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“Peaceful Co-Existence” and Soviet-Western International Law

Published online by Cambridge University Press:  28 March 2017

Edward McWhinney
Edward McWhinney*
Affiliation:
Of the Faculty of Law, University of Toronto
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Extract

In his address to the 22nd Congress of the Communist Party on October 17, 1961, Premier Khrushchev assured his listeners that the principles of peaceful co-existence, whose source he attributed to Lenin, had “always been the central feature of Soviet foreign policy”.

Type
Research Article
Information
American Journal of International Law , Volume 56 , Issue 4 , October 1962 , pp. 951 - 970
Copyright
Copyright © American Society of International Law 1962

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References

1 Khrushchev, , An Account to the Party and the People. Report of the C.C.C.P.S.U. to the 22nd Congress of the Party, Oct. 17, 1961, pp. 34–35 Google Scholar, 45.

2 Ibid. at 48.

3 International Law Association, Report of the Forty-Ninth Conference, 1960, at 362–363 (1961).

4 See Future Work in the Field of Codification and Progressive Development of International Law, Report of the Sixth Committee, U.N. Doc. A/5036, Dec. 15, 1961.

5 Khrushchev, op. cit. note 1 above, p. 34.

6 Krylov, , “ Les notions principales du droit des gens (La doctrine soviétique du droit international),” 70 Hague Academy Recueil des Cours (hereafter cited as “Hague Recueil”) 407 (1947)Google Scholar.

7 Ibid,, at 423 et seq., 426–427.

8 Ibid, at 423–425.

9 Ibid, at 425–426.

10 Tunkin, , “Co-existence and International Law,” 95 Hague Recueil 1, 59 (1958)Google Scholar.

11 Ibid, at 59–60.

12 International Law Association, Report of the Forty-Eighth Conference, 1958 at 417 et seq. (1959).

13 Ibid. at 427.

14 Ibid. Note the wry criticisms by one American delegate to the 1958 I.L.A. reunion, Mr. Moses, as to the exclusively Yugoslav sources relied upon by the Conference Rapporteur on the subject, Professor Radojković, himself a Yugoslav, “as if the idea of a world, changed and crying for collaboration, was developed and recognised only in Yugoslavia.” Ibid, at 433. And compare the comments by Professor Radojković on the semantic problem, in “La coexistence,” 7 Jugoslovenska Revija za Medunarodno Pravo 205 (1960); and, generally, see also Bartoš, “Quelques Observations sur la Coexistence Pacifique Active,” ibid, at 216.

15 Note 4 above. See also 1962 Proceedings, American Society of International Law at 96, 102, 111.

16 Kozhevnikov (ed.), International Law. A Textbook for Use in Law Schools 16.

17 95 Hague Recueil 1, 68 (1958) ; and see also Tunkin, “Forty Years of Coexistence and International Law,” 1958 Sovetskii Ezhegodnik Mezhdunarodnogo Prava (hereafter cited as “Sovetskii Ezhegodnik”) 15.

18 See, for example, most recently, Durdenevsky, “ Neutrality and Atomic Weapons (In the Light of the Principle of Peaceful Co-existence),” 1960 ibid. 105; Korovin, “The United Nations Charter and Peaceful Coexistence,” ibid. 15.

19 Kozhevnikov (ed.), op. cit. note 16 above, p. 17.

20 Ibid, at 16.

21 95 Hague Recueil 1, 78 (1958).

22 See, for example, the remarks of Mr. Touzmoukhamedov (Soviet Union) at the 1960 I.L.A. reunion. International Law Association, Report of the Forty-Ninth Conference, 1960, at 335–336 (1961).

