¹ Brownlie, , “Recognition in Theory and Practice,” in Macdonald, and Johnston, (eds.), The Structure and Process of International Law 627 (1983).Google Scholar

² Verdross, and Koeck, , “Natural Law : The Tradition of Universal Reason and Authority,” ibid., 17–50.Google Scholar

³ Bos, , “Will and Order in the Nation-State System: Observations on Positivism and International Law,” ibid., 51–78.Google Scholar

⁴ The felt need to analogize with national legal systems drew most “late classical” international lawyers into the positivist camp, especially those of the Anglo-American world. Some felt compelled to defend the legal nature of international law against philosophic assaults by “deniers” such as John Austin. For a well-known North American rebuttal of Austinianism, see Scott, , “The Legal Nature of International Law,” (1907) 1 Am. J. Int’l L. 831.CrossRefGoogle Scholar

⁵ For a classic exposition, see Oppenheim, , “The Science of International Law: Its Task and Method,” (1908) 2 Am. J. Int’l L. 313 CrossRefGoogle Scholar. For the fullest development of the theory of international law as an autonomous science, see Kelsen, , General Theory of Law and State (tr. Wedberg, , 1945, 1961)Google Scholar. For a brief treatment of the deficiencies of international law as law, see Coplin, , The Functions of International Law 1–25 (1966).Google Scholar

⁶ This view is associated with Niccolò Machiavelli, who is generally regarded as the modern founder of the study of international relations. It has been suggested, however, that many of Machiavelli’s amoral insights were offered as early as 300 B.C. in ancient India by Kautilya in Arthasastra, his handbook for statesmen. Northedge, , The International Political System 43–44 (1976).Google Scholar

⁷ Theorists inclined to defend imperialism have sometimes invoked the notion of a vigorous nation’s “sense of mission.” Critics of imperialism such as Cobden, Bright, Marx, Hobhouse, and Lenin have pointed mostly to economic greed and the desire for acquisition. For a short review of the phenomenon of state expansionism, see ibid., 203-24. In geopolitics generally, see Strausz-Hupé, , Geopolitics: The Struggle for Space and Power (1942)Google Scholar, and Zoppo, and Zorgbibe, (eds.), On Geopolitics: Classical and Nuclear (1985).Google Scholar

⁸ The “power politics” theory in international political science is most closely associated with Hans J. Morgenthau. His growing disillusionment with international law as a constraint on the excessive use of power is evident as early as 1940. Morgenthau, “Positivism, Functionalism, and International Law,” (1940) 34 Am. J. Int’l L. 260. His most famous work, The Politics of Nations (3rd ed., 1960), has acquired almost scriptural authority in departments of political science around the world, although apparently he renounced the “power politics” position just before his death. Boyle, , World Politics and International Law 70–72 (1985).Google Scholar

⁹ This moderate instrumentalist view is shared by most political scientists, as well as some lawyers, who specialize in international law and organization. This view has been reflected by a wide variety of scholars. See, for example, such diverse writings as Beirne, and Sharlet, (eds.), Pashukanis: Selected Writings on Marxism and Law (1980)Google Scholar; Fawcett, , Law and Power in International Relations (1982)Google Scholar; Kaplan, and Katzenbach, , The Political Foundations of International Law (1961)Google Scholar; Chayes, , The Cuban Missile Crisis (1974)Google Scholar; Henkin, , How Nations Behave: Law and Foreign Policy (2nd ed., 1979)Google Scholar; and Boyle, supra note 8.

¹⁰ Early in the period of the League some non-lawyers called for a system of “universal ethics” rather than international law, to curb the menace of nationalism. See, for example, McDougall, , Ethics and Some Modern World Problems (1924)Google Scholar. William McDougall perceived international law and the Covenant as components of that ethical system.

¹¹ On the distinction between analytical jurisprudence and legal positivism, see Shuman, , Legal Positivism: Its Scope and Limitations 12–18 (1963).Google Scholar

¹² Hart, , The Concept of Law 221–26 (1961)Google Scholar. For a critique, see Morison, , “The Schools Revisited,” in Macdonald, and Johnston, , supra note 1, at 131, 144-55Google Scholar. For current trends in legal positivism, see MacCormick, and Weinberger, , An Institutional Theory of Law: New Approaches to Legal Positivism (1986).CrossRefGoogle Scholar

¹³ See, for example, Schwarzenberger, , Power Politics: A Study of International Society 202–32 (2nd ed., 1951, 1954)Google Scholar, where he contrasts the “functions of international law” (power, reciprocity, and co-ordination) with those of “international morality.”

¹⁴ This approach was developed by Myres S. McDougal and Harold D. Lasswell and their associates, chiefly between 1945 and 1975. For a general review, see McDougal, and Reisman, , “International Law in Policy-Oriented Perspective,” in Macdonald, and Johnston, , supra note 1, at 103–29.Google Scholar

¹⁵ McDougal and Lasswell have been reluctant, however, to describe their “policy science” as a sociology of international law, developed from the observer’s perspective as a means of extending the range of cognition. Rather they have claimed to be concerned with equipping decisionmakers to operate the “world power process’ ‘in furtherance of their postulated “goals” and “base values.” Stone, , Visions of World Order 23 (1984).Google Scholar

¹⁶ Conceptualists are required to struggle with the “problem of incompleteness” (lacunae). See, for example, Lauterpacht, , The Function of Law in the International Community 51–135 (1933).Google Scholar

¹⁷ For an original evaluation, see Schwarzenberger, , “The Conceptual Apparatus of International Law,” in Macdonald, and Johnston, , supra note 1, at 685–712.Google Scholar

¹⁸ For example, a conceptualist approach to the Falklands dispute between Argentina and the United Kingdom or the conflicting claims to Antarctica would merely require the application of the “rules” governing the acquisition of territory (the core concept) to the factual history of the island or area in question, pivoting on the “doctrines” of subjugation, accretion, cession, prescription, and occupation. Such doctrines present “neither black nor white, but an unsatisfying shade of grey.” Myhre, , The Antarctic Treaty System: Politics, Law and Diplomacy 11(1986).Google Scholar

¹⁹ Macdonald, , “Fundamental Norms in Contemporary International Law,” (1987) 25 Canadian Yearbook of International Law 115.Google Scholar

²⁰ Ibid., 129–35.

²¹ In the law of the sea, for example, those wishing for political reasons to discredit the new exclusive economic zone (EEZ) regime of functional jurisdiction may point to the evidence of existing territorial sea claims beyond 12-mile limits, or raise the spectre of creeping territorial jurisdiction, or point to the lack of consent to the 1982 Convention on the Law of the Sea in the form of ratification, or deny the sufficiency of acquiescence in the formation of the EEZ in customary international law. In each case, fundamentalists would complain, a core concept is being used to block legal development devoted to corrective and developmental purposes.

²² Dictionaries define “doctrine” so broadly as to include such diverse phenomena as “that which is taught,” a “body or system of principles,” “dogma,” “theory,” and “theoretical opinion.” When used pejoratively, the term usually refers to a set of postulates held out dogmatically, intended to induce belief compliance for some internal, professional purpose, which may or may not be conducive to the satisfaction of external, social needs.

²³ The American legal realist movement was especially prominent in the 1920’s and 1930’s, represented by such jurists as Oliver Wendell Holmes, Jerome Frank, and Karl Llewellyn. Their strictures against doctrines and other abstractions in law are widely shared among lawyers in North America. For an evaluation, see Benditt, , Law as Rule and Principle: Problems of Legal Philosophy 1–42 (1978).Google Scholar

²⁴ Friedmann, , The Changing Structure of International Law 149 (1964).Google Scholar

²⁵ For an insight into how legal considerations are actually employed in critical foreign policy situations, see Chayes, supra note 9, and Boyle, supra note 8.

²⁶ The Estrada “doctrine” of recognition, the Monroe “doctrine” of non-intervention, the Brezhnev “doctrine” of limited sovereignty, and the Calvo “doctrine” of the national standard are examples of regional, national, or personal policies puffed up in legal costumery.

²⁷ On the ideological foundations of Soviet law, see Butler, , Soviet Law 26–38 (1983).Google Scholar

²⁸ Kartashkin, , “The Marxist-Leninist Approach: The Theory of Class Struggle and Contemporary International Law,” in Macdonald, and Johnston, , supra note 1, at 79–102 Google Scholar. For an analysis of recent developments in the Soviet theory of international law, see Schweisfurth, , “The Role of Political Revolution in the Theory of International Law,” ibid., 913–53.Google Scholar

²⁹ Soviet theorists deny the existence of any such bridge. The policy science school of New Haven is characterized as “nihilistic.” Tunkin, the leading theorist, asserts that international law is an independent social phenomenon separate from policy, rejecting McDougal’s “blending of foreign policy and international law,” whereby the latter is “drowned in policy.” Ibid., 936. See Tunkin, , Theory of International Law 297–302 (tr. Butler, , 1974).Google Scholar

³⁰ The October Revolution of 1917 resulted in Soviet espousal of three groups of international legal “principles” : those of (1) “socialist internationalism in relations between socialist states”; (2) “equality and self-determination of nations and peoples, whose spearhead is aimed against the system of colonialism, as well as against any national oppression and inequality”; and (3) “peaceful coexistence, aimed first and foremost at relations between states with different social systems.” Ibid., at 4. The second and third of these groups of principles have been emphasized in the legal ideology of most Third World countries, especially in their immediate post-independence period. On the application to international law of the Leninist thesis of peaceful co-existence, see Tunkin, , “Peaceful Coexistence and International Law,” in Contemporary International Law 5–35 (ed. Tunkin, , tr. Ivanor-Mumjiev, 1969)Google Scholar. For a recent appraisal of Soviet theory, see McWhinney, , “Contemporary Soviet General Theory of International Law: Reflections on the Tunkin Era,” (1987) 25 Canadian Yearbook of International Law 187.Google Scholar

³¹ Schachter, , Sharing the World’s Resources (1977)Google Scholar, and Johnston, , “The Foundations of Justice in International Law,” in Macdonald, , Johnston, and Morris, (eds.), The International Law and Policy of Human Welfare 111–46 (1978).Google Scholar

³² Prominent among these jurists were Wilfred Jenks, Percy Corbett, and Louis Sohn.

