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recognized by civilized nations exists, the question of under what conditions the Court is supposed to apply this principle to the case at hand arises. If there is a treaty to which the states involved in the dispute are contracting parties, and if the treaty refers to the dispute, the treaty is to be applied (clause [a]). If there is no treaty, general customary international law is to be applied (clause [b]). This, as pointed out, is always possible, but clause (c) evidently presupposes the idea that there are gaps in international law. This means that the Court is authorized to apply a rule which the Court considers to be a general principle of law in case the Court deems the application of particular conventional or general customary international law not to be satisfactory, which implies an almost unlimited discretion on the part of the Court.
It is, however, doubtful whether the framers of the Statute really intended to confer such an extraordinary power upon the Court. Article 38, paragraph 1, expressly stipulates that the function of the Court is "to decide in accordance with international law."
Hence, it might be argued that "the general principles of law" are applicable only if they are part of international law, and that means part of the law referred to in clauses (a) and (b) of Article 38. Then, clause (c) is superfluous. Clause (d) does not refer to rules of international law to be applied by the Court; it establishes only a principle of interpretation. Article 59, to which clause (d) refers, stipulates that the decision of the Court has binding force only between the parties and only in respect to the particular case. Hence, a decision of the Court cannot have the character of a precedent.
17. Cf. pp. 16, 31 f. The Charter of the United Nations, just as the Covenant of the League of Nations, only recommends to the members that they refer their legal disputes to a judicial procedure. Article 13 of the Covenant provided : "1. The Members of the League agree that, whenever any dispute shall arise between them which they recognize to be suitable for submission to arbitration or judicial settlement, and which can not be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement. 2. Disputes as to the interpretation of a treaty, as to any question of international law, as to the existence of any fact which, if established, would constitute a breach of any international obligation, or as to the extent and nature of the reparation to be made for any such breach, are declared to be among those which are generally suitable for submission to arbitration or judicial settlement. 3. For the consideration of any such dispute, the court to which the case is referred shall be the Permanent Court of International Justice, established in accordance with Article 14, or any tribunal agreed on by the parties to the dispute or stipulated in any convention existing between them. 4. The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto."
Article 36 of the Charter stipulates : “1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment. 2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties. 3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties
to the International Court of Justice in accordance with the provisions of the Statute of the Court."
As to the definition of legal disputes, Article 36, paragraph 2, of the Statute (cf. p. 191) follows Article 13, paragraph 2, of the Covenant.
18. Of. p. 191.
21. Under the Covenant of the League of Nations, the enforcement of judicial decisions against a recalcitrant party was left to the other party. The Council had the power only to make recommendations. Article 13, paragraph 4, stipulated : "The Members of the League agree that they will carry out in full good faith any award or decision that may be rendered, and that they will not resort to war against a Member of the League which complies therewith. In the event of any failure to carry out such an award or decision, the Council shall propose what steps should be taken to give effect thereto.” Enforcement measures to be taken as reactions against violations of the Covenant (Article 16) were not to be preceded by a judicial decision.
The Charter of the United Nations stipulates: “Article 94. 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment."
The Security Council is only authorized, not obliged, to enforce the judgment of the Court. Instead of enforcing the judgment of the Court, the Council may even settle the dispute concerned by a recommendation made in accordance with principles of political convenience. As far as decisions of other tribunals are concerned (Article 95), the Security Council has no competence, but it may consider non-compliance with such a decision as a threat to the peace and take enforcement measures in conformity with Article 39.
