Page 27 - Law of Peace, Volume ,

norms. In the words of L.C.Green: which they are reluctant to accept. 143 However, these
. . . the economically underdeveloped countries may indeed modify cer- countries are generally critical of three characteristic
tain parts of the law of nations drastically. Rinciples of state respon- features of this law. 144
sibility, compensation for interference with the property and economic (1) The traditional system of international law has
interests of foreign investors may undergo profound transformation as a been concerned primarily with creating immunities and
result of this horizontal widening and the inclusion of groups of nations establishing limits upon territorial authority. These con-
in different phases of development. This, however, is not caused by any
inherently uniaue characteristic of Asian or African civilition as much cerns were simply a consequence of the increasing depend-
as it is a product of a phrase of development through which many, if not ence of the world's developed states upon international
all, nations pass at some time or another. 140 trade and investment. Accordingly, the traditional rules of
international law were designed to regulate the respon-
d. As evidenced by the preceding discussion, a growing
sibility of the territorial sovereign toward alien interests
number of evolving states are of the belief that present
rules and concepts of international law do not meet the and were formulated solely by those states which had
needs of developing countries. Yet, these same states are common interests to be protected around the world.
quick to urge that their intent is not to reject international These rules of law are no longer applicable to the current
law as a whole: world situation, as emerging states have a completely
different set of interests to be protected and advanced.
The underdeveloped nations today by no means reject the entire body
of international law. On the contrary, they take a most active part in the (2) The traditional system of international law sanc-
work of many international organizations, including that of the Interna- tioned the use of force as a legitimate means of achieving
tional Law Commission. . . . The fact that they should strive to alter as national policy goals. Thus, the powerful and developed
many of the existing rules of international law that are deterirnental to states could legitimately resort to war in order to force
their state of development as possible is natural and in no way different their wiU and policies on weaker countries. Evolving
from the entire history of international law. 141
states, unable to function as equal sovereigns in this en-
This basic conflict of interests between developed and vironment, thus demand a sped~c and complete prohibi-
evolving states presents one of the most diff~cult problems tion on all forms of unilateral use of force and the
currently confronting the international community. Thus, development of a more equitable legal procedure by
in order to more fully appreciate the above stated attitude which to settle international disputes. 145
and interests of the latter countries, it is essential to focus (3) The traditional system of international law was
attention on their views toward specik aspects of tradi- developed in the context of the 1885 Congress of Berlin,
tional international law. which sanctioned the division and colonialization of
1-16. Inequitable Features of the Traditional System of Africa, and the Congress of Vienna, which sanctioned the
International Law. a. As noted above, the evolving concept of "balance of power" and recognized the
states demand that traditional international norms be supremacy of the states which formed the Concert of
revised in order to respond to the needs of the entire in- Europe. 146 Accordingly, this system of law ignores the in-
ternational community, i.e., to be responsive to the new terests of the less developed, and therefore politically
weak states of the world, and endorses the colonial system
factual situation in which they must be applied:
of domination. 147 This particular feature of the traditional
It is not the primary function of international law in the second half of international legal system has, quite naturally, aroused the
the twentieth century to protect vested interests arising out of an inter- hostility of former colonial states which have now
national distribution of political and economic power which have ir-
revocably changed, but to adjust conflicting interests on a basis which 143. The task of identifying each and every rule of traditional inter-
contemporary opiion regards as sufficiently reasonable to be entitled to national law which evolving states are reluctant to accept would be ar-
duous, if not impossible, for a number of reasons. These states prefer to
the organized support of a universal community. 142
reject rules as they arise in spedic cases of controversy, rather than
Evolving states maintain that the currently existing ineq- creatinga list of rules they fmd unacceptable. Secondly, it would be most
uitable rules of international law should be revised in dficult to specifically identify the traditional legal norms considered to
be currently in force and universally biding. Finally, some evolving
light of their present needs and thereby given a much
states may choose to accept certain traditional norms which other
more definable and objective legal character. If, they con- emerging countries reject out of hand. Acceptance or rejection is largely
tend, this is not done, then they should be permitted to dependent upon the national interests of the state concerned.
144. Falk, The InternationalLegal Order, 8 HOW.L. J. 145 (1962).
pick and choose among legal rules which were developed
145. This demand has been met for the most part by the U.N.
before they became fully independent states. Charter and the S ~ I prohibition against the unauthorized use of
C
b. No attempt is made by evolving states to specifically force contained therein. Evolving states are, nevertheless, sensitive to
the traditional right of intervention, i.e., intervening to either protect
identifl each and every rule of traditional international law and evacuate one's nationals or in response to a request by a state
engaged in a legitimate right of self-defense against external aggression.
140. Green, ,I$w States, Regionalism and International Law, 5 146. Castaneda, The Underdeveloped Nations and the Development
CAN. Y. B. INT~L. 119 (1967). of International Law, 15 INT'L ORG.38 (1961).
141. Friedmann, supra note 68, at 324. 147. B. Roling, International Law in an Expanded World 69-74
142. C. Jenks, The Common Law of Mankind 85 (1958). (1 960).