Page 23 - Law of Peace, Volume ,

Pam 27-161-1

the relationships desired among socialist states and be- 1-14. Soviet Sources of International Law. a. The basic
tween socialist and capitalist states, the Soviets feel a prac- concepts of the Soviet view of international law having
tical and ideological need to distinguish between these been reviewed, attention will now be focused on what the
relationships. This desire to differentiate generates con- Soviet Union considers to be the true sources of this
cern over whether such a fragmentation of the interna- jurisprudence. The Soviet Union is a party to the Statute
tional legal order may result in a reduced area of operation of the International Court of Justice and presumably is
for the law of peaceful coexistence. In short, this law must bound by the traditional sources of international law
be fragmented in the Soviet interest without destroying enumerated in Article 38: treaties, international custom,
.the overall claim of universality. 92 and general principles of law. Notwithstanding Article 38,
b. Confronted with a task of this nature, the Soviets however, there is, under the Soviet view, a single source
have "amended" the concept of universality of the law of of all international legal norms: the agreement of states.
ppacefid coexistence by stating that it is composed ". . .of Thisview limits the formal sources of international law to
socially different components, . . . general international treaties, where agreement of the parties is expressed, and
law, the princ$les and norms which have a general demo- to those customary principles which have been agreed to
cratic nature9+d socialist principles and norms that have and, then, only as to states which have agreed and so long
come into being or are coming into being in the relations as they continue to agree. 99 Treaties are considered the
between the countries of the world system of social- principal source of international law, favored over
Qm." 93 Thus, in the Soviet view, contemporary interna- customary norms because of the unambiguous character
tibnal law is comprised of two basic principles which are of the consent of the party states. 100 The broader
mutually exclusive in their operation. These concepts, coverage of Article 38 of the Statute of the I.C.J. is ex-
peaceful coexistence and socialist internationalism, regu- plained on the ground that it enumerates legal principles
late international relations between socialist and non- to be applied by the Court, and not the sources of interna-
socialist states and among socialist states inter se, respec- tional law. 101
tively. 94 Such a departure from universality is rationalized b. Treaties: The Charter of the United Nations. In the
as. follows: Soviet view, all treaties establish norms in the sense that
Socialist international law does not contradict general international biding obligations are created by the parties. If valid as
law: rather, in reflecting the special nature of the relations between international legal enactments, treaties may confi exist-
socialist states, it broadens and deepens the democratic character of ing law, develop it further, create new norms, or eliminate
general' international law. 95 outdated ones. 102
Socialist principles and norms relate to the principles and norms of
general international law as a new and higher quality does to an older (1) The Soviets single out the Charter of the United
quality. While they incorporate positive factors and go further than the Nations as the most important piece of international legis-
principles and norms of general international law is assuring friendly lation because it embodies the principles of peaceful coex-
relations among states, the socialist principles and norms do not conflict istence. This document is described as ". . . the charter of
with general international law. 96 contemporary international law, its most important
.. . [Tlhe existence of principles of socialist internationalism and
other socialist principles and norms in the relations between countries of source." 103 Using the Charter as a point of departure, the
the socialist system in no way contradict the needs of a general intema- Soviets are active proponents of codification asa means of
tional law. 97 implementing and developing the law of peaceful coex-
c. Tunkin, the foremost Soviet international legal spe- istence. The United Nations is expected to assist in and
cialist, has introduced a changed concept of universality serve as the forum in this struggle for codification. 104
designed to meet the needs of the Soviets in this area. (2) Bilateral agreements still appear to be preferred
over multilateral treaties, presumably due to the greater
.. .mhe basic principles of contemporary international law are bid-
ing and states cannot establish in their bilateral or regional multilateral influence and situational control inherent in the negotia-
relationships norms which would conflict with the basic principles. tion of the former. 105 There is, however, a growing ap-
Nevertheless, states can create principles and norms biding upon a preciation of the compensating advantages of multilateral
limited number of states, if these principles and norms do not conflict agreements, both within the socialist commonwealth and
with the mentioned basic principles, especially if they go further than in dealing with capitalist states. As a result, Soviet treaty
these principles of general international law in furthering friendly rela-
tions and securing the peace. Such are the international legal principles
of socialist internationalism. 98 99. Mahdumrodnoe Pravo, supra note 8'5, at 19. It is said that the
key element in the biding nature of international custom is the consent
92. B. Ramundo, Peaceful Coexistence 19 (1 967). of the state concerned.
93. Lissitzyn, supra note 76, at 21-22. 100. Id. at 19 and 79.
94. Id. 101. P. Lukin, Istochniki Mahdunarodnovo Praw [Sources of In-
95. Mahdunarodnoe Pravo, supra note 85, at 9. It?r~ti0~/
hd 52-55 (1960).
9-5. Tunkin, supra note 80, at 26. Tunkin's rationale reflects the 102. G. Tunkin, supra note 86, at 66-72.
dialectical approach to the process of legal development. 103. Chkhikvadze, supra note 82, at 71.
97. Ushakov and Meleshko, Novyi Uchebnyi Kurs Mahdumrod- 104. Mezhdumrodnoe Pravo [Inlernatioml Lad 41 (F. Kozher-
novo Praw [The New Text on Inler~tiomlhuj, 10 SGIP 154 (1964). nikov ed. 1964).
98. G. TUNKIN, supra note 86, at 325. 105. E. Mc Whinney, supra note 71, at 66-68.