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Soviet and Western International Law and the Cold War in the Era of Bipolarity: Inter-Block Law in a Nuclear Age

Published online by Cambridge University Press:  09 March 2016

Edward McWhinney
Edward McWhinney*
Affiliation:
Faculty of Law and member of the centre for Russian and East European Studies, University of Toronto
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Extract

“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

OLIVER WENDELL HOLMES, JR.,

The Path of the Law (1897).

The “WINDS OF CHANGE” in the Soviet Union since Stalin's death — what, in a legal context, the leading journal Soviet State and Law has called the programme “for complete elimination of the harmful consequences of the personality cult in Soviet jurisprudence” — have done much to liberate Soviet international law thinking from the at times overly rigid positivism and rather sterile orthodoxy which had dominated it, in common with Soviet general legal doctrine, from the time of Pashukanis' downfall in the late 1930's, onwards through the period of Vyshinsky's intellectual dominance almost to the present day. For the purpose of analysis and appraisal of the contemporary state of Soviet international law doctrine and practice, both as to its main points of accord and also its main policy conflicts and differences, certain preliminary propositions can be advanced as to the nature and condition of Soviet international law in general over the years since the October Revolution.

Type
Research Article
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 1 , 1963 , pp. 40 - 81
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1963

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References

1 Editorial, Sovetskoe Gosudarstvo i Pravo, (1962), no. 4.

2 See generally Vyshinsky, A. Y. (ed.), The Law of the Soviet State (H. W. Babb trans., New York, 1948); Soviet Legal Philosophy: 20th Century Legai Philosophy Series Vol. 5 (H. W. Babb trans., Cambridge, Mass., 1951)Google Scholar; Kelsen, H., The Communist Theory of Law (New York, 1955).Google Scholar

3 Compare Lasswell, H. D., The World Revolution of Our Time. A Framework for Basic Policy Research (Stanford, 1951)Google Scholar; Lasswell, H. D., “The Scientific Study of International Relations” (1958), 12 Yearbook of World Affairs 1.Google Scholar And see generally McDougal, M. S., “International Law, Power and Policy: a contemporary conception” (1953), 82 Hague Recueil 137 Google Scholar; McDougal, and Associates, Studies in World Public Order (New Haven, 1960)Google Scholar; McDougal, M. S. and Feliciano, F. P., Law and Minimum World Public Order. The Legal Regulation of International Coercion (New Haven, 1961)Google Scholar; Northrop, F. S. C., “Naturalistic and Cultural Foundations for a more effective international law” (1950), 59 Yale Law Journal 1430.CrossRefGoogle Scholar

4 As to this, see generally McWhinney, E., “ ‘Peaceful Coexistence’ and Soviet Western International Law” (1962), 56 American Journal of International Law 951, 955-8CrossRefGoogle Scholar; and compare Tunkin, G. I., “Remarks on the Juridical Nature of Customary Norms of International Law” (1961), 49 California Law Review 419.CrossRefGoogle Scholar

5 See, for example, the current approved Soviet text-book definition of International Law, formulated by Professor E. A. Korovin: “International Law can be defined as the aggregate of rules governing relations between States in the process of their conflict and co-operation, designed to safeguard their peaceful coexistence, expressing the will of the ruling classes of these States and defended in case of need by coercion applied by States individually or collectively”. Kozhevnikov, F. I. (ed.), International Law (Moscow, 1957), 7.Google Scholar And see generally Wolfe, B. D., “Communist Ideology and Soviet Foreign Policy” (1962), 41 Foreign Affairs 152.CrossRefGoogle Scholar

6 Compare the definition of law, for internal, municipal law purposes, published with Vyshinsky’s imprimatur in 1938: “Law is the totality (a) of the rules of conduct, expressing the will of the dominant class and established in legal order, and (b) of customs and rules of community life sanctioned by state authority — their application being guaranteed by the compulsive force of the state in order to guard, secure, and develop social relationships and social orders advantageous and agreeable to the dominant class.” Vyshinsky, supra note 2, at 50. Similiter the 1940 definition formulated by Golunsky, S. A. and Strogovich, M. S., in “The Theory of the State and Law”, published in Soviet Legal Philosophy, supra note 2, at 370.Google Scholar

7 Thus Professor Tunkin, immediately after discussing Treaties and International Custom, formally identifies the “opinions and resolutions of public and scientific organizations” as one of the “subsidiary processes” of norm formation in International Law. Tunkin, G. I., Voprasi Teorii Mezhdunarodnogo Prava (Moscow, 1962), 144–5.Google Scholar

8 The Soviet Bloc performances at the Forty-Eighth and Forty-Ninth biennial reunions of the International Law Association, at New York in 1958 and at Hamburg in 1960, respectively, were especially impressive in this regard. Report of the Forty-Eighth Conference, International Law Association, 1958 (London, 1959) ; Report of the Forty-Ninth Conference, International Law Association, 1960 (London, 1961). And compare Gasteyger, C., “Neue Entwicklungen im sowjetischen Völkerrecht”, (1961) 2 Jahrbuch für Ostrecht 39, at 39.Google Scholar

9 See, in particular, the pungent criticisms by Professor Maxwell Cohen of the quality of Western (including, specifically, Canadian) representation on the United Nations Sixth Committee in recent years, and also the general standard of intellectual performance by the West in that committee; and see also the ensuing discussion. [1962] Proceedings of the American Society of International Law 108 et seq.

10 As to Peaceful Coexistence, see generally McWhinney, supra note 4 ; Hazard, J. N., “Codifying Peaceful Coexistence” (1961), 55 American Journal of International Law 109;CrossRefGoogle Scholar Crane, R. D. C, “Soviet Attitude toward International Space Law” (1962), 56 American Journal of International Law 685, at 710-723CrossRefGoogle Scholar; Crane, R. D., “Law and Strategy in Space” (1962), 6 Orbis 281, 289-297Google Scholar; Kulski, W. W., Peaceful Coexistence. An Analysis of Soviet Foreign Policy (1959)Google Scholar; and see assorted comments by Secretary of State Dean Rusk, in (1962), 46 Department of State Bulletin 931 at 934; ibid. 936 at 938. In relation to the concept of Peaceful Coexistence as developed, specifically, in the International Law Association, see Report of the Forty-Seventh Conference, International Law Association, 1956 (London, 1957), 17-63; Report of the Forty-Eighth Conference, 1958 (1959), 417-506; Report of the Forty-Ninth Conference, International Law Association, 1960 (1961), 332–384.

