Colleagues, students and admirers of Professor Nathan Feinberg take pleasure and pride in presenting this issue of the Israel Law Review to the great Maître on his 90th birthday, as a small token of our gratitude. We respect Professor Feinberg for his vast and deep knowledge in international law in general; we admire him for his particular expertise and contributions in the study of legal problems related to the Jewish people, to the Zionist cause and to the State of Israel; and we are grateful to him for the leading role he played in the establishment of the first faculty of law in this country, at the Hebrew University in Jerusalem.

Nathan Feinberg was born in Kovno on June 6, 1895. His aptitude for learning was such that the severe numerus clausus did not prevent his admission to the Russian high school, from which he graduated with distinction in 1914. At the same time he was given a Jewish and Hebrew education privately. He then proceeded to the Faculty of Law of the University of Zurich, from which he graduated magna cum laude in 1918.

There are two aspects to a treaty. On the one hand, it constitutes a procedure, an operation whereby several minds meet and, if necessary, meet again to review, amend or even abolish the commitments contained in the treaty; on the other hand, it describes and establishes rights and duties, defines individual situations, or lays down general rules. In the language of continental jurists a treaty is at the same time a “legal transaction” and a “collection of norms”. Consequently, it is possible to distinguish in the articles of the treaty between those containing provisions pertaining to the mechanism of the legal transaction, which may be termed its “operational rules”, and those containing rules of content, which may also be called—to borrow from the language of private international law—“rules of substantive law”.

During 1985, the Belgian political climate was suddenly disturbed by the announcement of the installation of 16 cruise missiles on the soil of the peaceful city of Florennes. In comparison with the world-wide concern about what the proliferation of intermediate range nuclear weapons means for world peace, the debate which took place in Belgium concerning 16 missiles could seem somewhat ridiculous. However, this debate appeared to us to represent a growing state of mind becoming widely felt in Western Europe, and it contains sufficient legal aspects to make it the object of this present article by which we join in honouring our eminent colleague and friend, Prof. Nathan Feinberg.

On the 12th of December 1979, the North Atlantic Council unanimously adopted the “double decision”. On the one hand, this decision dealt with the installation of 572 nuclear missiles in Western Europe and, on the other, with the intensification of negotiations with the USSR, with the aim to reach agreement on the reduction of armaments.

The political attacks being mounted today against international organisation—the United Nations General Assembly, and especially UNESCO—are paralleled by some differences and challenges to the International Court of Justice, and this on the part of some of the Court's erstwhile most enthusiastic supporters. It used to be almost an act of political faith for Western, or Western-influenced, para-professional legal associations, meeting in the immediate post-War era and up to the 1960s, to reaffirm their support for the principle of international adjudication as the prime method of peaceful settlement of international disputes, and for the acceptance by all States of the compulsory jurisdiction of the World Court as the most affirmative and concrete way of demonstrating their endorsement of that principle. It was once a key element in the instructions of Western delegations to international legal conferences to insist upon the primacy of judicial settlement in any formal legal affirmation of the principle of peaceful settlement and in any listing of the alternative modes of its exercise.

The early Russian literature on international law was largely produced by diplomatic practitioners in the course of, or in supplementation of, their official duties. The most celebrated example, regarded as the first original Russian work on international law in the Russian language, is P. P. Shafirov's discourse on the just causes of the war between Sweden and Russia, Razsuzhdenie kakie zakonnye prichiny ego Tsarskoe velichestvo Petr Pervym…k nachatiiu voiny protiv Korolia Karola 12, Shvedskogo 1700 godu imel… (Spb., 1717). Translated into English and German, the Tsar intended that all Europe should understand Russia's legal pretensions against Charles XII of Sweden through Shafirov's book and himself edited the final text and contributed the conclusion. At Imperial behest two further Russian editions were printed in 1719 and 1722 in thousands of copies.

Our concepts and values are part and parcel of a philosophy broader than law, according to the expression used by Justice Robert Jackson in his description of the place of the Supreme Court as a unit in the complex and interdependent scheme of the democratic system of government. Drawing from the multitude of conceptions and ways of thought which characterize the Weltanschauung of the protagonists of a system of law based on the belief in the rights of the individual and in the rule of law, I would like to mention three aspeots and dwell on two of them in some detail. The first is represented by the evolutionary approach in the interpretation of the law; the second aspect is the permanent concern for judicial independence, and the third is transmuted into the ongoing mission of the court to enable human beings, as such, to confront the problems created by the effacing effects of modern society. The three above-mentioned aspects are separate but, in my opinion, not only do they overlap when we try to classify the phenomena representing them, but they are at least co-related and often even interdependent. Let us turn first of all to what I termed the evolutionary approach.

