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Policy and Impartiality: The Uneasy Relationship in International Law

Published online by Cambridge University Press:  22 May 2009

Rosalyn Higgins
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Review Essays
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International Organization , Volume 23 , Issue 4 , Fall 1969 , pp. 914 - 931
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Copyright © The IO Foundation 1969

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References

1 But Professor Falk's forthcoming book, The Status of Law in International Society, to be published by Princeton University Press in the fall of 1969 contains chapters on each of these themes. And see also Falk, Richard A., “Jurisdiction, Immunities and Act of State: Suggestions for a Modified Approach,” in Falk, Richard A. and Nordstrom, Robert J., Essays on International Jurisdiction (Columbus: Ohio State University Press, 1961)Google Scholar; Falk, Richard A., “International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order,” Temple Law Quarterly, Spring 1959 (Vol. 32, No. 3), pp. 295–320Google Scholar; Falk, Richard A., “The Relevance of Contending Systems of Public Order to the Delimitation of Legal Competence,” Proceedings of the American Society of International Law, 53rd annual meeting, Washington, 04 30—05 2, 1959, pp. 173—181Google Scholar; Falk, Richard A., “The Aftermath of Sabbatino,” Background Papers and Proceedings of the Seventh Hammarskjöld Forum, Case Studies on the Role of Law in the Setdement of International Disputes, ed. Tondel, Lyman M. Jr (Dobbs Ferry, N.Y: Oceana Publications [for die Association of the Bar of the City of New York], 1965), pp. 1–70Google Scholar; Falk, Richard A., “Towards a Theory of the Participation of Domestic Courts in die International Legal Order: A Critique of Banco Nacional de Cuba v. Sabbatino,” Rutgers Law Review, Fall 1961 (Vol. 16, No. 1), pp. 1–41Google Scholar; Falk, Richard A., “The Case of Banco Nacional de Cuba v. Sabbatino before the Supreme Court of the United States,” Howard Law Journal, Spring 1963 (Vol. 9, No. 2), pp. 116—134Google Scholar; Falk, Richard A., “The Complexity of Sabbatino,” American Journal of International Law, 10 1964 (Vol. 58, No. 4), pp. 935–951CrossRefGoogle Scholar; Falk, Richard A., The Role of Domestic Courts in the International Legal Order (Syracuse: Syracuse University Press, 1964)Google Scholar; Falk, Richard A., “Revolutionary Nations and the Quality of International Legal Order,” in Kaplan, Morton A. (ed.), The Revolution in World Politics (New York: John Wiley and Sons, 1962), pp. 310–331Google Scholar; Falk, Richard A., “World Revolution and International Order,” in Friedrich, Carl J. (ed.), Revolution (Nomos VIII) (Yearbook of die American Society for Political and Legal Philosophy) (New York: Atherton Press, 1967), pp. 154–177Google Scholar; Falk, Richard A., “Historical Tendencies, Modernizing and Revolutionary Nations and International Legal Order,” Howard Law Journal, 1962 (Vol. 8, No. 2), pp. 128–151Google Scholar; and Falk, Richard A., “The New States and International Legal Order,” Hague Recueil, 1966 (Vol. 2), pp. 1—102Google Scholar.

2 Chapter 4, “International Law of Internal War: Problems and Prospects”; Chapter 9, “Operation Stanleyville: A Lesson in Third World Politics”; and Chapter 10, “Legislative Intervention by the United Nations in the Internal Affairs of Sovereign States.”

3 “Banco National de Cuba v. Sabbatino” in United States Reports (Washington: U.S. Government Printing Office, 1964), Vol. 376, pp. 398s (expropriation, act of state doctrine)Google Scholar.

4 The Japanese Journal of International Law (Tokyo: Japanese branch of International Law Association, 1964), pp. 212–252Google Scholar (the legality of the use of nuclear weapons).

