THE

FUTURE OF PUBLIC INTERNATIONAL LAW

AND OF
THE INTERNATIONAL LEGAL SYSTEM
IN THE CIRCUMSTANCES OF TODAY
First Part of an Abstract of a Special Report by
SIR GERALD FITZMAURICE
Rendered to the Institute of International Law at its Centenary Session
in Rome, September, 1973
(prepared by the author)
[NOTE-After consultation with the Secretary-General of the
Institute of International Law, this abstract has been produced as,
inter alia, a means of making the work of the Institute more widely
known. The full text appears in the Centenary Volume of its
publications a>, being here cut down by about one half.
Most of the footnotes in the complete version have been
omitted, any essential references being inserted in the body of the
text. Those retained figure under their original numbering. A dot(*)
in the text where a footnote number would have appeared indicates
the omission of one. There are a few new notes, lettered not
numbered. The original headings and paragraph numbers have been
retained, omissions being indicated. Passages paraphrased, sum-
marized or consisting of linking matter are placed in square
brackets. The Annexes to the Report are omitted.
The second part of the abstract will appear in the next issue of
International Relations.]
DEDICATION
to
the Memory
of
CHARLES DE VISSCHERl-sage, seer, and incomparable master of us all;
WOLFGANG FRIEDMANNZ-friend of mankind, victim of man, oblation
for our times.
PART 1
rg~~g~ y,~7~7
’

THE PAST, THE PRESENT

&dquo;Time present and time past

Are both perhaps present in time future,
And time future contained in time past.&dquo;
T. S. ELLIOT, Burnt Norton

&dquo;The present is great with the future.&dquo;

LEIBNITZ

a) Livre du Centenaire 1873-1973, Editions S. Karger, S.A. Basle.

1President of Honour of the Institute since 1954; a former judge of the
Permanent Court of International Justice and of the International Court
of Justice; Professor emeritus in the University of Louvain; member of
the Royal Academy of Belgium; died on 3 January 1973 in his 89th year.
2Dr. jur. Berlin (1930); LL.M., and LL.D., London (1936 and 1947);
member of the English Bar; professor of international law, Columbia
University, New York City; member cf the American Academy of Arts
and Sciences; murdered in the streets of New York on 20 September 1972,
aged 65.
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 A - ~1 p proach and coverage
[1. After drawing attention to the difficulties, in a Report of
this kind, of steering between the Scylla of the diffuse and the
Charybdis of over-compression, and having indicated what aspects
of public international law will, accordingly, not be dealt with, the
text proceeds as follows : )]

2. The lex generalis our chief concer~-Furtherrnore, we shall

treat of the future of international law mainly (though not exclu-
sively) from the point of view of what is not too happily known as
&dquo;customary&dquo; international law., and the &dquo;general principles of
law&dquo; as specified in paragraph 1 (c) of Article 38 of the Statute of
the International Court of JusticeO. By &dquo;customary&dquo; international
law we shall, for present purposes, understand all those branches
and aspects of the law that are not exclusively dependent for their
formulation and legal force on treaty or convention, in short,
-

which are in the nature of lex generalis rather than lex specialis.
The reason for this limitation is very simple: any topic, however
novel and complex, in respect of which the rules for its formulation
and legal force depend, or must depend, upon treaty or convention,
raises no problem of principle as regards the future of international
law as a discipline. A treaty about such a topic ranks, initially at
least, as lex specialis. Although there may be difficulties about it,
these will not be primarily legal in character, but technical, econ-
omic, sociological, political, etc. The fact that the topic concerned
may be novel and complex say the regime of outer space, or the
-

regime of the ocean bed beyond normal continental shelf entitle-

ments merely means that it may be harder to decide (which
-

means harder to agree) on what is to go into the treaty. This applies

with even greater force to such matters as the probably, though not

certainly, prospective world population explosion, and the possibly

impending exhaustion of the world’s supplies of raw materials,
power resources, etc., and many other matters.

[These, the Report states, are matters to be dealt with by treaty

or by means of institutions set up by treaty rather than by
customary international law,so that it would be &dquo;the future of the
general law of treaties that ...... would be relevant here&dquo;. It
then continues : ]
3. The nature of novelty The jurist and the lex specialis -
-

We believe this analysis to be valid, for of one thing we can be

-

sure, namely that in much less time than will elapse before another
centenary of our Institute is attained, all the topics at present novel
will have become only too familiar and will have been followed by
other much newer ones. In novelty as such there is nothing intrinsi-
cally new, just as there is nothing unprecedented in change as such8
-

a matter we shall revert to later on . As regards any particular

topic, the law of which depends, or must depend, on treaty or

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 convention, its legal future will, normally, be equally dependent on
treaty, i.e., on further treaties, or amendments to existing ones*.
But these will deal only with the future of the particular topic, and
this will not be foreseeable, or even usefully discussable, except by
an expert in the field of that topic, not by the jurist, whose task in
such matters is mainly to find the appropriate way of doing what
the experts decide upon, ...... for-as has been well said &dquo;only
in exceptional cases, and by coincidence, does the international law
expert have the specialist qualifications required for drafting a
convention concerning the conservation of fisheries, or the delimi-
tation of continental shelves, or the international control over the
use of nuclear reactors, or the formulation of minimum standards
of nutrition and sanitation ... [hence] ... the international lawyer
-
as a specialist in international legal techniques-must co-operate
with the expert in the particular field&dquo;. (W. Friedmann in Hague
Academy Recueil, 1969, Vol. II, at p.114).
[4. The Place of lex specialis-Elaboration of the same theme.]
5. Need for a truer perspective Doubtless it can occur that
-

if a new topic is a relatively simple one, and if the lines on which

it must probably develop are, or become, reasonably clear, it will pass
quite quickly straight into the ambit of customary international law,
without the intermediary of a treaty or convention....... But the
great majority of the new topics that are prominent today, on
account of recent or probable developments in the scientific, tech-
nological and kindred fields, are not of this kind. There is no, or
very little, existing law about them, - they are too complex and
controversial to be easily developed through the medium of
customary law, they can only be handled by means of a treaty or
-

convention. This fact not only eases matters, but helps us to see
them in a truer perspective and to preserve a sense of proportion;
- for we are apt to be dazzled and bewildered by these new devel-
opments and almost, as lawyers, to be thrown into a panic about
them. International law, we are likely to feel, must take account of
them or lose face to an unacceptable extent. We can however spare
our pains and save ourselves from &dquo;past regrets and future fears&dquo;O
in the knowledge that international law will indeed take account of
these new topics by embodying the rules relating to them in treaty
form as lex specialis, so soon as the experts are agreed as to what
those rules should be. But that is their responsibility, not that of
the jurist.

8
Nor is there (apart from the scale on which it is occuring) anything
unprecedented in the fact that international law now concerns itself with
many matters that were formerly within the exclusive jurisdiction of
States; for the passage of a topic from the domestic jurisdiction field into
that of international law, whether customary or conventional, is a familiar
and centuries-old process. The topic may be new — the process is not.
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 [6. A friend to the rescue This view is illustrated and con-
-

firmed by the contents of the article by the late Dr. Wilfred Jenks
entitled &dquo;The New Science and the Law of Nations&dquo; which
appeared in the International and Comparative Law Quarterly for
April 1968;16 and by kind permission of Dr. Jenks and the publishers
of the Quarterly figured as Annex 1 to the Report (but is not here
reproduced). His greatly to be regretted death, occuring shortly
after the Centenary Session of the Institute, deprives the internat-
ional law world of one of its foremost personalities, to whose
works the present Report owes much.]
7. The jurist and the codifying treaty The whole situation -

as it affects the jurist will naturally be quite different where the

treaty does not create new law but codifies existing customary
law, or mainly codifies but with an element of the new added or
intermingled. Here the jurist has a definate juridical role :to play,
not merely in the ways already mentioned, but as regards the
substantive content of the treaty. However, that of course will
precisely be because the topic involved is not novel, and is already
the subject of some considerable legal regulation as being inherently
juridical and not only technical in character. Equally where ..... ,
what was in its inception treaty law - or law dependent upon
treaty subsequently, because of the generality of its acceptance as
-

law, passes into the field of customary international law , the jurist
will be concerned with its future as part of the future of customary
law.
8. But will customary international law have a future? -
The
doubt here is not merely a matter of asking whether the sphere of
customary law will not become more and more restricted propor-
tionately to the corpus of international law as a whole, given the
increasing use of treaty and codification as a medium of law-
making, and the trend towards obsolescence in certain previously
active areas of customary law.b> . , .... More important is a quite
different ground of challenge to the future of customary inter-
national law considered as &dquo;common law&dquo; automatically binding
on all States, irrespective of any specific treaty obligation. Accord-
16 It is
interesting to note that in the bibliography attached to this article,
the works listed are without exception scientific works in various fields.
No juridical work is listed, nor, apart from one or two of Dr. Jenks’
own, is any cited in the body of the article. This tends to reinforce our
view as to the essentially non-legal content (and therefore future) of these
matters, and of course the same applies to economic, sociological and
—

all other such topics. The topic may be as new as you please but its
juridical frame of reference the treaty is an accustomed one.
— —

b) On this point the Report agrees with the view expressed by Mr. H. W. A.
Thirlway ( International Customary Law and Codification, S. W. Sijthoff,
Leiden, 1972, p. 146) to the effect that
"...so far from supplanting customary law, and reducing its field of
operation to a minimum, the codifying of great tracts of international
law will, on account of the practical and political difficulties of amending
multi-lateral treaties, whether codifying or otherwise, give over the
development of international law almost entirely into the hands of
custom, operating upon and beyond the codifying treaties".
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ing to this challenge, customary international law is something that
has been evolved entirely between States that were European, or
else were of European origin and foundation, or of European
leanings. Except for that, so it is said, international law was
imposed on the rest of the globe during the so-called colonial
period. It is not therefore truly &dquo;universal&dquo; law and need not be
accepted by the newer countries&dquo;~ ~ ~ ~ .. We shall. consider this
contention later; but for the moment we shall dispose of the
-

matter in another way.