11 See, for example, Editorial, “Lenin’s Behest: Peaceful Coexistence”, International Affairs (Moscow, April, 1962), 7; A. Sovetov, Coexistence and Crisis, International Affairs (January, 1962) 13; Krylov, S. B., “Les notions principales du droit des gens. (La doctrine soviétique du droit international)” (1947)70 Hague Recueil 407, at 423-6Google Scholar; Tunkin, G. I., “Coexistence and International Law” (1958), 95 Hague Recueil 1, at 59Google Scholar. And see also Mosely, P. E., “The Meanings of Coexistence” (1962), 41 Foreign Affairs 36.CrossRefGoogle Scholar

12 Premier Khrushchev himself, in a particularly brilliant exercise in Cold War gamesmanship, rooted the concept of Peaceful Coexistence in Lenin’s choice of the official coat of arms of the Soviet Union, Lenin having rejected the sword in favour of the “hammer and sickle, symbols of peaceful, constructive labour”. Khrushchev, N., An Account to the Party and the People. Report of the Central Committee, Communist Party of the Soviet Union, to the 22nd Congress of the Party, October 17, 1961 (Moscow, 1961), 34–35.Google Scholar Premier Khrushchev’s remarks, here, are reported as being greeted variously with “stormy applause” and “applause” by his professional audience. Ibid. And see also Mosely, P. E., “Khrushchev’s Party Congress” (1962), 40 Foreign Affairs 193.CrossRefGoogle Scholar

13 The concept of a factual “coexistence”, and the very term “coexistence” itself, were well-known to classical international law writers in the West, in the late 19th century. See, in this regard, Rivier, A., Programme d’un Cours de Droit des Gens pour servir à l’étude privée et aux leçons universitaires (Brussels and Paris, 1889), xii and 66 Google Scholar; Holtzendorff, F. von, Handbuch des Völkerrechts (Berlin, 1885), Vol. 1, 6, 33, 74Google Scholar; Heffter, A. W., Das Europaische Völkerrecht der Gegenwart auf den bisherigen Grundlagen (4th ed., Berlin, 1861), 4 Google Scholar, (7th ed., by F. H. Geffcken, Berlin, 1881), 5.

14 See, generally, the debate on Coexistence at the 50th biennial reunion of the International Law Association, held at Brussels in 1962. And see especially the Report of the Committee on Juridical Aspects of Coexistence, including the “Report of American Branch Committee on Peaceful Coexistence”, “American Draft Code of Peaceful Coexistence”, and “Statement submitted by Chairman of Canadian Branch Committee on Peaceful Coexistence” : to be published in Report of the Fiftieth Conference, International Law Association, 1962 (London, 1963); and see generally McWhinney, supra note 4.

15 See United Nations General Assembly, Sixth Committee, seventeenth session, agenda item 75, A/C. 6/L. 524 (11th December, 1962); A/C. 6/L. 524/Corr. 1 (12th December, 1962); A/C. 6/L. 524/Add. 1 (12th December, 1962); and see also Senator Gore, A., “Principles of International Law concerning Friendly Relations among States” (1962), 47 Department of State Bulletin 972.Google Scholar

16 Ibid. For further development of the concept of Peaceful Coexistence by Soviet Bloc jurists and sympathisers, see “Report of the Commission on Legal Problems relating to Peaceful Coexistence”, VIth Congress of the International Association of Democratic Lawyers (Brussels, 1956), 22; Proceedings of the Commission on Legal Principles of Peaceful Coexistence, Vlth Congress of the International Association of Democratic Lawyers (Brussels, 1956).

17 McWhinney, supra note 4, at 962-4; Crane, supra note 10; and see also Morgan, George A., “The U.S.S.R. in World Affairs” (1962), 47 Department of State Bulletin 649.Google Scholar

18 McWhinney, supra note 4, at 960–5.

19 See the comments by Tunkin, supra note 11, at 60; and compare Kulski, , “The Soviet Interpretation of International Law” (1955), 49 American Journal of International Law 518.CrossRefGoogle Scholar

20 Korovin, E. A., International Law Today, International Affairs (July, 1961) 19 Google Scholar; Vestnik Moskovskogo Universiteta (August, 1961) 64 et seq.

21 Ibid., 21.

22 Ibid., 21–2. For an earlier discussion by Korovin, see Korovin, , “Proletarskii Intarnatsionalizm i Mezhdunarodnoe Pravo” [1958] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 50;Google Scholar and compare Gore, supra note 15, at 976: “This extreme doctrinal emphasis … at the same time attempted to portray the great body of customary international law as outmoded, obsolete, colonialist; as bourgeois, creditor-oriented, and — in some sinister sense — ‘Western’.”

23 See, for example, Krylov, supra note 11 ; Tunkin, supra note 11 ; Kozhevnikov, in Kozhevnikov (ed.), supra note 5, at 247-282; Tunkin, supra note 7, at 66-84, 104-120. And see generally Slusser, R. M. and Triska, J. F., A Calendar of Soviet Treaties 1917–1957 (Stanford, 1959)Google Scholar; Triska, J. F. and Slusser, R. M., The Theory, Law, and Policy of Soviet Treaties (Stanford, 1962), 9–31 Google Scholar; McWhinney, supra note 4, at 955–8.

