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Diversity And Uniformity In The Law Of Nations1

Published online by Cambridge University Press:  28 March 2017

Philip C. Jessup
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Extract

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.

Type
Research Article
Information
American Journal of International Law , Volume 58 , Issue 2 , April 1964 , pp. 341 - 358
Copyright
Copyright © American Society of International Law 1964

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Footnotes

1

This article substantially reproduces a lecture delivered at the University of Leiden on Feb. 20, 1964, as one of a series of lectures arranged by the Dag Hammarskjold Foundation and subsequently to be published by the Foundation. The lecture was introduced by the following two paragraphs:

“It is my privilege to deliver this lecture as one of a series organized by the Dag Hammarskjold Foundation in tribute to the memory of the late Secretary-General of the United Nations, a man rich in resources of intellect and of spirit which he spent freely in the service of mankind. He added new luster to a name already notable in the annals of international law. As his annual reports and occasional addresses demonstrate, he cared deeply about the international rule of law as a fundamental tenet of the United Nations and was convinced that lawless policies were unsound policies. It has been well said of Dag Hammarskjold that he was ‘imbued with the spirit of law.’ One may appropriately dedicate to his memory a lecture on the law of nations.

“Nor could one find a more suitable milieu for a lecture on international law than this great University in this country long identified with many of the great exponents of that law.“

References

2 35 Académie de Droit International, Recueil des Cours 5 (1931, I).

3 Baron Frederik van Asbeck, “Growth and Movement of International Law,” Farewell Lecture at Leiden University, Tr. in 11 Int. and Comp. Law Q. 1054, 1072 (1962).

4 In delivering the Storrs Lectures at “Yale University in 1956, indicated the extent of my indebtedness to the late Professor Georges Scelle; Transnational Law 3 (1956).

5 Estate Mehta v Acting Master of the High Court of Southern Bhodesia, 1958 B.and N. 570,588.

6 Mead, “ T h e Underdeveloped and Overdeveloped,” 41 Foreign Affairs 78, 89 (1962). Professor Maxwell Cohen draws our attention to the ‘ ‘ three-dimensional character … of international law as comparative law, including the extent to which it has fed on two great legal systems and the ‘regionalism’ that early appeared in the evolution of special doctrines of the classical system.” Cohen, “Some Main Directions of International Law: a Canadian Perspective,” 1 Canadian Tr. Bk. of Int. Law (1963) 15, 26. Cf. Seidl-Hohenveldern, “Methods for a Comparative Approach to Public International Law,” Festschrift Egawa 153; but in this study the learned author quite misunderstands the subtitle and therefore the spirit of the great treatise of Charles Cheney Hyde.

7 It is sometimes necessary “ t o use rather broad generalizations somewhat freely and to be illustrative rather than complete, and provocative rather than authoritative.“ Jenks, “ T he Scope of International Law,” 31 Brit. Yr. Bk. of Int. Law 1, 11 (1954).

8 15 The Writings of Thomas Jefferson 40 (Lipscomb ed.), as quoted in Stein and Hay, Cases and Materials on the Law and Institutions of the Atlantic Area iii (1963).

9 Bynkershoek, Quaestiones ad lectorem (1737) 7 (Carnegie Endowment for International Peace, 1930. Tenney Frank, Tr.).

10 The Education of Henry Adams (1905), Ch. XXXV, p. 499 (Modern Library ed., 1931).

11 “ The truth is that the law is never quite the same again once the Commission has presented its progressive consensus to the world family.” Cohen, loc.cit.31.

12 Some comparable collections of examples are given in Friedmann, ‘ ‘ The Position of Underdeveloped Countries and the Universality of International Law,” 2 Int. Law Bulletin (The Columbia Society of International Law) 5 (1963); Lissitzyn, “International Law in a Divided World,'’ International Conciliation, No. 542, March, 1963.

13 See passim,Neutrality, Its History, Economics and Law: Jessup and Deak, Vol. I, The Origins (1935); Phillips, Vol. I I , The Napoleonic Period; Turlington, Vol. Ill, The World War Period; Jessup, Vol. IV, Today and Tomorrow (1936).

14 Transnational Law,op.cit.26, and in general, Ch. I.

15 8 Netherlands Int. Law Rev. 146 (1961).

16 Against the background of one of his learned historical surveys, Professor Guggenheim analyzes the development in the European Communities as perhaps leading to the creation of a new “droit public europ6en distinct de 1'ordre international du droit des gens et de 1'ordre juridique étatique.” “Droit International Général et Droit Public Européen,”18 Annuaire Suisse de Droit International 9, 28 (1961).

17 2 Recueil de la Jurisprudence de la Cour (1955-56) 263.

18 Ibid.Cf.6 Recueil 652 (1960)

19 ibid.263-264.

20 Loc.cit.305.

21 9 Recueil 1 (1963), digested in 58 A.J.I.L. 194 (1964). I have used the translation of Mr. Homer G. Angelo in his report to the Section on International and Comparative Law of the American Bar Assn. (1963), p. 12. In addition to the studies of Prof. Eric Stein, partly cited below, see Bebr, “The Development of a Community Law by the Court of the European Coal and Steel Community,” 42 Minnesota Law Rev. 845 (1958); McMahon, “The Court of the European Communities: Judicial Interpretation and International Organization,” 37 Brit. Tr. Bk. of Int. Law (1961)

22 Stein, , ‘ ‘ Assimilation of National Laws as a Function of European Integration,'’ 58 A.J.I.L. 1–2 (1964).Google Scholar

23 Ibid.

24 Ibid.25 ff. Stein also calls attention to the current projects of the Nordic Council for agreement among the Scandinavian states on rules for an “all-Scandinavian“ patent.

