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Research on the General Principles of Law Recognized by Civilized Nations*

Published online by Cambridge University Press:  28 March 2017

Rudolf B. Schlesinger
Rudolf B. Schlesinger*
Affiliation:
Cornell Law School
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Extract

Among students of international law it is no secret that the concrete determination and formulation of the general principles of law recognized by civilized nations is a task hardly begun. This paper is intended to show that the task is important, perhaps more important than any other to which the collective wisdom and experience of scholars trained in comparative law can be devoted, and that the colossal magnitude of the task should not discourage us from making a beginning. It further aims to call attention to a specific project now under way which is designed to constitute a systematic beginning, or at least to determine the feasibility of the attempt.

Type
Research Article
Information
American Journal of International Law , Volume 51 , Issue 4 , October 1957 , pp. 734 - 753
Copyright
Copyright © American Society of International Law 1957

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Footnotes

*

This paper was prepared for the Colloquium on The Rule of Law in Oriental Countries, held under the auspices of the International Association of Legal Science in Chicago, Sept. 12–16, 1957; it formed part of the concluding remarks made by the author as Chairman of that Colloquium.

References

1 For some references to earlier efforts to formulate certain “general principles,” especially in the area of human rights, see below, pp. 750–751.

2 The cases have been collected by Cheng, General Principles of Law as Applied by International Courts and Tribunals (1953), passim. See also Lauterpacht, The Function of Law in the International Community 115 ff. (1933); idem, Private Law Sources and Analogies in International Law §§ 28, 29 (1927); Verdross, , “Les Principes Généraux du Droit dans la Jurisprudence Internationale,” 52 Hague Recueil 191 (1935)Google Scholar, especially at 230 ff.

3 Cheng, op. cit., Foreword by Schwarzenberger at XII.

4 Other authors have expressed similar views. See Schlesinger, , “Teaching Comparative Law: The Reaction of the Customer,” 3 A. J. Comp. Law 492, 497–498 (1954)Google Scholar; Gutteridge, , “Comparative Law and the Law of Nations,” 21 Brit. Yr. Bk. Int. Law 1 (1944)Google Scholar; Vallindas, “General Principles of Law and the Hierarchy of the Sources of International Law,” in Grundprobleme des Internationalen Rechts: Festschrift für Jean Spiropoulos 425 at 428 (1957); Wehle, , “Comparative Law’s Proper Task for the International Court,” 99 U. of Pa. Law Rev. 13 (1950).CrossRefGoogle Scholar

5 For an example which, although limited to a single point, shows what could be achieved by proper use of the comparative method, see Arfichaga, , “Treaty Stipulations in Favor of Third States,” 50 A.J.I.L. 338, 346–349 (1956).Google Scholar

6 See Briggs, The Law of Nations 45 ff. (1952); Haerle, , “Les Principes Généraux de Droit et le Droit des Gens,” 16 Rev. de Droit International et de Législation Comparée 663 (1935)Google Scholar; Kraus, , “Revision of the Peace Treaties ex aequo et bono,” 1 New Commonwealth Quarterly 33, 42 (1935)Google Scholar; Verdross, loc. cit. (note 2 above), at 191; Visscher, , “Contribution à l’Etude des Sources du Droit International,” 3 Recueil Gény 397 (1936).Google Scholar

With special reference to the present Suez Canal dispute, and the waters of the Indus Basin, see Laylin, “Principles of Law Governing the Uses of International Rivers,” especially at pp. 13–14 of the advance print; Finch, “Navigation and Use of the Suez Canal” (both addresses before the 1957 Annual Meeting of the American Society of International Law, printed in the Proceedings of that meeting) ; Huang, , “Some International and Legal Aspects of the Suez Canal Question,” 51 A.J.I.L. 277, 296, 307 (1957).Google Scholar

7 See Makowski, , “L’Organisation Actuelle de l’Arbitrage International,” 36 Hague Recueil 360–361 (1931)Google Scholar; Mann, , “Interpretation of Uniform Statutes,” 62 Law Quarterly Rev. 278 (1946)Google Scholar; Salvioli, , “La Corte Permanente di Giustizia Internazionale,” 15 Riv. di Dir. Int. 11 (1923)Google Scholar; Vallindas, , “Autonomy of International Uniform Law,” 8 Rev. Hellénique de Droit Int. 8, 10 (1955).Google Scholar

8 Art. 15 of the Peace Treaty with Italy, 61 Stat. 1378; Art. 3 (1) of the Peace Treaty with Rumania, 61 Stat. 1801; Art. 2 of the Peace Treaty with Bulgaria, 61 Stat. 1955; Art. 2 (1) of the Peace Treaty with Hungary, 61 Stat. 2112.