23 See, for example, Durdenevsky, “Neutrality and Atomic Weapons (In the light of the Principle of Peaceful Co-existence),” 1960 Sovetskii Ezhegodnik 105; Galina, “Neutrality in Contemporary International Law,” 1958 ibid. 200. Galina’s comment that neutrality presupposes an “active” attitude, and not “self-withdrawal or isolation in resolving the burning questions of the day—combating the threat of war, all aspects of colonialism,” recalls the dissenting opinion of Judge Krylov of the Soviet Union in the Advisory Opinion of the International Court of Justice of May 28, 1948, on Conditions of Admission of a State to Membership in the United Nations. Judge Krylov there contended that Portugal and Eire were not “peace-loving” in terms of the United Nations Charter because they had been neutral in World War II, the criterion “peaceloving” having, in his view, an “active sense.” [1948] 1.C.J. Rep. 57; Sohn, Cases and Other Materials on World Law 178 et seq. (1950).

24 95 Hague Recueil 1, 59 (1958).

25 See generally Kozhevnikov (ed.), op. cit. note 16 above; Krylov, loc. cit. note 6 above; Tunkin, loc. cit. note 10 above.

26 Ibid.

27 95 Hague Recueil 1, 19–20 (1958); also 1958 Sovetskii Ezhegodnik 15.

28 “The doctrine according to which customary norms recognised as such by a considerable number of States are binding upon all the States implies a considerable danger in the epoch of coexistence. This point should be specifically emphasized in view of the fact that this doctrine is widely accepted by western writers, and some judgments of the International Court of Justice may be interpreted in favour of this doctrine.” 95 Hague Recueil 1, 20 (1958).

29 1958 Sovetskii Ezhegodnik 15.

30 95 Hague Recueil 1, 26 et seq. (1958).

31 Ibid, at 28–30.

32 “The concept that international custom constitutes a primary and the most important means of creating norms of international law was certainly correct for the 19th century, hut . . . it no longer reflects the present day situation in international law. In contemporary conditions the principal means of creating norms of international law is a treaty. This is the point of view held by the great majority, if not by all, of the Soviet authors who have treated this subject.” Tunkin, loc. cit., 95 Hague Recueil 1, 23 (1958). And see also Tunkin, 1958 Sovetskii Ezhegodnik 15; Kozhevnikov (ed.), International Law, at 12 and 247 et seq.; Krylov, 70 Hague Recueil 407, 436 et seq. (1947); Lukashuk, ‘ ‘ The Soviet Union and International Treaties,’’ 1959 Sovetskii Ezhegodnik 16. For an earlier formulation of Professor Tunkin’s proposition, above, see the remarks of Soviet Ambassador Troyanovsky, in his address in 1934 to the American Society of International Law at its annual dinner, in 1934 Proceedings of the Society 196–197, quoted in Brown, “ T h e Russian Soviet Union and the Law of Nations,” 28 A.J.I.L. 733 (1934).

33 Kozhevnikov (ed.), International Law at 248–249; Lukashuk, 1959 Sovetskii Ezhegodnik 16; Talalayev, “The Termination of International Treaties in the History and Practice of the Soviet State ,” ibid. 144; Shurshalov, “Juridical Content of the Principle Pacta Sunt Servanda and Its Realization in International Relations,” 1958 ibid. 150. For an earlier formulation see Korovin, “The Second World War and International Law,” 40 A.J.I.L. 742, 751–752 (1946).

34 Professor Schlesinger in particular suggests that the explanation for the strong Soviet rejection of the clausula rebus sic stantibus doctrine may lie in its repeated invocation by the Nazi-Fascist states as the doctrinal basis for repudiation of their international obligations; for example, the repudiation by Nazi Germany of the Treaty of Versailles, 1919. Schlesinger, Soviet Legal Theory 275 et seq. (2nd ed., 1951). And see also Korovin, loc. cit., 40 A.J.I.L. 742 at 752 (1946). Professor Kozhevnikov scores the use of the clausula doctrine “ by capitalist States, in the sense that any change in the international situation gives the right to annul a treaty. Such an interpretation has been used by aggressor countries to justify expansionist foreign policies.’’ Kozhevnikov (ed.), International Law 281.

