Introduction, Ch.1 Foundation of international law, Universality of International Law
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Jurisdiction of states, universality principle — Self-determination — Responsibility of states
Cruchaga, §§ 84–93 Holland, Lectures, pp 37–40 Schwarzenberger, pp 36–41 Smith, i, pp 14–36 Sibert, pp 21–30 Decevla, Concetti di ‘Civiltà’ e di ‘Nazioni Civili’ nel diritto internazionale (1937) Wright, AJ, 20 (1926), pp 265–68 Kunz, ZöR, 7 (1927), pp 86–99, Staatenverbindungen (1929), pp 258–73 and AJ, 49 (1955), pp 370–6 Kelsen, Hag R, 42 (1932) (4), pp 178–81 Basdevant, ibid, 58 (1936), iv, pp 484–96 H Lauterpacht, ibid, 62 (1937), iv, pp 188–200 Wilk, 45 (1951), pp 648–70 Fitzmaurice, Hag R, 92 (1957), ii, pp 95–116 Jenks, The Common Law of Mankind (1958), pp 63–172 McDougall and Laswell, AJ, 53 (1959), pp 1–29 Bos in Varia Juris Gentium (1959), pp 62–72 Truyol y Serra, Hag R, 116 (1965), iii, pp 95–171 H Lauterpacht, Collected Papers (vol 1, 1970), pp 112–29 Bozeman, The Future of Law in a Multicultural World (1971) Rubin, AJ, 67 (1973), pp 319–24 Ago, Ital YBIL, 3 (1977), pp 3–30 Lachs, Hag R, 169 (1980), iv, pp 239–51 Green, Can YBIL, 23 (1985), pp 3–32 Jennings in Liber Amicorum for Lord Wilberforce (1987), pp 39–51 AS Proceedings, 1989, pp 547–68.
International law does not recognise any distinctions in the membership of the international community based on religious, geographical or cultural differences. Nevertheless, the predominant strain of modern international law was in its origins largely a product of Western European Christian civilisation during the 16th and 17th centuries.1 The old Christian states of Western Europe constituted the original international community within which international law grew up gradually through custom and treaty.2 Whenever a new Christian state made its appearance in Europe, it was received into the existing European community of states. But, during its formative period, this international law was confined to those states. In former times European states had only very limited intercourse with states outside Europe, and even that was not always regarded as being governed by the same References(p. 88) rules of international conduct as prevailed between European States.3 But gradually the international community expanded by the inclusion of Christian states outside Europe (such as various former colonies of European states in America as they became independent, foremost of which in the development of international law has been the United States of America)4 and, during the 19th century at the latest, by inclusion of non-Christian states. Particularly significant was the express acknowledgement of Turkey’s membership of the international community in Article 7 of the Peace Treaty of Paris of 1856.5 Nevertheless the so-called capitulations in Turkey (and other non-European states) were maintained.6 When there were numerous states outside the international community, international law was not as such regarded as containing rules concerning relations with such states, although it was accepted that those relations should be regulated by the principles of morality.7
References(p. 89) Before the First World War the position of such states as Persia, Siam, China, Abyssinia, and the like, was to some extent anomalous. Belonging, as they did, to ancient but different civilisations there was a question how far relations with their governments could usefully be based upon the rules of international law. On the other hand there was considerable international intercourse between those states and the states of the Western civilisation; many treaties had been concluded with them, and there was full diplomatic intercourse between them and the Western states. China, Japan, Persia and Siam had taken part in the Hague Peace Conferences. After the First World War the capitulations and some other restrictions upon the territorial sovereignty of most of these states were abolished.8
Membership of the League of Nations was not restricted by cultural, religious or geographical considerations. The contribution of all ‘the main forms of civilisation and the principal legal systems of the world’ was expressly recognised in Article 9 of the Statute of the Permanent Court of International Justice.9 There has been a growing awareness since the end of the First World War of the influence of non-Christian and non-European cultures and civilisations upon the development of international law;10 and that influence has itself been References(p. 90) increasing over that period, particularly as a result of the attainment of independence by large numbers of formerly dependent territories in Africa and Asia11 and the development of the United Nations as an organisation with virtually worldwide membership.12 A fully universal organisation of the international community, membership of which is not only open to all states but also compulsory for them, without possibility of withdrawal or expulsion, and which involves comprehensive obligations prescribed in the organisation’s constitution, unavoidably implies far-reaching derogations from the sovereignty of states. They have so far been unwilling to relinquish their sovereignty to that extent, but the trend to universality over the second half of the twentieth century has nevertheless been marked.
