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Some Impacts of Social Organization on International Law

Published online by Cambridge University Press:  28 March 2017

W. Friedmann
W. Friedmann*
Affiliation:
Columbia University School of Law
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Extract

Since the end of the first World War, the predominant concern of international lawyers, as of statesmen and politicians, has been the horizontal widening of universal international law in a limited but vital sphere: the establishment and strengthening of inter-state covenants and international organizations which would eliminate, or at least greatly reduce, the danger of increasingly destructive wars among the nations, by substituting for the traditional privileges of national sovereignty, i.e., war, reprisals and other acts of force applied at the discretion of the national states, covenants of restraint and methods of peaceful settlement.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 3 , July 1956 , pp. 475 - 513
Copyright
Copyright © American Society of International Law 1956

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References

1 Mr.Jenks', Wilfred paper on “The Scope of International Law” (31 British Yearbook of International Law 1–48 (1954)Google Scholar, published in 1956), reached the present writer after this article had been submitted. While the principal theme and purpose of the present article are essentially different from that of Mr. Jenks’ paper, the approach of the introductory section of the present article and Mr. Jenks’ concept of the scope of international law are very similar. In particular, Mr. Jenks, like the present writer, emphasizes the interpenetration of international and national law, and the consequent importance of incorporating in the study of international law “the common law of mankind.” Such a study would include, side by side with the law governing the relations between states, the law of treaties and the law governing international arbitration and judicial settlement (all of which are dealt with in the usual treatises and casebooks on international law), the structure and lawmaking processes of the international community, as well as human rights, property rights and common rules regarding services insofar as they are of an international character.

2 Cf. further below, pp. 478 ff.

3 Cf., for a recent survey of the Soviet Union's approach to international law, Kulski, W. W., “The Soviet Interpretation of International Law,” 49 A.J.I.L. 518–534 (1955)Google Scholar.

4 This does not, of course, imply any judgment on the effectiveness of these rules. Recent controversies over the continental shelf, for example, show much disagreement on the physical extent of national sovereignty, and the limitations imposed by the principle of freedom of the seas. But the disagreements arise from conflicts of national interests, not of state organization.

5 For a comparative survey, see Friedmann, (ed.), The Public Corporation (Toronto and London, 1954)Google Scholar.

6 Such countries as France, which has nationalized her basic industries, or Italy, where 50% of the total industrial production is controlled by state-owned companies, must probably be put in the same category.

7 293 U. S. 360.

8 See, in particular, New York v. U. S. (the Saratoga Spring Case), 326 U. S. 572 (1946).

9 E.g., in The Cristina, [1938] A.C. 485; Sultan of Johore v. Abu Bakar, [1952] 1 A.E.R. 1268.

10 [1949] 2 A.E.R. 274.

11 The 1952 letter announced that the Department would no longer favor claims to immunity on the part of foreign governments in respect of their commercial transactions (see BiBhop in 47 A.J.I.L. 93–106 (1953)). But in an action before a District Court in 1955 (New York and Cuba Mail S.S. Co. v. Republic of Korea, 132 F. Supp. 684 (1955)), an American company sued the Republic of Korea for damage caused to the libellant's steamer by a lighter belonging to the respondent which had assisted in unloading the steamer's cargo of rice in a Korean port. The Department of State—and the U. S. Attorney General—affirmed that the property of the Republic of Korea was not subject to attachment in the United States, though it did not file a suggestion of immunity “inasmuch as the particular acts out of which the cause of action arose are not shown to be of purely governmental character.” The court (Weinfeld J.) deduced from this statement that the principle of the immunity of a foreign government's property from attachment was unconditionally affirmed, and vacated the suit. It seems that this reduces any judgment denying foreign governments immunity for commercial transactions in the United States to a kind of declaratory judgment.

12 It is not the purpose of this article to restate in detail a problem that has been so amply discussed in legal literature. Cf. for the most recent survey of the state of the doctrine, and the alternative criteria, Lauterpacht in 28 British Year Book of International Law 250–272 (1951).

13 Cf. The Pesaro, 271 U. S. 562, where the Supreme Court declared: “We know of no international usage which regards the maintenance and advancement of economic welfare of the people in time of peace as any less a public purpose than the maintenance and training of a naval force.”

14 See 176 L.N.T.S. 199.

15 On these, see, for example, Waline, Droit Administratif 651 ff. (6th ed., 1950).

16 26 A.J.I.L. Supp. 597 ff. (1932).

