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achieved an independent status. are made. 151 Additional support for the consensual basis
c. As evidenced by these criticisms leveled at a large of international law is found in the writings of several con-
portion of current international norms, evolving states temporary publicists. The views of these individuals are
consider the continued existence and enforcement of the typified by the following:
present international legal system to be a denial of the In doctrine, the retreat, since the latter part of the 19th century, from
emergence of former colonial countries. As a result, the law of nature ideas and the increasing acceptance, especially in this
developed states are said to still be able to impose their country, of theories basing the law upon consent of States, though in
will upon weaker members of the world community. In one way retrogressive and calculated to enhance the importance of State
sovereignty, did, in another way, help to release the forces of change
the words of one spokesman, ". . . the rules now in force
and development. 152
were established, not merely without reference to small
states but against them, and were based almost entirely on 1-18. Sources and Evidences of International Law: the
the unequal relations between great powers and small Evolving States' View. a. Sources.
(1) Treaties. As does the Soviet Union, evolving
states." 148
1-17. Legal Basis of the Evolving States' Approach. a. states view international agreements as the most viable
Thus far, attention has been focused primarily on the and acceptable source of international jurisprudence.
policy objections of the evolving states toward traditional Reasons given for such a view are the immediate avail-
international law. These states also offer a legal basis for ability of the texts of treaties for examination and the fact
their claimed right to pick and choose among the tradi- that these agreements are binding only upon those states
tional concepts of international law which most affect which expressly consent to them. 153 Upon gaining their
them. Initially, emerging countries contend that they had independence, colonial states generally assert the right to
no opportunity to participate in the formulation of the cur- pick and choose those treaties to which they will suc-
rently existing traditional international norms. Under the ceed. 154 For the most part, these countries have chosen
colonial rule of European states from the 18th to the mid- to succeed to the vast majority of treaty obligations incur-
dle of the 20th century, they were unable either to oppose red by their former colonial masters. 155 However, many
or to support traditional rules of international jurispru- of these states urge that the voluntary nature of their con-
dence. With this in mind, these states call attention to the sent to assume these obligations, an element essential to
fact that international law is generally regarded to be con- the validity of such assumptions, is subject to debate.
sensual in nature, with its authority dependent upon its These countries contend that, in order to gain their final
recognition and acceptance by those international entities independence, they were forced to grant exclusive eco-
which it seeks to bind and control. 149 This position nomic privileges and to sign unequal treaties of military
regarding the necessity for consent is said to be specifically alliance with their former colonial rulers. This, they con-
support by the Permanent Court of International Justice in tend, is the underlying basis for their strong support for
the S.S. Lotus Case. In this decision, the tribunal the doctrine of Rebus sic stantibus. 156
declared: (2) Custom. Evolving states generally view custom-
ary international law as too vague and inadequate for the
International law governs relations between independent states. The purposes of the expanded international community and
rules of law binding upon states therefore emanate from their own free
will as expressed in conventions or by usages generally accepted as ex- focus attention on the fact that there exists considerable
pressing principles of law and established in order to regulate the rela- disagreement between publicists and courts as to the mah-
tions between these two coexisting independent communities or with a ner in which customary norms are formulated and
view to the achievement of common aims. Restrictions upon the inde- defined. Nevertheless, the contention is made that the
pendence of states cannot therefore be presumed. 150
b. In further support of this consent doctrine, George 151. Saab, supra note 149, at 102-103. '
M. Abi Saab contends that the sociological school of 152. R. Jennings, The Progress of International Law 91 (1960).
153. This view conflicts, of course, with the Western European and:
thought which bases international obligations on the will North American states' approach toward the relationship between
of the community best accommodates the views and in- treaties and customary international law, Le., that treaties simply codify-
terests of the evolving states. As these states now form a ing customary norms are binding on even nonsignatory states. See iqfra,
large part of the international community, he urges that chap. 8.
through their cooperative will they can make a substantial 1-54. Involved here is a specific aspect of international law known as
"state sumssion." This generally refers to the transfer of tenitory from
contribution to international law and that this is the moral one state to another and may be viewed in terms of a change in
basis upon which the current demands of these countries sovereignty or in international status. See irlfra, chap. 7. State succes-+
sion with regard to international agreements is analyzed in detail in in-
148. Statement of Luis Padilla Nervo, Mexican member of the fra, chap. 8.
I.L.C., before the International Law Commission, I INT'L L. COMM. 155. F. Okoye, International Law and The New qfrican States
Y.B. 155 (1956). 46-48 (1972).
149. Saab, The Newly Independent Smtes and the Rules of Interna- 156. Saab, supra note 149, at 108. Rebus sic stanlr$us (changed cir-
tional Law, 8 HOW. L. J. 102 (1962). See also, Castaneda, supra note cumstances) is a principle of treaty law which may seM as a legal basis
146, at 38. for terminating or withdrawing from an international agreement. For a
150. Case of the S. S. "Lotus," [I9271 P.C.I.J., ser A, No. 9. more complete analysis of this concept, see irlfra, chap. 8.