähnt, der Tindemans-Bericht zur Europäischen U n i o n erörtert wurde 9 . Der Rat der Europäischen Gemeinschaften hat wiederum — wie i m Zehnten Gesamtbericht ausdrücklich hervorgehoben w i r d 1 0 — eine Reihe von Mehrheitsentsdieidungen getroffen. Nicht nur, daß ein solches i m Vertrag ja vorgesehenes Verhalten bemerkenswert erscheint, ist bezeichnend für den Zustand des Entscheidungsverfahrens, sondern auch die Tatsache, daß das Verfahren, das nach dem Vertrag 1 1 die Regel sein sollte, nur einmal angewandt wurde. N u r „bei einer A b stimmung" stellte der Rat die Mehrheit formell fest. I n den anderen Fällen hatten einige Mitgliedstaaten lediglich darauf verzichtet, „ihren Standpunkt geltend zu machen" 12 . 2. Besonders gefeiert wurde der Beschluß des Rates, den A k t über die Direktwahl der Mitglieder des Europäischen Parlaments 13 zu verabschieden. Nachdem der Grundsatz der allgemeinen direkten W a h l bereits akzeptiert worden war, hatte es noch monatelang Streit über die Z a h l der Abgeordneten gegeben, die für jeden Mitgliedstaat in das Parlament einziehen sollten. Schließlich einigte man sich auf eine Gesamtzahl von 410 Abgeordneten, von denen je 81 aus der Bundesrepublik Deutschland, Frankreich, Italien und dem Vereinigten Königreich kommen sollen, 24 aus Belgien, 16 aus Dänemark, 15 aus 7

Zum Ergebnis der Tagung vgl. Bulletin der EG Nr. 4/1976, Ziff. 2423. 8 Vgl. dazu Bulletin der EG Nr. 7—8/1976, Ziff. 2434. » Bericht über die Tagung in Bulletin der EG Nr. 11/1976, Ziff. 2427; Erklärung zur Europäischen Union Ziff. 2501. Zehnter Gesamtbericht, Ziff. 39. 11 Art. 148 Abs. 1 EWG-Vertrag, 118 Abs. 1 Euratom-Vertrag. 12 Zehnter Gesamtbericht, Ziff. 39, Hervorhebung von mir. 18 Akt zur Einführung allgemeiner unmittelbarer Wahlen der Abgeordneten der Versammlung. Amtsblatt der EG (ABl) 1976, Nr. L 278, 5.

488

Hans R. Krämer

Irland, 6 aus Luxemburg und 25 aus den Niederlanden 1 4 . Die ersten Wahlen sollen i m M a i oder Juni 1978 stattfinden 15 . V o n den direkten Wahlen erhoffen sich ihre Befürworter eine Stärkung der Position des Europäischen Parlaments und davon neue Impulse für die europäische Einigung, zumindest eine Belebung der Europa-Diskussion in der wahlberechtigten Bevölkerung. Die Gegner sehen i n der D i r e k t w a h l insbesondere eine Gefahr für die nationale Souveränität der Mitgliedstaaten. Andere Beobachter vermuten, daß hier einmal mehr durch feierliche Zeremonien über die tatsächliche Stagnation der Gemeinschaft hinweggetäuscht werden w i r d . Schließlich ist auch möglich, daß nach der W a h l an die Stelle der vorherrschenden Integrationsfreundlichkeit der bisherigen (keinem Wahlkreis verbundenen) Parlamentarier eine betonte Vertretung der regionalen Interessen des Wahlkreises tritt. 3. I m Berichtszeitraum haben Abgeordnete des Europäischen Parlaments zweimal Mißtrauensanträge gegen die Kommission eingebracht. Der erste Antrag 1® wurde damit begründet, daß die Kommission das Parlament bei ihren Maßnahmen zur Verwendung der Überschüsse von Magermilchpulver nicht konsultiert habe und daß das von der Kommission angewandte System erhebliche Mängel habe. Über diesen Mißtrauensantrag — den zweiten i n der Geschichte der Gemeinschaft — kam es zum erstenmal zu einer Abstimmung. Wäre er mit der Mehrheit von zwei D r i t t e l n der abgegebenen Stimmen und der Mehrheit der Mitglieder des Parlaments angenommen worden, dann hätte die Kommission gemäß A r t i k e l 144 EWG-Vertrag geschlossen zurücktreten müssen. Er wurde jedoch m i t 109 gegen 18 Stimmen abgelehnt 17 . E i n zweiter Mißtrauensantrag richtete sich dagegen, daß die Kommission sich weigerte, einen Bericht über die Auszahlung zu hoher Erstattungsbeträge für die Ausfuhr von Malz (sog. Malzskandal) vorzulegen. Die Kommission behauptete, es handle sich um ein internes Papier, das nicht veröffentlicht werden könne. Der Antragsteller hielt dies für eine gravierende Verletzung der parlamentarischen Kontrollrechte. Er zog jedoch den Antrag später zurück, so daß es nicht zur Abstimmung kam 1 8 . 4. I m Rahmen der Ausarbeitung einer koordinierten Wirtschaftspolitik i n der Gemeinschaft fand zum zweitenmal eine A r t „konzertierter A k t i o n " auf europäischer Ebene statt. Nach der ersten Zusammenkunft i m November 1975 trat am 24. Juni 1976 die sog. Dreierkonferenz erneut zusammen 19 . 14

15 i» 17 18

19

Art. 2 des Akts zur Einführung unmittelbarer Wahlen. Beschluß des Rates vom 20. September 1976. ABl 1976 N r . L 278, 1. Bulletin der EG Nr. 5/1976, Ziff. 2403. EG-Magazin Nr. 7/1976, 17. Zu den Einzelheiten vgl. Bulletin der EG Nr. 12/1976, Ziff. 2403. Zehnter Gesamtbericht, Ziff. 219.

