"Polish Yearbook of International Law" 1983, vol. XII

POLISH YEARBOOK OF

INTERNATIONAL

LAW

ANNUAIRE

POLONAIS

DE

DROIT

INTERNATIONAL

XII

1983

OSSOLINEUM

POLISH

YEARBOOK

OF INTERNATIONAL LAW

XII

1983

WROCLAW

—

WARSZAWA

—

KRAKOW

—

GDANSK

—

L

0

D

2

Z A K L A D N A R O D O W Y I M I E N I A O S S O L I N S K I C H W Y D A W N I C T W O P O L S K I E J A K A D E M I I N A U K

EDITORIAL BOARD*REDACTION

JANUSZSYMONIDES (EDITOR

_-

IN-CHIEF), JERZY RAJSKI

(DEPUTY EDITOR

-

IN

-

CHIEF), MARIA FRANKOWSKA (DE

-PUTYEDITOR

-

IN

-

CHIEF),JERZY KRANZ(SCIENTIFICSEC

-RETARY)

EDITORIAL COMMITTEE*COMIT£DEREDACTION

LECH ANTONOWICZ, REMIGIUSZ BIERZANEK, HENRYK

DE FIUMEL, ROMAN JASICA, MANFRED LACHS, JERZY MAKARCZYK,JANUSZMICKIEWICZ,STANISLAW E

.

NAH

-LIK, MIECZYSLAW SO$NIAK, ANDRZEJ WASILKOWSKI,

' KAROL WOLFKE, REMIGIUSZ ZAORSKI.

ADDRESS OF THE EDITORIAL BOARD ADRESSE DE LA REDACTION

Institute of State and Law, Polish Academy of Science

Institut de 1’_{Etat et du Droit} del’Acad6mie Polonaise des Sciences

NowySwiat 72.

00

-

330 Warszawa

(X) Copyright by Zaklad Narodowy im. Ossolinskich

Wydawnictwo Wroclaw 1983

PRINTED IN POLAND

Zaklad Narodowy im. Ossolinskich

—

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Contents * Table des matieres

Articles

ANDRZEJ CALUS, Conceptions of Economic Order in the Doctrine of Interna

-tional Law

JERZY MAKARCZYK, ANDRZEJ WASILKOWSKI, Le nouvel ordre economique international en tant qu’instrument de transformation du droit international

. .

JANUSZ SYMONIDES, Poland and the New Law of the Sea

WOJCIECH GORALCZYK, The International Sea

-

Bed Authority

JAN KOLASA, La notion d’organisation intemationale contemporaine

HENRYK de FIUMEL, The Competence of the European Economic Community to Conclude International Agreements

•_{RENATA SZAFARZ, Succession of States in Respect of Treaties in Contemporary}

International Law

JANUSZ GILAS, The Problem of the Appropriate Compensation Currency in Inter

-national Law

WITOLD DANILOWICZ, The Relation between International Law and Domestic

Law in the Jurisprudence of the International Court of Justice

MIECZYSLAW SO&NIAK,Considerationssur l’etendueet l’objetdu droit internatio

-nal prive

JERZY RAJSKI, Les principals orientations de revolution du droit commercial

international de certains pays socialistes europeens

JERZY POCZOBUT, ANDRZEJ W. WISNIEWSKI,Onthe Legal Character of the Contract of Cooperation and the Perspectives of Its Regulation

7 41 57 77 95 105 119 141 153 165 179 193 ANDRZEJ BURZYNSKI, Industrial Cooperation: New Legal Developments in Po

-219

land

MACIEJ TOMASZEWSKI, Polish Court Judgementsin International Civil Law Cases ANDRZEJ W. WISNIEWSKI, Awards of the Court of Arbitration at the Polish

Chamber of Foreign Trade in Warsaw

235

247

Book Reviews*Comptes rendus

MARIA FRANKOWSKA,Umowymi

^

dzynarodowe w formic uproszczonej [ International

Agreements in Similifred Form]

—

by Karol Wolfke

JANUSZ GILAS, Systemy normatywne w stosmkach migdzynarodowych [ Normative SysteminInternational Relations]

—

by Renata Sonnenfeld

JANUSZ GILAS, STANISLAW WAJDA (ed.), Status prawnomigdzynarodowy Odry [The International Legal Status of the River Odra]

—

by Jacek Sladowski .

.

.

251 253

JERZY KRANZ, Glosowanie wazone w orgartizacjach migdzynarodowych [ Le vote

pondere dans les organisations intemationales]

—

by Jan Kolasa

TEOFIL LESKO, Migdzynar'_{odowe prawo konfliktow zbrojnych [ International Law of} Armed Conflicts]

—

by Remigiusz Bierzanek

ANNA MICHALSKA, Prawa czlowieka w systemie norm migdzynarodowych [ Human Rights in the System of International Norms]

—

by Zbigniew Resich

EUGENIUSZ PIONTEK, EWG , Instrumenty prawne zewn

^

trznej polityki gospodarczej

[La CEE. Instruments juridiques de sa politique economique _exterieureJ

_-

by Hen

-ryk de Fiumel

iWONA RUMMEL

-

BULSKA,Uzytkowanie wod srodlqdowych(Ha celow niezegfownych u’swietle prawan/i{_‘dz\narodowego[The Use of Inland Waters for Non

-

Navigational

Purposesin the Light of International Law]

—

by Tadeusz Jasudowicz

ROMAN ASADURSKA

.

Pahstwaczlonkowskiea Wspolnota u’ prawiei prakiyce EWG [Member

-

States and the Community in the Law and Practice of the EEC]

—

by

Andrzej Cahis

ANDRZEJ STRABURZYNSKI. Uprawnienia pahstw nadbrzeznych w dziedzinie eksplo

-atacji zasobow morza [The Rights of Coastal States in the Field of Exploitation of the Resources of the Sea]

—

by Zenon Knyp!