5 Self-defense, self-determination, aggression.

6 The North Sea Continental Shelf, Judgment, l.C.J. Reports 1969.

7 See, for example, his writings on the work of Nicholas Katzanbach, Morton Kaplan, and Julius Stone, in Falk, Richard A., “The Reality of International Law,” World Politics, 1962 (Vol. 14, No. 2), pp. 353—363CrossRefGoogle Scholar; on McDougal, Myres in American Journal of Comparative Law, 1961 (Vol. 10, No. 3), pp. 297–305Google Scholar; and on McDougal, and Feliciano, Florentino in Natural Law Forum, 1963 (Vol. 8), pp. 171–184Google Scholar, and Falk, Richard A., “On Treaty Interpretation and the New Haven Approach: Achievements and Prospects,” Virginia Journal of International Law, 04 1968 (Vol. 8, No. 2), pp. 323–355Google Scholar.

8 Falk, , American Journal of Comparative Law, Vol. 10, No. 3, p. 299Google Scholar.

9 Falk believes that the importance of communication is accentuated by the decentralized nature of the present international system. See Falk, , Virginia Journal of International Law, Vol. 8, No. 2, p. 327Google Scholar.

10 Thus Falk has found helpful in analyzing problems of treaty interpretation to refer in some detail to Susan Sontag's views on the function and results of interpretation in the arts. See ibid., pp. 327–328.

11 See his comments, in this context, on Lessing's, DorisThe Golden Notebook. (New York: Simon and Schuster, 1962)Google Scholar. Asserting the relevance of illuminations made possible by literary consciousness, Falk says of social scientists:

It is not that we can dispense with these specialists, but we must come to recognize that ihey are not able by themselves to form a just response to all that imperils our moral and physical existence.

12 Falk, , World Politics, Vol. 14, No. 2, p. 354Google Scholar. We return later to Falk's views on the usefulness of systems analysis. See below, pp. 928–929.

13 See, e.g., Bull, Hedley [with the cooperation of a study group at the Institute for Strategic Studies, London], The Control oj the Arms Race: Disarmament and Arms Control in the Missile Age (Studies in International Security, No. 2) (1st ed.; New York: Frederick A. Praeger, 1965), Chapter 9Google Scholar; and Dougherty, James E. and Lehman, J. F. Jr, Arms Control for the Late Sixties (Princeton, N.J: D. Van Nostrand Company, 1967), p. 147Google Scholar.

14 See Falk, Richard A. and Mendlovitz, Saul H., The Strategy of World Order (4 vols.; New York: World Law Fund, 1966)Google Scholar; and especially Falk, Richard A. and Mendlovitz, Saul H., “Towards a Warless World: One Legal Formula to Achieve Transition,” Yale Law Journal, 12 1963 (Vol. 73, No. 2), pp. 399–424CrossRefGoogle Scholar. The most celebrated proposals for structural change are to be found in Clark, Grenville and Sohn, Louis B., World Peace through World Law (2nd rev. ed.; Cambridge, Mass: Harvard University Press, 1962)Google Scholar.

15 This reviewer remains a skeptic about the utility of either mounting blueprints for a structurally altered society or attempting to provide bridges from the present system to a structurally altered one: We do not yet have the techniques to master in any meaningful way the variables which have to be anticipated and understood in such an exercise; and it distracts from the pressing need to harness every potential which the legal process offers in the present system.

16 Draft chapter 2 of Richard A. Falk's forthcoming book, The Status of Law in International Society, which he kindly made available to the reviewer.

17 See below, pp. 928–931.

18 Boulding, Kenneth E., “The Learning and Reality-Testing Process in the International System,” Journal of International Affairs, 1967 (Vol. 21, No. 1), p. 14Google Scholar.

19 And this is evidenced in the essay, “Some Thoughts on the Jurisprudence of Myres S. McDougal,” to appear in Falk's forthcoming book, The Status of Law in International Society.

20 Falk, , American Journal of Comparative Law, Vol. 10, No. 3, p. 297CrossRefGoogle Scholar.

21 Unlike in the United Kingdom where there is little interest in, and a certain hostility to, the notion of international law as an instrument for the promotion of community policies. The tendency is rather to regard law as a neutral set of rules, the impartial application of which will guarantee protection of the weak and strong alike.

