¹ McWhinney, E., Judge Shigeru Oda and the Progressive Development of International Law: Opinions (Declarations, Separate Opinions, Dissents) on the International Court of Justice, 1976–1992, Vol. 1 of The Judges (1993).Google Scholar

² See e.g., McWhinney, E., Judicial Settlement of International Disputes: Jurisdiction, Justiciability and Judicial Law-Making on the Contemporary International Court (1991) (hereinafter McWhinney, Judicial Settlement)CrossRefGoogle Scholar; McWhinney, E., The International Court of Justice and the Western Tradition of International Law (1987) (hereinafter McWhinney, Western Tradition)Google Scholar; McWhinney, E., The World Court and the Contemporary International Law-Making Process (1979) (hereinafter McWhinney, Law-Making Process).Google Scholar

³ McWhinney, E., Judge Shigeru Oda and the Progressive Development of International Law 7 (1993).Google Scholar

⁴ See, e.g., Bullock, A., Hitler: A Study in Tyranny (1962)Google Scholar; Erikson, E. H., Gandhi’s Truth on the Origins of Militant Nonviolence (1969)Google Scholar: See Fauez, Jean Claude, Une Maison Impossible: Le CICR les deportations et les camps de concentration nazis (1988)Google Scholar, especially at 38–39 et seq.

⁵ See, e.g., Freud, S. and Bullitt, W. C., Thomas Woodrow Wilson, Twenty-Eighth President of the United States: A Psychological Study (1967)Google Scholar; George, A. L. and George, J. L., Woodrow Wilson and Colonel House (1956).Google Scholar

⁶ Professor McWhinney would presumably disagree, since he thinks that suspicions of “Cold War-induced concealed ideological bases within the Court’s ranks” were “irrational and ill-founded … at the time and [seem] even more so in retrospect.” See McWhinney, supra note 3 at 98.

⁷ Other intellectual traditions developed comparable insights. Marx, for example, insisted on more contextuality and the Frankfurt School, incorporating Freud’s insights, also looked to the personality variable.

⁸ See, e.g., Erikson, supra note 4; Erikson, E., Young Man Luther: A Study in Psychoanalysis and History (1958)Google Scholar; Freud, S., Leonardo daVinci:A Psychosexual Study of an Infantile Reminiscence (Brill, AA., trans., 1916).Google Scholar

⁹ See Llewellyn, K. N. and Hoebel, E. A., The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence 28–29 (1941)Google Scholar

¹⁰ McWhinney, supra note l at 22.

¹¹ Ibid., 96.

¹² Ibid., 10. This reviewer is not familiar with Japanese jurisprudence, but is informed that there were major differences in approaches between Yokota and Taoka. Taoka was a socio-historicist whereas Yokota was a disciple of Kelsen and sought to minimize the influence of these factors. For an authoritative discussion of the different international legal schools in Japan in this period, see Onuma, Y., “Japanese International Law in the Postwar Period: Perspectives on the Teaching and Research of International Law in Postwar Japan” (1990) 33 Japanese Annual of International Law.Google Scholar

¹³ Ibid., 17.

¹⁴ Benedict, R., The Chyrsanthemum and the Sword: Patterns of Japanese Culture 24 (1946).Google Scholar

¹⁵ See Benedict’s interesting comments on the behaviour of Japanese prisoners of war: ibid., 40–41. For McDougal’s essay, see McDougal, and Schlei, , “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security” (1955) 64 Yale LJ. 64.CrossRefGoogle Scholar

¹⁶ Nathan, J., “Translator’s Note” in Kenzaburo, Oë, A Personal Matter 8 (1968)Google Scholar. For a moving depiction of a child’s life at the time of Japan’s surrender, see Oë, K., “The Day the Emperor Spoke in a Human Voice,” New York Times (May 7, 1995) (Magazine) 103.Google Scholar

¹⁷ Ibid., viii.

¹⁸ Indeed, still occurs: see Atkinson, R., “Germans Still Grapple with Apocalypse of 145,” International Herald Tribune (May 8, 1995), at 6:4–8.Google Scholar

¹⁹ Indeed, Judge Oda himself has expressed curiosity on this. In a protocol visit to the International Law Commission in its 1995 session, Judge Oda observed that it was curious that he was virtually always in lone dissent. “Bien que l’esprit de contradiction ne soit pas un trait de sa personnalité, c’est un fait que dans l’exercice de ses fonctions de juge, il lui arrive souvent de se trouver minoritaire, ce qui l’a conduit à rediger de nombreuses opinions dissidentes ou individuelles.” UN Doc. A/CN.4/SR.2412 (July 11, 1995).