³³ See, for example, Friedmann, supra note 24, at 60–71, who perceived international law to be developing on several levels, “one continuing the traditional international law of diplomatic coexistence, and the other two implementing the quest for both universal and regional international cooperation and organisation ...” (at 64), and called for “a far reaching reorientation in our conceptions of the science and study of contemporary international law” (ibid.).

³⁴ The first of these UN megaconferences was the 1972 Stockholm Conference on the Human Environment, followed by several others of comparable magnitude on world population (1974), world food (1974), human settlement (1976), water (1977), soil conservation and desertification (1977), racism and racial discrimination (1978), science and technology for development (1979), women’s rights (1980), and new and renewable sources of energy (1981). On the Stockholm model of legal development, see Johnston, , “The Heritage of Political Thought in International Law,” in Macdonald, and Johnston, , supra note 1, at 179, 200-1.Google Scholar

³⁵ For a detailed study of regional co-operation in one problem context, see Johnston, and Enomoto, , “Regional Approaches to the Protection and Conservation of the Marine Environment,” in Johnston, (ed.), The Environmental Law of the Sea 285–385 (1981).Google Scholar

³⁶ “At the most general level, a regime is a set of agreements among some specified group of actors spelling out: (1) a well-defined distribution of power and authority for the relevant social structure or geographical region, (2) a system of rights and liability rules for the members of the social structure, and (3) a collection of behavioral prescriptions or rules which indicate actions the members are expected to take under various circumstances. In short, a regime is a system of government, though it need not involve the existence of a written constitution or the presence of any formal institutional arrangements”: Young, , Resource Management at the International Level: The Case of the North Pacific 44–45 (1977)Google Scholar. For a different concept of “regime,” see Haas, , “On Systems and International Regimes,” (1975) 27 World Politics 147 CrossRefGoogle Scholar. See also Young, , “Regime Dynamics: The Rise and Fall of International Regimes,” (1982) 36 International Organization 227 CrossRefGoogle Scholar. On the relationship between lawmaking treaties and international regimes, see Schachter, , “The Nature and Process of Legal Development,” in Macdonald, and Johnston, , supra note 1, at 781–87.Google Scholar

³⁷ Both aims have exposed McDougal and his associates to criticism from fellow neo-Realists. The goal of systematization has committed McDougal and many of his associates to the elaborate conceptual apparatus designed by the late Harold Lasswell, which is regarded by traditionally inclined lawyers as alien and unwieldy: Young, , “International Law and Social Science: The Contributions of Myres S. McDougal,” (1972) 66 Am. J. Int’l L. 62 at 67CrossRefGoogle Scholar. The open-endedness of policy science has often been criticized as a failure to provide guidance on the question whether an action is legal or illegal: Stone, supra note 15, at 21. Ideologically, McDougal’s value orientation has been attacked for being too supportive or reflective of Western liberalism or capitalism. See, for example, Boyle, supra note 8, at 63, 66. These ideological criticisms of McDougal’s work may affect some readers differently from that intended, at a time in history when more and more countries around the world seem to be leaning in both these directions.

³⁸ Kaplan and Katzenbach, supra note 9, attempts to “relate the normative structure of international law to the underlying patterns of political behavior that have characterized the modern state system” (at 30).

³⁹ Gould, and Borkun, , International Law and the Social Sciences (1970)Google Scholar, maintains that resort to social science methods in international law “signifies not just an undertaking to improve methodology, but also a striving for richer conceptual schemes and the unification of theorists’ thinking beyond what formal theories of law and formal theories of politics permit” (at 23).

⁴⁰ Carlston, , Law and Structures of Social Action (1956)Google Scholar, emphasizes the role of organizations and agencies in the development of international law, based on the ethic of co-operation (at 172).

⁴¹ Coplin, , Functions of International Law (1966)Google Scholar, offers an approach which is “interdisciplinary in its use of social science concepts, integrative in its attempt to develop a general theory on the role of law and organization in the international environment...” (at vii).

⁴² Friedmann, supra note 24, is a “progressive,” albeit neo-classical approach, which places the welfare function of international organizations close to the centre of the framework.

⁴³ By drawing upon the literature of international relations and international organizations as well as international law, Falk has made impressive efforts to develop a “conception of the international legal order that effectuates a reconciliation between [the] intertwined considerations of autonomy and relevance,” emphasized by Kelsen and McDougal, respectively: Falk, , The Status of Law in International Society xii (1970).Google Scholar

⁴⁴ Higgins, , The Development of International Law Through the Political Organs of the United Nations (1963)Google Scholar, applies policy science scholarship to the interface between the law and the politics of the United Nations, including matters of “vital national interest.”

⁴⁵ Young, supra note 37, has criticized efforts to bridge the gap between international legal theory and the theory of international relations and has made important contributions to the theory of international regimes (supra note 36).

⁴⁸ Boyle, supra note 8, has recently tried to bridge the gap between international law and international political science by comparing the roles that legal and political considerations played in several United States foreign policy crises.

⁴⁷ More than anyone else, Jenks devoted himself to a functionalist vision of world order which gave as much weight to the welfare norms and practices of international organizations as to the traditional rules of the nation-state system. Although he did not himself apply the techniques of social science research, he insisted that the international lawyer should combine with a legal training “an instinct for legal and institutional development to which a firm grasp of legal history and a wider background in the political and social sciences can contribute powerfully”: Jenks, , The Common Law of Mankind 417 (1958).Google Scholar

⁴⁸ Throughout his career Stone tended to evaluate international law in terms of its adequacy or inadequacy as a response to changes in international society. More than most of his contemporaries, he maintained a “sociological” orienchartation in his writings, and a special interest in the relationship between international law and the social sciences: Stone, supra note 15; and “A Sociological Perspective on International Law,” in Macdonald and Johnston, supra note 1, at 263–303.

⁴⁹ For example, for Stone’s criticisms of Jenks, McDougal, and Falk, see Stone, supra note 15, at 15-48; for McDougal’s criticisms of Friedmann, see McDougal, and Reisman, , “The Changing Structure of International Law : Unchanging Theory for Enquiry,” (1965) 65 Col. L.R. 810 CrossRefGoogle Scholar; and for Boyle’s criticism of McDougal, see Boyle, supra note 8, at 61–65.

⁵⁰ Julius Stone, for example, was sceptical that it would be possible to unify the theoretical frameworks of jurisprudence and the social sciences, so as to bring them to bear together on “the investigation of the same empirical problems”: Stone, , Law and the Social Sciences in the Second Half Century 48–49 (1966)Google Scholar. Michael Barkun has written that all legal methodologies “stand in fundamental opposition to the viewpoint of the social sciences. Science accepts the necessity and desirability of a distinction between statements of fact and statements of value…. [T]he scientific endeavour generates its own values. Exceptions notwithstanding, social scientists attempt to expunge value judgments where possible, to make biases clear, and to live with the anguish that a residue of valuation remains…. [E]ven if ‘truth’ is the value to be achieved in both law and science, it is given different functions in each. For the legal system, ‘truth’ serves society by reducing the level of conflict and increasing the appearance of harmony. In science, ‘truth’ is valued insofar as it explains and predicts and eventually leads to other truths at higher levels of abstraction”: Barkun, supra note 39, at 2–3.

⁵¹ Oran Young concedes that “it is difficult to see how the bond between legal analysis and the social sciences could be made stronger than it is in McDougal’s fundamental conception of law,” and yet criticizes his work for lacking the injection of social science studies in areas brought within his field of inquiry: for example, the areas of decisionmaking, élites, leadership, power, and social change. Young, supra note 37, at 63.

⁵² Several writers have pointed out that the kind of empirical inquiry that a decisionmaking approach seems to depend upon would show that at the international level there is often no identifiable decisionmaker of the lawmaking kind always found at the national level. See, for example, Stone, supra note 15, at 21.

⁵³ Like almost all other international lawyers, McDougal and associates rarely engage in empirical investigation in the manner of social scientists, and almost never attempt to postulate verifiable hypotheses. As to the latter point, hypo-thesis-testing in the “scientific” tradition has been notoriously unsuccessful in the social sciences. It may be the wrong kind of “rigour” to strive for.

⁵⁴ Ibid., 3-74.

⁵⁵ Ibid., 61.

⁵⁶ Sztompka, , System and Function: Toward a Theory of Society 37–46 (1974)Google Scholar. For Bronislaw Malinowski’s own description of the elements of the functional theory of culture, see Malinowski, , A Scientific Theory of Culture and Other Essays 150 (1944)Google Scholar. His major works include: Argonauts of the Western Pacific (1922), Magic Science and Religion (1925), Crime and Custom in Savage Society (1936), and Sex and Repression in Savage Society (1927). Radcliffe-Brown, though often labelled a functionalist by his contemporaries, bitterly attacked Malinowski’s theory (that “every feature of culture of any people past or present is to be explained by reference to seven biological needs of individual human beings”) as “useless and worse,” called himself an anti-functionalist, and was so regarded by Malinowski, . Kuper, (ed.), The Social Anthropology of Radcliffe-Brown 1, 49 (1977)Google Scholar. Yet he adopted many of the concepts now associated with functionalism, and to that extent might be called a functionalist despite himself. See, for example, his works Taboo (1939) and Structure and Function in Primitive Society (1952).