17 See, for details, Lauterpacht in 28 British Year Book of International Law 250–272 (1951).

18 Rex v. The International Trustee for the Protection of Bondholders Aktiengesellschaft, [1937] A.C. 500.

19 [1937] A.C. 500, at 531 (per Lord Atkin).

20 Fawcett, “Legal Aspects of State Trading,” 25 British Tear Book of International Law 35 (1948)Google Scholar.

21 See Mann, F. A., “The Law Governing State Contracts,” 21 British Year Book of International Law 11–33 (1944)Google Scholar.

22 Cf. Fawcett, loc. cit. at 45.

23 It has been argued that the various contracts implementing the loan by the U. S. Government (acting through the Import-Export Bank as its agent) to the European Coal and Steel Community are governed by private rather than public law (Blondeel and Vander Eycken, “Les emprunts de la Communauté Européenne du Charbon et de l'Acier,” La Eevue de la Banque, Nos. 3–4, 1955). According to this view, the loan contract itself between the U. S. Government and the Community is governed by American law, following ordinary principles of conflict of laws; the ancillary contracts, between the Community and the industrial enterprises that may take loans in the member countries, as well as the contract between the Community and the Bank for International Settlements, which acts as mandatory in regard to the documents deposited by the Community by way of security for the loan, are governed by different national laws, according to principles of private conflict of laws. This view is opposed by Sommers and Nurick (in an artiele published in “Law and Contemporary Problems,” Spring Issue, 1956). The learned authors maintain that where lender and borrower are both subjects of international law, the relationship should be governed by public international law. This includes loans from governments to publie international organizations as well as loans from public international organizations to governments.

This does not preclude that certain technical terms, such as “trust” or “mandate,” which are not common to both common-law and civil-law countries, should be interpreted in accordance with one specific national law.

24 For a comparative survey and analysis, see Friedmann, W. (ed.), The Public Corporation (Toronto, 1954)Google Scholar; further, Hanson, (ed.), Public Enterprise (Brussels, 1955)Google Scholar.

25 Cf. Friedmann (ed.), The Public Corporation 172 ff., 576.

26 In re Investigation of World Arrangements, 13 F.R.D. 280 (1952).

27 3 F. 2nd 199 (1929.)

28 This case was distinguished in the Anglo-Iranian decision on the remarkable ground that there was “a vast distinction between a seafaring island-nation maintaining a constant supply of maritime fuel and a government seeking additional revenue in the American markets and causing a direct injury in the United States to our domestic commercial structure.” (13 F.R.D. at 291.)

29 It has been argued with considerable force that the major private corporations of today fulfill to an increasing extent public purposes. Thus, Professor Berle has recently suggested (The Twentieth Century Capitalist Revolution, 1954), that the major U. S. corporations are increasingly compelled by public opinion, by their own institutional developments and by changing social philosophies to regard themselves as dispensers of public good rather than purveyors of private dividends. In the international field, Mr. Berle sees, for example, in the international oil agreement that terminated the Anglo-Iranian oil dispute, an instance of an international political arrangement that is more akin to an international state treaty than to a private contract of the traditional kind. Not everybody will accept Mr. Berle's view without considerable qualifications, but there is no doubt that from this angle, too, the traditionally quite distinct spheres of public or sovereign activities on the one hand and private non-sovereign spheres of profit-making activities on the other hand, are becoming increasingly intermingled.

30 See note 10 above, p. 479.

31 See Drago, in Friedmann (ed.), The Public Corporation 108 ff.

32 Unfortunately, this very distinction is suggested in the judgment of Cohen, L. J., in the Tass Agency case (note 10 above). The decision rests, however, on the different ground that the Tass Agency was not clearly a corporate entity separate from the government.

33 Art. 6, Hague Convention XIII of 1907.

34 Oppenheim-Lauterpacht, International Law, Vol. II (7th ed., 1952), p. 739.

35 Art. 7, Hague Convention V; Art. 7, Hague Convention XIII.

36 “The Growth of State Control over the Individual and Its Effect upon the Rules of International State Responsibility,” 19 British Year Book of International Law 118–150 (1938)Google Scholar.

37 Cf., in particular, the Neutrality Act, 1937.

38 “Pour la Suisse, la neutralité est une notion avant tout stratégique et militaire.” (Lalive, Le Droit de la Neutralité, Zürich, 1941.) As Lalive points out, most of the neutrality rules have developed from the conflicting interests of belligerents and neutrals on the high sea, which is No Man's Land. Neutrality on land, a later development, aims above all at protecting the neutral territory from the impact of war. At the same time, the land communications of Sweden and Switzerland with Axis-controlled territory enabled both countries to trade with Germany and Italy with fair immunity for the greater part of the war.

