Hostname: page-component-848d4c4894-m9kch Total loading time: 0 Render date: 2024-04-30T12:19:51.129Z Has data issue: false hasContentIssue false

New Dimensions in International Law

Published online by Cambridge University Press:  02 September 2013

Herbert W. Briggs
Affiliation:
Cornell University

Extract

In the chilling atmosphere of the cold war, attention is more readily turned to the politics of power and to concepts of the national interest than to international law and the services it may perform. Indeed, two distinguished writers have recently warned us against what George Kennan calls “the legalisticmoralistic approach to international problems,” or “the belief that it should be possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints,” “some formal criteria of a juridical nature by which the permissible behavior of states could be defined,” instead of by dealing with “awkward conflicts of national interest … on their merits with a view to finding the solutions least unsettling to the stability of international life.” Instead of “making ourselves slaves of the concepts of international law and morality,” Kennan writes, we should “confine these concepts to the unobtrusive, almost feminine, function of the gentle civilizer of national self-interest in which they find their true value.”

Type
Research Article
Copyright
Copyright © American Political Science Association 1952

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Kennan, George F., American Diplomacy, 1900–1950 (Chicago, 1951), pp. 9596Google Scholar. (Italics added.)

2 Ibid., p. 54.

3 Ibid., p. 100.

4 Morgenthau, Hans J., In Defense of the National Interest: A Critical Examination of American Foreign Policy (New York, 1951), p. 144Google Scholar. (Italics added.)

6 Ibid., pp. 33 ff., 101 ff. Morgenthau has himself admitted that “mankind has at all times refused to forego ethical evaluation of political action” and that “political practice, in turn, takes ethical evaluation of political action for granted. The actors on the political scene, however they may be guided by considerations of expediency, must pay their tribute to these standards by justifying their actions in ethical terms” (Scientific Man vs. Power Politics, Chicago, 1946, pp. 176177Google Scholar).

7 See McDougal, Myres S., “Law and Power,” American Journal of International Law, Vol. 46, pp. 102114 (1952)CrossRefGoogle Scholar; Tucker, Robert W., “Professor Morgenthau's Theory of Political ‘Realism,’American Political Science Review, Vol. 46, pp. 214224 (1952)CrossRefGoogle Scholar.

8 Emanuel Margolis, “Certain Aspects of the Impact of Communism on International Law,” abstract of Harvard doctoral dissertation in Department of State, Office of Intelligence Research, External Research Staff Paper, Abstract Series No. 1 (March, 1952), pp. 4042Google Scholar.

9 Extemporaneous remarks by Secretary Acheson at his press conference, Feb. 8, 1950, in Department of State Bulletin, Vol. 22, No. 555, p. 273 (Feb. 20, 1950)Google Scholar. Secretary Acheson and Professor Morgenthau, as is well known, differ on the timing of any attempt at an overall settlement with the Soviet Union.

10 Briggs, Herbert W., The Progressive Development of International Law, Publications of the Turkish Institute of International Law, No. 4 (Istanbul, 1947), p. 45Google Scholar. Cf. Morgenthau, , In Defense of the National Interest, p. 147Google Scholar; Dunn, Frederick S. in Brodie, Bernard (ed.), The Absolute Weapon: Atomic Power and World Order (New York, 1946), pp. 7 ff.Google Scholar

11 “The Frontiers of International Law,” in The Year Book of World Affairs, 1952, Vol. 6 (London, 1952), pp. 246, 273Google Scholar.

12 Op. cit. (above, n. 7), p. 113.

13 Law and the Growth of the International Community,” address before the American Society of International Law, April 24, 1952, in Department of State Bulletin, Vol. 26, No. 671, pp. 694, 698 (May 5, 1952)Google Scholar.

14 In the Western Hemisphere, twenty: The United States of America, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay, and Venezuela.

In Europe, nineteen (excluding Andorra, Liechtenstein, Monaco, and San Marino): Austria-Hungary, Belgium, Denmark, France, Germany, Great Britain, Greece, Italy, Luxembourg, Montenegro, The Netherlands, Norway and Sweden, Portugal, Roumania, Russia, Serbia, Spain, and Switzerland.

In Africa, two: Abyssinia, Liberia.

In Asia, six: China, Japan, Korea, Persia, Turkey, and Siam.

15 The following states, existing in 1952, had emerged during the preceding fifty years: In the Western Hemisphere, two: Canada, Panama.