⁵⁷ Radcliffe-Brown was one of the first to oppose “pseudo-historical and psychological explanations for social facts and events,” rejecting both in favour of explanations in terms of “sociological laws” discoverable empirically through comparative sociology. Srinivas, “Introduction,” in Radcliffe-Brown, , Method in Social Anthropology, XII (1958)Google Scholar. The functionalist framework has been widely regarded as suitable for this kind of approach to social anthropology.

⁵⁸ The most important works of Talcott Parsons include The Structure of Social Action (1937), The Role of Theory in Social Research (1938), and The Social System (1951). On his indebtedness to Malinowski, see Parsons, , “Malinowski and the Theory of Social Systems,” in Parsons, , Social Systems and the Evolution of Action Theory 83–99 (1977).Google Scholar

⁵⁹ For example, Robert K. Merton, Philp Selznick, David Easton, David Apter, Karl Deutsch, and Gabriel Almond have devoted much of their writing to the development or revision of Parsonian functionalism in sociology or political science.

⁶⁰ See Groom, and Taylor, (eds.), Functionalism: Theory and Practice in International Relations (1975)Google Scholar.

⁶¹ Sztompka, supra note 56, at 35-37.

⁶² On the many functions of social theory see ibid., 6–32.

⁶³ Ibid., 22.

⁶⁴ See, for example, Stone, , The Province and Function of Law: Law as Logic, Justice, and Social Control: A Study in Jurisprudence (1950, 1968).Google Scholar

⁶⁵ See, for example, Greenaway, and Brickey, (eds.), Law and Social Control in Canada (1978)Google Scholar; Henry, , Private Justice: Towards Integrated Theorising in the Sociology of Law (1983)Google Scholar. Social control has been defined as “any process by which people define and respond to deviant behavior. Accordingly, a general theory of social control is a body of formulations that predict and explain variation in how people define and respond to deviant behavior.” Black, , “Social Control as a Dependent Variable,” in Black, (ed.), Toward a General Theory of Social Control, Vol. 1, Fundamentals, at 1, note 1 (1984)Google Scholar. After the work of early social scientists such as Durkheim, Weber, and Malinowski, scholarly writings on social control concentrated on law. In recent decades, however, there has been a renewal of interest in social control theory in sociology and other disciplines, and this has led to the discovery how little most people actually use law to handle their conflicts. People “of lower status, such as the poor and disreputable, rarely use law against their social superiors … whereas some of the highest… are practically immune to it…. Moreover, people at the bottom use relatively little law among themselves…. People who are very close, such as blood relatives and married couples, use comparatively little law against one another; at the opposite extreme, the same applies to those who are separated by the greatest distances in social space, such as those from different tribes or nations”: ibid., 3–4 (emphasis added). Social control theory might seem to offer a limited future for international law!

⁶⁶ See, for example, Corbett, , The Growth of World Law (1971)Google Scholar. Percy Corbett’s vision of world law was inspired essentially by his faith in international cooperation. He felt strongly that the definition of “essential human rights” should be the focal point of international society and he looked to the gradual reorientation of the United Nations to that end. Corbett, , Law and Society in the Relations of States 295 (1951).Google Scholar

⁶⁷ Wilfred Jenks, like Wolfgang Friedmann, emphasized the “transnationaliza-tion” of law: that is, the fusion of national legal systems at the international level, so as to constitute a “common law of mankind”: Jenks, , The Common Law of Mankind (1958)Google Scholar and Friedmann, , Law in a Changing Society (1959)Google Scholar. Both emphasized the importance of the rise of the welfare state and of the welfare function of international law and organization. See also Macdonald, , Johnston, , and Morris, , “The International Law of Human Welfare: Concept, Experience, and Priorities,” in Macdonald, , Johnston, , and Morris, , supra note 31, at 3–79.Google Scholar

⁶⁸ Within this more restrictive framework, functionalism concentrates on the transnational co-operative behaviour of technical élites without according primacy or priority to any particular conception of human welfare.

⁶⁹ On the functionalist and neo-functionalist distinction between vital and non-vital interests and its relevance to the theory of international law, see Falk, supra note 43, at 463. Neo-functionalists differed from their predecessors by stressing the need for international co-operation in politically important and controversial, as well as routine and technical, sectors.

⁷⁰ The rather ill-organized writings of Claude-Henri de Saint-Simon have proved extraordinarily seminal for modern scholars interested in Christian socialism, social theory and organization, European federation, and other themes of considerable interest today. For example, he has been hailed for his prophetic warnings against the dangers inherent in industrial-technological society. But functionalists are chiefly impressed by the conceptual clarity of his call for a reorganization of European society. See Ionescu, (ed.), The Political Thought of Saint-Simon 83–98 (1976).Google Scholar

⁷¹ David Mitrany’s conception of functionalism assumed “that man can be weaned away from his loyalty to the nation state by the experience of fruitful international co-operation ; that international organization arranged according to the requirements of the task could increase welfare rewards to Individuals beyond the level attainable within the state ; that the rewards would be greater if the organization worked, where necessary, across national frontiers, which very frequently cut into the organization’s ideal working area” : Taylor, “Introduction,” in Mitrany, , The Functional Theory of Politics, at x (1975)Google ScholarPubMed. Functionalism “points to the potential contribution of the specialized agencies of the United Nations to the improvement of conditions which otherwise encourage violence” : ibid., at xi. The promotion of welfare is treated as an indirect approach to the prevention of war or other forms of aggression. Functionalist theory is pragmatic in character, permitting functional recommendations to be addressed directly to the real social situation, as Mitrany himself showed in his famous and influential booklet, A Working Peace System (1943). In the period of the United Nations, functionalists have stressed the significance of the growing demand for higher standards of material welfare almost everywhere, at a time in history when new technologies make these expectations increasingly realistic. Governments are pressured by these demands to take advantage of technological developments through international co-operation. Functionalist faith is placed in a “detached international civil service” staffed by técnicos (subject specialists) rather than in national interest groups and delegations consisting of políticos (diplomats and politicians). There is almost a functionalist preference for technocracy. Jacobson, , Networks of Interdependence: International Organizations and the Global Political System 67–72 (1979).Google Scholar

⁷² Just before his conversion to “power politics” theory, Morgenthau urged the need to develop a functional theory of international law borne out of “realist” jurisprudence as much as political realism: Morgenthau, supra note 8, at 273–84. He emphasized the “dual functional relationship” between the rules of international law and the psychological, social, political, and economic forces which determine the actual content (“material element”) of these rules (ibid., 274–84), and purported to see evidences of this kind of functionalist logic in contemporary jurists such as Manley Hudson, Philip Jessup, and Payson Wild (ibid., 279-80).

⁷³ See, for example, Haas, , Uniting of Europe (1950, rev. ed. 1968)Google Scholar; and Lindberg, , The Political Dynamics of European Economic Integration (1963)Google Scholar. These regional integration theorists also attracted attention to funct-onalist theory at the level of world order. See Sewell, , Functionalism and World Politics (1966)CrossRefGoogle Scholar and Haas, , Beyond the Nation State (1964).Google Scholar

⁷⁴ Taylor, supra note 71, ix-xxv; Boyle, supra note 8, at 14.

⁷⁵ Neo-functionalism can be regarded as a fusion of behaviouralist and inte-grationalist theory with organization theory. This convergence coincided with the perception that the exercise of “power politics” was being increasingly constrained within the conference arena and that the original functionalist distinction between the technical and the political was blurring over.

⁷⁶ See supra note 36.

⁷⁷ The international regime-building approach to complex problem situations seems particularly well suited to resource and environmental management problems, which are special, if not unique, to a definable geographical region, such as a “regional sea” defined by the United Nations ; Johnston and Enomoto, supra note 35. For a study of the regime-building possibilities in a remote, underinstitutionalized region, see Young (1977), supra note 36.

⁷⁸ Ashley, and Orenstein, , Sociological Theory: Classical Statements 91–92.Google Scholar

⁷⁹ Johnston, supra note 34, at 196. See also Schachter, supra note 36, at 746–47.

⁸⁰ Johnston, supra note 34, at 197–200.

⁸¹ Indeed it is generally acknowledged that the classical system of international law drew its “vital essence” mostly from western Europe: Verzijl, , “Western European Influence on the Foundations of International Law,” (1955) 1 International Relations 137.CrossRefGoogle Scholar Principles of inter-state conduct evolved much earlier in ancient China, India, Egypt, and Assyria, but these principles had no influence on the rules of modern international law which originated in sixteenth-century Europe. Anand, , “Attitudes of the Asian-African States Toward Certain Problems of International Law,” (1966) 15 Int’l & Comp. L. Q. 55, 57.CrossRefGoogle Scholar

⁸² Early emphasis on the containment function was reflected in the preoccupation with the possibility that internationally accepted legal principles could effectively limit the recourse to war, based on a universal understanding of “justness.” The tenacity of this inquiry owed much to the (chiefly Jesuit) theological training of most sixteenth-century jurists, and later to the ravaging impact of international anarchy induced by constant religious warfare throughout Europe.

⁸³ The origins of the facilitative function can be traced back thousands of years, when the most primitive kind of international trust was extended to the protection of diplomatic envoys and non-interference with legitimate trade, and when nations recognized their common interest in suppressing piracy, which threatened external trade and communication. The purposes of international trade, diplomacy, and communication were so fundamental to the earliest conception of a “law of nations” (jus gentium) that both the pre-classical and classical periods of international law might be characterized as chiefly “transactional” in orientation. This term serves also to accentuate the evolving legal system’s confinement to bilateral relationships.

