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Current Attempts to Revise International Law—A Comparative Analysis

Published online by Cambridge University Press:  27 February 2017

F. V. García-Amador
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Notes and Comments
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American Journal of International Law , Volume 77 , Issue 2 , April 1983 , pp. 286 - 295
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Copyright © American Society of International Law 1983

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References

1 The Calvo Doctrine has received a number of multilateral endorsements, including by inter-American treaties such as the 1933 Convention on Rights and Duties of States. See Art. 9 of the Convention in 28 AJIL, Supp. 76 (1934).

2 For the content and reasoning of the Drago Doctrine, see the Note transmitted to the U.S. Department of State by the then Argentinian Foreign Minister, Drago, Luis M., in 1903 Foreign Relations of the United States 1–5 Google Scholar.

3 For the various aspects of the Calvo Clause, see Shea, D. R., The Calvo Clause, esp. 27–32 (1955)Google Scholar—still the most thorough and balanced study of the clause.

4 The Latin American contribution to the development of international law and its revision goes far beyond the three aforementioned doctrines, but they are the most relevant for the purposes of the present Note. For an overall review of the regional contribution, see The Interamerican System: Treaties, Conventions and other Documents, vol. I: Legal-Political Affairs, pt. I, especially the Historical Introduction (a compilation annotated by García-Amador, F. V. 1983)Google Scholar.

5 Id. at 59.

6 See Res. of Sept. 27, 1927, League of Nations O.J., Spec. Supp. 53, at 9 (1927). For the views of members of the Committee of Experts, see id., Spec. Supp. 54, at 7, 8, 14, 15, and 17 (1925).

7 During the discussion in Committee II/2 of the amendments submitted to the Dumbarton Oaks Proposals by several delegations, a large majority voted in favor on the question whether the General Assembly should “be empowered to initiate studies and make recommendations for promoting the revision of the rules and principles of international law” (emphasis added). See Doc. 507, II/2/22, at 69, 70, 9 UN CIO Docs. 70 (1945).

In light of the decisive position taken by the San Francisco Conference, the attitude assumed by the General Assembly and other competent organs in interpreting and applying Article 13(1)(a) of the Charter was perfectly understandable. The discussion in the Committee on the Progressive Development of International Law and its Codification and the views expressed in its final report are very illuminating with regard to the point under consideration. The position taken by the Sixth (Legal) Committee of the General Assembly when it drafted the Statute of the International Law Commission also leaves no room for doubt. For a brief review of that position, see Survey of International Law in Relation to the Work of Codification, etc., Memorandum submitted by the Secretary-General, UN Doc. A/CN.4/1, at 4 (1948); and also The Work of the International Law Commission 11 (UN Pub. Sales No. E.80.V. 11, 3d ed. 1980).

8 See Bedjaoui, M., Towards a New International Economic Order 115 (1979)Google Scholar. In Judge Bedjaoui’s opinion, the reparation of this omission in the Charter “is what the Organization is attempting to do in its efforts to replace an old order, doomed because of its injustices, by a new order inspired by more reason and more equity.” Ibid.

9 Early commentators on the Charter noted that in paragraph 1(a) of Article 13 the word “ ‘political’ is apparently used in contradistinction to ‘legal’ since section [subparagraph] a goes on to speak of the development and codification of international law as distinct from the promotion of international political cooperation.” Goodrich, L. & Hambro, E., Charter of the United Nations; Commentary and Documents 102 (1946)Google Scholar. See in the same sense the study prepared by the UN Secretariat on Arts. 11(1) and 13(1)(a), UN Doc. A/AC.18/33, at 9 (1948), cited in id. at 134–35 (3d rev. ed. 1969).

10 Jessup, , Revisions of the International Legal Order, 10 Den. J. Int’l L. 1 (1980)Google Scholar.

11 Jessup, P., A Modern Law of Nations 2 (1948)Google Scholar.

12 Some of Judge Jessup’s revisionary suggestions had to do with a subject of direct concern to the revision of the traditional law of international claims. In addition to chapter V of the book cited in note 11 supra, see his article Responsibility of States for Injuries to Individuals, 46 Colum. L. Rev. 903 (1946). Among others, Professor H. Rolin also was of the view that state responsibility should be reexamined and reassessed on new bases and in light of postwar legal developments. See Les Principes de droit international public, 77 Recueil des Cours 305, 441 (1950 II).

