Showing papers in "American Journal of International Law in 1964"

Shaping the World Economy. Suggestions for an International Economic Policy. By Jan Tinbergen. New York: The Twentieth Century Fund, 1962. pp. xvii, 330. Index. 4.00, cloth.

Abstract: textabstractIn Dutch: Naar een Nieuwe Wereldeconomie: voorstellen voor een internationaal economisch beleid, Rotterdam University Press, Rotterdam, 1965, XV + 335 p. In Spanish: Hacia Una Economia Mundial: sugerencias para una politica economica internacional, Series Biblioteca de Economia No.7, Orbis, Barcelona, 1985, 242 p.

State Breaches of Contracts with Aliens and International Law

Abstract: 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.

The position of the individual in international law

Abstract: lead to hostile responses. This can be achieved, according to Mr. Burton, by \"conditioning\" national policies in the direction of political non-discrimination, non-intervention in domestic affairs, i.e., neutralism. Not surprisingly, Mr. Burton disapproves of the political activities of the United Nations, and would prefer the development of regional and functional agencies capable of \"conditioning\" national policies in the way he favors. He hopes for an ultimate break-through from functionalism into political fields. That a condition of peace is a function of national policies is a truth all too often neglected by the enthusiasts of world forces or of a world state. What causes wars is not merely the absence of superior power but also the absence of consensus among nations, and the whole range of concrete grievances that divide them. However, Mr. Burton's theory suffers from a weakness that has affected much functionalist thinking in international relations: a deep, if implicit, belief in a gradual mutation of the nature of the international competition, if only the \" r i g h t \" kind of national policies and international bodies came to prevail. There is something both a bit too vague and too bloodless, or too unpolitical, about Mr. Burton's theory. He is much too discrete about the kinds of national policies that would provoke peaceful responses. Also, is it not both the structure of the international milieu and the nature of the ends (material and spiritual) sought by states which condemn the world to conflict and create the risk of war? A universe of states that would all be neutralist strikes this reviewer as even more Utopian than the world state Mr. Burton dismisses; the latter implies an end of the game, whereas Mr. Burton's conception supposes that the game would go on, with the same players but somehow with entirely new motives and rules. That new rules have become necessary because of nuclear weapons is obvious; but Mr. Burton, who criticizes scholars who over-emphasize strategy, is himself guilty of underestimating the role of force as both the goad and the ever-present means of competition in world affairs. His theory reminds one of Rousseau's; but Rousseau was more logical in his Utopianism, since he advocated not merely \"neutralism,\" but the reduction of contacts among nations to the strictest minimum. To use Kenneth Waltz's now famous categories, Mr. Burton's theory of conflict is a \"second image'\" theory, but the image is not well focused and the picture is incomplete.

The Nuclear Test Ban Treaty and International Law

Abstract: The Test Ban Treaty of August 5, 1963, prohibits nuclear weapon tests or other nuclear explosions in the atmosphere, in outer space, or under water, i.e., in the environments where detection from outside the territory of the testing state is possible. Underground nuclear explosions are not prohibited as long as they do not cause radioactive debris to be present outside the territorial limits of the state under whose jurisdiction or control such explosions are conducted. The parties to the treaty also undertake to refrain from “causing, encouraging, or in any way participating in” the carrying out of explosions anywhere which have any of the prohibited effects. The treaty is, as President Kennedy pointed out in his message to the Senate, “the first concrete result of 18 years of effort by the United States to impose limits on the nuclear arms race.” Similarly Lord Home, as he then was, said as Secretary of State for Foreign Affairs of the United Kingdom, that the limited test ban in three environments was “a good thing in itself not only first, because it reduces the danger of pollution of the atmosphere, but, secondly, because it makes the first agreement of substance which we have been able to make with the Russians for a very long time.” Mr. Khrushchev, on his part, praised the treaty as a “document of great international significance” and said that “its conclusion means a major success for all people of goodwill who for many years have been actively fighting for the discontinuance of nuclear tests, for disarmament, for peace and international friendship.” It is stated in the Preamble to the treaty that the parties seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and are determined to continue negotiations to this end.

