International law is both a contemplative academic subject and an active ingredient of diplomatic process in world affairs. The failure to maintain the clarity of this distinction accounts for considerable confusion about the nature and function of international law in the world today. An international lawyer is also a citizen of a nation-state who often holds strong views as to preferred courses of foreign policy. One way for him to vindicate these views is to demonstrate their compatibility or incompatibility with governing rules of international law. Confusion arises in scholarly settings whenever the adversary presentation of views is not distinguished from the scholarly assessment of opposing lines of adversary presentation.

The major thrust of contemporary international law is to restrict coercion in international relations as a modality of major change. The use of force as an instrument of change has always been wasteful, disruptive, and tragic. In the nuclear era the renunciation of force as a method of settlement of disputes has become an imperative. These necessities have resulted in a widely accepted distinction between lawful and unlawful uses of force in international relations which is embodied in the United Nations Charter. Force pursuant to the right of individual or collective defense or expressly authorized by the centralized peacekeeping machinery of the United Nations is lawful. Essentially all other major uses of force in international relations are unlawful. These fundamental proscriptions are designed to protect self-determination of the peoples of the world and to achieve at least minimum world public order. As such, they reflect the basic expectations of the international community. Since they are aimed at prohibiting the unilateral use of force as a modality of major change, they have consistently authorized the use of force in individual or collective defense at least “until the Security Council has taken the measures necessary to maintain international peace and security.” This defensive right is, at least at the present level of effectiveness of international peacekeeping machinery, necessary to the prevention of unilateral use of force as an instrument of change. The fundamental distinction between unlawful unilateral force to achieve major change and lawful force in individual or collective defense against such coercion is the structural steel for assessment of the lawfulness of the present military assistance to the Republic of Viet-Nam.

The Charter of the United Nations does not contain an express provision prohibiting, permitting or regulating the question of withdrawal from the Organization. The absence of such a provision from the text of the Charter has caused uncertainty, confusion and controversy.

The problem of a state’s right to cease or limit its performance of the provisions of a treaty on the ground that circumstances have changed is an old one. After centuries of doctrinal discussion, the existence, scope and modalities of such a right remain controversial and perplexing. Its practical importance may at times be exaggerated; but nations dissatisfied with the status quo continue to regard it as a welcome device for escaping from burdensome treaties, while others fear it as a threat to stability and to their interests. Terminology has complicated the problem. Scholars, in efforts to define the asserted right and its scope or to provide a doctrinal basis for its modalities, have resorted to numerous technical labels drawn largely from municipal legal systems. Governments, in asserting the right, have variously employed or refrained from employing such terms as rebus sic stantibus. Terminological diversity has sometimes served to obscure substantive similarities and differences in practice and to divert the attention of scholars from underlying community interests and policies.

A Conference of plenipotentiaries, convened by the Food and Agriculture Organization of the United Nations (FAO), met in Rio de Janeiro from May 2 to 14,1966, to consider the rational utilization of tuna resources in the Atlantic Ocean. The Conference had before it a draft convention which had been drawn up by an FAO Working Party of government representatives, and adopted and opened for signature an International Convention for the Conservation of Atlantic Tunas which provides for the establishment of a new fishery commission. As the subject of intergovernmental fishery bodies is one which has been somewhat neglected by international lawyers, the purpose of this article is to examine the constitutional and legal characteristics of the proposed Commission in the context of the numerous other intergovernmental fishery bodies already in operation.

After two decades of hate and antagonism following the war, Japan and the Republic of Korea (hereinafter referred to as the ROK) took a step towards amicable relations, with the signing of the normalization treaty and related documents on June 22, 1965, in Tokyo. The suspicion existed among Koreans, however, that normal relations would again bring the ROK under Japan’s economic and political domination. On the other hand, the opposition party in Japan found it unfeasible at that point for Japan to select from the divided nation of Korea the ROK as its friend. Overcoming opposition within both their parliaments, the Governments of Japan and the ROK each succeeded in securing the majority necessary to ratify these documents. The instruments of ratification were exchanged in Seoul on December 18, 1965.

The 1946 Bermuda Agreement is the major model for the United States bilateral air transport agreements. The Chicago Convention of 1944 had failed to provide traffic rights for scheduled air carriers because the United States and the United Kingdom disagreed over economic regulation of international air transport. The agreement which these competitors made two years later at Bermuda rivaled the Chicago Convention in importance because its compromise formula became the key to the later bilateral air transport agreements upon which is based the existence of all international scheduled air transport.

The Draft Articles on the Law of Treaties completed in 1966 by the International Law Commission and submitted to the General Assembly of the United Nations, on the basis of proposals by the Special Rapporteur, Sir Humphrey Waldock, contain, in Part VII (entitled “Depositaries, Notifications, Corrections and Registration”), three articles—Articles 71, 72 and 73—dealing directly with the depositary of an international treaty; and throughout the Draft Articles are to be found other provisions which directly or indirectly relate to the same institution of contemporary international law and relations.

