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Legitimacy in the International System

Published online by Cambridge University Press:  27 February 2017

Thomas M. Franck
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Extract

The surprising thing about international law is that nations ever obey its strictures or carry out its mandates. This observation is made not to register optimism that the half-empty glass is also half full, but to draw attention to a pregnant phenomenon: that most states observe systemic rules much of the time in their relations with other states. That they should do so is much more interesting than, say, the fact that most citizens usually obey their nation’s laws, because the international system is organized in a voluntarist fashion, supported by so little coercive authority. This unenforced rule system can obligate states to profess, if not always to manifest, a significant level of day-to-day compliance even, at times, when that is not in their short-term self-interest. The element of paradox attracts our attention and challenges us to investigate it, perhaps in the hope of discovering a theory that can illuminate more generally the occurrence of voluntary normative compliance and even yield a prescription for enhancing aspects of world order.

Type
Research Article
Information
American Journal of International Law , Volume 82 , Issue 4 , October 1988 , pp. 705 - 759
Copyright
Copyright © American Society of International Law 1988

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References

1 See especially Schachter, Towards a Theory of International Obligation, 8 Va. J. Int’l L. 300 (1968).

2 J. Brierly, The Outlook For International Law 13 (1944) (quoting Sir Alfred Zimmern).

3 Austin believed that law was the enforced command of a sovereign to a subject. J. Austin, The Province of Jurisprudence Determined (1832); see also Janis, Jeremy Bentham and the Fashioning of “International Law,” 78 AJIL 405, 410 (1984). This Austinian view has been widely shared by critics. See, however, H. L. A. Hart, The Concept of Law, ch. 10 (1961); and Williams, International Law and the Controversy Concerning the Word ‘Law,’ 22 Brit. Y.B. Int’l L. 146(1945).

4 For the best recent exposition of this view, see A. D’Amato, Is International Law Really Law?, in International Law: Process and Prospect 1 (1987).

5 N. Machiavelli, The Prince 71 (L. de Alvarez rev. ed. 1981).

6 Foucault rejects all notions of dominance, whether embodied in theories of sovereignty (divine rule, autocracy, “public rights” and so forth) or embraced in “mechanisms of discipline,” including, for example, “power that is tied to scientific knowledge.” He visualizes, instead, a new form of “right,” which is antidisciplinarian and divorced from concepts of sovereignty. M. Foucault, Power/Knowledge: Selected Interviews and Other Writings 106–08 (C. Gordon ed. 1980).

7 R. Dworkin, Law’s Empire 176–224 (1986).

8 According to Habermas:

Legitimacy means that there are good arguments for a political order’s claim to be recognized as right and just; a legitimate order deserves recognition. Legitimacy means a political order's worthiness to be recognized. This definition highlights the fact that legitimacy is a contestable validity claim; the stability of the order of domination (also) depends on its (at least) de facto recognition. Thus, historically as well as analytically, the concept is used above all in situations in which the legitimacy of an order is disputed, in which, as we say, legitimation problems arise. One side denies, the other asserts legitimacy. This is a process … .

J. Habermas, Communication and the Evolution of Society 178–79 (T. McCarthy trans. 1979).

9 Kronman, Contract Law and the State of Nature, 1 J. L., Econ. & Org. 5 (1985).

10 Weber postulates the validity of an order in terms of its being regarded by the obeying public “as in some way obligatory or exemplary” for its members because, at least in part, it defines “a model” which is “binding” and to which the actions of others “will in fact conform.” At least in part, this legitimacy is perceived as adhering to the authority issuing an order, as opposed to the qualities of legitimacy that inhere in an order itself. This distinction between an order (command) and the order (authority) is easily overlooked but fundamental. 1 M. Weber, Economy and Society: An Outline of Interpretive Sociology 31 (G. Roth 8c C. Wittich eds. 1968). For a critique, see Hyde, The Concept of Legitimacy in the Sociology of Law, 1983 Wis. L. Rev. 379.

11 “What are accepted as reasons and have the power to produce consensus … depends on the level of justification required in a given situation.” J. Habermas, supra note 8, at 183.

12 Hyde, for example, believes that the concept of legitimacy should be abandoned and replaced by investigation of “rational grounds for action.” Hyde, supra note 10, at 380. See also Bos, Friede Durch Volkerrecht—Oder Durch Volkerlegitimitat?, 17 Nederlands Tijdschrift Voor Internationaal Recht 113 (1970).

13 Schachter, supra note 1, at 309.

14 Hyde, supra note 10, at 411–17, 422–25.

15 H. L. A. Hart, supra note 3, at 209.

16 Permissible activities of diplomats are set out in Article 3 of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 UST 3227, TIAS No. 7502, 500 UNTS 95. Obviously, these do not include espionage.

17 Schachter, supra note 1, at 311.

18 Convention on the Continental Shelf, Art. 1, Apr. 29, 1958, 15 UST 471, TIAS No. 5578, 499 UNTS 311.

19 United Nations Convention on the Law of the Sea, Art. 76, opened for signature Dec. 10, 1982, UN Doc. A/CONF.62/122, reprinted in United Nations, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index, UN Sales No. E.83.V.5 (1983), 21 ILM 1261 (1982).

20 For a legislative history and analysis of the provisions of the 1958 Convention, see Whiteman, Conference on the Law of the Sea: Convention on the Continental Shelf, 52 AJIL 629 (1958).

21 92 Cong. Rec. 10,694 (1946).

22 As I have written elsewhere:

That the Connally Reservation did not license the United States to refuse to litigate any case for any reason whatsoever, that a “good faith” caveat was to be implied, is to be given some support by the fact that Connally was not invoked by U.S. lawyers to withdraw the Nicaraguan case from the I.C.J.’s jurisdiction.

Franck & Lehrman, Messianism and Chauvinism in America’s Commitment to Peace Through Law, in The International Court of Justice at a Crossroads 3, 17 (L. Damrosch ed. 1987).

23 The United States announced that the case involved “an inherently political problem that is not appropriate for judicial resolution.” Department Statement, Jan. 18, 1985, Dep’t St. Bull., No. 2096, March 1985, at 64, 64, reprinted in 24 ILM 246, 246 (1985), 79 AJIL 438, 439.