In Europe, ten: Albania, Austria, Bulgaria, Czechoslovakia, Finland, Hungary, Iceland, Ireland, Poland, and Yugoslavia. (Austria-Hungary, Serbia, and Montenegro, exising in 1902, had disappeared; and Estonia, Latvia, and Lithuania rose and fell as independent states between 1919 and 1940.)

In Africa, three: Egypt, Libya, South Africa.

In Asia, twenty-two: Afghanistan, Australia, Burma, Cambodia, Ceylon, India, Indonesia, Iraq, Israel, Jordan, Korea (Republic of), Laos, Lebanon, Mongolia, Nepal, New Zealand, Pakistan, Philippines, Saudi Arabia, Syria, Viet Nam, and Yemen.

16 See citations in Briggs, Herbert W., The Law of Nations: Cases, Documents, and Notes, 2d ed. (New York, 1952), pp. 65–66, 69, 74–75, 78–82, 8485Google Scholar; Briggs, , “Community Interest in the Emergence of New States: The Problem of Recognition,” Proceedings of the American Society of International Law (1950), pp. 169181Google Scholar.

17 Introduction to the Annual Report of the Secretary-General on the Work of the Organization, 1 July 1950–30 June 1951, United Nations, General Assembly, Official Records, 6th Sess., Supp. No. 1A (A/1844/Add. 1), p. 2.

18 U. N. Doc. E/CN.4/663, 21 April 1952. See also Summary Records of the Commission on Human Rights, E/CN.4/SR. 252–261 (covering April 14–21, 1952); Secretariat Memoranda on Self-determination, E/CN.4/649 and 662 (1952); United Nations Bulletin, Vol. 12, No. 9, pp. 371373 (May 1, 1952)Google Scholar.

19 Those under the control of Members of the United Nations are listed in the Yearbooks of the United Nations. Lyle W. Shannon classifies 85 of “the 196 major political entities of the world” as self-governing and 111 as non-self-governing. See “The Non-Self-Governing Political Entity,” abstract of doctoral dissertation, in Department of State, Office of Intelligence Research, External Research Staff, Abstract Series No. 1, pp. 4550 (1952)Google Scholar.

20 E/CN.4/SR. 252, 30 April 1952 (meeting held 14 April 1952), pp. 7–9.

21 The pressing nature and the non-legal complexities of the problem are set forth by Sayre, Francis B. in “The Quest of Independence,” Foreign Affairs, Vol. 30, pp. 564579 (July, 1952)CrossRefGoogle Scholar.

22 See above, and Briggs, “The Problem of Recognition.”

23 A Modern Law of Nations: An Introduction (New York, 1948), pp. 4451Google Scholar.

24 Cf. remarks of Mr.Austin, , United Nations, Security Council, Official Records, 3rd Year, No. 68 (294th Meeting, May 18, 1948), p. 16Google Scholar; and further citations in Briggs, , “The Problem of Recognition,” p. 180Google Scholar.

25 See Wilk, Kurt, “International Law and Global Ideological Conflict: Reflections on the Universality of International Law,” American Journal of International Law, Vol. 45, pp. 648670 (1951)CrossRefGoogle Scholar; Josef L. Kunz, “Revolutionary Creation of Norms of International Law,” ibid., Vol. 41, pp. 119–126 (1947).

26 I.C.J. Reports, 1949, pp. 174, 179.

27 Ibid., p. 178.

28 Ibid., p. 185. Procedurally, the United Nations still lacks capacity to bring a claim before the International Court of Justice because of the provision in Article 34 (1) of the latter's Statute that “only states may be parties in cases before the Court.” This should be amended so as to permit certain international organizations to become parties.

See also Parry, Clive, “The Treaty-Making Power of the United Nations,” British Year Book of International Law, 1949, Vol. 26, pp. 108149Google Scholar.

29 P. 178.

30 Sei Fujii v. The State of California, 242 P. 2d 617 (1952). Cf. Department of State Bulletin, Vol. 26, No. 672, p. 744 (May 12, 1952)Google Scholar: “Although the California Supreme Court split 4–3 on the constitutional issues in the case, all seven justices agreed that the human rights provisions of the U.N. Charter did not operate of themselves to invalidate the Alien Land Law.” See also Preuss, Lawrence, “Some Aspects of the Human Rights Provisions of the Charter and Their Execution in the United States,” American Journal of International Law, Vol. 46, pp. 289296 (1952)CrossRefGoogle Scholar.

