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Showing papers in "American Journal of International Law in 1966"


Journal ArticleDOI
TL;DR: In this article, the authors defend the International Law Commission's draft Convention on the Law of Treaties concerning the problem of jus cogens in international law against the criticism directed against it by the eminent English lawyer, Professor Georg Schwarzenberger.
Abstract: 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.

150 citations






Journal ArticleDOI
TL;DR: Gorove as mentioned in this paper traces the legal status of the Danube from the Vienna Congress in 1815 to the present day, but the emphasis of the book is on the developments during and subsequent to World War II.
Abstract: The author traces the history of the legal status of the Danube from the Vienna Congress in 1815 to the present day, but the emphasis of the book is on the developments during and subsequent to World \"War II . After 1919 the Danube became internationalized, open to navigation by ships of all flags, and under the supervision of an international commission throughout its entire navigable length (the \"mari t ime\" Danube had been under the control of the European Commission since 1856). During World War I I the Germans suppressed both commissions and tried to convert the Danube into a \"German\" river. But due to the changed status of power at the end of hostilities, the Danube, from its mouth to the Soviet Zone of Occupation in Austria, became, first de facto then de jure, a Soviet-controlled waterway. Only Yugoslavia's defection from the Soviet camp thwarted the monopolistic Soviet control. Eventually, a more co-operative system, also including neutral Austria, was developed. However, the Danube is open only to the navigation of riparians while others are excluded. Professor Gorove provides a lucid, sober and well-documented presentation of both the historical-political and legal and economic questions surrounding the status of the Danube. This reviewer does not consider this medley of political, economic and legal discussions of one topic harmful or lacking in scholarliness. On the contrary, in his view the subject matter requires such a literary treatment. I t would be rather unrealistic to ignore all these factors in their logical interrelations. However, the writer occasionally wanders off into areas such as the question of \"German assets,\" a discussion of less than vital significance for an understanding of the status of the Danube. It should be remarked in this connection that the ' ' German assets\" had been a \"tool of Soviet diplomacy\" not only because Moscow wished to include among these assets property taken by the Germans through force or duress, but also because the Soviets claimed only the active assets without concerning themselves with the liabilities attached to the property thus expropriated. In such vein the Soviet authorities have taken possession of German-owned plants, etc., in all the Soviet-controlled countries or areas of East-Central Europe, but have refused to pay their debts while collecting all outstanding assets. Mr. Gorove's study certainly fills a gap in the legal and political appraisal of European waterways. For this reason, as well as for its intrinsic value and unbiased judgments, his book deserves favorable consideration.

29 citations



Journal ArticleDOI
TL;DR: In this paper, a state and an alien agree in a contract to arbitrate disputes relating to the contract, in terms which indicate that arbitration is to be the exclusive remedy, need the alien exhaust any other remedy before an international claim may be presented relating to a dispute which falls within the scope of the arbitration clause?
Abstract: Where a state and an alien agree in a contract to arbitrate disputes relating to the contract, in terms which indicate that arbitration is to be the exclusive remedy, need the alien exhaust any other remedy before an international claim may be presented relating to a dispute which falls within the scope of the arbitration clause ?

27 citations




Journal ArticleDOI
TL;DR: In this article, the authors present position papers for Soviet diplomats, and as such will be required reading in every foreign office, including the United Nations and the Council of Foreign Relations of the United States.
Abstract: nated, and he notes that this is done when each influences the other in a progressive way. T. P. Grevtsova is clearer when she notes that the Fundamental Principles of Civil Law and Procedure of the U.S.S.E. require that treaty law be given precedence over municipal law in the event of conflict. Detailed problems of international rivers, of fishing zones, of the regulation of labor, of the recognition of foreign academic degrees, of medical law, and of the history of international law occupy the rest of the volumes, together with bibliographies, book reviews and the proceedings of the Soviet Association of International Law. What can be said on completing reading of these volumes? Congratulations are in order for their preparation. They provide, as they always have, position papers for Soviet diplomats, and as such will be required reading in every foreign office. English summaries will facilitate their use by those not knowing Eussian. But then one turns to substance. The law in development is an intriguing subject, and for men of every land the effort is to mold it, in directions favorable to social and political aspirations. No non-Marxist can be expected to accept proposals which equate all progressive steps with what provides advantage to Soviet policy. No American can be happy with the drumbeat of denunciation of United States policy on every issue, and classification of American scholars as supporters of imperialism and neo-colonialism. No American wants to perpetuate the evils of the past. All rejoice in the liberation of colonial peoples. The quarrels with Soviet authors are not over policies focused on liberation but with ultimate goals for those who are liberated, and with some of the results of liberation as they have appeared in recent years. The formation of minute states incapable of survival in a turbulent world of competing great Powers, and domestic chaos, which invites intervention and intrigue, are not to be desired by those who relate peace to lack of warfare and not to movement in the direction of adoption of Marxian Socialist models. Thought must be given to more than liberation. Lawyers must devise means of meeting aspirations through United Nations procedures, and little is done by these volumes to go beyond the first steps. Further, when goals are desirable only if models established by the U.S.S.R. are followed, Africans, Asians and Latin Americans who insist on preservation of humanistic values, which Stalin never knew, can be excused for rejecting the advice. There are other roads to real independence than those prescribed by the authors in these volumes.



