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The Attitude of New States Toward the International Court of Justice

Published online by Cambridge University Press:  22 May 2009

Ibrahim F. I. Shihata
Ibrahim F. I. Shihata
Affiliation:
Lecturer in International Law, Ain Shams University, Cairo.
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Extract

Although much has been written on the attitude of new states toward international law in general, little concern has been given in contemporary literature to the attitude of these states toward the judicial machinery of international law and its principal organ, the International Court of Justice (ICJ). Writings on the new states' attitude toward international law are also, on the whole, theoretical and general in character to the extent that they could be described as analyses of what this attitude could or should be rather than what it is in fact. Typical of these writings is Brierly's statement that some of the new nations “at least are inclined to look on international law as an alien system which the Western nations, whose moral or intellectual leadership they no longer recognize, are trying to impose upon them”—an outlook which suggests at best an indifferent attitude toward the Court whose primary function is to apply this (alien) system of law. As a result, it has been said that the new states' attitude toward the Court is an indirect manifestation of their rebelliousness against the present system of international law or, at least, an example of their consciousness of the sovereignty they have recently acquired.

Type
Articles
Information
International Organization , Volume 19 , Issue 2 , Spring 1965 , pp. 203 - 222
Copyright
Copyright © The IO Foundation 1965

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References

1 For a selected bibliography on the newly independent states and international law, see Abi-Saab, Georges, Carnegie Endowment Conference on the Newly Independent States and International Law, Report of the Conference, Geneva, October 9–3, 1963 (Geneva: Carnegie Endowment for International Peace, 1964), pp. 29–46.Google Scholar

2 See instances in Anand, R. P., “Attitude of the ‘New’ Asian-African Countries Toward the International Court of Justice,” International Studies (New Delhi), 07 1962 (Vol. 4, No. 1), pp. 119–132Google Scholar; Julius, Stone, “The International Court and World Crisis,” International Conciliation, 01 1962 (No. 536), pp. 36–37Google Scholar; and Jenks, C. Wilfred, The Prospects of International Adjudication (London: Stevens and Sons, 1964), pp. 149–150.Google Scholar

3 Brierly, James L., The Law of Nations (6th ed., Waldock; London: Oxford University Press, 1963), p. 43.Google Scholar

4 See, for example, the draft resolution submitted by Syria, Security Council Official Records (3rd year), 340th meeting, July 27, 1948, pp. 33–34.

5 See the suggestion of Muhammad Zafrullah Khan (Pakistan), Security Council Official Records (4th year), 426th meeting, May 24, 1949, p. 28.

6 See the draft resolution submitted by Egypt in Security Council Official Records (6th year), 555th meeting, August 27, 1951, p. 16.

7 Some of the requests for advisory opinions submitted to the International Court were made partly through the efforts of new states, e.g., the active role of Liberia in the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization case.

8 Thirty-seven declarations are listed as being in force in International Court of Justice, Yearbook 1962–1963 (Leyden: A. W. Sythoff, 1963), pp. 237–259Google Scholar. The declarations of Uganda on October 3, 1963, and of Turkey on March 19, 1964, were made after the publication of the Yearbook. If the declaration of Paraguay of May 3, 1933, is considered to be still in force, the total number of declarations will then be 40.

9 Compare, for example, the declaration of India of September 14, 1959, with the declaration of the United Kingdom of November 26, 1958. (International Court of Justice, Yearbook 1959–1960 [Leyden: A. W. Sythoff, 1960], pp. 241–242 and 254–255 respectively.)Google Scholar

10 After France had dropped on July 10, 1959 (Ibid., p. 240), the self-judging reservation of its declaration of February 18, 1947 (International Court of Justice, Yearbook 1948–1949 [Leyden: A. W. Sythoff, 1949], p. 141)Google Scholar, both India and Pakistan followed suit, the former in its declaration of September 14, 1959, and the latter in its declaration of September 12, 1960 (International Court of Justice, Yearbook 1960–1961 [Leyden: A. W. Sythoff, 1961], pp. 210–211).Google Scholar

11 See International Court of Justice, Yearbook 1962–1963 (Leyden: A. W. Sythoff, 1963), pp. 260–271.Google Scholar

12 See details of the information provided above and names of states subscribing to conventions conferring jurisdiction on the Court in Status of Multilateral Conventions in Respect of Which the Secretary-General Acts as Depositary, UN Document ST/LEG/3, Rev. 1.