Until recently, the view that new states start life unencumbered by the treaties which applied to their territories before independence has been almost universally and, too often, one might add, uncritically accepted. An exception, often explained away as only apparent, was made for “localized” treaties. And in the past fifteen or twenty years, the case for the continued force of multilateral “lawmaking” treaties has been pressed; this would be a real exception to the general clean-slate rule. Unless a bilateral treaty could be characterized as “localized,” however, the new state, according to the prevailing opinion, was freed of any continuing obligation by the act of becoming independent.

Since the very beginning of its existence the United Nations, like the League of Nations before it, has experienced how difficult it is to define the scope of the most general and fundamental principles of international law in a declaration of legal significance. Today this is still the case, as appears from the efforts undertaken since the establishment four years ago of a United Nations Special Committee, which was given the task of studying in what way and to what extent the primary principles of international law contained in the Charter could yield rules adapted to the changed world situation. Before considering in detail the most recent proceedings of the Special Committee, it seems useful briefly to recall the context within which the Committee started its work.

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading “Treaties conflicting with a peremptory norm of general international law (jus cogens)” that:

On April 8, 1965, the representatives of the six member states (Belgium, France, Federal Republic of Germany, Italy, Luxembourg and The Netherlands) of the European Communities signed the “Treaty Establishing a Single Council and a Single Commission of the European Communities.” The treaty’s principal object is to replace the executive bodies of the three Communities, i.e., the Commissions of the European Economic Community (E.E.C.) and the European Atomic Energy Community (EURATOM) and the High Authority of the European Coal and Steel Community (E.C.S.C.) by a single European Commission. At the same time, the Councils of Ministers of these three Communities are to be merged into one Council. This Merger Treaty is intended to be the first step toward the ultimate merger of the E.C.S.C, instituted by the Treaty of Paris of April 18, 1951, and the E.E.C. and EURATOM, instituted by the Eome Treaties of March 25, 1957.

The 1966 Draft Articles on the Law of Treaties, drafted over a period of five years of intensive work by an official organ of the international community—the International Law Commission of the United Nations—is more comprehensive and more reflective of community consensus than any previous draft prepared by international lawyers on the law of treaties. In contrast with the excellent Draft Convention on the Law of Treaties completed by the Harvard Eesearch in International Law in 1935, preparation of the Commission’s draft had the advantage of participation by members representative of all continents and of the views of states which were not in existence in 1935.

A question which was much discussed in legal literature in the early years of the United Nations, and which has been cited as a classic example of the effect of subsequent practice upon a provision in a multilateral treaty, has recently been raised again. This concerns the interpretation of Article 27, paragraph 3, of the Charter of the United Nations, which deals with voting in the Security Council on non-procedural matters. Both Portugal and South Africa last year reserved the position of their governments regarding the validity of Security Council Eesolution 221 of April 9, 1966, in the vote on which both France and the Soviet Union abstained. This is the resolution by which the Council, acting under Chapter VII of the Charter, called for certain measures to enforce an embargo on oil and petroleum products from reaching Southern Ehodesia through the port of Beira in Mozambique, and authorized the United Kingdom to prevent by the use of force, if necessary, the arrival at Beira of vessels reasonably believed to be carrying oil destined for Rhodesia.

The question of the legality of France’s nuclear test series, commenced on July 2, 1966, in French Polynesia, will probably stop short of any definitive third-party determination and be subjected only to general community appraisal. Yet even at the level of scholarly or diplomatic argumentation it is important to inquire into the competing interests and legal factors involved in the atmospheric tests. This is true not only because differing political expectations or even measures might depend on the consensus as to the legality or illegality of the French tests, but also because the precedential value of the tests will be of greater or less force depending upon whether there is agreement at the time of the tests that France was or was not acting within her international legal rights.

There seems to be a tendency to disregard the sovereignty of the little Principality of Liechtenstein. In a chart published by one of America’s leading news magazines on the United Nations, there is this strange reference: “Andorra, Liechtenstein, Monaco and San Marino are not eligible (for membership in the United Nations) being principalities rather than sovereign (sic) states.” A book on the government of Switzerland devotes the last three paragraphs to Liechtenstein and then concludes that it looked as though Liechtenstein had “actually become a Swiss canton in all respects except, perhaps, for the right of the principality to issue its own postage stamps.”

One of the best-known antitrust decisions in the last quarter of a century is United States v. Aluminum Company of America et al., now usually referred to as the ALCOA case. Although the Sherman Act had for some time been given an extraterritorial application when American corporations were involved, the novelty of ALCOA was that the decision, written by that eminent jurist, Judge Learned Hand, for the first time interpreted our antitrust laws as rendering illegal contracts of a foreign corporation which were made abroad with other foreign corporations and which related to business carried on and to acts to be performed abroad. No American party was involved, and no act took place in the United States, in the part of the case that is here to be considered. Jurisdiction was claimed merely on the basis of an adverse “effect” on our foreign and domestic commerce.