"Polish Yearbook of International Law" 1966-1967, vol. I

P O L I S H

I N S T I T U T E O F

I N T E R N A T I O N A L

A F F A I R S I N S T I T U T E O F L E G A L S C I E N C E S O F P O L I S H A C A D E M Y O F SCIENCES P O L I S H B R A N C H O F I N T E R N A T I O N A L L A W A S S O C I A T I O N

THE

POLISH YEARBOOK

OF

INTERNATIONAL

LAW

I

(1966

_/

67)

WROCŁAW

-

WARSZAWA

-

KRAKOW

ZAKŁAD NARODOWY IMIENIA OSSOLIŃSKICH

WYDAWNICTWO POLSKIEJ AKADEMII NAUK

Editorial Committee

:

WOJCIECH GÓRALCZYK, _{JERZY JAKUBOWSKI}, ADAM DANIEL ROTFELD, _{JANUSZ SACH}, JERZY SZTUCKI

(Editor)

PrintedinPoland

Zakład Narodowy im

.

Ossolińskich

—

Wydawnictwo. Wrocław 1968.

N.akład:300₊200 egz.Objętość: ark. wyd. 30,70, ark. druk. 21,50,

ark

.

A-l 29.Papierdruk.sat.kl

.

III, 70 g, 70 X100. Oddano do

składania 24 VII 1967, podpisano dodruku 15 VIII 1968. Druk ukończono we wrześniu 1968 r. Wrocławska Drukarnia Dziełowa,

CONTENTS

5 Foreword

ARTICLES

I

Manfred Lachs, On the Importance of International Law in a Dangerous World . Remigiusz Bierzanek, Legal Principles of Peaceful Co

-

txistence and Their Codification . Andrzej Skowroński, Legal Problems Relating to Denuclearization in the Polish Plans for

an Atom

-

free Zone and for Freezing Nuclear Annaments in Central Europe .

KazimierzPrzybyłowski,Principles of Contemporary Polish PrivateInternationalLawinthe

Light of the Provisions of the Act of 12 November 1965

Ludwik Gelberg, Problems of Dual Nationality in the Light of Legislation andTreaties of the Socialist Countries

KrzysztofSkubiszewski, The Application of Non

-

militaryMeasuresby the General Assembly of the United Nations

7 17 45 65 86 110 II

Mieczysław Sośniak, Problems of the Conflict of Law in the Laze on Marriagein Poland

Jerzy Sżtucki, Some Aspects of the Legal Status of Space Objects

Marian Iwanejko, The_Jurisdiction of the International Court of _Justice: The Plea of In

-admissibility

Karol Wolfke, Practice of International Organizations and Customary Law

Lech Antonowicz, Definition of State in International Law Doctrine

Jan Sandorski, The Legislative Competences of theCouncil of Mutual Economic Assistance

Jerzy Sawicki, Setting Up the UN Forces as Envisaged at the United Nations Conference onInternational Organization

.

Kazimierz Kocot, Legal Motivations of the Decision of InternationalOrgans

137 149 164 183 195 208 222 239 BOOK REVIEWS

L. Babiński, J

.

Siedlecki, Konosament bezpośredni w rozwoju obrotu międzynarodowego

(Through Bill of Lading in the Development of International Trade)

—

_J

.

Górski

.

C

.

Berezowski, Międzynarodoweprawolotnicze (Droit international deVaviation)

—

L. Ba

-biński

J

.

Balicki, Problemy kolizyjneprazvaspadkowego (Problems of Conflict of Lawsinthe Law of Succession)

—

B

.

Walaszek

261 262

4 CONTENTS

L

.

Ciamaga,Odwspółpracydointegracji.Zarysorganizacji idziałalności RWPG wlatach

1949

—

1964 { From Co

-

operation to Integration

.

An Outline of the Organization and

Activities of CMEA in the Years 1949

—

1964)

—

M

.

Guzek, J

.

Sandorski .

L. Gelberg, Kryzys karaibski1962 r. Problemy prawa międzynarodowego{The Carribean

Crisis 1962. Problems of International Law)

—

L

.

Antonowicz

W

.

Góralczyk, Szerokośćmorza terytorialnego i jego delimitacja {Limits of the Territorial

Sea and Its Delimitation)

—

R

.

Zaorski

J. Hołowiński, Umowa oprzewózładunkudrogą morską.Istotaicharakterprawny{Contracts

for the Carriage of Cargo bySea

.

TheEssenceand LegalNature)

—

S. Wójcik

.

A

.

Klafkowski, The Potsdam Agreement

—

R. Bierzanek

K

.

Kocot,Naukaprawanarodów w Ateneumgdańskim { TheScience of the LawofNations

at the Gdansk Athenaeum)

—

M. Grzegorczyk

L

.

Kubicki, Zbrodnie wojenne wświetleprawapolskiego {War Crimesinthe Light of Polish

Law)

—

L

.

Gelberg

. . .

M.Lachs, The Polish

-

German Frontier

.

Law, Life and Logic of History

—

J. Sach

.

S

.

Matysik, Podręcznik prawa morskiego {Manual of the Law of the Sea)

—

M. Iwanejko

S. Ordon, Kampania wrześniowa 1939 r. na morzu w świetle prawa międzynarodowego

{The1939 September Campaign at Sea inthe Light of InternationalLaw)

—

Z

.

Rotocki

Rozprawy prawnicze

.

Księga pamiątkowa dlauczczeniapracy naukowej Kazimierza Przy

-byłowskiego { Essays in Law

.

Commemoration Book to Honour the Scientific Work of

Kazimierz Przybylowskt)

—

J

.

Jakubowski

J

.

Skąpski, Autonomia woli w prawie międzynarodowym prywatnym w zakresie zobo

-wiązań z umów {The Autonomy of the Parties inPrivateInternational Law as Regards

Contractual Obligations)

—

_J

.

Fabian

K

.

Skubiszewski, Uchwały prawotwórcze organizacji międzynarodowych

.

Przegląd za

-gadnień i analiza wstępna {Law

-

making Resolutions of International Organizations

.

Survey of Problems and Preliminary Analysis)

—

K. Wolfke

B

.

