Page 26 - Law of Peace, Volume ,

Pam 27-161-1

sions of international courts, opinions of public organiza- existing international norms. For many years, these states
tions, and scientific writings cannot be sources of interna- have urged that public international law, in its present
tional law, although they may influence its application and form, is a product of Western European and North Arner-
interpretation." 132 This position is said to be confirmed ican states and thus formulated on the concepts of co-
by paragraph 1(d) of Article 38 of the Statute of the I.C.J.: lonialism, capitalism, and Christianity. Several reasons
Article 38(d) of the Statute of the International Court of Justice in- have been offered as the underlying basis for the above
cludes legal decisions as auxiliary means of determining Rules of Inter- stated view. Some have suggested that such an attitude
national Law. A court, in particular the International Court, does not merely reflects the difference in the values associated with
make law, but applies existing law. . . . mhe International Court's ap- distinctive cultural traditions. However, this view has met
plication and interpretation of a legal Rule are biding only upon the
parties to the given dispute and only concern the particular case in ques- with vigorous opposition, typified in this statement by
tion. 133 Friedmann:
Nevertheless, it is conceded that decisions of the Court An artitkid inflation of cultural distinctiveness in the field of interna-
and treatises ". . . have a very great importance in stating tional relations and law is more than just a harmless exercise in hy-
pocrisy and narcissism .. . It does no real service to the development of
the existence or lack at a given period of Rules of Interna-
international law. 136
tional Law." 134 b. As evidence of the fact that cultural differences play
f. Central to the general Soviet approach to the sources
of international law are the positivist insistence upon the a minimal role in the evolving states' approach toward in-
ternational law, attention is called to the impact European
agreement of states as the sole means of formulating inter- concepts have had on the judicial systems of these coun-
national legal norms, and the concept of the law of
peaceful coexistence as jus cogens. This approach permits tries. It has been observed that, as most evolving states
resistance to "hostile" international legal principles on the existed as part of a colonial Europe prior to the ascendancy
basis of either the lack of Soviet, or, in the peaceful coex- of their own inherent cultures, there was little or no
istence context, socialist consent, or of conflict with the cultural resistance to European teachings and concepts.
principles of peaceful coexistence. The "agreement theo- Accordingly, the cultures of the various evolving states
ry" is principally relied upon in defending against Western currently reflect a significant number of European values.
views that the "general principles" referred to in para- These countries still retain European educators, utilize
graph 1(c) of Article 38 of the Statute of the I.C.J. are, in European texts and employ European administrative
addition to treaties and custom, a source of international techniques and procedures. Moreover, most of these
states' municipal judicial systems are based almost entirely
law.
on either Franco-German (Civil Law) or Anglo-Ameri-
g. The purpose of the preceding discussion has been to
can (Common Law) systems of jurisprudence. 137
give the reader a brief analysis of the Soviet view of inter-
c. Rather than cultural differences, the reason most
national law. As each of the chapters which follow is dis- generally 138 cited as the substantive basis for the current
cussed, it will be essential to bear in miid the different attitude of the evolving states toward international law is
Soviet approach toward many of the legal concepts con- the sigdicant degree of disparity which exists between the
tained therein. Although largely self-serving, this ap- economic and social development of these states and that
proach is currently of primary importance, and, for
reasons spoken to above, it has proven to be most attrac- of the more developed and industrialized countries. There
tive to, although not completely accepted by, evolving do exist, in fact, other factors which contribute to the at-
states throughout the world. titude of evolving states toward current international
1-15. The Evolving States' View Toward International norms. There is an inherent suspicion of developed states
Law. a. The basic attitude of evolving states has been and "their law" as a result of long colonial experiences.
summarized as follows: Additionally, the generally united front shown by
developed states when a challenge is posed to a "tradi-
Most African States tend to view present rules of international law pri-
marily as a product of the practice of Western States and not necessarily tional concept of international law" tends to generate a
reflecting the common interest of all states. They are unwilling to have uniformly adverse reaction on the part of the evolving
their disputes settled by these standards but are prepared to have them countries. 139 However, it is the fact that these states are,
settled by standards to which they have themselves agreed in new con- more or less, at the same stage of economic development
ventions. In this connection they regard the International Court of and consequent political weakness that brings most Latin .
Justice as an institution so predominately fffled with European judges
American, Asian, and African states together in collective .
that they cannot expect to receive a fair deal. 135
opposition to many of the current international legal
This statement accurately reflects the prevailing attitude of
most evolving states toward the great majority of currently 136. Friedmann, supra note 68, at 324. .:
137. T.Elias, Africa and The Development of International Law 23
132. Mezhdunarodnoe Pravo, supra note 85, at 82. (1968).
133. International Law, supra note 123, at 13.
138. It would be imprudent to identify a single cad& for the current
'34. Id.
attitude of evolving states toward existing internationdiaw.
"5. Z. Cervenka, The Organization of African Unity and its
139. 0.Lissitzyn, International Law Today and Tomorrow 102-105
Charter 91 (1968). (1965).