Abstract
The world today is in a process of deep-rooted changes which is reshaping the global picture. In this connection one is accustomed to think in the first place of the technological achievements of mankind, and expressions like “atomic age,” “nuclear age” and now “space age“ have found their place in common speech.
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Alvarez, Brierly, Eagleton, Fenwick, Jenks, Jessup, Keeton, Kunz, Lauterpacht, McDougal, Morgenthau, Quincy Wright, Röling, Rousseau, Stone, Schwarzenberger, De Visscher and Wilk are only a few of those whose writings deal frequently with the changing character of international law. The list could be supplemented with numerous authors from the same and other countries.
Cf. Fifield, The Diplomacy of South East Asia 1945–1958 (1958); Panikkar, Asia and Western Dominance (1953); Bowles, Ambassador’s report (1954); Lasker, New Forces in Asia (1950); Van Mook, The Stakes of Democracy in SE Asia (1950); Mills, The New World of South East Asia (1949); Brodie, South East Asia in the World To-day (1950). The degree of unity has been considered more directly in: Thompson and Adloff, “Asian Unity: Force or Façade,” 16 Far Eastern Survey 97–99 (1947); Venkatasubbiah, “Prospects of an Asian Union,” 5 India Q 99–112 (1949).
Schwarzenberger, Power Politics 124 (2d ed. 1951 ); Hatta, “Indonesia between the Power Blocs, 36 For. Aff. 480–490; Fenwick, ”Legal Aspects of Neutralism,“ 51 71–74 (1957). Fifield, op. cit. supra at 523.
The great significance attached to this conference is demonstrated by the equally great number of books and articles which have appeared in all parts of the world. A few examples may follow:
Kahin, The Asian-African Conference (1956); Romulo, The Meaning of Bandung (1956); Richard Wright, The Colour Curtain–A Report on the Bandung Conference (1956); Appadorai, The Bandung Conference (1956); Chaudri, “The Asian-African Conference, ” 8 Pakistan Horizon 1955; Chou En-lai, “The Asian-African Conference at Bandung,” 7 United Asia (1955); “La Conférence de Bandoeng,” 8 Chronique de politique étrangère 387–399 (1955); Abendroth, “Die völkerrechtliche Bedeutung der Bandung Konferenz,” 6 Archiv des Völkerrechts 55–61 (1956).
Fifield, op. cit. supra note 2, at 102; MacMahon Ball, “A Political Re-examination of SEATO,” 12 Int. Org. 1–16 (1958); Boutros Ghali, “Le Pacte du Sud-Est Asiatique,” 6 jahrb. f. Int. Recht 167–177 (1955).
See Hudson, “The International Law of the Future,” 38 A.J.LL. 278–281 (1944); Jenks, The Common Law of Mankind 62–64 (1958).
Cf. Kunz, “The Changing Law of Nations,” 51 A.J.I.L. 77–83 (1957); Jessup, Transnational Law (1956); McDougal, “International Law, Power and Policy — A Contemporary Conception,” 82 Hague Recueil 137–258 (1953); Morgenthau, “World Politics in the Mid-twentieth Century,” 10 Review of Politics 154–173 (1948); H. A. Smith, The Crisis in the Law of Nations (1947); Grayson Kirk a.o., The Changing Environment of International Relations (1956); Samore, “The New International Law of Alejandro Alvarez” 52 A.J.LL. 41–55 (1958); Fenwick, “International Law — What is its Function To-day?” 121 World Affairs 8 (1958); Yoshitaka Horinouchi, “Cold War Diplomacy Makes International Law and World Court Obsolete,” 7 Gaisei (For. Aff.Q.) i — xi (1957); Vasudev Pillai, “International Law in a Changing World,” 2/3 Justitia (Osmania Univ. Law College) 116–133 (1956).
Schwarzenberger, op. cit. supra note 3, at 104; Germany, for instance, comprised towards the end of the Thirty Years War about 900 sovereign states. This number decreased to 355 in 1648, 200 in 1803, 36 in 1815. Morgenthau, supra note 7, at 157.
Schwarzenberger, op. cit. supra note 3, at 39.
Id. at 178–185; Morgenthau, supra note 7, at 158; Kaplan, “Balance of Power-Bipolarity and Other Modes of International Systems,” 51 Am. Pol. Sci. Rev. 684–695 (1957).
For the shifting and changing pattern of the power struggle, see Schwarzenberger, op. cit. supra note 3, at 113–117.
Id. at 121, 123. Schwarzenberger, at the time of writing his book (1951) regarded “The British Commonwealth” as a world power.