JANUSZ SYMONIDES (ed.), Wspolczesne tendencje w prawie morza [Contemporary Trends in the Law of the Sea]

—

by Tadeusz Jasudowicz

RENATA SZAFARZ. Sukcesja pahstw w odniesieniu do traktatow we wspolczesnym prawie mi

^

dzynarodowym [ La sucession d'Etats en maliere de trailes en droit in

-ternational contemporain]

—

by Krzysztof Skubiszewski

257 259 261 263 265 267 269 271 273

Obituaries_*Notes necrologiques

STANIStAW L. HUBERT (1905

—

1983)

-

by Jan Kolasa 275

Treaties$Traites

Accords internationaux entres en vigueur a 1'_{egard de la Pologne ou denonces par}

la Pologne en 1981 - par Janusz Stanczyk 279

Bibliography «Bibliographic

Polish Bibliographx of International Law, 1980

—

1981

—

compiled by Barbara Czeczot

-Gawrakowa 283

Participation of Polish Lawyers in Activities of the Hague Academy of International

A

R

T

I

C

L

E

S

POLISH YEARBOOK OF INTERNATIONAL LAW

VOL.XII.m?

PL ISSN055-M98X

Conceptions

of

Economic Order

in

the Doctrine of International

Law

by ANDRZEJ CAEUS

I. Introduction

The need for

an

economic order which should reign in the realm of international relations and the conceptions thereof go back to the roots of modern international law and its doctrine

.

It is characteristic that the two treatises which are particularly often referred to in following up the development of thefirst European doctrines of international law are devoted to economicmatters

.

Theseare: lectures De Indis [

...

] given by Francisco de

Vitoria probably in 1539 at the University of Salamanca, and Mare liberum

sive de iure quod Batavis competit ad Indicana commercia dissertatio

,

published by Hugo Grotius in 1609. Historically, these treatises constitute

the point of departure for the main conceptions of economic order, developed within the doctrine of international law

.

Conceptions of economic order are created in conditions of the existing economic realities

.

Till the middle of the 20th century, economic relations

were

expressed mainlybycommercial intercourse

.

The exchange ofcommodities, for which a

proper

legal framework

was

to be established in the form of

universally binding principles ensuring a specific economic order, assumed

two different forms: the

oversea

trade and the trade turnover between the European territories of European States

.

At the

same

time, throughout several centuries, but in principle till the beginning of the 19th century, international trade had the form of a merchant trade. This required the establishment of such an economic order that would take into account both the movement of persons and trade turnover in equal

manner

.

For

not only rules ensuring to merchants a safe access to and stay in the

alien territory became indispensable, but also proper criteria concerning commodities admittedtointernationalexchangehad tobeestablished,embracing the

interests

of the States from which these commodities originated and to

ANDRZEJCALUS

8

The above

-

mentioned

economic realities led to the fusion

within

many conceptions of

economic

order of the prinicples concerning the

access

of

foreign merchants to the territory of a State with the questions of imports

intosucha territory

of

foreign commodities and exports of own commodities therefrom

.

1 _{At the}

_same

_{time the importance of the}

_oversea

_{trade for the}

development of European States pushed the most conspicous doctrinal

conceptions of

economic

order towards considerations concerning the

means

of participation by theseStates in the trade with extra

-

European territories.

Hence these conceptions found their place not only in the systems of the law of nations, but also in the treatises on the law of the sea.2 _The

historical changes concerning the discussed

economic

realities remained not without influence

on

theparticular conceptions of economic order expounded

by the doctrine of international law.

The conceptions of leggl order concerning the

oversea

trade

were

formed

under the influence of two different

situations

. The first and previous one occurred in

conditions

when the occupation of the oversea territories,

which

were included

into international trade, had not yet started to set in

.

3 _{The second}

_one

_{consisted in the existence of such occupation and}

in considerably

decreased

number of territories not subject to anyone’s sovereignty.4 _{These situations had}

_one

_{feature in}

_common

_{: the existence}

of an economic order that

—

in regard of international law

—

took into

account only the interests of European States or the

so

-

called civilized States. Such a shaping of economic order existed in practice

even

when the very concept of this order had become

more

general, without distinction

between European and extra

-

European States.

The development of the conceptions of

economic

order in the doctrine

of international law was higly influenced by the economic policy of

States

in the respective periods of their historical evolution

.

Views on the necessity and character of

such

order

were

in the mercantilistic period different

1 _{Cf., for instance, F. de VITORIA, De Indis, translated into Polish by J. Modrze}

-jewski, Warszawa 1954,pp. 78 ff.; R.ZOUCHE,Jurisde iudicii fecialis, sive

,

iuris intergentes

et quaestionum de eodem explication translated into English by J. L. Briefly from the 1650

edition, Washington 1911, vol., 2, pp. 6 and 109.

2 _{Cf.,for instance, B.S.NAU’S,Grundsdtze desVolkerseerechts, Hamburg 1802, p. 107;}

L.B. HAUTEFEUILLE, Histoire des origines, des progres et des variations du droit maritime international

,

Paris 1869, pp. 26

—

30.

3 _{At this point we have to do with the “natural freedom of commerce}" _defended from the first time by H. GROTIUS in his Mare liberum sive de iure quod Batavis competit ad Indicana commercia dissertatio, translated into Polish by R. Bierzanek, Warszawa 1955.

4_{As a result, a new concept of the freedom of commerce had been developed, the}

“equal freedom of trade”, patternedafter the legal regime adopted for the Congo river

-

basin by the General Act at the 1885 Berlin Conference.

CONCEPTIONSOFECONOMIC ORDER ₉

from those expounded in the period when European States commenced to be quided by the principle of the economic freedom of trade

.

In principle,

it wasthe19thcenturythatintroducedthefreedomofmovementand trade

.

5_At

the

same

time international commercial intercourse ceased to be a merchant

intercourse

.

Hence, the law began to be interested first and foremost in the

export and import of commodities. Thus trade turnover became the main component of international economic order.

Economic orderis byitsvery nature a specific phenomenon of economic relations

.

However, the realization of any economic order, and also of international economic order, requires appropriate legal mechanisms

.

It is

thesenormative mechanismsthat transform a specific conception of economic intercourse into

an

economic order and make it a legal question

.

Hence,

more

or less developed conceptions of international economic order have

found their way to the doctrine of international law.