24 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility, 1984 ICJ Rep. 392 (Judgment of Nov. 26).

25 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

26 L. Wittgenstein, Philosophical Investigations 81, para. 201 (G. E. Anscombetrans. 1953).

27 Kennedy, Towards a Critical Phenomenology of Judging, 36 J. Legal Educ. 518 (1986).

28 Vienna Convention on Diplomatic Relations, supra note 16, Arts. 31, 37.

29 The Department of State, on Aug. 5, 1987, submitted its views on a “ ‘bill to make certain members of foreign diplomatic missions and consular posts in the United States subject to the criminal jurisdiction of the United States with respect to crimes of violence.’ ” The Department (Ambassador Selwa Roosevelt) “could not support the proposed legislation because it would be detrimental to U.S. interests abroad.” If enacted, the law “would place the United States in violation of its international obligations” and would invite more harmful reciprocal action. Contemporary Practice of the United States, 82 AJIL 106, 107 (1988). For the text of Ambassador Roosevelt's statement, see also Dep’t St. Bull., No. 2127, October 1987, at 29.

30 H.C. Foreign Affairs Committee, First Report, The Abuse of Diplomatic Immunities and Privileges, Report with Annex; Together with the Proceedings of the Committee; Minutes of Evidence Taken on 20 June and 2 And 18 July in the Last Session of Parliament, and Appendices (1984). See also Higgins, The Abuse of Diplomatic Privileges and Immunities: Recent United Kingdom Experience, 79 AJIL 641 (1985).

31 Definition of Aggression, GA Res. 3314, 29 UN GAOR Supp. (No. 31) at 142, UN Doc. A/9631 (1974).

32 See Vienna Convention on Diplomatic Relations, supra note 16, Arts. 27, 28.

33 See Vienna Convention on the Law of Treaties, Arts. 6, 55, opened for signature May 23, 1969, UNTS Regis. No. 18,232, UN Doc. A/CONF.39/27 (1969), reprinted in 8 ILM 679 (1969), 63 AJIL 875 (1969).

34 United Nations Convention on the Law of the Sea, supra note 19.

35 Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2941, TIAS No. 6768, 704 UNTS 219.

36 Universal Copyright Convention, July 24, 1971, 25 UST 1341, TIAS No. 7868 (revised version of 216 UNTS 132).

37 See Universal Postal Union Const., July 10, 1964, 16 UST 1291, TIAS No. 5881, 611 UNTS 7.

38 See Telegraph and Telephone Regulations, with appendices, annex, and final protocol, Apr. 11, 1973, 28 UST 3293, TIAS No. 8586.

39 See International Telecommunication Convention, Oct. 25, 1973, 28 UST 2495, TIAS No. 8572.

40 See Vienna Convention on Diplomatic Relations, supra note 16, Art. 22 (which provides for inviolability of diplomatic missions and imposes a special duty on states to protect premises of missions on their territory). See also Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 14, 1973, 28 UST 1975, TIAS No. 8532, 1035 UNTS 167 (which criminalizes violent attacks upon the official premises of internationally protected persons).

41 The right of innocent passage was specifically provided for in Article 14 of the Geneva Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, and by Article 17 of the UN Convention on the Law of the Sea of 1982, supra note 19.

42 See Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135. For a complete treatment of war prisoners, see N. Rodley, The Treatment of Prisoners Under International Law (1987).

43 As to compensation for expropriated property, there is agreement in principle, but disagreement as to the measure of compensation. See, e.g., Charter of Economic Rights and Duties of States, Dec. 12, 1974, Art. 2(2)(c), GA Res. 3281, 29 UN GAOR Supp. (No. 31)at 50, UN Doc. A/9631 (1974). See also Resolution on Permanent Sovereignty over Natural Resources, GA Res. 1803, 17 UN GAOR Supp. (No. 17) at 15, UN Doc. A/5217 (1962). Article 4 of the latter states in part concerning expropriation: “In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law.” But see Resolution on Permanent Sovereignty over Natural Resources, GA Res. 3171, 28 UN GAOR Supp. (No. 30) at 52, UN Doc. A/9030 (1973). Article 3 “affirms” that “each State is entitled to determine the amount of possible compensation and the mode of payment, and that any disputes which might arise should be settled in accordance with the national legislation of each State carrying out such measures.”

44 UN Docs. A/8791 and A/8791/Add.l (1972).

45 See, e.g., Ad Hoc Committee on International Terrorism, Observations of States Submitted in Accordance with General Assembly Resolution 3034 (XXVII), UN Docs. A/AC. 160/1 and Adds. 1–2 (1973).

46 UN Doc. A/AC.160/3/Add.2, at 3 (1973).

47 UN Doc. A/AC.160/2, at 7 (1973). However, Ambassador Oakley has reported a new Soviet “awareness that distinctions must be made between so-called liberation movements and groups whose objectives and operations are primarily directed toward producing terror, and whose targets are often unrelated to their putative ‘liberation’ goals.” Oakley, International Terrorism, 65 Foreign Aff. 628 (1987).

48 See Address by Ambassador Kirkpatrick, National Press Club (May 30, 1985), which in effect gave new life to the “just war” doctrine.

49 On this policy, see Franck, Porfiry's Proposition: Legitimacy and Terrorism, 20 Vand. J. Transnat’l L. 195, 218 (1987). See infra text accompanying note 55.

50 F. Russell, The Just War in the Middle Ages 12 (1975).

51 Id. at 18–20.

52 T. Aquinas, Summa Theologiae, Question 40, Art. 1 (T. Heath trans. 1972).

53 See H. Grotius, On the Law of War and Peace (L. Loomis trans. 1949); Edwards, The Law of War in the Thought of Hugo Grotius, 19 J. Pub. L. 371 (1970). Grotius expressly contemplated intervention by a third state to protect the natural law rights of the citizens of another state. See bk. II, ch. XXV of H. Grotius, supra (entitled “On the Causes of Undertaking War on Behalf of Others”).

54 UN Charter. Article 2(4) seeks to curb aggressive wars by imposing the obligation on states to refrain from the threat or use of force against the territorial integrity or political independence of any state, while Article 51 provides support for the inherent right of individual or collective self-defense in case of armed attack.