9 See notes 50–54 below.

10 This was clearly and sweepingly recognized in The German Interests Case, 1925, Ser. A-6 Judgments and Orders of the P.C.I.J. 19. Many cases in which this doctrine was applied in connection with particular procedural problems are listed by Cheng, op. cit. (note 2 above), at 25, 26, 257–386, 387–390. E.g.:

Audiatur et altera pars: Arakas (The Georgios) Case (1927), Greco-Bulgarian Mix. Arb. Trib., 7 Rec. des Décisions des Trib. Arb. Mixtes Institués par les Traités de Paix 39, at 43–45;

Nemo Judex in sua propria causa: Arakas case, above; Turnbull, Manoa Co. Ltd., Orinoco Co. Ltd. Cases (1903), U. S.-Venezuelan Mix. Cl. Comm., Ralston and Doyle, Venezuelan Arbitrations of 1903, etc. 200 at 244 (1904);

Jurisdiction: Mavrommatis Palestine Concession Case (1924), Dissenting Opinion by Moore, Ser. A-2 Judgments and Orders of the P.C.I.J. 57–60.

The Court has the Power to Determine the Extent of its own Jurisdiction: Interpretation of the Greco-Turkish Agreement (1928), Series B-16 Advisory Opinions of the P.C.I.J. 20; Rio Grande Case (1923), Nielsen, American and British Claims Arbitrations under the Special Agreement concluded between the U. S. and Great Britain, Aug. 18, 1910, 332, at 342 (1926).

Jura Novit Curia: Tree Zones Case, (Jgt) (1932), Series A/B-46 Judgments, Orders and Advisory Opinions of the P.C.I.J. 138; Brazilian Loans Case (1929), Series A-20/21 Judgments and Orders of the P.C.I.J. 124.

Presumption of the validity of acts: Valentiner Case (1903), German-Venezuelan Mix. Cl. Comm., Ralston and Doyle, Venezuelan Arbitrations of 1903 etc. 562, at 564 (1904); Friedrich & Co. Case (1902), French-Venezuelan Mix. Cl. Comm., Ralston and Doyle, Report of French-Venezuelan Mixed Claims Commission of 1902, 31, at 42 (1906).

Presumption of the good faith of litigants: Lighthouses Case (1934), separate opinion of Séfériades, Series A/B-62 Judgments, Orders and Advisory Opinions of the P.C.I.J. 47.

Evidence: Kling CaBe (1930), Opinions of Commissioners under the Convention concluded Sept. 8, 1923 as extended by subsequent Conventions between the U. S. and Mexico, Oct. 1930 to July 1931, 36, at 45 (1931).

Evaluation of Evidence: Odell Case (1931), Further Decisions and Opinions of the Commissioners in Accordance with the Conventions of Nov. 19, 1926 and Dec. 5, 1930 between Great Britain and the United Mexican States, subsequent to Feb. 15, 1930, 61, at 62–63 (1933).

Presumptions in Evidence: Daniel Dillon Case (1928), Mexican-U. S. Gen. CI. Comm., Opinions of Commissioners under the Convention concluded Sept. 8, 1923 as extended by the Convention signed Aug. 16, 1927 between the U. S. and Mexico, Sept. 26, 1928 to May 17, 1929, 61, at 65 (1929).

Burden of Proof on the Claimant: The Queen Case (1872), 2 La Pradelle and Politis, Recueil des Arbitrages Internationaux 706, at 708 (1932).

Res Judicata: Chorzow Factory Case (Interpretation) (1927) Series A-13 Judgments and Orders of the P.C.I.J. 27.

