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lective security the right of self-defense may be restricted to the reaction against an illegal use of physical force, whereas the legal order constituting the security organization may prohibit as acts of aggression not only the illegal use of physical force but other violations of protected interests. Then there may be acts of aggression without a corresponding right of self-defense.8
8. THE CENTRALIZATION OF THE LAW-CREATING FUNC
TION (THE PEACEFUL CHANGE OF ESTABLISHED LEGAL RELATIONS)
The development of national law is characterized by the fact that the centralization of the law-creating function has been preceded by the centralization of the law-applying function. Long after tribunals and central executive organs had come into existence, the law of states was created, in a completely decentralized way, by custom. The establishment of legislative organs was the last step in the process of centralization which led to the law of the modern state. Even when parliamentary bodies assumed the power to create general legal norms, great and important parts of the legal order preserved the character of customary law, e. g., the common law in the Anglo-Saxon countries. This is evidence of the fact that from the point of view of collective security the centralization of the law-creating function by establishing legislative organs is of minor importance. However, in the theory of international security, it is still argued, and the argument is considered to be of great weight, that the establishment of courts and the organization of collective enforcement actions are useless as long as there are no international legislative organs to afford the possibility for a peaceful change of established legal relations which have become unbearable for one party for one reason or another. It is a widespread view that centralizing the law-applying function without centralizing the lawcreating function results in conserving the status quo, and that the attempt to maintain existing legal relations in spite of changing power relations inevitably constitutes a serious threat to the peace, which means a serious threat to security. This argument is not confirmed by the development of national law which has actually led to the relatively highest degree of collective security. Those who apply this argument underestimate the decisive influence tribunals exercise on the formation of the law, especially when these tribunals have compulsory jurisdiction. The development of customary law stems mainly from the practice of courts; nor is statutory law immune from being changed in the judicial process. Threats to the internal peace of a community arise from concrete situations, especially those established by contracts,
rather than from the insufficient content of general norms. In order to remove the danger implied in a concrete situation, as a rule it is not necessary to change these general norms by a legislative act. The danger may be removed by creating an individual norm providing a single exception valid only for the concrete case. This is the proper task of a tribunal. It is not the proper task of a legislative organ whose function is to create general legal norms. If such a judicial decision creating an individual norm constitutes a precedent followed in other judicial decisions of similar cases, a law-creating custom is established, and the general norm referring to these cases is abolished and replaced by a new general norm adapted to the circumstances which caused the precedent. The change of a general norm is not justified if its application proves to be unsatisfactory in only one case. It is justified if the circumstances which make its application unsatisfactory exist in several cases. It is difficult to decide whether the adaptation of the existing law to changing circumstances is better achieved by the function of the legislative organ within a system of statutory law or by the practice of courts within a system of customary law. However, there is no question that the necessary adaptation, and hence peaceful change, of legal relations which have become a threat to the peace is possible without the establishment of a legislative organ. The adaptation can be made by the courts, provided that the courts have sufficient jurisdiction to exercise this function.
9. UNIVERSAL AND REGIONAL SECURITY ORGANIZATIONS
A security organization whose members are individual human beings is universal if it comprises the whole of mankind; it is regional if it comprises only a part of mankind. In this sense the difference between a universal and a regional security organization is that of a total and a partial organization. However, by "regional” security organization may be meant not only a partial organization but also an organization of individuals living on definite territory, or an organization whose security functions are limited to a certain geographical area. As long as no world state exists, security organizations whose members are individual human beings must have a regional character. The states which exist today and which are constituted by national legal orders are regional security organizations in the sense that they are organizations of only parts of humanity and that their members are living on a definite territory. The security organization of a state guarantees not only internal security, that is, protection against internal aggression, the use of force by one subject directed against another subject of the state, but also external security, that is, protec
tion against external aggression : use of force by another state. The internal security guaranteed by a state organization is evidently of a much higher degree than the external security it can insure; the latter reaches its highest degree only within a world state where, as a result of the universality of the organization, external aggression is excluded. Even if the world state had the character of a federal state within which the member states were not completely disarmed, so that the use of armed force by one member state against another were not absolutely excluded, this act of aggression would be, from the viewpoint of the world state, an act of internal aggression. Such an act of aggression, however, would risk an effective reaction by the police force of the world state and hence probably would be prevented by the organization. Hence the tendency toward the universality of the security organization, the demand for a world state.
The international community constituted by general international law is indeed a universal security organization, but its subjects are states. This does not mean that individual human beings are not its members, but it does mean that individual human beings are only indirectly (as subjects of states) members of the international security organization. As has been pointed out, collective security is always the security of individual human beings, and the acts of states regulated by an international security system are always acts performed by individual human beings. However, these individual acts are not determined directly by the legal order constituting the security system, as is the case within the national security organization of the state, but indirectly as the international legal order constituting the international security system determines these individual acts through the intermediary of the national legal orders.
The universal security organization constituted by general international law, because of its high degree of decentralization, guarantees only the lowest possible degree of collective security (provided the bellum justum principle is positive law).” Where there exists a higher degree of centralization and hence a higher degree of collective security in the relations between states, it is established by particular international law, that is, by treaties to which not all of the states are contracting parties, such as the Covenant of the League of Nations and the Charter of the United Nations. Insofar as the one did not and the other does not comprise all the states of the world, the one was and the other is only a regional, not a universal, security organization. But since the overwhelming majority of the states of the world were members of the League and are members of the United Nations, and since both organizations were established with a tendency toward universality and the purpose to guarantee world peace, they may be
considered as quasi-universal security organizations. The question as to whether and in what sense within such quasi-universal international security organizations so-called regional security organizations are possible, shall be discussed later.10
NOTES 1. Cf. pp. 66 ff.
