Status of Law in International Society

Status of Law in International Society

RICHARD A. FALK
Copyright Date: 1970
Pages: 697
https://www.jstor.org/stable/j.ctt13x1bg3
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    Status of Law in International Society
    Book Description:

    Professor Falk gives special attention to the political setting that shapes international law and to the creation of those intellectual perspectives which would strengthen world order.

    Originally published in 1970.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-7256-5
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Introduction
    (pp. vii-xii)

    THIS VOLUME complementsLegal Order in a Violent World.Whereas the earlier volume was concerned with the relevance of international law to the regulation of international violence, this second volume widens the arc of substantive concern to encompass the range of subject matter susceptible to international regulation. However,The Status of Law in International Societydoes not undertake a comprehensive description of what is going on within the international legal order. The effort is rather to analyze the jurisprudential and sociopolitical foundations of modern international law. A special part of this effort is to identify what is distinctive about the...

  3. Acknowledgments
    (pp. xiii-xiv)
  4. Part One: An Orientation toward the Political Setting of the International Legal Order
    • Table of Contents
      (pp. xv-xvi)
    • Introduction
      (pp. 3-6)

      THIS initial group of chapters attempts to specify an overall intellectual context. Part One, above all, seeks to depict the implications of acknowledging thequasi-dependenceof international law upon the international political system of which it is a part. The notion of quasi-dependence is used despite its semantic inelegance, to express both thesubordinationof international law to the shape and character of the overall international environment and to identify areas of actual and potentialindependencewherein international law acts as a causative agent of its own. The task set for the international lawyer is to delimit as clearly as...

  5. I. Gaps and Biases in Contemporary Theories of International Law
    (pp. 7-40)

    THERE IS, in my judgment, always present a useful temptation to be highly selective in an essay that considers the adequacy of the body of international legal theory now being relied upon in the academic community of the United States. Such a temptation is especially strong at the present time when many procedures of inquiry are being developed by talented scholars. I have decided not to make a synoptic survey of the work now being done by those international lawyers whose work exhibits theoretical interests.¹ Such a decision does not imply that such a survey would not be worthwhile; it...

  6. Part Two: Expanding Horizons of Authority in the International Legal Order
    • Introduction
      (pp. 87-90)

      THE NATURE of legal authority in international society and the conditions of its effective exercise are among the most elusive subjects in the vast scholarship of international law. Authority is such a fundamental coordinate of legal analysis that its treatment will be decisively shaped by an author’s jurisprudential orientation. The early period of international law developed under the influence of natural law approaches grafted on to the rich tradition of Roman Law, tended to identify legal authority in international society with the nature of reason and with the inherently reasonable, a source of guidance that was at once universal and...

    • IV. Confrontation Diplomacy: Indonesia’s Campaign to Crush Malaysia
      (pp. 91-125)

      IN A Security Council debate provoked by a Malaysian complaint of Indonesian armed aggression Mr. Sudjarwo, the Indonesian representative, made the following comment:

      When Indonesia proclaimed its independence from Dutch colonial rule in 1945, asserting its own sovereignty, was not Indonesia—according to that international law—legally tied to the Netherlands as a colony, possessing legal existence only under Dutch sovereignty? What would have happened if we had had to abide by the application of legal arguments under that international law? The Indonesian Revolution would have been strangled and smothered.¹

      This candid repudiation of traditional international law as it related...

    • V. An Argument to Expand the Traditional Sources of International Law—with Special Reference to the Facts of the South West Africa Cases
      (pp. 126-173)

      THE SECOND paragraph of Article 2 of the Mandate for South West Africa provides: “The Mandatory shall promote to the utmost the material and moral well-being and the social progress of the inhabitants of the Territory subject to the present Mandate.” The most interesting and significant issue of substance presented by theSouth West Africa Caseswas whether the practice of apartheid by South Africa was compatible with the obligations of the Mandatory set forth in the provision quoted above. Of course, the majority opinion of the International Court of Justice disposed of the complaints submitted by Ethiopia and Liberia...