Prescription: Gentini Case, Italian-Venezuelan Mix. Cl. Comm. (1903), Ralston and Doyle, “Venezuelan Arbitrations of 1903 etc. 720, at 726–727 (1904).

But cf. for a more skeptical view, Sereni, Principi Generali di Diritto e Processo Internazionale (1955), reviewed by Lipstein, 31 Brit. Yr. Bk. Int. Law 522 (1954).

11 See Jessup, Transnational Law 9, 29–34, 98–102 (1956). For a general discussion of the growing coverage of international law in our day see, e.g., Kunz, , “The Changing Law of Nations,” 51 A.J.I.L. 77 (1957)Google Scholar; Friedmann, , “Some Impacts of Social Organization on International Law,” 50 A.J.I.L. 475, 476 (1956)Google Scholar.

12 See Jessup, op. cit. 101–102; Bastid, “De Quelques Problèmes Juridiques posés par le Développement des Organisations Internationales,” in Grundprobleme (op. cit. note 4 above), pp. 35–37, 39–40; Powers, , “United Nations Administrative Tribunals as Adjudicators of Disputes Arising out of Employment Contracts with International Organizations,” 54 Mich. Law Rev. 533 (1956)CrossRefGoogle Scholar.

13 For a description of the organization and functioning of the Community see, e.g., Bebr, , “European Coal and Steel Community: A Political and Legal Innovation,” 63 Yale Law J. 1 (1953)CrossRefGoogle Scholar; Parker, , “The Schuman Plan,” 6 Int. Org. 381 (1952)CrossRefGoogle Scholar; Raalte, Van, “The Treaty Constituting the European Coal and Steel Community,” 1 Int. and Comp. Law Q. 73 (1952)CrossRefGoogle Scholar; Vernon, , “Schuman Plan—Sovereign Powers of the European Coal and Steel Community,” 47 A.J.I.L. 183 (1953)Google Scholar. For a discussion of the first case brought to the Community’s High Court of Justice see Note, , “European Coal and Steel Community: High Court of Justice,” 4 Int. and Comp. Law Q. 146 (1955)Google Scholar.

14 See, e.g., Bebr, , “Protection of Private Interests under the European Coal and Steel Community,” 42 Va. Law Rev. 879 (1956)CrossRefGoogle Scholar; Stein, , “The European Coal and Steel Community: The Beginning of its Judicial Process,” 55 Col. Law Rev. 985 (1955)CrossRefGoogle Scholar.

15 Cf. Hamel, “Perspectives et Limites de l’Unification de Droit Privé,” in International Institute for the Unification of Private Law, Actes du Congrès International de Droit Privé tenu à Rorne en Juillet 1950, pp. 61, 74–75 (1951).

16 The significance of the concept of “general principles of law recognized by civilized nations” is not even limited to trans-national transactions and relations. See Part II of this article below.

17 The International Commission of Jurists of The Hague should not be confused with another Commission of the same name established in 1955 by the International Association of Democratic Lawyers. See Kabes and Sergot, Blueprint of Deception 270 (1957).

18 Editorial entitled “Hungary,” in the Newsletter of the International Commission of Jurists, I (April, 1957), p. 3.

19 It is, of course, true that even in medieval times the law was not uniform throughout the world. But the universality of feudal culture and of ecclesiastic influence, the pervasive impact of the renaissance of Roman law in Italian universities, and the cosmopolitan nature of mercantile customs combined to give the law a fundament common to all Christendom. Later on, these unifying forces were neutralized and overcome by the decay of feudalism; by the Reformation; by the gradual emergence of national consciousness and national states; by the rise of the English common law, which reduced the influence of civil and ecclesiastical law in England and absorbed the law merchant ; and finally, by the sweeping 19th-century victory of nationalism as a mass movement, which in its wake brought national codifications to the countries of the civil law orbit.