9. The continued relevance of f customary law as an indispen-

sable assumption The real truth is that, not to speak of certain
-

historical considerations to which we shall come, the validity,

existence and continuity of customary international law, as law
binding on the whole community of nations, constitutes an inescap-
able premise of any useful discussion about the future of inter-
national law. As to what is the true content of customary law, as -

to what principles and rules form part of it, those are questions
-

about which there may indeed be plenty of room for legitimate

argument. But about ,the existence, and persistance, of customary
law itself, as a field of law, there can be no discussion, except a
discussion to end all discussion ...... Even where codification is
involved, its future must be part of the future of customary
.....

international law; - for codification implies and assumes the

existence of general law rules to be codified, whether these came
into existence through State practice or through a treaty engender-
ing general law. In whatever way the matter be looked at therefore,
the standing of customary international law has to be assumed as
a necessary presupposition of our whole task, which would other-
wise cease to have any raison d’être.
&dquo;...so far from supplanting customary law, and reducing its
field of operation to a minimum, the codifying of great tracts
of international law will, on account of the practical and
political difficulties of amending multi-lateral treatises, whether
codifying or otherwise, give over the development of inter-
national law almost entirely into the hands of custom, operating
upon and beyond the codifying treaties&dquo;.

21 The most skilful presentation of this thesis that we have seen is contained
in an article entitled "Is the Law of Responsibility of States for Injuries
to Aliens a part of Universal International Law?" (S. N. Guha Roy,
American Journal of International Law, Vol. 55 (1961), pp. 863-891). The
essence of the argument advanced is of much wider application than
merely to the question of State responsibility for the treatment of aliens
with which it actually deals.
A recent judicial statement of the same order will be found in the
single dissenting opinion given in the (competence) phase of the Fisheries
Jurisdiction case (
I.C.J. Reports 1973, especially at pp. 43-45).
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 B-A glance at the past

&dquo;Life must be lived forward

but understood backwards&dquo;.
(We have unfortunately forgotten whence this quotation comes, and
humbly apologize to its author.) .

10. The perils of prophecy Our task is to report on the

-

future. It is evident however that such a report cannot be in the

nature of a mere prediction or foretelling, however plausible. If it
were, it would risk looking foolish in much less than another
hundred years time, and very possibly before this Report appears;
- and so, even if we thought ourselves, with Shakespeare’s John
of Gaunt, Duke of Lancaster, &dquo;a prophet new inspired&dquo;, (Richard
II, Act. II, Sc. 1), we should not attempt prophecy, for we are no
soothsayer. Any forecast we do venture upon must therefore be
firmly grounded in the status quo, its tendencies and possibilities. It
must assess, not prophesy. Any discussion of the future must, in
this field be, or start from, a discussion of the present and, before
the present, of the past. On the other hand, such a discussion should
not consist of a simple extrapolation from what is known, for all -

experience has shown the danger of assuming that present trends

and drifts will necessarily continue and in the same direction -
-

and at the same momentum. Not only does such a process make
no allowance for the new and unforeseen element, the advent of
which no scrutiny of the here and now, or of its latent potentialities,
could have revealed, it also fails to take account of the fact that
-

the causes of events currently occurring may contain their own

in-built limiting components.
11. Empires old and We know that the centripetal
new -
forces once represented by the
build-up of those former great
empires that have aptly, and significantly, been called the &dquo;overseas
empires&dquo;14, have today been replaced by the centrifugal forces
resulting from the break-up of those same empires, forces by no -

means yet exhausted, any more than (though much diminished) the
supply of empires since the non &dquo;overseas&dquo; empires (and they
-

exist) still remain. [Yet this break-up constitutes a major] if not -

the major cause - of many of the newer tendencies visible in the

international legal field today, but also because it helps to draw
attention to a factor the latent existence of which must give the
eager prophet pause, namely the possibility of the occurrence of
the eternal spiral - the re-emergence, on a different and more
sophisticated plane, of supposedly extinct phenomena; - for if
24 See R. Emerson on "Self Determination" in the American Journal of
International Law for July 1971 (Vol. 65, No. 3), at p. 463. The expres-
sion points up what has been called the "salt-watar fallacy" and illustrates
by implication one aspect of those "double standards" on which we shall
have occasion to comment later; for there are also "land" empires that
equally comprise people of different race, colour, culture and language,
and which have not been allowed to break up.
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certain kinds of empires have disappeared, other kinds have not,
while yet others have materialized instead, to play a major role on
the international stage: the empires of the great transnational and
multinational corporations of industry and finance; the empires of
the regional communities institutionally linked for economic and
political purposes; the empires operated as the sphere of influence
of a preponderant member of them; and, above all, the empires of
the great international organizations; each of them manifesting,
-

though differently, and in another form from of old, not only the
glories and uses of empire, but its frustrations and disillusionments.
12. Why are we troubled about the future? - Let us look a
little deeper into the matter, and ask ourselves why it is that we
feel -

as apparently we most of us instinctively do - that the topic

of the future of international law is not only worthy of investigation,
but almost demands it. It is not so much because, like spectators at
a show, we are interested but dispassionately so
-
in what is -

going to happen; it is rather because, like players on a field, we

-

are passionately interested in what is happening now, and are

noting it, some of us with approval, some with disapproval, some

with mixed feelings, but none with indifference. Many believe
-

there is reason to fear that the very foundations of our discipline as

public international lawyers may be in question. For this belief
there are various and rather different causes. One very usually
adduced is the presence or prospect of change, change so drastic
-

that international law may not be able to cope with it ......

Hence [it is said] the future of international law is bound up with

the problem ofchange. To paraphrase the ancient saying-
tempora mutantur et leges in illis murtandae sunt*.
13. Change is no novelty Doubtless it is true that the times
-

are changed and changing, and that the laws are to be changed
with them. But is this anything more than a truism? has it not -

always been so? - for the fact is that there is really nothing
particularly new about the phenomenon of change as such, whether
on the domestic or the external plane. In this connexion we cannot
do better than cite the great authority of Lauterpacht, a former
pre-eminent member of our fraternity, than whom none had a
truer sense of the golden mean. Writing under the rubric of &dquo;The
Problem of Change in International Relations&dquo;, he said (The -

Function of Law in. the International Comrnunity (1933), p.248) :

&dquo;The problem of adjusting the functioning of the law to the
perpetual antinomy of change and stability, and of justice
and security, is not one peculiar to international law. It is a
general legal phenomenon, common to every political society. It
is one of the central problems of legal philosophy. Experience
teaches that in this struggle the element of change is not
always victorious, for the simple reason that stability and
security are in themselves powerful constituent elements of
justice. There is, as Montesquieu already pointed out, a limit
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 to the possible sacrifice of security to progress. The same
experience teaches that there is ultimately no more effective
challenge to the maintenance of the law than an immutability
impervious to the needs of life and progress. As Ihering said:i
’A concrete law, which, because it has once existed, claims
absolute and accordingly perpetual existence, is like a child
who strikes his own mother, it derides the idea of law even in
invoking it, for the idea of law is perpetual becoming...’.&dquo;
Summing up these ideas so reflect our own philosophy in
as to
the present context, we would say that the good of international
law in the future is as much bound up with certainty and stability
as with flexibility and progress, but that both are necessary. Lauter-
pacht, significantly, after some discussion of the reasons that
might lie behind pressures for change in the international field -
a matter to which we shall revert later added (loc. cit., p. 249)
-

the following remark, namely that:i

&dquo;... once the causes aggravating the problem of change within
international society have been realized, care must be taken
not to exaggerate its importance by regarding it as the problem
of international law&dquo; (italics in the original).
-

14. Change in municipal law - The problem of change is one

that all legal systems, national as well as international, have had tao
deal with almost from their beginnings. In every country one of the
major problems of government is the mass of fresh legislation
needed to deal with new developments and situations, that comes
forward every year, and can only with difficulty be accommodated
in the parliamentary time-table. Yet, apart from questions of mech-
anics, this gives rise to no trouble on the internal plane at least -

none of principle. The topics, developments or situations involved

may be new, but the methods of handling them are not. Legislatures
or their equivalents do not have to be specially created or evolved,
for they already exist, and one of their main functions not only is,
but always has been, to deal with what is novel. In short, although
new methods are doubtless from time to time introduced, as con-
venience requires, the traditional and well-tried ones will normally
-
with perhaps some adaption here and there suffice to meet
-

even the most unusual of requirements. That is why, on the internal

plane, we do not hear so much about the problems caused by the

processes of rapid change and growth. These exist of course, but
they are problems of &dquo;what&dquo; to do rather than of &dquo;how&dquo; to do it.
Change on the international plane Here by contrast, the
15. -

problem is not merely of &dquo;what&dquo; but also and more particularly, of

&dquo;how&dquo;. Even ideal solutions are of little use if there is no sure and
ready way of translating them into action which, in this sphere,
-

means into rights and obligations. The problem is therefore essen-

tially one of methodology, but again, it is not new, for there has
-

always been difficulty in the international field in effecting changes

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in the law, in determining how, and by what methods, changes and
developments can be brought about, or more strictly (having -

regard to the juridical substratum involved) at what point they

-

can be held to have brought themselves about, or in some way to

have been accomplished. This is a problem -

admittedly of the
greatest difhculty with which the future of international law is
-

very much bound up. We shall be considering it later.