Wiewióra, The Polish

-

German Frontier in theLight of InternationalLaw

—

J.Sztucki

266 267 268 270 271 275 276 278 279 280 282 283 285 286 CHRONICLE

Poland and International Organizations:

—

M. Paszkowski Judicial Decisions in Poland

—

J. Jakubowski

La 52e _{session de l’Institut de} Droit International, Varsovie 1965

—

L. Babiński . Meetingof Scientific Staff of Chairs of PublicInternationalLaw, Karpacz1966

—

B.Paź

-dzior.

Regarding the RoleofWestGermanScienceofInternationalLawin the Policyof Federal Republic of Germany

—

P

.

Lippóczy

Chairs and other ScientificCenters inPolandinthe Field ofInternational Lawand Related Subjects 289 311 319 323 324 327 BIBLIOGRAPHY

Polish Bibliography on International Law 1964

—

1965

Reviews of Books on International Law 1964

—

1965

328

FOREWORD

For quite a long timeinternational

jurists

in Poland have felt a lack of a special periodical devoted to the problems of international law

.

To meet

,

at least partly

,

this demand for a tribune for scholarly publications in the field of international

law

,

the Polish Institute of International Affairs

,

the Institute of Legal Sciences

of the Polish Academy of Sciencesand the Polish Branch of the International Law

Association have recently taken

up

the initiative of starting a joint publication of yearbook devoted exclusively to international law

.

Every effort has been made to

assemble around this new publication the widest possible milieu of scholars of both

older and younger generation and in this respect the editors have been successful

to a very great extent

.

At the sametime it has been also felt that writings published in the Polish lan

-guage wouldnot be easily accessible abroad to all those who might be interestedinthe development of the science of international law in Poland and in the legal thinking of the Polish authors

.

True enough, inthe troubled world of ours international law and the role it may

play in international relations are sometimes underestimated or even neglected

.

But the fact is that almost each and every proposal for the settlement of aninternational conflict refers to international lawand one canhardlyconceiveaconstructivehandling of major international controversies of our time without due respect to the rights of others and without compliance with the principles and norms of international

law as animportant element of peaceful relations between states irrespective of their

social system

.

The

progressive

development of international law, based on a wide

consensus of states with different legal traditions and different social systems, seems

to be a prerequisiteto the active role the international law may play and to thejoia

-bility of its norms

.

In this

process

of the progressive development of international law scholarly legal thinking is a factor of importance and this seems to hold true also for an exchange of scholarly ideas in this field which might contribute to a bet

-ter mutual knowledge and understanding

.

Thereforeit has been thought that—

espe

-cially in this field of science as concerned with international problems

—

a language barrier should be avoided and

,

consequently

,

it hasbeen decided to publishtheyear

-book

in

English as a language accessible to a great number of international

jurists

6 FOREWORD

It must be added inall frankness that the way from the inceptionof the “Year

-book

_”

tothe

appearance

of its first volume inprint has been rather lengthy and this

protracted way of

preparation

of the “inaugural

_”

volumeis somehow reflected in

the topics dealt with

.

For it has been and it will be also for the future the intentionof the editors to

publishin the

_“

Yearbook

_”

articles and notes elaborating on the legal problems and

legal aspectsof the problems posed by the development of contemporaryinternational relations rather than to concentrate on

topics

of purely academic interest

.

The book

reviews

section is intended to allow for presentation of all books on international law published by Polish authors

.

_Howevers

due to an accumulation of material and to alimited

space

> not all the books that have been published in the

recent yearsare reviewedhere

.

The editorshope tofill

up

this

gap

inthe next volume

which is under preparation now

.

Besides book reviews the readers will find in each

volume full bibliography of legal articles in Polish periodicals for a given period

.

To meet the interests of practicing lawyers, a series of abstracts from the deci

-sions of Polishcourtsinvolving internationalelement has beenincluded inthe “Year

-book

_”

as a separate section.

Having in mind the prominent part of international

organizations

in present day international relations and also in the

process

of the formation of international

law

—

special section of notes is devoted to Poland

_’

s position on selected matters in

-volving legal issues and dealt with by international organizations, especially by the

United Nations and its specialized agencies

.

The chronicle contains miscellaneous information on scientific life in Poland

in the field of international law.

The editors are fully aware that their first attempt is not perfect

.

But they

hope that this volume will stimulate the readers

’

interest in the next ones which they intend to enlarge and modify in some sections

.

It is in this spirit that they submit this volume to Your attention and would welcome any critical remarks

.

c

T

I

L

S

A

R

E

ON THE IMPORTANCE OF INTERNATIONAL LAW IN A DANGER

-OUS WORLD

by MANFRED LACHS

The reader ofthisnewpublication

—

which ismeant tooffer aconribution of lawyers of socialist Poland towards a better understanding of international law and relations in the world of to

-

day

—

may be surprised to find on its opening pages comments and reflections on a subject quite familiar to him

.

Yet, writ

-ten as they are, in the shadow of strife, conflict and acts of lawlessness while

mistrust and suspicion becloud relations amongstates, theyseemtimely a remin

-der of the role law and lawyers could and should play in international rela

-tions

.

It is obvious that the fundamental processes determining the cavalcade of

contemporary events are the great political, economic and social changes of

our days

.

The birt of the firsth and then of a whole system of socialist sta

-tes has changed the face and structure of world forces. These changes con

-stitute the source of confrontation between East and West

—

of states of different political and economic systems; between what is called North and

South

—

the rich and the poor. The structure of the international community has beenseriously altered byscoresof new states havingentered theinternational arena and having begun to build a new lifeon what werehitherto colonial empi

-res

.

Manymorenationsareonthemove

,

claiming freeandindependentexistence

.

All this is closely linked with the process of modern science revolutionizing our life

.

Its achievements are translated into practice by striking technological feats

.

Mastery over matter and technical progress have become political factors ever

more decisive to social progress and economic development within a society and in relations among nations

.

_“The most amazing thing about science”

,

it has been said, “and the most surprising and exciting fact about our world isthis astonishing connection between highly abstruse theoretical ideas and the matter

of fact.”1

1_{Sir George Thomson in his presidential addressto theBritish Association for the Advance}

-ment of Science, 31 August 1960.