20 Within each of the nation states, codification meant unification of diverse local laws. See, e.g., Déak, and Rheinstein, , “The Development of French and German Law,” 24 Georgetown Law J. 551 (1936)Google Scholar. But as between one nation state and another, the national codifications had the effect of impeding the interchange of legal thought and experience. See Schnitzer, De la Diversité et de l’Unification du Droit 8–9 (1946); Schlesinger, , “Teaching Comparative Law: The Reaction of the Customer,” 3 A. J. Comp. Law 492, 501 (1954).CrossRefGoogle Scholar Cf. David, “Die Zukunft der Europaeischen Rechtsord-nungen: Vereinheitlichung oder Harmonisierung?” in Europaeische Zusammenarbeit im Rechtswesen, hsgb. von K. Zweigert, pp. 1–4 (1955).

21 See Schlesinger, Comparative Law—Cases and Materials 18–19 (1950); Sehnitzer, op. cit. (note 20 above), at 4–12. The particularization of legal systems was mitigated, however, by the prestige gained by a few outstanding Codes which became models of legislation within so-called “code families.” See, e.g., Schlesinger, op. cit. at 232; Sehnitzer, op. cit. at 22–25. (The literature on this point, especially on the expansion and influence of the French Civil Code, is so vast that it would go beyond the scope of this paper to give further citations.)

22 At one time it was even asserted that the law merchant was a branch of the law of nations. See Burdick, “Contributions of the Law Merchant to the Common Law,” in III Select Essays in Anglo-American Legal History 34–43 (1909). The writings of some of the scholars who held this view are cited and criticized by Goldschmidt, Handbuch des Handelsrechts 364–365 (1874).

23 This was due, in part, to the defeat of the codification movement in the United States. See Wagner, , “Codification of Law in Europe and the Codification Movement in the Middle of the Nineteenth Century in the United States,” 2 St. Louis U. Law J. 335 (1953)Google Scholar.

24 Cf. Lawson, , “Uniformity of Laws: A Suggestion,” 26 J. Comp. Leg. (3rd Ser.) 16, 17 (1944)Google Scholar.

25 See Bagge, , “International Unification of Commercial Law,” in International Institute for the Unification of Private Law, Unification of Law: A General Survey of Work for the Unification of Private Law 253 ff. (1948)Google Scholar; Hamel, “The Geneva Conventions on Negotiable Instruments and Methods of Unifying Private Law,” ibid, at 271 ff.; Keyes, , “Toward a Single Law Governing the International Sale of Goods,” 42 Calif. Law Rev. 653 (1954)CrossRefGoogle Scholar; Rabel, , “The Hague Conference on the Unification of Sales Law,” 1 A. J. Comp. Law 58 (1952)CrossRefGoogle Scholar. On the most recent endeavors in the area of international commercial law (using the term in its civilian sense) see Reese, , “Some Observations on the Eighth Session of the Hague Conference on Private International Law,” 5 A. J. Comp. Law 611 (1956)CrossRefGoogle Scholar, and Documents, ibid. at 650; see also Riese, , “Der Entwurf zur Internationalen Vereinheitlichung des Kaufrechts,” 22 Zeitschrift f. Ausländisches und Internationales Privatrecht 16 (1957)Google Scholar. Cf. Matteucci, , “Prospects of International Unification of Law from a European Viewpoint,” 10 La. Law Rev. 15 (1949)Google Scholar.

26 See Schlesinger, Comparative Law (op. cit. note 21) 8; Feller, , “The International Unification of Laws Concerning Checks,” 45 Harvard Law Bev. 668 (1932)CrossRefGoogle Scholar; Gutteridge, , “The Unification of the Law of Bills of Exchange,” 12 Brit. Yr. Bk. Int. Law 13 (1931)Google Scholar; Hudson, and Feller, , “The International Unification of Laws Concerning Bills of Exchange,” 44 Harvard Law Rev. 333 (1931)CrossRefGoogle Scholar; Yntema, , “Unification of the Laws Respecting Negotiable Instruments,” 4 Int. and Comp. Law Q. 178 (1951)Google Scholar.

27 See, e.g., Schlesinger, Comparative Law, op. cit. at 7–8; Cleminson, , “International Unification of Maritime Law,” 23 J. Comp. Leg. (3rd Ser.) 163 (1941)Google Scholar; Gutteridge, , “The Unification of the Law of the Sea,” 16 J. Comp. Leg. 246 (1934)Google Scholar.