The doctrine of international law, taken as a whole, enables us to select

four groups of principles which have led to the creation of separate

sets of rights and duties concerning economic intercourse

.

Thus we may refer

to the presence of four basic conceptions of international economic order

in

the

doctrine

of

international

law.

The basic criterion

, which

serves

to identify individual conceptions of

international

economic order, is the place which is accorded in each of them to a

State

, i

.

e

.

, to the primary, natural subject of international legal

order

.This order may be based upon theproprieties of the State;as its

basis

may also

serve

the State in normal or peaceful relations with other States, that is, in conditions of mutual benefits and the actually existing

international

community. There is also the possibility of subordinating the position of

the

State to the community of mankind and of recognizing

human rights, which the State is bound to respect,

as

the basis of

internationallegalorder. Sucha view, based on various concepts of solidarity, may

even

lead to the negation of the international legal personality of the State. And finally, the position of the State as a subject rendering services

of humanity for the benefit of other States may also be an important component of international legal order.

According to these four points of views we may specify:

—

economic order based

on

the natural proprieties of the State,

—

economic orderensuingfrom theexistenceof mutual normal

or

peaceful

5 _{In the 19th century, the freedom of commercial and personal intercourse was,} on the one hand, an expression of the “stipulated freedom of trade” and, on the other,

of the freedom accorded to individuals in all internal laws of particular States, irrespective

oftheir citizenship;as LISZTwrotein connection with this period:“In dem die Staatsgrenzen iiberflutenden Austausch der Menschen, der Waren, der Ideen aussert sich die Zugehorigkeit zuder Staatengemeinschaft_\' _F

.

_{von LISZT, Das Volkerrecht, 11th ed.,} Berlin 1920, p. 100.

ADRZEJ CAtUS

10

relations betweenStatesin their differently understood

international

communi

-ties,

—

economic order in which the legal position of the

State

yields precedenceto that of the individual,often within the community of mankind

.

—

economic order built on the duty to render services for the benefit

of humanity.

The aim of the present paper is first and foremost to _{analyze the} principles which underlie the above

-

mentioned conceptions of

international

economic order. Using these principles as a background, we shall at the

same time present the most characteristic conceptual interpretations of inter

-national economic order in the existing doctrine. Analyzing the principles which have become the basis of the individual conceptions of international

economic order, as well as their more important interpretations in the doctrine of international law, the author tries first of all to discover

the relations between a given outlook on the position of the State in international legal order and the content of the corresponding conception of economic order. This aim of the research has determined the structure of the paper. It is based not

on

historical chronology, _{but corresponds}

to the above

-

specified position of the States in

international

legal order.

Our considerations will be closed by remarks concerning the possbility of using the existing conceptions for establishing the legal content of a

new

international economic order.

II. Economic Order Based on the Natural Properties of the State The consolidation in the doctrine of international law of those basic principles that had determined the conception of economic order founded

on the proprieties of the State has resulted from bringing back its

position to that of a natural person regarded

as

an

individual. It is

Wolff and Vattel who deserve the credit for developing this conception

.

Starting from the assumption that all the duties and rights which nature imposes

on

and grants to all men are also related to States, these authorsaccept at the

same

timeand consistently develop another assumption,

according to which the essence and nature of sovereign States regarded

as moral persons implies the

existence

of several differences between the

natural position of a State and that of an individual

.

They result from the fact that the State

serves

to carry out specific aims as a union of

men formed into a political organization.4

An

international

legal order, which is based

on

the features of States

regarded

as

moral persons, has the character of a natural order. Equality

6 _E

. de VATTEL, Le droit des gens ou principes de la loi naturelle, appliques a la

conduiteet aux affaires des nations et des souverains, translated into Polish by B. Winiarski

CONCEPTIONSOF ECONOMIC ORDER

11 and independence of the subjects of this order, that is, of States, are its basic tenets. Equality and freedom

are

the natural rights of individuals transferred to State

.

However, as each State is regarded

as

a sovereign

subject, the principles of equality and freedom assume in relation to it an absolute value

.

7 _{Equality and independence (}

freedom) become thus nothing

but determinants of the sovereignty of a State and lead to their recognition

as

basic features of the international personality of the State regarded as a political organization

.

Where both these principles meet, there

—

in the

course

ofhistorical development

—

emergesthe principleofsovereign equality

of States

.

The principle of equality and the principle of independence (freedom) exercise withininternational legal ordervarious functions

.

Equality isa feature of a State which

can

be considered exclusively from the point of view

of the remaining States

.

It implies that each State has equal rights and

duties within international legal order as far these rights and duties

ensue

from its natural properties. Freedom or independence are qualities both

in their external and internal context

.

Roughly, we

can

assume

that the term “freedom” is used in connection with the liberty of a State to exercise its rights in nternational relations. On the other hand, independence

means

First and foremost the liberty of the State in shaping its internal relations, together with the right to decide whether and to what extent it endorses

economic intercoursewith its territory

.

Independence of theState understood

in this way is not only modelled on the freedom of the individual, but also embodies to a great extent the rights of the State as a subject exercising sovereign power

over

its territory

.

8

International economic order based on the natural properties of States is a legal order in which the meaning of the term “freedom of

commerce

”

determines the content of concrete rights and duties in economic intercourse

.

It is a freedom of natural character and hence it is frequently described

in the doctrine as the “natural freedom of commerce”.9

The conception

Ibid, pp. 61 ff.; also cf. S. PUFENDORF, De jure nature et gentium iibri octo, translated into English by C.H. Oldfather and M

.

A

.

Oldfather from the 1688 edition, London 1934, vol.2, pp. 179 ff.

H _{Cf.,for instance, E}. _{de VATTEL}

.

_op

.

_cit._{, vol}. _{I, pp. 69}

—

_{70 and} 273

—

274

.

l_>

WolfF writing“de jure naturali ad commercia" speaks about “jus ad commercia cum

Gente"

.

interpreting this right as “ libertas commerciorum" see Ch. WOLFF, Jus gentium methodo scientifica pertractatum, translated into English from the 1784 edition by J.H. Dra

-ke, London 1934, vol. 1 ; In his translation, J. H

.