MANFRED LACHS

8

There is

,

indeed

,

nothing new in it

.

A careful reader of history will easily discover that great achievements in science have always been linked with great

social changes

,

setting in motion further important developments in other fields of interhuman relations

.

Newton and Darwin are but two striking examples

.

Nor can their impact on the social sciences be ignored

.

Hereagain ampleillus

-tration is offered by examples from the past

.

What is new today is the quality of the changes

,

the far reaching interdependence of events, thus raising them

to the level of a twofold revolution

.

The past and present

,

practice and theory have brought home the truth

that the world of nature

,

our globe and the whole universe are subject to the operation of definite laws

.

Man

’

s knowledge of them is still very limited, many

remain covered by theveil of secrecy

.

But those thatareaccessible offer enough evidence of the mutual dependence between what is happening in the world of nature and in the world of man

,

of the impact of science on the development of society and on relations among nations

.

The discovery that the universe

behaves in an orderly manner leads to a better understanding of the laws guid

-ing inter

-

human relations

.

It was about hundred twenty years ago when Marx suggested:

_“

History itself is a real part of the history of nature, the formation of nature of man

.

Eventually natural science will include the knowledge of man to the same extent as the knowledge of man will include the natural science: they will become one

.”

And only recently one of the great scientists of our days submitted that science

_“

has much more in common with thesocial

sciences than we have thought in the past

.

” All this justifies the need for further and deeper study of the mutual relationship between nature, science and society

.

It would be futile to hide today behind what is called lack of adequate historicalexperience or the alleged “impotence” of the social sciences

.

It is of no use to await a new Newton in this field

.

On the teleological level better knowledge and further penetration of the laws guiding nature

pave the way to the possibility of utilizing them in the interest of man and for his well

-

being

.

Can there be any doubt that this should be our main

concern?

In the light of these considerations one may turn to a more specific sphere of enquiry concerning relations among nations and states

.

The basic problem we face here is not only to ascertain the ways and by

-

ways of history but also

toanswer the question:wheredoes itlead?Toaskthisdoesnotamounttoa _“me

-taphysical

”

approachoran

_“

infatuation with natural science

.

”'

-It is the logical

consequence of past experience, of the fact that the clock of history does not strike evenly

,

that its laws do not operate automatically. Hence the task of is to help shape events in the interest of man

.

To begin with, the present has to be faced not as the total of haphazard man

9

ON THE IMPORTANCE OF INTERNATIONAL LAW

events

,

but as a consequence of yesterday

,

the last link in the chain of events accessible to our generation

.

Only by appreciating this fact properly can proper solutions be found for the issues it poses

.

Only then will tomorrow not catch

us unprepared

.

The key issue which continues to confront us is obviously that of peace and

war

.

It remains true, as we stated earlier

,

that our generation is witness and

victim of conflicts that break out in various parts of the world, each of them carrying within it the seeds of a wider conflagration

.

Yet it may be said that there are real and practical possibilities for barring war from relations among

states

.

This is so today, forty years after war wasoutlawed as an instrument of

national policy

.

This isso contrary tothe views of thosewho insist onits inevi

-tabilityand those who by theiractionsincreasethe riskofitsoutbreak, apparently seeking inspiration in the words of the poet of ancient Rome:

_Jura

negat sibi

nata nihil non arrogat armis

.

However

,

to achieve this objective a serious effort

is required by all concerned

,

states big and small

.

A new approach

.

After the failures of the years between the warsand the disaster of the glo

-bal conflict, humanity embarked on a new venture

.

It implied that no dispute between states

—

whatever its nature or dimension

—

justified the use of force

.

No ready formula was offered

,

no precise directive for the solution of particu

-lar problemswas given

.

But it implied that allstates were bound tomake every

effort to seek peaceful solutions and methods for the settlement of theirprob

-lems. It was meant to bind allstates, irrespective of their politicaland economic systems; it commended a common effort on their part to protect the security

of each of them. Leaving to states the inalienable right of self

-

defence, it aimed

at preventing the abuseor deformation of this right. Its great value and main function was prevention

.

For reasons well known theseefforts failed

.

They have been replaced by a new situation, that of today

.

Onecanhardly argue that thearmamentsraceand its inevitable consequences offer areply tothe pressing needsof theworld,that there issomethinginherently

good and constructive in th<pm

.

The way to peaceful co

-

operation is blocked

.

The world lives in the shadow of war

.

All this, far from increasing security

,

produces chain reactionsand drives the world in a vicious circle from one crisis

toanother

.

Risks increase with every new incident. The area of the conflict may be limited, and so may be the aims of the parties to the conflict

.

But it is the

difficulty of limiting the means of war in a nuclear age which carries with it the danger of a major catastrophe

.

Apart from this, local conflicts become

contageous, they serveasbad examples,lead tomiscalculations,encourage

_“

solu

-tions” by force

.

A generation which has had the unique experience in history of witnessing

great triumphs of human genius and has shared the great achievements in the

conquestof what hasbeen hitherto unattainable

—

isboundto rejectthisapproach

.

The responsibility is not only ours

.

For

,

indeed, man has acquired the power

10 MANFRED LACHS

of destruction without limit

.

Thus too much is at stake to leave humanity to

the hazards of power politics, as there is an obvious disproportion between the lessons offered by history

,

the methods employed today and the dangers they

imply for tomorrow

.

Under thesecircumstancesthe great discoveries of our ageoffer no guarantee

that our knowledge will not lead to the destruction of mankind

.

With all this in mind we arebound to conclude that the newapproach tothe basic issues of our age must be commensurate with what is at stake

.

In the new

international environments there is no room for a revival of the patterns of the

past

.

Neither the treaties of Utrecht nor Paris

,

the Congress of Vienna nor the VersaillesTreaty

.

Neither a Concert of Europe nor the division of the world

into spheres of influence can today produce conditions of durable peace

.

Gone

are the days when Alberoni

,

representing the Queen of Spain, could say at the Congress of Utrecht:

_“

They cut and pare states and kingdoms as if they were Dutch cheeses

.”

Nor can the practices of today be continued. There isno ques

-tion of choice between thetwo; there is an imperative need to open a new road

leading to the organization of international relations on the sound foundations of peaceful co

-

existence

.