39 In the Korean action the necessary majority in the Security Council was achieved only by the boycott of Security Council proceedings then maintained by the Soviet Union and the interpretation of absence as not equivalent to the lack of an affirmative vote by a permanent member required for decisions of the Security Council under Art. 27, par. 3. For a detailed discussion, see Stone, Legal Controls of International Conflict 204 ff., 228 ff.

40 33 A.J.I.L. Supp 237–244 (1939).

41 In the article quoted above, note 36, p. 487.

42 Oppenheim, International Law, Vol. II (7th ed., 1952), pp. 657 ff.

43 See above, p. 481.

44 Cf., in the same sense, H. A. Smith, The Crisis in the Law of Nations 27 ff. (1947).

45 Legal Controls of International Conflict 408–412, at 413 (1954).

46 Ibid.

47 [1949] I.C.J. Reports 22.

48 For detailed substantiation, see among others, Preuss, 28 A.J.I.L. 649–668 (1934); Friedmann, , 19 British Year Book of International Law 142 ff. (1938)Google Scholar.

49 In India conditions may change without any revolution, as in the case of Pakistan, where, during the first few years, the Muslim League enjoyed an overwhelming position, which has collapsed in the last few years.

50 See Oppenheim-Lauterpacht (8th ed., 1955), Vol. I, par. 127a.

51 Ibid. 292.

52 See Doc. A/7 (1936) V.

53 The Report suggested the following principles for a contemplated League convention: “(1) to prohibit any form of preparation or execution of terrorist outrages; (2) to ensure effective cooperation for the prevention of such outrages; and (3) to ensure punishment of outrages of a terrorist and international character.” Moreover, in a convention signed at Geneva on Nov. 16, 1937—which has not entered into force—23 states undertook to treat certain acts of terrorism—including conspiracy and incitement and participation in aets of terrorism—as criminal offenses.

54 In the hostilities between Costa Rica and Nicaragua of 1954, where the evidence was clear that an expeditionary force aiming at the overthrow of the constitutional Government of Costa Rica had been organized in Nicaragua, the Inter-American Conference adopted a resolution condemning these activities. The United States acted on the resolution by sending military planes to the Government of Costa Rica, which defeated the conspiracy.

55 Oppenheim-Lauterpacht, op. cit. 707–710.

55a It is very unlikely that the courts of the different non-Communist countries would agree on this question. United States courts would presumably be guided by the Subversive Activities Control Act of 1950, which contains the following characteristic clauses:

“Sec. 2. As a result of evidence adduced before various committees of the Senate and House of Eepresentatives, the Congress hereby finds that …

(4) The direction and control of the world Communist movement is vested in and exercised by the Communist dictatorship of a foreign country.

(5) The Communist dictatorship of such foreign country, in exercising such direction and control and in furthering the purposes of the world Communist movement, establishes or causes the establishment of, and utilizes, in various countries, action organizations which are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of such foreign country.

(6) The Communist action organizations so established and utilized in various countries, acting under such control, direction, and discipline, endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary, and setting up Communist totalitarian dictatorships which will be subservient to the most powerful existing Communist totalitarian dictatorship. Although such organizations usually designate themselves as political parties, they are in fact constituent elements of the world-wide Communist movement and promote the objectives of such movement by conspiratorial and coercive tactics, instead of through the democratic processes of a free elective system or through the freedom-preserving means employed by a political party which operates as an agency by which people govern themselves.

(9) In the United States those individuals who knowingly and willfully participate in the world Communist movement, when they so participate, in effect repudiate their allegiance to the United States, and in effect transfer their ‘ allegiance to the foreign country in which is vested the direction and control of the world Communist movement.”

See further the Communist Control Act of 1954 (50 U.S.C. [1955 Supp.] par. 841), which describes the Communist Party as “an agency of a hostile foreign power” whose existence is “a clear present and continuing danger to the security of the United States.”

It is difficult to see how any country where the Communist movement is organized as a parliamentary party, and, in particular, in France or Italy where it could at any time become part of a government coalition by perfectly constitutional processes, could take the same approach. Even the United States legislation would not seem to preclude the need, in an international law case, for specific evidence that an action attributed to a Communist organization was, in fact, directed by a foreign government. It is, however, possible—although it would, in the present writer's opinion, be challengeable—that United States courts would interpret the Act of 1950 as having created an irrebuttable presumption of U.S.S.R. responsibility for any action of a Communist organization in the United States.