22 Falk, , American Journal of Comparative Law, Vol. 10, No. 3, pp. 298–299Google Scholar.

23 Ibid., p. 299.

24 The question of “schools” is in part in the eye of the beholder. Falk, asserts the existence of the New Haven school in his article in the Virginia Journal of International Law, Vol. 8, No. 2, p. 330, n. 11Google Scholar. He does not indicate who he regards as belonging to this school but in listing certain works identifies at least by implication D. Johnston, W. Burke, F. Feliciano, I. Vlasik, and B. Murty. I believe that a further breakdown is possible: The above together of course with McDougal, Lass well, and Riesman themselves are indeed engaged on a coordinated enquiry based on a common mediodology. But there is also an “outer circle” of international lawyers who have been greatly influenced by McDougal's thinking either through working at Yale University or through collaboration with him. They may and do have diverse styles and opinions, their use of the methodology is approximate rather than precise, and their conclusions are not necessarily the same; but they share, consciously, common foundations. Richard Falk, Oscar Schachter, and Fred Goldie would seem to fall in this category. This reviewer would also perceive herself as in the same position.

25 See Falk, Legal Order, Chapter 3, “McDougal and Feliciano on Law and Minimum World Public Order”; review of M. S. McDougal and Associates” Studies in World Public Order, in Falk, , American Journal of Comparative Law, Vol. 10, No. 3, pp. 297–305CrossRefGoogle Scholar; Falk, , World Politics, Vol. 14, No. 2, p. 353CrossRefGoogle Scholar; and Falk, , Virginia Journal of International Law, Vol 8, No. 2, pp. 323–355Google Scholar.

26 Legal Order, p. 87. See also the illuminating article by McDougal, Myres S., Lasswell, Harold D., and Reisman, W. Michael, “Theories about International Law: Prologue to a Configurative Jurisprudence,” Virginia Journal of International Law, 04 1968 (Vol. 8, No. 2), p. 281Google Scholar.

27 For example, in his assertion of the legal basis for the hydrogen bomb tests on the high seas. See McDougal, Myres S. and Schlei, Norbert A., “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” Yale Law Journal, 04 1955 (Vol. 64, No. 5), pp. 648–661CrossRefGoogle Scholar.

28 McDougal, Myres S. and Fcliciano, Florentine P., Law and Minimum World Public Order: The Legal Regulation of International Coercion (New Haven, Conn: Yale University Press, 1961), p. 377Google Scholar.

29 On the question of Vietnam this reviewer's position is closer to Falk than to McDougal though certain important reservations remain.

30 See Falk, Legal Order, Chapter 4, “The International Law of Internal War: Problems and Prospects”; and Falk, Richard A., Law, Morality, and War in the Contemporary World (Princeton Studies in World Politics, No. 5) (New York: Frederick A. Praeger [for the Center of International Studies, Princeton University], 1963)Google Scholar.

31 See, e.g., Legal Order, pp. 47, 95.

32 McDougal, , Lasswell, , and Reisman, , Virginia Journal of International Law, Vol. 8, No. 2, p. 281, n. 325Google Scholar.

33 See above, pp. 921–922.

34 Falk is here addressing himself to the problem of treaty interpretation. (Falk, , Virginia Journal of International Law, Vol. 8, No. 2, pp. 326–327Google Scholar.)

