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Reflections on the Present Prospects of International Adjudication*

Published online by Cambridge University Press:  28 March 2017

Charles de Visscher
Charles de Visscher*
Affiliation:
Institut de Droit International
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Extract

Is the pessimism at present exhibited by certain scholars with regard to the current prospects of international law completely reasonable? More particularly, is it really justifiable to speak of a deterioration in the juridical methods of settling disputes between states? However disappointing the course of events may have been during the last ten years, it seems that certain evaluations, inspired by nostalgia for the past, to some extent lose sight of factual conditions which have always, in different degrees, limited the role of law in the solution of international conflicts. It is useful to recall such conditions at a time when excessive discouragement has succeeded unreasonable expectations.

Type
Research Article
Information
American Journal of International Law , Volume 50 , Issue 3 , July 1956 , pp. 467 - 474
Copyright
Copyright © American Society of International Law 1956

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Footnotes

*

Translation from the French by Eleanor H. Finch.

References

1 Such a situation arose in the Asylum Case between Colombia and Peru before the International Court of Justice (1950–1951), [1950] I.C.J. Rep. 266, [1951] ibid. 71; 45 A.J.I.L. 179, 781 (1951).

2 See for example the preface by de Lapradelle and Politis to the first volume of their Becueil des Arbitrages Internationaux.

3 On recommendation of the Sixth Committee, the Assembly sent the Draft Convention on Arbitral Procedure prepared by the International Law Commission back to the Commission so that it might consider the comments of governments and the discussions in the Sixth Committee. The resolution also asked the Commission to report to the thirteenth session of the General Assembly, which would then consider convening an international conference of plenipotentiaries to conclude a convention on arbitral procedure. See Res. 989 (X), 554th Plenary Meeting, Dec. 14, 1955, U.N. General Assembly, Official Records, 10th Sess., Supp. No. 19 (Doc. A/3116), pp. 46–47.

4 Report of the International Law Commission, 5th Session (June 1–Aug. 14, 1958), pp. 34–36. It is well to keep in mind the remark of Julius Stone: “The features of arbitration law which offer so many avenues of escape, and which serve in the Commission's eyes as excuses for ‘shirking’ international undertakings, may be the very features whieh attract States to enter into such undertakings.” Legal Controls of International Conflict, p. 736.

5 See particularly the observations of the Swedish Government, Report, op. cit., pp. 36–37, and the remarks of the French delegate in the 6th Committee of the General Assembly of 1954.

6 It appears that the International Law Commission believed it saw an argument in support of its proposal in the refusal by the governments of Bulgaria, Hungary and Roumania to appoint their representatives to the Mixed Commissions established by the Treaties of Peace of 1947. (Cf. Advisory Opinion of the Court of July 18, 1950, [1950] I.C.J. Reports 221). One need only envisage the application to this case of the procedure suggested by the Commission to realize its largely illusory character. The bitter political tension in the general political relations of the states involved in the case was the basis for a complete refusal to co-operate. It would have made ineffective any clause delegating to a third authority the appointment of commission members.

7 Cf. Johnson, D. H. N., “The Constitution of an Arbitral Tribunal,” 30 British Year Book of International Law 152 et seq. (1953)Google Scholar.

8 Max Hagemaan, “Die Gewohnheit als Völkerrechtsquelle in der Rechtssprechung des internationalen Gerichtshofes,” in Annuaire Suisse de Droit International, 1953, p. 61 et seq.

9 See particularly the interesting observations of Sir Fitzmaurice, Gerald, “The Law and Procedure of the International Court of Justice, 1951–1954: General Principles and Sources of Law,” 30 British Year Book of International Law 1–70 (1953)Google Scholar.

10 [1951] I.C.J. Rep. 131; 46 A.J.I.L. 359 (1952).

11 Judgment of the International Court of Justice, loc. cit., p. 133. The consent theory, which purports to base custom on tacit agreement between states, leads to a different and necessarily more static concept of the role of custom. Traces of it may be seen in the criticisms of the Judgment of Dec. 18, 1951.

12 [1951] I.C.J. Rep. 15; 45 A.J.I.L. 579 (1951).

13 N. Politis, La Justice Internationale, pp. 253–254.