22. Cf. pp. 121 f.
(cc) The peaceful change of legally established international
relations. Closely connected to the problem of the peaceful settlement of international disputes is a problem which is usually presented as the peaceful change of legally established international relations. If the relations are established by international agreements, one speaks of the revision of treaties. It is a widespread view that, in order to prevent war, an international security organization should have institutions to alter situations which are so unbearable to one or the other state that they may endanger the peace. If the dangerous situation manifests itself in a concrete dispute between two states, the problem may be solved by settling the dispute in one of the ways just described. However, such a situation may exist without materializing as a concrete dispute. The situation may have a more or less general character, with not only one or two but many states being involved in it as a
consequence of the actual status of general international law, although the situation becomes an imminent danger to the peace only in the relation between two definite states. In this event, the only radical solution of the problem lies in a change of the general rules of international law which are at the basis of the situation. This is possible under existing international law only by a general agreement, and to reach such an agreement is so difficult that it is practically out of the question. Only an international legislative organ competent to adopt general rules of law by a majority vote decision could fulfil such a function. If only two states are involved in the situation, especially if the situation is constituted by a treaty concluded by these states, the problem is not the changing of a general rule of international law but the altering or abolishing of a concrete obligation of one state and the corresponding right of the other. This is possible under existing law only by an agreement of the states concerned, but it is just the fact that such an agreement cannot be reached that creates the danger to the peace. If the constitutent treaty of a security organization should institute a legislative organ—that is, an agency composed of representatives of all or some of its members, competent to adopt by a majority vote decision general rules of law binding upon the members—the organization would assume the character of a super-state, and it is more than likely that for the time being most states, and particularly the great powers, would refuse to become parties to such a treaty. Only an organ with a power restricted to altering or abolishing the concrete obligation and the corresponding right of a definite state has a chance, and even then only a very modest chance, of being accepted as an institution of an international security organization. This organ may be the assembly of the organization, composed of representatives of all the members; or its council, composed only of representatives of some of them; or it may be a special organ established for this particular purpose and composed in a way similar to the assembly or the council. The organ may act on its own initiative or only if it is requested to act by a party. The more important question is whether it may adopt its decision, binding upon the parties, by a majority vote or whether unanimity is required. It stands to reason that only in the former case can an effective function of the organ be expected. There can be no doubt that the establishment of an international agency endowed with the power to deprive a state of a right acquired under existing law or to impose upon a state an obligation without its consent constitutes a considerable limitation of the sovereignty of this state, and that for this reason many states will be reluctant to submit their relations with other states to
the authority of such an international agency. However, they may be willing to confer this power on an international court in order to effect a peaceful change of established legal relations. Sovereignty is essentially the principle that a state can be legally bound only by, and not against, its own will, but international courts are—as a matter of fact—the only organs the procedure of which is not subjected to this principle. States do not consider their submission to the decision of an international court to be incompatible with their sovereignty. This may be due to the fact that international courtsunless expressly authorized to decide ex aequo et bono-are bound to apply only existing international law and hence it is assumed that their decision has a declarative, rather than a constitutive, character. They cannot abolish or create obligations and rights but can only ascertain in an authoritative way which obligations or rights a state has under the existing law. As pointed out in a previous connection,2 this assumption is an illusion. Even in applying a general norm of positive law, a court creates new law, an individual legal norm which did not exist prior to its decision. No application of a general norm is possible without interpretation, and there is no clear borderline between a mere interpretation and an alteration of the law. The history of law shows that the most remarkable changes of the existing law have been brought about by its interpretation. This is especially true if the law-applying organ is a court of last resort endowed with compulsory jurisdiction. There can be little doubt that a court with compulsory jurisdiction, established by the constitution of an international security organization, would serve not only as a most adequate organ for a peaceful settlement of disputes but would also fulfill the function of effecting a peaceful change of established legal relations.
1. Article 19 of the Covenant of the League of Nations stipulated: “The Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable, and the consideration of international conditions whose continuance might endanger the peace of the world.” This provision proved to be entirely inefficient, first, because the Assembly had the power only to "advise" and, secondly, because unanimity was required. In Article 14, the Charter of the United Nations authorizes the General Assembly to "recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations." A decision of the General Assembly under Article 14 may be made by a two-thirds majority of the members present and voting. However, the decision is not binding upon the members; it is merely a recommendation.
2. Cf. pp. 17 f.
DISARMAMENT AND SECURITY
Disarmament is not an isolated problem. It is essentially connected with the problem of international security. It can be solved only within an effective international security organization. During the discussions of the reduction and limitation of armament which took place within the League of Nations and later within the United Nations, the relation between disarmament and security was generally recognized. In particular, the French government insisted and still insists on this aspect of the problem. Resolution XIV adopted by the Assembly of the League of Nations in September, 1922, expressly ascertained the fact that “in the present state of the world many governments would be unable to accept the responsibility for a serious reduction of armaments unless they received in exchange a satisfactory guarantee of the safety of their country.” This means that security is a condition of disarmament and that there can be no disarmament without security. However, on the other hand, it is no less true that there can be no perfect security without disarmament. Hence, Resolution XIV suggested the conclusion of a defensive treaty of mutual guarantee open to all states but provided that “previous consent” to a general reduction of armaments should be "the first condition for the Treaty,” that is to say, the guarantee would apply only after the reduction of armaments had been carried out according to a general plan. Article 1 of Lord Robert Cecil's Draft Treaty of Mutual Assistance submitted to the Permanent Advisory Committee and included in the report of the Temporary Mixed Commission of 30 August 1923 stated that if any one of the signatories was attacked, “all the others will forthwith take such action as they may respectively have agreed to take in accordance with this Treaty and any Treaty supplementary hereto, provided that this obligation shall be conditional upon the reduction of the military forces of the party attacked.” The Geneva Protocol ? of 2 October 1924 (1) prohibited war in any circumstance; (2) established means for determining the aggressor whereby the aggressor should be presumed to be that state which refused to resort to arbitration, or to comply with an award, or refused to comply with the provisional measures prescribed by the Council; (3) made the applications of sanctions compulsory after the determination of the aggressor; (4) provided that all disputes should be terminated by a binding decision pronounced by the Permanent Court of International Justice, the Council of the League or a board of arbitrators. It also contained in Article 21 the following clauses: "If within such period after the adoption of the plan for the