35 Among the second-string Soviet jurists, Shurshalov supports the repudiation of treaty obligations in the case “when a revolution or a national-liberation struggle gives rise to a new social structure and a new state authority, which is entitled to denounce the humiliating and unacceptable treaties of the deposed government.” 1958 Sovetskii Ezhegodnik 150. Talalayev cites, as examples of treaties which may be unilaterally dissolved, “invalid international treaties” which he defines as “aggressive, colonialist, coercive, unequal”; and “treaties contradicting the new social system of a state which lias emerged as a result of social revolution.” 1959 ibid. 144. Zakharova claims as “indisputable” the right of a state to repudiate, “following a social revolution, those treaties which do not correspond to the basic principles of the new system of property ownership and the new economy of the country”; also those treaties “concluded in the special interests of the overthrown classes or with the aim of suppressing the class which has come to power.” Zakharova, “States as Subjects of International Law and Social Revolution (Some Problems of Succession),” 1960 ibid. 157.

36 70 Hague Recueil 407, at 433–434 (1947). Professor Korovin, writing in 1928, admitted that this would be, in itself, an application by the Soviet Union of the clausula rebus sic stantibus doctrine, though seeking partly to justify the Soviet Union’s selective invocation of the doctrine as an “extension of the principle . . . at the same time limiting its field of application by a single circumstance—the social revolution.” Korovin, “Soviet Treaties and International Law,” 22 A.J.I.L. 753, 763 (1928); and see also Harvard Research in International Law, Law of Treaties, 29 A.J.I.L. Supp. at 1053 (1935).

Lukashuk defines “ unequal’’ treaties as “treaties which do not correspond to the real will of the signatories.” 1959 Sovetskii Ezhegodnik 16. Professor Kozhevnikov provides a further definition by citing King Farouk’s Government’s decision of Oct. 15, 1951, to repudiate the Anglo-Egyptian Treaty of 1936, as an example of a valid annulment of an “unequal” treaty in that the annulment “corresponded to the principles of democracy supported by all progressive mankind, since these treaties violated the elementary sovereign rights of the Egyptian people.” Kozhevnikov (ed.), International Law at 280–281.

37 70 Hague Recueil 407, 437 (1947).

38 Compare Schlesinger, op. cit. note 34 above, at 275; though see also Korovin, 22 A.J.I.L. 753, 763 (1928), note 36 above. Cf. Harvard Research in International Law, Law of Treaties, 29 A.J.I.L. Supp 1118–1119 (1935); for a recent discussion of the Soviet attitude, see Shurshalov, , Osnovaniia Deistvitelnosti Mezhdunarodnykh Dogovorov 94–129 (1957)Google Scholar.

39 For a more general Soviet critique of Western thinking, see especially Tunkin, 95 Hague Recueil 1, at 36–44 (1958); Levin, , “The Main Trends of Contemporary Bourgeois Theories of International Law,” 1959 Google Scholar Sovetskii Ezhegodnik 88; Zakharova and Bagrova, “The ‘Balance of Power’ Theory,” ibid. 272.

40 See, for example, Tunkin, 95 Hague Recueil 1, 75 (1958); idem, 1958 Sovetskii Ezhegodnik 15; Levin, 1959 ibid. 88. Tor analogous Soviet criticisms of Kelsenism as a philosophy of law for internal, municipal law purposes in Western countries, see the discussion in Golunsky, and Strogovich, , “The Theory of the State and Law,” in Babb (trans.), Soviet Legal Philosophy 419–424 (1951)Google Scholar; Zivs, Krisis Burzhuaznoe Zakonnosti v Sovremennikh Imperialisticheskikh Gosudarstvakh 109–117 (1958). For Kelsen’s own reply, see Kelsen, , The Communist Theory of Law 133–147, especially at 142–144 (1955)Google Scholar.

