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Changing International Law Method and Objectives in the Era of the Soviet-Western Détente

Published online by Cambridge University Press:  28 March 2017

Edward McWhinney
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There has, it seems clear, been a change, in quality and in degree, in the general condition of relations between the two main competing social and economic systems, Soviet and Western, since the October, 1962, crisis, which brought us all so close to the edge of nuclear war. The crisis itself, whatever the original motives which induced Premier Khrushchev to venture his offensive, ground-to-ground, nuclear weapons into Cuba, was terminated happily, with an unusual display of reasonableness and self-restraint, and mutual give-and-take, as between the two competing systems. It may be correct to conclude, as Walter Lippmann (echoing President de Gaulle) does, that the peaceful resolution of the October, 1962, crisis marked the “end of the Postwar period.” On this view, the Moscow Partial Test Ban Treaty of August, 1963, simply ratified and concretized in certain particulars a fundamental accommodation or détente that had already occurred de facto between the two systems; while the more recent achievement of the so-called “Hot Line” system for direct, emergency communication between the Kremlin and the White House and the additional accord on preventing the orbiting of nuclear weapons in space vehicles, for their part, served to confirm and extend the détente in some further practical details.

Type
Research Article
Information
American Journal of International Law , Volume 59 , Issue 1 , January 1965 , pp. 1 - 15
Copyright
Copyright © American Society of International Law 1965 

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References

1 ” U.S. and U.S.S.E. Sign Agreement for Direct Communications Link,'’ White House Statement, June 20, 1963, 49 Dept. of State Bulletin 50 (1963); Text of Memorandum of Understanding, signed at Geneva, Switzerland, June 20, 1963, ibid.

2 ‘ ‘ U.N. Calls on States to Refrain from Orbiting Weapons, Statement by Ambassador Stevenson,” 49 Dept. of State Bulletin 753 (1963); Text of Resolution of U.N. General Assembly, Oct. 17, 1963, ibid, at 754 (U.N. Doc. A/C. 1/L. 324 (A/RES/ 1884 (XVIII)).

3 For earlier Soviet discussion of the general theme of codification, see S. Krylov, “Codification du Droit international,” in Hommage d'une Generation de Juristes au President Basdevant (C. Chaumont, ed., 1960), p. 300 et seq. For more contemporary discussion of the problem, see, for example, J.N. Hazard, “Codifying Peaceful Coexistence,“ 55 A.J.I.L. 109 (1961); idem, “ Coexistence Codification Reconsidered,“ 57 A.J.I.L. 88 (1963); idem, “ New Personalities to Create New Law,” 58 A.J.I.L. 952 (1964), and this JOURNAL, below, p. 59; E. McWhinney, “ ‘Peaceful Coexistence' and Soviet-Western International Law,” 56 A.J.I.L. 951 (1962); idem, Peaceful Coexistence (1964); International Law Association, Report of the Fiftieth Conference, Brussels, 1962, pp. 260-374 (1963); Law, Foreign Policy, and the East-West Detente (E. McWhinney, ed., 1964).

4 See, in this regard, for example, the joint statement by Professor Eugene Korovin, ex-Judge Kozhevnikov of the World Court, and six other Soviet jurists, in 68 Rev. Gen. de Droit Int. Public 310, at 311 (1964): ” … quant à 1'origine de la notion la coexistence pacifique. D'après l'auteur ce concept a fait sa première apparition à la Conférence de 1'International Law Association à Dubrovnik en 1956 et ses parrains ont été les juristes yougoslaves. Nous estimons beaucoup les travaux de nos collègues yougoslaves, mais suivant l'ancienne maxime amicus Plato sed magis arnica Veritas, nous devons rappeler que la formulation du concept de la coexistence pacifique appartient au fondateur du premier Etat socialist V. Lenine qui, développant la théorie de 1'évolution disproportionnelle du capitalisme, fut le premier à proclamer comme inévitable l'époque durable de ‘1'émulation pacifique' des Etats appartenant à des systèmes sociaux opposés.” And compare W. C. Clemens, Jr., “Ideology in Soviet Disarmament Policy,” 8 Journal of Conflict Resolution 7, at 16 and 17 (No. 1, March, 1964).

5 G. I. Tunkin, ‘ ‘ Le Droit international de la Coexistence pacifique,'’ in Problèmes de Droit des Gens, Mélanges offerts à Henri Bolin (1964).

6 Ibid.

7 Ibid.

8 Ibid. And see also Tunkin, Voprosi Teorii Mezhdunarodnogo Prava 63-65 (1962).

9 Ibid.

10 Tunkin, letter to The Times, London, Feb. 25, 1963. The actual basis for distinction between “new International Law” and “ a new international law” would appear, in the context in which Professor Tunkin was discussing this question in his letter to The Times, to have been the distinction between, on the one hand, a species of more or less evolutionary international law-making that would accept the corpus of classical international law doctrine as a necessary minimum starting point for legal innovation and creative adaptation of old rules and principles, and, on the other hand, some more radical approach that would presumably consider classical international law as per se outdated and without any juridical effect and significance in present-day terms.