56 See, among others, Hyde, and Wehle, , 27 A.J.I.L. 1 ff. (1933)Google Scholar; Lauterpacht, , 14 British Year Book of International Law 125–140 (1933)Google Scholar; Bouvé, , 28 A.J.I.L. 19 ff. (1934)Google Scholar; Preuss, ibid. 667 ff.; Friedmann, , 19 British Year Book of International Law 142 ff. (1938)Google Scholar; Walz, Nationalboykott und Völkerreeht (1939).

57 Crofter and Woven Harris Tweed Co. v. Vertsh, [1942] A.C. 435.

58 Cf. Prosser, Law of Torts 754 ff. (2nd ed., 1955).

59 Bouvé, loc. cit. 24.

60 For the United States, see the Sherman Antitrust Act (1890), the Clayton Act (1914), and the other extensive legislation, including the establishment of such regulatory authorities as the Federal Trade Commission, etc. For England, see now the Monopolies Act (1948) and Amendments.

61 E.g., under Art. 826 of the German Civil Code.

62 14 British Year Book of International Law 125–140 (1933).

63 Preuss, , 28 A.J.I.L. 667 (1934)Google Scholar; Friedmann, , 19 British Year Book of International Law 144 (1938)Google Scholar.

64 For details, see Oppenheim-Lauterpacht, op. cit., par. 197 f.

65 See League of Nations Official Journal (1936), p. 1437; 186 L.N.T.S. 301.

66 E.g. Great Britain, France, India and, of course, all the nations of the Soviet bloc. In West Germany, broadcasting is organized in a number of regional public corporations that are semi-autonomous. In the United States, broadcasting is entirely private, but subject to licensing and certain overall control by the Federal Communications Commission. In Australia and Canada, a state-controlled broadcasting corporation exists side by side with a number of private stations, all of which are, however, subject to licensing, controlled by a public broadcasting control board.

67 32 A.J.I.L. 339–343 (1938).

68 For a survey of the most important case collections and literature, see, among others, Bishop, Cases and Materials on International Law, Ch. VII, p. 464 (1953); Briggs, The Law of Nations, Ch. IX (2nd ed.); Oppenheim-Lauterpacht, International Law, Vol. I, pp. 360 ff. (8th ed.).

69 The term is used, for example, by Borchard, “The Minimum Standard of the Treatment of Aliens,” 38 Mich. L. E. 445 (1940)Google Scholar; Freeman, The International Responsibility of States for Denial of Justice 497 ff. (1938); Eoth, The Minimum Standard of International Law Applied to Aliens (1949); Briggs, op. cit. 618 ff., speaks of an “International Standard of Justice.”

70 This does not necessarily mean a numerical majority of states. In this, as in many other fields, the nations which, by their history, the importance of their international relations, and their consequent weight in international affairs, have been chiefly articulate in the development of such standards, count for more than a small state with a minimum of international contacts. On the other hand, many of the challenges to established international minimum standards come from nations that struggle out of isolation or dependence towards a more independent international position and, in the course of that process, challenge established positions.

71 For a detailed discussion of this problem and a substantiation of this position, see Friedmann, Legal Theory, Ch. 29 (3rd ed.).

72 See Art. 38, par. 3, of its Statute.

73 Elihu Root, “The Basis of Protection to Citizens Residing Abroad,” Proceedings, American Society of International Law, 1910, p. 16, at 20–22.

74 28 A.J.I.L. Supp. 75 (1934).

75 See 3 Hackworth, International Law Digest 655 ff.; Bishop, Cases 475 ff.

76 The other cause célèbre on the matter of expropriations is the prolonged Hungarian-Rumanian land dispute over the claims of the Hungarian optants of Transylvania. See Deák, The Hungarian-Rumanian Land Dispute (1928). Here the main controversy was whether Rumania, under the cover of equality of treatment for Rumanians and Hungarians, discriminated against the latter in its agrarian reform measures.

77 Cf. the de Sabla Claim (U. S. v. Panama), Hunt's Report 379, 447 (1933); cf. also the note by Bishop, op. cit. 485 ff.

