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The New International Law of Alejandro Alvarez

Published online by Cambridge University Press:  28 March 2017

William Samore
William Samore*
Affiliation:
Cleveland-Marshall Law School
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Extract

The critics of public international law are legion. Some have decried its primitiveness. Others have denied even its existence. A few have expounded the need for a renovation, an entirely new approach, a new international law.

Type
Research Article
Information
American Journal of International Law , Volume 52 , Issue 1 , January 1958 , pp. 41 - 54
Copyright
Copyright © American Society of International Law 1958

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References

1 Judge Alvarez was born Feb. 9, 1868. Besides being a professor of law, he has participated in many diplomatic activities and authored more than a hundred publications. See I. C. J. Yearbook 1946-1947, pp. 43-44. Judge Alvarez collaborated with Dr. James Brown Scott in founding the American Institute of International Law in 1912 and was its first Secretary General. He was elected a member of the International Court of Justice on Feb. 6, 1946. His term ended Feb. 5, 1955. During that time he participated in twelve judgments and eight advisory opinions, dissenting in three judgments and four advisory opinions, and writing concurring opinions in three judgments and two advisory opinions.

2 [1949] I. C. J. Rep. 41; [1950] ibid. 176; [1951] ibid. 50-51, 148; [1952] ibid. 124; Alvarez, “New Conception and New Bases of Legal Philosophy,” 13 111. Law Rev. 167, 179, 181 (1918-1919).

3 Ibid, at 175; Alvarez, ‘'The New International Law,'’ 15 Grotius Society Transactions 35 (1930).

4 Alvarez, loc. cit. supra (note 2) at 177.

5 Alvarez, ‘'The Necessity for the Reconstruction of International Law—Its Aim,'’ Proceedings of the 4th Conference of Teachers of International Law and Belated Subjects 11 (1930).

6 Ibid.

7 [1948] I. C. J . Rep. 67; [1949] ibid. 39; [1950] ibid. 12.

8 [1949] I. C. J. Rep. 39; [1950] ibid. 12, 13, 175; [1948] ibid 67-69; [1952] ibid. 124; [1954] ibid. 69; Alvarez, loc. cit. supra (note 2) at 181; loc. cit. supra (note 5) at 11. Some writers describe a community as more advanced than a society. Keeton and Schwarzenberger, Making International Law Work 14, 45-46 (2d ed., 1946).

9 [1951] I. C. J . Rep. 150; [1952] ibid. 124.

10 [1948] I. C. J . Rep. 69-70; [1950] ibid. 14, 176; [1951] ibid. 149.

11 [1948] I. C. J. Rep. 69-70; [1949] ibid. 41; [1950] ibid. 178; [1951] ibid. 149; [1954] ibid. 69-70.

12 [1949] I. C. J. Rep. 39.

13 Alvarez, “ The Necessity for the Reconstruction of International Law—Its Aim,” Proceedings of the 4th Conference of Teachers of International Law and Related Subjects 11, 14 (1930).

14 Ibid.

15 [1949] I. C. J . Rep. 43; [1950] ibid. 13-14

16 [1949] I. C. J. Rep. 43; [1950] ibid. 13-14, 181; [1954] ibid. 69.

17 [1948] I . C. J . Rep. 68-70.

18 [1950] I. C. J. Rep. 181; [1954] ibid. 70.

19 Ibid. 71. Cf. Jacobini, A Study of the Philosophy of International Law as Seen in Works of Latin American Writers 109 (1954).

20 [1951] I. C. J. Rep. 148. See also [1948] ibid. 69; [1949] ibid 39; [1950] ibid. 12, 176

21 Id. 13.

22 [1951] I. C. J . Rep. 51-52.

23 [1954] I. C. J . Rep. 71-72.

24 [1950] I. C. J . Rep. 4; the dissent begins at 12.

25 Art. 4, Par. 2, of the United Nations Charter provides: ‘ ‘ The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

26 The pertinent language from Articles 10 and 11:

27 [1954] I. C. J . Rep. 47; Judge Alvarez’ dissent begins at 67.

28 In arguing that the General Assembly is not bound, but the staff member is, Judge Alvarez appears to be swinging to the opposite extreme. Before, it was the individual first, society unimportant. Is it now society first, the individual unimportant?

