Part 1 The subjects of international law, Ch.3 Position of the states in international law, Intercourse
Sir Robert Jennings qc, Sir Arthur Watts kcmg qc
Edited By: Robert Jennings, Arthur Watts KCMG QC
- Innocent passage — High seas
Kaufmann, Hag R, 55 (1935), iv, pp 586–8 Heilperin, Hag R, 68 (1939), ii, pp 331–447 Quincy Wright, AS Proceedings (1941), pp 30–39 Lachs, Hag R, 169 (1980), iv, pp 85–103.
Although it is no longer appropriate to speak of a vague general right of so-called intercourse,1 mutual dealings are essential for the members of the international community, and the promotion (p. 452) and facilitation of international intercourse consequently underlie many rules of international law, such as those relating to diplomatic2 and consular3 relations, the freedom of the high seas4 and the right of innocent passage through the territorial sea.5
States conclude treaties regarding such matters as posts, telegraphs, telephones, roads, railways and commerce, for which in practice they need to make provision. Article 23(c)1 of the Covenant of the League of Nations obliged members to make provision for securing and maintaining freedom of communications and of transit2 and equitable treatment of the commerce of all other members of the League of Nations, but notwithstanding the initiative of the League,3 various factors prevented the full development of the possibilities of that Article.
The Charter of the United Nations does not contain any similar provision, although it does have among its purposes4 the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and being a centre for harmonising the actions of nations in the attainment of the various purposes of the United Nations. This aspect of the purposes of the United Nations is developed in Chapter IX of the Charter which deals with international economic and social cooperation, and its implementation is in general the responsibility of the Economic and Social Council established by Chapter X. In particular, the Council is the organ with initial responsibility for the coordination of the activities of the various specialised agencies of the United Nations.
‘States have the duty to co-operate with one another, irrespective of the differences in their political, economic and social systems, in the various spheres of international relations, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international co-operation free from discrimination based on such differences.
To this end:
(b) States shall co-operate in the promotion of universal respect for, and observance of, human rights and fundamental freedoms for all, and in the elimination of all forms of racial discrimination and all forms of religious intolerance;
States should co-operate in the economic, social and cultural fields as well as in the field of science and technology and for the promotion of international cultural and educational progress. States should co-operate in the promotion of economic growth throughout the world, especially that of the developing countries.’
In practice states cooperate with one another extensively. To that end they have concluded a large number of treaties laying down detailed rules for matters arising in the course of the many essential dealings and transactions between states; and, particularly since the Second World War, they have established many international organisations to provide a continuing framework for their cooperation. In so doing states have in many fields substantially limited their individual freedom of action, in the interests of the international community as a whole and in recognition of their common interest in the facilitation of intercourse between the members of that community.
Numerous treaties now regulate many aspects of intercourse between states,6 including treaties in the following main areas of transport and communications:7 References(p. 454) (a) road traffic;8 (b) river transport;9 (c) rail traffic;10 (d) civil aviation;11 (e) traffic by sea;12 (f) postal communications;13 and (g) radio communications.14 In References(p. 455) matters of trade and finance the needs of the international community have similarly been met by commercial treaties15 between states, loan agreements,16 aid arrangements, investment promotion and protection agreements,17 and the like. There is, indeed, probably no area of regular intercourse between states which is not the subject of a network of bilateral and multilateral treaties.
In addition to the many treaties laying down particular rules applicable to the contracting states, the increasing needs of the members of the international community, reflecting their growing interdependence, have also led to the establishment of both worldwide and regional international organisations18 providing a continuing basis for facilitating and regulating the more important aspects of the intercourse between them. It would go beyond the scope of this volume to discuss these various organisations in detail.19 Mention should, nevertheless, be made of those organisations which have become specialised agencies of the United Nations as a result of agreements concluded pursuant to Articles 57 and 63 of the Charter.20 On 1 January 1990 there were 16 such agencies, namely the Food and Agriculture Organisation, the International Bank for Reconstruction and Development, the International Civil Aviation Organisation, the International Development Association, the International Finance Corporation, the International Fund for Agricultural Development, the International Labour Organisation, the International Maritime Organisation, the International Monetary Fund, the International Telecommunications Union, the United Nations Educational, Scientific and Cultural Organisation, the United Nations Industrial Development Organisation, the Universal Postal Union, the World Health Organisation, the World Intellectual Property Organisation, and the World Meteorological Organisation; the International Atomic Energy Agency has a status in many ways equivalent to that of a specialised agency. There are in addition many other international organisations open to worldwide membership, and even more which are open to membership on a more limited, usually regional, basis.