78 For opposing viewpoints, see, among many others, Faehiri, , “Expropriation in International Law,” 6 British Year Book of International Law 159 (1925)Google Scholar, in favor of the compensation principle; on the other hand, Williams, Fischer, “International Law and the Property of Aliens,” 9 ibid 1 (1928)Google Scholar, against any duty of compensation in the case of general legislative measures; and, for a general survey, Roth, International Minimum Standards (1949), and S. Friedman, Expropriation in International Law (1953). See further above, p. 502. The majority of writers consider expropriation without compensation as an international delinquency. An intermediate view is taken by Lauterpacht, in the 8th ed. of Oppenheim, Vol. I, at p. 352, where “the granting of partial compensation” is advocated.

79 For a principle of law to be regarded as “generally” recognized, it is not necessary to show that it should be universally accepted. “If any real meaning is to be given to the words ‘general’ or ‘universal’ and the like, the correct test would seem to be that an international judge before taking over a principle from private law must satisfy himself that it is recognised in substance by all the main systems of law, and that in applying it he will not be doing violence to the fundamental concepts of any of those systems.” Gutteridge, Comparative L'aw 65 (2nd ed., 1949).

80 It is an established principle of the international law of treaties that changes in the government—as distinct from changes in the international status—of one of the parties can have no influence on the binding force of treaties. (See McNair, The Law of Treaties, Ch. 34 (1938); Oppenheim-Lauterpacht, op. cit. 925 (8th ed., 1955).) The rationale is that internal political decisions—whether of an administrative or a legislative character—cannot affect international obligations once validly entered in accordance with constitutional process.

81 There has been surprisingly little discussion on this principle in the literature of public international law. (See, however, Schwarzenberger, International Law, Vol. I, pp. 214–216 (1945).) That the principle of unjust enrichment is one generally recognized, though with many differences in detail, in both the common and civil law systems, can no longer be doubted. It is specifically embodied, for example, in the German, Swiss, Italian, Spanish and Russian Civil Codes, while the French courts have developed similar principles. The principle of restitution is now sufficiently firmly established in American law to justify a separate Restatement on Restitution. In English law, the various actions for money had and received quantum meruit, constructive trust, etc., constitute the elements of a principle of unjust enrichment (cf. Lord Wright, Legal Essays and Addresses, Chs. I and II). For a comparative analysis of the principle of unjust enrichment, see, among others, Dawson, Unjust Enrichment (1952); Friedmann, “The Principle of Unjust Enrichment,” Canadian Bar. Rev., 1938, pp. 243 ff., 365 ff., and Legal Theory 354 ff. (3rd ed.); David and Gutteridge, “Unjust Enrichment,” 5 Cambridge L.J. 223 ff.; O'Connell, , “Unjust Enrichment,” 5 A.J. Comp. Law 2 ff. (1956)CrossRefGoogle Scholar.

82 Annual Digest (1929–1930), Case No. 1.

83 See, in particular, Lauterpacht, Private Law Sources and Analogies of International Law 203 ff. (1927); Cheng, General Principles of Law 141 ff. (1953).

84 “Judges are independent and subject only to the law.” (Art. 112.) The abolition in 1955 of the secret M.V.D. Boards, which had far-reaching jurisdictional powers in cases handled by the Secret Police (M.V.D.) is an important practical step in the direction of implementation of these principles.

85 “The citizens of the U.S.S.R. are guaranteed inviolability of person. No person may be placed under arrest except by decision of court or with the sanction of a State Attorney.” (Art. 127.)

86 “The inviolability of the homes of citizens and secrecy of correspondence are protected by law.” (Art. 128.)

87 These minimum standards of “due process,” on which judicial precedent and literature are voluminous, have been summarized by Professor Orfleld in 12 University of Pittsburgh L.R. 35, 41–44 (1950) in eleven principles embodying the elements of a fair trial.

88 On this distinction established by Tönnies, of. Schwarzenberger, Power Politics (2nd ed., 1951).

89 See Les actes de l'Union Postale Universelle, révisés à Paris (1947), Bureau international, Fase. 1, pp. 30–33.

90 See Jenks, “The Significance for International Law of the Tripartite Character of the International Labour Organisation,” 22 Grotius Society Transactions 45–86 (1936)Google Scholar.

91 There is now a fairly voluminous literature on the European Coal and Steel Community. The basic work is still Reuter, P., La communauté européenne du charbon et de l'aeier (Paris, 1953)Google Scholar; see also Krawielicki, Das Monopolverbot im Schuman Plan (1952). For a more recent survey of the structure and experience of the Community, see Friedmann, W., “The European Coal and Steel Community,” 10 International Law Journal 12–25 (1954–1955)Google Scholar. See also the Bulletins issued monthly by the High Authority at Luxembourg since October, 1954.