⁸⁴ International arbitration can be traced back to ancient Greece, but its use through the Middle Ages was occasional at best, confined to the papacy and certain other institutions such as the Hanseatic League. The modern era of international arbitration dates from the Jay Treaty of 1794 between Great Britain and the United States, which set up a system consisting of three boards of arbitration ; each for a different kind of dispute : territorial, pecuniary, and miscellaneous. See Tod, , International Arbitration amongst the Greeks (1913)Google Scholar; Ralston, , International Arbitration from Athens to Locarno (1929)Google Scholar.

⁸⁵ By the mid-nineteenth century, the “European tradition,” which had dominated the classical period of international law, was beginning to be challenged by the emergence of new forces in international soicety. The writings of Marx and Engels offered a totally new version of world society based on social classes, which suggested an alternative future to that of the classical system of nation states. Less dramatically, the mid-nineteenth century was witness to the uprising of the Spanish and Portuguese colonies in South and Central America, where these newly independent states would soon demonstrate an innovative verve in diplomatic and legal relations. Within a few decades vast international energies would be generated by the United States after it had met its self-defined challenge of consolidation across the North American continent. By the 1920’s and 1930’s other countries were slipping the yoke of imperial control, notably members of the British Empire, such as Australia, Canada, New Zealand, and South Africa. In the inter-war period these newly evolving independent states were added to what might be described as an expanding “Western coalition,” which still drew upon the European civilization as the spiritual source of international law, but brought the promise of new ideas and broader interests.

⁸⁶ With the arrival of the League, and then the United Nations, international law acquired a totally new dimension. In addition to its transactional orientation, focused on bilateral relationships, the international legal system now was seen to have an equally important organizational orientation. Earlier concepts of “world community” now assumed operational significance in the face of a proliferation of international organizations and agencies. As this institutional network grew in size and significance, the conceptual apparatus designed essentially for “transactional” purposes faced the prospect of continual adaptation to new “organizational” realities. It was with this new institutionalization purpose that functionalists became chiefly preoccupied, and with all the other neo-classical and post-classical functions which grew out of it. See Vignes, , “The Impact of International Organizations on the Development and Application of Public International Law,” in Macdonald, and Johnston, , supra note 1, at 809–55Google Scholar.

⁸⁷ Codification of the rules of international law was of interest to some jurists of the late nineteenth century, when the international rule of law ideal in continental Europe was closely associated with that of systematic rule development through official codes. But it was not until the League, abortively, and the United Nations, successfully, provided their auspices for these efforts that the history of codification and progressive development really begins. For recent evaluations of the International Law Commission, see Ramcharan, , The International Law Commission (1977)Google Scholar; El-Baradi, , Franck, , and Trachtenberg, , The International Law Commission: The Need for a New Direction (UNITAR, 1981)Google Scholar; Schachter, supra note 36, at 773-81; and Sinclair, , The International Law Commission (1987).Google Scholar

⁸⁸ The arrival of international organizations ushered in the era of international charters. While it may be misleading to draw too close an analogy between charters and covenants at the international level and constitutions at the national level, there is surely no doubt that the former, like the latter, have raised expectations that legal system and process can be used consciously to induce social change and enhance human welfare. For a full-scale review of the impact of international law on the satisfaction of physical and non-physical needs and the implementation of individual and social rights, see Macdonald, Johnston, and Morris, supra note 67, passim.

⁸⁹ The corrective function of international law is, of course, a direct result of the world community’s emphasis on the developmental purposes of the UN system as a whole. At least in the perception of most developing countries, international law should recognize a “right to development,” as a matter of justice to the underendowed. Alston, , “The Right to Development at the International Level,” in Snyder, and Sathirathai, (eds.), Third World Attitudes to International Law 811–24 (1987)Google Scholar. Opinions vary widely on the best ethical balance between distributive and retributive strains of justice, but it is virtually impossible to deny that the international legal system must support, and not merely reflect, the continuing effort to reduce disparities between the rich and poor nations and peoples. See Schachter, supra note 31, and Johnston, supra note 31.

⁹⁰ Just as post-classical international law must serve a corrective function for ethical reasons, so it must also discharge a new developmental function for institutional reasons. The former task is to be addressed in fundamental issue contexts, the latter in complex problem situations. Characteristically, much of the new thinking in international law is applied to the challenge of reducing institutional complexity or diffuseness by concentrating on a single “mega-problem” and designing around it an optimal set of arrangements, or in some cases (such as complex ocean boundary-related problems) an optimal combination of settlements and arrangements. See Johnston, , The Theory and History of Ocean Boundary-Making 260–65 (1988)Google Scholar. Most international regimes have been in resource-related or environmental situations. It is too early to pass a verdict on the effectiveness of regime-building in practice, but it appears that the success of these experiments may depend, among other things, on the appropriate matching of problem with region. The problem of “regime implementation” is often not much different in kind from that of “treaty implementation” in comparably complex situations at the same regional level.

⁹¹ This very general function might be considered as involving much more than the sum of all other functions. For example, many post-classical theorists are attracted to the idea that international law should be redesigned to serve individual, minority, indigenous, and corporate, as well as statist and organizational, interests, on the ground that all are entitled to at least some limited degree of “international personality” under an expanded concept of “subjects” of international law. To the extent that statist (and possibly organizational) interests might wish to obstruct such a restructuring of international law, post-classicists would wish to apply themselves to the design and organization of new, non-statist forums or arenas, where these other interests can be represented outside the framework of the United Nations. On the proposal for a World People’s Assembly, see Macdonald, , Morris, , and Johnston, , “International Law Society in the Year 2000,” (1973) 51 Canadian Bar Review 316, 321–25.Google Scholar

⁹² Especially prominent in developing the homocentric view have been Julius Stone and Richard Falk. See, for example, Stone, supra note 48, who aligns with most of Falk’s writings in support of homocentricity. Both agree on the difficulty, but importance, of combatting statism. On the continuing heritage of sovereignty, see Wildhaber, , “Sovereignty and International Law,” in Macdonald, and Johnston, , supra note 1, at 425–52.Google Scholar

⁹³ For a review of the status of individuals as subjects of international law, see Broms, “Subjects: Entitlement in the International Legal System,” in Macdonald and Johnston, supra note 1, at 411-19. In the post-classical period, the newer developing states have generally discouraged the advancement of minority rights, which threatens to obstruct nation-building. The rights of indigenous peoples have, on the other hand, been quite vigorously promoted in older developed countries, where the material benefits derived from the exploitation of native peoples are more conspicuous. See Bennett, , Aboriginal Rights in International Law (1978)Google Scholar. For some recent discussions, see symposium in (1985) 79 Am. Soc. Int’l L., Proceedings, 189, and Thompson, (ed.), The Rights of Indigenous Peoples in International Law (1986).Google Scholar

⁹⁴ The view of policy science is that the listing of “sources” of international law in Article 38(1) of the Statute of the International Court of Justice is neither comprehensive nor homogenous; in particular, it does not adequately direct the inquirer to customary international law, and it does not account for law made by the UN General Assembly or Security Council, by small groups of states for the rest of the world community, or by non-state groups. McDougal, and Reisman, , International Law in Contemporary Perspective: Cases and Materials 7–8 (1981)Google Scholar. It should be conceded that an authoritative response or prescription might not take the form of a world community “decision.” Stone, supra note 15, at 66, who suggests that McDougal, in over-emphasizing the decisional character of international law, was “heavily influenced by implicit analogies to domestic or intra-national society.” To this, the counterargument is that it does not matter whether the response or prescription is called a decision, if it can be determined in context that it is authoritative. On the theoretical difficulties associated with the abandonment of the “doctrine of sources,” see Schachter, “The Nature and Process of Legal Development in International Society,” in Macdonald and Johnston, supra note t, at 761–66.

⁹⁵ From the beginning the UN General Assembly has purported to “declare” legal norms by resolution, despite the absence of a Charter-based mandate to do so. Since the Assembly is clearly entitled to express official world community opinion, its exercise of this declaratory function has not been challenged, but the question of the “binding force” of these declarations has always been controversial. For a recent succinct appraisal based on functionalist logic, see Schachter, supra note 36, 787–95.

⁹⁶ Statute of the International Court of Justice, Art. 38. Traditionalists who invoke this provision as authority for the general proposition that norms should be looked for only in these “sources” should recall that most states do not make use of the ICJ and that, in any event, new processes of legal development have emerged since the Statute was drafted in 1945. Those processes which are associated with the United Nations have the same source of “authoritativeness” as the Statute—namely, the collective will of the organized world community — and have the advantage of more general support than the ICJ or any other method of binding third party adjudication.

⁹⁷ One method of classifying international agreements by function is the fourfold classification of distributive, administrative, demonstrative, and resolutive agreements. See Johnston, supra note 90, at 259-60.

⁹⁸ If any resort to analogy in national law is useful for multilateral treaties, it would be to the model of legislation rather than contract. On the face of things, more useful insights might be gained from comparing distributive multilateral agreements with distributive legislation, administrative with administrative, and so on. It seems wiser, however, to treat multilateral treaty-making as an activity sui generis. The process has been described, by an Australian foreign minister, as “varied, chancy, frequently experimental and often inefficient” : United Nations, Review of the Multilateral Treaty-Making Process 7 ( 1985). In the case of the 200 multilateral conventions which have been concluded within the United Nations, both the process and the product might be most logically approached as organizational in origin and significance. A functional analysis of each in its own context would be required to determine the appropriateness of the legislative model. Multilateral treaties con-cluded and maintained outside the United Nations may not be so easily explained, by functionalist logic, by reference to the purposes and principles of international organization; but normally the co-operative purpose in question directs attention to at least one international agency, or at least to an identifiable area of transnational communication.

