No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 09 March 2016
“Peaceful Coexistence,” a basic premise for minimum world public order during the Cold War, has re-emerged as a possible paradigm-model for world order in the present era of clashing or colliding civilizations. When the idea of codifying the general principles of peaceful coexistence was first advanced in the still-continuing Cold War, it was rejected by specialist legal bodies like the United Nations' International Law Commission and also the Institut de droit international as too “political” and thus incapable of being reduced to a scientific-legal foundation. The resulting intellectual-legal gap was promptly filled, however, by the non-governmental International Law Association (ILA), which established its own expert committee. Long-range fruits of this ILA initiative — apart from the all-important opening of a direct East-West legal dialogue — were the celebrated UN General Assembly Resolution 2625 of October 1970 and the acceptance of the pragmatic, empirical, problem-solving, step-by-step approach to resolving East-West conflicts in concrete cases — the ultimate road to détente on a deliberately nonideological case-by-case basis. The Canadian Branch of the ILA, with the support of the Canadian Department of Foreign Affairs' Legal Division, was a leader in the ILA's decision to take up that project and participated fully until its successful completion.
La “Coexistence pacifique,” principe de base de l’ordre public mondial minime des années de la Guerre froide, refait surface comme modèle possible d’un ordre public mondial de l’ère contemporain de l’affrontement des civilisations. Quand l’idée d’un acte de codification du concept de la Coexistence pacifique fut lancée durant la Guerre froide, elle fut rejetée par les organes juridiques spécialisés tels la Commission du droit international et l’Institut de droit international en raison de sa nature trop “politique.” L’Association du droit international, organisme non-gouvernmental, releva néanmoins le défi et établit une commission d’experts à cette fin. Parmi les fruits éventuels du travail de cette commission: la Résolution 2625 de l’Assemblée générale de l’ONU, adoptée en octobre 1970; le développement d’une approche pragmatiste, empirique, orientée vers la solution de problèmes concrets, et guidée par une politique gradualiste et étapiste — la méthodologie de la Détente entre l’Est et l’Ouest. La participation de la section canadienne de l’Association du droit international dans cette grande initiative fut, dès le début et avec l’appui du bureau juridique du ministère des Affaires étrangères du Canada, très positive.
This comment is taken from a revised and expanded version of an address to the Russian Society of International Law, which was held in Moscow on 27 June 2005 at the sixtieth Anniversary of Victory, the Foundation of the United Nations, and International Law. The author gratefully acknowledges comments and suggestions on the text as originally presented by A.L. Kolodkin, president of the Russian Society of International Law, by L.N. Galenskaya, editor-in-chief of the Russian Yearbook of International Law; as well as assistance on organization and presentation at the conference by Julia Bobrova, graduate in international law and assistant to Kolodkin.
1 Khrushchev, N. S., An Account to the Party and the People: Report of the Central Committee, Communist Part of the Soviet Union, to the 22nd Congress of the Party (17 October 1961) [on file with the author].Google Scholar
2 Sino-Indian Agreement, 29 April 1954.
3 Krylov, S. B., “Les notions principales du droit des gens (La doctrine soviétique du droit international)” (1947) 70 Hague Recueil 407.Google Scholar
4 Tunkin, G. I., “Coexistence and International Law” (1958) 95 Hague Recueil 1.Google Scholar
5 See the report by Jing, Li, “China Upgrades Diplomatic Guiding Principles,” (Beijing) China Daily (14 April 2004)Google Scholar, cited in (2004) 3 Chinese J. Int’l L. 369.
6 Boutros-Ghali, Boutros, “The Five Principles” (2004) 3 Chinese Journal of International Law 373.CrossRefGoogle Scholar
7 For my own studies, published at the time, as to the Soviet doctrinal-legal campaign and Western responses, see, variously, “Peaceful Coexistence” and Soviet-Western International Law (Leyden: A.W. Sythoff, 1964), 33 et seq.; “Peaceful Coexistence” (1962) 56 A.J.I.L. 951; “Le concept soviétique de ‘coexistence pacifique’ et les rapportsjuridiques entre l’URSS et les Etats occidentaux” (1963) Revue génerale de droit international public 545; “‘Peaceful Coexistence’ since the Soviet-Western détente’ (1964) 4 Indian J. Int’l L. 500; and “Soviet and Western International Law and the Cold War in the Era of Bipolarity: Inter-Bloc Law in a Nuclear Age” (1963) 1 Can. Y.B. Int’l L. 40.