Not long ago Senator William F Knowland, Senate Republican Leader, suggested that Norway should pull out of the NATO, in return for a withdrawal of Soviet Russia from Hungary, and disarmament negotiations in London in 1947 included an inspection plan for the whole of the Arctic circle. The opinions of Norway and neutral Sweden were not mentioned at all. See James Reston in the N. r. Times, June 13, 1957.
The example of Hungary is still fresh in our memory. It also seems erroneous to consider Poland as an illustration of communist states independent from the U.S.S.R. orbit. There is little reason to believe that they would be able to resist Soviet pressure if that is directed towards them in all its strength. Communist China, although apparently enjoying a great degree of independence, is clearly committed to the Communist bloc.
Supra note 3.
According to Lord Attlee and the military expert Lidell Hart a small number of hydrogen bombs (not more than five to ten) should make the British islands uninhabitable. See “Nieuwe Rotterdamsche Courant” — hereinafter cited as N.R.C. — April 20, 1955.
Mathon, “De Nieuwe Wapens,” 9 Internationale Spectator 63–73 ( 1955 ); U.S. Govt. Publication, The Effect of Nuclear Weapons (1957).
Cf. Kissinger, Nuclear Weapons and Foreign Policy 372 (1957),.
Oppenheimer, “International Control of Atomic Energy,” 26 For. Aff. 239–252 (1948); Gullion, “The Attempt to Secure International Control of the Atom,” 25 Am. For. Service J. 7–9, 30–40 (1948); Whitman, “Developing Atomic Energy for Mankind’s Benefit”, 3 U.N. Rev. 42–44 (1957); Bachhoefer and Stein, “Atoms for Peace - The New Atomic Energy Agency,” 55 Mich. L. R. 747–798 (1957); Tammes, “De Internationale Organisatie voor Atoomenergie,” 11 Internationale Spectator 155–183 (1957).
At the end of June 1957 Harold Stassen, speaking for the US Government, assured the NATO powers that the Western plans for disarmament will not involve the abandonment of a deterrent to global war through nuclear arms defence. Drew Middleton in N.Y. Times, July 2, 1957.
On April 4, 1957, the British Government issued a White Paper on “Defence: Outline of Future Policy.” The N. Y. Times of April 5, 1957, carried an excerpt of it, point 17 of which states: “Since peace so largely depends upon the deterrent power of nuclear retaliation….”
See also the three articles of the London correspondent of the Nieuwe Rotterdamsche Courant written in 1955, with predictions on the British attitude with regard to the hydrogen bomb. N.R.C., April 20, 21, 22, 1955.
See also Gaitskell: “Disengagement: Why? How? 36 For. Aff. 539–556 ( 1958 ); John Slessor: The Great Deterrent (1958).
The editorial in the N.R.C. of May 16, 1957 mentioned the jubilant comments of the Daily Express and Daily Mail which stated that England “after one of the greatest events in the history of the world,” has “regained its independence” and is now again a “big power,” and no longer a “nuclear satellite of the U.S.” Obviously, these statements should not be taken too seriously, but they are, nevertheless, characteristic of the aspirations of the British.
The N.Y. Times of May 1, 1957 (“Britain’s nuclear bomb”) says that “In some ways the British hydrogen tests will restore that country to the status of a first-rate power”.
Knorr, “Nuclear Weapons” — “Haves” and “Have-nots,” 36 For. Aff. 167–178 (1957); Cf. Schwarzenberger, op. cit. supra note 3 at 121 for description of World Powers and Middle Powers.
Oda, “The Hydrogen Bomb Tests and International Law,” 53 Die Friedenswarte 126–135 (1956); further infra note 29.
Pressure for a ban on or limitation of the bomb tests have come from such personalities or institutions as the Pope, N. Y. Times, May 4, 1957, Dr. Albert Schweitzer, id., April 24, 1957, Adenauer, id., Jan. 12, 1957 (although he later agreed to the equipment of the West German Armed Forces with atomic weapons, id., April 15, 1957 ), Stevenson, id., Oct. 17, 1956, the Bundestag (German Lower House), id. May 11, 1957, the Yugoslavian Parliament, id., June 19, 1957; from Asia: e.g. from Nehru and Bandaranaike, id. May 18, 1957, Romulo, id. Nov. 12, 1956, and the Asian Socialist Conference, id. Nov. 9, 1956.
The Three-Powers Conference on Nuclear Disarmament in Geneva has as yet not come to very concrete results.
Teller and Latter: Our Nuclear Future (1958); N.Y. Times, July 4 and July 6, 1957.