Drake used the terms “freedom of

commerce" and “natural freedom of commerce", ibid

.

, vol. 2, pp.

translating into Polish E. de VATTEL’S wording uses the term “wolnosc handlu” [freedom

of commerce] which is tantamount to the right to conduct trade “ in virtue of natural freedom", _op. cit

.

.

vol. 1, pp. 334

—

335; also J

.

J. Burlamaqui and M.A. Bouchaud use

the term “la liberte naturelle du commerce", and G.F. Martens and B. S. Nau’s apply

ANDRZEJCALUS

12

of international

economic

order expressed through such a freedom is

—

as

to its origin and development, especially in the first centuries of its existence

—

very deeply set in the realities of economic and political life.

The natural freedom of commerce emerges as

one

of the important principles consolidating the equal and independent position of each State in

international

legal order

.

Formulating the conception of international economic order in the form of the freedom of

commerce

, the doctrine of

international

law laid originally the main stress on the equality of

all

States

in economic intercourse

.

It

was

used as the basis for securing to all

States

equal rights of participation in the oversea trade

.

The freedom of

commerce

regarded as an expression of equality means

that all States, equal by nature, have equal rights to

commerce

, that is, to participation in

economic

intercourse

.

On the other hand, third States have no right to interfere with mutual trade relations between other States.

Oneof thefirst to speakfor such international economic order was Grotius.10

The concept of such order

was

widely developed by Wolff

.

11 _{But it}

_was

Vattel who expressed it most explicitly by writing :

“

Toute

nation, en vertu

de

sa

liberte naturelle, est en droit de faire le

commerce

avec

celles qui voudront bien s’y preter;et quiconque entreprend dela troubler dans I'_exercice de son droit

,

ltd faire injure

” .

_'

1

A

veryimportant problem concerning international economic order based on the natural freedom of commerce, is that of

whether

a State loses

its right to conduct trade with certain territories by abstaining from trade

activities thereon and whether it acquires the exclusive right of commerce

if

it has performed such an activity since a long time

on

territories not subject to its sovereignty. Both Wolff and Vattel regard the right of commerce

as

a faculty to conclude commercial transactions, which cannot be forfeited

through non

-

performance,

nor

tranformed into an

exclusive

right as a result of its constant performance in a specific

area

without exercising

over

it sovereign power

or

without concluding an appropriate treaty with the subject exercising power over a given territory

.

13

The freedom of the State regarded

as

independence in shaping its the wording “naturliche Handelfreyheit”, “die naturliche Freiheit des Handels und der SchifiTahrt der Volker”.

10 _{H. GROTIUS, Mare liberum..., pp. 77}

—

_{81; H. GROTIUS, De jure belli ac pacis} libri tres, translated into Polish by R. Bierzanek from the 1646 edition, Warszawa 1957, vol. 1, p. 271.

"

Ch. WOLFF, op. cit., vol. 2, pp. 105

—

107.

12 _{E. de VATTEL, op}

.

_cit

.

_{, vol. 1, pp. 334}

—

_{335 (quoted after the French edition}, Paris 1820, p.260).

,

3 _{Ch. WOLFF, op. cit., vol. 2, pp. 45}

—

_{46; E. de VATTEL, op. cit.}, _Vol. 1,

pp.141

—

144; cf. also M.A. BOUCHAUD, Theorie des traites de commerce entre lesnations,

CONCEPTIONSOFECONOMICORDER

13

external trade relations appeared in the doctrine of international law in connection with the view that there was

no

obligation to grant approval

for mutual trade

.

This was expressed most explicitly by Pufendorf who regarded the whole

international

economic order under the aspect of unlimited

independence of the

State

.

14

International economic order based on the natural properties of theState

is quided by the principle that a State has full freedom to decide whether it wants, and on what terms, to maintain comme

/

cial relations with other

States

.

To be unconditionally bound to grant approval for mutual trade, the State must first assume appropriate treaty obligations. In this way there emerges, along with equality, the second basic component of the

freedom of commerce, namely, that of independence

.

Wolff in putting the question: “ In what does freedom of

commerce

consist ?” considers that it

exists

“

if any nation can engage in

commerce

with any other nation as it pleases”

.

15_{SimilarlyVattel derivesthefreedom ofcommerce from thenatural}

freedom of every nation

.

16 _{The principle of independence in commercial}

relations found a particularly strong expression in the views of Martens. He assumed the existence of a perfect natural right of every State, which

consisted in the freedom of decision in each particular

case

whether it

wants to engage in trade with other countries and on what terms

.

Considerations of the freedom of commerce regarded as an aspect of inde

-pendence have created the first views about the right of a State to fully

exclude itself from international economic intercourse.18

The conception of international economic order expressed in the natural freedom of commerce reached its peak in the 17th and 18th centuries

.

But at the turn of the 18th century there appeared a cha

-racteristic change in the approach to economic matters in the doctrine of international law. Until that timecommercial relations, regarded from the point of view of the natural properties of the State, had been one of the

most important questions of international legal order, but from then on they became

—

still regarded in the same spirit

—

more

and

more

frequently and extensively included in the internal affairs of every State.19 17

14 _{S. PUFENDORF, op. cit}

.

_{, vol. 2, pp. 364 ff.; such a point of view is mostly}

expressed in opposition to Vitoria’s views on mutual obligations concerning admission to

commerce.

15 _{Ch. WOLFF, op cit}

.

_{, vol. 2, pp. 106}

—

_107. 16 _{E. de VATTEL, op.cit}

.

_{,vol. 1, pp. 334}

—

_335.

G. F. MARTENS, Einleitung in das positive Europaische Volkerrecht auf Vertrdge und Herkommen gegriindet, Gottingen 1796, p. 165.

18 _{Cf., for instance, Ch. WOLFF, op. cit}

.

_{,pp. 44 and 98.}

19_{These changes have their starting point in MOSER’S views contained in his treatise,}

Grund

-

Satze des jetzt ublichen Europaischen Volker

-

Rechts in Friedens

-

Zeiten, auch anderer

ANDRZEJ _CALLS

14

The freedom of

commerce

as a concept of international economic order

maintained

its importance at longest in the French doctrine of international law.20 This doctrine took fully into account both aspects of such freedom,

thatis, the equality

as

well as independence of theState in shapingits position

in

international

economic intercourse, including the right of the State to exclude itself from this intercourse completely

.