11 Tunkin, note 5 above.

12 68 Rev. Gén. de Droit Int. Public 310, at 311 (1964).

13 See generally McWhinney, Peaceful Coexistence 62-71 (1964).

14 See, for example, V. Pechota, “Valne Shromazdeni OSN a Projednavani Pravnich zasad Miroveho Souziti,” 7 Casopis pro Mezinarodni Pravo 97 (1963).

15 Poslanie Predsedatelya Soveta Ministrov SSSE N. S. Khrushchev glavam gosudarstv (pravitelstv) stran mira (Dec. 31, 1963). Izvestiya, Jan. 4, 1964, p. 1; International Affairs (Moscow) 3 (No. 2, February, 1964); 16 Current Digest of the Soviet Press 3 (No. 1, Jan. 29, 1964).

16 See, for example, President Lyndon B. Johnson's response, on Jan. 18, 1964, which, among other things, called on Premier Khrushchev for concrete and specific follow-up to Ms more general proposals: ” … In this spirit, let us both present new proposals to the Geneva Disarmament Conference—in pursuit of the objectives we have previously identified: —to prevent the spread of nuclear weapons; —to end the production of fissionable materials for weapons; —to transfer large amounts of fissionable materials to peaceful purposes; —to ban all nuclear weapons tests; —to place limitations on nuclear weapons systems; —to reduce the risk of war by accident or design; —to move toward general disarmament. ” I am sure you will agree that our task is to work hard and persistently on these and other specific problems and proposals—as you and President Kennedy did on the Test Ban Treaty—instead of confining ourselves to vague declarations of principle that oppose some wars but not all.“ “President Johnson Calls Upon Soviet Union for Concrete Actions to Promote Peace,” 50 Dept. of State Bulletin 157 (1964).

17 See, for example, text of letter from Prime Minister Lester B. Pearson to Chairman N. S. Khrushchev, dated Feb. 4, 1964, Department of External Affairs, Ottawa, Press Release No. 10, Feb. 7, 1964.

18 ‘’ You have concentrated in your letter on territorial and border disputes. This is but one aspect of a larger problem, and I hope you will agree that other disputes should also be settled by peaceful means only…. “ ” It is unreasonable to assert that, although the use of force must be eschewed in territorial and border disputes, it is acceptable in disputes to which anyone chooses to give the arbitrary appellation of, for example ‘wars of liberation'. It is inadequate, in my view, to emphasize the prohibition of the use of direct and overt force only and to make no attempt to outlaw subversion, infiltration by trained guerillas, and the .supply of arms to insurrectionary forces—all of which are, as I am sure you realise, the cause of dangerous tensions in a great many parts of the world today.“ Letter from Prime Minister Lester B. Pearson, dated Feb. 4, 1964. Ibid. And compare K. Ivanov, “National Liberation and Territorial Conflicts,” International Affairs (Moscow) 8 (No. 5, May, 1964).

19 McWhinney, op. cit., note 13 above, pp. 64-66, 68-71.

20 G. I. Tunkin, ‘ ‘ Granitsi gosudarstv i mirnoe sosyshchestvovanie,'’ Izvestiya, Aug. 27, 1963, p. 2. And see also Tunkin, “Mezhdunarodnoe pravo i gosudarstvennie granitsi,” Izvestiya, Jan. 8, 1964, p. 2.

21 S. Molodtsov, “Frontiers and International Law,” International Affairs (Moscow) 9, at 14 (No. 4, April, 1964).

22 M. V. Yanovskii, “Problema zaklucheniya mirnogo dogovora s Germaniei i granitsa Oder-Neisse,” 1962 Sovetskii Ezhegodnik Mezhdunarodnogo Prava 150.

23 McWhinney, op. cit., note 13 above, p. 71.

24 N. V. Zakharova, ‘ ‘ Otkaz Sovetskogo gosudarstva ot dogovorov Tsarskoi Rossii, narushavshikh prava narodov vostochnikh stran,” 1962 Sovetskii Ezhegodnik Mezhdunarodnogo Prava 126. And see generally, L. K. Tillett, “Soviet Second Thoughts on Tsarist Colonialism,” 42 Foreign Affairs 309 (1964),