41 Professor Tunkin, at least, among Soviet jurists, is aware of some of the Western criticisms of these theories, though apparently his study is limited to the purely European criticisms. See his comments in 95 Hague Recueil 1, 38 (1958). Professor Tunkin also attacks Western natural-law thinking on international law, though again he confines himself to European writers, and his actual choice of subjects for attack is curiously selective: thus, mainly on the basis of the German nationalist jurist, Kaufmann, he concludes: “Indeed, ‘the road to hell is paved with good intentions’, or at least with good words. In the world of today different doctrines of natural law may, in real life, only be detrimental to international law. It is characteristic of the present situation that the partisans of ‘power politics’ usually prefer to invoke abstract principles of ‘justice’, rather than principles of international law.” Ibid, at 44.

42 See, especially, Levin, 1959 Sovetskii Ezhegodnik 88, 100–102; Zakharova and Bagrova, ibid. 272, 276. The Morgenthau works selected for attack by the Soviet writers are. his Polities among Nations (1st ed., 1948; 2nd ed., 1954); and his In Defense of the National Interest (1951).

43 Levin, 1959 Sovetskii Ezhegodnik 88, 100–102.

44 As to these American criticisms, see especially McDougal, “Law and Power,” 46 A.J.I.L. 102 (1952); idem, “The Realist Theory in Pyrrhic Victory,” 49 ibid. 376 (1955); and see also Oliver, , “Reflections on Two Recent Developments Affecting the Function of Law in the International Community,” 30 Texas Law Rev. 815 (1952)Google Scholar. For Kennan’s views, see, variously, Kennan, American Diplomacy 1900–1950 (1952); Bussia, , the Atom, and the West (1958)Google Scholar; Russia and the West under Lenin and Stalin (1960).

45 Compare the various criticisms of McDougal, 46 A.J.I.L. 102 (1952); 49 ibid. 376 (1955).

46 The McDougal works identified by Dr. Levin for purposes of criticism are his essay, “Law and Power,” 46 A.J.I.L. 102 (1952); and his Hague lectures, “International Law, Power and Policy: A Contemporary Conception,” 82 Hague Recueil 140 (1953). Coupled with McDougal’s writings as objects of attack by Dr. Levin are the writings of Professor F. S. C. Northrop and, in particular, his essay, “Naturalistic and Cultural Foundations for a More Effective International Law,” 59 Yale Law J. 1430 (1950). Levin, 1959 Sovetskii Ezhegodnik 88, 101–102.

47 Ibid.

48 95 Hague Recueil 1, 59–60 (1958).

49 As to this, see generally Schlesinger, Soviet Legal Theory at 273 et seq. (2nd ed., 1951); Kulski, “The Soviet Interpretation of International Law,” 49 A.J.I.L. 518 (1955); Hazard, “Pashukanis Is No Traitor,” 51 ibid. 385 (1957); Lipson, 1959 Proceedings, American Society of International Law 41.

50 Schlesinger, op. cit. at 278 et seq.; Lipson, loc. cit. above.

51 Hazard, 51 A.J.I.L. 385, 387 (1957).

52 Schlesinger, op. cit. at 281–282.

53 See generally Kulski, 49 A.J.I.L. 518 (1955).

54 95 Hague Recueil 1, 60 (1958).

55 Ibid.

56 Ibid, at 74; and see Professor Tunkin’s remarks also in 1958 Sovetskii Ezhegodnik 15.

57 95 Hague Recueil 1, 59 (1958).

58 Kozhevnikov (ed.), International Law 7. This definition in large part reproduces earlier definitions by Krylov, Vyshinsky and Korovin himself. Cf. Lissitzyn, in 11 American Slavic and East European Keview 257, 258–259 (1952). See also Tunkin, in 49 Calif. Law Rev. 419 (1961).

59 “Law is the aggregate of the rules of conduct (norms) established or approved (sanctioned) by state authority, expressing the will of the dominant class, as to which the coercive force of the state guarantees their being put into operation to the end of safeguarding, making secure, and developing social relationships and arrangements agreeable and advantageous to the dominant class.” Golunsky and Strogovich, “The Theory of the State and Law,” in Babb (trans.), Soviet Legal Philosophy at 370 (1951); similiter, Vyshinsky (Gen. Ed.), The Law of the Soviet State 50 (Babb, trans., 1954).