16. The problem of the common ground -
The feudal homo-
geneity The
-

break-up of empire, to which we referred earlier,

has, however, not indeed brought about, but brought out, a diffi-
culty, whether for the &dquo;what&dquo; or the &dquo;how&dquo; of change, peculiar to,
and always latent on the international plane after the close of the
middle ages in Europe, - namely the lack of a common back-
ground against which, or a common framework within which, the
law can operate. True it is that the law of nations as we principally
know it, was, as its name implies, evolved between sovereign inde-
pendent States dickering in language and national characteristics,
and to some extent in blood, customs and outlook; but, from long
before the days of Grotius, Zouche and Pufendorf, or even Vitoria,
Suarez, Bodin, Ayala, Gentilis, or earlier progenitors of our disci-
pline, these States had had a common culture, largely the legacy of
Greece and of imperial Rome, and of the romanization of so much
of Europe. This common culture went very deep and wide. It
comprised not only a common religion but, up to the end of the
middle ages, a common Church27, common tongues of education,
-

science, and historical recording Latin

-
and Greek, - legal sys-
tems based on, or including considerable elements of, the Roman
civil law and ius gentium, and of the canon law28; but above all,-

in the feudal system, an institutionalized order of politico-socio-

economic government and administration, and of the legal regu-
lation of such things as land tenure, inheritance, wardship, marriage
and military service that, despite the existence of internecine feuds.
made of all the countries subject to it, a very close knit conimUnity2l
with, in addition, those common standards of personal conduct
that were embodied in the codes of chivalry and courtly behaviour.
Feudal law and custom was in fact the common law of Europe for
a period of close on five hundred years. The period of the feudal
27 The Greek Orthodox Church was an off-shoot of the pristine Catholic
Church with its foundation in Rome, and may originally have differed
from it doctrinally by little more than what was involved in the con-
troversy over the use of the "filioque" in the Creeds.
28 This was so in England also, and of course in Scotland, despite the
gradual development in the former of the Common Law. Considerable
elements of both civil and canon law persist in English law to this day.
29 This is not astonishing when it is remembered that the complex system
of land tenure made it quite possible, and even of frequent occurrence,
for the same person to hold lands of, and owe feudal allegiance in respect of
them to, several different lords or potentates, in his own or in other
countries, and that it was quite usual for the overlordship of lands in
—

one country to be vested in the sovereign of another. One ruler could

owe another fealty and feudal allegiance in respect of lands held by the
former in the dominions of the latter. In short feudal allegiance could
cut right across political affiliation.

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 system was, correspondingly, and still is, perhaps the only one
since Roman times during which Europe could be said to have
constituted in some sense an institutionalized society.
17. The European heritage - Although it would be quite
wrong to think that most of the great natural principles of law,
and many of the principles governing relations between States, were
not also to be found beneath other skies and in other climes than
those of Europe~°9 it was nevertheless out of these interwoven
strands of the common European heritage and order that the
particular body of rules we know as international law grew; but -
and here is something not always borne in mind, and of happy
augury, perhaps, for our own times - it was not until the feudal
system began to break up, and the Byzantine empire of the East
ended after the fall of Constantinople to the Ottoman Turks, and
Luther had nailed his remonstrances to the church door at Witten-
berg, a process that culminated in the Peace of Westphalia (1648)
that ended the wars of religion, and the final emergence of the
nation-State that this evolution of the international legal system,
-

as we have come to know it since, really began to get under way

with the first generation of publicists whom we have mentioned,
and others of their day3l. Similarly, the progressive breakdown of
30 This is conclusively demonstrated with a wealth of authority in two of
Jenks’ works, — the Common Law of Mankind (Stevens & Sons, London,
1958), especially at pp. 80-88; and Law in the World Community (Long-
man’s, London, 1967), passim. See also the series of courses given in
recent years at the Hague Academy of International Law on the relation-
ship between international law and various non-European cultures and
religions, by S. Mahmassani (Islam), K. R. R. Sastry (Hinduism), K. Iriye
(Confucianism), and K. N. Jayatilleke (Buddhism); also C. H. Alexandro-
wicz on the historical aspects of the Afro-Asian world and the law of
nations, and Verosta on international law in Europe and Western Asia
between 100 and 650 A.D.; and on the single but important subject of
the "Origin and Development of Denial of Justice", see Hans W. Spiegel
in the American Journal of International Law, Vol. 32 (1938), pp. 63-81.
31 We may neglect for present purposes, but must by no means forget, the
profoundly unifying effect of the degree of international trade and
commerce rendered possible by the great international rivers of Europe,
the Rhine, the Rhone, the Danube, Elbe, Oder, Vistula and others; and
its short sea routes in and across the Mediterranean, along the Atlantic
seaboard and in the English Channel, the North Sea and the Baltic; —
whence the maritime codes, such as the Rhodian Sea Law, the Consolato
del Mare, the Laws of Oléron, the Leges Wisbuenses, and others, progeni-
tors of so much of modern sea law; — whence also such entities as the
Hanseatic League, formed for the protection of the trade and commerce,
and trading communities, of its member cities. The presence of foreign
trading communities in other lands or towns was one of the origins of
the international law relating to the treatment of foreigners, and the
responsibility of States although of course the natural law principle of
—

reparation for wrong done, insisted upon by Grotius, was another.

Another powerful influence, local at first, but increasingly pervasive
was that of the treaties made between the Italian city States and neigh-
bouring territorial rulers, from the early 9th century onwards. Matters
which would now be regarded as falling within the scope of customary
international law were often dealt with in this way— an early example
of the formation of customary law through treaty. Somewhat similiar
conditions and developments were to be found in India at one time see
—

C. J. Chacko’s "India’s Contribution in the Field of International Law

Concepts", 93 Hague Academy Recueil (1958).
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the Holy Roman Empire in Europe -

although its close was only

finalized, formalized, by the decrees of Napoleon Bonaparte -
or
coincided with the second great wave of tthe fathers of modern inter-
national law, Bynkershoek, Wolff, Moser, de Vattel, the first de
Martens and others of the 18th and early 19th centuries. Dare we
see in all this a paradox of some significance for our study ? -

namely that, on the international plane, it is the break-up of a

quasi-internal order that creates the need for the legal regulation
of the resulting inter-relationships. If so, then we may comfort
ourselves at least with this: that since we are in fact witnessing the
break-up of an order, international law will have a future whatever
its future content may prove to be.
18. A precedent that is still active, a honiogeneity that is
gone - The situation today is not without precedent, for w~.en
Canning announced in the British House of Commons, nearly a
century and a half ago, that he had &dquo;called in the New World to
redress the balance of the ®ld&dquo;32, he was referring to the newly-
independent republics of central and southern America whose
views on a number of questions of international law were to differ
in several respects from the European and north American - as
they still do. Yet international law has survived these conflicts.
We may therefore take courage; but it must also be borne in mind
that the situation is no longer quite the same. There is no such homo-
geneity in the world as a whole as there was in Europe even after
feudalism came to an end. Only to a limited extent, or in particular
regions’*, did the former Dutch, French, Portuguese, Spanish and
British rulers introduce their own cultures side by side with that
of peoples of other arts, races, customs and religion. But in two
fields of importance from the point of view of our study-those
of language and law their influence has lingered and remained
-

strong in the legal systems they left behind them, and in the use
of their languages as a common means of communication in the
juridical, administrative, scholastic, and scientific fields. As a
recently expressed view suggests, &dquo;Although some attempts have
been made to articulate specific Islamic, Hindu or Buddhist ap-
proaches to international law, these appear to be matters of history
rather than of contemporary practices. An analysis of the ...
approaches of [certain Asian-African] States ... reveals no
...

significant difference from the approach of the Western (Judeo-

Christian) countries&dquo; - {Friedmann, op. cit., p.184). Nevertheless,
the international law of the future has to develop against the
background of a Joseph’s coat of many colours. This need not
discourage us, for it is just such a background, scenically speaking,
that, seen from a certain distance, coalesces into one, and blends
with the landscape; - nor should we forget* how ancient and
how widespread among different cultures are many of the basic
principles- of law and morality that underlie the international
32
Speech delivered on 12 December 1826.
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 juridical system, and must underlie any juridical system that aspires
to endure.
Traditional international law still the foundation for the
19.
future-Having recognized and duly taken into account the considera-
tions just discussed, we should delude ourselves if we imagined that
there was any other practical foundation upon which the inter-
national law of the future could be built than that of the present,
as it has come down to us after some four or five centuries of
doctrine and practice, whatever its existing gaps and inadequacies
may be. As Jenks has so well said (The Common Law of
z-

Mankind, p.92-ubi supra, n.30), we must &dquo;start from the principle

that the problem is not one of changing the bases of international
law but of re-stating them in terms applicable to and understand-
able by the new national communities which now play such a
decisive part in international life&dquo;. An important part they unques-
tionably do play; and our next step must be to examine certain
of the attitudes they have evinced in this connexion.

C-Challenge and controversy

1. The
principally affected
areas
20. Change for the worse, but not always Undoubtedly, one
-

of the most noticeable effects of the passing of the old order has
been a re-opening of controversies long since thought to have been
settled, - a process aptly epitomized by one of the distinguished
jurists of our dedication [Friedmann], himself a victim of the
lawlessness he deplored, in the-title given to a recent article, &dquo;Selden
Redivivus -Towards a Partition of the Seas?&dquo; - (American
Journal of International Law for October 1971). We shall come
to this later; but for the moment it brings us to another aspect of
change - change for the worse, or such as would be so regarded
by the orthodox international lawyer. But this must be qualified
in three ways. First, by no means all of the current demands for
changes in, or developments of, existing or formerly accepted law
are deleterious. A number are meritorious, notwithstanding that

they may involve difficulties. Secondly, where they are deleterious,

they are by no means exclusively formulated on behalf of the
newly-independent countries, or by jurists belonging to these
countries, but represent currents of opinion to be found in a num-
ber of different quarters see R. P. Anand, &dquo;Attitude of the Asian
-

-African States towards certain Problems of International Law&dquo;, in

the International and Comparative Law Quarterly for July 1966.
Thirdly, it would be doing a grave disservice to international law
and its future if it were suggested that the present position is one
of general decline and disintegration. On the contrary, it is striking
- and even perhaps surprising how much of traditional or, as
-

we would prefer to regard it, established or orthodox international

law still stands unchallenged and normally adhered to*. It is from
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growing pains rather than any functional, still less organic, disorder
that the international community is suffering in the legal field.
Nevertheless, the areas in which these pains are occurring are
sufficiently important to require notice.
[21-22. The Report then lists a number of matters under the
rubric of &dquo;Some sensitive topics&dquo;, as follows : ]
Treatment of foreigners and foreign interests Protection -

of foreign property and investments - Nationalization and

expropriation Confiscation Compensation.
- -

Treatment and position of the individual Expulsion

- -

Deportation Human rights.

-

Retaliation and reprisals Protection of diplomatic and

-

consular personnel and premises Kidnapping Hi-j~acking.