28 See Gutteridge, Comparative Law 145 ff. (1946), and Schlesinger, Comparative Law, at 381–382, 451–452, where some of the difficulties are discussed. See also Patterson and Schlesinger, Problems of Codification of Commercial Law, N. Y. Leg. Doc. No. 65 A (1955) (to be published also in the forthcoming study of the New York Law Revision Commission dealing with the proposed Uniform Commercial Code).

29 Compare Sarfatti, , “Roman Law and Common Law: Forerunners of a General Unification of Law,” 3 Int. and Comp. Law Q. 110 (1954)CrossRefGoogle Scholar:

“That which is worthy of particular consideration today is the aspect of comparative law which has for its object a continuous rapprochement among the principal systems being compared, and which seeks to discover in their apparent diversity a common substratum of institutions and concepts.”

See also the article by the same author, “Comparative Law and the Unification of Law,” 26 Tulane Law Rev. 317 (1952)Google Scholar.

Compared to an endeavor to find a “common substratum of institutions and concepts,” an attempt to formulate concrete “general principles” seems more ambitious and less certain of success. A retrenchment, however, to the more modest goal advocated by Sarfatti would still be possible if the project outlined in this article should prove the impossibility, at this time, of agreeing on a worthwhile number of sufficiently meaningful “general principles.”

For comparable proposals concerning the “harmonization” rather than the “unification” of law, on a regional basis, see David, loc. cit. note 20 above, at 7 ff.; also Aubin, “Europaeisches Einheitsrecht oder Intereuropaeische Rechtsharmonie?” ibid, at 48 ff.

30 Leary, and Husted, , “An Approach to Drafting an International Commercial Code and a Modus Operandi under Present Laws,” 49 Col. Law Rev. 1070 (1949)Google Scholar.

31 Various types of such code provisions are noted by Cheng, op. cit. 400–408, by Ireland, , “Precedents’ Place in Latin Law,” 40 W. Va. Law Q. 116 (1934)Google Scholar, and by Lenhoff, , “Interpretative Theories: A Comparative Study of Legislation,” 27 Texas Law Rev. 312 (1949)Google Scholar. See also Schlesinger, Comparative Law—Cases and Materials 276 (1950), where an English translation of the celebrated Art. 1 of the Swiss Civil Code is set forth.

32 For a discussion of this code provision, see Diokno, , “What are ‘los Principios Generates del Derecho’ in Article 6 of the Spanish Civil Code?” 10 Philippine Law J. 1 (1930)Google Scholar.

33 See Habachy, , “Islam: Factors of Stability and Change,” 54 Col. Law Rev. 710, 713, 716–717 (1954)CrossRefGoogle Scholar; Khadduri, , “Nature and Sources of Islamic Law,” 22 Geo. Wash. Law Rev. 3 (1953)Google Scholar; Milliot, , “L’Idée de la Loi dans l’Islam,” 4 Rev. Int. de Droit Comp. 669 (1952)Google Scholar.

34 See, e.g., Wolff, , “The Utility of Foreign Law to the Practicing Lawyer,” 27 Am. Bar Assn. J. 253 (1941)Google Scholar; also Schlesinger, Comparative Law—Cases and Materials 7 (1950).