8 Ian Sinclair, Sir, “Principles of International Law Concerning Friendly Relations and Cooperation among States,” in Nawaz, M. K., ed., Essays in International Law in Honour of Krishna Rao (Faridabad: Thomson Press, 1975), 139.Google Scholar The International Law Commission (ILC), founded in 1947 as a collegial, fifteen-member body, was distinguished in its earliest years by the high academic-legal quality of its first members and a resulting perceived intellectual-legal independence (some of the first members included J.L. Brierly, J.P.A. François, M. Hudson, V.M. Koretsky, and G. Scelle). By the opening of the 1960s, with an extra ten members added to accommodate the ever-expanding UN membership, the ILC profile had changed, with more professional foreign office lawyers and a resulting emphasis on a more strictly technical legal agenda.
9 The Institut de droit international had begun in 1873 as a veritable “academy of jurists,” drawn, by mutual election, from the highly cultivated Pan-European political and legal élite of the late nineteenth century. Up to 1914, it had had, in its ranks, a succession of intellectually gifted and liberal-minded Imperial Russian jurists, including V. Besobrasoff, L.A. Kamorovsky, and F.F. Martens. However, Russian representation faded with the Great October Revolution of 1917 and would not be effectively renewed until Gregory Tunkin’s election in 1959 and his colleague, V.M. Koretsky’s (by then a judge in the International Court of Justice (ICJ)) election in 1965. Though, for rather different reasons in each case, the key Asian states were also inadequately represented numerically in the institute until the end of the 1950s — China (in part because of the Civil War and the resulting “two Chinas” problem”); Japan (because of the still recent military defeat); and India (because of the very late decolonization and access to sovereignty and independence). The time lag in catching up on institute representativeness, in post-war world community terms, may have meant that it was hardly seized of the relevance of research and conclusions on the impact of plural political and legal systems on existing classical international law. See, generally, address of the president (2000–1) 69 Annuaire de l’Institut de Droit International 28.
10 The International Law Association (ILA), which was strongly influenced from its earliest years by its US founding member, David Dudley Field, assumed a prime interest in codification of national laws and in promoting transnational projects for uniform codes, particularly commercial laws, on an international scale. With its membership fully open and accessible, and not determined by election as with the Institut de droit international, it was able to respond easily to new trends in public thinking on law and legal objectives. In the immediate post-Second World War years, there was a considerable influx of thoughtful, idealistic lawyers from the war-damaged countries of Europe. And, with the full encouragement of the London-based international executive, new branches of the ILA were formed, not only in the Soviet Union and Soviet-dominated Eastern Europe but also in the defeated Axis countries. The ILA thus became an ideal forum for developing an East-West legal dialogue and exchange, and the ILA executive welcomed peaceful coexistence and its agenda with the establishment of a research commission on this theme at its 1956 biennial (held in the former Soviet bloc and now non-aligned Yugoslavia). Gregory Tunkin, who had actively promoted the formation of a Soviet branch of the ILA would later confide that it facilitated testing of new ideas and new thinking on international law with his Western interlocutors free from the constraints of official governmental briefs and protocol enjoined by the highly polemical debates in the UN General Assembly and related fora at the height of the Cold War.
A Canadian branch of the ILA was formed at about the same time on the initiative of a Montreal group — Louis Bloomfield, Maxwell Cohen, Gerald FitzGerald, and Nicolas Mateesco Matte — and supporting local Canadian branches soon followed in Toronto, Ottawa, and Vancouver. With knowledge and support of successive Canadian foreign ministers of different parties, Sidney Smith, Howard Green, and particularly Paul Martin, Sr., and appropriate professional liaison from the Foreign Ministry Legal Division’s J. Alan Beesley, Allan Gotlieb, the Canadian Branch became active in the debate.