29 [1948] I. C. J . Rep. 69.

30 [1951] ibid. 146; [1952] ibid. 133; [1953] ibid 73.

31 [1950] I. C. J. Rep. 177. See also [1949] ibid 40; [1950] ibid. 12, 13, 176; [1953] ibid. 73.

32 [1952] ibid. 133. See also [1949] ibid. 190; [1950] ibid. 17; [1951] ibid. 50, 146.

33 [1948] I. C. J . Rep. 67; [1949] ibid. 40.

34 [1948] ibid. 70; [1952] ibid. 134.

35 [1948] I. C. J. Rep. 57; Judge Alvarez’ concurring opinion begins at 67. Art. 4, Par. 1, reads: “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.”

36 [1948] I. C. J. Rep. 67, 71, 72.

37 [1949] ibid. 44-45. In this case, the majority held, Judge Alvarez concurring, that because Albania had knowledge that mines had been laid by a third state, it had a duty to notify British warships innocently passing through the Corfu Channel. This duty is based on “elementary considerations of humanity,” and the duty not to ‘’ allow knowingly its territory to be used for acts contrary to the rights of other states.'’ Ibid. 22.

38 [1951] I. C. J. Rep. 116; Judge Alvarez’ concurring opinion begins at 145. The majority held that Norway's straight-line method of drawing baselines for delimiting its territorial sea was not contrary to international law. Athough delimitation is a unilateral act, it is subject to some principles: the baselines must not depart greatly from the general direction of the coast; whether the areas within the baselines are so closely connected with the mainland as to be called internal waters; and the delimitation must be based on the economic interests peculiar to the region.

39 [1952] I. C. J. Rep. 130. Art. 36, Par. 2, of the Statute of the International Court of Justice provides: “The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation… . “

40 [1952] I. C. J. Rep. 130-131.

41 Ibid132-133.

42 [1954] ibid. 99, 103.

43 [1949] I. C. J. Rep. 47-48; [1948] ibid. 69-70; [1950] ibid. 14-15; [1951] ibid. 152, 156; [1954] ibid. 70

44 [1949] I. C. J . Rep. 47-48.

45 [1948] ibid. 71.

46 Ibid. 57.

47 [1950] ibid. 20.

48 [1951] ibid. 145.

49 Ibid. 116, 141-142.

50 [1950] I. C. J. Rep. 128.

51 Ibid. 174.

52 ibid.

53 Ibid. 266.

54 In the Haya de la Torre Case, ibid. 71, the Court held that although Colombia must terminate the asylum, it was not required to surrender Haya to Peruvian authorities. To require his surrender is repugnant to the spirit of the Havana Convention animated by the Latin American tradition that political refugees should not be surrendered. How the asylum is terminated is for the states concerned to decide, inspired by political expediency and convenience.

55 [1950] I. C. J . Rep. 290.

56 lbid. 17; [1951] ibid. 51.

57 [1951] ibid. 51.

58 Ibid. 52-53.

59 [1948] I. C. J. Rep. 67-68; [1950] ibid. 12, 15, 17-19; [1951] ibid. 53; [1952] ibid. 126, 127.

60 [1950] I. C. J. Rep. 18.

61 [1951] ibid. 15.

62 Ibid. 49.

63 [1949] ibid. 174.

64 Ibid. 190.

65 [1952] ibid. 133.

66 [1948] I. C. J . Rep. 69; [1949] ibid. 39; [1952] ibid. 125; [1954] ibid. 70.

67 [1949] ibid. 178.

68 Politis, The New Aspects of International Law v, 2(1928); The Future of International Law (Debates), The Grotius Society, 291, 309 (1941); Keeton, Elementary Principles of Jurisprudence 261 (2d ed., 1949); H. A. Smith, The Crisis in the Law of Nations 2-3, 16 (1947); Brierly, The Law of Nations 42-43 (4th ed., 1949).

69 [1952] I. C. J. Rep. 126.

70 [1948] I. C. J. Rep. 71.

71 Smith, op. cit. supra at 17; Brierly, op. oil. supra at 42-43. See also Corbett, Law and Society in the Relations of States 10, 40, 48, 51-52, 68-77, 261 (1951).

72 Keeton and Schwarzenberger, Making International Law Work 113-115 (2d ed., 1946).