This trend is checked whenever an attempt is made effectively to exclude particular states from the general scope of the international legal system. In this respect there are grounds for concern at recent actions of doubtful legality which have been taken to exclude certain states, notably South Africa, from participation in the work of major international organisations including the United Nations.13 While falling short of a general exclusion of such states from the scope References(p. 91) of international law, the prevention of their participation in major organs of international cooperation and the apparent willingness to disregard in relation to them certain rules of international law, including constitutional provisions of the organisations concerned, are, quite apart from any particular illegality involved in the action taken, inconsistent with the full application of the principle of universality.
The international legal order applies throughout the whole of the international community of states, and in this sense has a universal character. But for individual rules of international law the position is different. Some rules apply to all states, and are called universal international law.1 However, in view of the wide geographic, economic and cultural differences obtaining between states taken together with the increased scope of international law as regards both the number of international persons and the subject matter regulated by international law, the rules capable of universal application must necessarily be more limited than in the relations of individuals within the state.2 These diversities between states may render necessary developments and adjustments on the basis of a regional community of interests.3 The importance of regional arrangements in appropriate fields is recognised in Chapter VIII of the Charter of the United Nations. Geographical propinquity and broad similarity of political attitudes may usefully serve as a basis for more developed forms of international cooperation and mutual political assistance in the preservation of peace than is possible between all states at large; it may also necessitate the adoption of special rules of international law with regard to particular interests and situations.
References(p. 92) These factors largely account not only for the notable degree of legal cooperation amongst American states4 but also for the development of international law by treaties concluded between, for example, the countries of Western Europe acting especially through the Council of Europe; and also for the tendency in recent years to regard the relations between the Communist states of Eastern Europe as governed by a special system of ‘Socialist’ international law.5 Although these various regional activities6 undoubtedly contribute to the development of general international law they are not a substitute for a universal system of international law. Such particular international law between two or more states presupposes the existence and must be interpreted in the light of principles of international law binding on all states.
The existence of universal rules of international law has been denied by some of the adherents to the rigid positivist doctrine who see in the express will of states the only source of obligation in the sphere of international law.7 It has also been obscured by the exaggerated emphasis on the so-called American (or Latin-American) International Law, by the insistence on the difference between the so-called Anglo-American and Continental Schools of International Law, and by various nationalist conceptions of international law. On examination none of these phenomena necessarily derogates from the universality of international law; they tend, on the contrary, to contribute to its development as a universal body of law and to enrich international law by introducing into it concepts and attitudes from a wider area than that in which it had its modern origins.
Thus the historical circumstances accompanying the rise of the various American republics as independent states caused them to stress certain principles like those of self-determination, the right to independence, freedom from intervention on the part of extra-continental states, freedom of expatriation and immigration. Some of these doctrines, like freedom of immigration, have now been generally abandoned, even by those American states which originally upheld them. Others were substantially accepted by European nations, and then by other states throughout the world, and have become established elements of international law. In addition to having contributed such general principles to the developing body of international law, the experience of the American states, especially those of Latin America, has had great influence on many particular rules of international law. Thus aspects of the present law on recognition of states References(p. 93) and governments,8 on state responsibility,9 on the extent of the territorial sea and other maritime zones,10 title to territory,11 and diplomatic (and other forms of) asylum,12 have been significantly affected by attitudes and practices of those states over the past century and a half. In the 20th century the contribution of the American states has in many ways become more formalised, through their joint activities within the framework of various regional organisations, such as the Pan-American Union and the Organisation of American States,13 and numerous sub-regional groupings. The American states have adopted a number of general conventions codifying inter se various topics of public and private international law,15 which have in some cases initiated developments in international law which were followed later by the international community generally. The principles underlying these conventions do not, insofar as they have secured the consent of all American states, differ essentially from those binding on states in other parts of the world, and are recognisably part of the wider system of international law governing the actions of all states alike. The assertion, sometimes made, that there exists a separate body of ‘American international law’ is almost certainly erroneous if intended to convey that the international legal system applicable on the American continent is a different system from that applicable in other parts of the world.16 It is in any case surrounded by controversy, References(p. 94) and it is important not to magnify either the extent or the significance of the regional variations in particular rules which may be seen in the practice of American states compared with states in other regions.