24 Krylov, supra note 11, at 436 et seq; Tunkin, supra note 11, at 23; Tunkin, G. I., “Sorok Let Sosyshchestvovania i Mezhdunarodnoe Pravo”, [1958] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 15, 15–29.Google Scholar

25 Professor Tunkin, indeed, would drastically limit the ambit and number of custom-based rules of international law by insisting that “the essence of an international custom as a process or means of creating a norm of international law consists in agreement among states.” Tunkin, supra note 4, at 423. This is, in effect, to insist that any rule of international law that is sought to be based on “custom” must satisfy a double standard of not merely being satisfactorily evidenced through historical practice of States, but also must actually be “accepted” by States. Professor Tunkin’s conclusion from this is even more arresting; it is that the socialist and newly emerging states are not bound by the customary norms of classical international law. Ibid., 428-9. Compare Bartos, M., “Les nouveaux Etats et les traités internationaux” (1962), 9 Jugoslovenska Revija za Medunarodno Pravo 161.Google Scholar

26 See, for example, Levin, D. B., “Ob Osnovnikh Napravleniakh Sovremennoi Burzhuaznoi Nauki Mezhdunarodnogo Prava [1959] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 88, 101–2.Google Scholar

27 See, for example, the comments by Professor Lachs of Poland: “Neither have the authors of the [U.N.] Charter linked together the task of liquidating the aftermath of war with the task of maintaining peace, as the Treaty of Versailles was linked with the Pact of the League of Nations twenty-six years ago. The ‘architects of Versailles’ made every attempt to create a new kind of ‘Holy Alliance’ against all the historic consequences deriving from the October Revolution. The declaratory nature of the League of Nations Pact failed to correspond to the needs of the situation. Lloyd George himself wrote: ‘All Europe is in the grip of the revolutionary spirit. There are profound feelings not only of discontent, but of anger and revolt among the workers against pre-war living conditions. The masses are calling the entire system in question, in all its political, social and economic aspects’. Attempts to prolong the life of the old system by giving it a new form were destined to failure.” Lachs, M., “The United Nations Charter as the Legal Basis of Peaceful Coexistence,” Proceedings of the Commission on Legal Principles of Peaceful Coexistence, supra note 16, at 5.Google Scholar

28 Korovin, E. A., “Soviet Treaties and International Law” (1928), 22 American Journal of International Law 753, at 753CrossRefGoogle Scholar. Senator Gore’s suggestion that the Soviet emphasis on bilateral treaties stems from an “extreme and archaic view of the sovereignty of the state, a view which, reduced to simple terms, taught that only the specific, articulated consent of the state could operate to subject the state to international law”, perhaps accords too much significance to dead-hand control, mechanically historicist factors, and underestimates the tactical, problems-oriented aspect of the historical development of Soviet international law doctrine. Gore, supra note 15, at 976.

29 It is the element of barter, or bargaining, inherent in bilateral treaties, that seems to explain their favour with Soviet policy-makers, in marked contrast to multilateral treaties where the very generality and looseness of the association militates against any direct confrontation by the parties: Korovin, supra note 28, at 753.

30 Korovin, E. A., “The Second World War and International Law” (1946), 40 American Journal of International Law 742, at 751.CrossRefGoogle Scholar And see also Lukashuk, I. I., “SSSR i Mezhdunarodnie Dogovori” [1959] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 16, 26Google Scholar; Lachs, supra note 27, at 7.

31 See the address of Ambassador Troyanovsky, Soviet Union, to annual dinner of American Society of International Law, 1934, reported in [1934] Proceedings of the American Society of International Law 196–7; Brown, P. M., “The Russian Soviet Union and the Law of Nations” (1934), 28 American Journal of International Law 733.CrossRefGoogle Scholar

32 The McDougal works selected for especial attack, here, by Soviet jurists are “International Law, Power, and Policy: a contemporary conception” (1953), 82 Hague Recueil 137; “Law and Power” (1952), 46 American Journal of International Law 102.

33 Levin, supra note 26.

34 Kozhevnikov (ed.), supra note 5, at 248-9; Lukashuk, supra note 30; Shurshalov, V. M., “Iuridicheskoe Soderzhanie Printsipa Pacta sunt Servanda i Ego Realizatsia v Mezhdunarodnikh Otnosheniakh,” [1958] Sovetskii Ezhegodnik … 150 Google Scholar; Talalaev, A. N., Prekrashchenie Mezhdunarodnikh Dogovorov v Istorii i Praktike Sovetskogo Gosudarstva, [1959] Sovetskii Ezhegodnik … 144.Google Scholar

35 As to Soviet attitudes, see, for example, Kozhevnikov (ed.), supra note 5, at 281; Korovin, supra note 28, at 762 et seq.; “Harvard Draft Codification of International Law, Article 28, Rebus Sic Stantibus” (1935), 29 American Journal of International Law Supplement 1096, at 1118-9. And as to clausula rebus sic stantibus generally, see McNair, Lord, The Law of Treaties (Oxford, 1961), especially at 681 et seqGoogle Scholar; and compare Kaplan, M. A. and B. Katzenbach, N. de, The Political Foundations of International Law (New York, 1961), 245.Google Scholar

36 See generally, McWhinney, supra note 4, at 956-8; Shurshalov, supra note 34; Talalaev, supra note 34, Zakharova, N. V., “O Mezhdunarodnoi Pravo-subektnosti Gosudarstva pri Sotsialnoi Revoliutsii,” [1960] Sovetskii Ezhegodnik … 157.Google Scholar

37 Krylov, supra note 11, at 433-4; Shurshalov, supra note 34; Lukashuk, supra note 30; Kozhevnikov (ed.), supra note 5, at 280-1; Korovin, supra note 28, at 763.

38 Krylov, supra note 11, at 437.

39 Schlesinger, R., Soviet Legal Theory. Its Social Background and Development (London, 1945), 275 Google Scholar et seq.; “Harvard Draft Codification of International Law” (1935), 29 American Journal of International Law Supplement 1044, at 1053 et seq.; Shurshalov, Osnovania Deistvitelnosti Mezhdunarodnikh Dogovorov (1957), 94 et seq. Compare an earlier formulation by an emigré Russian jurist, Mirkine-Guetzévitch, B., “Droit international et Droit constitutionnel” (1931), 38 Hague Recueil 311, at 352.Google Scholar

40 Supra note 26.

41 For a current spirited defence of the special rights conceded to the Big Powers in the United Nations Charter, and especially the right of veto in the Security Council, see Ushakov, N. A., “K Voprosu o prave ‘Veto’ v Organizatsii Obedinennikh Natsii,” [1959] Sovetskii Ezhegodnik 212 Google Scholar; Lachs, supra note 27, at 8–9.