Journal ArticleDOI
TL;DR: For almost a decade and one-half the Chinese participation question has challenged the United Nations as discussed by the authors, and the General Assembly will doubtlessly once again grapple with the question, but past debates do not promise rational solution.
Abstract: For almost a decade and one-half the Chinese participation question has challenged the United Nations. In its coming session the General Assembly will doubtlessly once again grapple with the question, but past debates do not promise rational solution. In brief summary, two claimants seek, or are proffered by others, to participate as the “State of China” in the General Assembly, the Security Council, and the Specialized Agencies. The Government of the Republic of China (Nationalist China) has held the seat since the founding of the United Nations. The People’s Republic of China (Communist China), however, commands resources of considerable magnitude, and events of recent years have enhanced its claim to participation.


Journal ArticleDOI
TL;DR: A good deal of the creative energy of international lawyers in recent years has been absorbed in the continuing Soviet-Western debate revolving around the special Soviet juridical concept of peaceful coexistence or, in its Western-style and United Nations-endorsed euphemism, the concept of friendly relations and co-operation among states with differing political and social systems as mentioned in this paper.
Abstract: A good deal of the creative energy of international lawyers in recent years has been absorbed in the continuing Soviet-Western debate revolving around the special Soviet juridical concept of peaceful coexistence or, in its Western-style and United Nations-endorsed euphemism, the concept of friendly relations and co-operation among states with differing political and social systems. Whether in the United Nations Sixth (Legal) Committee, in the authoritative, if private, International Law Association, even in the World Federation of United Nations Associations' scientific seminars, or at times in the International Law Commission itself, the discussion over coexistence (friendly relations) has tended to be a straight Soviet-Western dialectical contest that has been concerned sometimes with hammering out minimum principles of Soviet-Western accommodation in the Cold War era, and sometimes seemingly with the making of propaganda points that would be helpful in carrying on future Soviet-Western dialogues or even more perhaps in carrying the ideological war to the neutralist, uncommitted countries. The apparent achievement of a reasonably firm or stable Soviet-Western detente, with a consequent increasing focus on extension and development of minimum principles of world public order on a basis of reciprocity and mutuality of interest as between the two main competing legal value systems has been amply commented on already. In a sense, the international law of the detente, constructed on a pragmatic basis of inter-systems agreement or consensus, and demonstrated empirically in the actual record of such de facto accommodations and give-and-take, represents a species of “new” international law.* At least, it represents a new gloss on the old customary international law, albeit a gloss that is specially concerned, in the special societal conditions of the contemporary world community, with considerations of security, of stability of settled expectations, and of certainty and the avoidance of surprise in inter-group (more accurately inter-systems) relations—the old “Watchman’s State” legal virtues.