Similarly, differences in the notions and methods of various systems of national law are not obstacles to the existence of rules of international law of universal application. Such differences may be substantial, as for example are the differences between the so-called Anglo-American and Continental17 attitude towards, in particular, such matters as pleadings and forms of judicial reasoning. But these differences are essentially irrelevant to the universality of the international legal order. There are no fundamental differences on essential questions of international law, either in the law of peace or of war,18 resulting from such differences in national legal systems. In such limited international practice as References(p. 95) there has been in this area, apparent differences in basic notions and methods of approach resulting from divergencies in national systems and traditions have been satisfactorily bridged by an assimilation and mutual approximation of apparently opposed concepts. This is shown, for instance, in the manner in which the practice of the Permanent Court of International Justice and its successor have combined formal disregard of the doctrine of judicial precedent with constant and fruitful regard for their previous decisions.19 Moreover, a comparative study of the principal systems of private law tends to show that the differences between them lie often in the domain of terminology, language, and procedure rather than of substantive law. Insofar as substantive differences exist they affect rules of conduct lying specifically within the field of municipal law and are not, therefore, of a nature likely to render impossible or difficult a uniform development and administration of international law.
More substantially inimical to the universality of international law have been some national conceptions of international law. Thus20 writers in the Soviet Union denied for a time the possibility of a permanent and general international law;21 they spoke of an international law of transition, based on particular as distinguished from general agreements, pending the extension of the Russian system to other countries.
Even after coming to terms with the rest of the international community and international law as, in practice, a permanent feature of international society, writers in the Soviet Union have endeavoured to see it in notably restricted terms.22 Thus they continued to regard states, and to a limited extent international (p. 96) organisations, as the only subjects of international law and emphasised the sovereignty of the state above all else, from which follows the need for express consent by all states to rules restricting their sovereign powers and a reluctance to acknowledge any compulsory jurisdiction of international tribunals.23 Conscious of the limits which this approach places upon the efficacy of customary international law, the attempt has been made to build up ‘principles of peaceful co-existence’ as a suitable substitute.24
In 1987, however, the Soviet Union appeared to revise its view of the role of international law in international relations, accepting the need to ensure the ‘primacy of international law in polities’, including a readiness to see greater use made of the International Court of Justice.25 It is too soon to say how fundamental this change may prove to be,26 but it would appear to mark an acceptance of the broad system of contemporary international law, including customary international law.
1 See Eppstein, The Catholic Tradition of the Law of Nations (1935). See also Wright, Medieval Internationalism (1930), and Bentwich, The Religious Foundations of Internationalism (1933), pp 83–158; and Guerry, The Popes and World Government (1964); de Riedmatten, Hag R, 151 (1976), iii, pp 115–58; Kooijmans, Hag R, 152 (1976), iv, pp 79–118. For an exposition of international law from the catholic point of view see Pasquazi, Jus internationale publicum (vol i, 1935).
See generally on the history of international law, § 1, n 3.
2 As to the application of international law in early English practice see Schwarzenberger, BY, 25 (1948), pp 52–90; Corbett, Law in Diplomacy (1959), pp 3–37; Parry, BPIL, passim.
3 As to the position of non-Christian states and peoples at different stages in the development of international law see Westlake, i, p 40; Phillimore, i, §§ 27–33; Bluntschli, §§ 1–16; Heffter, § 7; Gareis, Das heutige Völkerrecht (1879), § 10; Rivier, i, pp 13–18; Fauchille, §§ 40–44 (1); Martens, § 41; Nys, i, pp 126–37; Westlake, Papers, pp 141–43; Lindley, pp 10–47 and passim; Smith, i, pp 14–33; Plantet, Les Consuls de France à Alger avant la Conquéte (1579–1830) (1930); Irwin, The Diplomatic Relations of the United States with the Barbary Powers, 1776–1816 (1931); Scott, The Spanish Origin of International Law, Francisco de Vitoria and his Law of Nations (1934). For a study of some treaty and diplomatic relations between European and South Asian states in the 17th and 18th centuries, see Alexandrowicz in Hag R, 100 (1960), ii, pp 207–316, suggesting that those relations were conducted on the basis of international law to a greater extent than is often realised, and that the early contribution of non-European and non-Christian influences of the forms of international law is not to be underrated. See similarly the same writer in BY, 35 (1959), pp 162–82, BY, 37 (1961), pp 506–16, BY, 39 (1963), pp 441–8, BY, 41 (1965–66), pp 301–20, Introduction to the History of the Law of Nations in the East Indies (1967), and Hag R, 123 (1968), i, pp 117–214. See also Wright, AJ, 48 (1954), pp 616–26; Higgins, Conflict of Interests (1965), pp 11–45; Mössner, Die Völkerrechtspersönlichkeit und die Völkerrechtspraxis der Barbareskenstaaten (1968), and in Grotian Society Papers 1972 (ed Alexandrowicz, 1972). See also works cited at § 5, n 3; and n 10 below.