25 Stein,loc.cit.28.

26 Ibid.

27 1 venture to refer to previous comments on this point which I have made in 99 Académie de Droit International, Recueil des Cours 3, 14 (1960, I ) , and 60 Columbia Law Rev. 29 (1960).

28 One may cite an example of an agreement upon a kind of co-operation between two tribunals on the international level: Art. VIII, sec. 21, of the Headquarters Agreement of June 26, 1947, between the United Nations and the United States provides for referring disputes over the interpretation of the Agreement to a tribunal of three Arbitrators. The Secretary General or the United States may ask the General Assembly to request the International Court of Justice to give an advisory opinion on any legal question arising in the course of the proceedings before the arbitrators. “Pending the receipt of the opinion of the Court, an interim decision of the arbitral tribunal shall be observed by both parties. Thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court.” 43 A.J.I.L. Supp. 8 at 15 (1949).

29 Transnational Law, op. cit.109-111.

30 Speiser, ,“Cuneiform Law and the History of Civilization,” 107 Proceedings, Am. Philosophical Soc. 536–541 (1963)Google Scholar, and references in his footnotes. Prof. Ada B. Bozeman's skillful tapestry of Politics and Culture in International History (1960), carries the thread of law as one essential part of the pattern from the times and regions with which Prof. Speiser deals up to the present era.

31 McDougal's contribution is so voluminous that I shall mention here only the critical summary appraisal by one of his brilliant disciples, in which numerous references will be found: Richard A. Palk, “McDougal and Feliciano's Law and Minimum World Order,” a review article in 8 Natural Law Forum 171 (Notre Dame Law School, 1963). The quotation in the text above is from p. 172.

32 The Common Law of Mankind 121 (1958).

33 Friedmann,‘ ‘ National Sovereignty, International Cooperation, and the Reality of International Law,” 10 TJ.C.L.A. Law Rev. 739 (1963).

34 There may be difference of view whether it is appropriate to refer to the European Community experience as “federal,” but see Federalism, Mature and Emergent (Arthur W. Macmahon, ed., Columbia University Bicentennial Conference Series, 1955).

35 Prosser, Law of Torts, See. 59 (Hornbook Series, 2d ed., 1955), expounding the rule of Rylands v.Fletcher, L.E. 3 H.L. 330 (1868). For present purposes, qualifications of the rule are omitted.

36 Ibid.319-321.

37 Leach, “ The Uniform Law Movement in Australia,” 12 Am. J. Comp. Law 206 (1963).

38 Council of Europe, Consultative Assembly, 14th Ordinary Sess., 1st Pt., May 15-18, 1962; Opinion 37 (1963).

39 Address of Hon. Vivian Bose, Aug. 10, 1961, 7 Columbia Law School Law Alumni Bulletin 2 (1962).

40 See, for example, Anand, “ R ô le of the New Asian-African Countries in the Present International Legal Order,” 56 A.J.I.L. 383, 393 ff. (1962), and authorities there cited.

41 Herskovits, The Human Factor in Changing Africa 70 (1962).

42 Allot, Essays on African Law 66 (1960).

43 Ibid.67. So, too, Gluckman: “We cannot understand any African tribe's law in isolation… . “ “African Jurisprudence,” Advancement of Science 439, 448 (London, Jan. 18, 1962).

44 Cory, Sukuma Law and Custom (1953); La redaction des coutumes dans le passéet dans le présent, colloque organisé les 16 et 17 mai 1960 sous la direction de John Gilissen, Etude d'histoire et d'ethnologie juridiques, Centre d'Histoire et d'Ethnologie Juridique, Université Libre de Bruxelles; Cotran, “Some recent developments in the Tanganyika judicial system,” 6 Journal of African Law 19 (1962); Konan Bédié, ” T h e Judicial System of the Republic of Ivory Coast,” 10 A. J. Comp. Law 151 (1961).

45 Mimeographed report.

46 Metzger, , ‘ ‘ Settlement of International Disputes by Non-Judicial Methods,'’ 48 A.J.I.L. 408 (1954).Google Scholar

47 Lambrinidis, ‘ ‘ The Emergence of Quasi Judicial Quasi Administrative Organs and Methods for the Settlement of International Disputes,” 16 Revue Hellénique de Droit International 78 (1963). And one may note the ingenuity with which a convention has been drafted which makes i t possible to have a commercial arbitration agreement “largely or wholly divorced from any system of municipal law“; Benjamin, “The European Convention on International Commercial Arbitration,” 37 Brit. Yr. Bk. of Int. Law 478 (1961). Cf. van Asbeck, “Quelques Aspects du Contrôle International non-judiciaire de 1 ‘Application par les Gouvernements de Conventions Internationales,'’ 6 Netherlands Int. Law. Rev. 27 (July, 1959, special issue in honor of Professor J.P.A. Francois).

48 The regional approach to the codification of international law is still to be noted in the Americas, and to some extent in the work of the Asian-African Legal Consultative Committee.

49 Op.cit.68.

50 Hazard, “ A Pragmatic View of the New International Law,” 1963 Proceedings, Am. Soc. Int. Law 79. Page no 21