Die Europäischen

Gemeinschaften im Jahre 1976

489

Diese Konferenz, an der Vertreter der Arbeitnehmerverbände, der Arbeitgeberverbände und der neun Regierungen sowie der Kommission teilnehmen, legte eine „gemeinschaftliche Strategie zur Wiederherstellung von Vollbeschäftigung und Stabilität" fest 19 . Die Leitlinien, die im Hinblick auf diese Ziele zu verfolgen sind, wurden in einer gemeinsamen Erklärung zusammengestellt 20 . 5. Neue Institutionen entstanden auf Grund des Abkommens von Lomé zwischen der E W G und den AKP-Staaten (Staaten in Afrika, dem Karibischen und dem Pazifischen Raum). Nachdem dieses Abkommen 2 1 am 1. A p r i l 1976 i n K r a f t getreten war, trat der im Abkommen vorgesehene Ministerrat am 14./15. Juli 1976 zum erstenmal in Brüssel zusammen 22 . Er besteht aus den Mitgliedern des Rates der Europäischen Gemeinschaften, einer unbestimmten Zahl von Mitgliedern der Kommission und je einem Mitglied der Regierungen der AKP-Staaten 2 S . Er legt „die großen Leitlinien für die i m Rahmen dieses Abkommens durchzuführenden Arbeiten fest" 2 4 . Außerdem überprüft er die Ergebnisse des Abkommens und t r i f f t die zu seiner Durchführung „erforderlichen Maßnahmen" 2 5 . Dabei kann er in den i m Abkommen vorgesehenen Fällen verbindliche Beschlüsse fassen 26 sowie Empfehlungen aussprechen und Stellungnahmen abgeben 27 . A u f einer Sitzung v o m 14./15. Juli 1976 beschloß der E G - A K P - R a t unter anderem, die Komoren, die Seychellen und Surinam in das Lomé-Abkommen aufzunehmen und die i m Abkommen vorgesehenen Finanzmittel 2 8 wie folgt zu verteilen: 37 v H für die Ausweitung der Agrarproduktion in den A K P Ländern, 27 v H für Infrastrukturvorhaben, 15 v H für soziale, 11 v H für industrielle und 10 v H für regionale und überregionale Projekte 2 9 . 6. Die ebenfalls auf dem Abkommen von Lomé beruhende Beratende A K P EWG-Versammlung hatte ihre konstituierende Sitzung vom 1.—3. Juni 1976 i n Luxemburg 3 0 . Sie setzt sich paritätisch aus Mitgliedern des Europäischen Parlaments und Vertretern zusammen, die gemäß Artikel 80 des Abkommens von Lomé von den AKP-Staaten benannt werden. so Abgedruckt in Bulletin der EG Nr. 6/1976, Ziff. 1102. 21 AKP-EWG-Abkommen von Lomé, ABl 1976 Nr. L 25, 2. 22 EG-Magazin Nr. 10/1976, 15. 23 Art. 70 des Abkommens von Lomé. 24 Art. 74 Abs. 1 des Abkommens von Lomé. 25 Art. 74 Abs. 2. 26 Art. 74 Abs. 3. 27 Art. 74 Abs. 4. 28 Art. 42 des Abkommens von Lomé. 29 EG-Magazin N r . 10/1979, 15/16. 30 Zehnter Gesamtbericht, Ziff. 35.

490

Hans R. Krämer

HL

Der Ausbau des Gemeinsamen Marktes

1. Z u m Ausbau des Gemeinsamen Marktes setzte die Kommission ihre Bemühungen u m die Beseitigung der nichttarifären Handelshemmnisse zwischen den Mitgliedstaaten fort und arbeitete neue Vorschläge aus. V o n den früheren Vorschlägen nahm der Rat i m Laufe des Jahres 22 Richtlinien an, die eine Vereinheitlichung technischer Daten auf Gemeinschaftsebene zum Gegenstand hatten 3 1 . Sie betrafen v o r allem Bestandteile von Kraftfahrzeugen — etwa Begrenzungsleuchten, Schlußleuchten und Bremsleuchten — aber auch z. B. medizinische Thermometer u n d kosmetische M i t t e l . Z u den nichttarifären Handelshemmnissen zählt ferner die Bevorzugung heimischer Unternehmen bei der Vergabe von öffentlichen Aufträgen. Dabei geht es nicht nur um Aufträge der Verwaltungsbehörden, sondern auch um solche von Krankenhäusern, Schulen und Hochschulen, der Streitkräfte usw. Welche Größenordnungen dabei erreicht werden, zeigen Schätzungen, nach denen alle öffentlichen Aufträge zusammengenommen 7 bis 11 v H des Bruttoinlandsprodukts ausmachen32. Solche Aufträge werden häufig vorrangig an heimische (örtliche) Unternehmen vergeben, häufig werden ausländische (auswärtige) Unternehmen audi einfach deshalb nicht beteiligt, weil sie nichts v o n den Aufträgen erfahren. Es trägt deshalb erheblich zur Herstellung gleicher Wettbewerbschancen i m Gemeinsamen M a r k t bei, daß der Rat am 21. Dezember 1976 eine Richtlinie über die Vergabe öffentlicher Aufträge erlassen hat 3 3 , nach der die öffentlichen Auftraggeber — Staaten, Provinzen, Gemeinden usw. — Aufträge über mehr als 200 000 Rechnungseinheiten bekanntzumachen 34 und die Unternehmen bei der Vergabe gleich zu behandeln haben 35 . Damit werden die Richtlinien, die für öffentliche 5