Few propositions about international law have enjoyed more support than the proposition that, under the Charter of the United Nations, the use of force by way of reprisals is illegal. Although, indeed, the words “reprisals” and “retaliation ” are not to be found in the Charter, this proposition was generally regarded by writers2 and by the Security Council as the logical and necessary consequence of the prohibition of force in Article 2(4), the injunction to settle disputes peacefully in Article 2(3) and the limiting of permissible force by states to self-defense. The U.N. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, adopted by General Assembly Resolution 2625 (XXV) on October 24, 1970, contains the following categorical statement: “States have a duty to refrain from acts of reprisal involving the use of force.”

Public concern over the environmental crisis has begun to stimulate not only action on the local and national level but also proposals for new international efforts, mobilized especially by current preparations for the United Nations Conference on the Human Environment scheduled to be held at Stockholm in June, 1972.1 Some of these proposals are being presented in the form of draft conventions, such as the Draft Convention on Conservation of the World Heritage, prepared by the International Union for Conservation of Nature and Natural Resources (IUCN),2 and the Draft Convention for the Regulation of Transportation for Ocean Dumping, prepared by a U.N. inter-governmental working group on marine pollution.

It is widely agreed that Professor McDougal's impressive intellectual achievements can be traced, in part, to his efforts to expand the use of concepts and conclusions from the social sciences in the analysis of legal issues, especially in the realm of international law. Nevertheless, his concern with the links between the development of a policy-oriented jurisprudence on the one hand and the use of findings from the social sciences in legal analysis on the other has often led to confusion among his supporters and his opponents alike. Accordingly, my purpose in this essay is to examine critically this element of McDougal's thinking1 in the hopes of reaching a clearer understanding both of McDougal's contributions to the study of international law and of the relationship between legal analysis and the social sciences in general.2

It may appear ungracious to respond questioningly to an appraisal so extensive and generous as that offered by Professor Young. The intellectual issues his statement raises transcend, however, ordinary considerations of reciprocal graciousness and generosity: innocent bystanders might be confused and misled. Professor Young purports to criticize our recommended policy-oriented jurisprudence without making explicit his own jurisprudence or the premises and assumptions which underlie his criticisms. Many of the difficulties and obscurities he finds in our work would appear to derive either from the inherent difficulties of inquiry and decision or from obscurities and incomplete notions in his own framework of inquiry. His conceptions, in particular, of “law,” “international law,” “world public order,” “values and norms,” “jurisprudence,” and “social science” are less than clear. We briefly illustrate

Notwithstanding a letter by the Legal Adviser of the State Department suggesting that the act of state doctrine should not be applied to bar consideration of the defendant's counterclaim and set-off arising out of the expropriation of the defendant's property by the Cuban Government, the U.S. Court of Appeals for the Second Circuit in Banco National de Cuba v. First National City Bank of New York1 applied the doctrine and refused to review the merits of the counterclaim and set–off.