55 Address by Ambassador Kirkpatrick, supra note 48. The Reagan doctrine is not the only 20th-century attempt to revive the just war doctrine. The Soviet Union has long maintained that “[j]ust wars & are not wars of conquest but wars of liberation, waged to defend the people from foreign attack and from attempts to enslave them, or to liberate the people from capitalist slavery, or, lastly, to liberate colonies and dependent countries from the yoke of imperialism.” Commission of the Central Committee of the C.P.S.U., History of the Communist Party of the Soviet Union (Bolsheviks) 167–68 (1939). The modern non-aligned movement has also upheld the just war doctrine, one result being the provisions of Protocol I to the Geneva Conventions. See, e.g., Art. 1(4), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12,1977, International Committee of the Red Cross, Protocols Additional to the Geneva Conventions of 12 August 1949, at 3 (1977), reprinted in 16 ILM 1391 (1977). This position was dramatically put forth in a 1973 General Assembly resolution: “colonial peoples have the inherent right to struggle by all necessary means at their disposal against colonial Powers and alien domination in exercise of their right of self-determination.” GA Res. 3103, 28 UN GAOR Supp. (No. 30) at 142, UN Doc. A/9030 (1973). See also GA Res. 2105, 20 UN GAOR Supp. (No. 14) at 3, UN Doc. A/6104 (1965). For a case study, see Dugard, SWAPO: The Jus ad Bellum and the Jus in Bella, 93 S. Afr. L.J. 144 (1976).

56 See Franck, Who Killed Article 2(4)?, 64 AJIL 809, 820-22 (1970).

57 [Tokyo] Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2941, TIAS No. 6768, 704 UNTS 219; [Hague] Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641, TIAS No. 7192 [hereinafter Hague Convention]; [Montreal] Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, TIAS No. 7570.

58 This scenario most notably occurred when an East German hijacked a Polish airliner to West Berlin. As an outgrowth of the historical and jurisdictional freak that is Berlin, the hijacker was charged with crimes under West German law but prosecuted by the United States and tried in an American court. The U.S. ambassador to West Germany appointed a New Jersey federal district judge, Herbert Stern, to preside over the trial. See H. Stern, Judgment in Berlin (1984). Judge Stern, applying U.S. constitutional law, determined that the defendant was entitled to a jury trial (despite the anomaly that juries generally do not exist under German law). United States v. Tiede, 86 F.R.D. 227 (U.S. Ct. Berlin 1979). Impaneling a jury of West Berliners to judge an East German “refugee” raised the specter that the jury would refuse to convict the defendant in the American tradition of jury nullification. See Lowenfeld, Hijacking, Freedom, and the “American Way,” 83 Mich. L. Rev. 1000, 1005 (1985). In other words, the jury would in effect graft a complex clause upon the linear law of the Hague Convention. In the end, the jury did acquit the defendant of hijacking but convicted him of hostage taking. H. Stern, supra, at 350. Judge Stern, affronted throughout the trial by the American prosecutor’s stance that the Constitution was inapplicable to West Berlin and skeptical that parole (which he thought appropriate) would be granted, sentenced the hostage taker to time served (9 months) and released him from custody. Id. at 369–70.

59 Hague Convention, supra note 57, Arts. 7, 8.

60 Memorandum of Understanding on Hijacking of Aircraft and Vessels and Other Offenses, Feb. 15, 1973, United States-Cuba, 24 UST 737, TIAS No. 7579.

61 International Terrorism, Dep’t St. Bull., No. 2018, September 1978, at 5 [hereinafter Bonn Declaration].

62 Id. This language tracks Articles 7 and 9(2) of the Hague Convention, supra note 57. The Bonn Declaration in effect grafts an enforcement mechanism upon the norms embodied in the Hague Convention. However, imposition of sanctions under the Bonn Declaration is not premised on violation of the Hague Convention. Accordingly, sanctions might be taken against a state that had refused to sign the Hague Convention, not on the basis of the duty to prosecute or extradite (assuming, as is likely, that that is not a duty under customary international law), but on the basis that the support of international terrorism violates international law. See Levitt, International Counterterrorism Cooperation: The Summit Seven and Air Terrorism, 20 Vand. J. Transnat’l L. 37 (1987). See also Chamberlain, Collective Suspension of Air Services with States Which Harbour Hijackers, 32 Int’l & Comp. L.Q. 616, 628–32 (1983); Busuttil, The Bonn Declaration on International Terrorism: A Non-Binding International Agreement on Aircraft Hijacking, 31 Int’l&Comp. L.Q. 474(1982). Specifically, the Seven would (1) “take immediate action to cease all flights to that country,” and (2) “initiate action to halt all incoming flights from that country or” (3) “from any country by the airlines of the country concerned.” Bonn Declaration, supra note 61.

63 International Convention Against the Taking of Hostages, Dec. 17, 1979, GA Res. 34/146, 34 UN GAOR Supp. (No. 46) at 245, UN Doc. A/34/46 (1979). The negotiations for the Hostages Convention reveal the opposition that a straightforward rule, even one for a compartmentalized activity, faces. Attempts at a reformulation of the Convention ranged in sophistication. Several delegations suggested the Convention should only protect “innocent” hostages. See, e.g., UN Doc. A/32/39, at 38 (1977) (statement of Egypt); id. at 40 (statement of Guinea, using Ian Smith as an illustrative guilty hostage). The Tanzanian delegate proposed an exculpatory clause and provided an umpire: “For the purposes of the Convention, the term ‘taking of hostages’ shall not include any act or acts carried out in the process of national liberation against colonial rule, racist and foreign regimes, by liberation movements recognized by the United Nations or regional organizations.” UN Doc. A/AC.188/L.5 (1977). The Pakistani delegate wished to condition invocation of the Hostages Convention against national liberation movements on the target state’s acceptance of both the Geneva Conventions and the 1977 Protocols. UN Doc. A/C.6/34/SR.62, at 2 (1979).