21

Thetransposition of the questions of economic intercourse to the internal

legal order of each State gave rise to the conviction the there were no

separable problems of economic

intercourse

in the realm of general inter

-national law

.

The rights of the State in this domain ceased to constitute

independent international legal concepts and became components of such

rights as those of independence, self

-

preservation or progress and develop

-ment.22_Commerce

_ceased

_{toinspire independent conceptions of international}

economic order and

was

treated mainly as one of the

means

of activity,

which a State can freely

use

in its relations with abroad. The legal regulation of international trade began to be exclusively based on demestic law and on bilateral agreements concluded among States. These phenomena

led to the constant reduction of interest in economic problems by the

doctrine of international law. This became visible with particular intensity

in the first half of the 20th century.

unter denen Europaischen Souverainen und Nationenzusolcher Zeit fiirkommetider willkuhrlicher Handlungen

.

Frankfurt a. M. 1763, pp. 454

—

459.

20 _{P. PRADIER}

_-

_{FODERE in his Traite de droit international public, Paris 1885, vol. 1},

p. 534, Paris 1888, vol. 4, pp. 213

—

215, describes the freedom of commerce as “le droit de participer a la liberte naturelle du commerce”; cf. also F. DESPAGNET,

Cours de droit international public, 3rd., Paris 1905, pp. 195

—

197, R. PIEDELIEVRE,

Precis de droit international public, Paris 1894, vol. 1, pp. 470

_—

471.

Cf., for instance, L.B. HAUTEFEUILLE, “La liberte du commerce doit done etre entendue en se sens; I qu’aucune nation ne peut etre contrainte a faire des echanges quelle repousse, 2 et que, lorsque deux peuples sont d’accord pour faire entre eux un commerce, quel qu'il soit , aucun autre n’a le droit d’intervenir, soit pour empecher, soit pour modifier ou partager ce commerce” , op. cit.,

“Un Etat peut memes’isolercomp/tement et se fermer atoutes relationavec Petranger, comme Pont fait jadis la Chine , le Japon, le Paraguay et la Republique Argentina...” , op. cit.,

p. 196.

2 I

p. 27; cf. also F. DESPAGNET:

22>Cf. especially English doctrine,for instance, W.E. HALL, A Treatise on International

Law,4th ed.,Oxford1895,pp. 45

—

46;R.RHILLIMORE,CommentariesuponInternational Law

.

2nd ed., London 1871_/1874,vol. 1, pp. 184and 262

—

263;a similar standpoint wasexpressed in thispart ofGerman doctrinewhichopposed the views on theexistence of thefundamental

right of the State to international intercourse: see, for instance

.

P. HEILBORN, Das System des Volkerrechts, Berlin 1896, p. 303, A. ZORN, Grundziige des Volkerrechts,

CONCEPTIONSOFECONOMICORDER ₁₅

III

.

International Economic Order Ensuing from the Existence of Mutual Relations among States within Their Differently Understood International

Communities

Internationaleconomic order ensuingfrom the existence of mutual relations among States within their differently understood international communities

is

an

order in which principles developed in normal, peaceful and mutually

beneficial international relations determine the content of specific rights and duties concerning economic intercourse

.

It is States that are subjects

of right and duties in'_{this conception of economic order, and the very}

community in which such order is developed is an inter-State community. The doctrine of international law shows that the creation of a real international community of States, based on the premises of the law of

nature could not be achieved. The fate of civitas maxima (Great Republic, World State) pronounced by Wolff, who considered that the very nature

had already established such

a

World State comprising all nations as its members, bears witness to it

.

2 3 _{Only Suarez could, in the initial, formative}

stage of the science of international law, proclaim a genuine conception

of universal inter

-

State community. This was possible because he regarded

such a community as a premise for the development of positive law, recognizing it

as

the entire law of nations and setting it against the law

of nature

.

According to him, the law of nature is applied to States consi

-dered in isolation, whereas it is the existence of mutual relations

among

Sta

-tes that constitutes the basis of the law of nations.2 4

It

is worthwile to

pay more attention to his views on the community of States, since they

are

resorted to in connection with considerations on the new international

economic order

.

2 5

According to Suarez, the law of nations is based on the fact that

mankind, irrespective of the variety of nations and kingdoms, maintains always a certain unity

.

This unity is not

a

phenomenon in itself, but it

consists a moral and political community brought into being

on

account of the natural precepts of love and compassion which are applied to all, including alienswhichever country they

come

from. Although a given State, community

or

kingdom may exist as

a

perfect society in itself, each of

these entities, considered from the point of view of mankind, is

a

member

of the universal community

as

well

.

This is so because States remaining in isolation

are never

so self

-

sufficient as to back out from certain mutual

assistance, association or exchange, sometimes for the increase of their

23 _{Ch. WOLFF, op}

_.

_{cit., vol}

.

_{2, p. 13.}

24 _{Cf. J}

.

_{BROWN, SCOTT, The Spanish Conception of International Law and of}

Sanctions, Washington 1934, pp. 74

—

75, 80, 90and 111

—

112.

25 _{See P.delaPRADELLE,Developpementet droitinternational,“NetherlandsInternational}

ANDRZEJCAtUS 16

wellbeingand benefits and sometimes on account of certain moral necessities

or want, and that the hitherto experience has proved adequately.2 6

Starting from these assumptions, Suarez builds a specific order

among

States, whose premise is the existence of exchange and bounds between

such subjects of

international

legal order

.

Within this order there is also

room

for the conception of international economic order

as one

developed

in normal relations among States. Full independence of States in economic relations is

an

expression of the law of nature, that is, a principle adapted to States which do not maintain mutual relations among themselves

.

On the other hand, according to principles developed in the law of nations, there is an obligation to conclude commercial transactions, which is limited

only by the right of refusal for justifiable

reasons

.

2 7

.