13 As to the post–World War I period, see, e.g., Nippold, O., The Development of International Law After the World War (1923)Google Scholar, especially the introduction and pt. I, sec. II.

14 Perhaps the first to raise the point was Professor Brierly, J. L., in his The Law of Nations 44 (1949)Google Scholar. Sometime later other scholars put special emphasis on the point and elaborated it much further. See especially Jenks, C. W., The Common Law of Mankind 62 (1958)Google Scholar; and Röling, B., International Law in an Expanded World 5 (1960)Google Scholar. The point was soon taken up by spokesmen from the newly independent states, as well as from the non-Western world as a whole. See, e.g., Anand, , Attitude of the Asian-African States toward Certain Problems of International Law, 15 Int’l & Comp. L.Q. 55 (1966)CrossRefGoogle Scholar.

15 Traditional statements regarding the European role in the creation of international law have been mere assertions of a historical fact. For illustrations of assertions of this character, see C. W. Jenks, supra note 14, at 69–70.

16 B. Röling, supra note 14, at 11. An even earlier illustration of the modern approach to the “European” origin of international law is found in Wright, Q., The Influence of the New Nations of Asia and Africa upon International Law, 7 Foreign Aff. Rep. 33 (New Delhi 1958)Google Scholar.

17 As the late Professor W. Friedmann stated, “The emergence of many new states . . . is of more than quantitative significance.” Friedmann, , The Changing Dimensions of International Law, 62 Colum. L. Rev. 1147, 1150 (1962)Google Scholar. See also Fenwick, , International Law: The Old and the New, 60 AJIL 475 (1966)CrossRefGoogle Scholar.

18 Jennings, , The Progress of International Law, 34 Brit. Y.B. Int’l L. 334, 350 (1958)Google Scholar. Ever since, the point has often been raised by European scholars. See, e.g., Chaumont, , Cours general de droit international, 129 Recueil des Cours 333, 439 (1970 I)Google Scholar. Sometimes the point is raised in a broader context that includes both the newly emerged states and those small and/or weak states in existence during the formative era, i.e., the 19th century. See Castañeda, , The Underdeveloped Nations and the Development of International Law, 15 Int’l Org. 38, 39 (1961)Google Scholar.

19 See, inter alia, Judge Elias, T. O., Modern Sources of International Law, in Transnational Law in a Changing Society: Essays in Honor of Philip C. Jessup 34, 49 (Friedmann, W., Henkin, L., & Lissitzyn, O. eds. 1972)Google Scholar; and Pal, Judge R., Future Role of the International Law Commission in the Changing World, UN Rev., Sept. 1962, at 31 Google Scholar; and his statement in the International Law Commission, [1957] 1 Y.B. Int’l L. Comm’n 158, UN Doc. A/CN.4/SER.A/1957.

20 Jessup, , Non-Universal International Law, 12 Colum. J. Transnat’l L. 415, 419 (1973)Google Scholar.

21 In this respect, see, inter alia, Syatauw, J., Some Newly Established Asian States and the Development of International Law 230 (1961)Google Scholar.

22 For strong criticisms of the traditional rules governing the matter, see, inter alia, M. Bedjaoui’s second report on Succession of States and Governments: Succession in Respect of Matters other than Treaties, [1969] 2 Y.B. Int’l L. Comm’n 69 ff., UN Doc. A/CN.4/SER.A/1969/Add.1.

23 “For example, the law of the sea, which was codified in 1958, is mainly based on customs and usages observed by the European maritime powers.” Rembe, N., Africa and the International Law of the Sea 8 (1980)Google Scholar. In this respect, a French professor had previously remarked that the 1958 and 1960 Law of the Sea Conferences “had done nothing but to codify the practice of an era previous to decolonization.” See Flory, M., Droit International du Développement 283–84 (1977)Google Scholar.

24 Judge S. N. Guha Roy, for instance, questions whether the law of state responsibility is part of “universal international law” on the ground that “[i]ts sole foundation is custom, which is binding only among States where it either grew up or came to be adopted.” See Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?, 55 AJIL 863, 889 (1961).

25 Falk, , Historical Tendencies, Modernizing and Revolutionary Nations, and the International Legal Order, 8 How. L.R. 128, 133 (1962)Google Scholar. See also his lectures at the Hague Academy, The New States and International Legal Order, 118 Recueil des Cours 1, 94 (1966 II). Other statements along the same lines will be quoted in due course.

