Harvard Law School - Yearbook (Cambridge, MA)

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aw ana! fda Ylnifeol Wafiond By A. H. FELLER Director of the Legal Department of the Secretariat of the United Nations OW that we stand at the beginning of a great effort to develop and codify international law, it is instructive to examine the differing attitudes with which lawyers in the different parts of the world approach the job. Among a number of those in Europe who l1ad participated in the codification work of the League of Nations there exists a serious skepticism, if not defeatism, with regard to the enterprise. They remember and recall tl1e prolonged efforts of the League which l1ad born such disappointingly meagre fruit in the Hague Conference of 1930. There a group of nations had attempted to reach agree- ment on what were supposed to be fairly non-controversial topics-Nationality, llerritorial Vifaters and Responsibility of States. Some, though by no means all, of those who Went through that disappointment, think it almost impossible to make any progress in this unsettled World. They point to the difliculties which members of the United Nations have had in reaching agreement in political and economic questions, and believe that the difliculties would be even greater in the legal field. By contrast, lawyers in the Americas, both North and South, have taken to the subject of the development of international law with an optimism which amounts almost to exuberance. How much justification is there in these con- trasting attitudes? The history of the League codification effort was disappointing, but the pessimists have brooded on it too much. They tend to forget the great develop- ments in international law which the last two years have brought forward. In this period the international community received a new Constitution- the Charter of the United Nations. It is the fashion of the time to concentrate on the weaknesses of the Charter and to overlook, or take for granted its virtues. lt is hardly open to debate that the Charter marks a great advance towards a system of world law. The rule of unanimity of the League, which carried forward the principle of unlimited sovereignty of every state, has been reduced to a point where only the five great powers retain the right of veto. That right remains Ollly in the Security Council. In the other organs, the General Assembly, the Economic and Social Council and in the Trusteeship Council, voting is by simple or two-thirds majority. True enough the rule of unanimity of the great powers prevails in the most important field, where the international body has power to decide and place binding obligations 011 the member states, and has been yielded in those organs which can only lnake 1'6COIl11l'l6Ild21l1l0l1S. The fact remains that fifty of the fifty-five members have bound themselves to obey the decisions of the Security Council without right of veto, and all of them have greed to permit a majority vote of the nations in the enormous field covered by the General Assembly and the other Councils. This is not the World Parliament, but it is a long way forward from the international anarchy of the past centuries. 17

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The Charter has been in operation a little more than a year. The time has been short, but enough to show that it has the vitality of a living Constitution. The organs which it brought into being have functioned and developed. The body of international constitutional law is growing daily, and growing as such a law should, not through theoretical speculation, but out of the controversies and daily work of the constitutional organs. There are other factors which the pessimists should look at more closely. For centuries, international law was a system which concerned states alone. The few instances in which the system was applied to individuals were either archaic, like the crime of piracy, or regional and transitory, like the minorities treaties. The Charter has begun a historic process of breaking through the barriers between the individual and the international legal system. The pro- visions regarding human rights and fundamental freedoms have the breadth and scope of constitutional declarations. Definition and application are needed before they can operate effectively. The domestic jurisdiction in Article 2 of the Charter imposes not too clearly defined limitations. They represent none- theless a solid advance along the road of human liberties. The provisions for the right of petition to the Trusteeship Council by the inhabitants of the trust territories, and of visitation by the Council are again instances where the individual is brought into direct contact with the inter- national community. The American proposals on atomic energy contain impor- tant provisions for control of natural resources by an international agency and the punishment by international authority of individual violators of an inter- national code of rules. This new current in international law has been reinforced from another direction. The Nuremberg trial was a dramatic application of rules of inter- national law to individual and corporate criminals. The principles of law which were there applied have not been permitted to fade into obscurity. At its last session, the General Assembly of the United Nations unanimously reaffirmed those principles and resolved that its committee on the codification of interna- tio11al law should treat as a matter of primary importance plans for the for111u- lation, in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code, of the principles recognized in the Charter of the Nuremberg Tribunal and in tl1e Judgment of the Tribunal. At the same time the Assembly declared genocide to be a crime under international law 'Lfor the commission of wl1icl1 principals and accom- plices-whether private individuals, public officials or statesmen . . . are punishable. Here is a catalogue of developments of international law in a few brief months. Compared to the hesitant and vague progress of the preceding centuries these months may well seem epochal to the future historian of the law. In 1930 the nations could not agree on so simple a question as the width of the marginal sea. It may be that they will find difficulty in agreeing on the same question in this decade or even in the next. That is hardly a reason for giving up hope. The record shows that they can agree on matters even more important than the three mile limit. The optimism of the American lawyers fand I hasten to add that there are a good many optimists among the Europeansl is therefore well founded. There 18