Wolfgang Friedmann, Burns H. Weston, William T. Burke, and Ivan A. Vlasic explore the new frontiers and wealth and resources that are altering the patterns of the world economy.
Since rapid and dramatic technological progress poses problems that can be solved only by international or multinational controls these legal specialists emphasize the urgent need for nonviolent measures capable of reconciling the interests of the wealthy and impoverished nations and of satisfying the rising demands of the underdeveloped world for participation in the scientific revolution. The existing situation and current trends are described, and detailed recommendations to strengthen the role of international law in the decades ahead are made.
Originally published in 1970.
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The Future of the International Legal Order Volume II
Wealth and Resources
By Richard A. Falk, Cyril E. Black
PRINCETON UNIVERSITY PRESSCopyright © 1970 Princeton University Press
All rights reserved.
The Relevance of International Law to the Processes of Economic and Social Development
A generation ago, an article on this theme could hardly have been written. Notwithstanding the establishment of the League of Nations and several notable efforts centered around the League concerning matters of human welfare, the concern of international law and organization with matters of economic and social development was, at best, sporadic.
The organized international pursuit of objectives of economic and social development is essentially a post World War II phenomenon, although objectives of both economic and social development were included in the Constitution of the International Labour Organisation which was established in 1919. The Preamble to the Constitution states, in part, as follows:
Whereas conditions of labour exist involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures;
Whereas also the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries;
The High Contracting Parties, moved by sentiments of justice and humanity as well as by the desire to secure the permanent peace of the world ... agree to the following Constitution of the International Labour Organisation.
The great enlargement of the fields of international economic and social welfare organization after World War II was mainly due to two factors. First, the horizontal widening of the areas of cooperation through the specialized agencies of the United Nations concerned with such matters as cultural relations and education (UNESCO), health (WHO), food and agriculture (FAO), air transport (ICAO), the international utilization of atomic energy (IAEA), currency stabilization and monetary supply (IMF), economic reconstruction and development (IBRD). Second, the postwar structure of international law has been deeply affected by the advent to statehood of a large number of countries which were not only hitherto politically unfree but were also economically underdeveloped.
The concept of economic and social development as a public international responsibility is far and away the most important new departure in contemporary international law and organization. It has added to the enlargement of international activities concerned with matters of human welfare, and to the vertical reach into the manifold processes of economic activity and organization. The prices of agricultural commodities, the methods and terms of the exploitation of mineral resources, the instrumentalities of international trade, and the structure and mechanisms of economic development within the underdeveloped nations have become integral parts of contemporary inter national law and organization. Hence, the Constitution of the International Bank for Reconstruction and Development, and — though less specifically related to the needs of less-developed countries — the Articles of Agreement of the International Monetary Fund, both in the Bretton Woods Agreement of 1944, must be regarded as the most significant documents developed within the purview of international law over economic and social matters since the original Constitution of the International Labour Organisation. But exclusive preoccupation with the objectives, the structure, and the techniques of the World Bank and other international financial agencies would be inadequate to describe the concern of contemporary international law with economic and social development. The concept of development assistance as a transnational concern has also given rise to a multitude of new organizations and techniques on the national and binational level. Development aid on a nation-to-nation level dates back to the Marshall Plan of 1947, from which has sprung a network of public national aid agencies in a growing number of countries and corresponding institutions in recipient countries. These agencies conclude, year by year, a multitude of binational agreements for grants, loans, commodity exchanges, and technical assistance, usually on a government-to-government or public agency-to-public agency level. No less significant for the structure of international law, and especially for international contractual relations, has been the transformation in the character and terms of concession and economic development agreements between the governments of underdeveloped countries on the one side and private foreign investors on the other side. As will be shown later, the growing importance of these bilateral relationships has brought a whole new sphere of "transnational" situations within the purview of modern international law, i.e., relationships formerly regarded as purely private have been transformed into matters of public concern. This new development has also been accompanied by, and in turn stimulated, new international concepts on the rights of a state over its natural resources and the mutual rights and obligations pertaining between private foreign investors and the host governments in underdeveloped countries.