⁹⁹ The traditional requirement for discrete consensual acts — such as voting on specific provisions, voting on adoption of the text, signature, and ratification — is particularly onerous, anomalous, and counter-productive when applied to complex and protracted exercises in global treatymaking, such as the Third UN Conference on the Law of the Sea. Functionalism favours ingenious practices such as “package diplomacy” and “consensus technique” designed to reduce dependency on consensual acts and to encourage co-operative behaviour in the conference arena. For a review of these new practices, see Zemanek, , “Majority Rule and Consensus Technique in Law-Making Diplomacy,” in Macdonald, and Johnston, , supra note 1, at 857–87.Google Scholar

¹⁰⁰ Functionalist logic suggests that, unless the treaty provisions are completely original and incapable of passing swiftly into binding law through state practice, in one form or another, the need for final confirmation through ratification is questionable. As the nation-state system becomes ever larger and more diversified, the present system of treaty effectuation through ratification becomes increasingly protracted and inadequate. The act of signature might, more properly, be regarded as the consensual act of primary juridical significance. In certain cases, ratification might be retained not as a general requirement of “consent” but as an optional act of “confirmation” designed to indicate the ratifying state’s willingness to be bound by all the terms of the convention in adjudicative situations. The parties to subsequent bilateral treaties in the same area might undertake, on a reciprocal basis, to ratify the multilateral convention with a view to underlining their good faith commitment to third party dispute settlement in subject areas affected by both instruments.

¹⁰¹ The law of treaties must somehow be modified so as to take account of the extreme disparities among nations. In the case of highly complex, “constitutive” global treaties like the 198a UN Convention on the Law of the Sea, it is unrealistic to regard all signatory states or future parties, regardless of their capabilities, interests, and geographical circumstances, to be “equally bound” by all its provisions, except in a highly formalistic sense. Functionalist logic suggests — heretically — that the 140-odd signatory states should be held to the Convention as a whole in accordance with the point they occupy on the spectrum between the “most responsive,” at one extreme, and the “least responsive,” at the other. On the minimal-maximal spectrum applied to the 198a UNCLOS III Convention, see McDorman, et al., The Marine Environment and the Caracas Convention on the Law of the Sea 89–90 (1981)Google Scholar. For any one state, the degree of responsiveness will vary with the provision, or sector, of the Convention in question. A functionally logical, post-classical theory of treaty obligation applied to such a convention must be differential or “spectral” in structure, if it is to fall into line with political reality. Post-classical thinking must be sufficiently flexible to accommodate the notion that a treaty norm — say, one of the 198a Convention’s provisions on baseline delineation — may be a “binding rule” for certain states or situations, a “legal criterion” for others, and perhaps only a “guideline” for still others. Such a relativist approach is, of course, totally subversive of the traditional notions of state equality and uniformity. Whether one can stomach normative relativism to this extent depends, of course, on how much one values political realism in legal theory. Weil, , “Towards Relative Normativity in International Law?” (1983) 77 Am. J. Int’l L. 413.CrossRefGoogle Scholar

¹⁰² In a fully developed analysis of the “contextualist” approach, see McDougal, , Lasswell, , and Miller, , The Interpretation of Agreements and World Public Order (1967)Google Scholar. For a similar view, see Yambrusic, , Treaty Interpretation: Theory and Reality (1987)Google Scholar. For qualified approval of the “dynamic” approach to treaty interpretation, see Simma, , “Consent: Strains in the Treaty System,” in Macdonald, and Johnston, , supra note 1, at 494–97.Google Scholar

¹⁰³ In practice most reservations to multilateral treaties have marginal significance, and it is not clear that the liberal use of reservations actually encourages participation. Gamble, , “Reservations to Multilateral Treaties : A Macroscopic View of State Practice,” (1980) 74 Am. J. Int’l L. 372 CrossRefGoogle Scholar. In theory it seems desirable to discourage reservations that limit the significance of consent to the major purposes of a treaty, as intended by Article 19 of the 1969 Vienna Convention on the Law of Treaties. Yet in many contexts of lawmaking conventions the value of “integrity” (preservation of the original object and purpose of the treaty intended by the contracting parties) may yield to that of “universality” (promotion of general participation by the members of the world community). See McRae, , “The Legal Effect of Interpretive Declara-tions,” (1978) 49 Brit. Yb. Int’l L. 155 Google Scholar; and McDorman, , “Reservations and the Law of the Sea Treaty,” (1982) 13 Journal of Maritime Law and Commerce 481.Google Scholar

¹⁰⁴ The functionalist rationale of “object and purpose” in the law of treaties has been applied to several situations. In addition to the problem of limiting consent through reservations [Articles 19 and 20(2)], the Vienna Convention of 1969 applies functionalist reasoning to the protection of treaties not yet in force (Article 18), to problems of interpretation [Article 31(1)], to the protection of multilateral treaties subject to modification or suspension by agreement among certain of the parties only [Articles 41(1) and 58(1)], to the definition of “material breach” [Article 60(3)], and to the right of termination, withdrawal, or suspension by reason of supervening impossibility [Article 61(1)]. Often failure to obtain real consent is built into the process of multilateral treatymaking by failure to secure agreement at the beginning on the object and purpose of the exercise. Doubts are “usually suppressed for reasons of political opportunism until retreat becomes impossible, and a deceptive atmosphere of concord is developed which contrasts strangely with the delays or even resentment that become apparent as soon as the negotiating states are expected to finally express their consent to be bound by the treaty. Majorities gain pyrrhic victories, because the results of voting give a false picture of the true degree of acceptance of the provisions so adopted due to slight legal relevance of assent or silence at that early stage.” Simma, supra note 102, at 488.

¹⁰⁵ On the trend to maximum choice in dispute settlement, especially in the contemporary law of the sea, see Adede, , The System for Settlement of Disputes under the United Nations Convention on the Law of the Sea (1987).Google Scholar

¹⁰⁶ On custom as a source of international law in the post-classical world, see Cheng, Bin, “Custom : The Future of General State Practice in a Divided World,” in Macdonald, and Johnston, , supra note 1, at 513–54Google Scholar; and D’Amato, , Concept of Custom in International Law (1971).Google Scholar

¹⁰⁷ Sinha, “Perspective of the Newly Independent States on the Binding Quality of International Law,” in Synder and Sathirathai, supra note 89, at 24. It is possible to distinguish five grounds on which new states might wish to question the binding force of classical rules of customary international law. The historical argument is based simply on the non-existence of the new state at the time of rule formation. The ethical argument proceeds from the premise that a binding rule must be the product of a process in which the state participated, or an outcome to which the state has otherwise consented. The ideological argument denies binding force for a new state which was oppressed at the time of rule formulation by those states formulating the rule, particularly if the rule in question was used, intentionally or otherwise, for oppressive purposes. The economic argument rejects the old customary rule only if it seems obstructive of the new state’s efforts at nation-building and inconsistent with the post-classical developmental function of international law. The cultural argument questions the universal validity of the old rule if it appears to be derived from a custom or tradition alien to, and inconsonant with, the new state’s own customs and traditions in relevant contexts.

¹⁰⁸ A principle permitting a new state to reject a customary rule of classical origin on any of the above grounds (supra note 107) would be dysfunctional if it were applied in such a way as to defeat or frustrate multilateral efforts, at the global or regional level, to induce co-operative action in a fundamental issue context or a complex problem situation. The general interest in co-operative behaviour should always prevail over a new state’s special interest in evading the imposition of a classical rule of customary law.

¹⁰⁹ D’Amato, supra note 106, at 187-94; and Slouka, , International Custom and the Continental Shelf (1968)CrossRefGoogle Scholar. See also McGibbon, , “Some Observations on the Part of Protest in International Law,” (1953) 29 Brit. Yb. Int’l L. 293 Google Scholar; “The Scope of Acquiescence in International Law,” (1954) 30 ibid., 143; and “Estoppel in International Law,” (1958) 7 Int’l & Comp. L. Q. 486.

¹¹⁰ Compare Bowett, “Jurisdiction: Changing Patterns of Authority over Activities and Resources,” in Macdonald and Johnston, supra note 1, at 555-90, with McDougal and Reisman, supra note 94, at 432-962 bases of power of states).

¹¹¹ See section on “Ocean Development and Management,” infra.

¹¹² On recent Antarctic developments, see Auburn, , Antarctic Law and Politics (1982)Google Scholar; Westermeyer, , The Politics of Mineral Resource Development in Antarctica: Alternative Regimes for the Future (1984)Google Scholar; Myhre, supra note 18; Triggs, (ed.), The Antarctic Treaty Regime: Law, Environment, and Resources (1987)CrossRefGoogle Scholar; Orrego-Vicuna, , Antarctic Mineral Exploitation (1988)CrossRefGoogle Scholar; and Joyner, and Chopra, (eds.), The Antarctic Legal Regime (1988)Google Scholar. On recent outer space developments, see Matte, (ed.), Space Activities and Emerging International Law (1984)Google Scholar; Fawcett, , Outer Space: New Challenges to Law and Policy (1984)Google Scholar; Benko, and others, Space Law in the United Nations (1985)Google Scholar; Matte, (ed.), Arms Control and Disarmament in Outer Space (Vol. 1, 1985; Vol. II, 1987)Google Scholar; van Bogaert, , Aspects of Space Law (1986)Google Scholar; Hurwitz, , The Legality of Space Militarization (1986)Google Scholar; and Bate, (ed.), Television by Satellite: Legal Aspects (1987)Google Scholar. For an early, seminal analogy, see Jessup, and Taubenfeld, , Controls for Outer Space and the Antarctic Analogy (1959)Google Scholar. Regime-building in Antarctica and outer space has been designed in part for purposes of environmental protection, especially in the case of the former. If the Antarctic region is defined broadly to include the Southern Ocean as well as the Antarctic land-mass, it can be said that the environmental purpose of regional regime-building has been reinforced by the adoption of the Convention on the Conservation of Antarctic Marine Living Resources in 1980. In addition, it can be argued that contemporary international environmental law has been shaped in large part by co-operative arrangements designed to circumvent traditional jurisdictional issues sharpened by the competitive or autonomous behaviour of claimant states. An impressive example is the emergence of regional environmental regimes in semi-enclosed or other kinds of “regional seas” : Johnston and Enomoto, supra note 35, at 324-37. For an extended anlysis of regime-building in the Mediterranean, see Chircop, “Cooperative Regimes in Ocean Management: A Study in Mediterranean Regionalism” (Dalhousie University, doctoral dissertation, 1988).