4 See Westengard, JCL, 18 (1918), pp 2–14. This is particularly true in regard to the law of neutrality. See also Corbett, Law in Diplomacy (1959), pp 38–82.
5 In which the five great European powers of the time, namely, France, Austria, Great Britain, Prussia, and Russia, together with Sardinia, the nucleus of the future great power Italy, expressly ‘déclarent la Sublime Porte admise à participer aux avantages du droit public et du concert Européens’. But see Smith, i, pp 16–18, who points out that even prior to 1856 rules of international law were held to be applicable to Turkey. That view is supported by McKinnon Wood — AJ, 37 (1943), pp 262–74 — who regards Art 7 as an ‘act of admission to what today might be called a regional understanding’ (at p 274); see also Higgins, Conflict of Interests (1965), p 12.
6 In September 1914, shortly before becoming a belligerent, Turkey denounced the capitulations (see AJ, 8 (1914), p 873). ‘The complete abolition of the Capitulations in Turkey in every respect’ was assented to by the other parties to the Treaty of Lausanne 1923, Art 28; see § 406.
7 See generally as to the position of native peoples Crawford, The Creation of States in International Law (1979), pp 176–84; and § 34, n 3 and (as to territorial rights) § 250, n 4, (as to indigenous peoples) § 428, and (as to treaties) § 595, n 2.
As to the application of the laws of war to non-civilised states and savage tribes see Wright, AJ, 20 (1926), pp 265–68, and Colby, ibid, 21 (1927), pp 279–88. The USA applied, in some respects, the rules of international law to their relations with Red Indian tribes: see Rice, JCL, 3rd series, 16 (1934), pp 78–95; Deloria, AS Proceedings, 1974, pp 276–80.
For relations with Indian peoples in the USA, see especially the judgments of Marshall CJ of the Supreme Court in Fletcher v Peck (1810) 6 Cranch 87, 2 Peters 308; Johnson and Graham’s Lessee v M’Intosh (1823) 8 Wheaton 543, 5 L Ed 681; Cherokee Nation v State of Georgia (1831) 5 Peters 1, 8 L Ed 25; and Worcester v State of Georgia (1832) 6 Peters 515, 8 L Ed 483. See also Mitchell v United States (1835) 9 Peters 711, 9 L Ed 283; Goodall v Jackson (1823) 20 Johns R 693; United States v Sioux Nation of Indians (1980) 448 US 371; Totus v United States, AD, 10 (1941–42), No 1; Ex parte Green, ibid, No 128.
For the position of Indian peoples in Canada see Cumming, AS Proceedings (1974), pp 265–76; Torrelli, AFDI, 20 (1974), pp 227–49; Sanders, Indigenous People in the Constitution of Canada (1980); and Slattery, The Land Rights of Indigenous Canadian Peoples (1979). The nature of ‘treaty’ relations between the Crown and Indian tribes in Canada, and the resulting status of Canadian Indians, was considered at length in the context of the enactment at Westminster, at the request of the Government of Canada, of the Canada Act 1982, to which were annexed new Constitutional provisions for Canada: see R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta  QB 892; Noltcho v Attorney-General  3 All ER 822; and comment by Crawford, BY, 53 (1982), pp 253–9. See also Logan v Styres (1959), ILR, 27, p 239; Calder v Attorney-General of British Columbia (1973), ILR, 73, p 56.
For a discussion of the rights of aboriginal tribes in lands inhabited by them see Re Southern Rhodesia  AC 211. See also generally Snow, The Question of Aborigines in the Law and Practice of Nations (1921); Octavio, Les sauvages Americains devant le droit, Hag R, 31 (1920), pp 181–289; Scott, op cit in n 3, p 50, n 2, and the Award of the American-British Claims Arbitration Tribunal in the case of the Cayuga Indians (1926), RIAA, 6, pp 173, 176–7.
It is necessary to distinguish the situation in which, because a community does not qualify for recognition as a state, it is inappropriate to apply in relation to it the rules of international law. This is different from saying that the community is a state, but is outside the international community.