The notion is not new

,

it has frequently been put forward in the past when

different and frequently conflicting interpretations were attached to it. Even todayit is distorted andabused,surrounded byclouds andsuspicion.Itis neither a myth nor a hypothesis

.

Its meaningis clear and unequivocal

,

for it has tocor

-respond to the needs of a world whose problems it is meant to solve

.

Three

sign

-

posts should be placed at the entry to the new road: one pointing to the recognition of the realitiesof the contemporary world, the second to the peaceful solution of all conflicts and differences among states. The third contains a call

to respect the rule of law in international relations.

Thefirst meansthat the world asit ismust be takenasthepoint of departure

for all political design and practical action

.

This implies the realization that it is notshaped in accordance with one pattern; it has many shades and colours.

No conjuring can do away with the existence of states of different political and economic systems. Part of that reality is the struggle of nations for a free and unfettered life; against misery and want, hardship and inequality, frequently the heritage of foreign domination_{, against discrimination whatever its origin} or character

.

What used to be regarded as politicalvacuum controlled by outside powers e'_xists no more

.

It has been filled by the inner power of nations claiming

the right to control their destinies and those of the whole regions they inhabit.

Any attempt to ignore all these processesis tantamountto entering a

_“

world of unreality and to pretend

,

” as

_John

Basset Moore once said,

_“

that events which have happened have not in fact come to pass

.”

The second principle provides for the obligation of peaceful settlement of

11

ON THE IMPORTANCE OF INTERNATIONAL LAW

views and positions

.

This, however, should not prevent them from reaching agreements on practicalsolutions

.

Negotiations on all levels, bilateral and multi

-lateral, within and without international organizations, form the instrument

to be employed

.

It goes without saying thatstates should also seek other means, like enquiry,

mediation, conciliation, arbitration or judicial settlement.

Thetwoprinciples mentioneddonotexhaust what maybecalledaprogramme for co

-

existence. It is not suggested that we deal with it here and now

.

What we are concerned with, is the function of international law and of lawyers in

it

,

the rolethey can and should play

.

This leads to the third element

.

Asa mat

-ter of fact it embraces the two preceding ones

.

Ex factis jus oritur

—

hence the

close link between the realities of life and the rule of law

.

On the other hand the outlawry of threats or use of force means that statesare barredfromresort

-ing to any other but peaceful means in the process of resolving their differen

-ces. Hence the paramount importance of restoring or rather establishing a true rule of lawin international relations

.

Thereis an urgent need to vindicate inter

-national law, prove its worth and reveal its real possibilities

.

At no time in his

-tory has it been more urgent than today

.

Some may, of course, subscribe to the view of a brave admiral that:

_“

Inter

-national law is not law at all and incalculable harmhas been doneto our nation

-al security by those jurists and statesmen who have made the people believe

it is,” or share the argument that: _“International law is non

-

existentor soweak

that to lean on it is to court disaster

.

” Others may seek comfort in the assertion that in this revolutionary age thereislittle room for internationallaw

.

However, most of those familiar with the issues involved will be rather shocked by these sweeping judgements, as they would be when reading theview recently advanc

-ed that:

_“

International law is a permanent incitement to hypocrisy

.

” These

claims of sceptics and cynics, devoid, as they are, of any scientific basis would

merit littleattentionand nospecial consideration, if they were not so dangerous

.

Thisiswhyitwas soaptwhenavery high authoritystated that:

_“

The conditions prevailing in the world of today give increased importance to the rule of inter

-nationallaw,its strict andundeviating observance byall Governments in strength

-ening internationalpeace

,

developing friendly and co

-

operative relations among

nations. Anyserious discussionof thesubjectmustbeginwith aclear delineation of the issues involved.Itisnotthe existence or validity of internationallaw which gives rise to doubts. It is a truism tostate that it has a long history behind it

,

each of its stages having added new chapters enriching its substance

.

Thus it is obviously partand parcel of therealitiesofthe world of today. Hasit always been

»3

3 _{Resolution of the General Assembly of the United Nations, 1505}

/XV; confirmed by

12 MANFRED LACHS

effective? Certainly not. Why then the specialchallenge it faces today ? An eval

-uation of the environment in which it is called upon to operate offers the reply

.

The world has shrunk, the quality of distance has changed

,

nations and

states have become much closer to one another

.

Almost daily contact between them has become inevitable

.

All this has produced twofold effects, which may

seem contradictory

.

We are witnessing acontinuousgrowth of international law

,

both horizontal and vertical

.

Ever new branches appear on its tree

.

Ever new

rules come into existence dealing with problems of trade and communication, modern technology andtransport

,

cultural andscientific relations

.

It hasentered our daily life to an extent that makes its operation in the solution of thousands of problems almost unnoticeable

.

We take it for granted

.

On the other hand

,

the direct confrontation of states has increased the areas

of their conflicting interests

.

The speed of contemporary life has contributed

to the greater concentration of conflicts in time. The differences between East and West

,

metropolitan powersand dependentnations

,

wealth and poverty have

becomemore acute

.

It suffices to look at the map of the world to seethe social

forces of to

-

day standing in direct confrontation

,

armed as they are with ma

-terial and ideological weapons

.

Thesolutionof important problems is long over

-due

.

Mostof them remain unresolved and further delaycarrieswithit thedanger

ofexplosion

.

Itishere thatthe lawlags behind.Thereal issueweface is therefore how tomakeit moreeffective

,

howtospeed up the operation of its mechanisms, to increase its impaçt on events and actions

.

From among the many aspects

of the problem

,

we propose to deal with one or two only.

In order to cope with life, law is bound to breathe the oxygen of the facts

of life

.

Too frequently law has been identified with what is old, outdated and obsolete

.

Hence it is no mere coincidence that since time immemorial thelaw

-yer has been the favourite of the muse of satire

,

who has continued to visit him in both hisstudy and his courtroom

.

His manners, dress and, indeed, work

have been the subject of continuous ridicule

.

As such he has been the heroof

great works of world literature

.

To recall only Cervantesand his Sancho Panza

,

Dickens and his case of Bordell v

.

Pickwick, Guy de Maupassant and his case of M

.

Hippolyte Lacour v

.