- -

Civil wars and internecine s~truggles - Intervention -

Recognition of iasurgency-Aid given to or against insurgents.
Use of the national territory as a base of hostile or sub-
versive operations against the territory43, government or politi-
cal system of another State. Terrorist and guerilla activities -

Undeclared states of war - Unofficial or irregular hostilities.

Non-recognition of situations brought about by the use

of force.
Self-determination Freedom movements - Governments
-

in .exile - Principle of statal integration and territorial indivisi-

bility - Recognition of new regimes or governments -
Premature recognition.
Inviolability of treaties Unilateral termination Status
- -

of treaties imposed by force -

Doctrine of rebus sic stantibus

- State succession.
Territorial waters and exclusive fishery limits Contigu--

ous zone powers -

Continental shelf and ocean bed.
Miscellaneous matters : Dom~es~.c jurisdiction Abus~e of
-

rights Colonial questions, mandates, and trusteeships

- -

Regionalism Sources of law.

-

[Commenting, the Report says that] &dquo;faced with exigencies of

space, we have chosen to concentrate on the problems caused by
the emergence of new States rather than those involved in changes
of ideology or political system in certain older or established
ones44&dquo;; and [goes on to select a few particular topics only, for
more detailed treatment under the general head of &dquo;Present

juridically disruptive trends and attitudes&dquo; topics which, subject

-

to one or two exceptions, it is not proposed to do much more than

simply enumerate here. Preceding this, as relating to a matter of
especially far-reaching significance, the Report discusses : 1
43 We are not unmindful of certain other matters, such as hostile or
subversive broadcasting; espionage; the use of space for similar purposes,
etc., — which we do not list on account of the difficulty of discussing
them, but which should not be forgotten.
44 We
believe that recent years have shown a marked diminution in "East-
West" differences in the field of public international law. For the rest,
much of what we say in the "new-old" context would be applicable,
mutatis mutandis, to the "East-West" one also.

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 (A) The ratio decidendi in the Lotus case
23. It is desirable to begin by drawing attention to something
that underlies, and is in a sense basic to a consideration of all this
part of our subject. Even at the date of the Lotus case (1927 the
Judgment given by the Permanent Court of International Justice
(Series A, No. 10) was regarded with certain misgivings by the
best juristic opinion, and subsequently came to be viewed as wrong
in so far as it could be held to have endorsed the view that inter-
national law permits all it does not forbid, either expressly, or by
necessary implication from some actual prohibition. But strictly,
it appeared rather, upon a careful analysis of the decision, that it
was really based on certain special features which would in any
event bring it outside the operation of that theory, even supposing
the latter to be valid*. The theory itself was clearly a lingering
off-shoot of the extreme doctrine of State sovereignty, according
to which the liberty of action of the Stale was in principle unfet-
tered except in so far as, by treaty or by acquiescence, or partici-
pation in general State practice, restrictions on that liberty had
been accepted. This theory always doctrinally suspect since it
-

did not explain whence (juridically) the authority and legal in-
cidents of sovereignty itself were derived could be regarded as
-

admissable in practice relative to the position, and acts, of a govern-

ment inside its own territory or waters, on the basis of the plea
th~at &dquo;qui iure suo utitur alterum non laedit&dquo;47.’ But to extend the
theory to what a State or government could do outside its territory,
and waters, or so as to enable the State to determine for itself what
constituted its territory or its waters, would rule out a priori all
possibility of a jus gentium, or of the legal regulation of State
relations. All law consists, and consists necessarily, in the regulation
of the action of those who are subject to it, and it is therefore in
its very being and essence quite incompatible with notions of un-
restricted liberty, or rather, in this context, of what would amount
to licence. It follows that the only view of sovereign rights com-
patible with the existence, even, of international law, is that - as
Lauterpacht put it the &dquo;sovereignty of the State ... is a quality
-

conferred by international law&dquo;, and therefore &dquo;cannot ... be

either the basis or the source of the law of nations (op. cit. in
-

paragraph 13 above, at p. 98). Today, the theory thus impugned

is once again being maintained, and advanced as a justification for
claims and assertions in various spheres.
[There follows a discussion of certain particular topics under
the following heads : ] ,

47
Even this would probably no longer now be regarded as inherently or
self-evidently correct; and in any case it ignores the external effect that
internally located acts can have: sic utere tuo ut alienum non laedas is a
principle of equal or, so we believe, superior validity to that cited above.
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 (B) Selden redivivus or the new &dquo;patrimonial&dquo; sea
&dquo;So is the great and wide sea also: wherein are things creeping
innumerable, both small and great beasts.
There go the ships, and there is that Leviathan: whom thou
hast made to take his pastime therein.&dquo;
Psalms of David, civ. vv. 25 and 26

24. &dquo;Leviathan&dquo;, monster of the deep -

The attempt unilater-

ally to alter the status of the high seas -
25. The so-called &dquo;patrimonial&dquo; sea -

(C) Intervention

(i) The norm of non-intervention

26. The fallacy, and regressive tendency inimical to the
progress of the rule of law, represented by the theory that inter-
national law permits all it does not directly forbid, and that every-
thing that is not actually contrary to some specific rule of inter-
national law is legitimate, has arisen in other contexts than that of
the law of the sea. For instance it is one of those now being
advanced in connection with intervention in civil wars and other
internal struggles* in order to justify courses governed, not by the
factual circumstances of the case and the juridical considerations
involved, but by the subjective desires of the intervening State as to
the outcome of the conflict -
the plea being that there is nothing
in international law to prevent a State assisting whichever side it
pleases, this latter criterion being qualified however or interpre- -

ted - as meaning whichever side’s cause is &dquo;deemed to be &dquo;just&dquo;*,

i.e. so deemed by the intervening State, a purely subjective and
-

moral, rather than juridical criterion, even if its operation is admit-

ted to be subject to legal requirements in certain circumstances. In
fact, it is not a criterion at all; or rather, it is simply another way
of postulating complete freedom of action for all (i.e. licence),
since what is &dquo;just&dquo; will depend entirely on the point of view
involved, and on the politics, ideologies, etc., of the intervening
State.
27. It is this view that seems increasingly to be governing the
action oaf States in this field, and there have been many notorious
examples of it in recent years. It errs in its very premises, for the
case is in no way one of an absence of applicable legal considera-
tions. There is a basic rule about &dquo;intervention&dquo;®, namely the rule
of non-intervention, as is specifically recognized by Article 3 of the
Draft Declaration on the Rights and Duties of States [drawn up by
the United Nations International Law Commission]: &dquo;Every State
has the duty to refrain from intervention in the internal ... affairs
of any other State.&dquo; To this rule there may indeed be more
important exceptions, but it is the no~rm.......................
(ii) The use of the national territory as a hostile or terrorist base
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 28. The least that the norm of non-intervention requires is
that States should not undertake or encourage activities aimed at
fomenting insurgency in another State or tolerate such activities
in their territories., - and this again is recognized by the Draft
Declaration on the Rights and Duties of States (supra), Article 4 of
which provides that every State &dquo;has the duty to refrain from
fomenting civil strife in the territory of another State, and to pre-
vent the organization in its territory of activities calculated to foment
such strife&dquo; (our italics). But in fact, it is precisely in respect of
-

this last requirement of the norm that many of the most blatant
departures occur, governments freely allowing their territory to
-

be used (and sometimes even assisting in the process) as a base for

subversive and guerilla forces operating across the borders of
another State, or within its boundaries, or planning and carrying
out subversive or terrorist activities there.

(D) Inviolability of diplomatic staff and diplomatic premises

&dquo;Sancti habentur legata&dquo;
(i) In general
29. One of the most historic, best established and least ques-
tioned rules of international law enjoins upon governments not only
a general duty of ensuring law and order that is owed in respect of
all persons in the national territory, whether citizens or foreigners,
and in respect of their property, but additionally, as regards
-

diplomatic personnel and premises*, a special duty of protection

arising from the status, functions, and representative capacity of
this category of persons. In our day however, it is hardly possible to
open a newspaper without reading of cases of foreign diplomats or
other ofhcial representatives being offered indignities, bombed,
injured, kidnapped, incarcerated, held up to ransom and, in some
cases, deliberately murdered; and of diplomatic premises being
invaded, looted, set on fire and often completely destroyed or gutted.
[30-3 . -

details]
32. In this situation it may therefore be well to stress not only
that the Vienna Convention (with certain clarifications and
precision-renderings) was a codification of the established rules of
customary international law on the subject, but that it was also at
some pains in its Preamble to make clear the rationale of the matter.
Thus it begins by recalling that &dquo;peoples [not merely adrninistra-
tions] of all nations from ancient times have recognized the status
of diplomatic agents&dquo;, and goes on to invoke the &dquo;purposes and
principles&dquo; of the United Nations Charter &dquo;concerning the sovereign
equality of States [which is one of the bases of the inviolability of
diplomatic premises], the maintenance of international peace and
security, and the promotion of friendly relations among nations&dquo;,
in which context it expresses the belief that an international conven-
tion on diplomatic intercourse &dquo;would contribute to the develop-
ment of friendly relations among nations, irrespective of their

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differing constitutional and social systems&dquo; - (our italics). The
stress laid in these passages on the maintenance of peace and
security, and the promotion of friendly relations amongst nations
despite the differences of world outlook between them - for this is
what the words italicized really amount to - is of special signifi-
cance, having regard to the fact that outrages perpetrated against
mission premises usually have an emotive impulsion, leading to
the treatment of such premises as convenient scapegoats for retalia-
tion or protest against acts or policies of the sending State that are
unpopular in the receiving State, or with sections of its public
opinion, and for reasons that are generally basically trivial, and
certainly in no way proportionate to the resulting abuses.
(E) The sanctity of treaties
&dquo;Pacta sunt servanda&dquo;
[33-36. discussion (omitted)]
-

(F) Expropriation of foreign property and interests

&dquo;T enerada non perturbare&dquo;
[37-38. -
discussion (omitted)]

