Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-14T07:50:14.629Z Has data issue: false hasContentIssue false
  • English
  • Français

United States Policy and the Crisis of International Law: Some Reflections on the State of International Law in “International Co-operation Year”

Published online by Cambridge University Press:  28 March 2017

Wolfgang Friedmann
Wolfgang Friedmann*
Affiliation:
Columbia University School of Law
Get access Rights & Permissions [Opens in a new window]

Extract

If the twentieth anniversary of the United Nations, designated as “International Co-operation Year,” had fallen in 1964 rather than 1965, a general assessment of the evolution of international law and organization since the end of World War II would have justified a measure of cautious confidence. Mankind was still very far from having organized itself against the danger of aggression. The danger of the proliferation of nuclear arms remained without effective control, apart from a partial nuclear test ban to which both the United States and the Soviet Union were parties. The world’s largest state, Communist China, remained outside the United Nations and without diplomatic relations with the United States and a large number of other states. The United Nations remained without effective control in conflicts between major Powers. The special agencies of the United Nations and other international welfare organizations still lacked, with few exceptions, the legal and executive power to cope with the many urgent problems of mankind. In the two most vital and dangerous areas: the conservation of resources, and the stemming of the explosive growth in the world's population, international organization was still embryonic or altogether lacking. But these grave drawbacks and deficiencies.

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 4 , October 1965 , pp. 857 - 871
Copyright
Copyright © American Society of International Law 1965

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Although the Security Council has been far from passive during the last decade— it discussed twenty-three issues between 1953 and 1965, as compared with five during the period 1948-1953, and thirteen during the period 1946-1948, most of these discussions did not lead to action. The Suez Canal intervention of the U.N. was exclusively under the authority of the General Assembly; the Congo Force was initially authorized by the Security Council but later on was carried on by General Assembly resolutions; the Cyprus operation was authorized by the Security Council. The latter thus recovered somewhat in recent years from the low level of its activities during the height of the Cold War, but the General Assembly retained much of the initiative that it had assumed since the Uniting for Peace Resolution, and especially in the Suez Canal crisis. The—at least temporarily—successful intervention of the Security Council in the war between India and Pakistan (September, 1965) indicates a further resurgence of the Council, at any rate where the United States and the U.S.S.B. have parallel interests. See, further, below, pp. 861-862.

2 One of the most abiding controversies in the theory of international law has been the question whether the alternative between national and international sovereignty is an absolute one, as is notably the thesis of Hans Kelsen. The present writer agrees with the view put, for example, by H. L. A. Hart in The Concept of Law (1961), that neither logic nor reality compels such absolute alternatives and that international law today may restrain sovereign states in some respects but leave them free to act in others. This may be an intermediate state, as illustrated by the present stage of evolution of the European Communities. Eventually, the Communities may have to grow into a federation, or relapse into a loose association of sovereign states, as is the purpose of deGaulle's denunciation of the Borne Treaty (September, 1965). Meanwhile the coexistence of supranational aspects, as symbolized in particular by the permanent executives of the Communities and the European Court of Justice, and the national aspects, represented by the Council of Ministers, is a definite fact of contemporary international law.

3 See, for an elaboration of this theme, Friedmann, The Changing Structure of International Law, especially Ch. 6 (1964).

4 [1962] I.C.J. Rep. 151.

4a The above was written in July. As this article goes to press, the United States’ abandonment of its insistence on payment of the assessed dues and of the threat to invoke Art. 19 in case of default, appears to confirm the trend outlined in the text.

5 ‘’ Should International Law Recognize an Intermediate Status between Peace and War,” 48 A.J.I.L. 98 (1954).

6 See, for a recent debate on this question, the conflicting views of the late Sir Hersch Lauterpacht, “Non Liquet and the Completeness of Law,” Symbolae Verzijl 196, at 205, and Professor Stone, “Non Liquet and the Function of Law in the International Community,” 35 Brit. Yr. Bk. Int. Law 145 etseq., (1959).

7 To some extent, these new developments may be seen as an extension of “reprisals” and other limited measures falling short of war, which have formed part of customary international law and state practice for a long time. It should, however, be made clear that the United States’ quarantine and other counter-measures, including a limited interference with the freedom of the seas, can be considered as legitimate only insofar as they were a response to a threat directed by the Soviet Union against the United States, and notinterference with the right of Cuba as a sovereign state to buy arms and other supplies from whatever source it chooses, and to have such supplies transported on the open seas. This distinguishes the Cuban missile crisis from the Bay of Pigs situation of 1961, which was clearly an intervention in the internal affairs of another state.

8 The importance of the revolution in transportation may be illustrated by the fact that Queen Victoria once wished to send a gunboat to quell trouble in Bolivia but was dissuaded because Bolivia is landlocked. These inhibitions do not apply to the age of aircraft and missiles.

9 See, for a more extended discussion of this question, Wright, The Bole of International Law in the Elimination of War 61 (1961), and the same writer's “United States Intervention in the Lebanon,” 53 A.J.I.L. 112, 121 et seq.(1959); see further Friedmann, The Changing Structure of International Law 264 et seq.(1964).

9a Cf.E. Fisher, ‘’ Intervention: Three Problems of Policy and Law,'’ in Essays on Intervention 19-20.

10 The conditions under which a state may be entitled, as an aspect of self-defense, to intervene in another state, in order to protect its nationals from injury, were formulated by Professor Waldock in 1952 as follows: “There must be (1) an imminent threat of injury to nationals, (2) a failure or inability on the part of the territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury.” (“The Regulation of the Use of Force by Individual States in International Law,” 81 Hague Academy Recueil des Cours 451, 467.) This was invoked, among other reasons, by the British Government in support of its armed intervention in Egypt during the Suez Canal crisis of 1956. Since, unlike in the Dominican Republic in April, 1965, there was no breakdown of organized government in Egypt nor any physical threat to foreign nationals, the United States had much greater legal justification for its original, limited intervention in protection of its nationals in the Dominican crisis than did Great Britain in the Suez crisis.

11 H. L. Deb., Vol. 199, Col. 718, Sept. 12, 1956.

12 1963 Proceedings, American Society of International Law at 13.

13 Such a division of imperial spheres would of course presuppose the defeat, by force or voluntary retreat, of present attempts to defend or expand positions outside the respective spheres of influence. The greatest sufferer in this would be the United States, which today maintains bases and forces in many parts of Asia. A new political sphere and possible source of big-Power conflict has arisen in Africa, which was hardly a continental political force of significance in 1948.

14 The present writer has attempted to survey the principal challenges and structural changes in his The Changing Structure of International Law (1964); see also Jenks, The Common Law of Mankind (1958); Holing, International Law in an Expanding World (1960); Schwarzenberger, The Frontiers of International Law (1962).