42 “Under present conditions the principle of peaceful coexistence requires consideration for the legitimate interests of three groups of states — socialist, Western capitalist, and neutralist. It rules out the diktat of any one of these groupings. This thesis must find its reflection in a reasonable reorganization of the United Nations machinery”. “Report by Committee on Peaceful Coexistence, Soviet Association of International Law,” to be published in Report of the Fiftieth Conference, International Law Association, 1962 (London, 1963).

“States shall be represented in international organizations with consideration for the fact of the existence at present of three large political groupings”. Section 6, paragraph 2, “Draft Declaration of Principles of Peaceful Coexistence, Soviet Association of International Law”, Ibid. And see also Volodin, M., U.N. in a Changed World, International Affairs (September, 1962) 6.Google Scholar

43 Though the extent to which more traditional, old-line, diplomatic methods of persuasion and lobbying in the corridors, can pay off in United Nations General Assembly votes, should not be under-estimated. Thus, in surveying the General Assembly voting on the question of the Chinese representation over the past four sessions (in 1959 and 1960, the voting on a United States motion to postpone discussion; in 1961 and 1962, the voting on a Soviet resolution to unseat Nationalist China and seat Communist China), one can hardly fail to be astonished by the dramatic improvement of Nationalist China’s position with the United Nations African members. In 1959, out of 10 African members, the vote was 2 for Nationalist China and 5 against, with 3 abstaining; in 1960, out of 27 African members, the vote was 2 for Nationalist China, 9 against, and 16 abstaining; in 1961, out of 29 African members, the vote was 9 for Nationalist China, 9 against, and il abstaining; in 1962, out of 33 African members, the vote was 17 for Nationalist China, 14 against, and 2 abstaining. The marked swing in African votes in favour of Nationalist China is attributed in considerable measure to a highly successful public relations and economic aid programme pursued by Nationalist China in relation to the new African countries. Slawecki, L. M. S., “The Two Chinas in Africa” (1963), 41 Foreign Affairs 398, at 400CrossRefGoogle Scholar. One may note, in addition, that the United States State Department is understandably pleased by its own success in obtaining unanimous endorsement, in the Organization of American States, for the United States policies and actions during the recent Cuban crisis. See, for example, Szulc, T., “U.S. Action on Cuba stirs Hemisphere to Unity”, New York Times, Sunday, October 28, 1962, p. 6EGoogle Scholar; and see also Alsop, S. and Bartlett, C., “In Time of Crisis”, Saturday Evening Post, December 8, 1962, 15, especially at 20.Google Scholar

44 Note that the United States seems partly to have accepted these particular Soviet objections to the United Nations machinery in the recent Cuban crisis, in so far as President Kennedy himself, in his Report to the Nation on November 2, 1962, expressed his approval of the International Red Cross as the appropriate agent for international inspection of Cuba-bound cargos. While the Soviet Union’s enthusiastic preference for an “independent” agency like the Red Cross may be readily explained in terms of its past doctrinal attitudes to the United Nations, the United States’ evident substantial willingness to by-pass the regular United Nations machinery in this way must find its justification, practically, in the prospects, thereby, of facilitating or accelerating the actual resolution of the Soviet-Western confrontation over Cuba. As to the actual course of the Soviet proposals as to utilisation of the Red Cross (the eventual failure of which seem to be the fault neither of the Soviet Union nor the United States, but of Fidel Castro), see the New York Times, November 2, 1962, and succeeding issues.

45 Compare Pinto, R., “Le droit international et la coexistence” (1955), 82 Journal du Droit international (Clunet) 306, at 316 et seq.Google Scholar

46 See, for example, Ushakov, supra note 41 ; Bobrov, R. L., O Pravovoi Prirode Organizatsii Obedinennikh Natsii, [1959] Sovetskii Ezhegodnik 229 Google Scholar; Korovin, E. A., Ustav OON i Mirnoe Sosushchestvovanie, [1960] Sovetskii Ezhegodnik 28 Google Scholar; and see also Kiselev, K., “Unjustified Swelling of the U.N. Budget”, International Affairs (October, 1962) 19.Google Scholar

47 Compare Pinto, supra note 45; Berlia, G., “Le Droit des Gens et la coexistence russo-américaine” (1952), 79 Journal du Droit international (Clunet) 26 Google Scholar; Lyon-Caen, G., “Le droit international et la coexistence pacifique des Etats relevant de systèmes politiques opposés” (1952), 79 Journal du Droit international (Clunet) 48.Google Scholar

48 International Court of Justice, Advisory Opinion of July 20, 1962. I. C. J. Reports, 1962, at 151; reported in (1962), 56 American Journal of International Law 1053. As to the subject-matter of the case, compare Kiselev, supra note 46.

49 (1962), 56 American Journal of International Law 1053, at 1080–2.

50 Ibid., 1078–80.

51 The Advisory Opinion is rendered with a 9 to 5 vote. Judge Koretsky and President Winiarski are joined in their dissenting votes, though not, however, in their reasons in support of their votes, by the French judge, Judge Basdevant and also Judges Moreno Quintana and Bustamante y Rivero. Judge Basdevant’s dissenting opinion is based on rather technical, procedural-type arguments, involving the “conviction that the request for opinion has not been presented in a proper fashion”. Ibid., 1082. And see Hogg, J. F., “Peace-Keeping Costs and Charter Obligations — Implications of the International Court of Justice Decision on Certain Expenses of the United Nations” (1962), 62 Columbia Law Review 1230;CrossRefGoogle Scholar Jennings, R. Y., “International Court of Justice. Advisory Opinion of July 20, 1962. Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter)” (1962), 11 International and Comparative Law Quarterly 1169.CrossRefGoogle Scholar

52 I. C. J. Reports, 1962, 151 at 230, per President Winiarski, dissenting: “The Charter has set forth the purposes of the United Nations in very wide, and for that reason too indefinite, terms. But — apart from the resources, including the financial resources, of the Organization — it does not follow, far from it, that the Organization is entitled to seek to achieve those purposes by no matter what means. The fact that an organ of the United Nations is seeking to achieve one of those purposes does not suffice to render its action lawful. The Charter, a multilateral treaty which was the result of prolonged and laborious negotiations, carefully created organs and determined their competence and means of action.