The real state of international relations at that time clearly belied the

existence of a community of States universal in character

.

Also for

a

long

time it

was

difficult to visualize such a community within a definite group of States

.

On the whole, the doctrine of international law is in agreement

with the view that various kinds of political links, based

on

the European

balance of forces then in making, could not constitute a foundation for such

a

community.2 8 We

can

also find quite frequently in the doctrine a view that the international community cannot be exclusively based

on

political links and requires,firstandforemost, mutual and beneficial economic connections

.

2 9_{From among variousviews thatproduced considerable interest}

was the

one

which

considered

the possibility of creating a balance of the

economic potentialsof States

.

But nearlyall considerations of thiskind led to

the conclusion that there

was

no possibility of such a balance

.

3 0

The first rudiments of the international community resulting from peaceful, normal relations between States appeared simultaneously with the

26 _F

.

_{SUAREZ, Tractatus de legibus ac Deo legislator, Coimbra 1612, fragments}

translated by J. Brown Scott, op. tit

.,

p

.

90.

27 _Ibid

.

_,pp

.

₈₆

—

_87.

28_Cf

.

_{, for instance: W.}

_ZALIJSKI

_{, Zur Geschichte und Lehre der iniernationalen Ge}

-meinschaft , Dorpat 1866, p. 19.

29 _Ibid.

30_{At first, the doctrine maintained that the running of commerce does not in itself}

infringe any right of the remaining States (see, for instance, Ch. WOLFF, op

.

tit.,vol

.

2, p. 109); later, in connection with the question of economic balance of forces, a standpoint

was frequently put forward that the concept of political balance of forces could not be transferred into commercial intercourse: see, for instance, K.G. GUNTHER, Europaisches

Volkerrechtin Friedenszeiten nach Vernunft,Vertagen andHerkommen,mit Anwendung auf die deutschen Reichsstande, Altenburg 1797, vol. 1, p. 387; Th

.

SCHMALZ, Das Europaische Volker

-

Recht in Acht Bucher, Berlin 1817, p. 207. Even treatises devoted exclusively to this problem have been written,for instance, J

.

H.H. vonJUSTI’S, Chimare der Gleichgewichts der

CONCEPTIONSOF ECONOMICORDER ₁₇

beginnings of the science of international law

.

But this community

was

of

a

regional character and concerned only States which were linked by

common

origin, proximity of territories and

a

good opportunity to render

mutual services

.

And itwas Zouchewho gave in the doctrine of international

law the first fullest expression to this situation

.

He identified peace as

a legal concordat between various princes and nations, whereunder they lived mutually in security observing laws operative in peaceful relations

.

The status and terms of mutual relations in peace are such

as ensue

from mutual treatment as friends and associates.31

Zouche’s conception of international economic order is expressed by the notionof juscommercii

,

whichhederivesfromfriendshiprelationsconnecting in peace time

a

particular and closely situated group of States

.

Such economicorderembracesbothpersonal and commercial relations. Its meaning is expressed in the freedom of access to

a

foreing territory as well

as

of stayand business activity thereon, in thefreedom of concluding transactions and contracts, and in the freedom of

commerce

in some

or

all commodities

between two States

.

This freedom, however, does not restrict the rights of a State to regulate its economic exchange with abroad in accordance with its own interests

.

32

It was in the second half of the 18th century that a community of European States commenced to evolve

.

Its existence was manifested, by the European law of nations derived from treaties and international

custom binding upon European States in their mutual relations

.

Basing

themselves

upon

the actual state of those relations in time of peace, a number of scholars, especially German, formulated principles binding in normal relations among these group of States

.

33 _{These principles showed} especially prolific in economic intercourse

.

Presenting

a

most consistent system of the European law of nations,

Moser maintains, basing himself on the generally accepted custom, that

„

Ordentlicher

Weise steht alien Europdischen Nationen frey, nach alien

Gagenden Europens zu handelri

”

.

3 4 _{Unlimited independence of States}

_as

_to

the extent of their participation in international trade, including the closure of boundaries precluding all economic intercourse, constitutes a

measure

inconsistent with the normal state of relations among States

.

The freedom of

commerce concerns

only European States and is applied only in relations among the European territories of these States. The oversea trade is

31 _{R. ZOUCHE,op}

.

_cit

.

,

_{vol. 2, pp. 1 and 5}

.

32 _{Ibid.,pp. 6and 109}

_—

_110.

33 _{Cf., for instance, J. D. KLtlBER, Europaisches Volkerrecht, 2nd ed., Schaffhausen}

1851; G.F. MARTENS, op.cit., J

.

J. MOSER, op

.

cit

.

\ J. SCHMELZING, Systematischer

Grundriss des praktischen Europdischen Volker-Rechtes,Rudolstadt 1820. 34 _{J.J. MOSER, op}

_.

_{cit., p. 462.}

ANDRZEJCAJ.US 18

subordinated to other principles and is, as a rule, exclusively reserved for

metropolian States.3 5

Within the doctrine of the European law of nations, the conception

of international economic order found its fullest expression in the notion

of “_unbestimmte Handelsfreiheit”.3 6_{Order expounded by this notion consists}

in mutual commercial relations that are maintained among States in normal and peacetime conditions, but a

more

exact interpretation of these relations is a matter of free consent of each State which defines the terms on which commercial exchange with its territory should be carried on. Only

complete exclusion from intercourse is inconsistent with the normal state of

relations, since it

expresses

a policy resorted to in case of war or other

conflicts short of war. Thus in

case

of conflict the “undefined freedom of commerce” does not deprive States of the right to apply the principles of the law of nature, that is, the right to full isolation from any or

all States”

.

3 7

The “undefined freedom of

commerce

” constitutes

an

expression of the

framework conception of international economic order. It is this framework

character that requires a closer definition of conditions under which States decidetoparticipate in international economic intercourse

.

The establishment

of particular conditions of economic exchange in relation with a given State, which define the actual scope of the freedom of

commerce

, is effected

throught enacting appropiate requlations of domestic law,

as

well as through

concludinginternational tradeagreements

.

Within obligations created bythese

agreements, States

preserve

their freedom to set conditions under which

they intend to participate in international economic intercourse.