35 See, e.g., McLean v. Clydesdale, 9 App. Cas. 95, 105 (1883); Taylor v. Caldwell, 3 B.&S. 826 (1863); Embrey v. Owen, 6 Ex. 353, 371 (1851); Acton v. Blundell, 12 M.&W. 324, 353 (1843); Blundell v. Catterall, 5 B. & Aid. 278 (1821); Kennel v. Abbott, 4 Ves. Jun. 809 (1797) ; Coggs v. Bernard, 2 Ld. Raym. 909 (1703); Funk v. V. 8., 54 8. Ct. 212, 216, 290 U. S. 371 (1933); Appendix II to Judge Frank’s dissent in U. S. v. Grunewald, 233 F. 2d 556 at 587–592 (C.A. 2, 1956), reversed in 353 U. S. 391 (1957); Bourjois v. Hormida, 106 F. 2d 174 (C.A. 2, 1939); Associated Press v. K.V.O.S., 9 F. Supp. 279 (D. C, W. D. Wash. 1934) ; Bright v. Boyd, 1 Story 478 (1841) ; Finch v. Finch, 22 Conn. 411 (1853); Lumpkin v. Mills, 4 Ga. 343 (1847) ; Livingstone v. McDonald, 21 Iowa 160, 168 (1866); Greenspan v. Slate, 12 N. J. 426 (1953); DeMerritt v. Johnson, 7 Johns. Rep. 473 (N. Y. 1819); Hayes v. Ward, 7 Johns. Ch, 131 (N. Y. 1819); Campbell v. Messier, 4 Johns. Ch. 334 (N. Y. 1819); Whightman v. Whightman, 4 Johns. Ch. 343 (N. Y. 1820); Fable v. Brown, 11 S.C. Eq. 378 (1835); Gayle v. Cunningham, 5 S.C. Eq. 124, 133 (1824); State v. Lehre, 2 Const. R.S.C. 809, 813 (1811).

For more illustrations as well as for discussion of the reasons behind the courts’ reliance on foreign authority, see Story, Equity Jurisprudence, and Kent, Commentaries, passim. See also Howe, , “Roman Civil Law in America,” 16 Harvard Law Rev. 358 (1902)Google Scholar; Oliver, , “Roman Law in Modern Cases in English Courts,” Cambridge Legal Essays 246 ff. (1926)Google Scholar; Pound, , “The Influence of the Civil Law in America,” 1 La. Law Rev. 15 (1938)Google Scholar; Sherman, , “Bomanization of English Law,” 23 Yale Law J. 323 (1913)Google Scholar; Washburn, , “The Relation of the Civil Law to the Common Law,” 12 Am. Law Reg. 673 (1873)Google Scholar; Wu, , “Jurisprudence as a Cultural Study,” 33 U. of Detroit Law J. 277, 292–294 (1946)Google Scholar; Yntema, , “Roman Law and its Influence on Western Civilization,” 35 Cornell Law Q. 87 (1949)Google Scholar.

36 Chicago etc. v. Chicago, 166 U. S. 226 (1897); Monongahela Navigation Co. v. U. S., 148 U. S. 312 (1893) ; Holden v. Hardy, 169 U. S. 366, 389 (1897); Charles River Bridge v. Warren River Bridge etc., 11 Pet. 638 (1837); Wilkison v. Leland, 2 Pet. 627 (1829); Ogden v. Saunders, 12 Wheaton 213, 353 (1827) ; Terret v. Taylor, 9 Cranch 43, 50 (1815); Fletcher v. Peck, 6 Cranch 87 (1810); Galder v. Ball, 3 Dallas 388 (1798); “Vanhorne v. Dorrance, 2 Dallas 304, 310 (1795); Pavesish v. New England Life Ins. Co., 122 Ga. 190 (1904); White v. White, 5 Barb. 474 (N. Y. 1849); Gardner v. New-burgh, 2 Johns. Ch. 162 (N. Y. 1816); Dash v. Van Kleek, 7 Johns. Rep. 477 (N. Y. 1811); Ham v. McLaws, 1 Bay 93, 98 (S. C. 1789); Bank of State v. Cooper, 2 Yerg. 599, 603 (Tenn. 1831); Page v. Pendleton, Wythe Rep. 211, 215 (Va. 1793); Nunnemacher v. The State, 129 Wis. 190, 197 (1906).

See also Corwin, , “The Basic Doctrine of American Constitutional Law,” 12 Mich. Law Rev. 247 (1913).CrossRefGoogle Scholar Cf. Haines, , “The Law of Nature in State and Federal Judicial Decisions,” 25 Yale Law J. 621 (1916)CrossRefGoogle Scholar.

37 The Federal Constitutional Court of the German Federal Republic has expressed similar views. See Schlesinger, , “Western Germany: Recognition and Enforcement of Soviet Zone Criminal Judgments,” 2 A. J. Comp. Law 392, 396 (1953)CrossRefGoogle Scholar.