Disarmament : its politics and economics

Abstract: ment of whatever devices will illuminate the topic, the book is as much, if not more, a political science treatise as it is a legal treatise. Indeed, in the first section the effort to develop a conceptual framework leads to a review of several speculative studies, among them—again unfortunately for non-readers of German—such less well-known theses as those of Otto Hintze and Manfred Langhans-Ratzeburg, the latter's ideas classifiable as geo-jurisprudence. A problem brought to our attention and meriting further study is one paralleling the much-discussed problem of the reception of foreign law, namely, the reception of constitutions and of particular types of constitutions. Discussion of the \"West German Constitution is, in an important sense, employed as illustration rather than as central theme. Perhaps the most concise illustration of the significance of foreign affairs and their influence is the statistic that in 1953-1957, with the Government responsible for 51% of the bills introduced in the legislature and for 72% of those passed, the Foreign Ministry's total of 71 bills was exceeded only by the Finance Ministry's total of 81 bills. That the West German situation at the end of the 1950's is primarily illustrative is further shown by the discussion of methods introducing the last portion of the study. Discussion of methods, brief and to the point, is phrased in terms of constitutional interpretation with the aid of legal history, of comparative law (in The Civic Culture (1963) Gabriel A. Almond and Sidney Verba have suggested that all social science studies are essentially comparative, whether or not deliberately so) and of the history of ideas. Of the three approaches, greatest attention is devoted to comparative law, its uses and limits, with important incorporation of methodological discussion by students of comparative government—again, a bridge connecting law with political science. Legal history and comparative law are treated as foundations for the construction of models, of the \"ideal types\" of Max Weber and of the \"empirical types\" of Georg Jellinek. If criticism is due, it is to the limitations of coverage in the volume, particularly in the comparative section, which is limited to the Constitutions of the United States, France, and Belgium—in the Belgian instance apparently without access to the provisions of the antecedent Netherlands Constitution of 1815. I t is to be hoped that Professor Baade will pursue his investigations further, making continued use of the several techniques available to produce the more comprehensive study suggested by the book under review, which builds very effectively upon the earlier related studies listed in a 21-page bibliography. WESLEY L. GOULD

Diversity and uniformity in the law of nations

Abstract: In addressing oneself to the subject of "diversity and uniformity in the law of nations, " it is well to suggest at the outset that these two attributes are perennially present not only in the international legal system but in many, if not all, legal systems. This is a statement of the obvious, but it merits some attention at a time when there is such a spate of writing about the changes in international law which are said to be required to meet the needs of an international society which is itself experiencing great changes. Back in 1931 Maurice Bourquin gave a description so applicable to the situation today that it merits quotation at some length: C'est devenu une banalite de dire que le droit international est en pleine transformation. Non seulement ses emprises sur la vie des peuples se multiplient, mais les conceptions qui l'inspirent subissent un profond renouvellement. Certains juristes, par attachement a la tradition, s'efforeent de minimiser la port6e de ce mouvement, de la presenter comme un simple prolongement du passe, dont les assises resteraient intactes. Assurement, tout s'enchaine plus ou moins dans le developpement des societes, et les revolutions elles-memes, malgre certaines apparences, se soudent 'a 1'etat de choses qu'elles ambitionnent de detruire. Mais s'il n'y a point, a vrai dire, de solutions de continuite, il y a des phases d'evolution rapide, oiu le paysage ancien se desagrege sous les regards du spectateur, pour laisser apparaitre 1'e6bauche d'un paysage nouveau, dont le temps precisera les contours et qui finira par regner sans partage. Que nous soyons dans une telle periode, trop de signes 1'attestent pour qu'il soit permis d'en douter. C'est ce qui fait aujourd'hui 1'interet passionnant du droit international. C'est ce qui fait en meme temps la difficulte de son etude. L 'image qu'il offre est complexe, pleine de traits contradictoires, de

International non-governmental organizations and economic entities : a study in autonomous organization and Ius Gentium

Abstract: Africa which the experts envisage \"something on the lines of the European Court of Human Rights\" be established. This would mean a court to which aggrieved individuals do not have access. In such a situation Mr. Robertson's emphasis on the fact that the jurisdiction of the Court is \"very much of a contingent remedy\" (p. 98) is of particular value. Among the appendices we find, in addition to the earlier instruments, the full text of the European Social Charter and also the texts of the three Protocols to the Rome Convention which were opened for signature in 1963 and which have also been reprinted in this JOURNAL.

A Soviet Contribution to International Adjudication: Professor Krylov’S Jurisprudential Legacy

Abstract: This article deals with Professor Sergei Borisovich Krylov’s (1888-1958) work as an example of the impact of Soviet theory and practice on international adjudication. Krylov’s statements and performance regarding this institution are examined in the light of his relationship with his state. By bringing out some of the factors that motivate an individual acting in a state-oriented society, further appraisals of the rôle and the effective limits of international adjudication, with Soviet participation, may be aided.