These new concerns and objectives have given rise to an interrelated network of institutions, treaties, and international transactions. Included are: international conventions (such as the convention sponsored by the World Bank for the settlement of investment disputes between states and the nationals of other states); many United Nations declaratory resolutions (such as the Resolution on the Permanent Control over Natural Resources); bilateral treaties (such as the Friendship, Commerce, and Navigation treaties concluded between the United States and many other countries); and a multitude of agreements between foreign investors and host states for the development of resources. Most recently, this new and complex type of relationship between developed and developing countries has produced a new United Nations agency, the United Conference on Trade and Development (UNCTAD), specifically designed to develop and systematize relations between developed and developing countries. In short, there has been a basic change in values and policies resulting in many new patterns in international organizations and transactions, as well as in other multilateral and bilateral relationships. They cover a wider range of international organizations, a wider range of participants, and a much greater variety of international legal relationships. The most basic significance of this new phase in international relations is that the human being — singly, in groups, or through his nation or state — has become the direct concern of international law.
Economic and Social Welfare and the Expanding Scope of International Law
A generation ago Georges Scelle — applying the sociological concepts of Durkheim and Duguit — spoke of a droit intersocial derived from the phenomenon of social solidarity which "déborde les sociétés étatiques pour former Ies sociétés internationales." We need today a wider conception of the scope of international law with regard to matters of human welfare, a conception that reflects the realities and aspirations of the postwar world. The trend of things was brilliantly forecast by Maurice Bourquin. Although at that time most of the new international economic and social activities had hardly begun, and the impact of the since emancipated developing countries was not yet felt, Bourquin saw that the subject matter of international law was not enclosed in "immovable boundaries," that it was "a mounting flood which is far from having exhausted its momentum." From the rapidly expanding number of fields affected by international legal regulation such as labor, human rights, education, science, refugee assistance, civil aviation, agriculture, international money and banking matters, Bourquin deduced that international law was in for both "quantitative and qualitative renovation."
Another characterization of the impact of the concern with human welfare on the scope of international law is that of Wilfred Jenks:
[T]he emphasis of the law is increasingly shifting from the formal structure of the relationship between States and the delimitation of their jurisdiction to the development of substantive rules on matters of common concern vital to the growth of an international community and to the individual well-being of the citizens of its member States. We shall also find that as the result of this change of emphasis the subject-matter of the law increasingly includes cross-frontier relationships of individuals, organisations and corporate bodies which call for appropriate legal regulation on an international basis....
The Dutch jurist Röling, in a perceptive monograph on "International Law in the Expanded World" (1960), emphasized particularly the importance of the shift in the subject matter of international law, from the more or less formal regulation of diplomatic relations between states to an international law of welfare. At the same time, Frederick van Asbeck singled out six factors as the most important new forces accounting for the growth of international law. First, the extension of intergovernmental consultation and cooperation from the foreign relations field to technical, economic, and social affairs; second, the increasing substitution of a collective framework for bilateral dealings; third, the extension of the activities of international unions and other organizations to the non-European world; fourth, the entry of the technical expert on the international scene; fifth, the growth of regular political conferences and assemblies, fixed in composition and procedure, and based on a permanent secretariat of officials; and sixth, the quasi-parliamentary conference representing social groups as well as governments, as in the ILO.
Coexistence and Cooperation in International Legal Relations
The present writer has sought to rationalize these manifold developments in a basic distinction between the "international law of coexistence," and the "international law of cooperation." The former comprises the bulk of traditional international law, that is, the regulation of diplomatic relations between states which are the exclusive subjects of international law. Essentially these relations embody rules of abstention. They are concerned with the delimitation of national sovereignty. As such, they are international rules on the bounds of, and the mutual respect for, the attributes of national sovereignty. They regulate such matters as: the dimensions of rights pertaining to territorial waters and continental shelves; national jurisdiction on the seas; national sovereignty over air space and tentatively the uses of outer space, for which national sovereignty has not so far been claimed; the attendant prerogatives of national jurisdiction over nonnationals; governmental immunities from jurisdiction; and principles of state responsibility for injuries caused within the state's jurisdiction to the personal and property interests of foreigners. Another part of traditional international law has been concerned with the respective rights and duties of belligerents and neutrals in time of war. Until the advent of the League of Nations Covenant and the United Nations Charter, the waging of war was the ultimate and unchallenged expression of national sovereignty. The legal instrumentalities of the international law of coexistence have been almost exclusively custom and treaties.
