The Vienna Convention on the Law of Treaties, the product of two lengthy sessions of the hundred-and-ten-nation conference held in 1968 and 1969 and of preparatory work extending over fifteen years by the International Law Commission, is the first essential element of infrastructure that has been worked out in the enormous task of codifying international law pursuant to Article 13 of the United Nations Charter. The previous codification treaties, the four conventions on the Law of the Sea, the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations and the Convention on the Reduction of Statelessness, did not, despite their intrinsic importance, grapple with the fundamentals of constructing a world legal order.

The place of law in the settlement of disputes by the Security Council is a topic which has already occasioned debate. Many lawyers contend that law plays a minimal rôle in the work of the Council. That organ is, they point out, essentially a political body. It operates in a different way from a judicial body such as the International Court of Justice, and frequently ignores the law of nations. Oscar Schachter, writing in this Journal in 1964, has offered another view, pointing to subtle ways in which the influence of law can still make itself felt in the work of the Security Council, by providing a common language, by applying principles to specific cases, and by determining new points of community interest. The purpose of this article is to examine, in the light of recent years, some of the limitations within which this legal endeavor takes place, and to see whether law has any real function in the settlement of disputes.

Twenty-five years ago, the Allied nations gathered at San Francisco in the warming glow of victory and signed a solemn treaty giving effect to their determination “to save succeeding generations from the scourge of war …” and “to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …” Specifically, they undertook in Article 2(4) to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state …” They also committed themselves to “settle their international disputes by peaceful means …”

The decision of the International Court of Justice in the North Sea Continental Shelf Cases is surely one of the most interesting as well as debatable decisions in the history of the Court. It deals with certain aspects of one of the most important new developments of international law, the doctrine of the Continental Shelf. It also touches on some basic problems of the sources of international law. Among the matters dealt with, in greater or lesser detail, by the Court are the formation of custom in contemporary conditions, the effect of custom upon treaty and, in turn, the possible translation of principles formulated in a multilateral treaty, into universal custom. Above all, the Court was compelled to formulate certain principles of general equity as applicable to the delimitation of the continental shelves between three of the coastal states of the North Sea. It is this attempt of the Court to formulate the general principles of equity applicable to a fair allocation of the resources of the Continental Shelf between neighbors with which the present article will be mainly concerned.

The recent trial in Pretoria of thirty-seven South West Africans on charges of “participation in terroristic activities” focused international attention yet again on the mandated territory of South West Africa. The trial, conviction and sentencing of the accused evoked protest and condemnation from the United Nations on the ground that, as a result of General Assembly Resolution 2145 (XXI), South Africa had lost jurisdiction over the territory and hence the competence to try the accused at all. On December 16, 1967, while the trial was in progress, the General Assembly, by 110 votes to two (Portugal and South Africa), condemned the “illegal arrest, deportation, and trial” of the accused, and on the eve of the judgment in the case on January 25, 1968, the Security Council in a unanimous resolution called upon the Government of South Africa “to discontinue forthwith this illegal trial and to release and repatriate the South West Africans concerned,” a call which was converted into a “demand” by a further unanimous resolution on March 14, 1968, after many of the accused had been sentenced to long periods of imprisonment. The South African Government, however, arguing that Resolution 2145 (XXI) was invalid and that it was fully competent in law to prosecute the accused for offenses committed in South West Africa, declined to accept these “calls” and “demands.”

A rule of customary international law of recent origin has conferred sovereign rights over the continental shelf to individual states for the limited purposes of exploration and exploitation. The attribution of such exclusive jurisdiction required the delimitation of boundaries between the submarine areas appertaining to various littoral states. The importance of such partition of the seabed and subsoil is self-evident, but two points do call for comment. First, since the shelf may be considerably extended in the future according to the criterion of exploitability, the method now adopted will have a constantly growing significance. Second, the acquisition of the sea bottom by coastal nations has created inequalities between them, depending on their relative degree of technical development as well as on their geographical circumstances. The drawing of boundaries separating their respective shelves can aggravate or diminish these inequalities.

