Suchergebnisse

Article 50 of the Draft Articles on the Law of Treaties, which were presented by the International Law Commission to the General Assembly in 1966 and which the General Assembly has referred, as the basic proposal for consideration, to the international conference of plenipotentiaries, provides under the heading "Treaties conflicting with a peremptory norm of general international law (jus cogens)" that:
A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

All law," as Professor Gregory Tunkin, the former Principal Legal Adviser to the Soviet Foreign Ministry, has remarked, "is a species of coexistence." I take it that Dr. Tunkin means by that that legal norms, if they are to be really meaningful as law-in-action in any community, must proceed on a basis of the reconciliation of the competing claims advanced by the main social interestgroups in that community. The international law of the era of the Soviet-Western détente, that hopefully has succeeded to the erstwhile Cold War conflicts, is based on just such a species of intersystems accommodations and compromises, highlighted of course by the Moscow Test Ban Treaty of August 1963 but represented also in a series of lesser agreements and adjustments of fundamental interests-conflicts. The essence of international law-making under these circumstances, if it is to yield a viable system of norms that actually will operate as law-in-action in the contemporary World Community, becomes one of looking for genuine mutuality and reciprocity of interest as between the main political-ideological groupings in the World Community.

It has not been established with sufficient clarity and certainty whether a state commits a breach of international law by breaking a contract made by it with an alien. The question needs an answer. It is not one of an entirely theoretical nature. On the answer to it will depend many important consequences. There are four of special significance. First, if the breach of contract is characterized as a breach of international law, the final arbiter of the question whether there had been a breach of contract and of the extent of that breach would be an international court whether as a court of last resort or otherwise. This is the natural consequence of the fact that it is the organs of enforcement of international society that have the power of finally determining questions relating to the breach of legal norms belonging to that society. Municipal courts would not have the final decision. Secondly, the norms applicable by an international court in making such a decision would be the norms of international law and not necessarily the rules of a municipal system of law. International rules should, of course, be applied in determining whether there has been a breach of international law. Thirdly, questions of evidence and procedure relating to the contract would be governed by international law.

Nearly three decades ago I published in this JOURNAL an article in which I tried to prove that even in international law there exist rules having the character of jus cogens; i.e., norms with which treaties must not conflict. Since my eminent colleague in the International Law Commission, Ambassador Tabibi, mentioned in a meeting of this Commission that the view expressed in my article "foreshadowed the solution" embodied in Article 37 of the Commission's draft Convention on the Law of Treaties concerning the problem of jus cogens in international law, I feel obliged to defend this draft against the criticism directed against it by the eminent English lawyer, Professor Georg Schwarzenberger.

The so-called "doctrine and practice of the Continental Shelf," hardly more than ten years old, has, through many unilateral proclamations highly different in character and contents, led at this time to a situation which only can be characterized as one of confusion and abuse. The whole development, especially in its exaggerated claims, gives the impression of a triumphant upsurge of national sovereignty, and threatens to endanger the long-established principle of the freedom of the high seas—a norm juris cogentis of general customary international law.

I Post-War International Civil Aviation Policy -- I. The Basis of Post-War Civil Aviation Policy -- II Trends in Aviation Policy in 1944 and Since -- III. Problems in the Field of Aviation Policy -- IV. Means of Aviation Policy -- V. Integration of Aviation -- II The Law of the Air -- VI. International Legal Norms with Respect to Civil Aviation -- VII. The Merits of Trends in Aviation Policy -- VIII. A New Basis for International Aviation Policy? -- IX. Future Prospects -- X. The Position of the Netherlands -- XI. Specific Developments in Regard to Aviation Policy and Its Legal Basis.

Most writers on international relations and international law still examine the relationship between international law and politics in terms of the assumption that law either should or does function only as a coercive restraint on political action. Textbook writers on general international politics like Morgenthau, and Lerche and Said, as well as those scholars who have specialized in international law like J. L. Brierly and Charles De Visscher, make the common assumption that international law should be examined as a system of coercive norms controlling the actions of states. Even two of the newer works,The Political Foundations of International Lawby Morton A. Kaplan and Nicholas deB. Katzenbach andLaw and Minimum World Public Orderby Myres S. McDougal and Florentino P. Feliciano, in spite of an occasional reference to the non-coercive aspects of international law, are developed primarily from the model of international law as a system of restraint. Deriving their conception of the relationship between international law and political action from their ideas on the way law functions in domestic communities, most modern writers look at international law as an instrument of direct control. The assumption that international law is or should be a coercive restraint on state action structures almost every analysis, no matter what the school of thought or the degree of optimism or pessimism about the effectiveness of the international legal system. With an intellectual framework that measures international law primarily in terms of constraint on political action, there is little wonder that skepticism about international law continues to increase while creative work on the level of theory seems to be diminishing.