Martens

,

ordering the rights of the State which

are

not inconsistent

with the “undefined freedom of

commerce

” , also enumerates

—

apart from the above

-

mentioned righttoimposeconditions of participating incommercial relations

—

the full freedom of deciding such matters as: a) exclusion of certain provinces or places from commercial intercourse, b) introduction of import bans

on

particular commodities or fixing quotas for commodities

admitted to its (own) territory, c) introduction of customs and establishment

35 _{Cf., for instance, G.F. MARTENS, op}

.

_tit

.

_{, pp. 168 and 170; J. SCHMF}._LZING,

op. tit., vol. 3, pp. 14 and 24; F. EGGER, Das naturliche offentliche Recht nach den Lehrsdtzen des seligen Freyherrn E.A. Martini,vol. 2, das naturliche volkerrecht, Wien

-

Triest 1810, p.64 (note).

36 _{This concept is used,i.a.,byG.F.MARTENS, op.tit}

.,

_{p. 170,and J.SCHMELZING,} op

.

tit., vol. 3, p. 23.

3'_{Cf., for instance, G.F. MARTENS, op}

.

_{tit., p. 170, and J. SCHMELZING,}

CONCEPTIONS OF ECONOMIC ORDER ₁₉

of customs tariffs, d)

conferrment

of a most-favoured status to individual

States in commercial relations.38

The European law of nations was transformed in

the

.course of the

19th century into a law of the community of civilized States. The so-

called

international legal community

became

the foundation of its existence and

binding force.39 The idea of such a community, which found its reflection

in actual relations between civilized States,40 _{led to the}

_formulation

_{of the}

so-

called

fundamental right of

the

State to international interecourse.41

The right of the State to international intercourse, as one of the rights

vested

in the State by reason of its participation in the

international

legal community, has not been more extensively utilized by the doctrine for the purpose of developing the conception of international economic

order

. For the substance of

this

right, especially in respect of commercial intercourse, is very meagre

and

consists above all in the

lack

of a right

envisagingfull self-exclusion from all commercial relations. Atthe same time,

the only legal sanction for full isolation of a State constitutes, as a rule,

itselimination from

the

membership of the international legal community.42

38 _{G.F. MARTENS, op}

.

_cit

.,

_{p. 170; cf. also F. EGGER, op}

.

_cit._{, vol. 2, p. 65}

(note -4

-

+), J.J. MOSER, op

.

cit

.

, pp. 454

—

462 and J. SCHMELZING, op. cit

.

, vol. 3,

p. 24.

39 _A.A

.

_{von BULMERINCQ, Das Volkerrecht oder internationales Recht, Freiburg}

i.B.

-

Tiibingen 1884, p

.

202; F. LISZT, op. cit

.,

p

.

2: similar assumptions were presented by those theoreticians who restricted the binding force of international law to relations between civilized States, see, for instance, T. J. LAWRENCE, The Principles of International

Law, London 1895, p. 1, L. OPPENHEIM, International Law, A Treatise, 1st ed.,

London 1905, vol

.

1, p. 161, and T. A. WALKER, A Manual of Public International Law,

Cambridge 1895, p. 1.

40 _{Cf., for instance, F. LISZT, op}

.

_{cit., pp}

.

_{2 and 100; Th. FUNCK}

_-

_BRENTANO

and A

.

SOREL, Precis du droit de gens, 3rd ed., Paris 1900, pp. 158

—

159; H. PREUSS,

Das Volkerrecht im Dienste des Wirschaftslebens, Berlin 1891, pp. 4, 14, 16

—

17 and 31;

E.ULLMAN, Vokerrecht, 2nded

.

,Freiburg i B.

-

Leipzig

-

Tubingen 1898, pp. 4and 288

—

289. 41 _{Cf.,for instance, A. von BULMERINCQ, op}

.

_cit

.

_{, pp. 206}

—

_{207; A}._W. _HEFFTER,

Das Europdische Volkerrecht der Gegenwart auf den bisherigen Grundlagen, bearbeitet von F

.

H

.

Geffcken, 8th ed., Berlin 1888, pp. 79

—

81; F. von HOLTZENDORFF, Grundrechte und Grundpflichten der Staaten, in: Handbuch des Volkerrechts auf Grundlunge Europdischer Staatspraxis,acollectiveworkedited by F.von Holtzendorff,Hamburg 1887,vol. 2,pp

.

60

—

64;

K. GAREIS, Institutionen des Volkerrechts, 2nd ed., Giessen 1901, pp. 97

—

98; F

.

LISZT,

op

.

cit., p. 65.

42 _{Such a position was represented by the majority of scholars mentioned in Note}

41 (a manifestly different view was taken by K. Gareis, according to whom the refusal

of commercial relations justified recurrence to force),and a few scholars, which in the 20th century supporttheconcept of the right of the States to international intercourseas a right ensuing from its participation in the international community, do not abandon this position,

see, for instance, Z. CYBICHOWSKI, Prawo Narodow [The Law of Nations], Lwow 1915, pp.74

—

75;E.SAUER,Grundlehre desVolkerrechts,3d.ed.,Koln

—

Berlin'_1955,pp.₁₃₄

—

_135;

ANDRZEJCALUS 20

The main

reason

which prevented the doctrine of international law

from formulating the conception of international economic order based on

the concept envisaging the right of the State to international intercourse,

was the relatively small dissemination of this concept and its vague nor

-mative content, that is, the lack of concrete rights and duties contained

therein. For originally, the concept of such right was adopted only in

Germany and only by one part of the German doctrine, whereas the other, anda very

numerous one

, voiced its strong disagreement.43 _However, in the

course

of time, especially since the turn of the 19th century,

this concept hasbegun to be noticed in other national doctrines, but

—

apart

from the Russian doctrine44

—

the right to international intercourse is either considered non

-

existent or understood in a

manner

depriving it ofanyle

-gal meaning by reducing itscontent totheimportance which the maintenance

of relations with abroad has to the existence of the community of States

and internaional law

.