Journal ArticleDOI
TL;DR: For 167 years, the shadow of the Logan Act has fallen upon those Americans who trespass on the Federal monopoly of international negotiations which it creates as mentioned in this paper, and up to three years' imprisonment and a $5,000 fine have been imposed on those who, without authority, communicate with a foreign government intending either (a) to influence that government with respect to a controversy with the United States or (b) to defeat the measures of the U.S.
Abstract: For 167 years the shadow of the Logan Act has fallen upon those Americans who trespass on the Federal monopoly of international negotiations which it creates. In theory, up to three years’ imprisonment and a $5,000 fine await those Americans who, without authority, communicate with a foreign government intending either (a) to influence that government with respect to a controversy with the United States or (b) to defeat the measures of the United States. Though only one indictment and no trial have taken place under the Act, who can tell when a new Administration, thinner skinned or harder pressed than its predecessors, may in its irritation call into play this sleeping giant? Now, at a time when domestic opposition to certain aspects of our foreign policy has reached a pitch unknown for many years, it would be well to reflect upon this curious product of the confluence of criminal law and foreign relations law before we are in fact confronted by a test of its strength. All could be the losers from an unpremeditated encounter—the defendant by finding himself, perhaps to his very great surprise, the first person subjected to the Act’s severe criminal penalties, the Government by finding itself stripped of its long accustomed protection by a ruling that the statute as it now reads is unconstitutionally vague or restrictive of free speech. Despite its long desuetude as a criminal statute, the Act represents a principle which I cannot help but think is, at its core, a salutary one; that America in sensitive dealings with other governments “speaks with one voice.” It embodies the concept of bipartisanship, that quarrels about foreign relations are fought out domestically and not with the adversary. It deters sometimes very ill-advised attempts to take the conduct of foreign affairs into foolish and unauthorized hands. On the other hand, it cuts into freedoms which we regard as having the highest value, and many of the situations in which its use has been suggested clearly involve no danger that would justify such a restraint.



Journal ArticleDOI
TL;DR: The Permanent Court of Arbitration (PCA) was established at the Hague Conference of 1907 as mentioned in this paper, where the delegates agreed to the principle of compulsory arbitration and its applicability to international agreements.
Abstract: The Hague Conference of 1907 is over and the delegates return to their respective countries. Aspirations for the pacific settlement of international disputes have been voiced and a list of possible arbitrators has been drawn up described by the formal name of the Permanent Court of Arbitration. Well and good! No obligation was accepted to have recourse to the Court, but at least the Conference went so far as to declare its acceptance of “the principle of compulsory arbitration” and its applicability to international agreements. At the same time the Conference declared that the divergencies of opinion in respect to compulsory arbitration “have not exceeded the bounds of judicial controversy,” and that the delegates, in the course of their long collaboration, had succeeded “in evolving a very lofty conception of the common welfare of humanity.”

Journal ArticleDOI
TL;DR: The Viet-Nam hostilities arose and have escalated because of the radically different perceptions of the situation by the principal parties as mentioned in this paper, and a settlement might be possible if each side understood the image perceived by the other.
Abstract: The Viet-Nam hostilities arose and have escalated because of the radically different perceptions of the situation by the principal parties. A settlement might be possible if each side understood the image perceived by the other. An analysis of the interpretation of the situation which would result from an impartial application of international law, presumably reflecting the consensus of world opinion, might also be helpful.


Journal ArticleDOI
TL;DR: The international community has already taken the decision, in the form of a General Assembly resolution, to support the series of practical measures designed to strengthen the growth of international law which have been outlined above.
Abstract: and the provision of financial support to existing ones. The extent to which such possibilities can be realized will clearly depend on the amount of voluntary contributions the United Nations receives from Member States and other sources, as well as on the degree of support the program receives from international lawyers. The international community has already taken the decision, in the form of a General Assembly resolution, to support the series of practical measures designed to strengthen the growth of international law which have been outlined above. I t is hoped that the international lawyers of the world will be encouraged by this step and that they will help ensure the success of the venture by giving it their full backing.




Journal ArticleDOI
TL;DR: The take-off point for the economic use of nuclear fuels for generating electricity appears to have now been reached as discussed by the authors, which is a significant milestone in the development of nuclear power.
Abstract: Since 1945 the number of nations possessing nuclear weapons has increased five times and stockpiles of nuclear weapons have increased thousands of times. The enormity of the build-up of capabilities for nuclear destruction has largely overshadowed the remarkable progress that has been made since 1945 in developing the peaceful applications of nuclear science. The take-off point for the economic use of nuclear fuels for generating electricity appears to have now been reached.


Journal ArticleDOI
TL;DR: Two international programs have developed recently permitting inspections, one by national teams and the other by international teams as mentioned in this paper, which are limited in scope and applicability, and concern arms control.
Abstract: Two international programs have developed recently permitting inspections, one by national teams and the other by international teams. Although the two programs concern arms control, they are, however, both limited in scope and applicability. The Antarctic Treaty of 1959 authorizes national teams to inspect any area in Antarctica to verify compliance with prohibitions in the treaty against military uses. Under the, Statute of the International Atomic Energy Agency (IAEA), arrangements have been adopted which authorize Agency teams to inspect the peaceful uses of nuclear materials and facilities to ensure that they are not being used to further any military purpose.