38 See Rouse, and Baldwin, , “The Exercise of Criminal Jurisdiction under the NATO Status of Forces Agreement,” 51 A.J.I.L. 29, 55 ff. (1957)Google Scholar.

39 291 U. S. 97 (1934).

40 See Schwenk, , “Comparative Study of the Law of Criminal Procedure in NATO Countries under the Senate’s Reservation in the Ratification of the NATO Status of Forces Agreement,” 35 N. C. Law Rev. 358 (1957)Google Scholar; Rouse and Baldwin, loc. cit. note 38 above, at 59–60.

41 See note 37 above.

42 For examples see Schlesinger, Comparative Law, op. cit. note 21 above, at 455–456.

43 Dr. G. E. R. V. Free State of Bavaria, Bundesgerichtshof, 7th Civil Division, decision of Nov. 15, 1956, VII Z.R. 249/56.

44 As this example shows, it is clear that the negative finding of unbridgeable diversity of views on a given point can be as significant, for practical purposes, as a positive finding of the existence of a “general principle.” For further examples, see below, under par. 6.

45 See, e.g., Svit Nsrodin Padnik & Bata A. S. v. Soeietà B.S.F. Stif tung and others (1956), decided by the Court of Appeals of Bologna, Italy, discussed by Sommerich in 5 A. J. Comp. Law 642 (1957). Even within the enacting state, such objectionable statutes may be subject to attack on constitutional grounds. This is a question of the internal law of the enacting state. The statement in the text, which deals only with the conflict of laws question, assumes that the statute, however obnoxious, will be enforced in the enacting state.

46 Concerning the point that commercial agreements and other instruments, if drawn against the known background of a common core of legal principles, often would avoid disputes, see above under par. 1 in fine. Presently the discussion centers on methods of settling disputes which have broken out.

47 See the articles by Schaer, and Luther, on “Arbitration Proceedings Before the Commission of Foreign Trade and Arbitration of the Chamber of Commerce of the USSR,” in 2 Recht der International Wirtschaft 75 ff. (1956)Google Scholar. Cf. Matter of Amtorg Trading Corporation, 304 N. Y. 519, 109 N.E. 2d 606 (1952). On the other hand, as has been stated in the text, there are some existing systems for settling transnational commercial disputes which even now seek to avoid unilateral submission to foreign law by reference to the “general principles.” See Jessup, Transnational Law 14–15, 81–82 (1956).

48 See Jones, , “International Judicial Assistance,” 62 Tale Law J. 515 (1953)Google Scholar.

49 See Schlesinger, Comparative Law—Cases and Materials 32–139 (1950); idem, “Teaching Comparative Law: The Reaction of the Customer,” 3 A. J. Comp. Law 492, 496–498 (1954), especially footnotes 9–17 where further references may be found. The literature on the subject is voluminous. Among recent writings see, e.g., California Law Revision Commission, Recommendation and Study Relating to Judicial Notice of the Law of Foreign Countries (1957) (The author of the study is Professor Edward A. Hogan, Jr., of Hastings College of Law); Domke, , “Expert Testimony in Proof of Foreign Law in American Courts,” 137 N. T. Law J. (March 12 and 13, 1957) Nos. 48 and 49Google Scholar; Stern, , “Foreign Law in the Courts: Judicial Notice and Proof,” 45 Calif. Law Rev. 23 (1957)CrossRefGoogle Scholar.

50 See Schlesinger, Comparative Law—Cases and Materials 108, 112, 116, 127—132 (1950).

51 See Schlesinger, , “Teaching Comparative Law: The Reaction of the Customer,” 3 A. J. Comp. Law 498, n. 15 (1954)Google Scholar.

52 Compare Bonfante, , “The Idea of Law Among Civilized Peoples,” 3 Minn. Law Rev. 445 (1919)Google Scholar; Hamel, cited note 15 above, at 61–63; Schmitthoff, , “The Science of Comparative Law,” 7 Cambridge Law J. 94 (1939)CrossRefGoogle Scholar, reprinted in Schlesinger, Comparative Law, op. cit. above, at 1, 5.