31 See United Nations Conference on International Organization, 1945, Documents, Vol. 6, pp. 705, 325Google Scholar.

32 Compare the remark of Rapporteur of Subcommittee I/1/ A to Committee I/1, U.N.C.I.O. Doc. 723, June 1, 1945, Vol. VI, p. 705, that “assuring or protecting such fundamental rights is primarily the concern of each state. If, however, such rights and freedoms were grievously outraged so as to create conditions which threaten peace or to obstruct the application of provisions of the Charter, then they cease to be the sole concern of each state”; and Article 54 of the Draft International Covenant on Human Rights: “Normally, the [Human Rights] Committee shall deal with a matter referred to it only if available domestic remedies have been evoked and exhausted in the case …” (Department of State Bulletin, Vol. 24, No. 626, p. 1013, June 25, 1951Google Scholar).

33 For the text, see U.N. Doc. A/810, p. 174; for thirty-six ratifications to April 1952, see United Nations Bulletin, Vol. 12, No. 9, p. 370 (May 1, 1952)Google Scholar.

34 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 1945–1946, Official Documents, Vol. 1, p. 223Google Scholar.

35 See Historical Survey of the Question of International Criminal Jurisdiction, Secretariat Memorandum, U.N. Doc. A/CN.4/7/Rev.l (1949); Pella, Vespasien V., Memorandum Concerning a Draft Code of Offences Against the Peace and Security of Mankind, U.N. Doc. A/CN.4/39, 24 November 1950Google Scholar.

36 See Wright, Quincy, “Proposal for an International Criminal Court,” American Journal of International Law, Vol. 46, pp. 6072 (Jan., 1952)CrossRefGoogle Scholar; Yuen-li Liang, “The Establishment of an International Criminal Jurisdiction: The First Phase,” ibid., pp. 73–88; and editorial comment by George A. Finch, C. G. Fenwick, and Pitman B. Potter, ibid., pp. 89–102.

37 Cf. Historical Survey, U.N. Doc. A/CN.4/7/Rev.1, pp. 3, 8–12, and materials there cited.

38 See Report of the International Law Commission Covering its Third Session, May 16-July 27, 1951, U.N. Docs. A/1858 and A/CN.4/48 (1951), paragraphs 54–59; reprinted in American Journal of International Law, Vol. 45, Supp., pp. 123132 (1951)Google Scholar.

39 See Report of the International Law Commission Covering Its Second Session, June 5-July 29, 1950, U.N. Docs. A/1316 and A/CN.4/34 (1950), paragraphs 95–127; reprinted in American Journal of International Law, Vol. 44, Supp., pp. 125134 (1950)Google Scholar.

40 Cf. The Charter and Judgment of the Nürnberg Tribunal: History and Analysis, Secretariat Memorandum, U.N. Doc. A/CN.4/5, 3 March 1949, pp. 21–23.

41 Wright, op. cit. (above, n. 36), p. 71.

42 Op. cit. (above, n. 38), par. 58.

43 United Nations, General Assembly, Committee on International Criminal Jurisdiction, Report to the General Assembly on the Session held 1–31 August 1951, A/AC.48/4, 5 September 1951. See also Summary Records of the Committee, A/AC.48/SR. 1–31 (1951); Secretariat Memorandum on Creation of an International Criminal Court A/AC.48/1, 2 July 1951; Pella Memorandum Concerning the Establishment of an International Criminal Court, A/AC.48/3, 17 July 1951.

44 Cf. Wright, op. cit.

45 See p. 684.

46 See Yearbook of the United Nations, 1946–47, pp. 670, 678, 693–694, 793794 (1947)Google Scholar.

47 See United Nations Bulletin, Vol. 12, No. 11 (06 1, 1952) p. 445Google Scholar. Ten states, not including the United States, had ratified by May 21, 1952.

48 See below, pp. 690–693.

49 See, for example, Minutes and Documents of the 8th Session (Madrid, 1951) of the Legal Committee, International Civil Aviation Organization, Doc. 7229-LC/133, pp. xxx, 326 (Montreal, Nov., 1951), and the minutes and documents of previous sessions.

50 Fifth Report of the International Labor Organization to the United Nations, p. 183 (1951)Google Scholar.

51 Ibid., p. 184. Cf. International Organization, Vol. 5, No. 3, p. 600 (1951)Google Scholar.

52 Constitution of the International Labor Organization, Art. 3, Yearbook of the United Nations, 1946–47, p. 671Google Scholar.

53 Ibid., Art. 4.

54 Ibid., Art. 19(2), p. 674.

55 See Briggs, , The Progressive Development of International Law, pp. 2224Google Scholar.

56 “International Sanitary Regulations, Proceedings of the Special Committee and of the 4th World Health Assembly on WHO Regulations No. 2,” Official Records of the World Health Organization, No. 37 (Geneva, 04, 1952), pp. 12Google Scholar.