11 Turkin’s studies, in Russian, on peaceful coexistence, may perhaps best be seen in the Soviet Yearbook of International Law (Sovietski Ezhegodnik Mezhdunarodnogo Prava) from 1958 onwards. Particularly clear expositions, in English, are to be found in his contributions in the debates at the biennial reunions of the ILA (see infra note 13), and in his lectures to the Hague Academy of International Law. Tunkin, supra note 4.
12 Krishna Rao, who was closely associated with Indian foreign minister, Krishna Menon, is commemorated, with respect to his legal ideas, in the volume published after his early death. Nawaz, M. K., ed., Essays in International Law in Honour of Krishna Rao (Faridabad: Thomson Press [India], 1975).Google Scholar
13 See, in particular, Report of the Fiftieth Conference of the International Law Association 1962 (London: International Law Association, 1963); and Report of the Fifty-First Conference of the International Law Association 1964 (London: International Law Association, 1965).
14 See, generally, McWhinney, Edward, “Objectives and Method in International Law and the East-West détente ” in McWhinney, Edward, Law, Foreign Policy, and the East-West Détente (Toronto: University of Toronto Press, 1964), 33 CrossRefGoogle Scholar; and McWhinney, Edward, “Changing International Law Method and Objectives in the Era of the Soviet-Western Détente , (1965) 59 A.J.I.L. 1 .Google Scholar
15 Declaration on the International Law Principles of Friendly Relations and Cooperation among States, in accordance with the UN Charter, UNGA Res. 2625 (XXV) 24 October 1970. See Pelt, Adrian H., ed., The Legal Principles Governing Friendly Relations and Cooperation among States in the Spirit of the United Nations Charter (1966).Google Scholar
16 US-USSR-UK Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow, 5 August 1963.
17 Treaty on the Non-Proliferation of Nuclear Weapons, Moscow and Washington, 1 July 1968.
18 McWhinney, Edward, The International Law of Détente, Arms Control European Security, and East-West Cooperation (Alphen aan den Rijn: Sijthoff and Nordhoff, 1978).Google Scholar
19 McWhinney, , “Peaceful Coexistence,” supra note 7 at 31–32.Google Scholar
20 See the address by former UN secretary-general Boutros Boutros-Ghali, at the Beijing ceremonies, reported in (Beijing) China Daily (14 June 2004), cited in ( 2004) 3 Chinese J. Int’l L. 373.
21 As recognized frankly and unequivocally in two major statements presented to the June 2004 Beijing celebrations, by Jiaobao, Wen, premier of the State Council of the People’s Republic of China, cited in (2004) 3 Chinese J. Int’l L. 363 Google Scholar; and by Boutros-Ghali. In Boutros-Ghali’s words, peaceful coexistence’s Principle 1 , is contained in Article 10 of the League of Nations Covenant and in Article 2(1) of the UN Charter; Principle 2, mentioned in the Kellogg-Briand Pact of 1928, is in the Article 2(4) of the UN Charter; Principle 3 is contained in Article 15(8) of the League of Nations Covenant and Article 2(7) of the UN Charter; Principle 4 is contained in the UN Charter preamble; and Principle 5 is contained in the UN Charter as a whole. Boutros-Ghali, supra note 20.
22 McWhinney, , “Peaceful Coexistence,” supra note 7 at 32–33 Google Scholar, citing, in particular, the opinions of the Yugoslav jurists, Milan Bartos, Milos Radojkovic, and M. Sahovic, and Juraj Andrassy.
23 Boutros-Ghali, supra note 20; and Wen Jaiobao, supra note 21 . And see also my contemporary study, McWhinney, Edward, The September 11 Terrorist Attacks and the Invasion of Iraq and Contemporary International Law (Leiden: Martinus Nijhoff, 2004).CrossRefGoogle Scholar
24 Gregory Tunkin ( 1962) 5 Sovetskoe Gosudarstvo i Pravo 3.
25 Ibid.
26 I had myself, at the invitation of the editors of Sovetskoe Gosudarstvo i Pravo, discussed this particular problem, for Russian readers at the opening of the Perestroika era “Ot ’klassicheskogo’ mezhdunarodnogo prava k sovremennomy“ (1989) 6 Sovetskoe Gosudarstvo i Pravo 77. (It was based on a lecture and seminar given to the Faculty of Law of the University of Moscow in 1989, in Tunkin’s chair.)