“The intention of those who drafted it was clearly to abandon the possibility of useful action rather than to sacrifice the balance of carefully established fields of competence, as can be seen, for example, in the case of voting in the Security Council. It is only by such procedures, which were clearly defined, that the United Nations can seek to achieve its purposes. It may be that the United Nations is sometimes not in a position to undertake action which would be useful for the maintenance of international peace and security or for one or another of the purposes indicated in Article 1 of the Charter, but that is the way in which the Organization was conceived and brought into being. …”

53 Ibid., at 268, per Judge Koretsky, dissenting: “I am prepared to stress the necessity of the strict observation and proper interpretation of the provisions of the Charter, its rules, without limiting itself by reference to the purposes of the Organization; otherwise one would have to come to the long ago condemned formula: ‘The ends justify the means’.”

54 Ibid., at 230, per President Winiarski, dissenting: “Reliance has been placed upon practice as providing justification for an affirmative answer to the question submitted to the Court. The technical budgetary practice of the Organization has no bearing upon the question, which is a question of law.… And ibid., at 232: —“… It is … difficult to assert, in the case before the Court, either that practice can furnish a canon of construction warranting an affirmative answer to the question addressed to the Court, or that it may have contributed to the establishment of a legal rule particular to the Organization, created praeter legem, and, still less, that it can have done so contra legem.”

55 See, in this regard, for example Hazard, J. N. and Shapiro, I., The Soviet Legal System. Post-Stalin Documentation and Historical Commentary (New York, 1962), 25 Google Scholar et seq.; and more generally see Romashkin, P. S. (ed.), Fundamentals of Soviet Law (Moscow, 1961), 87 et seq.Google Scholar; Kakol, K., Rozmaryn, S., and Senkowska, M. (eds.), Le Concept de la Légalité dans les Pays Socialistes, (Zeszyty Problemowe Nauki Polskiej XXI) (Wroclaw and Warsaw, 1961).Google Scholar

56 Weber, M., Law in Economy and Society (trans. Shils, E., ed. Rheinstein, M.; Cambridge, Mass., 1954).Google Scholar

57 Supra note 7.

58 In the excursus that follows I am very much indebted, as to basic methodology, to the elaboration of the “méthode de l’abstraction scientifique” made by the distinguished Socialist jurist, Stefan Rozmaryn. See generally Rozmaryn, S., La règle de la légalité [1958] Revue Internationale de Droit Comparé 70.Google Scholar In his thought-provoking study, Professor Rozmaryn points out that comparative Western and Socialist legal studies have been so largely fruitless up to date because of the insistence on basing those studies on the comparison of the abstract principles of the two competing legal systems, postulated a priori: he calls, instead, for a study of the intrinsic values of the two competing legal systems which, in his words, “ne sont plus ou moins rien d’autre que des effets et des conséquences qui peuvent résulter d’institutions existantes et fonctionnant dans un système juridique particulier …” Ibid., 6. For further examination of the question of methodology, see my own discussion, “Toward the Scientific Study of Values in Comparative Law Research, in Nadelmann, K. H., Mehren, A. T. von, and Hazard, J. N. (eds.), XXth Century Comparative and Conflicts Law. Legal Essays in Honor of Hessel E. Yntema (Leyden, 1961), 29 Google Scholar; and see also McDougal, M. S., “The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order” (1952), 61 Yale Law Journal 915 CrossRefGoogle Scholar; McDougal, and Lasswell, , “The Identification and Appraisal of Diverse Systems of Public Order” (1959), 53 American Journal of International Law 1 CrossRefGoogle Scholar; and compare Yntema, H. E., “Comparative Legal Studies and the Mission of the American Law School” (1957), 17 Louisiana Law Review 538.Google Scholar

59 See generally Lasswell, H. D., “The Prospects of Co-operation in a Bipolar World” (1948), 15 University of Chicago Law Review 877 CrossRefGoogle Scholar; Lasswell, supra note 3, The World Revolution of Our Time 32-35; McDougal and Feliciano, supra note 3, at 21–2.

60 Though as to the Korean episode generally, see McDougal, M. S. and Gardner, R. N., “The Veto and the Charter: An Interpretation for Survival” (1951), 60 Yale Law Journal 258.CrossRefGoogle Scholar

61 “[The principle of economy of power] prescribes that in the use of armed force as an instrument of national policy no greater force should be employed than is necessary to achieve the objectives toward which it is directed; or, stated in another way, the dimensions of military force should be proportionate to the value of the objectives at stake.” Osgood, R. E., Limited War: The Challenge to American Strategy (1957), 4 Google Scholar; and see generally McDougal and Feliciano, supra note 3, at 35. Compare, also, the post-Cuban crisis summation, by Assistant Secretary of State Harlan Cleveland, of President Kennedy’s action, as “the restrained use of power, the application of the gentlest form of power that serves the purpose … the most difficult and demanding exercise of power.” Cleveland, “A Most Dangerous Time” (1962), 47 Department of State Bulletin 875.

62 Compare my earlier discussion in Nadelmann, von Mehren, and Hazard (eds.), supra note 58, at 37.

63 Though one of the various policy alternatives canvassed and considered in President Kennedy’s special “crisis Cabinet” — the Executive Committee of the National Security Council — had been an air strike to eliminate the Cuban missile bases, either with or without warning. Alsop and Bartlett, supra note 43, at 20. And see the comments by Under Secretary of State George W. Ball: “The most direct and obvious way would have been to eliminate the offensive weapons by force — through a sudden air strike or an invasion. Such a response might have seemed clean, surgical, and definitive. We had ample power to achieve a decisive stroke with a minimum of cost. But President Kennedy chose not to take such action. … He chose instead a more limited response. …” Ball, “NATO and the Cuban Crisis”(1962), 47 Department of State Bulletin 831. And see also Leonard Meeker, C., “Role of Law in Political Aspects of World Affairs” (1963), 48 Department of State Bulletin 83, at 87Google Scholar: “The quarantine, though involving ultimately a resort to force if such should be necessary to stop ships that might be carrying offensive weapons, was a limited measure, carefully proportioned to the needs of the situation.”