¹¹³ Johnston, supra note 90, at 225-86.

¹¹⁴ Ibid., 163-65.

¹¹⁵ Hosenball, and Holgard, , “Delimitation of Air Space and Center Space: Is a Boundary Needed Now?,” (1987) 57 Univ. Col. L. R. 885.Google Scholar

¹¹⁶ The functionalist orientation of the 1961 Vienna Convention on Diplomatic Relations is underlined in the preamble, which emphasizes that the purpose of diplomatic privileges and immunities is “not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States.” Five such functions are enumerated in Article 3 :

• “(a)

  “(a) representing the sending State in the receiving State;

• (b)

  (b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;

• (c)

  (c) negotiating with the Government of the receiving State;

• (d)

  (d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting therein to the Government of the sending State;

• (e)

  (e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.”

Somewhat similarly, the preamble to the 1963 Vienna Convention on Consular Relations states that the overriding purpose of that instrument is “to ensure the efficient performance of functions by consular posts on behalf of their respec-tive states,” and no less than thirteen consular functions are enumerated in Article 5. For a comment, see Lee, , Vienna Convention on Consular Relations 51–73 (1966)Google Scholar. In practice, the range of “recognized” consular functions may be set out specifically in bilateral consular treaties. See, for example, Article 7 of the 1964 Consular Convention between the United States and the Soviet Union, text reproduced in ibid., 399-308.

¹¹⁷ For classical views on diplomatic immunity, see Hershey, , Diplomatic Agents and Immunities 83–198 (1919).Google Scholar

¹¹⁸ In 1975 the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character was adopted, setting out the status, privileges, and immunities of such representatives. At the time of writing the International Law Commission had not completed its work on draft articles dealing with the “status, privileges and immunities of international organizations, their officials, experts and other persons engaged in their activities not being representatives of States.” The ILC is closer to completion of draft articles on the “status of the diplomatic courier and the diplomatic bag not accompanied by diplomatic courier.” On the work of the ILC generally, see works cited in supra note 87.

¹¹⁹ For a policy science approach to the process of recognition in international law, see Reisman, and Suzuki, , “Recognition and Social Change in International Law: A Prologue for Decision-making,” in McDougal, and Reisman, (eds.), International Law Essays: A Supplement to “International Law in Contemporary Perspective” 493–554 (1981)Google Scholar. Even this full-scale study does not include every “object” that might be said to be subject to the recognition process. A single exhaustive account of the “cognitive factor” in international law would be of inordinate length and complexity. It might be more feasible for a team of scholars, working within the same open-ended framework of inquiry, to produce a series of monographs, each limited to one of the numerous objects of recognition, with a view to ensuring that the process of recognition is evaluated within the appropriate context.

¹²⁰ For example, the recognition (or approval) of diplomatic credentials ought to be related specifically to the receiving state’s perception of the applicant’s suitability to perform efficiently the officially approved functions of the diplomatic mission in the receiving state; the recognition of a new government born of violence ought to be related to the willingness of other governments to enter into a legal relationship with the newcomer in light of the circumstances in which the latter resorted to violence ; the admission of a new state to membership of the United Nations ought to be related to its willingness and ability to serve the purposes and abide by the principles of the United Nations, especially those enunciated in the UN Charter; and so on. Newly independent states have shown sensitivity to the demand for self-determination in colonial situations by granting recognition to insurgents engaged in wars of national liberation, and to their state even before the insurgents have gained complete control of the whole territory. Sinha, supra note 107, at 27.

¹²¹ Brownlie, supra note 1, at 639-40.

¹²² The topic of state responsibility was designated as “ripe for codification” by the International Law Commission as early as 1956. Since then the ILC has proceeded, with commendable patience, through several rapporteurships (Garcia Amador, Ago, Quentin-Baxter, Riphagen), in the hope of reaching agreement on draft articles. Part of the difficulty has been the reluctance of Third World jurists to accept the binding character of suggested rules in this sector of international law: ibid., 28. On the face of things, this is the least likely of the ILC’s codification exercises to bear fruit. Apart from the political sensitivity, the approach seems too abstract and scholastic to generate consensus among jurists, and too theoretical to attract the interest of most governments. For an analysis of alternative approaches to this codification effort, see Riphagen, , “State Responsibility: New Theories of Obligation in Interstate Relations,” in Macdonald, and Johnston, , supra note 1, 581–625.Google Scholar

¹²³ The treatment of aliens raises practical and fundamental questions about the human rights standards that can be maintained in all cultures and societies through a system of world community law. The first ILC rapporteur on state responsibility, Dr. Garcia Amador, suggested that equality of treatment of nationals and aliens should be stipulated and proposed the assimilation of the traditional “minimum standard” into the new context of UN-sanctioned human rights and fundamental freedoms. This was opposed within the ILC and had to be abandoned. Since 1963 the ILC work on state responsibility has been both broadened, to cover matters other than the treatment of aliens, and relegated to the level of “secondary” rules, which give rise to a breach of an international obligation only if the alien concerned has exhausted the local remedies available to him. The attempt to effectuate a minimum human rights standard for nationals and aliens alike has shifted to the level of regime-building at global and regional levels. Adede, , “The Minimum Standards in a World of Disparities,” in Macdonald, and Johnston, , supra note 1, at 1005–6.Google Scholar See also Capotarti, , “Human Rights: The Hard Road to Universality,” ibid., 977–99Google Scholar. Classical international law also purported to incorporate a minimum international standard in the economic context of expropriation of foreign assets, chiefly through the “public purpose” and “prompt, adequate and effective compensation” requirements. Since the early 1960’s the North versus South debate has moved away from the expropriation issue to a much broader range of issues affecting the use of intergovernmental financial institutions, implementation of the 1974 Charter of Economic Rights and Duties of States, sovereignty over natural resources within limits of national jurisdiction, access to resources, technology, and information beyond national limits, and other major issues related to the New International Economic Order (NIEO). Adede, supra, 1009-21; Petersmann, , “International Economic Theory and International Economic Law: On the Tasks of a Legal Theory of International Economic Order,” in Macdonald, and Johnston, , supra note 1, at 227–62Google Scholar; and Raman, , “Towards a New World Information and Communication Order: Problems of Access and Cultural Development,” ibid., 1027–68Google Scholar. This broadening of corrective and developmental issues, each to be examined within its own context, has further weakened the claim of state responsibility doctrine to be central to the treatment of actual problems or issues. Again, in the field of international environmental law the post-classical period has witnessed a spectacular proliferation of treaties and regimes, which are featured by problem-solving specificity rather than by doctrinal generality.

The result is that this field is now a rich combination of traditional doctrine still evolving, as in the chiefly European, state responsibility, context of “transfrontier pollution,” and newer ideas and institutions related to shared or shareable resources, common heritage areas, and conservation requirements. Kiss, , “The International Protection of the Environment,” in Macdonald, and Johnston, , supra note 1, at 1069–93.Google Scholar

¹²⁴ For a recent review, see Macdonald, supra note 19.

¹²⁵ See Rozakis, , The Concept of Jus Cogens in the Law of Treaties (1976)Google Scholar; Sztucki, , Jus Cogens and the Vienna Convention on the Law of Treaties (1974)CrossRefGoogle Scholar; and Schwelb, , “Some Aspects of International Jus Cogens as Formulated by the International Law Commission,” (1967) 61 Am. J. Int’l L. 945 CrossRefGoogle Scholar. It will be recalled that the 1969 Vienna Convention on the Law of Treaties provides, in Article 53, that a treaty is void “if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” The same article defines the term “peremptory norm” as a “norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

¹²⁶ Macdonald, , “The United Nations Charter: Constitution or Contract,” in Macdonald, and Johnston, , supra note 1, at 889–912.Google Scholar

¹²⁷ This four-level framework of basic norms might be justified by reference to the concept of “dysfunctionality.” The top level of “peremptory” norms consists of norms of systemic significance, in the sense that the entire system of world order would be dysfunctional if there were appreciable non-compliance. The second-level basic norms are of constitutional significance, in the sense that the UN Charter and other global charters and covenants would become meaningless if these principles were ignored or discounted in fundamental issue contexts. The third-level basic norms are of legislative significance, in the sense that the process of legal development is frustrated when states in general, and “leader states” in particular, are slow or reluctant to implement such norms in any of the appropriate ways. The fourth-level basic norms are institutional in significance, in the sense that the relevant international regime addressed to complex problem-solving cannot operate at the intended level of institutional sophistication if the participating states do not co-operate in the application of these norms to relevant situations.