A great number of scientists have felt obliged to express themselves on this issue. To give an impression of the seriousness of the debate, some names may be given here. Against the continuation of the bomb tests were: Dr. Linus Pauling, Nobel Prize biochemist of the California Institute of Technology, who claimed to have the endorsement of 2200 other scientists, N.Y. Times, June 12, 1957; the Executive Committee of the Federation of American Scientists, id. June 13, 1957; Professor Joliot-Curie in Paris, Nobel Prize Winner, N.R.C., April 24, 1957; four prominent geneticists: Dr. James Crow (University of Wisconsin), A. H. Sturtevant (California Institute of Technology), Hermann J. Muller (Indiana University) and H. Bentley Glass (Johns Hopkins University), N.Y. Times, June 5, 1957; a group of scientists working directly or indirectly for the A.E.C., id. May 30, 1957; Professor Stanley Livingston of the Massachusetts Institute of Technology, and Dr. Charles Price of the University of Pennsylvania, id. May 13, 1957; 18 German physicists among whom were four Nobel Prize winners, id. April 13, 1957.
The list of scientists in favour of the bomb tests is not less impressive: Dr. Edward Teller, Head of the University of California Radiation Center, Nobel Prize winner, id. Nov. 6, 1956; Dr. Willard F. Libby, scientist-member of the A.E.C., id. April 26 and June 6, 1957; Dr. Frank H. Shelton, Technical Director of the Armed Forces Special Weapons Program, id. May 1, 1957.
The list of scientists in favour of the bomb tests is not less impressive: Dr. Edward Teller, Head of the University of California Radiation Center, Nobel Prize winner, id. Nov. 6, 1956; Dr. Willard F. Libby, scientist-member of the A.E.C., id. April 26 and June 6, 1957; Dr. Frank H. Shelton, Technical Director of the Armed Forces Special Weapons Program, id. May 1, 1957.
The difference of opinion and of approach will become clearly evident when one compares the articles of McDougal and Schlei, “The Hydrogen Bomb Tests in Perspective — Lawful Measures for Security,” 64 Tale L. J. 648–710 (1955), with Margolis, “The Hydrogen Bomb Experiments and International Law,” 64 Tale L.J. 629–647 (1955). See also supra note 24.
Professor D. H. Webster: De Toekomst Onzer Samenleving (The future of our society) (1952); Professor Archibald V. Hill of London, Nobel Prize winner, quoted in Haagse Post (The Hague) April 14, 1956.
N. r. Times, May 21, 1956 on the “speculative projection” of the resources of the world, drafted by faculty members of the California Institute of Technology.
For abundant literature on the political, economic, social and scientific aspects of atomic energy, see An International Bibliography on Atomic Energy, U.N. Doc. No. AEC/INF/ 10/Rev. 1 (1951).
Infra at 134 (Kashmir) and 168 (Indonesia and the Law of the Sea).
Jenks, “International Law and Activities in Space,” 5 LC.L.Q. 99–114, at 104 (1956); see also Jessup and Taubenfeld, Control for Outer Space and the Antarctic Analogy 205–206 (1959).
See Bin Cheng, “International Law and High Altitude Flights,” 6 I.C.L.Q. 487505, at 493 (1957).
Id. at 101.
See McDougal and Lipson, “Prospects for a Law of Outer Space,” 52 A.,.LL. 407 (1958).
Rudmose Brown, “Political Claims in the Antarctic,” 1 World Aff. 393–401 (1947).
Jessup, “Sovereignty in Antarctica,” 41 A.J.LL. 117–119 (1947). Hayton, “The ‘American’ Antarctica,” 50 A.J.LL. 583–610 (1956); Toma, “Soviet Attitude towards the Acquisition. 611–626 (1956); Sullivan, ”Antarctica in a Two-Power World,“ 36 For. Aff. 154–166 (1957). Hayton, ”The Antarctic Settlement of 1959,“ 54 A.J.I.L. 349–371 (1960).
Visser ‘t Hooft, Les Nations Unies et la Conservation des Ressources de la Mer (1958); Borchard, “Resources of the Continental Shelf,” 40 A.J.LL. 53–70 (1951).
A.J.I.L. 45–47 (Suppl.) (1946).
Kunz, “Continental Shelf and International Law,” 50 A.J.LL. 828 (1956). McDougal and Burke, “Crisis in the Law of the Sea - Community Perspectives versus National Egoism,” 67 Yale L.J. 539–589 (1958).
The term “values” indicates general value categories, such as power, wealth, enlightenment, well-being, respect, skill, solidarity and rectitude. Each of them can be used as a means (base value) or an end (scope value), see Laswell and McDougal, “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 r’aleL.J. 217 (1943); Lasswell and Kaplan, Power and Society (1950).
Scott, The Hague Peace Conferences 529 (1909).
François, Handboek van het Volkenrecht (Manual of the Law of Nations), 619 (1949).
Id. at 345.
Goodrich and Hambro, The Charter of the U.N. 560 (1949).
Id. at 567.
For a comparison with the U.N. membership Australia and New Zealand are separated from the British Empire membership of the League of Nations.