64 The five-day process of debate and discussion, in the Executive Committee of the National Security Council, between the “hawks” (who favoured an air strike) and the “doves” (who favoured a blockade), is brilliantly described by Messrs. Alsop and Bartlett (supra note 43, at 20) in what is generally accepted as an Administration-inspired report (see, for example, “The Administration: The Stranger on the Squad”, Time Magazine, December 14, 1962, 17–20).

65 It is this consideration, presumably, that led President Kennedy, in his television and radio address to the nation on October 22, 1962, to categorise the problem presented by the surprise Soviet nuclear missile build-up in Cuba, as no longer a simple Cuban one but one involving direct Soviet-Western confrontation. President Kennedy's response amounts almost to a new “Kennedy Corollary” to the Monroe Doctrine, designed to restate its main principles in terms appropriate to the Cold War crisis: “It shall be the policy of this nation to regard any nuclear missile launched from Cuba against any nation in the Western Hemisphere as an attack by the Soviet Union on the United States, requiring a full retaliatory response upon the Soviet Union.” Text of address by President Kennedy, October 22, 1962, published in New York Times, October 23, 1962; also published, under title “The Soviet Threat to the Americas” (1962), 47 Department of State Bulletin 715, at 718. And see also Ball, supra note 63, at 831: See, in the same general vein, the reported comments of United States Ambassador to the United Nations, Adlai Stevenson, on the formal termination of the Soviet-Western confrontation over the Cuban missile bases: Szulc, Tad, “Cuban Crisis Officially Over, O.A.S. Informed”, New York Times Service, Washington, January 7, 1963 Google Scholar; quoted in The Globe and Mail, Toronto, January 8, 1963.

66 The Western argument here would necessarily be that, in Cold War terms, the clandestine disturbance by one side of the Cold War military status quo, through the surprise mounting of offensive missiles in the other side’s political sphere of influence, constitutes a ground for invocation of the provisions of Article 51 against the guilty party; and that, in terms of the stark realities of nuclear age missile technology, it would be too late if one had to wait on the actual firing of the offensive missiles before invoking the protection of Article 51. As to the “Right of Self-Defence” and the U.N. Charter generally, see Goodrich, L. M. and Hambro, E., Charter of the United Nations. Commentary and Documents (London, 2nd rev. ed., 1949), 299 et seq.Google Scholar; Brierly, J. L., The Law of Nations. An Introduction to the International Law of Peace (Oxford, 4th ed., 1949), 291 et seq.Google Scholar; Oppenheim, L., International Law. A Treatise. Vol. II, Disputes, War and Neutrality (London, 7th ed. by Lauterpacht, H., 1952), 154 et seqGoogle Scholar.

67 This generally broader conception of the ambit of permissible self-defence is most substantially represented, in Western thinking, by Stone, Julius and McDougal, Myres. See, for example, Stone, Aggression and World Order. A critique of United Nations Theories of Aggression (Berkeley and Los Angeles, 1958), especially at 4 et seq.Google Scholar; Stone, , Quest for Survival. The Role of Law and Foreign Policy (Cambridge, Mass., 1961) 94 et seq.CrossRefGoogle Scholar; McDougal and Feliciano, supra note 3, at 121 et seq. The countervailing Soviet conception, with an eye no doubt to the rather close Soviet-German relations from 1939 to 1941, and the actual circumstances of the rupture in 1941 which began with the German invasion of the Soviet Union, together with the full participation of the Soviet Union in the framing, after 1945, of the Nuremberg Tribunal count against “aggressive war” in the trial of the principal Nazi leaders, gives unusual stress to the time sequence and the question of who first commits certain acts for purposes of the legal distinction between “self-defence” and “aggression.” See, for example, Kozhevnikov (ed.), supra note 5, at 404; and Baginyan, K. A., Sorok Let Borbi Sovetskogo Gosudarstva za Zapreshchenie Agressii [1958] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 169 Google Scholar. Sharmazanashvili contends in particular for a narrow interpretation of the ambit of Article 51 of the United Nations Charter: Sharmazanashvili, G. V., Ponyatie Samopomoshchi v Mezhdunarod-nom Prave [1959] Sovetskii Ezhegodnik Mezhdunarodnogo Prava 300 Google Scholar. McDougal and Feliciano criticise this particular Soviet position as involving “an overemphasis on material acts of coercion and on a mechanistic conception of priority; concomitantly, they fail to take into account other factors which rationally are equally relevant, factors such as the nature of the objectives of the initiating and responding participants and the character or intensity of the coercion applied.” McDougal and Feliciano, ibid., 145.

68 In connection with the formal termination of the Soviet-Western confrontation over the Cuban missile bases, and the comments by the United States Ambassador to the United Nations, Adlai Stevenson, to the Organization of American States, there seems an indication of an Administration preference, henceforward for treating the Cuban affair within the more modest cluster of inter-American special legal arrangements: Tad Szulc, supra note 65.

69 Indeed, Legal Adviser to the State Department, Abram Chayes, in a public address delivered on November 3, 1962, seems to have been at pains to stress that President Kennedy had not formally invoked the ‘right of self-defence’ : “Article 51 affirms that nothing in the charter, including article 2(4), impairs ‘the inherent right of individual or collective self-defence if an armed attack occurs’. The quarantine action was designed to deal with an imminent threat to our security. But the President in his speech [the President’s speech to the Nation on October 22, 1962] did not invoke article 51 or the right of self-defence. And the O.A.S. acted not under article 3, covering cases of armed attack, but under article 6, covering threats to the peace other than armed attack.

“Self-defence, however, is not the only justifiable use of force under the charter. Obviously, the United Nations itself could sanction the use of force to deal with a threat to the peace. So it did in Korea and in the Congo. We accept vise of force in these instances as legitimate for two reasons. First, all the members have constituted the United Nations for these purposes. In signing the charter they have assented to its powers and procedures. Second, the political processes by which the U.N. makes a decision to use force give some assurance that the decision will not be rashly taken.

“I submit that the same two factors legitimise use of force in accordance with the O.A.S. resolution dealing with a threat to the peace in the hemisphere.” Chayes, A., “The Legal Case for U.S. Action on Cuba” (1962), 47 Department of State Bulletin 763, at 764-5Google Scholar. And see also Meeker, supra note 63, at 87;–8.