¹²⁸ On the early classical approach to the control of force in international politics, see Verdross, and Koeck, , “Natural Law : The Tradition of Universal Reason and Authority,” in Macdonald, and Johnston, , supra note 1, at 17–50 Google Scholar. See also Walzer, , Just and Unjust Wars (1977)Google Scholar; O’Brien, , The Conduct of Just and Limited War (1981)Google Scholar; and Phillips, , War and Justice (1984).Google Scholar

¹²⁹ Gassese, (ed.), The New Humanitarian Law of Armed Conflict (1979).Google Scholar

¹³⁰ Stone, , Aggression and World Order 27–31 (1958, 1976).Google Scholar

¹³¹ Ibid., 31-33.

¹³² On efforts to regulate the use of force in various contexts, see Cassese, (ed.), The Current Legal Regulation of the Use of Force (1986)Google Scholar. On the history of UN armed intervention and peacekeeping, see Zeidan, , The United Nations Emergency Force 1956-1967 (1976)Google Scholar; and Cassese, (ed.), United Nations Peacekeeping: Legal Essays (1978).Google Scholar

¹³³ Fukatsu, , “Coercion and the Theory of Sanctions in International Law,” in Macdonald, and Johnston, , supra note 1, at 1187–1205.Google Scholar

¹³⁴ Ibid., 1200-1. See also Stone, , “Hopes and Loopholes in the 1974 Definition of Aggression,” (1977) 71 Am. J. Int’l L. 224 CrossRefGoogle Scholar; and Roling, , “The 1974 Definition of Aggression,” in Cassese, (1986), supra note 132, at 413–21.Google Scholar

¹³⁵ For a review of trends toward general and complete disarmament, nuclear disarmament, cessation of nuclear weapons testing, non-proliferation of nuclear weapons, nuclear-weapon-free zones and zones of peace, and other measures, see United Nations, The United Nations and Disarmament: 1945-1985 (1985).

¹³⁶ On the history of the organization from 1863 to 1980, see Willemin, and Heacock, , The International Committee of the Red Cross (1984).Google Scholar

¹³⁷ Power, , Amnesty International: The Human Rights Story 35–39 (1981).Google Scholar

¹³⁸ Beres, , “Genocide and Genocide-Like Crimes,” in Bassiouni, (ed.), International Criminal Law, Vol. 1, Crimes 271–79 (1986)Google Scholar; Bassiouni, , “Introduction to the Genocide Convention,” ibid., 281–88Google Scholar; and Nanda, and Bassiouni, , “The Crimes of Slavery and Slave Trade,” ibid., 325–43.Google Scholar

¹³⁹ Murphy, , Punishing International Terrorists: The Legal Framework for Policy Initiatives (1985).Google Scholar

¹⁴⁰ Special reference must be made to the International Red Cross and Amnesty International for their contributions to the reduction of barbarism, as to IUCN (the International Union for Conservation of Nature and Natural Resources) in the field of conservation and environmental protection. For another example of central NGO involvement in the development of international law, see infra note 146.

¹⁴¹ Macdonald, Johnston, and Morris, supra note 67.

¹⁴² Ibid., passim.

¹⁴³ For a listing, see supra note 34.

¹⁴⁴ It is worth reproducing the final printed words of Alfred Verdross, who conceded the co-existence of different schools of natural law, but then concluded : “But however great the differences between these schools may be, they all agree on one point: that a law of nature exists necessarily, that its principles form the basis for any peaceful and orderly community life, and that its norms are the yardstick by which the justice of positive law can be measured. [The need to] search for these principles and norms and to apply them de lege ferenda, in a constant review and reform of positive law, is regarded as indisputable…. [I]t will not be possible to solve the present and acute problems of the international community, especially the problems of maintaining world peace and bringing about the necessary development of the Third World, without having due regard to the principles and norms of natural law to which the long tradition of universal reason and authority refers us” : Verdross and Koeck, supra note 2, at 42.

The opposite view, stated boldly, is that “there is no such thing as a natural man with natural rights living in a state of nature and ruled by natural law. Rights are not natural, inalienable, or inviolable. Rights cannot be treated as an abstract Platonic force, but can only be considered meaningful within the context of civil society.” Boyle, supra note 8, at 65. In McDougal’s work in the field of human rights, Boyle sees “an atavistic return to the promotion of Grotian natural law concepts dressed up in the jargon of mid-2 oth century social science,” and describes any pretension to a universal value system as “inextricably rooted in the Western liberal tradition of natural right” : ibid., 63.

¹⁴⁵ According to this view of things, international law is required to accommodate two macro-cultures (“two solitudes”) : one value system which elevates civil and political rights, as reflected in the Universal Declaration of Human Rights adopted in 1948, when Western influence was predominant within the United Nations; and another value system associated with all socialist and many developing states, which elevates economic, social, and cultural rights. Allegedly, these two macro-cultures compete for primacy in world community law. Since 1966, when it was found necessary to develop international human rights through two separate Covenants, that field has been threatened by the prospect of divergence, rather than convergence. “Even if we are prepared to accept that there was in the past a universal international law, there is little hope that we will ever see its existence again. There will be almost certainly an increasing fissipation into regional and political groupings. Perhaps the wisest approach is to accept this fact and abandon the pretence that consensus in the United Nations or adoption of Conventions that stand little chance of general, let alone, universal ratification is the route towards establishment of an international rule of law”: Green, , “Is There a Universal International Law Today?,” (1985) 23 Canadian Yearbook of International Law 3, 32Google Scholar. On the relationship between the two categories of rights, see Caportorti, supra note 123, at 987-90. On the regionalization of international law, see Gálvez, González, “The Future of Regionalism in an Asymmetrical International Society,” in Macdonald, and Johnston, , supra note 1, at 661–83.Google Scholar

¹⁴⁶ The latest example of slow advancement in the field of human rights is the Draft Convention on the Rights of the Child, which was originally proposed by Poland in 1979 as a treaty development from the 1924 Geneva Declaration on the Rights of the Child, the 1959 UN Declaration of the Rights of the Child, the 1948 Universal Declaration of Human Rights, and certain provisions of the two International Covenants of 1966. Despite annual meetings of the Working Group of the UN Commission on Human Rights since 1979, and twice-yearly meetings of an NGO Ad Hoc Group consisting of 50 or more non-government organizations in consultative status with Unesco, it is not yet certain that it will be possible for the draft to be submitted to the UN General Assembly by the target date in the fall of 1989, which would be the tenth anniversary of the International Year of the Child. On problems related to the scope of the treaty see Cohen, , “Elasticity of Obligation and the Drafting of the Convention on the Rights of the Child,” (1987) 3 Connecticut J. Int’l L. 71.Google Scholar

¹⁴⁷ The “common heritage” concept has been developed and implemented chiefly through the Third UN Conference on the Law of the Sea, but as a post-classical variant of the concept of common (or community) interest it has institutional roots in the neo-classical period of international law, especially in the domain of outer space law. Pardo, and Christol, , “The Common Interest: Tension Between the Whole and the Parts,” in Macdonald, and Johnston, , supra note 1, at 643–60.Google Scholar

¹⁴⁸ It is the special feature of functional logic to move the “international law of cooperation” (in Friedmann’s phrase) away from area, which traditionally has had territorial or quasi-territorial implications and makes organizational behaviour vulnerable to national sentiment. With the post-classical emphasis on the development of newly independent states, more specific thinking has focused on natural resources, both shareable and non-shareable, renewable and non-renewable. It became evident in the 1970’s, however, that access to resources was insufficient unless accompanied by the appropriate technology, defined broadly to include technique and expertise. In the 1980’s the force of functional logic has required an even more specific focus on information, without which even the most appropriate technology is inoperable.

¹⁴⁹ With the widening of the “common heritage” concept beyond internationally shareable areas and resources in situ to moveable technology and information, the “common heritage” principle has been subsumed under the general rubric of international development law, as noted below.

¹⁵⁰ For recent studies, see Ogley, , Internationalizing the Seabed (1984)Google Scholar, and Hauser, , The Legal Regime for Deep Seabed Mining under the Law of the Sea Convention (tr. Dielmann, 1983).Google Scholar

¹⁵¹ The discovery of newly available minerals on the land-mass of Antarctica and of krill in the waters of the Southern Ocean has focused international attention on the “common heritage” potentiality of these areas and resources, fuelling a world community interest in securing access to the relevant technology and information. The availability of solar energy, the development of remote sensing technology, and other trends in outer space have similarly motivated the world community to emphasize the need for “common heritage” institutions based on the ethic of co-operative behaviour.

¹⁵² See, for example, Cohen, , “Chinese Mediation on the Eve of Modernization,” (1966) 54 Cal. LR. 1201.CrossRefGoogle Scholar Only in the last decade or so have Western jurists begun to explore the entire range of alternatives to adjudication in their own culture. See, for example, Riskin, and Westbrook, , Dkpute Resolution and Lawyers (1987).Google Scholar

¹⁵³ Sinha, supra note 107, at 29-30. Most Western international lawyers regret the reluctance of many, newer non-Western states to submit international disputes for settlement to the International Court of Justice, and other adjudicative tribunals. Some of their disappointment might be due to their unfamili-arity with radically different legal cultures, which assign a relatively low priority to binding settlements by third party intermediaries. On current trends, see Diaconu, , “Peaceful Settlement of Disputes between States : History and Prospects,” in Macdonald, and Johnston, , supra note 1, at 1095–1119.Google Scholar

¹⁵⁴ See Adede, supra note 105.

¹⁵⁵ The trend to conciliation, as the best global compromise between extreme positions, is most clearly evidenced in Articles 284, 297, and 298 of the 1982 UN Convention on the Law of the Sea. A prominent Western expert has advocated the establishment of standing UN bodies for the settlement of disputes through good offices and mediation as well as conciliation. Sohn, , “The Future of Dispute Settlement,” in Macdonald, and Johnston, , supra note 1, at 1134.Google Scholar

¹⁵⁶ For a functional approach to “intermediation,” see Johnston, supra note 90, at 266-76.