(G) The &dquo;double-standard&dquo; in conduct and law

(i) The meaning of equality before the law
39. In no way do prevalent attitudes of disrespect for law find
clearer expression than in the application, or call for the applica-
tion, of what has come to be known as the &dquo;double-standard&dquo;, -
yet it is obvious on a priori grounds that in the legal sphere at any
rate, there can be no room for such a doctrine, since the equality
of all before the law is one of those principles of natural justice
that no one can question’9. Moreover this is not merely a matter
of judicial process only, that everyone should have access to
-

the courts, the right to be heard, the benefit of the same rules of
procedure, etc. It is also a matter of the content of the law and
the way it is applied; though not in the sense that the law can be
the same and similarly applied for all in every situation, or it
could not, for instance, afford that protection to, and those immun-
ities for, persons suffering from disabilities (infants, minors, the
mentally deranged, etc.) of which they stand in need. But the
maxim &dquo;Treat like cases alike and different ones differently, (H. -

L. A. Hart, The Concept of Law (1961), p. 155) - holds good as

a principle in every sphere; or, to state another aspect of the
-

matter, natural, but irremediable, inequalities are acceptable, if

often grudgingly so: one man has better health, is more skilful
than another, etc.; and, as the International Court of Justice said
in the North Sea Continental Shelf case (LC.J. Reports 1969, at
p. 49), &dquo;Equity does not necessarily imply equality. There can
never be any question of completely refashioning nature.&dquo; On the
other hand, an imposed and unjustified but remediable inequality
is felt as unfair.
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 (ii) The &dquo;double standard&dquo; in operation
40. There is no one who would wish to deny the validity of
the foregoing conclusions. Yet in fact we know only too well that
often, in the international field, those who are the most vociferous
in their demand for regimes of non-discrimination and the obser- w

vance of principles of human rights in certain countries are also

those who are most ready to deny these, or see them denied, in their
own countries, or to tolerate sub-silentio the clearest instances of
actions and policies not in accordance with them, -

depending
entirely on the case and the locality. Terrorism, equally, is justified
or condemned, not according to the principle of the matter, but

according to who the terrorists are and whom they are acting
against. This posture goes so deep that in such a forum as the
United Nations Assembly, what recently had to be debated in the
first place was not terrorism itself but whether it should even be
the subject of discussion [Further examples]
41. Thus, as well as encroachments upon the high seas, con-
fiscations or extortions are carried out in various countries, but
any resistance or retaliatory action on the part of the countries
whose interests, or the interests of whose nationals, are affected, is
greeted with charges of &dquo;imperialism&dquo;, &dquo;fascism&dquo; or &dquo;neo-colon~ial-
ism&dquo;. In general, almost anything is forgiven to a country that can
plead some &dquo;anti-colonial&dquo; reason for its actions, or can find a
pretext for them by pleading the so-called &dquo;legacy of colonialism&dquo;,
or by representing itself as &dquo;under-developed&dquo;. yet as has been
justly observed, &dquo;What is not true is that basic principles of political
behaviour should be varied according to the continent in which
you happen to find yourself&dquo;.. This goes also for juridical be-
haviour ; -

for it is not too much to say that whole fields of the

law are being disrupted by this attitude. It creeps also into the
administration of justice~ ..................................

(iii) The &dquo;double standard&dquo; and the notion of the self-determination

of peoples
42. The phenomenon of the double standard manifests itself
not only in discrimination between States in regard to &dquo;like cases&dquo;,
and in failure to make the necessary distinctions where cases are
unlike, but also in the advocacy and utilization of inherently con-
flicting and incompatible legal principles, upholding sometimes
the one, sometimes the other, not according to the legal merits of
the issue, but to serve purely political ends varying with the circum-
stances. Several instances could be given, but by far the most strik-
ing is to be found in the field of the so-called right of self-deter-
mination. This supposed right must to some extent be distinguished
from the principle of self -determination; and the following remarks
are not intended to denote any basic lack of sympathy with the
principle itself, politically considered, but merely to point out its
implications in the present (legal) connexion.
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 43. We shall nevertheless relegate to a footnote. the expression
of our belief that, juridically, the notion of a legal &dquo;right&dquo; of self-
determination is nonsense -

(for can an ex hypothesi as yet -

juridically non-existent-entity be the possessor of a legal right ?)-

whatever political significance this notion may have; and we shall
take as the point of departure the formulation given to both the
principle and the right by the United Nations General Assembly
in 19700, which simply assumes their existence, at least as a
political matter, in the following terms:
&dquo;By virtue of the principle of equal rights and self-determina-
tion of peoples enshrined in the Charter of ’the United Nations,
all peoples have the right freely to determine without external
interference their political status and to pursue their economic,
social and cultural development; and every State has the dusty
to respect this right in accordance with the provisions of the
Charter.&dquo;
[Later in the same resolution however, the following passages
appear : ]
&dquo;Nothing in the foregoing paragraphs shall be constructed as
authorizing or encouraging any action which would dismember
or impair totally or in part the territorial integrity or political
unity of sovereign and independent States conducting them-
selves in compliance with the principle of equal rights or
self-determination of peoples as described above, and thus
possessed of a government representing the whole people
belonging to the territory without distinction as to race, creed
or colour.
Every State shall refrain from any action aimed at the partial
or total disruption of the national unity and territorial integrity
of any other State or country.&dquo;
It is hardly necessary to point out the extreme circularity
and latent discriminatoriness of the first of these paragraphs,
and the virtual impossibility of applying it, since it assumes <the
existence of the very circumstances that would be in issue if a
concrete case arose, and hardly contains a word or phrase that
could not plausibly be given more than one meaning. The real
point is, however, that these two paragraphs, and particularly
the second one, are in almost total contradiction with the rest
of the resolution, - for unless the latter is in fact, actually or
potentially, &dquo;aimed at the partial or total disruption of the national
unity and territorial integrity&dquo; of some country, it can serve
little purpose, and constitutes a mere pious expression of
hope or aspiration. Actually, it is quite evidently aimed at one
particular type of case, and that only, a conclusion neatly stated
-

in the following passage from a recent article on the subject - (A.

Emerson on &dquo;Self-Determination&dquo;, in the American Journal of
International Law for July 1971) :
&dquo;If the right of secession is eliminated and the maintenance of
the territorial integrity of States takes priority over the claims
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 of ’peoples’ ~to establish their own separate political identity,
the room left for self-determination in the sense of attainment
of independent statehood is very slight, with the great current
exception of decolonization&dquo; -

(our ~talics).
In short, secession &dquo;colonial&dquo; or dependent territory is admis-
by a
sable, but secession f rom that territory itself, once independent, is
not admissible even on the part of an unquestionably distinct
racial, cultural or linguistic component of itO. [A footnote com-
ments that the reason &dquo;is evident enough: there is hardly any new
State - or for that matter older one - that does not comprise
wi,thin its borders racial, cultural or linguistic minorities whose
secession would bring about a &dquo;partial or total disruption of the
national unity and territorial integrity&dquo; of the State concerned.&dquo;]

(iv) Other applicationsof the &dquo;double standard&dquo;

44. Nor are even these the only contradictions involved, for
in many concrete instances - of which some are of quite recent
occurrence action supposedly justifiable under those parts of the
-

United Nations resolution that militate in favour of self determina-

tion would be extremely difficult to reconcile with the notion to -

which no less importance is professedly attached - of the non-

recognition of situations brought about by the use of force where
a &dquo;freedom movement&dquo; has received outside support....... Again,
a complete ambivalence of approach is apparent, to be resolved -

in each particular case by reference to purely political, not legal

criteria, -

yet another example of indifference to legal considera-

tions. The same applies to the principle of the outlawry of genocide
or near-genocide, and the prohibition of acts in the nature of

genocide. This is viewed quite differently according to the political

context and the geographical setting involved. Of this, and all the
other cases we have instanced, and many we have not, it is true to
say that what occurs is &dquo;an open assertion of the priority of national
political interest over the restraints of international law&dquo; -
(Friedmann, op. cit. in paragraphs 3 and 18 supra, p. 187).
3. Critique of the deviationist position

.
&dquo;V6rit6 sans peur&dquo;
Devise franchise
&dquo;Veritas temporis filia dicitur&dquo;
ZULUS GELLIUS, Attic Nights XII.xi. 7

&dquo;Truth is never pure, and rarely simple&dquo;

OSCAR WILDE, The Importance of Being Earnest, Act I
*

(A) Evaluation
(i) Does it matter?
45. Yes and no --- If truth is said to be the daughter of time,
it is because, to use a rough English equivalent, in time &dquo;truth will
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out&dquo;, - yet as we are reminded by an author of lighter but very
sure touch, truth is seldom simple and unadulterated. Bearing this
in mind, what sort of an impression is it that we derive from the
deviationist attitudes of which examples by no means exhaustive
-

-
have been given in the preceding sections? We suggest that
it is an impression of something that both, from one point of view,
is relatively unimportant or even trivial, but, from another, amounts
to a distinctly disquieting phenomenon. It may, on the one hand,
seem to be a case of the mountain and the mouse, since the areas
in which these attitudes are manifested are, though extensive, not
unbounded, and large tracts of traditional international law are
left unaffected*, -
while at the same time, in some of the affected
areas, controversy is nothing new*... In consequence, one is
tempted to think: if this is all it amounts to, does it matter very
much? A certain amount of very reputable opinion considers that
it does noto.
46. It does matter -
It always has and it always will, but -

it is important to be clear what it is that matters; and this could

be summed up by saying that it is not the act but the attitude,
not the breach but the repudiation of law. Law has always been
broken from time to time or in certain contexts; but its validity
as law is not on that account denied, -
even the malefactor himself
does not normally deny it. Law will always survive breaches of it
so long as the law as such is not questioned. What is serious, and
can be fatal, is a denial of the legal obligation itself: this is some-
thing that goes much beyond is indeed different in kind from -
-

any demand for a mere adjustment, development, change, revision,

or even repeal of the law. The latter accepts, even if indirectly,
the underlying principle or at least the underlying intention of the
law&reg;, and implies continuity, however tenuous, the former an-

attempted break, in whatever disguise, and therefore a challenge.

47. The challenge to orthodoxy -

This takes various forms.