70 Though the traditional international law categories are perhaps less limited, doctrinally, than was occasionally suggested in public discussion during the Cuban affair: see generally Colombos, C. J., The International Law of the Sea (London, 4th rev. ed., 1959), 402 et seq., 649 et seq.Google Scholar; McDougal and Feliciano, supra note 3, at 137, 490 et seq.; Chayes, supra note 69, at 763. I take it this is what Mr. Chayes means in arguing for a “constitutional lawyer‘s approach” to international law: that the traditional international law category of “pacific blockade” should not be limited, in interpretation, to the space-time dimension of the particular 19th century background facts in which, historically, it had its first origins, but that instead it should be interpreted generically in the context of present-day societal facts, including the Cold War and the condition of Bipolarity: Chayes, ibid., at 765.

71 As to the significance, at international law, of the failure of a State to protest against an alleged violation of its rights, see especially the judgment of the World Court in the Anglo-Norwegian Fisheries case, I. C. J. Reports, l95l, 139. And see generally Oppenheim, supra note 66, Vol I. Peace (London, 8th ed. by H. Lauterpacht, 1955), 874 et seq.

72 Inter-American Treaty of Reciprocal Assistance; signed at Rio de Janeiro, September 2, 1947; entered into force, December 3, 1948; published in 21 U.N. Treaty Series 93. The relevant sections of the Treaty, for present purposes, are Article 6 which authorises collective action “If the inviolability or the integrity of the territory or the sovereignty or political independence of any American State should be affected by an aggression which is not an armed attack or by an extra-continental or intra-continental conflict, or by any other fact or situation that might endanger the peace of America …;” and Article 8 which authorises various corrective measures, including “use of armed force”. Under Article 3(1) of the Treaty, “The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States and, consequently, each one of the said Contracting Parties undertakes to assist in meeting the attack in the exercise of the inherent right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations.”

73 Charter of the Organization of American States; signed at Bogota, April 30, 1948; entered into force, December 13, 1951; published in 119 U.N. Treaty Series 48. See especially Chapter V, “Collective Security”, Articles 24 and 25, of the Charter of the Organisation, which authorise measures of “continental solidarity or collective self-defence.” And see Chayes, supra note 69, at 764-5; H. Cleveland, Power and Diplomacy (1962), 47 Department of State Bulletin 759, at 761-2; Meeker, supra note 63, at 87–8.

74 New York Times, Sunday, October 28, 1962. T. Szulc, “U.S. Action on Cuba Stirs Hemisphere to Unity”, ibid., 6E. And see “American Republics Act to Halt Soviet Threat to Hemisphere”, Statement by Secretary of State Dean Rusk to special meeting of the Council of the Organization of American States, October 23, 1962; 47 Department of State Bulletin 720 (1962). Text of Resolution adopted by Council of the Organization of American States, (by a vote of 19 to 0), October 23, 1962, ibid., at 722–3.

75 The “bases-swapping” proposal of Premier Khrushchev was contained in a letter to President Kennedy dated October 27, 1962, (apparently first broadcast by Moscow radio at 10 a.m. (Washington time) on October 27, 1962); Alsop and Bartlett, supra note 43, at 16. The text of Premier Khrushchev’s message is published, in translation, in 47 Department of State Bulletin 741–743 (1962).

76 As Alsop and Bartlett explain it, Attorney-General Robert Kennedy, in the Executive Committee of the National Security Council, suggested that President Kennedy apply the “Trollope ploy” — that is, simply interpret Premier Khrushchev‘s letter of the evening of October 26, 1962, as “a proposal for an acceptable deal, ignoring all the other implications” — and the President agreed to this immediately: “‘If I understand you correctly, …’ he wrote, then the deal was on. If Khrushchev would remove his offensive weapons from Cuba, under suitable conditions, the blockade would end, and Cuba would not be invaded. The letter was sent. …” Alsop and Bartlett, supra note 43, at 18. And see text of President Kennedy’s letter to Premier Khrushchev, dated October 27, 1962; published in the New York Times, October 29, 1962, at 16; also published in (1962), 47 Department of State Bulletin 743.

77 See text of message by Premier Khrushchev to President Kennedy, on October 28, 1962; published in the New York Times, October 29, 1962, at 16; also published in (1962), 47 Department of State Bulletin 743–745.

78 According to New York Times despatches from Washington dated January 20, 1963, the United States hoped to remove its Jupiter missile bases from both Turkey and Italy within six months, within which time it expected to station Polaris missile submarines in the Mediterranean under command of the North Atlantic Treaty Organization. In effect this would mean the replacement of the missile bases’ deterrent effect by the Polaris submarines’ nuclear strike power. The despatch went on: “There are 15 missiles in Turkey and 30 in Italy. Military leaders here have long considered them outdated and also vulnerable because their locations are known. Removal of these missiles was under consideration here some time before the crisis with the Soviet Union last fall over its emplacement of ballistic missiles in Cuba.

“However, during the negotiations that resulted in the withdrawal of the Soviet missiles from Cuba, the United States rejected a swap of removal of the Italian and more especially of the Turkish missile bases in exchange for Soviet withdrawal.” Hedrick Smith, “Turkey Willing for U.S. to Remove Missiles”, New York Times Service, Washington, January 20, 1963; quoted in The Globe and Mail, Toronto, January 21, 1963.

79 As a parallel example of a Soviet-Western, Cold War, Alphonse-Gaston Act, with equally happy consequences, note the dramatic denouement to President Kennedy’s imposition of the naval “quarantine” of Cuba. As Alsop and Bartlett describe it: “One of the [Executive Committee] members recalls: ‘There wasn’t one of us in that room who wasn’t pretty sure that in a few hours we’d have to sink one of those Russian ships’.

“Before that happened, the President was determined to give his opposite number time to think. He ordered that the Navy screen around Cuba should not intercept a Russian ship until absolutely necessary. ‘Send that order in the clear’, he said, perhaps recalling his own troubles as a junior naval officer with complex code forms. Ί want it to go through without delay’.