    • VI. On the Quasi-Legislative Competence of the General Assembly
      (pp. 174-184)

      THE PROCESSES of law-creation in international society have never been very clearly understood by international lawyers. It has been traditional to associate the creation of international law with “the sources of international law” contained in Article 38 of the Statute of the International Court of Justice. Such an approach distorts inquiry by conceiving of law-creation exclusively from the perspective of the rules applicable in this one centralized, judicial institution,¹ an institution that expresses the positivistic assumption that international legal obligations must always be shown to rest upon some tangible evidence of consent on the part of the state that is...

    • VII. The Authority of the United Nations to Control Nonmembers
      (pp. 185-241)

      This chapter analyzes the authority of the United Nations to take action against nonmember states. The natural emphasis of such a study is, of course, Article 2, paragraph 6, of the United Nations Charter: “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.” Unfortunately, neither the practice of the Organization nor the commentary of jurists yields a very convincing account of the intended scope and juridical character of Article 2(6).

      Underlying the specific inquiry is...

    • VIII. Unilateral Claims to Use Outer Space and the Development of World Legal Order
      (pp. 242-264)

      CONTROVERSIAL unilateral claims to use outer space raise issues of utmost importance for the future of the world legal order. First, the regulation of space is a substantive matter of major concern. Second, the problems of space regulation illustrate the pervasive difficulty of restraining the international behavior of powerful states. Third, the development of international law very much reflects the quasi-legislative authority of principal sovereign states.

      The loosely structured character of international society partly explains why novel claims of states to act internationally may be troublesome. There is no regularly available legislative or executive authority to adapt the regulative framework...

    • IX. An Explanation of the Extraterritorial Extension of American Antitrust Regulation
      (pp. 265-326)

      IN THE late 1950’s there was a great deal of attention given to the extension of American antitrust regulation to foreign business operations. The wisdom and propriety of this regulation was intensely debated. Much of the controversy emphasized jurisdictional issues, the outer limits of competence to attach American regulatory standards, and the extent to which, if at all, this competence should be modified or circumscribed because principal foreign states sought to impose quite different competitive conditions on market operations within their economies. The subject lends itself to academic commentary as the issues of substance can only be resolved by reference...

  7. Part Three: Making International Law Effective in National and International Arenas
    • Introduction
      (pp. 329-331)

      THERE IS an obvious intellectual and sociopolitical continuity between the emphasis of Part Two upon the nature of authority in the international legal order and the emphasis of Part Three on problems of effectiveness. Inquiries into authority concern conceptual and jurisprudential issues that involve explaining how law comes into being and passes away; there is also the complementary need to identify who exercises authority for what purposes in a decentralized system as intricate as is the international legal order. Inquiries into effectiveness presuppose that the authoritative prescription is clearly identified and then go on to consider various procedures for implementation....

    • X. Some Thoughts on Identifying and Solving the Problem of Compliance with International Law
      (pp. 332-341)

      TO CAUSE compliance by nations with international law it is necessary to influence behavior; but to assess compliance it is only necessary to judge behavior. The two subjects, however, are not mutually exclusive, since the ability to identify authoritatively an instance of noncompliance can deter a prospective violator and, in addition, may help the community to organize a sanctioning response in the event of a violation. For example, the effectiveness of the response by the United Nations to the Suez invasion of 1956 can be attributed in part to the rapid formation of an effective consensus that perceived the conduct...

    • XI. On Treaty Interpretation and the New Haven Approach: Achievements and Prospects
      (pp. 342-377)

      THIS CHAPTER will investigate treaty interpretation in the following sequence:

      1. A statement of the broad relevance of interpretation to human experience without regard for the special quality of legal interpretation or the specific focus upon treaty interpretation;

      2. An account of the main outlines of the New Haven approach to treaty interpretation as set forth by Myres S. McDougal, Harold D. Lasswell, and James C. Miller in a major study of the subject entitledThe Interpretation of Agreements and World Public Order

      3. A comparison of the New Haven approach with that taken by the International Law Commission in...

    • XII. The South West Africa Cases: An Appraisal
      (pp. 378-402)

      ETHIOPIA and Liberia instituted litigation in 1960 before the International Court of Justice (ICJ) to test the legality of South Africa’s administration of the mandated territory of South West Africa. The ICJ received, thereby, an opportunity to deal with a major question of international concern. Hopes were raised that the role of international adjudication would be enhanced by the results of this litigation. The case was also expected to demonstrate to the new states that the procedures and institutions of traditional international law could be used to promote, as well as to retard, their distinctive goals in international life.