64 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents, supra note 40. See also Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that Are of International Significance, Feb. 2, 1971, 27 UST 3949, TIAS No. 8413. The latter, an OAS version of the Internationally Protected Persons Convention, specifically condemns all physical attacks on diplomats, “regardless of motive” (Art. 2). This protection afforded diplomats can be analogized to the 1lth-century Peace of God doctrine, which declared certain classes, especially the clergy, exempt from all violence. F. Russell, supra note 50, at 34.

65 SC Res. 461, 34 UN SCOR (Res. & Dec.) at 24, UN Doc. S/INF/35 (1979).

66 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24).

67 The rights of children were recently codified in the Draft Convention on the Rights of the Child, UN Doc. E/CN.4/1986/39. In addition, these rights are treated in the Declaration of the Rights of the Child, GA Res. 1386, 14 UN GAOR Supp. (No. 16) at 19, UN Doc. A/4354 (1959); the Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Arts. 25, 26; the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), Arts. 6, 14, 23, 24; and the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200, id. at 49, Arts. 10, 12. See Bennett, A Critique of the Emerging Convention on the Rights of the Child, 20 Cornell Int’l L.J. 1 (1987).

68 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr. 12, 1972, 26 UST 583, TIAS No. 8062.

69 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, TIAS No. 8061, 94 LNTS 65.

70 Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

71 United Nations Convention on the Law of the Sea, supra note 19, Art. 83(1).

72 Continental Shelf (Libyan Arab Jamahiriya/Malta), 1985 ICJ Rep. 13, 30–31 (Judgment of June 3).

73 North Sea Continental Shelf (FRG/Den.; FRG/Neth.), 1969 ICJ Rep. 3, 54 (Judgment of Feb. 20).

74 See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), 1982 ICJ Rep. 18, 35 (Judgment of Feb. 24).

75 1985 ICJ Rep. at 44.

76 Schachter, supra note 1, at 309–11. Schachter uses the terms “competence and authority” to cover some of the same matters. In his formulation, “whether a designated requirement is to be regarded as obligatory will depend in part on whether those who have made that designation are regarded by those to whom the requirement is addressed (the target audience) as endowed with the requisite competence or authority for that role.” Id. at 309.

77 For a discussion of the origins of recognition policy and procedure, see 1 L. Oppenheim, International Law 124–52 (H. Lauterpacht 8th ed. 1955).

78 Schachter, supra note 1, at 310.

79 UN Charter art. 13(1)(a).

80 H. Wechsler, Offerings of Jade and Silk 21 (1985).

81 Kurtz, Strategies of Legitimation and the Aztec State, 23 Ethnology 301, 309 (1984).

82 H. Wechsler, supra note 80, at 10.

83 Kurtz, supra note 81, at 306.

84 The Pontifex’s task, originally, was to legitimate political authority by appeasing the river god Tiber over whose banks the civil authorities had built a useful, but undeniably intrusive, bridge.

85 When presenting bills for royal assent, the Speaker of the House of Commons pays homage to the Crown with the formula: “Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows&.” O. Phillips, A First Book of English Law 118–19 (7th ed. 1977). The Crown’s right to refuse assent to bills that have properly passed through both Houses of Parliament is “practically obsolete.” A. Dicey, Introduction to the Study of the Law of the Constitution 114 (9th ed. 1939). In fact, when the Unionists posited in 1913 that the reference to assent restored a real right of veto, the theory was criticized as “obviously absurd” and was said to have troubled the king. E. Ridges, Constitutional Law 106 (8th ed. 1950).

86 When a bill is presented to the Crown for assent, it bears an endorsement signed by the Speaker of the House certifying that the provisions of the Parliament Act have been complied with. Parliament Act, 1911, 1 & 2 Geo. 5, ch. 13, §2(2), reprinted in Select Statutes, Cases and Documents 350, 352 (C. Robertson ed. 1935).

87 For a full discussion of this ritual as it applies to the enactment of both public and private bills by the House of Commons and the House of Lords, see S. A. de Smith, Constitutional and Administrative Law 265–71 (3d ed. 1977).

88 The calling of banns is the public and official announcement of persons who intend to marry and is meant to discover whether the parties are free to marry and whether any impediment to their lawful and valid marriage may exist. The tradition that no marriage was to be celebrated until after a triple publication of the church’s banns originated in the 8th century and was extended over all Christendom by Pope Innocent III in 1215. Encyclopedic Dictionary of Religion 357 (1979).

89 Kurtz, supra note 81, at 306.

90 Id. at 308.

91 H. Wechsler, supra note 80, at 12–15.

92 See supra note 10 (for Weber’s perception that legitimacy in part stems from the authority issuing an order, rather than from the order itself).

93 H. Wechsler, supra note 80, at 25.

94 See supra text accompanying note 81.

95 See supra text accompanying notes 86–87.

96 Kurtz, supra note 81, at 308.

97 See GA Res. 2029, 20 UN GAOR Supp. (No. 14) at 20, UN Doc. A/6014 (1965).

98 Articles of Agreement of the International Bank for Reconstruction and Development, opened for signature Dec. 27, 1945, 60 Stat. 1440, TIAS No. 1502, 2 UNTS 134.

99 World Health Organization Const., July 22, 1946, 62 Stat. 2679, TIAS No. 1808, 14 UNTS 186.

100 UN Food and Agriculture Organization Const., Oct. 16, 1945, 12 UST 980, TIAS No. 4803.

101 The United Nations International Children’s Emergency Fund was founded by GA Res. 57, 1 UN GAOR (Res. pt.2) at 90, UN Doc. A/64/Add.1 (1946).

102 Kurtz, supra note 81, at 310.

103 Although many consider the pyramids to be solely the product of slave labor, evidence has been advanced indicating that the labor was in fact compensated. Thus, it is ‘probably nearer the truth [to] regard these monuments as vast public works providing economic security for a good part of the population.” H. Janson, The History of Art 40 (rev. ed. 1969). Erected as part of vast funerary districts, the pyramids were the scene of great religious festivities, both during and after the Pharaoh’s lifetime. Id. at 38. At least as far as Old Kingdom pyramids are concerned, Pharaohs equipped their tombs as a “kind of shadowy replica of [their] daily environment for [their] spirit[s] …. [T]he Egyptian tomb was a kind of life insurance, an investment in peace of mind.” Id. at 35.