13 See International Court of Justice, Yearbook 1962–1963 (Leyden: A. W. Sythoff, 1963), p. 272.Google Scholar

14 See Ibid., pp. 274–327.

15 Signed at The Hague on November 2, 1949. (United Nations Treaty Series, 1950 [Vol. 69, No. 894].) See especially, Articles 15 and 19 of the Union Statute, Ibid., pp. 214, 216.

16 See Security Council Official Records (6th year), 559th–565th meetings, October 1–19, 1951.

17 See, for example, Article 14 of the Constitution of Madagascar (April 29, 1959, as amended on June 28, 1960, and June 6, 1962); Articles 38, 40, and 44 of the Constitution of Mali (September 22, 1960, as amended on January 20, 1961); Article 95 of the Constitution of Dahomey (December 19, 1963, approved by referendum on January 5, 1964); and Article 69 of the Constitution of Togo (May 5, 1963).

18 Thus, Professor B. Boutros-Ghali (United Arab Republic) has correctly concluded that: “It appears that Western scholars are more enthusiastic to see a ‘new approach’ on the part of the Afro-Asians than the Afro-Asians themselves.” (Round Table on the Teaching of International Law Relations, Final Report of the Round Table, Singapore, January 13–16, 1964 [Singapore: Limited publication, 1964], p. 56.

Adherence to traditional international law was also manifested by the other Asian scholars participating in this Round Table. See, for example, statements by Professors Rao (India), Sucharitkul (Thailand), Tabata (Japan), Kim (Korea), and Nadaja (Ceylon) in Ibid., pp. 57–59. Reports submitted by participants showed also that Western or Western-styled law books are used for teaching international law in these countries and that “there is no noticeable tendency among students to regard international law as a product of Western civilization.” (Ibid., pp. 68, 113, 133, and 209.) Compare these views with Western writers such as Röling, B.V.A., International Law in an Expanded World (Amsterdam: Djambatan, 1960)Google Scholar; Stone, , International Conciliation, No. 536, pp. 36–44Google Scholar; and The writings of such Western scholars are sometimes quoted by authors from new states to express discontent with contemporary international law.

19 See, for example, statements by Mr. el-Erian (United Arab Republic), Mr. el-Khouri (Syria), and Mr. Pal (India) in Yearbook of the International Law Commission 1957, UN Document A/CN.4/Ser.A/1957/Add.1, Vol. II, pp. 161, 169, 158. See also, Yearbook of the International Law Commission 1959, UN Document A/CN.4/Ser.A/1959, Vol. 1, p. 151; and Yearbook of the International Law Commission 1960, UN Document A/CN.4/Ser.A/1960, Vol. 1, p. 264. And see generally, Radhabinod Pal, “Future Role of the International Law Commission in the Changing World,” United Nations Review, September 1962 (Vol. 9, No. 9), pp. 29–34.

20 See, for example, the statement of the Algerian delegate, General Assembly Official Records … Second Committee (17th session), p. 332; and the statement of the Tunisian delegate, General Assembly Official Records … Sixth Committee (17th session), pp. 227–228.

21 For the importance of the economic factor and, in particular, the debtor position of new states, see Stone, , International Conciliation, No. 536, pp. 36–44Google Scholar; and Lissitzyn, Oliver J., “International Law in a Divided World,” International Conciliation, 03 1963 (No. 542), pp. 45–49Google Scholar. For the importance of cultural differences, see Wright, Quincy, “The Influence of New Nations of Asia and Africa upon International Law,” Foreign Affairs Reports, 03 1958 (Vol. 7, No. 3), p. 38Google Scholar; and Northrop, F. S. C., The Taming of the Nations (New York: Macmillan, 1952), pp. 80–81Google Scholar. For other psychological considerations, see Jessup, Philip, The Use of International Law (Ann Arbor: University of Michigan Law School, 1959), p. 107Google Scholar; and Sohn, Louis B., “Proposals for the Establishment of a System of International Tribunals,” International Trade Arbitration: A Road to World-Wide Cooperation, ed. Martin, Domke (New York: American Arbitration Association, 1958), p. 64Google Scholar. See, in general, Anand, R. P., “Role of the ‘New’ Asian-African Countries in the Present International Legal Order,” American Journal of International Law, 04 1962 (Vol. 56, No. 2), pp. 383, 393–404.CrossRefGoogle Scholar