      In...

    • XIII. The Sabbatino Litigation and After: The Complexity of the Supreme Court Decision and the Simplicity of the Legislative Epilogue
      (pp. 403-425)

      THIS CHAPTER is essentially an analysis of the original decision by the United States Supreme Court in the case ofBanco Nacional de Cuba v. Sabbatino.¹ It considers briefly in a concluding section the postdecisional developments that culminated in the so-called Second Hickenlooper Amendment and the relitigation of the controversy leading to a judicial outcome favorable to the expropriated investors.² The point of refocusing attention on Mr. Justice Harlan’s majority opinion in the originalSabbatinocontroversy is to underscore the importance of the doctrine therein enunciated to the development of an adequate conception of the role of domestic courts in...

    • XIV. Domestic Courts, International Law, and Foreign Acts of States: Executive Prerogatives and Judicial Imperatives
      (pp. 426-442)

      THERE ARE two categories of cases involving the application of international law in domestic courts that need to be distinguished:

      1. There are those cases, exemplified by theSabbatinocontroversy, in which a litigant invokes international law to challenge the validity of the official acts of a foreign government;¹

      2. There are those cases, exemplified by theSpockandMoralitigation, in which a litigant invokes international law to challenge the validity of official acts of adomesticgovernment.²

      In category 1 the main issues concern the role of domestic courts in an international legal order of sovereign states.³ In...

  8. Part Four: A Plea for Systematic Procedures of Inquiry
    • Introduction
      (pp. 445-446)

      TO DEAL adequately with the international legal order it is necessary to gather together the vast corpus of relevant data as meaningfully as possible. Too often international legal scholarship has been based upon an impressionistic survey of some of the relevant data, especially that available in the language(s) of the particular scholar or that which is reflective of national preferences. It is important to expand the scholarly base and to present the relevant material as to state practice in a form that is at once comprehensive and manageable. The relevant material needs to be organized in a systematic fashion to...

    • XV. Some New Approaches to the Study of International Law
      (pp. 447-469)

      International law is both a contemplative academic subject and an active ingredient of diplomatic process in world affairs.¹ The failure to maintain the clarity of this distinction accounts for considerable confusion about the nature and function of international law in the world today. An international lawyer is also a citizen of a nation-state who often holds strong views as to preferred courses of foreign policy. One way for him to vindicate these views is to demonstrate their compatibility or incompatibility with governing rules of international law. Confusion arises in scholarly settings whenever the adversary presentation of views is not distinguished...

    • XVI. Wolfgang Friedmann
      (pp. 470-485)

      The Changing Structure of International Lawincorporates and organizes most of the important thinking that Wolfgang Friedmann has devoted to problems of international law throughout his distinguished career. As such, it offers a convenient focus for an appraisal of Friedmann’s work.¹

      Changing Structureprovides an extraordinarytour d’horizonof happenings significant for understanding the character and development of modern international law. It is extraordinary, in part, simply because Friedmann knows so much and possesses a talent for combining generalization and concrete example. This talent is notable for at least two reasons. First, the use of examples allows us to follow...

    • XVII. Morton A. Kaplan and Nicholas deB. Katzenbach
      (pp. 486-495)

      MACHIAVELLI begins hisDiscoursesby observing that “the curious nature of men, so prompt to blame and so slow to praise, makes the discovery and introduction of any new principles and systems as dangerous almost as the exploration of unknown seas and continents.”The Political Foundations of International Lawruns this hazard, as it is both a splendid pioneering venture and vulnerable to serious criticism.¹ Although it most suggestively studies the theoretical interaction of law and politics, it provides scant doctrinal support. Although it brilliantly applies systems analysis and prudently uses decision-making theory, structural functional approaches, institutional studies, and a...

    • XVIII. Kenneth S. Carlston
      (pp. 496-512)

      IT IS intriguing to speculate about what it will take to mobilize the political energy to organize international society anew, really anew—on some basis, that is, that eliminates the preeminence of the nation-state as the center of political life and military capability. Obviously, neither recent wars nor the prospect of future wars are sufficient agents of transformation. No matter how much gloomy evidence is amassed, all the instruments of reckoning agree that only modest changes in the structure of international society are likely to occur in the foreseeable future. If we accept this diagnosis as accurate, then one consequence...