In the evolution of United Nations peacekeeping, the United. Nations Emergency Force, which was created in 1956 and withdrawn from the Middle East in 1967, is of special importance. The UNEF is now the archetype for peacekeeping based on the “consent” of the state on whose territory a United Nations force is stationed; and this concept of consent has become the central characteristic of United Nations peacekeeping. It has been the heart of the peacekeeping capacity that has devolved on the General Assembly acting through its “Uniting for Peace” procedure, and it has been a primary element in the legal and political foundation of peacekeeping forces authorized on the basis of Security Council resolutions.

The purpose of this article is to bring up to date the present writer’s previous article on “The Depositary of International Treaties” published in this Journal, in the light of the deliberations of the United Nations Conference on the Law of Treaties in 1968 and 1969 and the changes there made in the texts. The relevant provisions now appear as Articles 76, 77 and 78 of the so-called Vienna Convention on the Law of Treaties, corresponding to Articles 71, 72 and 73 of the draft articles on the law of treaties of the International Law Commission.

Professor Louis Henkin and the National Petroleum Council are well known for their disparate views regarding the present extent of national jurisdiction of the coastal states over their Continental Shelves under the 1958 Geneva Convention on the Continental Shelf and also regarding the desirability of amending that Convention.

As recently as the beginning of this century, there was little correlated development of water resources; each use was implemented separately without regard to possible conflict with other uses and sometimes to the detriment of other basin states. When technological advances increased the benefits possible from multipurpose projects and spurred planning and utilization of water resources, it became clear that optimum development required a basin-wide approach. Most basin-wide planning and execution, however, have been in national, as opposed to international, basins, such as the Tennessee (U.S.), the Damodar (India), the São Francisco (Brazil), the Cauca (Colombia), the Volta (Ghana) and the Snowy Mountains (Australia). When a river basin crosses international boundaries, unified planning and development have been more difficult to achieve. Often the approach has been piecemeal, with treaties providing for specific projects at designated sites, covering some but not all potential uses, or including only a portion of a river basin. In some instances, political difficulties have made comprehensive co-ordinated development impossible, as in the Jordan basin, or have required a physical division of the rivers, as between India and Pakistan in the Indus basin.

In his policy statement of November 25, 1969, on chemical and biological warfare, President Richard M. Nixon declared that the Administration would ask the Senate for advice and consent to the ratification of the Geneva Protocol of 1925. At the same time, the President reaffirmed the renunciation by the United States of “the first use of lethal chemical weapons” and extended “this renunciation to the first use of incapacitating chemicals.” With regard to biological weapons, the President renounced the use of all biological weapons and methods of warfare, declared that the United States would confine its biological research to defensive measures, and ordered the Defense Department to make recommendations for the “disposal of existing stocks of bacteriological weapons.” On February 14, 1970, the President extended the ban on biological weapons to include toxins.

The Security Council resolution of November 22, 1967, seems to provide for a satisfactory solution of the Middle East controversy, and it is difficult to see how there can be a satisfactory settlement except on the basis of the principles on which that resolution is based. The preamble of that resolution states three fundamental principles.

The Statute of the Permanent Court of International Justice did not contain a clause regulating the procedure for its amendment. This was considered to be a “gap,” an “unfortunate lacuna.” This “gap” may or may not have been deliberate. It was certainly not a “genuine” gap. In spite of the absence of a provision on amendments, the law provided a clear though inconvenient answer to the question of how the Statute could be amended, namely, by unanimous consent of all parties to it. In 1928 proceedings for the introduction of some amendments were initiated. They were incorporated in a Protocol of Amendment in 1929. The difficulties which were encountered before the Protocol of Amendment entered into force in 1936 are now history and need not be dealt with here, the less so as they have been described in considerable detail in a recent book. The Protocol of Amendment did not remedy this defect of the original Statute. As Hudson has explained, this was due to the fact that the adhesion of the United States was proposed on condition that the Statute “shall not be amended without the consent of the United States.” Such a position could hardly be accorded to the United States unless it were also maintained for the other states which were parties.

On Sunday evening of March 31, 1968, millions of Americans watched President Lyndon Johnson announce a major bombing halt in the hostilities in Viet-Nam and his intention not to seek re-election as President. At the same time a reception was being held in the United States Ambassador’s official residence in Mexico City in honor of Vice President Hubert Humphrey, who took leave from the many guests to listen to the President’s address.