See generally on rules of morality, § 17.
8 See § 406.
9 This provision is retained in the Statute of the ICJ; and the same principle applies to membership of the ILC, under Art 8 of its Statute (GA Res, 174 (11)(1946), on which see § 30, n 4. See too Art 23(1) of the Charter of the UN, requiring the non-permanent members of the Security Council to be elected with due regard to ‘equitable geographical distribution’.
See in particular as to the Islamic contribution to international law Armanazi, Les prindpes islamiques et les rapports internationaux en temps de paix et de guerre (1929); Bentwich, The Religious Foundations of Internationalism (1933), pp 159–80; Rechid, Hag R, 60 (1937), ii, pp 375–502; Hamidullah, The Muslim Conduct of State (revised edition, 1945); Kruse, Islamische Völkerrechtslehre (1953); Khadduri and Liebesny, Law in the Middle East, 1 (1955), pp 348–72; Khadduri, The Law of War and Peace in Islam (1955), and AJ, 50 (1956), pp 358–72; Mahmassani, Hag R, 117 (1966), i, pp 205–328; Khadduri (ed), The Islamic Law of Nations: Shaybani’s Sivar (1966). As to ancient Egypt, see Rey, RG, 48(1), (1941–45), pp 35–52.
As to Indian and Hindu influences see Bandyopadhyay, International Law and Custom in Ancient India (1920); Chacko, Hag R, 93 (1958), i, pp 121–42; Sastry, ibid, 117 (1966), pp 507–615; Derrett, Indian Year Book of International Affairs, 15–16 (1966–67), pp 328–47. See also Viswanatha, International Law in Ancient India (1925), which reveals some interesting anticipations of rules and institutions commonly regarded as exclusively European. See also Jayatilleke, Hag R, 120 (1967), i, pp 441–563, as to the influence of Buddhist doctrine on international law.
As to Chinese influence on and attitudes to international law see Sui Tchoan Pao, Le droit des gens et la Chine antique (1924); Escarra, La Chine et le droit international (1931); Britton, AJ, 29 (1935), pp 616–35; Tung, China and Some Phases of International Law (1940); Chow, La doctrine de droit international chez Confucius (1940); Chen, AJ, 35 (1941), pp 641–50; Chiu, AJ, 60 (1966), pp 245–67; Iriye, Hag R, 120 (1967), i, pp 1–60; Cohen, AS Proceedings (1967) pp 108–116, and (ed), China’s Practice of International Law (1972); Cohen and Hungdah Chiu, People’s China and International Law (2 vols, 1974); Hsiung, Law and Policy in China’s Foreign Policy (1972).
Mention should also be made of the contribution of Judaism to the conception of the Law of Nature: see Isaacs, The Legacy of Israel (Oxford, 1927); Bentwich, The Religious Foundations of Internationalism (1933), pp 59–82, and Weil, Hag R, 151 (1976), iii, pp 253–333. Selden published in 1640 his De Jure Naturali et Gentium juxta Disciplinam Ebraeorum.
11 See § 5, n 3. See also Elias, Africa and the Development of International Law (2nd ed, Akinjide, 1988).
12 A notable non-member is Switzerland (see § 97). Certain small states have chosen not to become members, such as Kiribati, and Nauru and Tuvalu.
13 In 1974 the General Assembly called on the Security Council to review the relationship between the UN and South Africa in the light of South Africa’s constant violation of the principles of the Charter and the Universal Declaration of Human Rights: Res 3207 (XXIX). A draft resolution to expel South Africa was presented to the Security Council, but was not adopted. The President of the General Assembly then ruled that the Assembly’s rejection of the South African representatives’ credentials amounted to refusal to allow South Africa to participate in the work of the 29th session, and his ruling was upheld in a vote. Several delegations, including that of the UK, voted against the President’s ruling as being contrary to the terms of the Charter. See below, § 53, n 15; and see UNYB, 1974, pp 106–17. South Africa took no further part in that session or in subsequent regular annual sessions of the Assembly. In 1978 South Africa tried to take part in the Special Session on Namibia, but the credentials of its representatives were again rejected and they withdrew. See also Bissell, Apartheid and International Organisations (1977). In addition, in 1964 South Africa’s voting privileges in WHO were suspended; in 1973 the ITU Plenipotentiary Conference decided to exclude South Africa from the Conference and from participation in meetings and conferences convened by the ITU; in 1974 South Africa’s voting privileges in ICAO were suspended; in 1975 South Africa’s membership of and voting privileges in WMO were suspended; in 1979 South Africa was expelled from the UPU; and in the same year the credentials of the South African delegation to the General Conference of the IAEA were rejected.