60 Compare Kulski, 49 A.J.I.L. 518 (1955).

61 95 Hague Recueil 1, 72–74 (1958).

62 Jessup, , “Should International Law Recognize an Intermediate Status between Peace and War?” 48 A.J.I.L. 98 (1954)Google Scholar.

63 Tunkin, 95 Hague Recueil 1, at 63–67 and 70–72; 1958 Sovetskii Ezhegodnik 15.

64 “. . . A ‘status of intermediacy’ with its international tension and hostility is a dangerous status which may easily lead to war.

“The introduction in international law of the suggested ‘status of intermediacy’ would be a step back. In fact it would mean that peaceful coexistence, which is a normal state of relations according to contemporary international law, would be replaced by a ‘state of intermediacy’ or, in other words, by the state of ‘cold war’, which would be legally accepted as a normal status of international relations.” Tunkin, 95 Hague Recueil 1, 74 (1958).

65 Professor Tunkin, as noted, immediately followed his indictment in his Hague lectures of Professor Korovin’s views by a more general indictment of the thesis as to the “impossibility of the existence of general international law,” which thesis, he charged, “leads objectively to a justification of the ‘position of strength’ policy and of the ‘cold war’.” Ibid. 60.

66 Tunkin, ibid. 73–74.

67 See, in particular, McDougal, “Peace and War: Factual Continuum with Multiple Legal Consequences,” 49 A.J.I.L. 63 (1955).

68 Ibid.

69 95 Hague Recueil 1, 74 (1958).

70 International Law Association, Report of the Forty-Ninth Conference, 1960, at 362 (1961).

71 See generally Jennings, , “The Progressive Development of International Law and Its Codification,” 24 Brit. Yr. Bk. of Int. Law 304 (1947)Google Scholar; Lauterpacht, , “Codification and Development of International Law,” 49 A.J.I.L. 16 (1955)Google Scholar; Stone, , “On the “Vocation of the International Law Commission,” 57 Columbia Law Rev. 16 (1957)Google Scholar.

72 Thibaut, , “Über die Notwendigkeit eines allgemein bürgerlichen Rechts für Deutschland,” in Civilistisehe Abhandlungen 404 (1814)Google Scholar; von Savigny, Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814). And see generally Stone, The Province and Function of Law 430–438 (1946).

73 Compare McDougal, and Lasswell, , “The Identification and Appraisal of Diverse Systems of Public Order,” 53 A.J.I.L. 1 (1959)Google Scholar.

74 Compare, generally, Jenks, The Common Law of Mankind (1958); Alvarez, Le Droit International Nouveau dans Ses Eapports avec la Vie Actuelle des Peuples (1959); McDougal, “The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order,” 61 Yale Law J. 915 (1952).

75 Berlia, “Le Droit des Gens et la Coexistence Russo-Américaine,” 79 Journal du Droit International (Clunet) 26, 36 (1952).

76 See the perceptive analysis by Lasswell, “The Value Analysis of Legal Discourse,’’ 1958 Western Reserve Law Rev. 188; McDougal and Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,” 53 A.J.I.L. 1 (1959).

77 See, for example, Berman, , “Soviet Law Reform—Dateline Moscow 1957,” 66 Yale Law J. 1191 (1957)CrossRefGoogle Scholar; Hazard, , “Governmental Developments in the TJ.S.S.E. since Stalin,” 303 Annals Am. Acad. Pol. and Soc. Sci. 11 (1956)CrossRefGoogle Scholar; Ginsburgs, , “ ‘Socialist Legality’ in the U.S.S.R. since the XXth Party Congress,” 6 A.J. Comp. Law 546 (1957)Google Scholar; Loeber, , “ ‘ Sozialistische Gesetzlichkeit’ im Zeichen des XX Parteikongresses der K P d S U ,” 2 Osteuropa-Recht 243 (1956)Google Scholar.