22 For example, in the Lotus Case before the Permanent Court of International Justice (PCIJ) (PCIJ Publications, 1927 [Series A, No. 10]) and in the Fisheries Case (United Kingdom v. Norway) before the International Court of Justice (Fisheries Case, Judgment of December 18, 1951: I.C.J. Reports 1951, pp. 116–206).

23 See, for example, Röling, , International Law in an Expanded World, pp. 68–86Google Scholar; Lissitzyn, , International Conciliation, No. 542, pp. 49–57Google Scholar; Abi-Saab, , Carnegie Endowment Conference on the Newly Independent States and International Law, pp. 12–47Google Scholar; and Georges, Abi-Saab, “The Newly Independent States and the Rules of International Law,” Howard Law Journal, Spring 1962 (Vol. 8, No. 2), pp. 95, 102–118.Google Scholar

24 The broad principles of contemporary international law are undoubtedly of greater value to weaker and small states. Examples can be found in the principles of sovereignty and nonintervention, in the prohibition of aggression and the use of force, as well as in the rules of freedom of the high seas, respect of the neutrality of nonbelligerents, punishment of war crimes and crimes against humanity, etc. On the other hand, many of the situations detrimental to the interests of smaller powers (e.g., colonial status, capitulations) are now in the process of complete liquidation. Thus, the argument that traditional international law was made for the European powers and the foreign traders and investors can hardly be relevant now.

25 See, in general, Schwebel, Stephen M., “The United Nations and the Challenge of a Changing International Law,” Department of State Bulletin, 05 20, 1963 (Vol. 49, No. 1247), pp. 785–789Google Scholar; and Shihata, Ibrahim F. I., “International Conferences and the Rule of Law,” Revue des Sciences Juridiques et Economiques, 01 1963 (Vol. 5, No. 1), pp. 13–41.Google Scholar

26 See Document 661, IV/I/50, Documents of the United Nations Conference on International Organization (New York: United Nations Information Organizations, 1945), Vol. 13, pp. 224–227Google Scholar; Document 759, IV/I/59, Ibid., pp. 246–251. Egypt, Iran, and Liberia were among the fourteen small states which, in Committee IV/I (Judicial Organization: International Court of Justice) of the Conference, opposed the optional clause system and called for compulsory jurisdiction. (Ibid., pp. 246–251. 266.) Other new states accepted the optional clause system only to prevent a stalemate.

27 For the effect of the Court's judicial character on its approach in handling disputes submitted to it, see Shihata, Ibrahim F. I., The Power of the International Court to Determine Its Own Jurisdiction. Compétence de la Compétence (The Hague: Martinus Nijhoff, 1965), pp. 206–239.CrossRefGoogle Scholar

28 Judge A. H. Badawi (United Arab Republic) has been on the bench of the International Court since its establishment. His third term will end in 1967. Judges Isaac Forster (Senegal) and Muhammad Zafrulla Khan (Pakistan) were elected recently for terms ending in 1973. Judge V. K. Wellington Koo (China) will serve until 1967 and Judge K. Tanaka (Japan) until 1970.

29 Compare the Court's opinion in the Reservation to the Convention on Genocide case (Reservations to the Convention on Genocide, Advisory Opinion: I.C.J. Reports 1951, pp. 15, 24–28) with the report of the International Law Commission covering the work of its third session (General Aasembly Official Records [6th session], Supplement No. 9, pp. 2–8). See also, the Court's judgment in the Fisheries Case (Fisheries Case, Judgment of December 18, 1951: I.C.J. Reports 1951, pp. 116–206).