104 See J. Dinneen, The Purple Shamrock (1949) (which details the life of James Michael Curley, four-time mayor of Boston). See also E. O’Connor, The Last Hurrah (1956) (which, although, fictional, is said to be based on Curley’s life and career).

105 In formulating the project for the Albany Mall, Governor Nelson Rockefeller suggested modeling New York’s capitol on the palace of the Dalai Lama at Lhasa, Tibet. The revised version of the mall’s plan incorporated architectural and symbolic elements from Lhasa, Washington, D.C., Brasília, Versailles, Rockefeller Center and St. Petersburg, and was meant to be “the most spectacularly beautiful seat of government anywhere in the world.” Krinsky, St. Petersburg-on-the-Hudson: The Albany Mall (citing Fortune, June 1971, at 92), in M. Barasch & L. Sandler, Art the Ape of Nature 771, 778 (1981).

106 The General Assembly adopted and authorized the use of the United Nations flag on Oct. 20, 1947. See GA Res. 167, 2 UN GAOR (96th plen. mtg.) at 338–39, UN Doc. A/414 (1947).

107 For the Secretary-General’s operation to remove ships sunk in the Suez Canal during the 1956 war, see 1956 UN Y.B. 53–55; and GA Res. 1121, 11 UN GAOR Supp. (No. 17) at 61, UN Doc. A/3386 (1956). The Secretary-General also authorized, with the “support” of the Security Council, the flying of the UN flag on ships that would evacuate armed elements of the PLO from Tripoli. See UN Docs. S/16194, S/16195, 38 UN SCOR (Res. & Dec.) at 5–6, UN Doc. S/INF/39 (1983).

108 The United Nations Postal Administration was established on Jan. 1, 1951. See GA Res. 454, 5 UN GAOR Supp. (No. 20) at 57–58, UN Doc. A/1775 (1950).

109 The estimated 1986–1987 net revenue from the sale of postage sumps was $8,667,700. See Advisory Committee on Administrative and Budgetary Questions, First Report on Proposed Programme Budget for the Biennium 1986–1987, 40 UN GAOR Supp. (No. 7) at 209, UN Doc. A/40/7 (1985).

110 The origin of the United Nations Military Observer Group in India and Pakistan (UNMOGIP) is found in a resolution of the UN Commission for India and Pakistan. See 3 UN SCOR Supp. (Nov. 1948) at 32, UN Doc. S/1100, para. 75 (1948). The Security Council subsequently authorized its operation. See SC Res. 91, para. 7, 6 UN SCOR (Res. & Dec.) at 1, 3, UN Doc. S/INF/6/Rev.1 (1951).

111 The Security Council established the UN Disengagement Observer Force (UNDOF) for the Golan Heights on May 31, 1974. See SC Res. 350, 29 UN SCOR (Res. & Dec.) at 4, UN Doc. S/INF/30( 1974).

112 The United Nations Force in Cyprus (UNFICYP) was formed by the Security Council on Mar. 4, 1964. See SC Res. 186, 19UN SCOR (Res. & Dec.) at 2–4, UN Doc.S/INF/19/Rev.1 (1964).

113 The United Nations Interim Force in Lebanon (UNIFIL) was created by the Security Council on Mar. 19, 1978. See SC Res. 425, 33 UN SCOR (Res. & Dec.) at 5, UN Doc. S/INF/34(1978).

113a See Report of the Secretary-General, UN Doc. S/20093 (Aug. 7, 1988); SC Res. 619 (Aug. 9, 1988) (creating the force); GA Res. 42/233 (Aug. 17, 1988) (funding the force).

114 For a discussion of the noncoercive role of UN peacekeeping forces, see B. Urquhart, A Life in Peace and War 287–88, 342–43 (1987).

115 See Convention on the Privileges and Immunities of the United Nations, adopted by the General Assembly Feb. 13, 1946, 21 UST 1418, TIAS No. 6900, 1 UNTS 1 (entered into force for the United States Apr. 29, 1970). See also Agreement Regarding the Headquarters of the United Nations, June 26, 1947, United States-United Nations, 61 Stat. 3416, TIAS No. 1676, 11 UNTS 11 (entered into force Nov. 21,1947). See further Convention on the Privileges and Immunities of the Specialized Agencies, approved by the General Assembly Nov. 21, 1947, 33 UNTS 261.

116 To rectify the inequalities it perceived in its original system of compensation, the United Nations subjected UN salaries to a tax assessed at a rate comparable to the employee’s national income tax liability. GA Res. 239 (III), UN Doc. A/703, at 3 (1948), as amended by GA Res. 359 (IV), UN Doc. A/1949, at 1 (1949).

117 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 347 (1819).

118 See M. McCaffree & P. Innis, Protocol, The Complete Book of Diplomatic, Official and Social Usage 87–104 (1985).

119 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53 (Judgment of Apr. 5).

120 For a discussion of the Iranian hostages incident, see Gross, The Case of United States Diplomatic and Consular Staff in Tehran: Phase of Provisional Measures, 74 AJIL 395(1980). For an analysis of the Libyan violations, see Higgins, supra note 30.

121 SC Res. 457, 34 UN SCOR (Res. & Dec.) at 24, UN Doc. S/INF/35 (1979) (adopted unanimously).

122 See United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Provisional Measures, 1979 ICJ Rep. 7 (Order of Dec. 15); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 ICJ Rep. 3 (Judgment of May 24); United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1981 ICJ Rep. 45 (Order of May 12).

123 See, e.g., France Breaks Iran Ties and Isolates Embassy, N.Y. Times, July 18, 1987,at 1.col. 3, which followed the grant of sanctuary by the Iranian Embassy in Paris to a nondiplomat wanted for questioning in connection with terrorist activities.

124 The British limited their reaction to the shooting of a policewoman from the premises of the Libyan People’s Bureau to expulsion of the perpetrators and closing of the Bureau. See Higgins, UK Foreign Affairs Committee Report on the Abuse of Diplomatic Immunities and Privileges: Government Response and Report, 80 AJIL 135 (1986).

