Although a number of learned articles and even books have appeared recently on the subject of state succession, relatively little has been written about the practical problems faced by a new state seeking to establish the scope of its treaty obligations. An examination of these practical, even mundane, problems indicates that some of the current theoretical arguments are unreal, and that a shift of emphasis in discussion would be desirable.

The practical problems in defining a new state’s treaty obligations are illustrated well by the cases of new Commonwealth countries.

Since mid-1961, a research project at Queen’s University at Kingston, Ontario, has sought to determine which of the old British treaties continue to apply to Canada. Surprisingly enough, even an older Commonwealth country like Canada has not yet been able to reach a firm decision on this question. Thus, Professor (now Dean) Maxwell Cohen of McGill University was obliged to tell the Duke Conference on Canadian-American Treaty Relations in 1961 that existing Canadian publications were inadequate, and to urge that Canada's treaties be collected and published.

The tendency to hold the United States entirely responsible for the domestic jurisdiction reservation has diverted attention from the role of the Commonwealth members in the definition of that clause. Commonwealth members were concerned with it at the Paris Peace Conference and the San Francisco Conference and, as members of both world organizations established at those conferences, have taken a lead in applying the reservations drafted on both occasions. At San Francisco it was the Australian, Herbert V. Evatt, as well as John Foster Dulles, who proposed broadening the effect of the domestic jurisdiction reservation in Article 2, paragraph 7, of the Charter of the United Nations. It was again Evatt who headed the sub-committee of the Security Council to determine international competence to deal with the Franco regime in Spain and who managed the reversal of the limitation for which he had fought at San Francisco. It was in a dispute between India and the Union of South Africa that the General Assembly elaborated on the beginning made by Evatt in developing the concept of “international concern.” In the World Court the Commonwealth countries have been parties to leading cases involving domestic jurisdiction and, perhaps partly through their capable legal arguments, have succeeded in having their views incorporated into Court opinions and decisions. The Permanent Court of International Justice, for example, adopted much of the British argument in its Advisory Opinion in the Tunis-Morocco Nationality Decrees case.

Le Progrès a ses servitudes: le bruit en est une, et il connaît un développement intimement lié à l’accroissement prodigieusement rapide des techniques modernes. Constitue-t-il une “tare” de cette évolution technique? On serait tenté de le penser à la lecture des articles de revues qui lui sont consacrés, sans oublier les chroniques judiciaires qui laissent entrevoir le “malaise social” véritable créé par le bruit et qui nécessite de plus en plus l’intervention des pouvoirs publics pour l’enrayer. A cet égard, il est intéressant de noter que deux “guerres” sont menées contre le bruit, l’une essentiellement psychologique et visant à faire accepter le bruit par ceux qui en subissent les méfaits en leur expliquant qu’ils participent au développement d’un monde sans cesse en progres et que les “inconvénients normaux” causés par le bruit des avions est un mal nécessaire: le transport aérien est un service public d’intérêt général et son développement ne peut être entravé par des considérations pécuniaires. L’autre attitude est moins libérale: elle semble prendre seulement en considération l’existence de ce fléau cause de dommages tant materiels que physiques et moraux. S’il est vrai que l’esprit de compréhension et de tolérance existe parfois, le degré de tolérance a ses limites. Certaines grandes villes l’ont compris en prenant des arrêtés municipaux assortis de pénalités visant ceux qui troublent la tranquillité et la paix du voisinage par un bruit excessif. Cependant, si le bruit des villes est continu et semble être devenu un phènoméne ennemi avec lequel il faut vivre et composer, le bruit créé par les nouveaux types d’appareils à réaction (commerciaux et militaires) semble l’emporter sinon en fréquence ou en étendue du moins en intensité.

The Advisory Opinion handed down by the World Court on July 20, 1962, concerning Certain Expenses of the United Nations has become a political cause célèbre in so far as the majority judicial position in it was backed up by the Western-sponsored action, in terms of Article 19 of the United Nations Charter, to deprive the Soviet Union and France of their vote in the General Assembly. The Advisory Opinion of the World Court has, however, its own intrinsic interest in terms of juristic method and of basic Soviet and Western differences in scientific approach to law. In his dissenting, judicial opinion in that case, the then President of the Court, the Polish jurist, Judge Winiarski, formulated principles of interpretation which reveal, very dramatically, the basic doctrinal differences between Soviet bloc and Western jurists as to the nature and character of the Charter. As President Winiarski commented:

The Charter has set forth the purposes of the United Nations in very wide, and for that reason too indefinite, terms. But… it does not follow, far from it, that the Organisation is entitled to seek to achieve those purposes by no matter what means. The fact that an organ of the United Nations is seeking to achieve one of those purposes does not suffice to render its action lawful. The Charter, a multilateral treaty which was the result of prolonged and laborious negotiations, carefully created organs and determined their competence and means of action.

By Resolution 2062 (XX) of December 16, 1965, the United Nations General Assembly requested the Economic and Social Council to transmit to the Commission on Human Rights a proposal by Costa Rica to create the post of United Nations High Commissioner for Human Rights, so that the Commission might study the matter and report on it to the General Assembly at its twenty-first session in 1966. The Commission on Human Rights considered the item in March 1966, and by resolution 4 (XXII) established a Working Group comprising nine members of the Commission to study the proposed institution and to report to the Commission at its twenty-third session in 1967. The item was not taken up by the Third Committee during the Assembly’s twenty-first session in 1966, partly because background studies on the subject had not been completed, and partly because the Committee had allocated most of its time to the task of completing measures of implementation for the two International Covenants on Human Rights.