See U.N. Textbook 26 (Leiden, 3rd ed. 1957 ).
Two members (Egypt and Syria) merged into one state (United Arab Republic).
It is admittedly rather unscientific and even misleading to divide the countries of the world along such geographical lines. The cultural background of the U.S. and Canada make it possible to consider them closer to Western Europe than to their South American neighbours. It can equally be held that the inclusion of South Africa among the African states is incorrect. However, there cannot be any serious objections to an examination of the geographical distribution of the nation-states, a principle which has even found a place in the charter of the U.N. (art. 101, para. 3, with respect to the staff of the Secretariat as well as Art. 23, para. 1 as regards the election of non-permanent members to the Security Council)
In the case of Algeria, for instance, the Asian-African bloc in the U.N. has several times supported the side of Algeria (N.r. Times, October 3, 1956: “Genocide in Algeria charged to France,” and id. June 18, 1957, “Asian-Arab Bloc at U. N. U.ges Inquiry into Algeria Massacre.” See also Maung-Maung, Burma in the Family of Nations 140 (1956). Recently, the Asian-African states again acted to bring the South African situation before the Security Council after the shooting of tens of negroes by the South African police during demonstrations, N.R.C. March 25, 1960 p. 1 col. 1.
The SEATO Pact and the voting results in the Hungary case before the U.N., for instance, show clearly that there is no such thing as a general Asian-African stand.
It is, of course, also true that the Latin American group and the Communist bloc, although not so numerous, play an equally decisive role.
Communist China, the Mongolian People’s Republic, North and South Korea and North and South Vietnam; in Europe: Germany.
In September and October 1960 (just before this manuscript went to press) 17 new states were admitted to the U.N. of which 16 were African and the other was Cyprus. This brought the total U.N. membership to 99 states, i.e. 27 European (Cyprus included), 26 African, 22 Asian, 22 American, and Australia and New Zealand.
For a more detailed discussion of such terms as prescription, arena and participant, see McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” 53 A.,.LL. 8–9 (1959).
See Chapter II infra.
See further Chapter III infra.
For instance, in cases of sovereignty, recognition, renunciation of treaties, expropriation.
Maung Maung tells how during the Japanese occupation in World War II, “independent” Burma’s Foreign Office remained idle most of the time. The international law library of this department consisted principally of an old edition of Oppenheim’s International Law. Maung Maung, Burma in the Family of Nations 99 (1956).
See Chapter III infra.
Brierly, The Law of Nations 1 (1949); Nussbaum, A Concise History of the Law of Nations 1 (1950).
Brierly, op. cit. supra note 63, at 44.
Cf. Khadduri, War and Peace in the Law of Islam (1955); Hamidullah, The Muslim Conduct of State (1945); Gibb, Modern Trends in Islam 85–105 (1947).
Supra at 19.
See Ter Haar, Adat Law in Indonesia 213–216 (1948); Supomo, “The Future of Adat Law in the Reconstruction of Indonesia,” in Thayer, Southeast Asia in the Coming World 217–235 (1953); Maung Htin Aung, Customary Law in Burma, in Thayer, op. cit. supra 203–216.
See also supra at 21.
McDougal, “The Comparative Study of Law for Policy Purposes,” 51 Tale 918 (1932).
See McDougal, supra note 7, at 143, 156–157; but see Kelsen, Legal Technique in International Law — A Textual Critique of the League Covenant, Geneva Studies, vol. X, no. 6 (1939).
Lasswell and McDougal, “Legal Education and Public Policy — Professional Training in the Public Interest,” 52 Tale L.J. 203, 266 (1943).
See also supra note 67.
See e.g. Ter Haar, Adat Law in Indonesia 228–233 (1948).
It is perhaps unnecessary to give many examples of authors who support the universal theory. Not, however, because they are difficult to find, but exactly because, until recently, it has been the almost universal opinion of all textbook writers that international law is essentially a universal system governing all nations in all their mutual relations. One recent book may be mentioned propagating a world public order acceptable for all nations: Clark and Sohn, World Peace through World Law (1958).
For a detailed discussion on this matter, McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” 53 A.J.LL. 1–29 (1959). The need for further research, which they have stressed, is certainly necessary for the Asian countries. Indonesia, for instance, might be considered to fit into an Islamic system of public order. Such an inclusion might set her apart, however, from a non-Islamic regional system of Southeast Asia.
McDougal, “The Comparative Study of Law for Policy Purposes,” 61 Tale L.J. 945 (1952); Schwarzenberger, “The Interdisciplinary Treatment of International Law,” in Fundamental Problems of International Law (J. Spiropoulos) 401–409 (1957).
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Syatauw, J.J.G. (1961). The Problem. In: Some Newly Established Asian States and the Development of International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-3192-8_1
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