“The day wore on. Reports came in which indicated that some of the Soviet ships appeared to have changed course, and that others had gone dead in the ocean. No one recalls a precise and jubilant moment when it became apparent that Khrushchev’s ships were not going to challenge the American blockade after all.” Alsop and Bartlett, supra note 43, at 16.

On the Cuban situation generally, see Cuba and the Rule of Law (International Commission of Jurists, Geneva, 1962). On the earlier, 1961, Cuban crisis, see Wright, Q., “Intervention and Cuba in 1961”, [1961] Proceedings of the American Society of International Law 2 Google Scholar; A. J. Thomas, Jr., “The Organization of American States and Subversive Intervention”, ibid., 19; Falk, R. A., “American Intervention in Cuba and the Rule of Law” (1961), 22 Ohio State Law Journal 546 Google Scholar. And see also de Loubresse, C. Garreau, “Les nationalisations cubaines”, [1961] Annuaire Français de Droit International 215 CrossRefGoogle Scholar; de Loubresse, C. Garreau, “De quelques éléments de la législation de la République de Cuba en matière d'intervention économique et de nationalisation”, [1961] Revue Internationale de Droit Comparé 773.CrossRefGoogle Scholar

80 Compare Lachs, supra note 27.

81 As to this, see generally Northrop, F. S. C., European Union and United States Foreign Policy. A Study in Sociological Jurisprudence (New York, 1954), 138 et seqGoogle Scholar.

82 “… Soviet theoreticians … saw in co-existence for a long time merely a temporary phase in the development of relations between countries with different social systems. This ‘temporariness’ of co-existence has been manifest particularly in the thesis about the creation of a socialist international law in the relations between socialist countries which leads to a negation of universal international law and which was being formulated fairly resolutely by individual Soviet theoreticians in the 1955’s. …

“Today, though, without negating the existence of a universal international law but demanding its implementation on the basis of the application of the principles of peaceful co-existence between all States, Soviet theory sees in the principle of proletarian internationalism the basis for a new socialist international law, whose inceptions occur in the current international-legal regulation of relations between socialist countries.” Sahovic, M., “The conceptions of the contemporary theory of International Law on Coexistence” (1961), 12 New Yugoslav Law 73, at 76–7.Google Scholar

83 “… Any attempt to ask the implementation of the principles of co-existence in the relations between socialist countries is regarded as revisionism and the Programme of the League of Communists of Yugoslavia is criticised in that connection.” M. Sahovic, supra note 82, at 77. For such criticisms by Soviet jurists, see Tunkin, supra note 24; Korovin, supra note 22. For Yugoslav counters to these Soviet criticisms, see Bartos, M., “Quelques Observations sur la Coexistence Pacifique Active” (1960), 7 Jugoslovenska Revija za Medunarodno Pravo 205 Google Scholar. And see generally Campbell, J. C., “Yugoslavia: Crisis and Choice” (1963), 41 Foreign Affairs 384 CrossRefGoogle Scholar; Bromke, A., “Nationalism and Communism in Poland” (1962), 40 Foreign Affairs 635 CrossRefGoogle Scholar.

84 As to legal relations within the Soviet Bloc system, see generally Loeber, D., “Die Rechtsstruktur des Ostblocks” (1960), 6 Osteuropa-Recht 196 Google Scholar; Schultz, L., “Der Sowjetische Begriff der Volksdemokratie” (1958), 4 Osteuropa-Recht 297 Google Scholar; Pfuhl, E., “Rechtsformen der Aussenwirtschaftsbeziehungen der Ud SSR zu den Volksdemokratien” (1955), 1 Osteuropa-Recht 9 Google Scholar; Uschakow, A., “Vereinheitlichung des Internationalen Privatrechts im Ostblock durch Staatsverträge” (1961), 7 Osteuropa-Recht 161 Google Scholar; Kulski, W. W., “The Soviet System of Collective Security compared with the Western System” (1950), 44 American Journal of International Law 453 CrossRefGoogle Scholar. And see generally Brzezinski, Z., The Soviet Bloc, Unity and Conflict (Cambridge, Mass., 1960)Google Scholar. See also Karkhin, G., “Socialist Community: Possibilities and Prospects”, International Affairs (August, 1962) 16 Google Scholar; Vasyanin, Y. L., “The European People's Democracies in 1965”, International Affairs (August, 1962) 102 Google Scholar; Kuzminov, I., “Economic Laws of World Socialism”, International Affairs (November, 1962) 57 Google Scholar; Laquer, W. Z., “The End of the Monolith: World Communism in 1962” (1962), 40 Foreign Affairs 360.CrossRefGoogle Scholar

85 As to the legal “honoratiores”, see Max Weber, supra note 56.

86 Assistant Secretary of State Harlan Cleveland, for example, rightly points to the quite extraordinary degree of active United States assistance in the initiation and the carrying on of the movement for the granting of political independence and self-government in the “new” countries of South-East Asia and Africa: Cleveland, , “Power and Diplomacy” (1962), 47 Department of State Bulletin 759, at 760Google Scholar. For some imaginative Socialist thinking, in this same general direction, see Bartos, M., “The Characteristics of the New Trends in International Law” (1961), 12 New Yugoslav Law 7 Google Scholar; and see also the comments by J. Stancvnik, ibid., 89.

87 Supra note 15.

88 As to the problems in any such undertaking, see generally McWhinney, supra note 4, at 965–970; Wyzner, E., “Selected Problems of the United Nations Programme for the Codification and Progressive Development of International Law” [1962] Proceedings of the American Society of International Law 90 Google Scholar; E. L. Kerley, “United Nations Contribution to Developing International Law”, ibid., 99; Stone, Julius, “On the Vocation of the International Law Commission” (1957), 57 Columbia Law Review 16 CrossRefGoogle Scholar. As a case study of the difficulties and also the challenges, in one specific area that seems especially ripe for Soviet-Western legal co-operation, compare Korovin, E. A., “Peaceful Co-operation in Space”, International Affairs (March, 1962) at 61 Google Scholar; and Gardner, R. N., “Co-operation in Outer Space” (1963), 41 Foreign Affairs 344; and see also Crane, supra note 10.CrossRefGoogle Scholar