1 For the views of the scholastic writers on liberty of commerce, see Catry, RG, 39 (1932), pp 193–218. For discussion of a proposal (which was not adopted) to include an article on the ius communicationis in the ILC’s draft Articles on the Rights and Duties of States, see YBILC (1949), p 179.
2 See §§ 461–533.
3 See §§ 534–55.
4 See §§ 284–6.
5 See §§ 198–201.
1 In pursuance of that article an Organisation for Communications and Transit was established by the League, to which the Transit Section of the Secretariat corresponded. The Conventions negotiated under the guidance of this organisation relate to such matters as freedom of transit, navigable waterways of international concern and the right of states having no seacoast to a maritime flag. See §§ 175–81 (rivers), 287–9 (maritime flag), 193 (ports). See also Charles de Visscher, Le Droit international des communications (1924); Toulmin, BY (1922–23), pp 167–78; Hostic, RI, 3rd series, 2 (1921), pp 83–124; Holländer, AJ, 17 (1923), pp 470–88; Ripert, Clunet, 52 (1925), pp 14–23; Haas in Problems of Peace (2nd series, 1928), pp 212–20; Kunz, ZöR, 13 (1933), pp 408 et seq. For the Statute of the Organisation, see Hudson, Legislation, iii, p 2106. On the various questions of international communications which came before the PCIJ, see Hostie, RI (Paris), 12 (1933), pp 58–129, and 17 (1936), pp 481–537. See, generally, as to the earlier rules of international law in the matter of transit and communications, Hostie, Hag R, 40 (1932), ii, pp 403–518; Leener, ibid, 55 (1936), i, pp 5–81.
2 For an interpretation of this clause in connection with the closure of railway traffic see Railway Traffic between Poland and Lithuania, Advisory Opinion of 15 October 1931: PCIJ, Series A/B, No 42, p 119.
5 GA Res 2625 (XXV), fourth principle. See § 105. ‘It seems to us on the whole not too much to regard the idea of an obligation of co-operation as being now in a fair way to acceptance as a general principle of international law’: Fitzmaurice, Annuaire: Livre du Centenaire 1873–1973 (1973), pp 319–20. See more generally, Pop, Voisinage et bon-voisinage en droit international (1980). Since 1979 the General Assembly has considered the development and strengthening of good neighbourliness between states (GA Res 34/99), but by the end of its 45th session in 1990 had not concluded its work.
6 The intercourse being regulated and facilitated is, of course, not just that of the states in question but also involves — and often involves primarily — dealings across international frontiers by individuals and corporations (increasingly multinational in character).
8 The principal treaties concluded after the Second World War include: (1) Convention on Road Traffic, 19 September 1949 (TS No 49 (1958); UNTS, 125, p 3); (2) Protocol on Road Signs and Signals, 19 September 1949 (TS No 80 (1967); UNTS, 182, p 229); (3) European Agreement of 16 September 1950, supplementing the two preceding instruments (TS No 60 (1966); UNTS, 182, p 286); (4) Declaration of 16 September 1950 on the Construction of Main International Traffic Arteries (TS No 12 (1952); UNTS, 92, p 91); (5) Convention concerning Customs Facilities for Touring 1954 (TS No 70 (1957); UNTS, 276, p 191); (6) Customs Convention on the Temporary Importation of Private Road Vehicles 1954 (TS No 1 (1959); UNTS, 282, p 249); (7) Customs Convention on the Temporary Importation of Commercial Road Vehicles 1956 (TS No 1 (1960); UNTS, 327, p 123); (8) Convention on the Contract for the International Carriage of Goods by Road (CMR) 1956 (TS No 90 (1967); UNTS, 399, p 189); (9) Convention on the Taxation of Road Vehicles Engaged in International Passenger Transport 1956 (TS No 43 (1963); UNTS, 436, p 131); (10) Convention on the Taxation of Road Vehicles for Private Use in International Traffic 1956 (TS No 32 (1963); UNTS, 339, p 3); (11) Convention on the Taxation of Road Vehicles Engaged in International Goods Transport 1956 (TS No 112 (1969); UNTS, 436, p 115); (12) European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR) 1957 (TS No 83 (1968); UNTS, 619, p 77); (13) European Agreement on Road Markings 1957 (UNTS, 372, p 159); (14) Customs Conventions on the International Transport of Goods under Cover of TIR Carnets 1959 (TS No 18 (1960); UNTS, 348, p 13) and 1975 (TS No 56 (1983)); (15) Convention on Road Traffic 1968 (Cmnd 4032) — replacing, as between the parties, the Convention at (1) above; (16) Convention on Road Signs and Signals 1968 (Cmnd 4139); (17) European Agreement of 1971 supplementing the preceding Convention (Cmnd 5096); (18) European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR) 1971 (TS No 103 (1978)); (19) Convention on the Contract for the International Carriage of Passengers and Luggage by Road (CVR) 1973 (Cmnd 5622); (20) European Agreement on Main International Traffic Arteries (AGR) 1975 (Cmnd 6993). For Central America, see (21) Central American Agreement on Road Traffic 1958 (UNTS, 454, pp 115, 146) and (22) the Central American Agreement on Uniform Road Signs and Signals 1958 (ibid, 211, 232). For treaties concluded before the Second World War, see 8th ed of this vol, p 321, n 2 (at p 322), and p 1022, n 1 (at p 1023). And see Whiteman, Digest, 9, pp 1121–32, 1165–78.