2. L. Ehrlich (Collective Security, p. 154) said : “Security, in the legal sense of the term, means the actual protection of the interests which are safeguarded by the existing legal system.” This is a tautological definition. If interests are safeguarded by the law, they are protected by the law. Security, in the legal sense of the term (and there is no other sense in which this term may be considered), means simply the protection of certain interests by the law.
3. As we shall see later, the question of the narrower or broader meaning of the term "force" is also important in defining the right of self-defense that is, the right to use force against some kind of aggression-and in interpreting the prohibition against the "threat or use of force” stipulated by the Charter of the United Nations. Cf. p. 57.
4. Of. pp. 120 ff.
5. It is usual to distinguish between justice and equity; but there is hardly any difference between them insofar as equity is supposed to be like justice a system of norms different from positive law, conceived of as pre-established general norms created by custom, legislation or international agreement. In a study on "Justice and Equity in International Relations" (Justice and Equity in the International Sphere. The New Commonwealth Institute Monographs, Series B, No. 1, 1936, pp. 1-13), Gustav Radbruch, one of the leading legal philosophers, admits that the principles of justice and equity are identical (p. 5) but tries to differentiate two normative systems by the method of acquiring the knowledge of the principles concerned. The specific method by which the principles of justice called "equity" are established is the case method of the Anglo-American legal systems. This method does not consist, as Radbruch asserts, in the general principle of justice, applied by the tribunal, being derived from the nature of the concrete case-that is, by an inference from that what actually is to that what ought to be, or-what amounts to the same from a fact to a norm or from social reality to a social value. Such an inference is based on a logical fallacy; nor can such a result be achieved by “intuition.” Intuition is a highly subjective, uncontrollable faculty of the human mind. Two different judges, starting from the same case, by their intuition arrive at wholly different and even contradictory principles of justice or equity. To leave the decision of a case to the intuition of the judge means to leave it to his unlimited discretion, and this is indeed what the case method, at least to a certain extent, amounts to. It is characterized by the fact that the first case is decided by the application of a principle which the judge, within his subjective discretion, considers as just. This decision becomes a precedent and, in this way, finally a rule of customary law. It is the specific function of the case method to transform justice (or equity), and that means a principle which in the first case of its application is considered by the judge as a principle of justice or equity, into a rule of positive, namely customary, law which determines the decision of the following cases. However, in deciding the first case the judge is not determined by a pre-established general rule of positive law. The position of the
judge is the same as that of a legislator who, too, transforms a principle which he considers just into positive law. It is in this respect that the case method, as the specific method of customary law, differs from the method of statutory law according to which no judicial decision is possible without a pre-established general rule of positive law. Within this legal system, the rule-of-law principle has no exception, whereas within a system of customary law there are necessarily cases, the precedential cases, which are to be decided without a preestablished general rule of positive law being applied.
It is of the greatest importance to be aware that the principle of justice or equity applied in these cases is not—as it is usually assumed to be as a matter of course an objectively ascertainable value, a norm the cognition of which can be acquired independently of the subjective preferences of the judging subject in the same way that the knowledge of the rules of positive law is obtained. These rules are objectively ascertainable because they are established by legislation, custom or treaties—that is, by facts perceptible by our senses under the control of our reason. However, principles of justice or equity, applied in a first case, before being transformed into a rule of customary law, are not established by objectively ascertainable facts but are, in the last analysis, based on highly subjective, emotional elements of the human mind. Consequently, there is not one justice or equity as there is only one positive law-one French, one American, one international law-but many different and contradictory systems of justice or equity, each of them claiming validity for the same territorial and personal sphere. The idea that there exists only one justice or equity is one of the most misleading illusions, and to speak of justice or equity-as most writers do—as if there were only one system of norms properly called justice or equity is either an intellectual insincerity or a naive, but unpardonable, ignorance. Hence, to establish a tribunal of equity means: to establish a tribunal endowed with the power of deciding—at least first cases-according to its free discretion. The objection that even such a tribunal should be directed by considerations of general welfare, commonweal, interest of the community, and the like, does not hold. All these terms designate values which are no less subjective than justice or equity.
5a. It has been objected that the denial of the possibility of gaps in the law and hence of a non liquet is limited to decisions of disputes; that if the parties without asserting any right in the matter of their conflicting interests ask a court to decide the case, it may be that the court is not able to do so. Such a case may arise, e. 9., when the frontier between two estates or two state territories is in question, insofar as there is between those parts of the two estates or state territories which are not in question a piece of land the legal status of which is uncertain. In these cases, too, there are only two possibilities. Either the court can ascertain facts which according to the existing law constiute property or sovereignty and consequently can, in applying the existing law, draw a definite line between the two estates or state territories. Or the court cannot ascertain such facts because none of the parties can prove that it has with respect to the piece of land in question performed acts which constitute property or sovereignty. Then the legal status of the piece of land in question is that of res nullius or of stateless territory, both statuses regulated by national and international law respectively. The court, in applying this law, has to make a decision to this effect. There is no gap in the law, but there may be a gap in the knowledge of facts. But facts which are not known to the law-applying organ and hence cannot be ascertained by it, legally do not exist.