²⁰ Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v. France) (l995) I.C.J., 288 (Order of Sept 22) (declaration of Judge Oda).

²¹ McWhinney, supra note 1 at 23.

²² Hart, H. L. A., Jhering’s Heaven of Concepts and Modem Analytical Jurisprudence, in Wieacker, Franz and Wollschlager, Christian (eds), Jherings Erbe 68 (1970).Google Scholar

²³ McWhinney, supra note 1 at 89; see ibid., 23.

²⁴ See Falk, R. A., “Casting the Spell: The New Haven School of International Law,” (1995) 104 Yale LJ. 1991, 1997.CrossRefGoogle Scholar

²⁵ Consider, in this regard, his doctoral dissertation, which conceives of the oceans as a resource in classic McDougal fashion, but then proceeds in a manner that is distinctively not McDougal. See Oda, S., The Riches of the Sea and International Law (1953) (unpublished J.S.D. dissertation, Yale Law School).Google Scholar

²⁶ Gunther, G., Learned Hand: The Man and the Judge (1994).Google Scholar

²⁷ McWhinney, supra note 1 at 96.

²⁸ PCIJ Documents concerning the Action taken by the Council of the League of Nations under Article 14 of the Covenant, p. 38, cited in Continental Shelf (Tunisia v. Libyan Arab Jamahiriya), (1981) I.C.J. 23, 29 (Apr. 14) (separate opinion of Judge Oda).

²⁹ SirJennings, Robert, The Role of the International Court of Justice in the Development of International Environmental Protection Law, cited in East Timor (Port. v. Austl.) (1995) I.C.J., 90 (June 30) (separate opinion of Judge Ranjeva).Google Scholar

³⁰ For elaboration, see Reisman, W. M., “International Lawmaking: A Process of Communication” (1981)75 Proc. Am. Soc’y Int’l L. 101.Google Scholar

³¹ UN Charter, Art. 13(1).

³² See Doc. 2, G/7(p), 3 UNCIO Docs 404 (1945); see also Doc. 42, P/10, 1 UNCIO Docs. 369 (1945) (statement by chairman of Ecuadorian Delegation, Apr. 30, 1945).

³³ The Chinese proposals of May 1, 1945, called for “[t]he Assembly [to] be responsible for initiating studies and making recommendations with respect to the development and revisions of the rules and principles of international law.” Doc. 1, G/1(a), 3 UNCIO Docs. 24 (1945). When Committee II/2 met on May 9 to consider what would become Article 13, it approved the Vandenberg (U.S.) proposal, drawn from amendments offered by the four sponsoring powers, that “ [t]he General Assembly should initiate studies and make recommendations … for the encouragement of the development of international law.” Doc. 203, II/2/8, 9 UNCIO Docs 21–22 (1945). Despite this vote, the committee reopened the issue on May 21 to consider four questions posed by Subcommittee II/2/A, see Doc. 416, II/2/A/3,9 UNCIO Docs 345–47 (1945). The committee now approved the Assembly’s powers to initiate studies and make recommendations for both the “codification” and “revision” of international law. Doc. 507, II/2/22, 9 UNCIO Docs 69–70 (1945).

Thus, on June 5, Subcommittee II/2/B met to consider the language approved on May 9, taking into account the vote of May 21. The subcommittee apparently agreed that “codification” merited a separate reference but debated whether the “development” language of the Vandenberg proposal adequately covered “revision.” Two formulations were considered. Version A, which received five votes, gave the Assembly the power to initiate studies and make recommendations “for the codification of international law, the encouragement of its development, and the promotion of its revision.” Version B, which gathered three votes, gave such power “for the encouragement of the progressive development of international law and for its codification.” Both versions were advanced to Committee II/2. Doc. 795, II/2/B/11, 9 UNCIO Docs 423–24 (1945).

On June 7, the full Committee II/2 met yet again to consider the language to be inserted. Proponents of Version A argued that “development,” even coupled with the term “progressive,” did not necessarily imply the power to revise, which the committee had clearly approved on May 21, while supporters of Version B maintained that “ ‘[progressive development’ would establish a nice balance between stability and change, whereas ‘revision’ would lay too much emphasis on change.” By a vote of 28–8, the second alternative was approved. Doc. 848, 11/2/46, 9 UNCIO Docs. 177–78 (1945).