125 In the Steamship Pesaro case, the U.S. Supreme Court refused to recognize the difference between ships held and used by a government for a public purpose and ships used by a government in trade. The latter “are public ships in the same sense that war ships are. We know of no international usage which regards the maintenance and advancement of the economic welfare of a people in time of peace as any less a public purpose than the maintenance and training of a naval force.” Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 574 (1926). The Court expounded upon this doctrine in The Navemar, holding that, “[a]dmittedly a vessel of a friendly government in its possession and service is a public vessel, even though engaged in the carriage of merchandise for hire ….” Compania Espanola de Navigacion Maritima, S.A. v. Navemar, 303 U.S. 68, 74–76 (1938). For similar holdings in British cases, see Thejassy, 1906 P. 270; and The Gagara, 1919 P. 95.

126 The United States officially promulgated this policy in 1952, when the Department of State, by means of the “Tate letter,” declared its adherence to the “restrictive theory” of sovereign immunity. Under this theory, immunity would be recognized with regard to sovereign or public acts (jure imperii) but not with respect to private acts (jure gestionis). Letter from Jack B. Tate, Acting Legal Adviser, Department of State, to Philip B. Perlman, Acting Attorney General, May 19,1952, reprinted in 26 Dept. St. Bull. 984 (1952). For current European treatment of immunity, see the European Convention on State Immunity and Additional Protocol, 1972 ETS 74, reprinted in 11 ILM 470 (1972).

127 Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§1330, 1602–1611 (1982). See also Higgins, Recent Developments in the Law of Sovereign Immunity in the United Kingdom, 71 AJIL 423 (1977). For judicial discussion of current U.S. practice and its history, see Broadbent v. Organization of Am. States, 628 F.2d 27 (D.D.C. 1980). U.S. application of the “commercial” activity concept under the doctrine of restrictive immunity is discussed in id. at 33–35; and the immunity accorded international organizations under the rubrics of restrictive and absolute immunity is treated in id. at 30–33.

128 H. Wechsler, supra note 80, at 35.

129 For U.S. practices, see L. Galloway, Recognizing Foreign Governments: The Practice of the United States (1978). An excellent treatment of recognition in general can be found in H. Lauterpacht, Recognition in International Law (1947).

130 J. Dugard, Recognition and the United Nations (1987).

131 See infra note 140 for illustrations of the converse, attempts to deny or rescind recognition by opposing delegates’ credentials.

132 For example, a pledged word commits powerful as well as weak governments. There is widespread recognition by states, antedating the UN Charter, that a commitment equally obligates powerful, as weaker nations. See Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ (ser. A/B) No. 53, at 22 (Judgment of Apr. 5).

133 Greene shows that even though a priest may fall into a secularized life style, he retains his spiritual powers. A “whisky priest” is “a damned man putting God into the mouths of men,” owing to his authority to perform communion. See G. Greene, The Power and the Glory 83 (1940).

134 Admission of a State to the United Nations (Charter, Art. 4), 1948ICJ Rep. 57 (Advisory Opinion of May 28).

135 Id. at 62, 63.

136 See 1 L. Oppenheim, supra note 77, at 124–52.

137 Letter to Trygve Lie, Mar. 8, 1950, Legal Aspects of the Problems of Representation in the United Nations, 5 UN SCOR Supp. (Jan.-May 1950) at 18, 22–23, UN Doc. S/1466 (1950).

138 The General Assembly condemned the establishment by South Africa of Bantu homelands (Bantustans) as an attempt artificially to divide the African people into “nations” according to their tribal origins, with the aim of weakening the African front in its struggle for its inalienable and just rights. GA Res. 2775E, 26 UN GAOR Supp. (No. 29) at 42, UN Doc. A/8429 (1971). The resolution passed by the resounding vote of 110 in favor, 2 opposed, with 2 abstentions. See also Report of the Secretary-General, UN Doc. A/8388 (1971) (transmitting consensus adopted on Sept. 13, 1971, by joint meeting of the Special Committee on Apartheid, the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the United Nations Council for Namibia); Dugard, South Africa's “Independent” Homelands: An Exercise in Denationalization, 10 Den. J. Int’l L. & Pol’y 11 (1980) (for the development of the Bantustan policy).

139 State Department Memorandum, U.S. Policy on Nonrecognition of Communist China, 39 Dep’t St. Bull. 385 (1958).

140 GA Res. 3207, 29 UN GAOR Supp. (No. 31) at 2, UN Doc. A/9631 (1974) (resolution on South Africa). When, in 1982, the Arab bloc decided to challenge the credentials of the Israeli delegation, the United States announced it would boycott any UN body that excluded the Israelis and would also withhold its contribution amounting to 25% of the UN budget. T. Franck, Nation Against Nation 217 (1985). Most recently, Oman, acting on behalf of 20 Arab states, proposed an amendment to exclude the credentials of Israel from General Assembly approval. The General Assembly voted not to act on this amendment. Credentials Committee Reports Adopted, UN Chron., No. 1, February 1987, at 16. See also Halberstam, Excluding Israel from the General Assembly by a Rejection of its Credentials, 78 AJIL 179 (1984).

141 Credentials of Representatives to the Forty-first Session of the General Assembly: First Report of the Credentials Committee, UN Doc. A/41/727, para. 12 (prov. ed. 1986).

The representative of the United States of America stated that the credentials of the representatives of Democratic Kampuchea were in order, fulfilled the requirements of rule 27 of the rules of procedure, had already been accepted by the General Assembly in the past and should be accepted at the current session. The suggested alternative was a regime brought to power by a foreign military invasion and that was clearly not representative in any way, shape or form of the Kampuchean people.

Id.

142 The Secretary-General conducted a series of talks with Chou En-lai “in the name of the United .Nations” (see GA Res. 906, 9 UN GAOR Supp. (No. 21) at 56, UN Doc. A/2890 (1954)) in order to discuss the release of four U.S. fighter pilots shot down near the Yalu River between October 1952 and January 1953, while they were flying missions for the UN Command during the Korean War. See 2 Public Papers of the Secretaries-General of the United Nations: Dag Hammarskjöld (1953–1956), at 415–59 (1972), for details of the Secretary-General's mission. See also T. Franck, supra note 140, at 136–37.