57 Constitution of the World Health Organization, Yearbook of the United Nations, 1946–47, pp. 794, 796Google Scholar.

58 Official Records of the World Health Organization, No. 37, p. 329.

59 Ibid., p. 323. For the text of International Sanitary Regulations (WHO Regulations No. 2), see pp. 335–365.

60 Since the Director-General notified “all States” by letter dispatched June 11, 1951, of the adoption of the Regulations, the deadline for notification, in order for rejections or reservations to be “effective,” was midnight March 11, 1952. See Explanatory Memorandum of the Director-General, ibid., p. 329. Non-Members of the World Health Organization may become parties to the Regulations under certain circumstances (Art. 110).

The President of the Fifth World Health Assembly, which met in May, 1952, observed: “The fact that, of the eighty-nine governments which could have done so, only twenty-five submitted reservations or amendments shows that patient efforts motivated by respect for others and by enlightened self-interest can lead to agreements even in a field where differences in technical development, geography, and climate play such an important role” (United Nations Bulletin, Vol. 12, No. 12, p. 483, 06 15, 1952)Google Scholar.

61 The Pan American Sanitary Convention signed at Habana, November 14, 1924, U. S. Treaty Series 714, remains in force with the exception of 44 of its 63 articles. In effect, its provisions are superseded by the WHO Regulations No. 2 except for the continued obligations of parties to communicate information to the Pan American Sanitary Bureau and the continuation of that bureau's informational activities. On “regionalism” in the World Health Organization, see Ascher, Charles S., “Current Problems in the World Health Organization's Program,” International Organization, Vol. 6, pp. 2750 (1952)CrossRefGoogle Scholar.

62 Official Records, World Health Organization, No. 37, p. 332. “The procedure for amendment of the regulations is equally simple, and the World Health Assembly can ensure that the regulations are promptly and continually adapted to changing circumstances and needs” (ibid., p. 2).

63 The Law of the United Nations—A Critical Analysis of its Fundamental Problems (London, 1950), pp. xviii, 903Google Scholar, and his supplement thereto, Recent Trends in the Law of the United Nations (London, 1951), pp. 909994Google Scholar.

64 In The British Year Book of International Law, 1945, Vol. 22, pp. 1172Google Scholar.

65 Resolution 377 (V) adopted at 302nd plenary meeting, Nov. 3, 1950.

66 See, e.g., the interesting legal study of de Aréchaga, Eduardo Jiménez, Voting and the Handling of Disputes in the Security Council, Carnegie Endowment for International Peace, United Nations Studies, No. 5 (New York, 1950)Google Scholar.

67 Although some fifty documents or memoranda have appeared in the United Nations series on the work of the International Law Commission, A/CN.4/, only about half a dozen have been printed and made available for purchase.

68 Annex to Report of the International Law Commission Covering its Third Session, May 16-July 27, 1951, United Nations, General Assembly, Official Records, 6th Sess., Supp. No. 9, Doc. A/1858; also in Doc. A/CN.4/48, July 30, 1951, and in American Journal of International Law, Vol. 45, Supp., pp. 139147 (1951)Google Scholar. See comment thereon by Richard Young,ibid., Vol. 46, pp. 123–128 (1952).

69 U.N. Doc. A/CN.4/32, 14 July 1950, 112 pp.

70 Ibid., pp. 1–14.

71 Ibid., p. 15.

72 Ibid., pp. 102 ff.

73 Survey of International Law in Relation to the Work of Codification of the International Law Commission, Secretariat Memorandum, U.N. Doc. A/CN.4/1, 5 Nov. 1948, p. 16. For comments by certain governments on the Commission's Draft Articles, see U.N. Doc. A/CN.4/55, 16 May 1952.

74 See International Court of Justice Reports, 1947, 1948, 1949, 1950, 1951, 1952.

75 See, further, Fitzmaurice, G. G., “The Law and Procedure of the International Court of Justice: General Principles and Substantive Law,” British Year Book of International Law, 1950, Vol. 27, pp. 141 (1951)Google Scholar; Trends in the Work of the International Court of Justice,” unsigned note, Harvard Law Review, Vol. 65, pp. 660673 (1952)CrossRefGoogle Scholar.

76 “Trends in the Work of the International Court of Justice,” p. 671.

77 See International Court of Justice, Yearbook, 1950–1951, pp. 69–70 (1951). The Year-books include useful information on the “effect” of the judgments and opinions of the Court.

78 Scientific Man vs. Power Politics, p. 116.

79 Introduction to the Annual Report of the Secretary-General, 1950–1951, p. 5.