Subsequently, the Coordinating Committee laconically noted the tortured history of the passage: “This particular phrase had represented a considerable compromise in the Committee.” WD 292, CO/119, 17 UNCIO Doc. 100 (1945).

³⁴ See Doc. 848, II/2/46, 9 UNCIO Docs 177–78 (1945).

³⁵ Fleischhauer, Carl-August, “Article 13,” in Simma, Bruno (ed.), The Charter of the United Nations: A Commentary (1994).Google Scholar

³⁶ See supra note 33.

³⁷ Professor McWhinney once preferred to characterize the process of international lawmaking, as “dialectical” because “to talk, for scientific-legal purposes, of a ‘progressive development’ of international law is either to lend oneself to a conscious semantic confusion or else to engage, in the end, in professions of rival political faiths”: McWhinney, , Law-Making Process, supra note a at 1.Google Scholar

³⁸ See Statute of the International Law Commission and Other Resolutions of the General Assembly Relating to the International Law Commission, UN Doc. A/CN.4/4, at 4–6 (1949) (Arts 16–18); Fleischhauer, supra note 35 at 269. But see Report of Committee on the Progressive Development of International Law, GAOR (II) 6th Comm., Annex I, at 178 (1946) which, perhaps more realistically, acknowledged that the distinction between the two activities could not be “rigidly maintained in practice.” Nor, one may add, is the distinction of practical importance, for the ILC’s oeuvre must always be approved by the Assembly and then referred to States for their approval for it to become law.

³⁹ Continental Shelf (Tunis, v. Libyan Arab famahiriya) (1982) I.C.J. 18, 23 (Feb. 24) (Article I of Compromise).

⁴⁰ See Egypt-Israel Arbitration Tribunal: Award in Boundary Dispute Concerning the Taba Area (1988) 27 I.L.M. 1421 (Award of Sept. 29, 1988).

⁴¹ McDougal, M. S. et al., “Nationality and Human Rights: The Protection of the Individual in External Arenas” (1974) 83 Yale L.J. 900.CrossRefGoogle Scholar

⁴² As does Switzerland: “A défaut d’une disposition légale applicable, le juge prononce selon le droit coutumier et à défaut d’une coutume, selon les règles qu’il établirait s’il avait à faire acte de législateur.” Ce. Art. 1 (Switz.). But, significantly, the last paragraph of Art. 1 obliges the judge performing this role to be guided by appointed legal doctrine and case law, suggesting that a more limited supplementation rather than an extensive revision is contemplated.

⁴³ Northern Cameroons (Cameroon v. U.K.) (1963) I.C.J. 15 (Dec. 2).

⁴⁴ McWhinney, Judicial Settlement, supra note 2 at xv.

⁴⁵ Ibid., 106 (noting that the success of candidates is tied to geographic and legal-systemic origins and the degree of commitment to “progressive development of international law”): ibid., 31, 99.

⁴⁶ Ibid., 114–15. Professor McWhinney makes it plain that the representation of different groups is central to the election of judges to the International Court, and he thinks that the success of those efforts for adequate representation makes “the International Court judges’ claims to constitutional-legal legitimacy in the exercise of such a new, community policy-making role … at least as great as those of any of the great national, Special Constitutional Courts … of our times”: ibid., xv.

⁴⁷ Fisheries (United Kingdom v. Norway) (1951) I.C.J. 116 (Dec. 18).

⁴⁸ Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) (1982) I.C.J. 4 (Feb. 20).

⁴⁹ North Sea Continental Shelf (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) (1969) I.C.J. 3 (Feb. 20).

⁵⁰ See, e.g., McWhinney, E., Supreme Courts and Judicial Law-Making (1986)Google Scholar; McWhinney, E., Comparative Federalism (1965).Google Scholar

⁵¹ McWhinney, , Judicial Settlement of International Disputes, supra note 2 at 91.Google Scholar

⁵² Lasswell, H. & McDougal, M. S., Jurisprudence for a Free Society: Studies in Law, Science, and Policy 591 ff. (1992)Google Scholar. See also Reisman, W. M., “The Tormented Conscience: Applying and Appraising Unauthorized Coercion” (1983) 32 Emory Law J. 499Google Scholar; Reisman, W. M., A furisprudence from the Perspective of the Political Superior, Siebenthaler Lecture, Chase College of Law, Northern Kentucky University (March 2, 1995) 23 Northern Kentucky Law Review 603 (1996).Google Scholar

⁵³ McDougal, M. S. et al., The Interpretation of International Agreements and World Public Order (1994).Google Scholar

⁵⁴ McWhinney, supra note 1 at 92.