26 Abi-Saab, , The Newly Independent States and the Rules of International Law: An Outline, 8 How. L.J. 95, 99 (1962)Google Scholar. See also Sinha, S., New Nations and the Law of Nations 26–27 (1967)Google Scholar; and Anand, R. P., New States and International Law 52 (1972)Google Scholar. More recently, Professor Abi-Saab has reiterated that the newly emerged states, “instead of rejecting the system [of international law] as a whole, . . . claimed the right to re-examine its rules and to retain only those which are compatible with their interests.” Abi-Saab, , The Third World and the Future of International Law, 29 Rev. Egyptienne Droit Int’l L. 27, 38 (1973)Google Scholar. See also Hingorani, R. C., Modern International Law 2 (1979)Google Scholar.

27 R. P. Anand, supra note 26, at 65. With regard to the assertion quoted in the text, one might well recall the remarks made by an Egyptian Foreign Minister, Professor Boutros Ghali:

[T]he claim that new countries have a new approach to international law is exaggerated. For example during the various African Conferences, African States in their attitude towards International Law showed that they are traditionalists. It appears that Western scholars are more enthusiastic to see a “new approach” on the part of the Afro-Asians than the Afro-Asians themselves.

See Round Table on the Teaching of International Law and Relations, Final Report 56 (Singapore 1964).

28 We will return to this point in due course. See infra note 35 and corresponding text.

29 See Falk, supra note 25 and corresponding text. See in the same sense Professor Okoye, F., International Law and the New African States 176–77 (1972)Google Scholar.

30 Castañeda, supra note 18, at 39.

31 For a very persuasive elaboration of the point, see Jessup, supra note 20, at 420–21.

32 See id. at 415 ff.; and Lillich, , Duties of States Regarding the Civil Rights of Aliens, 161 Recueil des Cours 329, 363–68 (1978 III)Google Scholar. See also Professor Lillich’s chapter 1, The Development and Challenges to the International Law of State Responsibility for Injuries to Aliens , in International Law of State Responsibility for Injuries to Aliens: Selected Contemporary Problems (Lillich, R. ed., forthcoming in 1983)Google Scholar.

33 On the basis of the unique experience he acquired during the long process of elaborating the NIEO Charter, Ambassador Castañeda admitted that “[e]n bonne partie, la confusion était due à la préparation juridique insurnsante d’un certain nombre de participants, qui par ailleurs tendaient à souligner seulement l’aspect politique du document.” See Castañeda, , La Charte des Droits et Devoirs Economiques des Etats: Note sur son processus d’élaboration, 20 Annuaire Français Droit Int’l 31, 55 (1974)Google Scholar.

34 The point is illustrated to a rather limited extent in this author’s essay, The Proposed New International Economic Order: A New Approach to the Law Governing Nationalization and Compensation, 12 Law. Am. 1, 44–48 (1980). For some relevant examples of erroneous or distorted images, see Kuusi, J., The Host State and the Transnational Corporation: An Analysis of Legal Relationships 54 (1979)Google Scholar; de Aréchaga, Jiménez, State Responsibility for Nationalization of Foreign-Owned Property, 11 N.Y.U.J. Int’l L. & Pol. 179 (1978)Google Scholar, concerning traditional principles governing breaches of state contracts and other measures affecting aliens’ property rights; Hossain, , Permanent Sovereignty over Natural Resources, in Legal Aspects of the New International Economic Order 36 (Hossain, K. ed. 1980)Google Scholar; and M. Flory, supra note 23, at 282–83, concerning the traditional concept of national sovereignty as compared with the contemporary doctrine of “permanent sovereignty.”

35 This feature of the current revisionary movement sometimes raises objections even among non–Western scholars. For instance, Professor Anand has characterized as “excessive and perhaps unreasonable” those positions that the new and developing countries sometimes take against the colonial powers. For the position of Western scholars in this regard, see the quotation in note 27 supra and corresponding text.

36 This author hopes to be excused for recalling that the same belief was expressed by him to the International Law Commission more than two decades ago, in connection with his work on the subject of state responsibility. See Addendum to the sixth report, [1961] 2 Y.B. Int’l L. Comm’n 46, UN Doc. A/CN.4/SER.A/1961/Add.1.