25 McWhinney, op. cit., note 13 above, pp. 92-100. And see also Ambassador George C. McGhee's discussion of the slow progress to Soviet-Western agreement through “mutual consent,” McGhee, “East-West Relations Today,” 50 Dept. of State Bulletin 488, 492- 494 (1964). I have employed the characterization “ground rule” (“rules of the game“) to identify these more informal modes of Soviet-Western consensus basing discernible patterns of Cold War reciprocal conduct or mutual self-restraint as the case may be, so as to differentiate them from legal rules stricto sensu —in the area of international law, rules emanating from formal treaties or long-time custom. Nevertheless, it may be suggested that, intrinsically, these “ground rules” have many of the elements necessary to constitute law as it would be defined in domestic, municipal law terms: if they are not yet international law, perhaps they can be viewed as in the nature of incipient or new customary law. Dicey's “conventions of the constitution,” which, as Dicey himself acknowledged, though they may not formally be “ law “ enforceable as such in the courts, nevertheless are habitually respected and observed quite as much, if not more, than formal rules of law, may provide a useful analogy from municipal law for present purposes: the sanctions ensuring compliance with the Cold War ‘ ‘ ground rules'' —at bottom, the obvious common interest of both blocs in their observance and the deterrent effect of fear of retaliation in strength, possibly escalating into nuclear conflict, in the event of their violation by either side—seem at least as viable as those offered by Dicey to explain the unswerving patterns of observance of the “conventions“ in municipal law. See, in this regard, A. V. Dicey, Introduction to the Study of the Law of the Constitution (1st ed., 1885; 9th ed. by E. C. S. Wade, 1945), pp. 417-473; and see also Julius Stone, The Province and Function of Law 721-729 (1946). In the discussion that immediately follows I am indebted, as to certain aspects of jurisprudential classification, to the continuing studies, in the North American legal realist tradition of legal science, of Professors Lasswell and McDougal; see their shortly to be published Law School lectures on legal theory, collected under the general title, “Law, Science, and Policy,“

26 N. S. Khrushchev's Answers to Questions of H. Shapiro, Chief Moscow Correspondent of American Wire Service United Press International, Izvestiya, Dec. 31, 1963, p. 1; 15 Current Digest of the Soviet Press 24 (No. 52, Jan. 22, 1964).

27 U.N. General Assembly, Resolution, Oct. 17, 1953 (U.N. Doc. A/C. 1/L. 324 (A/RES/1884(XVIII)).

28 Loc. cit. note 26 above.

29 Ibid., at pp. 24-25.

30 Ibid.

31 Ibid.

32 “ The State of the Union,” Address of the President to the Congress, Jan. 8, 1964, 50 Dept. of State Bulletin 110 (1964).

33 Der Spiegel (Hamburg) 83 (No. 18, April 29, 1964).

34 “The State of the Union,'’ Address of the President to the Congress, Jan. 8, 1964, loc. cit.; and see also “President Johnson Urges Diparmament Conference to Take Further Steps Toward Peace,” White House Press Release, Jan. 21, 1964, 50 Dept. of State Bulletin 223 (1964).

35 William C. Poster, “ U.S. Proposes Curb on Spread of Nuclear Weapons,” ibid. 376, at 379.

36 Ibid.

37 Statement by N. S. Khrushchev, Chairman of the U.S.S.B. Council of Ministers, Izvestiya, April 22, 1964; 16 Current Digest of the Soviet Press 26 (No. 16, May 13, 1964).

38 See the discussion, for example, by Lauterpacht, in 2 Oppenheim, International Law, Disputes, War and Neutrality 421-428 (H. Lauterpacht ed., 7th ed., 1952).

39 See, for example, the fascinating discussion by James B. Donovan of the Soviet- U. S. discussions leading to the exchange of U-2 Pilot Francis Gary Powers for Soviet Colonel Rudolph Abel. Donovan, Strangers on a Bridge (1964).

40 “ U.S. Policy on Flights Over Cuba Remains Unchanged,'’ Statement by Director of the Office of News, Richard I. Phillips, April 20, 1964, and Statement by President Johnson, April 21, 1964; 50 Dept. of State Bulletin 744 (1964).

41 See, for example, Izvestiya, April 25, 1964, p. 2; 16 Current Digest of the Soviet Press 31-32 (No. 17, May 20, 1964).

42 See, for example, ‘ ‘ President Johnson Urges Disarmament Conference To Take Further Steps Toward Peace,” loc. cit. note 34 above; “TJ. S. Calls for Exploration of ‘Freeze’ Concept,” Statement by William C. Poster before 18-Nation Committee on Disarmament, Jan. 31, 1964, 50 Dept. of State Bulletin at 350 (1964); “XJ. S. Proposes Curb on Spread of Nuclear Weapons,” Statement by William C. Poster, Feb. 6, 1964, ibid, at 376; “V. S. Makes Proposals for Safeguards for Peaceful Nuclear Activities and for Bomber Destruction,” Statement by Adrian S. Fisher before 18- Nation Committee on Disarmament, March 5, 1964, ibid, at 641; “U. S. Discusses 'Freeze’ Proposal in Disarmament Committee,”Statement by Adrian S. Fisher, ibid. at 756.