78 Compare Berlia, loc. cit. note 75 above, at 42–46.

79 “. . . Turn to the seventeenth century and the great struggle between king and parliament; this truly is a constitutional struggle in the strictest sense of the word, it is a struggle for sovereignty, but how can you study it without knowing something of criminal law and criminal procedure? At more than one moment the whole history of England seems to depend on what it is possible to describe as a detail of criminal procedure—the question whether ‘He is committed to prison per speciale mandatum domini regis’, is or is not a good return to a writ of habeas corpus. How can we form any opinion about that question unless we know something about the ordinary course of criminal procedure? A modern code-maker would very possibly not put the provisions of the Habeas Corpus Act into that part of the code which dealt with constitutional law —he would keep it for that part which dealt with criminal procedure—still we can see that the history of the writ is very truly part of the history of our constitution.” Maitland, The Constitutional History of England 538–539 (1909).

80 Compare Rozmaryn, “La Règie de la Légalité,” 1958 Revue Internationale de Droit Comparé 1; and see, generally, the present author’s discussion, “Toward the Scientific Study of Values in Comparative Law Research,” in Nadelmann, von Mehren, and Hazard (eds.), XXth Century Comparative and Conflicts Law. Legal Essays in Honor of Hessel E. Yntema 29 (1961).

81 International Law Association, Report of the Forty-Ninth Conference, 1960 (1961), address by Dr. Martin (United Kingdom), pp. 334–335; address by Professor Hazard (United States), ibid, at 341–343.

82 International Law Association, Report of American Branch Committee on Peaceful Co-existence (1962) (to be published as an annex to the official Report of the Fiftieth Conference, I.L.A., held in Brussels in August, 1962). The members of the American Branch Committee are John N. Hazard (Chairman), Martin Domke, Oscar R. Houston, Fritz Moses, and Louis B. Sohn.

83 See generally Pinto, , “Le Droit International et la Coexistence,” 82 Journal du Droit International (Clunet) 306, at 319–321 (1955)Google Scholar; Lyon-Caen, , “Le Droit International et la Coexistence Pacifique des Etats Relevant de Systèmes Politiques Opposés,” 79 Journal du Droit International (Clunet) 48 (1952)Google Scholar; Vergnaud, , “ La Guerre Froide,” 29 Revue Générale de Droit International Public 220, 236 (1958)Google Scholar; Virally, , “La Conference au Sommet,” 1959 Google Scholar Annuaire Francois de Droit International 7.

84 Compare Idman, “Quelques Observations sur la Coexistence Pacifique et le Traié d’Amitié entre l’U.R.S.S. et la Finlande,” 30 Revue Générale de Droit International Public 639, 647 (1959).

85 Compare the views, respectively, of Zourek, ‘ ‘ Quelques Observations sur les Difficulty Rencontrés lors du Règlement Judiciaire des Différends Nés du Commerce entre les Pays á Structures Economiques et Sociales Différentes,” 86 Journal du Droit International (Clunet) 638 (1959); and Seidl-Hohenveldern, “ Souveranität und Wirtschaftliche Koexistenz,” ibid. 1050.

86 International Law Association, Report of the Forty-Eighth Conference, 1958, at 437- 440 (1959); and see also McDougal, and Lasswell, , “The Identification and Appraisal of Diverse Systems of Public Order,” 53 A.J.I.L. 1, 11–15 (1959)Google Scholar.

87 Khrushchev, op. cit. note 1 above.

88 Kommunist, No. 1 (January, 1961), pp. 3–57: 13 Current Digest of the Soviet Press 10.

89 95 Hague Recueil 1, 78 (1958). For a further discussion of the Soviet doctrine of peaceful co-existence in connection with the development of international law, see Robert, D. Crane, “Soviet Attitude toward International Space Law,” 56 A.J.I.L. 685, esp. pp. 710–723 (1962)Google Scholar.