Harvard Law School - Yearbook (Cambridge, MA)

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are, however, some dangers in the enthusiasm of some of the professional asso- ciations. No one should be in ally doubt that the work of codification will be slow, and often discouraging. The essential political and economic differences between nations are apparent to everyone. These differences find their reflection in legal problems as well. The danger lies in the too easy disillusion which so often succeeds too easy diseouragement. YVe have already seen this in those members of the public who made up their minds that the United Nations was finished because the Security Council had not solved all of the problems of the peace in the first month of its existence. The General Assembly was well aware of the need for diligent planning. At its New York session it set up a colnmittee of 17 states with a carefully defined mandateg the committee is called upon to study the methods by which the General Assembly should encourage 'thc progressive development of inter- national law and its eventual codifieation, methods of securing the cooperation of the several organs of the United Nations, and methods of enlisting the assist- ance of national and international bodies. ln addition to its consideration of methods, the committee is called upon to consider plans for the formulation of two substantive problems, one the draft Declaration on the Rights and Duties of States submitted by Panama, and the other the principles applied by 'the Nuremberg Tribunal. The committee has no general mandate to go into tl1e whole field of international law and its codifieation. It has enough 011 its agenda for a serious beginning. When the Charter was in the process of adoption, there was some doubt as to whether its basis would be purely political or whether the rule of law would be brought into its framework. The proponents of law won out. The first paragraph of the first Article now proclaims as one of the purposes of the United Nations the settlement of international disputes 'Gin conformity with the principles of justice and international law. The General Assembly is authorized to initiate studies and make recommendations for the purpose of encouraging the progressive development of international law and its codihcation. The inter- national law of the past was as weak and as fragmentary as international society was disorganized and unstable. The nations are now attempting to build an integrated and secure community. The authors of tl1e Charter and the members of the General Assembly have shown that they know that such a community must be based on a sound and workable legal system. 19

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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

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