By contrast, the newer and incipient international law of cooperation is concerned with the organization and implementation of joint endeavors on a binational, regional, or multinational level directed to human welfare. In any field, rules of abstention may give way to rules of cooperation, as common purposes and endeavors supersede a "hands-off" posture.
The exclusivity of national fishing rights in territorial waters, or competitive fishing in the open seas, may be replaced by joint arrangements for the conservation of breeding grounds or — as has been attempted in a widely violated convention — the regulation of whaling. The competitive launching of outer-space satellites or moon rockets may give way to joint weather stations or moon expeditions. The competing national claims for jurisdiction over crimes committed on the high seas may be replaced by joint judicial institutions. Most important of all (though not relevant to the present enquiry), the absolute right to make war for the pursuit of national objectives may be limited — as imperfectly attempted by the League Covenant and the U.N. Charter — by common organizations for international security. The pursuit of these objectives widens the range of participants in the international legal process from states to public international organizations, nongovernmental international organizations, and private corporations insofar as they enter into relations with states or public international organizations in the pursuit of international economic and social objectives.
The growing scope of international law has also widened and diversified the sources of international legal rules of conduct. Because so many of the new concerns of international law deal with matters formerly entirely within the ambit of private law, the categories and norms of private law must increasingly be used to develop public international relationships. The addition of "the general principles of law recognized by civilized nations" to the Statutes of the Permanent Court of International Justice and its contemporary successor, the International Court of Justice, as a third source of law has now become much more important; it goes beyond the still very limited field of jurisdiction of the International Court itself. As will be shown later, the "general principles" are being increasingly used in international economic agreements to characterize the law applicable between the parties — largely states on the one part and private corporations on the other. Declaratory Resolutions of the United Nations General Assembly, draft conventions for the protection of foreign investments (even if not formally adopted by the requisite majority), drafts prepared for Reports of the International Law Commission, bilateral treaties, and national investment laws (insofar as they come to represent a general pattern of international relationships) must now be used as supplementary sources of the new international law of economic and social development.
The most universally accepted and continuing efforts in connection with the international law of welfare tend to be embodied in permanent international organizations. The World Bank and its two affiliates (the International Development Association and the International Finance Corporation), the new United Nations Conference on Trade and Development, the majority of the specialized agencies of the United Nations, the General Agreement for Tariffs and Trade (GATT), and various regional organizations (most notably the European Economic Community) represent institutionally organized endeavors in economic and social development. They are supplemented by a multitude of international conventions, treaties, and agreements, some of which may eventually be consolidated into international organizations. The distinction between the international law of cooperation and the international law of coexistence corresponds to the distinction recently articulated by H.L.A. Hart between the prohibitive and punitive aspects of law as a coercive order, and the concept of law as "the power ... conferred on individuals to mold their legal relations with others by contracts, wills, marriage, etc. ... Or as a means of social control...." Or, as "used to control, to guide and to plan life out of court." The importance of this distinction between the different functions of law is, in the international sphere, considerably greater than in municipal law. In the latter, the legal order normally provides full civil or criminal sanctions — whether in the form of punishment, damages, or nullity of transactions — for all types of legal relationships, prohibitive as well as permissive ones. This is in fact one reason why analytical jurists, such as Austin or Kelsen, have denied the validity of the distinction. But in international law, the coercive sanction is still lamentably weak. Recourse to international legal processes and the force of sanctions to reprove the illegal conduct of states is still very restricted. To some extent a substitute can be found in the reciprocity of interest.
Excerpted from The Future of the International Legal Order Volume II by Richard A. Falk, Cyril E. Black. Copyright © 1970 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- Frontmatter, pg. i
- Foreword, pg. v
- Introduction, pg. vii
- Contents, pg. xi
- 1. The Revelance of International Law to the Processes of Economic and Social Development, pg. 1
- 2. International Law and the Deprivation of Foreign Wealth: A Framework for Future Inquiry, pg. 36
- 3. Ocean Sciences, Technology, and the Future International Law of the Sea, pg. 183
- 4. The Relevance of International Law to Emerging Trends in the Law of Outer Space, pg. 265
- Index, pg. 327