One is to put forward as correct a view of the law different from
the normal. This claim is usually but a thinly disguised way of
asserting that the law is wrong in principle and unjust, or that its
application in the circumstances would be unjust. This kind of
challenge usually consists in maintaining that the &dquo;traditional&dquo;
rules were mere &dquo;devices&dquo; instituted by the established States in
their own interests or from motives of self-regard, and that they
therefore have no intrinsic, hence no &dquo;universal&dquo;, validity. Such a
contention simply ignores the fact that the orthodox rules were
originally established not for use by older against newer States
but for application as between the older States themselves (see
for instance, n. 31 above), and that they are founded on principles,
going back several - in some cases many - centuries, being
grounded in such elementary and immemorial notions of natural
law, justice and ethics as that wrongs must be righted, seizures
restored or paid for, rights respected and promises kept. Many of
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 the so-called devices are but the application in the field of law of
what would now be regarded as basic human rights, -
ideas reflec-
ted more than fourteen hundred years ago in Justinuan’s definition
of natural justice, later re-echoed by Aquinas: Justatia est constans
et perpetua voluntas suunz cuique tribuerf!6. Other grounds of
non-conformism or exemption sometimes put forward are so-called
&dquo;vital interests&dquo;, or else ideological considerations. Such pleas
can be summarily dismissed:i they have never received a better
answer than that contained in the quotation which we give in the
footnote below97, taken from a recent work. This leaves us with by
far the most important form taken by the challenge, from the point
of view of the future of the rules of customary international law,
namely the contention, which we think it essential to confront,
and to consider in some detail, that these rules do not bind new
States without their consent, given either specifically, or tacitly
by conduct.
(ii) The new State and the question of consent
48. Method of approach The question whether the new State
-

can deny the applicability to itself of any rule of international law it

does not agree with may be approached by considering the place
in any legal system of the principles of natural justice, and what
these really signify. Conformity with such principles may not be a
necessary, just as it certainly is not in itself a sufficient condition
of the existence of the system. But the pertinent consideration for
us is that the particular system known as, or designedly called
&dquo;modern&dquo; or &dquo;contemporary&dquo; public international law, is above
all one that professes to be based on, or to give effect to, principles
of natural justice, or at least not to run counter to them, -

and by
none is this more insisted upon than by those who purport to
challenge the validity of existing or so-called &dquo;traditional&dquo; in -

other words, established - law. What, then, are these principles?

We do not think it possible to give a better general description of
them than that contained in Professor Hart’s classic and seminal
work, the Concept of Law, in which the minimal content, as he
calls it, of natural justice is predicated upon the least that, by way
of what he calls a &dquo;natural necessity&dquo;, must be afforded by law in
order to render the existence of man in society acceptable -

(or,
one could say, even tolerable) (op. cit. in paragraph 39 above,
pp. 190-193). This minimum is stated in a series of what Hart
calls truisms, which have been conveniently summarized by another
writer (Sartorius, &dquo;Hart’s Concept of Law&dquo; in More Essays in
Legal Philosophy, Blackwell, Oxford, 1971, at p. 140) as requiring
&dquo;the protection of persons, property and promises through a
system of mutual forbearances enforced by sanctions&dquo;. If, for the
notion of the protection of persons and property, we substitute
96
Institute Book I, Cap. 1: Aquinas, Summa Theologica, Q. LVIII, ast. 1.
97
Roger Pinto, Le Droit des Relations Internationales, Payot, Paris, 1972,
p. 125, under the rubric of "Les fausses exceptions ou exceptions
politiques."
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 that of international security and the prohibition of the use of
force, and if we interpret &dquo;promise&dquo; as covering treaties and other
international agreements, and unilateral declarations or under-
takings creative of obligation, this description is as applicable on
the international as on the domestic plane..................
49. The jurist’s burden of responsibilit~ ...... - in an era
in which the unilateral, even where excusable, use of force is pro-
hibited except in actual self-defence, but also its collective use for
the application of sanctions is usually, for political reasons, impracti-
cable, or does not occur; and even measures of redress not involving
the use of force are, as we have seen, frowned upon, the only re-
maining &dquo;guarantee&dquo; that &dquo;those who would voluntarily obey shall
not be sacrificed to those who would not&dquo; (which in fact, at present,
they are) must reside in a yet greater degree of that &dquo;mutual
forbearance&dquo; which can no longer be secured by anything outside
its own persuasive influence; -
for we are fast reaching a position
in which the principle of equality operates only to the detriment
of the law-abiding, -
and this is something which only the force
of public opinion -
but above all of juristic opinion can counter.
-

50. Some indispensable truths about consent - This analysis

enables us to formulate the following propositions which, without
prejudice to the wider considerations we shall come to in Part II,
must be insisted upon if what has been gained for international
law in the past is not to be lost, in a number of important fields
and contexts:
(a) If the emergence of a single new State could not of itself
effect any change in any part of the law - and no one has ever
suggested that it could then nor can that of even one hundred
-

new States, for the issue is a qualitative not a numerical one. Any

principle which operated to create a legal tabula rasa for new

States must operate as much for the single new unit&horbar;and even
if it only appeared once in a century as it would for a hundred
-

appearing within a decade. The latter phenomenon may produce

unusual conditions calling for some adaptation of the law, or for the
legal recognition of special circumstances, but has otherwise,
per se, no legal effect.
’

(b) Existing law, as formulated by treaty (whcre so formu-

lated), or as evidenced by the preponderance* of arbitral and
judicial decisions, and of reputable expressions of juristic opinion,
stands until it is changed, and any change, to be operative, must
be such as can be seen to have taken place by means recognized
by the law as having that effect.
(c) Proposition (a) involves only one aspect of a more general
one, namely that new States are automatically bound by existing
international law as they find it at the date of independence or
other method of emergence: otherwise they cannot rank as mem-
bers of the international community, for that community consists
-

of -
indeed could be defined as being that group of States the
-

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 members of which are subjects, and the subjects (if not exclusively,
then par excellence at least) of international law . Membership of
the community therefore ipso facto means being a subject of
international law; and becoming a member of it means becoming
such a subject, or there is no membership; and being or becoming
a subject of a legal system means being or becoming bound by it,
as it stands at the given moment. If these self-evident truths needed
any illustration, an apt one has been suggested by Hart* who
poses the case of the land-locked country that becomes a maritime
State through an extension of its territory resulting in the acquisi-
tion of a coast-line. It could never be contended that such a country
did not immediately become subject to the rules of the international
law of the sea, or that it could claim that, not having specifically
consented to these, it was not bound by them. There is however no
basis of principle on which this case could be differentiated from
that of the new international entity emerging as the newly-indepen-
dent sovereign of territory already endowed with a coast-line,
merely because this entity finds itself there so to speak, instead of
acquiring the territory as an increment;- nor equally is there
any basis of principle on which it could be said that this is true
only for the law of the sea and not for other fields of international
law, or not for international law generally.
(d) It is sometimes loosely said that international law depends
on the consent of States, as evidenced by practice or given by
treaty or otherwise. If this means the continuing - and therefore
withdrawable consent of States, ~it is incorrect. What is correct is
-

that, in so far as consent is needed, the process for which it is

needed is in the formation of rules of international law. But such
consent must mean, as both a requisite but also a su ff caent con-
dition, the consent of those States that are in existence at the time
when the law or particular rule is formulated or adopted - not
States as yet unborn; - or else no new rule could ever come
definitively into being. And the law or rule, once formed or adop-
ted, thereupon becomes part of the corpus jurus gentium. The si~tua&reg;
tion respecting it is no longer a normative but a fully constituted onelo5e
No continuing consent on the part of the framing States is needed.
such as they or any of them could take back at will, -
or alterna-
tively, such continuing consent is a matter of irrebuttable presump-
tion. Rules once made can only be changed or repealed by due
process of law: they cannot be as if they were still in the making:
there cannot be tabula rasa and a fresh start every time the com-
munity is enlarged.
(e) The argument that the rules can continue to apply to the
States already bound by them, but do not, or need not, bind the

105
During the process of formation, existing States can of course withold
or delay their consent and thus prevent or impede the final emergence of
the rule; but this is another matter, for our views concerning which (and
the problem of "the single recalcitrant State") see in Hague Recueil for
1957, Vol. II, Section 58, pp. 99-101.
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new State without its consent, is incompatible with the existence
of single legal system&dquo;’, and disruptive of the notion of a single
a

community supposedly subject to such a system.

(f) [Nor can it credibly be maintained] that, through a process
akin to a sort of novation, a community enlarged by the accession
of new members is no longer the same community juristically,
but a different one, - that the case is not one of joining a com-
munity that remains the same entity, only bigger, but of transform-
ing it into something other, in respect of which the previous rules
no longer apply, and for which new rules must be made. This
indeed is precisely the claim made in an important article to which
we have already referred (supra, paragraph 8, n. 21) where it is
contended (p. 888) that*:
&dquo;Whatever the basis of obligation in the past, when she
international community. was restricted to only a few States,
including those, fewer still, admitted into it from time to time,
the birth of a new world community has brought about a
radical change which makes the traditional basis of obligation
outmoded&dquo; - (our italics).
Regrettably, this highly elliptical piece of reasoning is incorrect
in almost every particular : -

[Here follows a phrase by phrase

refutation of the italicized passages, which is not here reproduced].
(g) Even if, however, it were conceded that the accession of
.so many new members had wrought some kind of transformation
of the community, ordinary legal principle would still require the
consent of those thereby being transformed, before any changes
in the legal system as a whole could take place in such manner as
to affect them. The analogy is that of the novation of a contractual
obligation by the substitution of a different or additional party,
which requires the consent of the existing other party or parties to
the contract: it cannot be imposed unilaterally. In the absence of
consent, the argument in question is as futile as it would be to
claim that the accession of a new party to an existing treaty ipso
facto opened up all its provisions to re-negotiation. Just as a treaty
must, failing the consent of the other parties, be accepted as it
stands or not at all, so must the existing rules of any legal system,
-
and so, hence, must the rules of customary international law.
(h) A final point that should be conclusive is that in so far
as, contrary to the views expressed above, the specific consent of
a new State to be bound by international law might be necessary,
it is in effect given by any such State when it becomes a member
of the United Nations, for in seeking admission, the applicant
-

has to declare its acceptance of the principles of the Charter, and -

these, via the Preamble (third paragraph) and Article 1, paragraph

1, involve a clear recognition of the validity of international law
for member States ;-
136 on a purely regional basis,
Except but then only as between the States
&mdash;

of theregion, and not in a manner opposable to States outside it, which

however is precisely what the protagonists of this theory expect.
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 (iii) The
challenge to the right of diplomatic protection,
the new &dquo;Calvo-ism&dquo;
or
51. There is a further far-reaching aspect of the challenge to
the established rules of international law namely the claim
......