Madame Celeste Cesarine Luneau, Luigi Pirandel

-lo's court in Sicily, Anton Chekhov

,

Anatole France, Karel Ćapek, or Rabelais, Zola and many others

.

Even the lawyer's language has become a jargon. So it wassuggested that had Shakespeare been a lawyer, the famous soliloquy would have read: to beor the contrary

.

On themoreseriousside we were only recently reminded by an authority on the subject that

_“

one of the reasons why lawyers

were the most conservative section in the community was because they were brought up to believe that if there was a precedentforsomething it was all right

but if there was not, it was all wrong

.

"4

4 _{The Lord Chancellor of England, House of Lords, 11 November 1964, “The Times,“}

13

ON THE IMPORTANCE OF INTERNATIONAL LAW

What was useful yesterday does not suffice today

.

Yet, we are frequently confronted with attempts to petrify rules which have lost their ratio existendi. What is worse

,

it is sometimes positive law that does this

.

There could hardly be a stronger condemnation of a law that has outlived itself than the words of

an English judge pronounced 197 years ago:’’The state of slavery is of such nature that it is incapable of being introduced on any reasons, moral orpoli

-tical

,

but only by positive law

,

which preserves its force long after the reasons

,

occasion and time itself from whence it was ever created are erased from me

-mory

.

It is so odious that nothing can support it but positive law

.

Similar and even much greater dangers

,

in view of the far reaching implica

-tions of international conflict

,

exist in international law

.

Outdated and obsolete principles

,

rules and treaties, cease to be effective

,

lose their impact on life; thus instead of preventing and solving conflicts, they may contribute to their

emergence and make them more acute

.

That is why it is so important to make law reflect the changes life continuosly brings about

,

while retaining what is

so important: confidence in its operation, reliance in its stability

.

Hence the urgent need to dispel institutions and rules which are on their way out

,

to open the doors to new ones which evolve in the wake of changing

events

.

”

5

In view of the speedy transformations refered to earlier we find certain pro

-visions of law becoming outdated within the lifetime of even one generation

.

We see this happening before our very eyes

.

Animportant illustration isoffer

-ed by the Charter of the United Nations

.

The years that have passed since

1945 have brought about changes having an obvious bearing on the principles and provisions of this most important document

.

Some require amplification

,

others a new approach

,

still others which were in their cradles in 1945 have

matured into new legal concepts

.

The refusal to take account of all this is one

of the main sources of the crisis in the United Nations

.

Only by adapting it to

theneedsof 1967andthe yearstofollow canthedocumentof 1945 become more effective and restore the Organization to the place that is its due

.

The same

applies toother areas of international contacts and relations

.

This is one of the

means of translating international law into the language of the realities of the world of today

.

This is no mere theoretical exercise for it is closely linked with

the solution of practical problems. In fact

,

important progress has been made in bringing old established principles up to date and in shaping new ones

.

The

notion of sovereignty has acquired a new dimension; the right of peoples freely to use and exploit their national

_“

wealth and resources

”

has been declared

“

inherent in their sovereignty.

’

1 _{Expanding relations create new}

forms of co

--

operation and even institutions

.

The principle of

_“

self

-

determination

”

has

MANFRED LACHS

14

*

acquired a new meaning; a notion of neutrality, completely different from the

traditional one, has come into being

.

The deep concern with the growing armaments race has produced many constructive ideas and concepts which

,

once implemented

,

would arrest the

dangerous trend

.

Some of them are acquiring the status of legal institutions

.

Theseare processes in which the internationallawyer can play a partof no mean importance

.

His is the task of shaping instruments of mutual understanding

.

In doing so he should not only take account of the up

-

to

-

date developments of law, but should also do pioneering work by forging provisions creating new

law

.

The substance of negotiations remains, of course

,

within the province of

politicsor economics, as thecase may be. But their background islaw and their

outcome takes the form of legal instruments. Hence the important role of the lawyer in them

.

By his advice, by the formulae he offers, the text he drafts, he can cause the instruments of diplomacy to be used with subtlety, their priorities adapted to the situation he confronts. Negotiations on all levels should be so

employed asnever to exhaust the possibilitiesof peacefulsettlement of a contro

-versial issue

.

Guiding the negotiator, he may influence his judgment by recom

-mending remedies which would take account of the real relationship between

law and fact, warn him of the risks involved should the law be disregarded

.

International organizations offer further possibilities. To mention only the analysis of the atmosphere of the deliberations and the results of the votes taken

.

Apart from the other consequences they produce, their importance lies

in the numerical expression they give to tendencies and changes in relations

among states. Voting results are concrete facts which reflect the changing face

of the politicalsituation

,

a political phenomenonon the threshold of negotiations

and decisions

.

They therefore constitute precious raw material, a basis for

the evaluation of the possibility of making a step forward towards the creation

of anewruleortowards a newinterpretation ofanexisting rule

.

Thisalsoapplies to initiatives and proposals prepared or actions taken in other areas. A proper analysis of facts and the law may make a state discontinue a line of policy or refrain from actions which are detached from reality and therefore do not take into account their possible repercussions

.

This is how tension and crisis can

be prevented

.

Through the education of those active in international affairs, what is

called metaphysics in politics

,

i

.

e. the belief that they cannot be changed will

gradually be destroyed

.

If the importance of law is impressed upon politicians

it will ceaseto be the poor relation of politics

.

To attain this objective a mecha

-nical approach does not suffice

.

Already Gentilis revolted againstnuda recitatio

.

The international lawyer cannot be regarded as a mere technician or narrow

practitioner supplying the tools

.

He must shape them, too

.

In so doing he can

-not remain neutral when confronted with the vital issues which face humanity

.

15

ON THE IMPORTANCE OF INTERNATIONAL LAW

of abstract contemplation in a world so perilous

.

”

He must be committed to the cause of progress

,

co

-

operation and peace

.

The road leadingtoa universalrecognition that international lawisthe guard

-ian of the interests of all statesand nations isnot aneasyone

.

Ontheonehand

governments must be made aware that the benefits which may result from vio

-lations of the rights of others are illusory or

,

at best

,

short

-

lived

.

