The requirement for international standards for rescue and return of distressed astronauts rapidly assumed importance in the first years of the space age, paralleling development of the technology necessary to sustain man in outer space and to permit re-entry of spacecraft through the earth’s atmosphere. The need increased in the early 1960’s when both the United States and the Soviet Union announced inauguration of space flight programs to send men to the moon and return them to earth. It was recognized that, in the continued absence of any firm international consensus on this subject, international friction could be caused by disagreement over procedure to be followed, the nature and extent of states’ obligations, or by differences in interpreting or applying legal principles in the event earth or space rescue and return operations became necessary. These conditions (possible unintentional misunderstanding during manned flight emergencies, swift developments in astronautical science and technology that made manned space flight a reality, and the importance of astronauts in terms of national prestige and subsequent status as “envoys of mankind”) combined to encourage international agreement upon standards for rescue and return by way of direct discussion among states, informal agreement, and, ultimately, conclusion of formal conventions governing this activity; and they discouraged reliance by nations upon principles or practices derived from custom and precedent.

There are regrettably few cases in international law that go into the question of the proof necessary to establish a customary rule binding upon the defendant state. And from those few cases, notably those decided by the World Court, most writers have drawn pessimistic conclusions as to the proof needed for custom because of the Court’s apparent insistence, in Professor Palk’s words, upon “some tangible evidence of consent on the part of the state that is bound.” A showing of consent is a very difficult proposition. Many legal disputes arise precisely because neither side has previously consented to the same rule. As Lauterpacht argued, to say that prior consent must be shown in order to reach a legal conclusion in any given international dispute is tantamount to rejecting the possibility of the existence of the vast majority of the rules of international law. But then, how can we explain the World Court’s reasoning in the Asylum, Right of Passage, and Fisheries Cases in which the element of consent on the part of the defendant states seemed to play such a vital role in the Court’s reasoning concerning the existence of binding rules of law?

It has been assumed in international adjudication that each state in the litigation should be permitted to have a judge of its own nationality on the bench. This practice of employing national judges in international courts is deeply rooted in the history of arbitration and judicial settlement. Responding to a demand for it, the Committee of Jurists in 1920–1921 embodied the plan in Article 31 of the Statute of the Permanent Court of International Justice. This article was transferred intact to the Statute of the present International Court of Justice in 1945. Whether judges of the nationality of the parties, either in arbitration tribunals or in courts of justice, can be counted upon to be as “independent” as the processes of justice require, and as Article 2 of the present Statute stipulates, is a question of some moment to present-day international justice. It has been suggested as an alternative that a judge on the International Court of the nationality of the litigant should abstain; thus a state with no judge of its nationality on the Court would not be at a disadvantage.

From the Universal Declaration of Human Eights in 1948, through the adoption of the International Covenants on Human Rights in 1966, and to the Proclamation of Teheran in 1968, the human rights program under the auspices of the United Nations has represented a tremendous collective effort and symbolized the common aspirations of mankind for increasing the protection of all basic human values. This program, as greatly agitated and accelerated by the process of postwar decolonization and the rapid emergence and multiplication of newly independent states, has burgeoned far beyond the contemplation of the founding fathers of the United Nations.

The material for this section is compiled by Stephen L. Gibson, attorney in the Office of the Legal Adviser, Department of State. Jerome H. Silber, of the Office of the General Counsel, Department of Defense, has provided material originating in that Department.