Reviewing the history of the Permanent Court of International Justice and of the International Court of Justice from 1922—the World Court, a convenient but possibly misleading expression which embraces both the Permanent Court from 1922 to 1945 and the present International Court of Justice established as an integral part of the United Nations since—four clearly separated periods can be discerned. They run from 1922 to 1931, 1932 to 1940, 1946 to 1966, and from 1967 onwards.

The establishment of the League of Nations and the Permanent Court after a cataclysmic war in Europe and the awe-inspiring Russian Revolution released a wave of euphoria upon the exhausted and war-weary peoples of what is now known as Western Europe, and they placed great hopes in the new League and Court.

The individual human being is manifestly the object of every legal system on this planet, and consequently also of international law. The ordinary subject of international law is the international corporate entity: first and foremost (though not exclusively) the State. Yet, the corporate entity is not a tangible res that exists in reality, but an abstract notion, moulded through legal manipulation by and within the ambit of a superior legal system. When the veil is pierced, one can see that behind the legal personality of the State (or any other international corporate entity) there are natural persons: flesh-and-blood human beings. In the final analysis, Westlake was indubitably right when he stated:

That is to say, in actuality, the international rights and duties of States devolve on human beings, albeit indirectly and collectively. In other words, the individual human being is not merely the object of international law, but indirectly also its subject, notwithstanding the fact that, ostensibly, the subject is the international corporate entity.

The Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, convened by the Swiss Federal Council, held four sessions in Geneva during the years 1974–1977. On 8 June 1977, the Conference adopted by consensus two Protocols Additional to the Geneva Conventions of 12 August 1949, the first relating to the protection of victims of international armed conflicts (Protocol I), and the second relating to the protection of victims of noninternational armed conflicts (Protocol II).

The states invited to the Conference were all the states Parties to the Geneva Conventions of 1949, and such states non-Parties as were members of the United Nations. 126 states were represented at the first session, 121— at the second, 106—at the third and 109—at the fourth.

The practice of omitting withdrawal clauses from the constituent treaties of many international organizations was highlighted by Nathan Feinberg in his article on “Unilateral Withdrawal from an International Organization”, acknowledged as “…the most thorough study of the subject”. In a detailed study of both State Practice and La Doctrine, Feinberg drew the conclusion

The role of the United States as midwife in the Israeli-Egyptian peace process has become a familiar one in recent years. Indeed, the local protagonists have all but taken for granted that their own peacemaking efforts would be catalyzed and reenforced by the United States. The pattern of American involvement has since 1975–76 had a dual aspect: American personnel have been permanently stationed in Sinai, and U.S. assurances have been extended to the parties (especially to Israel) as inducements to the acceptance of painful concessions.

The American presence in Sinai, when initiated in 1975–76, was minimal both in terms of its numbers and its functions. Fewer than 200 U.S. civilians operated the Sinai Field Mission, an early warning system in the strategic Giddi and Mitla mountain passes, whose purpose was to complement the functions of the UN peacekeeping force in the Sinai (the UN Emergency Force or UNEF II).

The second half of the twentieth century is witnessing a tremendous development of the concept of international organizations as “subjects” of international law. These “subjects” are endowed with international legal personality and with powers—express or implied—to achieve their declared objectives.

The corner-stone to this new edifice was erected as long ago as 1949 by the International Court of Justice in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations. The Court examined the purposes and principles set out in the Charter of the U.N. and concluded

The entrance of Israeli forces into Lebanon in June 1982 (“Operation Peace for Galilee”) raises far-reaching legal issues that transcend this particular occurrence. One of the issues raised in this context is the legality of the use of armed force by a State to counter terrorists directing their attacks against its citizens from the territory of another State. Israel considered the action it took against the Palestine Liberation Organization (PLO) in Lebanon to be legitimate self-defence, directed not against the territorial integrity of Lebanon, but rather against the armed PLO terrorists operating from it against Israel. Others viewed Israel's actions as aggression, and Israel as an invader violating Lebanon's sovereignty. This invasion, it was asserted, was contrary to international law.