The Complexity of Sabbatino

Abstract: Banco Nacional de Cuba v. Sabbatino is a seminal decision, interpreting significantly the role of a domestic court in an international law case. At the same time, it avoids reaching definitive results. Very little is settled once and for all by the Supreme Court. This realization prompts caution. Sabbatino will not yield an authoritative interpretation, except, perhaps, as a consequence of subsequent Supreme Court decisions. A commentator must be content, therefore, with the less dramatic claims of provisional and partial analysis. Those that claim more are misleading us. The complexity of Sabbatino is almost certain to poison hordes of over-clarifiers who are descending upon this major judicial decision as vultures upon a freshly dead carcass.

Das Verhältnis von Parlament und Regierung im Bereich der auswärtigen Gewalt der Bundesrepublik Deutschland : Studien über den Einfluss der auswärtigen Beziehungen auf dietinnerstaatliche Verfassungsentwicklung

Abstract: 26). Then follow a discourse on nationality at the time of the Congress of Vienna (pp. 27-38) and two extensive discussions on nationality problems after the first World War (pp. 39-91) and the special problems, highly complex, of nationality in Alsace-Lorraine under the Versailles Treaty (pp. 92-179). On the latter subject Schatzel's criticism is moderate and objective and, what is more, complemented by a recognition of the novel problems which urged a new approach to nationality questions in the wake of the 1914-1918 war. I t is interesting that as early as 1929 he formulated these new problems as follows: emancipation of the married woman; emancipation of the world from the domination of European international law; emancipation of the population from the territory; emancipation of the state from its territory (pp. 158 et seq.). \"The Nationality of Political Refugees\" (pp. 216-243) and \"De facto Nationality and de facto Statelessness\" (pp. 244-254), both written in 1960, do justice to some of the most serious present-day difficulties regarding nationality. The volume winds up with a discussion of ' ' The jus sanguinis of the Married Mother\" (pp. 255 et seq.), in which the author advocates the view that a German woman married to a foreigner should not only have the right to retain her German nationality (which she has had since 1957) but also the right to transfer her nationality to her children; he shows that many modern nationality laws tend in this direction.

Assimilation of National Laws as a Function of European Integration

Abstract: In more than one sense the European Communities are a frontier land of modern international organization. One aspect of the work of the European Economic Community which has thus far escaped the attention lavished on other facets is the multi-pronged effort to reduce the differences among the national laws of the member states. Stated more affirmatively, this is an effort to make the national legal systems of the member states more similar, to “assimilate” them. This effort has much in common with the “uniform law” movement in the United States and with the “unification-of-law” movement which has flourished on the Continent in this century. But it differs from these “uniformity” and “unification” movements in at least two respects

Peace theory : preconditions of disarmament

Abstract: More serious are a number of substantive points on which the author puts forth doubtful propositions. Especially disturbing, in the reviewer's opinion, is a somewhat one-sided view of development processes. Thus, the author over-emphasizes the importance of raw materials (e.g., pp. 13 ff.) while ignoring the role of human resources, and seems to over-estimate the suitability of Western democratic values and patterns for countries with a totally different socio-economic reality (pp. 225 ff.). Similarly, some of the evaluative comments on international private corporations must be regarded as in need of more supporting evidence. (E.g., see the statement on pp. 77-78, where \"serving the public\" and not maximalization of profits is presented as being in fact the primary criterion for decision-making in international private corporations.) Unavoidably in an interdisciplinary endeavor, some of the material taken from other disciplines may also be regarded as incomplete, for instance, the psychological assumptions relied upon by the author (pp. 68 ff.). This criticism involves relatively minor facets of the book, in no way impairing its central message and pioneering character. This book constitutes an important contribution to the seeking of new approaches to the study of the international system and to the social study of law, deserving careful consideration by all who are interested in these areas.

Dispute Settlement: The Chicken War

Abstract: “Chicken War” is a quip for a long-festering controversy that in the summer of 1963 bristled with menace of a possible trade war between the United States and the European Economic Community. Actually, no outbreak of hostilities eventuated; for, in good time, basis for a détente was found. This entailed resort to a dispute-resolution machinery, made possible because of the existence of an organized international forum in which countries have gained experience in the tasks of harmonizing trade interests. How the controversy started, burgeoned and was disposed of illustrates the complications arising from the creation of the Common Market and the ways devised for coping with these and other complications afflicting international trade.

Limitations Upon the Judicial Function

Abstract: The case of the Cameroons v. The United Kingdom concerning the Northern Cameroons, described, in a typical understatement, as “almost unique in the annals of international litigation,”1 has been terminated by a judgment of the International Court of Justice which appears as well to be “almost unique.” In fact, neither the Court nor any of the separate opinions referred to any precedent.