That in the longrun states will derive much moreadvantage from respecting lawand recog

-nizing the vital rights of others

.

Reciprocity is the best guarantee of one’s own rights

.

In fact, it is already producing effects in many fields of international

relations

.

Ontheother hand it is necessaryto createan atmosphereof confidence in the law and its mechanisms

.

They have to be convinced that the law is

not a bulwark of the past, andthat when entrusting their problems to internatio

-nal bodies or organs they can rely on their decisions.

With these processes maturing, simultaneous action in two directions is called for: one leading from the codification of the important fields of interna

-tional law to the solution of practical issues

,

theother from arrangementssettl

-ing individual controversial problems of immediate interest to wider

,

more

general agreements

.

In the first, important progress can be recorded

.

From

theLawof theSeathrough theLaw of Diplomatic Relations and Consular Rela

-tions we are about to move to the Law of Treaties

.

Much remains to be done

with regard to the law of the United Nationsand thewiderfield of those prin

-ciples which constitute the basis of the organization, thus embracing the key

issues of the law of coexistence

.

As to the other, much more attentionshould be

paid to the need for backing solutions ad casum by more effective legal ma

-chinery

.

Some have broken down and have led to a revival of conflict

,

some others remain in suspense

.

Even more important are the possibilities of applying specific solutions

which have proved their worth to similar situations

.

Here is a field that has not been adequately explored

.

Thus, in developing the edifice of law one should move from the general to the specific and vice versa

,

downwards and upwards

.

In the process, inter

-national law willmeet the requirements of life to an ever greater degree it will

do so with open eyes

.

One may therefore claim that blindfolded Themis can no more remain its protector

.

While educating office

-

holders and laymen

,

it

will acquire the wide backing of public opinion

.

Canning once called it ’’ the fatal artillery of popular excitation

.

” Almost ahundred years later thePermanent

Court of Arbitration qualified

_“

appeal to public opinion” as one of _“ordinary sanctionsof international law

.”

Today it isa powerfulforce

,

the impact of which may be decisive in securing compliance with its rules tomorrow

.

16 MANFRED LACHS

Here, then

,

are some reflections and suggestions on the subject

of how

to

make international law acquire the place due to it in international relations

.

They are neither exhaustive nor do they offer anything particularly new

.

Their

sole purposeis tomakemankindsubscribe to the rule of law, to draw attention

to the urgency of the issue

,

imposed by the dangers inherent in the present

LEGAL PRINCIPLES OF PEACEFUL CO

-

EXISTENCE AND THEIR CODIFICATION

by REMIGIUSZ BIERZANEK

1

.

The Historical Type of Contemporary International Law

It is truism tosay that international lawis valid ina specificsystemof inter

-national relations and that its characteristicfeatures and developmentaredirectly related to

,

and dependenton

,

theexistingsystemwhichwasshaped inthecourse of historical development

.

It would be equallytrue to assertthat the times which

welive in are a period of deep changes in the traditional pattern of international relations and that those changes

—

of necessity

—

will

,

by their very nature

,

influ

-ence further development of international law

.

Irrespective of whether in evalu

-ating the present state of international law it is called

_“

crisis of international law” with

_“

particularly disquieting symptoms”

—

although this is

_“

la crise d'un certain droit international formé dans une société des Etats qui n'a plus beau

-coup de ressemblance avec celle où nous vivons désormais

,

” or in other words

“

la crise d'adaptation,”1 _{the crisis presented even sometimes with extreme pes}

-simism, as

_“

une partie, une facette de la crise mondiale totale

,”

2 _{or whether}

it will be called optimistically

_“

une crise de croissance,”3_{or whether one simply}

observes that

_“

in the last half

-

century, the nature and structure of international society has undergone fundamental transformations which

,

though far from being completed, have already profoundly modified the substance and structure

of International Law

”

4

—

_{one fact is indisputable: in its historical development}

the international law entersinto a new phaseof existence

,

in which its characte

-risticfeatures and the function performed in international community will differ

1_M

.

_{VIRALLY, Le droit international enquestiont“Archives de Philosophie du Droit/’ 1963},

pp

.

146 and 162

.

2 _J

.

_{KUNZ, La crise et les transformations du droit des gens, “Recueil des Cours,” 88,}

1955, p. 9.

3 _Cf

.

_H

.

_{ROBIN, Les principes de droit international public, “Recueil des Cours,” 77,1950,}

p. 314: “Le droit des gens traverse ce que d’aucuns appellent une crise de croissance, à notre avis, onpeut même parler d’une réforme de structure

.

”

4 _C.W

.

_{JENKSin the prefacetoW}

.

_FRIEDMAN,_{The Changing StructureofInternational Law}

,

London 1964.

18

REMIGIUSZ BIERZADEK

in many respects from those of the traditional

,

so

-

called

_“

classical” system of international law

.

It seems that despite the incontestable character of those assertions, there

is a lack of sufficiently lively discussion on the trends of development of inter

-national law

,

on the possibilities and prospects of development of this law on

the basis of transformations which have been taking place in contemporary

world

,

during the life

-

timeof ourgeneration

.

In particular it would seem useful

and proper to attempt a legal and historical analysis of the pattern of contem

-porary world with a view of defining the needs and possibilities for the new

trends of development of international law which would conform to the reali

-ties of the coming epoch and with a view of establishing legal implications of the changes now taking place in contemporary world

.

What should be the

_“

historical type” of international law of the second half

of the 20th century? The concept of the

_“

historical type of international

law” is not entirely alien to the jurisprudence

.

An eminenent historian of law sir Paul Vinogradoff in his treatise published after the World War I5 _{has pro}

-posedthe divisionof the history ofinternational law intofive periods correspond

-ing to the different typesof socialorganizations in entities which were partners of international co

-

operation (tribe

,

town

,

church, contractual organizations

,

collectivist organizations)

.

Professor Vinogradoff stressed the need of treating international lawas a system closely linked with

,

and corresponding to, a giv

-en historical period; he maintained that striving for conciseness and order

belongs to the substance of the legal method

,

that great legal constructions take

theform of a system and that sometimes one can even perceive that the require

-ments of practical life yield to the logical compactness6

.