that the right of protection and of interposition by States in respect

of the persons and interests of their nationals abroad has no foun-
dation of principle and should be abrogated, being merely another
of the so-called &dquo;devices&dquo; whereby the national self-interests of
stronger States have in the past been pursued at the expense of
weaker ones. What we have here is essentially an attempt to
generalize into a universally applicable doctrine the principle of
the &dquo;calve clauses.
[Passages are cited in which this view is maintained. Its un-
tenable character is then demonstrated. There is in fact] scarcely
any view so well supported by judicial and other authority in the
field of international law as that which identifies the interest of the
State with that of the individual, what has been called the &dquo;old
-

Vattelian fiction&dquo; (only it is no fiction) &dquo;of the injury to the State

through the injury to its national&dquo;115, even where the individual
sustains personal or moral rather than material prejudice
(iv) Conclusion
52. Looking back
what we have said in the preceding
over
sections, it seems to us not to be too much to conclude that unless
the views we have expressed, particularly in paragraphs 50 and 51,
are admitted, at least in principle, and receive the active support -

again at least in principle of all responsible international lawyers,

-

there can be
worthwhile future for customary international
no
law; for the attitudes we have sought to confront go far beyond
-

opposition to any particular rule of international law, and present

a challenge to the whole system. We shall now investigate a little
more closely the causes of these attitudes.

(B) Causes of deviationism

(i) Ephemeral or insubstantial
53. Sel f -interest and ideology .........................
54. ~umbe~°s - the sudden irruption within such a short
period of large numbers of new States.........................

c) The so-called "Calvo" clause was a provision that some governments

insisted upon including in contracts, with, or concessions given to,
foreign business or industrial interests or public utility undertakings,
whereby the latter purported to renounce any right of appeal to, or
diplomatic intervention by, their own governments. Such clauses usually
failed to achieve their purpose, and the practice became discredited.
115
Philip C. Jessup, A Modern Law of Nations, the Macmillan Company,
New York, 1949, at p. 116.
Mavrommatis Palestine Concessions case, P.C.I.J., Series A, No. 2
116
A/B, No. 76 (1939, at p. 16: and see also per Judge Gros in the recent
(1924), at p. 12; and Panevezys-Salduliskis Railway case, P.C.I.J., Series
Barcelona Traction Company case I.C.J. Reports 1970, at p. 269.
&mdash;

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 55. Fear of political or economic domination - [by older or
more advanced States.] ......................................
[Each of these has been a contributory factor, but none con-
stitutes a root cause.]
(ii) More solid and persistent causes
56: Nationalism and the dogma of sovereignty it is no doubt
-

understandable that peoples suddenly finding themselves possessed

of a new sovereign independent status should misconceive the
legal implications of the principle of sovereignty as being something
that places them above the law; or to summarize their thought
more accurately, allows them to choose for themselves the extent to
which they will (voluntarily) conform to the law or not. Such a
-

notion of sovereignty is of course irreconcilable with the whole

concept of any system of law, on the international or any other
plane&dquo;8; for law implies restriction; and a legal system is neces-
-

sarily something in which sovereignty finds a place but, for that

very reason, cannot be outside the system or above the law. Again,
this is something specifically recognized by the Draft Declaration
on the Rights and Duties of States (ante, paragraph 27), the final
article of which provides that:
&dquo;Every State has the duty to conduct its relations with other
States in accordance with international law and with the
principle that the sovereignty of each State is subject to the
supremacy of international law&dquo; -

(our italics).
A legal definition of sovereignty in international law, as it is now,
might be that it consists of all those powers which the State has
not parted with voluntarily by treaty or other form of international
agreement or engagement, or the extent or modus operandi of
which is not governed by any rule of customary international law.
Thus, as it has been well put, State sovereignty consists of &dquo;a
residuum of discretionary authority circumscribed by law&dquo;119. This
view of the matter was authoritatively brought out in the locus
classicus furnished by the dicta of the Permanent Court of Inter-
national Justice in the Tunis and Morocco Nationality Decrees
case-(I.C.J. Reports (1923), Series B, No. 4), concerning the
question of the content of the notion of domestic jurisdiction or
reserved domain, -
for it is pre-eminently in the field of what,
according to international law, lies within its domestic jurisdiction,
that the sovereign powers of the State can, from the international
standpoint, be exercised untrammelled. If the two notions do not,
theoretically, exactly coincide, they are in practice very close, and
118
See per Sir Hersch Lauterpacht in paragraph 23 above.
119
Jenks, Law in the World Community, op. cit. in n. 30 above, p. 33. The
word "circumscribed" is important. We may recall here what was said
earlier (
supra, paragraph 23) about the legal dangers for the rule of law
of the theory that international law permits all it does not actually
prohibit, despite the convenience of this theory as a means for the
avoidance technically, or in form, of a situation of non-liquet.
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 what the Permanent Court said about the relative character of the
concept of domestic jurisdiction, as being one that &dquo;depends upon
the development of international relations&dquo;, is exactly reflected in
the concept of sovereignty as being the residuum of what is left to
the State outside its engagements and the rules of internaaional law.
If this is not to be the case, we can only re-echo Georges Scelle’s
last cry of despair&dquo;, to the effeot that if sovereignty is to present
us with the spectacle of &dquo;cent Eta~ts, déclarant eux-memes le
contenu de leurs competence discr6tionnaires&dquo;, then &dquo;mieux vaut
dire avec le po6te: ’Lasciate ogni speranza’: nous resterons
toujours portes de 1’enfer&dquo;.
aux

57. Difficulties of law-amendment in the international field -

Here we come to something that is not only a chief
do indeed
cause of
negative attitudes towards law-observance but also a
principal obstacle in the way of bringing about a modification of
them; - for although international law can be changed, or does
in fact change or develop, the system is one which suffers from the
serious defects that arise from the lack of any common legislator,
the deficiencies of the so-called law-making treaty122 and, in general,
the absence in the international law field of any suf~cient rules in
the nature of what Professor Hart has called &dquo;rules of recognition&dquo;
or identification (op. cit. in paragraph 39 above, at p. 97 et seq.)
-

- i.e. means whereby a law or rule of law can immediately be

seen to exist, if it does exist, or a change in the law can be recogni-
zed as having taken place as for instance occurs on the domestic
-

plane when a law is enacted through the proper legislative processes,

or a judicial decision declaratory of the law is given with effect
erga omnes. As a result, although on <the domestic plane there may
still remain uncertainty as to what the law is (for statutes, judicial
decisions, etc., have to be interpreted and applied) there is never
any uncertainty as to what is law. On the international plane there
may be uncertainty under both heads. This constitutes undoubtedly
the gravest of all the handicaps under which international law
struggles, and it goes a long way to account for the fact that,
perceiving no ready way easily or quickly to change the law. even
in those cases where there might be a majority in favour of a
change, States are tempted, if not to break it, then to &dquo;bend&dquo;,
subvert or evade it, by one means or another.

121 In his last article contributed to the M&eacute;langes S&eacute;f&eacute;riad&egrave;s (ed. T&eacute;n&eacute;kides),
1961, Vol. I; cited by Jenks in op cit, in n. 119 above, at p. 34, who also
points out (ibid., p. 6) that in the case of the weak, it is not their
sovereignty, but the law, that protects them from the sovereignty &mdash; and
the law &mdash; of the strong. But in these days who, or what, protects the
122
strong from the "sovereignty" of the weak?
Even where a treaty codifies existing customary law, it is not
as such
opposable to non-parties, although these will of course continue to be
bound by the rules in question on a customary law basis; or a non-
codifactory treaty may subsequently generate customary rules good erga
omnes, including non-parties. But in all this the element of uncertainty is
obvious.
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 (C) Outlook for the Future
[58-60. These paragraphs suggest that the attitudes above
discussed will not vanish overnight, nor will the economic and
other causes for them readily be eliminated. But time will bring
its changes, and the factors that compelled the European and rela-
ted States to evolve a common international law will operate on
a wider plane also. Let would all the same be wrong to underestimate
the antipathy tat exists in various quarters to traditional inter-
national law concepts [passages are quoted] and the warning
- -

given in paragraph 52 supra is recalled &dquo;before going on to the

more positive aspects of our task&dquo;.]
PART II
THE FUTURE
&dquo;If all time is eternally present
All time is unredeemable&dquo;
T. S. ELLIOT, Burnt Norton13’
&dquo;Sed fugit interea, fugit irreparable tempus&dquo;
VIRGIL, Georgics, iii.284
&dquo;O ! call back yesterday, bid time return&dquo;
SHAKESPEARE, Richard II; Act III, Sc. II.
&dquo;... The end crowns all,
And that old common arbitrator, Time,
Will one day end it&dquo;
SHAKESPEARE, Troilus and Cressida, Act IV, Sc. V.
A-The distant ideal
1. The uses of Time
61. The lesson of the Sybilline Books - We must not accept
the pessimistic view that Time is unredeemable135; but these re-
minders that meanwhile Time nies, and once flown cannot be
recovered, should lead us to act on Hector’s view that the end is
what matters, and that Time, the common arbitrator, properly
used, will one day bring this end about136. Can we discern any
guiding principles -- perhaps of a quasiphilosophical rather than
a legal nature - to help us on the road? There is first of all the
lesson implicit in the legend of the Sybilline Books&dquo;. Again and
again it has been seen to happen in the international field - legal
no less than political - that a concession or a change made soon