35 Ibid., p. 326. See also Falk, Legal Order, Chapter 4, and Falk, Law, Morality, and War in the Contemporary World.

36 Thus, while supporting in principle the McDougal thesis over the Falk thesis, this reviewer would have strong reservations about McDougal's views on the representation of the People's Republic of. China (Communist China) in the United Nations and on the legality of the Vietnam war. She would share McDougal's conclusions, though not all the arguments he uses to reach them, in respect of the legality of hydrogen bomb testing on the high seas, the legality of die 1962 Cuban-Soviet quarantine, and the unsatisfactory nature of the United States Supreme Court's judgment in the Sabbatino case. She would share Falk's dismay that the Congressional amendment, so strongly supported by McDougal, improperly singles out expropriation of property rather dian any or all breaches of international law, but this does not detract from the failure of the Court seriously to examine die state of the law on compensation for expropriation. In any event, the element of discrimination seems clearly to indicate a breach o£ inter-national law which the Supreme Court unfortunately protected behind the act of state doctrine. See Higgins, Rosalyn, Conflict of Interests (London: Bodley Head, 1965), Chapter 2Google Scholar; Falk, , American Journal of International Law, Vol. 58, No. 4, pp. 935–951CrossRefGoogle Scholar; and McDougal, Myres, “Jurisprudence for a Free Society,” Georgia Law Review, 1968 (Vol. 1, No. 1), p. 1Google Scholar.

37 He has referred to “the distorting imprint of cold-war partisanship.” (Falk, , Virginia Journal of International Law, Vol. 8, No. 2, p. 331Google Scholar.)

38 Ibid., p. 351

39 Ibid., p. 345. He also urges, in the context of treaty interpretation, that more emphasis be given to the nature of the subject matter of the treaty.

40 Falk, Richard A., “The Adequacy of Contemporary Theories of International Law—Gaps in Legal Thinking,” Virginia Law Review, 03 1964 (Vol. 50, No. 2), p. 232CrossRefGoogle Scholar.

41 Higgins, Rosalyn, “Policy Considerations and the International Judicial Process,” International and Comparative Law Quarterly, 01 1968 (Vol. 17), p. 62CrossRefGoogle Scholar.

42 Falk, , World Politics, Vol. 14, No. 2, p. 354Google Scholar.

43 See Falk's, forthcoming book, The Status of Law in International Society, Vol. 2, Chapter 2Google Scholar.

44 Falk, , Virginia Journal of International Law, Vol. 8, No. 2, p. 345Google Scholar.

45 That Falk and McDougal understand each other so well is immensely rewarding for those who care to follow this intensely productive debate. McDougal classifies Falk as a factoralist (i.e., one who employs limited factor analysis) and concedes that “limited factoralists have been more sensitive to the needs of clarifying the several standpoints of observation than have other groups of theorists.” But McDougal believes that while it is important to clarify the observational standpoint, the assumption that a national viewpoint protects only national interests is incorrect. Writing of die distinction between national and international interests, McDougal says: “What this false dichotomy obscures is that the most important ‘national’ interests a state may have are the common, inclusive interests it shares with other states.” (McDougal, Lasswell, and Reisman, , Virginia Journal of International Law, Vol. 8, No. 2, pp. 280 and 281, n. 325.)Google Scholar

46 Falk's, forthcoming book, The Status of Law in International Society, Vol. 3, Chapter 2Google Scholar.

47 Extraordinarily little has yet been done in this field. Kaplan, Morton and Katzanbach, Nicholas, in The Political Foundations of International Law (New York: John Wiley & Sons, 1961)Google Scholar, make use of systems analysis in the very broadest sense. And intellectual contributions have been made by Hoffmann, Stanley, “International Systems and International Law,” in Knorr, Klaus and Verba, Sidney (ed.), The International System: Theoretical Essays (Princeton, N.J: Princeton University Press, 1961), pp. 205–237Google Scholar; and Coplin, William D., “International Law and Assumptions about the State System,” World Politics, 07 1965 (Vol. 17, No. 4), pp. 615–634CrossRefGoogle Scholar. But the use by lawyers of this technique has to date been at a generalized and untechnical level. Misconceptions about the nature of law can also persist in those professionally engaged in systems analysis: See, e.g., Burton, J. W., Systems, States, Diplomacy and Rules (Cambridge: Cambridge University Press, 1968)Google Scholar.

48 Falk, , World Politics, Vol. 14, No. 2, p. 354Google Scholar.

49 Falk, , Virginia Law Review, Vol. 50, No. 2, p. 232Google Scholar.

50 Falk, , American Journal of Comparative Law, Vol. 10, No. 3, p. 299Google Scholar.