The criterion which is to become the fundamentum divisionis between the traditional and thenew

,

emerging system of international law, is certainly much

more complex than was suggested by Professor Vinogradoff

.

Besides thechang

-es in the economic and social structures of states forming international community

—

changes which are by no means uniform in all countries or gro

-ups. of countries

—

there occurred most essential changes in the character of

international relations: after the World War II a new pattern of international

relations came into being

,

with the participation of the capitalist states

,

the

socialist

states and a great number of new nations which emerged as a result of the liquidation of thecolonial system

.

7 _{On the other hand the new technology}

6_.P

.

_VINOGRADOFF, _{Historical Types of International Lawy Leyden 1923}

.

6 _Ibid.

y pp. 4 and 5.

7 _B

.

_V.A

.

_{ROLLING,International Lawinan Expanded World,Amsterdam1960,p.46,rightly} stresses: “A progressive development of international law would be needed if the international

communityhad expanded into a _{world community}. _{But the emergence of the Afro}

-

_{Asian world}

dramatically emphasizes the needand acceleratestheprocess

.

” R

.

HIGGINS likewise(The Devel~

LEGAL PRINCIPLES OF PEACEFUL CO

-

ëXIS?éNCé

19

of warfare and in particular the invention of nuclear weapons caused that the

war inour times ceased to be an instrument of international policy and a means

for solving international disputes

,

that for the first time in history man is con

-fronted with the problem of

_“

collective survival” which is not

_“

the old pro

-blem of life and death

—

it is qualitatively different

.

”8_{Theconsciousnessof the}

emergence of a hew pattern of international relations as well as of the need to base those relations on the legal norms and principles

,

to a considerable extent different from the tenets of the classic international law is gaining ground and reaches not only international lawyers,9 _{but also politicians participatingactive}

-ly in the development of international relations

.

2

.

Views on the Trends of Development of International Law

What are the prospects of development of international law in the second half of our century? What are to be the characteristic features of international

law in the nearest future as compared with its traditional concepts? Like in

many other problems concerning the future

,

also in this field the opinions dif

-fer widely

.

Generally speaking

,

in the West there can be discerned three groups

of opinions in this respect:

a) The view that the traditional international law does not require changes of a fundamental character

.

Its adherents point to the dangers inherent in

departing from the principles of the classic international law

.

Thus for example Baty was of the opinion that the classical international law was the only instru

-ment capable of saving the world from anarchy

.

30 _{The above opinion does not}

signify by any means that its adherents considered it possible or useful to stop

the development of law

.

They are of the opinion that this law is developing at

present

,

as in any other period

,

through the establishment of new norms and that there is no need to introduce any fundamental changes in that system or

that the existing system does not constitute any obstacle to the introduction

within its framework of necessary political changes

.

This conservative approach

has many adherents among international lawyers

.

11

says, “that developments in international law have been accelerated by the emergence of new Afro

-

Asian states, whose common expectations do not always conform to traditional law

.

”

8 _{Cf. J}

.

_{SOMMERVILLE, The East}

-

_{West Ideological Riftt “Coexistence,” 1964, No}

.

_{1, p}

.

₇

.

0 _{A. ALVAREZ (Le Droit international nouveau}

> Paris 1959, p

.

7) characterizes the present

changesin theinternational law in the following, no uncertain terms: “Le droit international traditionnel,ondésigné,setrouve modifié nonseulement dans ses details,mais aussi et surtout dans sesdonnéesfondamentales,dans sa structure bien plusqu’ilnel’avaitétéparle cataclysme

social qui fut la Révolution Française de 1789 qui a, presque toujours, été présentée comme

marquant une nouvelle époque de ce Droit”

.

10 _T

.

BATY, International _{Law in Twilight, Tokyo 1954, p. 1}

.

11 _{“To the majority of writers and exponents of International Law”}

—

_{as remarks JENKS}

( loc.cit.)

—

“contemporary changes appear as extensions rather than as basic challenges to the structure of international law and relations,” what the author explains by the fact, that “the

20

REMIGIUSZ BIERZANëK

b) The view according to which

—

because of the existence of states with different political systems and opposed ideologies and also because of deep differences of opinions on international law and itsfunctions in the world com

-munity

—

there cannot exist a system of universal international law but only systems of regional international law within particular ideological blocs

.

The adherents of that view accept the premise that for the law to be binding it is necessary that there exists a definite quantum of uniform

,

commonly held ide

-ological tenets

.

Thus for example Leibholz

,

after presentation of thepresentin

-ternational law as being in

_“

full crisis” in the course of which

_“

thetraditional

structure of that law was shaken in its foundations because of the upheavals and events in this century,” states in conclusion that

_“

before the political and ideological homogeneity will materialize, before one ideology will bind again the members of the community of nations^

and before the great powers be ready to give up their sovereignty

—

we shall not be able to speak about

legal community which would merit that name

.

12 _{According to}Wilk the post

--

war development of international relations _“carried to its extreme

...

could break up the universal system of International Law

,

as it has come down to us,

into regionalor other partial systems, with no international legal rulesto govern

the actions of states across the frontiers of various systems

...

the universal va

-lidity of International Law appears no longer as an existing phaenomenon that may be traced backtoitsoriginsand on to its essential completion, but is a de

-batable assumption that stands to be justified or rejected in the light of fresh

examination

_.”

13 _M

_.

_S

_.

_{McDougal states emphaticallythat“the belief ina univer}

-salinternational law

...

is today largelyanillusion

.

”14_{Accordingtoother authors}

—

because of the existence of the opposed ideological blocs

—

the deliberationson the subject of an international legal orderareirrelevant till the moment of elimi

-nation of the ideological differences: thus according to Northrop

—

“it becomes imperative

...

that less attention be paid momentarily to the goal of world order and that greater attention be given to the ideological differences which present

obstacles on the way to that goal

.

c) The view according to which the present system of international law, as no longer answering the needs of our times, should give way to a system of

”15

science of international law is, however,still predominantly basedon thesystem ofinternational

relationsas it developed from the timeof Grotius and Gentilito the beginning of the twentieth

century

.

”

12 _G

.

_{LEIBHOLZ, Zur gegenwärtigen Lage des Völkerrechts, “Archiv des Völkerrechts,” I,}

pp

.