1 See § 1; and also § 10, nn 23 and 24 as to the application of customary rules as against states which dissent from them. A rule of law will still be a universal rule notwithstanding that it contains exceptions so long as the exceptions apply uniformly and automatically to any situation which is within the scope of the exception: the exception is part of the rule. It is thus distinguished from a claim to exemption from the application of a rule, which involves a derogation from it. See Fitzmaurice, BY, 30 (1953), pp 18–26, and Hag R, 92 (1957), ii, pp 108–12.
2 This is so largely for the reason that the operation of the law must be limited to matters capable of uniform regulation. See, for a somewhat different explanation, Brierly, Nordisk TA, Acta Scandinavica 7 (1936), p 9. See also Schindler, Hag R, 46 (1933), iv, p 265.
3 See González Gálvez in The Structure of International Law (eds Macdonald and Johnston, 1983), pp 661–84. On the dangers of a regionalisation of international law see Mahnke, Das Problem der Einheit der Völkerrechtsgemeinschaft und die Organisation der internationalen Sicherheit (1965).
5 See Grzybowski, The Socialist Commonwealth of Nations: Organisations and Institutions (1964); Kis, Les Pays de l’Europe de l’Est (1964); and other works cited in n 22.
6 The annual reports of the International Law Commission to the UN General Assembly, in the section devoted to ‘Cooperation with other bodies’, summarise regional activities in the field of international law undertaken within the framework of the Inter-American Juridical Committee, the Asian-African Legal Consultative Committee, the European Committee on Legal Cooperation and the Arab Commission for International Law.
7 See eg Blühdorh, Einführung in das angewandte Völkerrecht (1934), pp 95, 96; Anzilotti, p 89; Strupp, Hag R, 47 (1934, i), pp 317–24. See also Fedozzi, Trattato di diritto internazionale (2nd ed, 1933), pp 69 et seq. But see Bustamante, i, pp 33, 34; Verdross, Verfassung, p 92; Scott, ‘L’universalité du droit des gens’. Le Progrès du droit des gens (vol i, 1931), pp 151 et seq, Annuaire, 33 (1927), pp 61, 62, and AS Proceedings, 1929, pp 48–54.
8 Eg in relation to governments coming to power in revolutionary circumstances: see § 44.
11 Eg in relation to the doctrine uti possidetis: see § 235.
12 See §§ 402, 445. It may be noted that in the Asylum case between Colombia and Peru (see § 10, n 10 and § 496) the ICJ showed no disposition to attach decisive importance to some of the apparent consequences of the institution of asylum which, because of the relative frequency of internal commotions, acquired a certain prominence among Latin-American countries. It preferred to base its judgment upon general principles of international law — including that of prohibition of intervention which, it held, required a restrictive interpretation of the right of a state to shelter, in its legations, fugitives from justice in the receiving country.
13 See § 665, n 15.
16 In the Military and Paramilitary Activities case the ICJ referred to ‘customary international law, whether of a general kind or that particular to the inter-American system’, thus acknowledging a certain separateness in principle for the latter, although for the issues before the Court it found the rule to be the same in both kinds of customary international law: ICJ Rep (1986), p 105.
The existence of an American international law has been asserted in particular by Alvarez in a series of able writings beginning with his Le Droit international américain (1909); AJ, 3 (1909), pp 269–353, and RG, 20 (1913), pp 48–52; Preface to Strupp, Éléments du droit international public, universel, européen et américain (1927); La Reconstruction du droit international et sa codification en Amérique (1928). However, it appears that Alvarez, far from denying the existence of universal rules of international law, stresses ‘the existence of particular rules relating to special American problems with regard to matters which have not yet been regulated by general international law’: Institut Américain de Droit International, Historique, Notes, Opinions (1916), p 111.
The term ‘American International Law’ was adopted in the Draft Code of American International Law which was presented by the Pan-American Union to the governments of all the American states. In Project 2 of this Code (AJ, 20 (1926), Supplement 2, p 302), American international law was defined as ‘all of the institutions, principles, rules, doctrines, conventions, customs, and practices which, in the domain of international relations, are proper to the Republics of the New World’, thus giving a very wide significance to the term law, and comprising apparently principles of policy such as the Monroe Doctrine, which is not a rule of law (see § 133). This Project was not amongst those adopted by the International Commission of American Jurists at Rio de Janeiro in April-May 1927 (see Scott, AJ, 21 (1927), p 437).