    • XIX. The Recently Independent States: A Framework for Systematic Inquiry
      (pp. 513-534)

      1.International Law as a Strategy of Participation.One of the most notable developments in international society since World War II has been the attainment of sovereign independence by former colonies. These recently independent states, located throughout Asia and Africa, are very different from one another in terms of scale, wealth, ideological orientation, internal stability, and external foreign policy. As a consequence these differences establish a range of national governments encompassing the most conservative and the most militantly radical regimes. At the same time these states, together to some extent with Latin American countries, create a distinct “presence” in international...

  9. Part Five: Strengthening the International Legal Order
    • Introduction
      (pp. 537-539)

      THERE IS a long tradition of confusing facts and values in the presentation of the international legal order. In particular, there has been a tendency for international lawyers to present personal preferences or national outlooks as if they were analyses of international law as it is. The mixing of analytical and normative modes of inquiry has been one of the reasons why the pronouncements of international lawyers are so often greeted with suspicion.

      To overcome this suspicion more recent generations of international lawyers have tended to either reject the normative dimensions altogether and concentrate their energies upon explicative analysis or...

    • XX. Settling Ocean Fishing Conflicts: The Limits of “Law Reform” in a Horizontal Legal Order
      (pp. 540-553)

      Despite certain very critical centralizing tendencies, the international legal order remains, as it has for several centuries, largely horizontal or decentralized. Decentralization in international society implies that principal decisions are typically made and implemented by officials acting on behalf of national governments. A decentralized legal order tends to be voluntaristic, especially with respect to normative change; that is, changes in the structure of international law require widespread assent from the state units that are the subjects of regulation. A further consequence of this voluntarism is that it is very difficult to adapt the legal order to changed circumstances whenever states...

    • XXI. The Prospects for World Order: Models of the Future
      (pp. 554-569)

      THERE ARE many reasons to be deeply troubled about the present condition of international society. Two of the most prominent causes of distress arise from the existence and spread of weapons of mass destruction and from the growing shortage of food in the world. These disturbing developments provoke questions about whether the present system of world order is adequate and whether, if it is not, there are better systems that can be brought into being. This chapter considers some alternative systems of world order that might be preferable to what now exists and gives some attention to whether system-change at...

    • XXII. The Quest for World Order, and the Vietnam War: A Second American Dilemma
      (pp. 570-590)

      THE POSITION of this chapter arises from the following sequence of intellectual steps:

      (1) An explanation of why the Vietnam War has crystallized “a second American dilemma” in the form of a contradiction for the United States Government between its espousal of world order ideals and its patterns of diplomatic practice;

      (2) A comparison of the dominant ideological perspectives that have emerged in the course of the debate produced by the Vietnam War, these perspectives being roughly identified as neo-Wilsonianism (pro-administration) andneo-Kennanism (anti-administration);

      (3) A consideration of the Vietnam War as a phenomenon that is, in fact, radically inconsistent with...

    • XXIII. Observations on Political Loyalty at a Time of World Crisis
      (pp. 591-610)

      THIS chapter examines some of the issues of political loyalty as they are emerging in the United States during the late 1960’s. The form of these issues is deeply influenced by the participation of the United States in the Vietnam War and by the interrelated phenomena of racial violence in American cities and student violence in American universities. These particularities of the contemporary scene are further agitated by more fundamental questionings directed at the functional and emotive obsolescence of the sovereign state in the nuclear age.

      The observations of this chapter on the conditions of political loyalty are intended as...

  10. APPENDICES
    • Appendix A Documents on Dispute between Malaysia and Indonesia
      (pp. 613-632)
    • Appendix B Significant General Assembly Resolutions Since 1966 on the Status of South West Africa
      (pp. 633-641)
    • Appendix C Some Thoughts on the Jurisprudence of Myres S. McDougal
      (pp. 642-660)
  11. Index
    (pp. 661-678)
  12. Back Matter
    (pp. 679-681)