45

The character and content of the right of the State to international intercourse, as well as the way in which commercial exchange (as ensuing

from this right) is dealt with in the doctrine, lead to the conclusion that the conception of international economic order

cannot

be built

on

the concept of such right. For the concept of the right to intercourse,

as the fundamental right of the State, can only

serve

to prove that the

existence within a community prevents any State whatever from isolating itself from any economic intercourse

.

However, such a statement does not

provide international economic order with any legal frame, since it indicates

only that the very intercourse with abroad is a necessary premise of the existence of international legal order.

I. SEIDL

-

HOHENVELDERN, Volkerrecht, Koln

—

Berlin

—

Munchen 1965, p. 240; A. VER

-DROSS, Volkerrecht,1st ed., Berlin 1937, p. 205 (5th ed., Wien 1964, pp. 239

—

240).

43_{Seeespecially P. HELLBORN,op}

.

_cit

.

_,ppi"

301

—

305; H. RETTISCH, Zur Theorie und

Geschichtedes Rechtszum Kriege, Stuttgart 1888, pp. 53

—

57; A. ZORN,op

.

cit

.

, p. 52

—

53 and 175.

44_L.A

.

_{KOMAROWSKIJ and V.A}

.

_{ULJANICKIJ, Mezdunarodnoe pravo, Moskva}

1908, pp. 45

—

46 and 51

—

52; W. A. ULJANICKIJ, Mezdunarodnoe pravo, Tomsk 1911,

pp. 69

—

70; F. MARTENS, Sovremennoe mezdunarodnoe pravo cyvilisovannych_°narodow,

5th ed., S. Petersburg 1904/1905, vol. 1, pp. 315

—

317.

45 _{F. BERBER, Lehrbuch des Volkerrechts, Munchen}

—

_{Berlin 1960, vol. 1, p. 221;}

L. CAVARfi, Le droit international public positif,Paris1961,vol.1,p. 150; A. CAVAGLIERI,

Lezioni di diritto internazionale, Napoli 1925, pp. 194

—

195 and 197; L. OPPENHEIM,

op.cit

.,

1st.ed., vol. 1, pp. 191

—

192; J

.

MAKOWSKI, Podrgcznik prawa miedzynarodowego [A Textbook of International Law], Warszawa 1948, pp. 86

—

87 ; A. PILLET, Recherches

sur les droits fondamentaux des Etats, “Revue Generate de Droit International Public”, 1898,No.1, pp. 72

—

73 in connection with pp.68

—

69; A. ROSS, Lehrbuchdes Volkerrechts,

Stuttgart

-

Koln 1951, p. 186; K. STRUPP, Elements du droit international public universet ,

europeenetamerican,2nd ed.,Paris 1930, vol.1, pp. 138

—

139; W. WENGLER, Volkerrecht,

CONCEPTIONSOFECONOMICORDER

21 The 19th century,especially from its secondhalf, wasa period of

a

widely developed mutual free trade among civilized States

.

Thus, in practice,

a specific international economic order

was

created

.

On the

one

hand, this order found its legal basis in the national laws of particular States

and, on the other, with regard to international legal obligations, it was drawn exclusively from bilateral international agreements

.

The internal and bilateral reglamentation was to a great extent inspired

by the concept of economic freedom of trade

.

46 _{Economic freedom of trade}

was

understood

as

freedom from all administrative restrictions.47 _Such

freedom of trade was variously appraised by the doctrine of international relationsand international law

.

Apart from many opinionsthat international

trade conducted without protectionist restrictions was a trade beneficial

to all States,48 _{there were also heard, rather frequently, views that the}

introduction of such freedom in conditions of economic inequality of States was definitely detrimental to economically weak States

.

49

International economic order based

on

the concept of economic freedom of trade, as the expression of the existing normal and peaceful relations among States, has been established in the practice of civilized States

differently astoitsscope

.

This depended on the manner in which particular

Statesapproached the economic

essence

of free trade, understood as a trade

free from administrative restrictions

.

In determining the spheres and ways

of establishing such freedom of trade,

a

decisive role was played by commercial and navigation treaties concluded in the 19th century

.

The 19th and 20th century doctrines of international law deal extensively

46 _{Cf., for instance, F. von LISZT, op}

.

_cit

.

_{, pp. 204}

_—

_{205; Ch. LYNO}

-

_{CEAN and}

L. RENAULT, Manuel de droit commercial , Pa

-

4th ed., Paris 1901, p. 49 ; P. PRAD1ER

--

FOD£R£, op.cit

.,

vol. 4, pp. 248

—

252; W.A. ULJANICKIJ, op

.

cit

.,

p. 284.

47 _{For instance, H}

.

_{Stroynovski writes:} u

[...]the Supreme Authority should secure full and ulimited freedom of commerce which, according to natural law, is due to all, and

implies that everybody, in each place and time, is free to exchange, buy, sell, transport,

etc., all kind of things without any excuse, obstacle, examination and toll”, see his

Nauka prawa przyrodzonego, politycznego, ekonomiki polityczney y prawa narodow [The Science of Natural Political Law, Political Economy and the Law of Nations]

,

4th ed.,

Warszawa 1805, pp. 189

—

190; for instance Hartmann explicitly speaks about “[...] sog.

Freihandel, einem national

-

ekonomischen vom volkerrechtlichen Begriffe der Handelsfreiheit der Nationen wohl getrennt zu haltenden Begriffe [...]”, see his Institutionen des praktischen Volkerrechtsin Friedenszeiten,mit Riicksicht auf dieVerfassung,die Vertrageund Gesetzgebung des Deutschen Reichs,2nd ed., Hannover 1878, p. 214.

48 _{Cf., for instance, J. BENTHAM, Grundsatze fur ein kunftiges Volkerrecht und einen}

dauerden Frieden, translated into German by C. Klatscher from a 1788

—

1789 text, Halle

1915, pp. 83

—

84,92,98,10b

—

109 and 130

—

132;H.STROYNOWSKI,op.cit.,pp.218

—

219,

222

—

225, 238

—

244, 247

—

248 and 277

—

278.

49 _{Comp.,for instance, Ch. G O U R A U D, Essaisurla Libertedu Commerce des Nations,}