See also, in support of the thesis that there exists an American international law, Urrutia, Le Continent américain et le droit international (1928); Yepes, La Contribution de l’Amérique Latine au développement du droit international public et privé (1931), and Hag R, 32 (1930), ii, pp 697–792, and ibid, 47 (1934), i, pp 5–137; Baak, RI, 3rd series, 13 (1932), pp 367–97. See, on the other hand, Vianna, De la Non-Existence d’un droit international américain (1912); Leger, La Codification du droit des gens et les conférences des juristes américains (1929), pp 88 et seq: Guerrero, La codification du droit international (1930), p 12. See also Lamas, La Crise de la codification et las doctrine argentine du droit international (1931), and Fauchille, §§ 44(2)–44(12). See also Cereti, Panamericanisme e diritto internazionale (1939); Savelberg, Le problème du droit international américain (1946); Yepes, Philosophie du Panaméricanisme et organisation de la paix (1945); Cok Arango, Derecho international Americano (1948); Puig, Printipios de derecho international publico americano (1952), and Les Principes de droit international public américain (1954); Jacobin, A Study of the Philosophy of International Law as Seen in the Work of Latin-American writers (1954); Dupuy, Le Nouveau Panaméricanisme (1956); Langrod, Revue Hellénique, 10 (1957), pp 132–230; Alvarez, Le Droit international nouveau dans ses rapports avec la vie actuelle des peuples (1959), pp 143–59; Sepúlveda, Las fuentes del derecho internacional Americano (1969).
See also § 27, nn 11 and 13, and § 31, n 5, on the numerous attempts at regional codification of parts of international law on the American continent, and § 665, n 15, on American regional organisation.
17 See eg Keith’s Wheaton, i, p 34; Fischer Williams, Chapters, p 58; Pearce Higgins, International Law and Relations (1928), pp 30, 31; Lord Hailsham, then Lord Chancellor, in the House of Lords on 1 May 1929: Parliamentary Debates (Lords), vol 74, cols 303, 304. See also Jenks, The Common Law of Mankind (1958), pp 89–92, 109–14. With regard to travaux préparatoires see § 663(1).
There has probably been in recent years a weakening of the tendency to assume the existence of differences between the Anglo-American and Continental schools as a ready explanation of difficulties. On the contribution of Great Britain and the USA to international law see Dickinson, Hag R, 40 (1932), ii, pp 309–93; but it is probably not inconsistent with the view of the learned author to point out that that contribution is not, in most matters there referred to, exclusively confined to Anglo-American countries and that it is not connected with the peculiarities of the common law as distinguished from Continental law. The UK has found no serious difficulty, from the point of view of any supposed fundamental difference in basic legal concepts and traditions, in joining with other states of the European continent in membership of the European Communities, which calls for far-reaching coordination, and even integration, of national legal systems in areas of concern to the Communities. See § 19, sect (3); and see Cmnd 3301 of May 1967, para 26.
18 With regard to the law of war, the undoubted divergence between the Anglo-American and Continental views as to the subjects of the relation of war (see vol II of this work, 7th ed, § 57) has probably been rendered obsolete by the changes in the character and scope of modern warfare. See H Lauterpacht, BY, 12 (1931), pp 31–62, for a discussion of the whole question.
19 See H Lauterpacht, The Development of International Law by the International Court (1958), pp 6–23. There is no pronouncement of the ICJ referring to any difference between the two schools of thought in international law.
20 As to the attitudes adopted by Germany after 1933, see 8th ed of this vol, p 65, n 2. See also Vagts, AJ, 84 (1990), pp 661–704.
21 See Korovin, Das Völkerrecht der Öbergangszeit (trans from Russian, 1929), pp 7, 24. See, generally, on the relation of Soviet Russia to international law, Hrabar, ZV, 14 (1927–28), pp 188–214; Mirkine-Guetzévitch, RI (Paris), 2 (1928), pp 1012–49; Alexeiew and Zaitzeff, ZV, 16 (1931–32), pp 72–99; Hazard, AJ, 32 (1938), pp 244–252; Florin in Revue internationale de la théorie du droit, 12 (1938), pp 97–115. See also Taracouzio, The Soviet Union and International Law (1935), AS Proceedings (1934), pp 105–20 and War and Peace in Soviet Diplomacy (1940); Stoupnitzky, Statut international de l’URSS État commerçant (1936); Lapenna, Conceptions soviétiques de droit international public (1954). As to the conduct of foreign relations by the member states of the Union, see § 75.