415 and 423

.

18 _K.WILK, _{International Law and Global Ideological Conflict: Reflection on the}

Universality

of International Law_{, AJIL} 1951, pp. 648 and 669.

14 _{Cf. ILA Report, 1958, p}

.

_438.

16 _F._S._{C. NORTHROP in preface to the book Ideological Differences and World Order,} New

21

LEGAL PRINCIPLES OF PEACEFUL CO-EXISTENCE

“

world law” proper for the pattern of international relations established on the

ruins of sovereign states

.

This new system would signify the establishment of a

_“

world government”, being according toour present notions

—

not so much

an international law but rather the constitutional lawof a worldstate

.

According

to the advocates of that view only such deep transformation of the pattern of

international relations is capable of safeguarding a lasting peace, necessary in the contemporary world

.

Among the adherents of the _“world government” one of the most consist

-ent attitude is taken by G

.

Clark and L

.

Sohn, the authorsof the book World Peace through Law which contains ready projects of the revision of the UN

Charter aimedat transformation of the United Nations into a world state

,

equip

-ped with world judicial authority, permanent world police and parliament in whichstates wouldbe represented proportionately tothesize of their popula

-<

}

tion

.

Theinternational law becomes here a worldlawand its rules_“should apply

to all individual persons in the world aswellas tothe nations

.”

16 _{Into this group}

of opinions should beincluded the views of theauthors who

,

while avoiding the

extremism of the Harvard international lawyers

,

present the now binding inter

-national law as a transitory stage

,

preceding immediately the coming of a world

state

.

_Jenks

in his work under the characteristic title The Common Law of Man

-kindisof theopinion that as a resultof deep transformation and dramatic chan

-ges in the world political scene ’’international law can no longer be reasonably

presented within the framework of the classical exposition of international law as the law governing the relations between States

,

but must be regarded

as the common law of mankind in anearlystageof itsdevelopment

.

”

17 _Accord

-ing to Dahm

—

_“

so ist das Völkerrecht der Gegenwart die Erscheinungsform

einer Übergangslage

—

jenseits des Nationalstaats und diesseits des Weltstaats

.

”18

3

.

Peaceful Co

-

existence as Anti

-

thesis of the Abovementioned Views

The concept of peaceful co

-

existence is to a certain extent an anti

-

thesis of all the above mentioned groups of opinions

.

It is first of all an anti

-

thesis of opinions that

,

taking into consideration the deep and basic differences on social

-

economic systems and no less basic ideological differences, international law cannot exist and develop

.

Differences

of opinion on the substance of law and in its functions do not at all mean that there can be no legal norms binding upon States and recognized as such by

those States

.

_“

So States

—

as Professor Tunkin says19

—

_-

_{may profoundly disagree}

16 _{G. CLARK and L. SOHN, World Peace through Law, Cambridge Mass}

.

_{1958, p}

.

_Xlf

.

17 _C

.

_W

.

JENKS, The Common Law of Mankind, London 1958, p

.

XI

.

18 _G

.

_{DAHM, Völkerrecht, Stuttgart 1958, vol. I, p. 3}

.

22 REMIGIUSZ BIERZANEK

as to the nature of norms of international law

,

but this disagreement does not

createaninsurmountable obstacletoreachingan agreement relatingtotheaccept

-ance of specific rules and norms of international law

.

” At the other place the sameauthor says that

_“

it isnot necessary that States reach an agreement on

the nature of international law

,

its social function

.

.

.

its is important, however, that they come toan understandingas to itsspecific rules and norms

.”

20 _P

.

_Ba

-stid states likewise that in relations between the East and West

_“

despite their diametrically opposed views both camps recognize the existence of internation

-al law binding upon the states; it is not important that they have different views onthis law

...

I do not think that thereisanyneed to differentiate between

the legal and the moral aspect of the problems

.

None of the two groups men

-tioned here can aspire at imposing upon the other side its views on the social ethics

.

It suffices that the two join in observing the rule

„

pacta sunt servanda”

which is the only principle of elementary morality and the basis of internation

-al law

.

None of the two partners is negating this formula

.

The concept of peaceful co

-

existence

—

on the other hand

—

runs counter to the opinion that the creationofa

_“

world government” is realistic at the pre

-sent moment and that only the establishment of such a government meets the

present requirements for safeguarding peace

.

To achieve a

_“

worldgovernment

”

with existing basic differences in political and economic systems it would be necessary to introduce first certain uniformity

,

at least in the basic political principles; and itdoesnotseempossible to expect any of the two camps to re

-nouncethe accepted principles of their political andsocial systems

.

The establish

-ment of a

_“

world governments

”

presupposes also

,

as does any other form of integration

,

the existence of some ideological unity

,

which would be of course

difficult to achieve between the opposed ideologicalsystems

.

If thenowexisting ideological differences are often regarded as an obstacle to a more intensive international co

-

operation in the present time

,

it would be difficult to suggest

overcoming that obstacle by creating all atonce a new structure of a world state

which to a much greater extent would require ideological uniformity

.

The experience of the last two decades shows that from the two typesof internation

-al co

-

operation

—

co

-

existence and integration

—

_“

cette dernière n

’

apparaît

qu

’

exceptionnellement: ni l’évolution du droit écrit

—

présentéeici àl’aide d’une méthodecomparative

—

ni le nombre limitédesEtatsliés par l’intégrationn’auto

-risent à prévoir que le droit international suivra une évolution en ce sens

.

”21

”22

20 _G. _I

.

_{TUNKIN, Voprosy teoriy mezhdunarodnogo prava}, _{Moscow 1962, p. 7.}

21 _P

.

_{BASTID, Les principes juridiques et moraux de la coexistence, “Bulletin Interparlemen}

-taire,” 1955, No. 1, pp. 3 and 4.

22 _C. BEREZOWSKI, Coexistence _{et intégration}

—

_{deux formes de la coop}

ération internationale, “Annuaire Polonais des Affaires Internationales,” 1959

—

1960,p.63

.

Professor Berezowski defines

co

-

operation of an integrationist type as “une coopération qui exerce une influence essentielle sur la structure intérieuredes Etatscoopérants.

. .

Letrait caractéristique de la coopération

—

in