¹⁵⁷ States reluctant to resort to adjudication are least likely to overcome their reluctance if the other party insists that the tribunal must be assigned a resolutive function whereby it resolves the issue through the application of rules or by a dispositive act (such as the drawing of a boundary line). In certain circumstances an interpretive or declaratory approach may also “govern” the outcome more dispositively than the reluctant state would wish. Assigning a tribunal a facilitative role, involving criteria or guidelines, might usually be the best compromise between conciliation or mediation, at one extreme, and resolutive adjudication, at the other.

¹⁵⁸ Johnston, supra note 31.

¹⁵⁹ The field of international development law reflects a growing variety of approaches to the problems of national and regional development: transfer of technology, common heritage, the restructuring of international institutions designed to regulate international trade and finance, the regulation of transnational corporations, and so on. For a representative sampling of recent writing in this complex field, see Bulajié, , Principles of International Development Law (1986)Google Scholar; Acquaah, , International Regulation of Transnational Corporations: The New Reality (1986)Google Scholar; Kohona, , The Regulation of International Economic Relations Through Law (1985)Google Scholar; OECD, Information Computer Communication Policy: An Exploration of Legal Issues in Information and Communication Technologies (1983); Boczek, , The Transfer of Marine Technology to Developing Nations in International Law (Law of the Sea Institute, Occasional Paper No. 32, 1982)Google Scholar; and Nanyenya-Takirambudde, , Technology Transfer and International Law (1980)Google Scholar. See also Petersmann, supra note 123, and Raman, ibid.

¹⁶⁰ For an overview of modern trends in international environmental law, see Schneider, , World Public Order of the Environment: Towards an International Ecological Law and Organization (1979).Google Scholar

¹⁶¹ The need for innovative thought in international environmental law and policy has recently been re-emphasized in the Brundtland Commission Report: The World Commission on Environment and Development, Our Common Future 308-47 (1987). The report concludes with a summary of proposed legal principles for environmental protection and sustainable development: ibid., Annex I, 348-51.

¹⁰² Kiss, supra note 123.

¹⁸³ Johnston, , “Systemic Environmental Damage : The Challenge to International Law and Organization,” (1985) 12 Syracuse Journal of International Law and Commerce 255.Google Scholar

¹⁶⁴ The need for imagination in international law was never more pressing than now, with the prospect of a significant loss of human control over the total environment of the biosphere. Scientists, economists, technologists, lawyers, and others are being forced to work imaginatively together in response to the depletion of the ozone layer, the spread of acid rain, the urgency of land-based marine pollution, the prospect of the “greenhouse effect,” and other intractable problems of such magnitude. See, for example, van Lier, , Acid Rain and International Law (1980)Google Scholar; Caldwell, , International Environmental Policy: Emergence and Dimensions (1984)Google Scholar; and Meng, , Land-Based Marine Pollution: International Law Development (1987).Google Scholar

¹⁸⁵ Carroll, , International Environmental Diplomacy (1988).Google Scholar

¹⁶⁶ 1982 UN Convention on the Law of the Sea, Part XV (Articles 279-99) on dispute settlement.

¹⁶⁷ Ibid., Part XI (Articles 136-191) on “the Area.”

¹⁸⁸ See, for example, ibid., Part II (Articles 2-33) on the territorial sea and contiguous zone, Part VI (Articles 76-85) on the continental shelf, and Part VII (Articles 86-132) on the high seas.

¹⁶⁹ On the different kinds of regime-building associated with the 1982 Convention, see Johnston, , An Overview on the New Law of the Sea in Southeast Asia: Problems and Prospects of Implementation (Southeast Asian Program on Ocean Law, Policy and Management, SEAPOL Studies No. 1, 1986), at 17–18.Google Scholar

¹⁷⁰ Injustice among nations in the classical law of the sea has been associated with the traditional regime of the high seas, under which the vessels of the European imperial and industrial powers enjoyed the right of unimpeded movement for commercial, military, and fishery purposes. But the UNCLOS III confirmation of the 200-mile exclusive economic zone regime was less a victory for new developing states in general than for coastal states, old and new, developed as well as developing. The proposed establishment of the International Seabed Authority is more properly interpreted as corrective in purpose, and also the introduction of a revenue-sharing formula applied to the continental shelf beyond 200-mile limits under Article 76 of the 1982 Convention.

¹⁷¹ The work of the Second Committee at UNCLOS III was dominated by the concept of functional jurisdiction, whereby new or expanded jurisdictional regimes were designed around specific activities: chiefly those of the contiguous zone, the continental shelf, the EEZ, international straits, and archipelagic states (in some degree). Even the traditional, areal regime of the territorial sea felt the impact of functional specificity in the new innocent passage provisions, which enumerate the coastal state’s competence in functional categories, in Articles 19 and 21 of the 1982 Convention.

¹⁷² Zemanek, supra note 99, at 865-66, and 871-77.

¹⁷³ Johnston, supra note 169; and McDorman and others, supra note 101.

¹⁷⁴ The range of national and international responses to the Law of the Sea Convention is documented in a number of sources, such as the Law of the Sea Bulletin, published by the United Nations Office for Ocean Affairs and the Law of the Sea, and the yearbook International Organizations and the Law of the Sea, published by The Netherlands Institute for the Law of the Sea (NILOS). For studies of suggested national responses in Canada, see McDorman, , “Will Canada Ratify the Law of the Sea Convention?,” (1988) 25 San Diego L. R. 535 Google Scholar; and Johnston, , Canada and the New International Law of the Sea (Royal Commission on the Economic Union and Development Prospects for Canada, Vol. 54, 1985).Google Scholar

¹⁷⁵ See works cited in note supra 112.

¹⁷⁶ The containment function involves demilitarization, or at least arms control, in outer space. Facilitation has been served mainly through bilateral cooperative arrangements between the Soviet Union and the United States for purposes of communcation and scientific research, but direct broadcasting and remote sensing by satellite, solar energy production, and other activities will soon be facilitated through a network of multilateral as well as bilateral arrangements involving COMSAT, INTELSAT, the European Space Agency, the proposed space station, and other sophisticated forms of international cooperation in outer space. The institutionalization of outer space will proceed by analogy with existing common heritage models, but not necessarily on the same scale as the proposed International Seabed Authority. Some developing states may opt for access to resources and revenues derived from outer space rather than rights of participation in decisionmaking, favouring the developmental function over the corrective.

¹⁷⁷ Hosenball and Holgard, supra note 115.

¹⁷⁸ Functionality in the use and regulation of outer space will be maintained only through complicated experiments in the balancing of general (participatory and beneficial) interests, on the one hand, and special (inventor, user, and associated) interests, on the other. On the case for privatization in outer space, see Marshall, , “Commercialization of Space: Incentives, Impediments, and Alternatives,” (1984) 12 Journal of Space Law 163 Google Scholar. For an assessment of the COMSAT model, see Gantt, , “The Commercialization of Space: Twenty Years of Experience: Some Lessons Learned,” ibid., 109 Google Scholar. See also Pedersen, , “Space Station: Risks and Vision,” (1986) 14 ibid., 1 Google Scholar; and Laffer-randerie, , “The Enlargement of the European Space Agency: Legal Issues,” (1987) 15 ibid., 119.Google Scholar

¹⁷⁹ Jessup and Taubenfeld, supra note 112.

¹⁸⁰ The three main goals of the 1959 Antarctic Treaty were demilitarization, scientific co-operation, and environmental preservation. For an appraisal by several writers see symposium in (1986) 19 Cornell Int’l L. J. 155, especially Conforti, , “Territorial Claims in Antarctica: A Modern Way to Deal with an Old Problem,” ibid., 249.Google Scholar

¹⁸¹ For an evaluation of these demands and the responses to them, see Hayashi, , “The Antarctica Question in the United Nations,” ibid., 375.Google Scholar

¹⁸² Displacement might be justified on the ground that even though the members of the “Antarctic Club” have met faithfully their responsibilities under the Antarctic Treaty, whose purposes are certainly consonant with global interests, the “paradigm” has changed since the Treaty was concluded, with the prevalence of an acquisitive interest which brings in the ethic of universal participation. See Simma, , “The Antarctic Treaty as a Treaty Providing for an Objective Regime’,” ibid., 189 Google Scholar. At the back of the issue of participation is the tension between the corrective and developmental functions of post-classical international law, but this issue should be seen as involving considerations of efficiency (effectiveness) as well as equity.

¹⁸³ It should be noted that at UNCLOS III, although the principal approach to deep ocean mining was corrective, through supranational organization based on the ethic of universal participation in the International Seabed Authority, the outcome was also partly influenced by developmental logic, through the concept of ranking benefits by reference to the degree of need and through the introduction of revenue-sharing requirements for broad margin states under Article 83 of the 1983 Convention. A comparable balance between corrective and developmental purposes might be expected in future arrangements for Antarctica. “The common heritage principle, like most rules of international law, may be observed and implemented through self-imposed limitations, restraints and safeguards so that states involved in mineral activities in Antarctica will behave not only uti singuli, in the pursuit of their national interest, but also uti universi, as interpreters and guarantors of the interests of mankind, in the conservation of the Antarctic environment and in the rational use of its resources.” Francioni, , “Legal Aspects of Mineral Exploitation in Antarctica,” ibid., 163, 188Google Scholar. By this argument, what is essential for purposes of universal accountability is an effective monitoring mechanism which is properly designed to represent the interests of the world community as a whole.