134 These lines conclude the passage from the same source quoted at the
start of Part I of this study.
135
Or, as (pace the fame of the poet) we would prefer, as a matter of
English, to say, mable".
136
irredee
"
Shakespeare’s lines contain a double lesson; for in the play, Ulysses is
maintaining that the walls of Troy will be overthrown and will "Kiss
their own feet". Hector answers "I must not believe you! there they
stand yet"; and he warns that for every stone overthrown, it would cost
"a drop of Grecian Blood", and so it was; yet Troy fell.
137
The point of the story, often forgotten, is that the Sybil charged the
same price for the three Books that remained as she had originally asked
for the nine (and then the six) Books that Tarquin, last King of Rome,
had with true tarquinian superbity rejected, with the result that she
destroyed them.
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 enough will produce results which that same concession or change
will be insufhcien~t to achieve later on, and which can then only
be purchased at a much higher price. A prime example of this is
afforded by the question of the breadth of the ’territorial seao, -

and many more examples could be given, illustrative of the adage

&dquo;Agree with thine adversary quickly whilst thou art in the way
with him&dquo; (St. Matthew V, 25). Another principle of conduct
might be that summed up in the saying &dquo;Drive the nail that will
go&dquo; (Old Adage). It is by a steady expansion of the realm of the
possible that progress is made, rather than by a leap for the ideal.
Finally, if time is the foe, it is also the friend, - for in the words
of the preacher, &dquo;To everything there is a reason, and a time to
every purpose under the heaven&dquo; (Ecclesiastes III, 1). It is by
working with the times, without necessarily approving everything
that they contain, that the times will be changed and (we must hope
so) be improved. ,

2. The &dquo;Blue-Print&dquo; World

&dquo;
’It sounds lovely’, said Anne.
&dquo;
’The distant future always does’
ALDOus I-iuxLEY, Chrome Yellow

,
&dquo;Councils to which
Time hath not been called,
Time will not ratify.&dquo;
IGNOTUS
62. A world federation? We must needs briefly consider
-

what the ideal for an international legal system would be if the

political conditions in which it could function existed, or seemed
to have any realistic chance of coming into existence. For such
a situation there are of course already numerous &dquo;blue-prints&dquo;141,
and indeed schemes of one kind or another have been put forward
at interval for centuries142. Their details vary considerably, but of
most of them one thing can be said, namely that, probably, they
would be realizable only if the conditions they aim to produce
already existed, and then they would be unnecessary.
[Here, the Report, ruling out any likelihood of a world unitary
State, imagines a world federation of nation-States, subject in such
matters as finance, inter-state trade, and the maintenance and use
of armed forces, etc., to a central government located in a federal
capital. Such a system] would be a macro-cosmic expansion of
what already exists now micro-cosmically within various of the
world’s State federal systems. Numerous permutations and com-
binations of it can be imagined, and we will not attempt to itemize
them.

141
See for instance those contained in Clark and Sohn’s World Peace
Through World Law.
Starting in 1305 with the
142 De Recuperatione Terrae Sanctae of the
Frenchman, Pierre Dubois.
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 withering-away of international law and the flaw in
63. The
Utopia --- ~iven such a consummation, international law in the
formal sense would cease to exist for, as its name implies, it is
essentially a law between nations, and this in turn implies nations
that are independent of, or at least not federated with one another.
In so far however as the same type of question might tend to go
on arising between component units or groups in their federated
condition, as formerly in their independent capacity, a considerable
part of the substantive content of international law «we will -

not attempt to indicate what) would remain intact and would

-

be reflected in central federal (or regional) law, though transmuted

into that law. International law in a modified form would in fact
become the inter-state law of a world federation, on the analogy
of inter-state law in the various federal States of to-day. The truth
is that the intellectual distaste which, as a jurist, we feel for the
idea of our Utopia, and any other of the kind, is that it solves
too much. It disposes of difficulties not by dealing with them on
their merits, but by creating conditions in which they must auto-
matically disappear - in short be transcended. But - and. this is
thepoint it would be a process of transcendence not of resolution.
-

Naturally if there had never been a world of independent nation-

states if the world had developed on unitary lines
-
there would -

be no problems or not these problems. But then, there would

-

also be no international law. Our task as international jurists is

not to imagine conditions in which the Gordian knot would be
cut by the fading-out of the independent nation-State, or its absorp-
tion in a larger federal unit, but to make the international legal
system work in the world of the natian-Sta~te, not of course -

necessarily exactly as it is now, but as it seems likely to be or

become in the reasonably foreseeable future ...... [a future that
does not seem to hold out much chance of the disappearance of the
nation-State as a separate political entity].
’

64. The parochial spirit - Indeed all the indications are

unfavourable; and in support of this view we are able to cite the great
authority of the late President Charles De Visscher. Apart from
the fact that most men are not internationally minded, and that
what interests and excites the great majority is national not inter-
national politics and affairs, he points out that the nation-State
owes most of its cohesion and solidarity as a unit to the fact that
it so to speak comes up against other nation-States144: e

&dquo;C’est au contact du dehors que tout groupe social se differ-

-ncie et prend conscience de lui-m8me-, sa solidarity ne
s’afhrme integralement qu’envers 1’6tranger, L’Etat moderne
doit sa coh6sion historique et sa forte individualisation aux
pressions exterieures, aux sentiments de loyaut6 a la collectivit6
nationale qu’elles ont susdtés et stimul6s.&dquo;
144 Th&eacute;ories et R&eacute;alit&eacute;s, Editions A. Pedone, Paris, 4th revised edition, 1970.
at p. 111.

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 Per contra, the international community as a global whole lacks
those extra-terrestial sources of rivalry, friction or even danger
that might assist it towards self-realization as an integrated unit.
such as would be the case if one could imagine intelligent political
life developed on a nearby planet (loc. cit., pp. 111-112)1
&dquo;La communaute internationa~le ne b6ndficie pas de ce facteur
cl~cisif de coh6sion sociale. Eile ne peut y substituer que
rappel infiniment moins puissant A des sacrifices consentis
a un bien commun supranational dont la perception, source
de tout progr~s, reste peu accessible a l’immense majoritd
des hommes.&dquo;
In a striking illustration, very pertinent in the present context,
President De Visscher went on to point out, as evidence of this
situation, that whereas on the national plane it is a country’s vital
interests and not minor matters that give rise to concrete solidarity
and cohesion expressed in action, the exact reverse is the case on
the plane of the international community, where States give their
co-operation fairly readily in respeot of relatively minor matters
of a technical or economic character, but not when it comes to
more vital matters such as issues of war and peace, when the
tendency is to adopt predominantly nationalistic attitudes (p. 112j-.
6‘...les solidaritcs faiblissent a mesure que grandissent les
perils...: celles qui s’aflfirmen~t alors refluent vers leur foyer
traditionnel, la nation&dquo;.
In a melancholy comment he added that men do not question
supra-national values as a matter of reason, but that, when it comes
to action, it is to national compulsions that they obey.
[65. Here the Report, under the perhaps slightly inapt rubric
of &dquo;The uses of parochialism&dquo;, suggests that one possible way out
of the impasse could stem from the fact that there are] fields in
which it is becoming clear that the nation-State alone cannot assure
the protection of the individual even its own particular subjects
-

or citizens from the prospect of serious harm,

-
and where in
-

the long run only international action, internationally organized

and carried out, will suffice, since the mischief knows no natural
boundaries, and cannot be kept out by any purely national barriers
-

[numerous instances are given. But this is fortuitous, and there

is a better road.]
66. The via humana in politics - Be these things as they
may, or as they will beD, it is by another., though parallel, path
that President De Visscher would proceed, namely by the creation

d) For more horrific possibilities than mere pollution, over-population,

exhaustion of natural resources, terrorism, the possible misuse of outer
space, see for instance the Biological Time Bomb by Gordon Rattray
Taylor, New American Library, Inc. 1968, and Signet Books, 1969; and
Future Shock by Alvin Toffler, London, The Bodley Head, 1970, and
Pan Books, 1971.
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in the minds of men of a genuinely international outlook; and this
is to be achieved not by the use of the power of the State for
power’s sake, or for the augmentation of power, but for human
ends. No mere development of inter-State relations will succeed,
for (p.115).
&dquo;C’est
...
pure illusion que d’attendre du seul amemagement
des rapports interetatiques Fmstauration d’un ordre commu-
nautaire ; celui-ci ne trouve d’assises solides que dans le
développement chez les hommes d’un veritable esprit inter-
national.&dquo;
To achieve this, the nation-State must adopt a new conception
of the internal uses of power, which will ultimately be reflected on
the international plane: there will be no true international com-
munity so long as the State devotes itself primarily to political
ends. What is required is -
within the State a conception of
-

power that will direct its action to human ends (pp. 115-116):
&dquo;... a des fins humaines au lieu de Ie vouer d 1’extension
indefinie de la puissance. On ne peut isoler les rapports entre
Etats de ceux qui, au sein de 1’Eta~t, s’etablissent entre 1’homme
et le pouvoir. Il n’y aura pas de communaut6 internationale
tant que les fins politiques de 1’Etat obscurciront les fins
humaines du pouvoir.&dquo;
Like the Sabbath, the State was made for man, not man for-
’
. ’

the State, and especially not for the rulerso.

67. The via hu~mana in laze shall see later how these
ideas, of which, in the last few paragraphs, we have been consider-
ing mainly the political aspects, can find a reflexion in the spirit of
the law, -

by which we are not now thinking of the law of the

various constituent instruments, treaties and other agreements in
which they find their institutional expression, but in the outlook
of the law itself, -
of that law which Dr. Jenks has so aptly taken
as the title of one of his major works, the &dquo;Common Law of
Mankind&dquo; (op. cit. in n. 30 supra) : -and,this is important because
we are firmly convinced that it will be a very long time before the
world sees the end of the era of the nation-State, even if, on some
fronts, groupings (but still of States) such as that of the European
Economic Community, are beginning to be seen. It is not by
working for the disappearance or transformation of the nation-
State that matters will progress, but by accepting it as constituting
the milieu within which international law and the international
legal system has to endeavour to reach maturity.
[The final part of the Report - to appear in the next issue
of International Relations -
will start with the rubric : ]

B. The nearer reality and the art of the possible

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