⁵⁵ Of course, when Professor McWhinney describes the process of discovering international law, he does so in a subtle and nuanced way; but despite his own language, he seems to disregard whether the “principal actors affected” truly have accepted and acted on legal propositions later declared law by the Court. See McWhinney, Western Tradition, supra note 2 at 144–46.

⁵⁶ McWhinney, supra note 1 at 94.

⁵⁷ Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening) (1992) I.C.J. 351, 733 (Sept. 11).

⁵⁸ Interpretation of the Agreement of Mar. 25, 1951 Between the WHO and Egypt (1980) I.CJ. 73, 153 (Dec. 20).

⁵⁹ Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie(Libyan ArabJamahtriya v. U.K.) (1992) I.C.J. 3, 17 (Order of Apr. 14) (declaration of Judge Oda).

⁶⁰ Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal), (1991) I.C.J. 53, 81 (Nov. 12) (separate opinion of Judge Oda).

⁶¹ Application for Review of Judgment No. 333 of the United Nations Administrative Tribunal (1987) I.C.J. 18, 83 (May 27) (separate opinion of Judge Oda).

⁶² Application for Review of Judgment No. 273 of the United Nations Administrative Tribunal (1982) I.C.J. 325, 389 (July 20) (separate opinion of Judge Oda).

⁶³ Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) (1981) I.C.J. 3, 23 (Feb. 24) (separate opinion of Judge Oda).

⁶⁴ Continental Shelf (Libyan Arab Jamahiriya v. Malta) (1984) I.C.J. 3, 90 (Mar. 21) (dissenting opinion of Judge Oda).

⁶⁵ Military and Paramilitary Activities (Nicaragua v. U.S.) (1984) I.C.J. 215, 220 (Order of Oct 4) (separate opinion by Judge Oda).

⁶⁶ Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras: Nicaragua Intervening), supra note 57 at 619

⁶⁷ Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. U.S.) (1982) I.C.J. 3, 10 (Order of Jan. 20) (declaration of Judge Oda).

⁶⁸ See McWhinney, supra note 1 at 33–37.

⁶⁹ Fisheries (U.K. v. Norway) (1951) I.C.J. 116 (Dec. 18); see Reisman, W. M. and Westerman, G. S., Straight Baselines in International Maritime Boundary Delimitation (1992).CrossRefGoogle Scholar

⁷⁰ Continental Shelf (Tunisia v. Libyan Arab Jamahiriya) (1982) I.C.J. 18, 270 (Feb. 24) (dissenting opinion of Judge Oda). 71 Border and Transborder Armed Actions (Nicaragua v. Honduras) (1988) I.C.J. 6g, 109 (Dec. 20) (separate opinion of Judge Oda).

⁷² Certain Phosphate Lands in Nauru (Nauru v. Australia) (1992) I.C.J. 240, 324 (June 26) (dissenting opinion of Judge Oda).

⁷³ Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v. France) (1995) I.C.J. (Order of Sept 22) (declaration of Judge Oda).

⁷⁴ Passage through the Great Belt (Finland v. Denmark) (1991) I.C.J. 12, 27 (Order of July 29) (separate opinion by Judge Oda).

⁷⁵ Maritime Delimitation and Territorial Questions between Qatar and Bahrain (1994) I.C.J. 112, 149 (July 1) (dissenting opinion ofjudge Oda).

⁷⁶ Ibid., 126.

⁷⁷ Maritime Delimitation and Territorial Questions between Qatar and Bahrain (1995) I.C.J. 6 (Feb. 15).

⁷⁸ Ibid., 40 (dissenting opinion ofjudge Oda).

⁷⁹ East Timor (Portugal v. Australia) (1995) I.C.J., 90 (June 30) (separate opinion of judge Oda).

⁸⁰ McWhinney, supra note l at 97.

⁸¹ Ibid., 106.

⁸² Ibid., 116.

⁸³ Ibid., 107 (internal citations omitted).

⁸⁴ Ibid., 106.

⁸⁵ Ibid., 108. This is a significant change because only two years earlier Professor McWhinney had written:

McWhinney, , Judicial Settlement, supra note 2 at 136.Google Scholar

⁸⁶ McWhinney, supra note 1 at 109.

⁸⁷ Ibid., 25.

⁸⁸ See supra note 73 and accompanying text.

⁸⁹ Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v. France) (1995) I.C.J. (Order of Sept. 22) (separate opinion of Judge Shahabuddeen).