143 In 1964 U Thant secretly informed President Johnson that he could arrange a meeting between the United States and North Vietnam. Believing he had secured the President’s blessing, he proceeded to use his good offices to arrange a meeting in Rangoon. But when the United States failed to respond once the meeting had been agreed to by the North Vietnamese, Thant felt humiliated by the U.S. Government and leaked his story to the world. T. Franck, supra note 140, at 154–58.

144 The People’s Republic of China was admitted to the United Nations on Oct. 25, 1971, and Vietnam acquired membership only in 1977.

145 For an account of how the Security Council directed Secretary-General Waldheim “ ‘to initiate as soon as possible contacts with all parties concerned’ ” so that the people of Namibia might exercise their right to self-determination and independence, see D. Soggot, Namibia: The Violent Heritage 53–54 (1986).

146 Despite the fact that the Soviet Constitution guarantees individual republics the right to secede from the Soviet Union, it was widely known that the Ukraine, like each of its sister republics, was considerably less independent than any American state and thus was otherwise ineligible for UN membership. Nonetheless, the West ultimately acceded to the Soviet request to admit two republics as UN members because it was viewed as a reasonable price to pay for Soviet participation in the United Nations. T. Franck, supra note 140, at 21. For a detailed history of the negotiations leading to the West’s disposition of Stalin’s initial request for membership for all 16 Soviet republics, see R. Russell, A History of the United Nations Charter 435, 533, 536–37, 539 n.49, 584, 597–98, 636 (1958).

147 R. Dworkin, supra note 7.

148 W. at 190–92.

149 Id.. at l79.

150 International Bank for Reconstruction and Development, World Debt Tables, External Debt of Developing Countries, 1985–86, at xi (1986).

151 R. Dworkin, supra note 7, at 179.

152 Id. at 182.

153 R. S. Baker, Woodrow Wilson and World Settlement 109 (1922).

154 Id. at l87.

155 Id.

156 Franck & Hawkins, Rawls’ Theory of Justice in International Context, 10 Mich. J. Int’l L. (1988).

157 S. Wambaugh, Plebiscites Since the World War 14 (1933).

158 2 A History of the Peace Conference of Paris 205 (H. W. V. Temperley ed. 1920).

159 4 id. at 261 (1921).

160 The Intimate Papers of Colonel House 334 (C. Seymour ed. 1928).

161 Id. at 345.

162 2 Temperley (ed.), supra note 158, at 182.

163 R. S. Baker, supra note 153, at 110–11.

164 Id.

165 D. Fleming, The United States and World Organization 153 (1938).

166 L. Buchheit, Secession 71 (1978).

167 Id.

168 Linking the issue of Ireland to self-determination, Balfour wrote: “No one can think that Ulster ought to join the South and West who thinks that the Jugo Slavs should be separated from Austria. No one can think that Ulster should be divorced from Britain who believes in self-determination.” Balfour, The Irish Question, Nov. 25, 1919, PRO CAB 24/93, quoted in T. G. Fraser, Partition in Ireland, India and Palestine 27 (1984). For Lloyd George’s comments, see T. G. Fraser, id. at 38.

169 UN Charter art. 73.

170 Id. art. 76(b).

171 Id. art. 1, para. 2.

172 UN membership rose from 82 members at the beginning of 1960, 1959 UN Y.B. 539, to 154 by the end of 1980, 1980 UN Y.B. 1347.

173 Saudi Arabia, Syria, Yemen, Yugoslavia, Afghanistan, Burma, Ceylon, Egypt, India, Indonesia, Iraq, Jordan, Libya and Nepal abstained from voting on a resolution condemning the 1956 Soviet invasion of Hungary. GA Res. 1004, ES-2 UN GAOR (564th plen. mtg.) at 7, 20, UN Doc. A/PV.564 (1956). Algeria, India and Pakistan abstained from voting on a Security Council resolution condemning the 1968 Soviet invasion of Czechoslovakia. 23 UN SCOR (1443d mtg.) at 28–29, UN Doc. S/PV.1443 (1968).

174 India Independence Act, 1947, 10 & 11 Geo. 6, ch. 30.

175 Biafra declared its independence on May 30, 1967, but only five nations recognized its claim to independence. Neither the United Nations nor the OAU supported Biafran independence and the United Nations never even considered the issue. Nanda, Self-Determination in International Law, 66 AJIL 321, 326–27 (1972). See also 66 ASIL Proc. 58, 175 (1972).

176 GA Res. 1514, 15 UN GAOR Supp. (No. 16) at 66, UN Doc. A/4684 (1960).

177 Id., Preamble.

178 Id., Art. 5.

179 Id., Art. 3.

180 Id., Art. 5.

181 See, e.g., comments by President Lincoln:

My paramount object in this struggle is to save the Union …. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.

Letter from Abraham Lincoln to Horace Greeley, Aug. 22, 1862, reprinted in 5 The Collected Works of Abraham Lincoln 388 (R. Basler ed. 1953).

182 An independent and united Nigeria was perceived to be a “model for Africa,” a “key” to that continent's future stability and prosperity, because of its material wealth and rich culture. The “progressive Balkanization” of Nigeria, with its concomitant vast waste of human and social resources, was viewed with great anxiety as a tragedy for all Africa. 283 Parl. Deb. (5th ser.) 1367–76 (1967).

183 The United Nations completely rejected the claim that Katanga was a sovereign independent nation. See, e.g., SC Res. S/5002, 16 UN SCOR (Res. & Dec.) at 3, UN Doc. S/INF/16/Rev.1 (1961). The United Nations found itself at odds with Katanga. On Apr. 3, 1961, Katanga adopted a Decree on the State of Enmity with the United Nations, reproduced in J. Gerard-Libois, Katanga Secession 335–37 (R. Young trans. 1966), which, inter alia, forbade Katangans to enter into relations of any nature whatsoever with the United Nations or its agents. See also C. C. O’Brien, To Katanga and Back (1962), in which the author, a former representative of the United Nations in Katanga and former member of the Secretary-General’s executive staff, offers a case history of UN experiences with Katanga.