43 See, for example, Declaration of General Principles for a World Rule of Law, in The Four Steps at Athens toward World Peace through Law 2-3 (World Peace through Law Center, Washington, D. C.); 58 A.J.I.L. 143 (1964).

44 Ibid.

45 G. Scelle, “Le phénomène juridique du dédoublement fonctionnel,” in Kechtsfragen der Internationalen Organisation: Festschrift fur Hans Wehberg 324 (1956). And compare M. 8. McDougal, “The Impact of International Law upon National Law: a Policy-oriented Perspective,” in McDougal and Associates, Studies in World Public Order 169 et seq. (1960); E. A. Falk, “The Adequacy of Contemporary Theories of International Law—Gaps in Legal Thinking,” 50 Virginia Law Review 231, at 236 (1964).

46 See, for example, the remarks of ex-Judge Kozhevnikov of the World Court, as reported in B. Mikhailov, “ Konf erentsiya luristov-Mezhdunarodnikov,” 1963 Sovetskoe Gosudarstvo i Pravo (No. 10) 147, at 148

47 Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964); 58 A.J.I.L. 779 (1964).

48 There is, it seems clear, a need today for a certain flexibility and fluidity as to the precise jurisprudential characterization to be essayed for any recognizedly (i.e., in terms of both main legal systems) binding principle or rule of contemporary international law—stemming from the rigid, artificial or precious quality of the older, essentially positivistic forms of international law characterization. The older, positivistic approach, in true Austinian fashion, made its main focus on where the claimed principle or rule of international law came from, that is, its relation back to a series of closed historical categories of formal “sources” of international law. The newer approach tends, in pragmatist-realist fashion, to ask, in experiential terms, whether the claimed principle is actually observed as such by both main legal systems, without worrying too much as to whether that principle can be formally characterized in terms of conformity or otherwise to pre-existing sources. The inadequacy and limitations of the older, Austinian positivist, approach are perhaps—as Professor Manfred Lachs, the Polish jurist, has pointed out to me recently—best indicated in the case of the new principle against orbiting of nuclear weapons in space vehicles. This principle is clearly recognized by both main legal systems as a binding principle of contemporary international law; and yet how is it to be characterized jurisprudentially, in terms of the older approach! For Professor Lachs and some other, though not necessarily all (see the discussion in connection with footnote 14, above) Soviet bloc jurists, the validity of the principle, as a claimed principle of contemporary international law, comes from its formal embodiment in a U.N. General Assembly resolution (footnote 2, above). For those Western foreign ministries which tend to condemn out of hand any notion of U.N. General Assembly resolutions as a formal source, per se, of binding international law principles, in part reaction, no doubt, to the alleged capriciousness and instability of current U.N. General Assembly majorities—the claimed binding force of the principle against orbiting of nuclear weapons must, if we are to be limited to the closed historical categories of “sources,” come from the Soviet-U. S. accord which preceded and led to the U.N. General Assembly resolution, and from the fiction that this more or less informal agreement can be satisfactorily analogized to a formal treaty. Would it not be preferable, instead, to focus on the substance of the recognition and observance of the principle against orbiting nuclear weapons at the present day—the Soviet-Western de facto consensu, stemming from the principle's obvious common sense and reasonableness and utility in terms of both systems? But this would be to admit, of course, that the old categories are not to be considered closed and final at the present day, and that we must necessarily accept, as sources of present-day principles of international law, species of informal consensus, evidenced by the practice of both main legal systems and resting on reciprocal self-interest, which cannot properly be assimilated to the historically recognized sources.

49 Note 42 above.

50 See, for example, ‘ ‘ The State of the Union,'’ Address of the President to the Congress, Jan. 8, 1964, loc. cit. note 34 above, at 110, 111; “East-West Trade,” Statement by Dean Busk before Senate Committee on Foreign Relations, March 13, 1964, Hid. at 474 (1964). And see the comments by Premier Khrushchev on Soviet-Western trade possibilities, N. S. Khrushchev's Answers to Questions of H. Shapiro, Chief Moscow Correspondent of American Wire Service United Press International, Izvestiya, Dec. 31, 1963, p. 1, cited note 26 above; “Responsible and Noble Tasks,” Message of N. S. Khrushchev to U.N. Conference on Trade and Development, Pravda, March 23, 1964, p. 1, 16 Current Digest of the Soviet Press 21 (No. 12, April 15, 1964). And see the recent elaboration of the “principle of international commercial relations (ius commercii)” as a further example of the concretization of the “legal principles of Coexistence” by the Polish jurist, Professor Manfred Lachs. Lachs, “Legal Principles of Coexistence—the Need for Their Elaboration,” Polish Perspectives 3, at 7-10 (No. 12, 1963).