22 As to the change of the Russian attitude in connection with its entry into the League of Nations, see Mannzen, Soviet-union und Völkerrecht (1932); Davis, ‘The Soviet Union and the League of Nations’, Geneva Special Studies, 5, No 1 (1934); Kleist, Die völkerrechtliche Anerkennung Sovietrusslands (1934); Miliokov, La Oblique extérieure des Soviets (1936); Hartlieb, Das politische Vertragssystem der Sowietunion, 1920–35 (1936); Makarov, ZöV, 5 (1935), pp 34–60 (with a bibliography), and 6 (1936), pp 479–95; Maurach, ZV, 21 (1937), pp 19–45; and Beckhoff, Völkerrechtgegen Bolschevismus (1937). See also Prince, AJ, 36 (1942), pp 425–45 (on the participation of Soviet Russia in international organisation), ibid, 39 (1945), pp 450–85, Hazard, Yale LJ, 55 (1946), pp 1016–35, and Krylov, Hag R, 70 (1947), i, pp 407–74.
Among more recent literature on the Soviet approach to international law see Hazard, Law and Social Change in the USSR (1953), pp 274–300; Calvez, Droit international et souveraineté en URSS (1953); Stone, Legal Controls of International Conflict (1954), pp 57–64; Kelsen, Communist Theory of Law (1955); Kulski, AJ, 49 (1955) pp 518–34; Snyder and Bracht, ICLQ, 7 (1958), pp 54–71; Triska and Slusser, AJ, 52 (1958), pp 699–726; Corbett, Law in Diplomacy (1959), pp 83–109; Meissner, Sowjetunion und Völkerrecht 1917 bis 1962 (1963), a valuable bibliographical work, and Aussenpolitik und Völkerrecht der Sowjetunion (1987); Zile, AJ, 58 (1964), pp 359–88; Ramundo, The (Soviet) Socialist Theory of International Law (1964); Higgins, Conflict of Interests (1965), Pt III; Baade (ed), The Soviet Impact on International Law (1965); Dutoit, Coexistence et droit international à la lumière de la doctrine Sovietique (1966); Nasinovsky, AS Proceedings (1968), pp 189–96; Ginsburgs, ibid, pp 196–203; Tunkin and Lewin, Drei sowjetische Beitrage zur Völkerrechtslehre (1969); Grzybowski, Soviet Public International Law (1970), and Soviet International Law and the World Economic Order (1987); Patry, Can YBIL, 9 (1971), pp 102–13; Ginsburgs, YB of World Affairs (1971) pp 39–55; Hazard, AJ, 65 (1971), pp 142–8; Butler, ibid, pp 796–800; Osakwe, AJ, 66 (1972), pp 596–600; Butler, YB of World Affairs (1972), pp 331–45; Tunkin, Theory of International Law (1974), Hag R, 147 (1975), iv, pp 1–208, and in Ius et Societas (ed Wilner, 1979), pp 338–49; Lapenna, YB of World Affairs (1975), pp 242–64; Schweisfurth, Sozialistiches Völkerrecht? (1979); Grzybowski, AJ, 77 (1983), pp 862–72; Kartashkin in The Structure and Process of International Law (eds Macdonald and Johnston, 1983), pp 79–102; Green, Yale JIL, 13 (1988), pp 306–31; Malenovsky, Rev Belge, 22 (1989), pp 307–38; Mullerson, AJ, 83 (1989), pp 494–513. See also § 104, n 6 (on ‘peaceful co-existence’), and § 133 (on the ‘Brezhnev doctrine’).
On the implications for international law of the existence of East-West ‘tension’ see Schwarzenberger, Grotius Society, 36 (1950), pp 229–69; McWhinney, AJ, 59 (1965), pp 1–15; Tunkin, Recueil d’études de droit international en hommage à Paul Guggenheim (1968), pp 888–98.
23 See § 10, n 22.
24 See § 104, n 6.
For discussion of these new trends in Soviet attitudes to international law see Green, Yale JIL, 13 (1988), pp 306, 322–31; Quigley, AJ, 82 (1988), pp 788–97; Szawlowski, ibid, pp 878–88 (a review article of Gorbachev, Perestroika (1987); Franck, AJ, 83 (1989), pp 531–43.