Traditionally, international law has come to be regarded as consensual in nature, depending for its authority upon the recognition and acceptance of those entities which it seeks to bind. This view was accepted by the Permanent Court of International Justice in the S.S. Lotus: “The rules of law binding upon States emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.” Article 38 of the Statute of the World Court, when listing the “sources” of international law, also acknowledges its consensual basis. In its substantive portion the article refers to conventions “establishing rules expressly recognized by the contesting States.” It then refers to custom “as evidence of a general practice accepted as law,” which has been explained by the International Court of Justice in the Asylum Case: “The Party which relies on a custom … must prove that this custom is established in such a manner that it has become binding on the other Party. [It] must prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the [one] State … and a duty incumbent on the [other] State.”

The 1960’s have been designated by the General Assembly as “United Nations Development Decade.” The main economic objective for the decade is the creation of conditions in which the national incomes of the developing countries will increase by 5 per cent yearly by 1970, and will continue to increase at the same rate thereafter. The means by which this objective is being pursued are many; among others are national planning, technical training and capital assistance, by both multilateral and bilateral agencies. Successful as these public sector assistance schemes have been, however, it is now recognized that an increasingly large share of responsibility must be borne by the private sector of the economies of the developed nations by means of overseas investment and international trade.

Le Commerce International connaît depuis quelques années un progrès spectaculaire. Son volume est aujourd-hui trois fois plus considérable que celui de 1948. Le commerce communément appelé “Est-Ouest” se développe également de plus en plus. Les pays d’économie libre ont vendu en 1964 aux pays d’économie planifiée du type communiste-socialiste des biens d’une valeur totale de $6,682,200,000, ce qui représente une augmentation de 19.1 % en un an. La République Fédérale d’Allemagne a pris le premier rang comme vendeur pour une somme de $796,000,000. Le Canada, pour sa part, a accusé le solde actif le plus considérable, soit $535,000,000, quoique ses exportations n’aient pas dépassé le montant de $569,000,000, tandis que l’Allemagne s’est contentee d’un solde actif de $276,000,000. Les pays de l’Est, y compris la République Populaire de Chine, ont atteint une augmentation de leur commerce international de 9%, avec des ventes en 1964 aux pays de l’Ouest au montant de $6,779,000,000 et avec un solde actif de $97,000,000. La Chine populaire a dirige 68% de son commerce extérieur vers les pays non communistes; elle a importé en 1964 pour $1,750,000,000, ses exportations ayant dépassé $2,000,000,000.

The desire of many new states to have international air services of their own in an era of high-cost aircraft is imposing great pressure on traditional concepts of nationality and registration of aircraft. It has long been held that civil aircraft must have a nationality, that they must be registered in a state and that they must have the nationality of the state of registry. As the plan of the new states concerned is to have the international air services in question furnished through international operating agencies established by them and owning aircraft registered on other than a national basis, it is not surprising that this plan is currently the object of serious study. In particular, the International Civil Aviation Organization (ICAO) has established a legal subcommittee to study problems of nationality and registration of aircraft of international operating agencies arising in relation to the application of Article 77 of the Convention on International Civil Aviation, opened for signature at Chicago on December 7, 1944.

The canadian plan suggested to the 21st session of the General Assembly of the United Nations in 1966 for re-allocating China's seat in the world Organization was designed to bring about a breakthrough in resolving a question of great complexity that has beset that Organization for some 17 years. It has attracted world-wide attention and evoked various comments by both practitioners and students of international politics.

Before analyzing the contents and denoting the legal and political implications of the plan, it is necessary to review briefly the background and the discussions of the question of China's representation at the 21st General Assembly.

The increase in private international investment since the Second World War has given rise to a substantial number of disputes, often of a most complex nature. A private investor in a foreign land might be subject to certain governmental activities which tend to undermine his investment and provoke a subsequent legal claim. Expropriation and nationalization, currency and exchange restrictions, discriminatory taxation, export and import quotas, and political and economic harassment are types of governmental activity that have given rise to disputes in the past. Governments have traditionally defended many such activities as necessary measures to curb excessive resource exploitation and to deter the promotion of foreign investment schemes inconsistent with national interests.

A first reading of the majority opinion in the South West Africa Cases, Second Phase, may leave the Common Law reader with the feeling of having waded through the marshes of a pre-Judicature Act search for a form of action in which to frame this case; the plaintiff having failed to find the proper writ, the defendant's demurrer is thereby upheld. The extremely technical, indeed artificial, nature of the International Court of Justice's judgment of 1966 has already stirred controversy, but one suspects that the heat of debate will cool rapidly out of sheer frustration with this judgment. Many writers will assume the attitude of Judge Wellington Koo who said in his dissenting opinion that “There is a Chinese proverb put in the form of a question: Why write a long and big essay on such a small subject?” In labouring to bring forth its largest judgment yet (500 pages), the International Court of Justice has engaged in what Judge Jessup, in his excellent dissenting opinion, called a “procedure of utter futility.”