184 E. Behr, The Algerian Problem 38 (1961).

185 R. Dworkin, supra note 7, at 194.

186 Id. at 200.

187 Id.

188 Id. at 201.

189 For a noteworthy attempt to establish a theoretical basis for such a quest in another area of law, see Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959).

190 U.S. Mission to the United Nations, List of Vetoes Cast in Public Meetings of the Security Council (Apr. 14,1988). Only once did the People’s Republic of China stand alone in its veto in the Security Council. Id. at 9. France has vetoed alone only twice since 1946. Id. at 10-11. All United Kingdom vetoes during the last 15 years have been cast with the United States. Id. at 12-13.

191 General Agreement on Tariffs and Trade [hereinafter GATT], Oct. 30, 1947, 61 Stat. (5), (6), TIAS No. 1700, 55–61 UNTS.

192 Id., Art. 1(1).

193 GATT Contracting Parties, Decision of Nov. 28, 1979, Differential and More Favorable Treatment Reciprocity and Fuller Participation of Developing Countries, GATT, Basic Instruments and Selected Documents, 26th Supp. 203 (1980). See also J. Jackson & W. Davey, Legal Problems of International Economic Relations 1149 (2d ed. 1986).

194 Decision of Nov. 28, 1979, supra note 193, paras. 1 and 6.

195 H. L. A. Hart, supra note 3, at 209.

196 Id.

197 See Declaration of the Government of the Democratic and Popular Republic of Algeria Concerning the Settlement of Claims by the Government of the United States of America and the Government of the Islamic Republic of Iran, Dep’t St. Bull., NO. 2047, February 1981, at 3, reprinted in 75 AJIL 422 (1981), 20 ILM 230 (1981).

198 The World Bank approved the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Mar. 18, 1965, 17 UST 1270, TIAS No. 6090, 575 UNTS 159, which established the International Centre for Settlement of Investment Disputes. See Broches, The Convention on the Settlement of Investment Disputes: Some Observations on Jurisdiction, 5 Colum. J. Transnat’l L. 263 (1966). For U.S. implementing legislation, see Convention on the Settlement of Investment Disputes Act of 1966, Pub. L. No. 89-532, §2, 80 Stat. 344 (codified at 22 U.S.C. §§1650, 1650a (1982)). Under certain circumstances, parties to a dispute may arbitrate in the International Chamber of Commerce Court of Arbitration.

199 In perhaps the most eloquent statement of Parliament's unlimited legislative authority, Sir Edward Coke has declared that its “power and jurisdiction … is so transcendent and absolute, that it … hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws.” E. Coke, Fourth Institute 36, quoted in A. Dicey, Introduction to the Study of the Constitution 41 (9th ed. 1939).

200 While the term “contract” is susceptible of many definitions, whatever else a contract may entail, it is agreed that it is “a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.” 1 Willis-ton on Contracts §1 (3d ed. 1957); Restatement (Second) of Contracts §1 (1981). See also 1 A. Corbin, Contracts §3 (1963) (which defines a contract to include “a promise enforceable at law directly or indirectly”). In some jurisdictions, courts will routinely mandate specific performance of the promise. See, e.g., Dawson, Specific Performance in France and Germany, 57 Mich. L. Rev. 495 (1959). The Anglo-American legal system, however, prefers to impose damages at least equal to the value of the breached promise. See, e.g., J. Calamari & J. Perillo, The Law of Contracts 580–604 (1977).

201 GA Res. 42/229B (Mar. 2, 1988).

202 The Observer Mission status was created by GA Res. 3237, 29 UN GAOR Supp. (No. 31) at 4, UN Doc. A/9631 (1974). The closure of the mission is required by the Anti-Terrorism Act of 1987, title X of the Foreign Relations Authorization Act, 1988 and 1989, Pub. L. No 100-204, tit. X, §1001, 101 Stat. 1331, 1406 (codified at 22 U.S.C.A. §§5201-5203 (West Supp. 1988)).

203 See Agreement Regarding the Headquarters of the United Nations, June 26, 1947, supra note 115.

204 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, 1988 ICJ Rep. 12, 34, para. 57 (Advisory Opinion of Apr. 26).

205 Greco-Bulgarian “Communities,” 1930 PCIJ (ser. B) No. 17, at 32 (Advisory Opinion of July 31).

206 1988 ICJ Rep. at 42 (Schwebel, J., sep. op.).

207 H. L. A. Hart, supra note 3, at 219.

208 Id.

209 Vienna Convention on the Law of Treaties, supra note 33, Art. 26.

210 Id., Art. 53.

211 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (Judgment of June 27).

212 It is a well-established principle that a new state to the international community is automatically bound by the rules of international conduct existing at the time of admittance. See I L. Oppenheim, supra note 77, at 17–18. Even Tunkin concedes that if it enters “without reservations into official relations with other states,” a new state is bound by “principles and norms of existing international law.” See Tunkin, Remarks on the Juridical Nature of Customary Norms of International Law, 49 Cal. L. Rev. 419, 428 (1961).

213 There has been wide debate over the rights and obligations a successor state can inherit from its parent. The 19th-century doctrine of universal succession maintains that all the rights and duties of the parent pass to the successor. See O. Udokang, Succession of New States to International Treaties 122–24 (1972). At the other extreme is negativist theory, which holds that a successor inherits no rights and obligations, but begins with a tabula rasa. See D. O’Connell, State Succession in Municipal Law and International Law 14–17 (1967). The truth lies somewhere in between, with certain rights and duties of the parent devolving upon the successor. See 1 L. Oppenheim, supra note 77, at 120. Hart further points to evidence that changes in a state's circumstance may automatically accord it new rights and duties, for example, when it acquires new territory giving it a coastline. H. L. A. Hart, supra note 3, at 221.

214 Tinoco Case (Gr. Brit. v. Costa Rica), 1 R. Int’l Arb. Awards 369 (1923), reprinted in 18 AJIL 147 (1924).

215 The Antelope, 23 U.S. (10 Wheat.) 66, 122 (1825).

216 R. Dworkin, supra note 7, at 196.

217 Id. at 197.

218 Id. at 211.

219 Id. at 213.

220 Id. at 214.

221 Id.