Note also the provisions regarding the development of transport in the Final Act of the Conference on Security and Co-operation in Europe 1975 (§ 105, n 3), and in furtherance of those provisions, the UK-USSR Agreement concerning International Road Transport 1988 (TS No 4 (1989)).
9 See §§ 175–81.
10 The principal treaties concluded after the Second World War include: (1) the two International Conventions of 10 January 1952, signed at Geneva, to Facilitate the Crossing of Frontiers for Passengers and Baggage by Rail and to Facilitate the Crossing of Frontiers for Goods carried by Rail (UNTS, 163, pp 3,27); (2) International Convention, and Additional Protocol, concerning Carriage of Goods by Rail (CIM) 1970 (TS No 40 (1975)); (3) International Convention, and Additional Protocol, concerning Carriage of Passengers and Luggage by Rail (CIV) 1970 (TS No 41 (1975)) — these two last-mentioned conventions replacing earlier similarly entitled conventions concluded in 1961 (TS Nos 66 and 67 (1965)) and 1952 (TS Nos 46 and 47 (1958)); (4) Convention relating to the Liability of the Railway for Death of and Personal Injury to Passengers 1966 (TS No 20 (1973)); (5) Protocol concerning Contributions towards the Expenses of the Central Office of the States Parties to CIM and CIV 1970; (6) Convention concerning International Carriage by Rail (COTIF) 1980 (TS No 1 (1987)), which abrogates the treaties at (2), (3) and (5) above. For treaties concluded before the Second World War, see 8th ed of this vol, p 1022, n 1. See also Whiteman, Digest, 9, pp 1110–21.
Note also the UN Convention on International Multimodal Transport of Goods 1980 (ILM, 19 (1980), p 938), concerning the international carriage of goods by at least two different forms of transport. See Mankabady, ICLQ, 32 (1983), pp 120–40.
11 See §§ 218–24.
16 On international cooperation in currency matters, particularly through standardising and stabilising agreements and international regulation of exchange control as well as through the International Monetary Fund, see Nussbaum, Money in the Law (1950), pp 502–46, Mann, The Legal Aspect of Money (4th ed, 1982), pp 355–559; Shuster, The Public International Law of Money (1973). See also International Law Association Report, 45 (1952), pp 233–96. See also Hulm, International Monetary Cooperation (1945); Rasminsky, Foreign Affairs 22 (1944), pp 589–604; JH Williams, ibid, 23 (1944), pp 38–54; Morgenthau, ibid, 23 (1945), pp 182–95; Mann, BY, 22 (1945), pp 251–58; Pehle, Yale LJ, 55 (1946), pp 1127–39. See also Lemkin, La Réglementation des paiements internationaux (1939); Hug, Hag R, 79 (1951), ii, pp 515–712; and Nussbaum, AJ, 38 (1944), pp 242–57.
17 See § 407, nn 50–51.
18 As to non-governmental organisations, see generally, § 7, n 28.
19 See 8th ed of this vol, pp 977–1029. Peaselee, International Inter-govemmental Organisations (6 vols, 3rd ed, revised 1974–79), sets out the constitutions of many international organisations. It is hoped to prepare a separate volume of this work to cover international organisations.