International Law Under Contemporary Pressurea

• Author: Professor John S. Hazar
• Pages: 01

While some pressures skoaid be reszsted, others repre. sent legitimate demands which can and should be niet at least tit part Professor Hazard concludes that the Cnitrd Stntss should partiezpaie actively sn seeking desirable, pmgmatie eanipromises in interxational lazo and ~ela-tions.

*This 15 the felt af che Seventh Annual Edward H.

I'Ham") Young Lecture m

Military Legal Ldueafmn. delivered at The Judge Advocate Generaps School, Charlotrearille. Ymgma. on 21 Sepcember 1978. The opplnions and C~LIYSIOIIJ ehpreaied ~n thii lecture me thoae of the author and da nor neeesaarily reflect the i i e w of The Judge Advocate Generah School. the Department ai the Army. or an) other go\arnmenfal agene)

MILITARY LAM REVIEW [VOL 83

I INTRODUCTION

Has international law, as it was known before World War 11, been altered beyond recognition under the pressures of contemporary world polities? For many Americans who studied or practiced before the war, the ansuer will be in the affirmative. Some go so far ad to say that law has given nay to politics; that no foreign office senses the restraints of lau as it formulates national policy.

Curiously, Americans are not alone m sensing the impact of political pressurea upon the larv. Other Resterners from iihat is often called these days the First World feel the same ua). as eri-denced by interventions of ?Vestern ambassadors befoore organs of the United Nations. And not only U'esternera. for awned socialists from what is being called the Second World and statesmen from developing countries now categorized a8 the Third World, are also declaring that something new is in the making The only difference is in the evaluation. For the West the situation suggests chaos and despair: for the other two worlds the new s)-stem in the making is cause for elation.

11. THE CONTEMPORARY PRESSURESWhat are the pressures that are influencing international lawyera and what might be a dezirable response to them? That 1s the subject to which I address myself. Although the pressures are widely known, it may be worth a moment's reflection to renew them, if only to provide bearings for our trip through stormy seas. Without question the Strongest pressure comes from the erstxvhile colonials, the peoples of the Third World. They have been and still are press-mg to be ''free." Although decolonization la almost complete. there are still a few enclaves and islands for which the Third World clamors. And there are still some situations of continuing depend-ence upon the metropole which have caused the Third World's statesmen to coin the term ""eo-cdomalism." With this the? de-nounce economic and political ties to former metropoles as vigorously ar they used to denounce the legal bonds of their eolonial period.

Coupled with the long-standing anti-colonial pressure is to be sensed a newer one, by no means felt so widely, yet still prominent, especially in southern Africa. This is the pressure to be accepted individually as equals. Here the complaint is ''racism,'' which, when coupled with domination of a majority race by a minority, is now being called "internal colonialism." It 1s often classed together with anti-colonial demands generally as B natural extension of the legal obligation to recognize the right of self-determination.

The pressures come by no means solely from colonially and ~ a - cially oppressed peoples, although they are most audible among such peoples. There are highly evident pressures for autonomy of peoples within long established states such as Spain, France and even Britain. Talk to a Catalan in Barcelona, a Basque in San Sebastian, a Breton in Rennee; even a Scat or Welshman, not to mention a Catholic Irishman in Belfast, and one quickly senses the intensity with which minority peoples of the same race as the majority rulers are incensed by long periods of domination by others. And this pressure for autonomy is not limited to unitary states: it is to be felt in federations structured along ethnic lines. ItLS being brought to the surface in the Soviet Union where Geor-gians, Armenians, Azerbaijanis, Lithuanians and Ukrainians indicate their restleemeSS not only as individuals through personal dissent. but as entire peoples when their national language and cultureis perceived to be threatened by the dominant people of the federation.

There is also increasingly evident pressure exerted by peoples represented already by states recognized in international law Here we find demands for equality with the Great Pawerr: grumhlings against the veto power reserved to the Great Powera in the Security Council of the United Xations. On occasion we .kmeTicans even see revealed heartache on the part of good neighbors of the United States who think that their just complaints as equals are ignored in Washington

Some of this pressure extends into the process of international lawmaking: evidenced by the desire expressed by a multitude of new states to be permitted to share as equals in the process of codifying customary international law so that they can conaider the issues and rectify inequalities if they be found to exist. This pres-sure has given rise to the Vienna diplomatic conferences called to

codif? the law of treaties and diplomatic intercourse. The same pressure is making itself felt in the seemingly unending conference on the laa of the sea, especially as land-locked countries which hare long been denied a xolce press for recognition of their needs

With increasing intensity the world sensed pressures for recognition of human dignity. of human rights. These iiere largely ignored before the? emerged at the Suremberg trials of the Sazis as a just claim. The Nuremberg judges recognized that the leaders of a fnrmerly great state were international lawbreakers for mistreating and eien kllling their fellow citizens in what has come to be known as the "holocaust." This claim of a right to protection internationall? against me's own government has been acknowledged b) much of the aorld in the Helsinki agreement and in the mtruments creating the various regional structures designed to hear complaints of mdividuals against their ann governments.

Finally, there are the pressures in the economic field ioor a sharing ai the world's resources: the pressures from small states to be given some part of the income expected to flow from exploitation of the deep sea bed: the pressures of the ra~~.materials-producingstates to

be recognized as having a right to link the sales prices of their materials through "indexing" to the cost of manufactured goads needed for their development. Most recently, there hare been the pressures ehpreased in dramatic form in the United Nations General As-sembly Resolution on a Sew International Economic Order: pres-sures now so strong that former colonies have been emboldened to demand recognition on the part of former metropoles of a dut? of "restitution," which means a duty to reimburse the former colony for damages and lost profits over centuries of colonial exploitation.

Merely to list these pressures does more than refresh our memories, for putting them together heightens the impact of what has happened. Many of us have tended to orerlaak this impact as we haw witnessed the emergence of each individual situation, but non that the whole drama has been revealed. the alarm has been

most notably that of the United States, into considering, or perhaps even making, a final demonstration of opposition, a "last stand."

111. PRESSURES ON INTERNATIONAL LAW IN HISTORY

Those who have an historical bent cannot but relate the obviously severe pressures of our time to what has gone before in internatianal Ian as a body of rules has been hammered out over the centuries in the diplomatic practice of states. Even international law's founding father, the legendary Hugo Grotiur, sensed in the early 17th century that his people were facing pressures too great to be tolerated, and he accepted a commission to write a seminai treatise justifying in law the retaliation by the admirals of the Dutch East India Company against the Portuguese far attempting to monopolize the sea lanes. He demanded recognition of the right of uninhibited navigation.

Likewise, in the eariy 20th century, the Tsar of Russia sensed the pressures from the common people of Europe for establishment of a law of war that uould insulate them from the armies that suept mtermittantly across Europe. He invited the heads of state to meet in preparation of a code to protect civilians during wartime. Sot all responses to popular pressures have been so humanitarian Thus hi.t

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' weak countries hare noted resistance of the German General Staff to legitimation of guerrilla warfare, the lone manner with which weaker peoples can resist the heayy hand of professional armies. The outlaning of guerrillas by the Hague Conventions is seen as a response to the strong pressures of the German profeaSiO"2.lS.

From the point of vien of the Austra-Hungarian Emperor, Franz Jasef, Woodroa Wilson's demand that peopiea of his Empire be ac-corded the right of self-determination must have looked like intolerable pressure for violation of all that he held sacred as law. Hou could Wilson...