27 Whinney, Edward Mc, Ross, Douglas, Tunkin, Grigory, Vereshchetin, Vladlen, eds., From Coexistence to Cooperation: International Law and Organization in the Post-Cold War Era (Dordrecht: Martinus Nijhoff, 1991).Google Scholar
28 Among the Russian jurists taking part in the conference and in tribute to Tunkin: V.S. Vereshchetin, Sergei Federenko, Sergei V. Vinogradov, A. Movchan, Marina P. Bardina, Ludmilla Korbut, and Rein Miullerson.
29 Among the Canadian participants, both academics and also members of the Ministry of Foreign Affair and International Trade, Ottawa: John J. Noble, John M. Lamb, Serge April, Charles Bourne, William Andrews, Richard Gathercole, Bruce Torrie, M.D. Copithorne, Jason Reiskind, Nicolas Mateesco Matte, Armand de Mestral, Anne-Marie Trahan, Martin Low, Martin Collacott, Daniel Turp, and Irwin Cotler.
30 Tunkin had had earlier “Canadian“ legal encounters preceding the Cold War era, having, as a young career foreign service officer, been sent to Ottawa immediately after the German invasion of Russia in June 1941 in order to open an office charged with arranging the transfer, from the Canadian government to the Soviet government, of Lend-Lease armaments supplied by the then still neutral United States to Canada and its allies. Tunkin, while in Ottawa, perfected his English and also learned French. His fluent English of later years had a discernible Canadian, rather than American, accent.
31 Tunkin, “International Politics and International Law in the Nuclear Age,” in McWhinney, Ross, Tunkin, Vereshchetin, eds., supra note 27 at 9. For a more comprehensive analysis of Tunkin’s ideas on law and their influence, see my study, McWhinney, Edward, “Contemporary Soviet General Theory of International Law: Reflections on the Tunkin era” (1987) 25 Can. Y.B. Int’l L. 187.CrossRefGoogle Scholar
32 See McWhinney, Edward, “The ’New Thinking’ in Soviet International Law; Soviet Doctrines and Practice in the post-Tunkin era” (1990) 28 Can. Y.B. Int’l L. 309.CrossRefGoogle Scholar Tunkin’s role as legal adviser in the Soviet Foreign Ministry in the late 1950s and the early 1960s, which apparently included direct access to Khrushchev, ended after Khrushchev’s political overthrow. Tunkin was able, however, to make a lateral career move to the chair of international law at the University of Moscow, which had just become vacant with the retirement of Eugene Korovin, a very articulate older scholar in the traditional, orthodox Marxist-Leninist line and a strong critic of Tunkin’s thinking on peaceful coexistence. In developing his doctrinal-legal thinking from his new university chair, Tunkin moved easily into the pragmatic problem-oriented approach to détente and logically then into the “new thinking“ of the Perestroika era. Among his close associates or students in this transition, Vladlen Vereshchetin (later judge in the ICJ) and A.L. Kolodkin (later judge and president of the Law of the Sea Tribunal).
33 The argument, made under the rubric of peaceful coexistence, for commencing a rational dialogue on concrete problem situations in place of abstract ideological debates and frequent personal diatribes of the early Cold War years, would also impact beyond Soviet-Western legal arenas. Thus, in a rightly celebrated Japanese government white paper on the economy, published in July 1956, calling for the “start of the post-postwar era,” peaceful coexistence is embraced, in terms, as signalling a new direction in the confrontation between the two great political-military blocs of the Cold War era. The author of the white paper, Goto Yonosuke, cited Stalin’s death in 1953 and Khrushchev’s famous denunciation of the former leader in 1956, as evidencing a “shift from an arms race to competition for economic growth in a context of Peaceful Coexistence” and a consequent trend towards reduced East-West tensions in the movement from nuclear weapons to economic growth rates and the maximization of productivity as the key policy concerns and prorities in both blocs. See Takashi, Tachibana, “1955 Kono Kuni No Katachi” (“The End of the Postwar Era”) Bungei Shunju (May 2006), at 334–41Google Scholar, cited in (2006) 33(4) Japan Echo.