53 Luce, Henry R., “Our Great Hope: Peace, the Work of Justice,” 43 Am. Bar Assn. J. 407 (1957).Google Scholar

54 Adopted by the General Assembly on Dec. 10, 1948. For text, see 1948–49 U. N. Yearbook at 535 (1950). For comments, see, e.g., Jessup, A Modern Law of Nations 92 (1949); Lauterpacht, , “Universal Declaration of Human Rights,” 25 Brit. Yr. Bk. Int. Law 354 (1948)Google Scholar; “International Human Rights—A Symposium,” in 14 Law and Contemp. Prob. (1949); Note, , “The Declaration of Human Rights, the United Nations Charter and their Effect on the Domestic Law of Human Rights,” 36 Va. Law Rev. 1059 (1950)Google Scholar.

The Declaration has become a formal source of law by incorporation into various international agreements, e.g., Agreement between Italy, United Kingdom, United States and Yugoslavia (1954), which divided the Free Territory of Trieste. See 1954 Annual Review of United Nations Affairs (ed. by C. Eagleton, W. Chamberlin and R. Swift) 90.

55 For text, see 27 Dept. of State Bulletin 23 (1952). For comments, see, e.g., MacChesney, , “International Protection of Human Rights in the United Nations,” 47 Northwestern U. Law Rev. 198 (1952)Google Scholar; Bebr, , “International Protection of Human Rights and Freedoms,” 29 Philippine Law J. 312 (1954)Google Scholar. The two Draft Covenants were adopted by the Commission on Human Rights in 1954 and approved by the Economic and Social Council. Discussion concerning them still continues in the Third Committee of the General Assembly; it is expected that they will be brought to a vote by the end of the 13th Session of the Assembly. See General Assembly Res. 1041 (XI) (1956).

56 The convention (excluding the provisions about the establishment of the European Court of Human Rights) became effective on Sept. 3, 1953. For text, see 45 A.J.I.L. Supp. 24 (1951). On the convention, see, e.g., The European Convention on Human Rights (1952) ; id., popular edition (1953), both published by the Directorate of Information of the Council of Europe; Myers, , “Human Rights in Europe,” 48 A.J.I.L. 299 (1954)Google Scholar; Northrop, European Union and United States Foreign Policy 40–44 (1955).

57 Questions relating to violations of human rights recognized in the convention are referred to an international commission and then possibly to the European Court of Human Rights. The commission was elected in 1954. See Myers, , “The European Commission on Human Rights,” 50 A.J.I.L. 949 (1956)Google Scholar. The court has not yet been called into being. On the provisions about the court, see Schapiro, , “The European Court of Human Rights,” 2 U. of “Western Australia Law Rev. 65 (1951)Google Scholar.

58 See Bulletin No. 5 and Newsletter I (April, 1957) of the International Commission of Jurists. For purposes of its inquiry, the Commission has defined rule of law as “adherence to those institutions and procedures, not always identical but probably similar, which experience and tradition in the different countries of the world, often having themselves varying political structures and economic backgrounds, have shown to be essential to protect the individual from arbitrary government and to enable him to enjoy the dignity of man.” See Foreword by Professor Norman S. Marsh, to the Commission’s Report entitled “The Hungarian Situation and the Rule of Law,” p. 3 (1957).

59 Professor Robert S. Pasley, in particular, has contributed greatly to the methodological research which is necessary at the threshold of the Project, and to the preparation of the working papers referred to below under IV.

60 Acknowledgment is made at this point of the valuable suggestions received from Professor W. J. Wagner of Notre Dame Law School, and from Mr. Phaedon Kozyris, Research Assistant in the International Legal Studies Program at Cornell University.

61 The project is supported by a Ford Foundation grant which Cornell University received for international legal studies.

62 The intricate problems of selection which arise in this connection are detailed in the working papers mentioned below, p. 752.

63 The interpenetration of ideas which can be expected from this method may not remain limited to the participants themselves. Many of them will be able, when they return to their own countries after a sufficiently extended period of such exchange, to impart to their students at home the benefit of their own broadened understanding.

64 A first tentative draft of this document has just been completed by Professor Robert S. Pasley and by the author of this paper.