Collection of Articles

Russian text

edited

by Grigory Tunkin, LL. D.

Progress Publishers Moscow

Translated from the Russian by G. Ivanov-Mumjiev

Designed by V. Yeryomin

CONTENTS

COBPEMEHHOE

nPABO

Page

PEACEFUL COEXISTENCE AND INTERNATIONAL LAW, by

G. /. TUNKIN................... 5

BASIC PRINCIPLES OF PRESENT-DAY INTERNATIONAL LAW,

by R. L. BOBROV...................56

INTERNATIONAL LAW IN RELATIONS AMONG SOCIALIST

COUNTRIES, by V. M. SHURSHALOV...........59

ABOLITION OF COLONIALISM AND INTERNATIONAL LAW, by

G. B. STARUSHENKO.................. 77

INTERNATIONAL LAW AND SOVEREIGNTY, by N. A. USHAKOV 97 INTERNATIONAL LAW AND THE U.N., by G. I. MOROZOV 118

THE DISARMAMENT PROBLEM IN INTERNATIONAL LAW, by

O. V. BOGDANOV...................141

Ha

SOURCES OF PRESENT-DAY /. /. LUKASHUK.....

INTERNATIONAL LAW, by

First printing 1969

HOW FOREIGN POLICY AND DIPLOMACY INFLUENCE THE ESTABLISHMENT OF INTERNATIONAL LAW RULES, by D. B. LEVIN....................1SS

RECOGNITION OF STATES AND GOVERNMENTS IN PRESENTDAY INTERNATIONAL LAW, by D. I. FELDMAN......204

NEUTRALITY IN PRESENT-DAY INTERNATIONAL LAW, by

L. A. MOJORYAN..................216

THE HUMAN RIGHTS PROBLEM IN PRESENT-DAY INTERNATIONAL LAW, by A. P. MOVCHAN............233

TECHNOLOGICAL PROGRESS AND TODAY, by M. I. LAZAREV . . .

INTERNATIONAL LAW ...........251

FUNDAMENTAL PRINCIPLES OF SPACE LAW, by G. P. ZI1UKOV 263

Printed in the Union of Soviet Socialist Republics

G. /. Tunkin, LL. D.

PEACEFUL COEXISTENCE AND INTERNATIONAL LAW

1. LENIN'S THESIS

ON THE PEACEFUL COEXISTENCE

OF SOCIALIST AND CAPITALIST STATES

Lenin's thesis on the peaceful coexistence of socialist and capitalist states is closely linked with the Marxist-Leninist theory of imperialism and proletarian revolution. Proceeding from the fact that capitalism was developing unevenly, Lenin proved that a socialist revolution could not take place simultaneously the world over, that at first it would occur in one or several countries and that, consequently, there would inevitably be a period when the socialist and capitalist states would exist side by side.

The question, then, was one of relations between the states of these two diametrically opposed social systems. The answer to this question was given in the theory of the proletarian revolution Lenin and the Communist Party had elaborated before the Great October Socialist Revolution of 1917. After the revolution the principles were further developed and implemented.

Rejecting Trotsky's idea of "permanent revolution" as "absurdly Left",^^1^^ Lenin was against ``pushing'' the revolution, against spreading it by force. Those who claimed that "the interests of the world revolution require that it should be given a push and that such a push can be given only by war"^^2^^ were "either madmen or provocateurs", Lenin said.

The peace policy of the proletarian state is predetermined by its class essence, by the nature of the socialist system.

~^^1^^ See Lenin, Collected Works, Moscow, Vol. 20, p. 346.

~^^2^^ Ibid., Vol. 27, p. 71.

It is always the people's blood that is spilled in wars, always the working masses that suffer most. And so, saying that "civil wars, i.e., wars waged by an oppressed class against the oppressor", and defensive wars were progressive in character, Lenin stressed that "Socialists have always condemned wars between nations as barbarous and brutal".^^1^^

The resolution adopted at the conference of the Russian Social-Democratic Labour Party organisations abroad, held in Berne from February 27 to March 4, 1915, stated that the future state of proletarian dictatorship would resort to war only "to safeguard the gains made by the victorious proletariat in the struggle against the bourgeoisie".^^2^^ The resolution passed by the Seventh All-Russia Conference of the Russian Social-Democratic Labour Party (Bolsheviks) in April 1917, pointed out that if the proletariat took over power in Russia it "would immediately and openly propose to all nations to conclude a democratic peace fully renouncing all annexations and indemnities".^^3^^

Accordingly, the Soviet state consistently followed the principle of peaceful coexistence in its foreign policy. In its Decree on Peace of November 8, 1917, it proclaimed predatory, aggressive wars to be "the greatest of crimes against humanity" and urged the belligerent states to stop the slaughter and immediately negotiate a just, democratic peace.^^4^^

The Communist Party of the Soviet Union has always proceeded from the Leninist thesis that the struggle between the states of the two systems will be decided by their economic competition and that in present-day conditions socialism exerts its influence on the world revolutionary process chiefly by its economic successes. Back in 1921 Lenin wrote: "We are now exercising our main influence on the international revolution through our economic policy.. .. The struggle in this field has now become global. Once we solve this problem, we shall have certainly and finally won

on an international scale. That is why for us questions of economic development become of absolutely exceptional importance. On this front, we must achieve victory by a steady rise and progress which must be gradual and necessarily slow.''^^1^^ This fully substantiates the thesis that peaceful economic competition is the decisive factor in the battle of the two systems.

Lenin thus regarded the Soviet state's policy of peaceful coexistence with the capitalist countries not as a transient policy dictated by capitalism's military and industrial superiority over socialism in those days but as a policy which best accords with the working people's interests and, consequently, with the principles of proletarian internationalism.

There was also the question of whether the capitalist countries would consent to peaceful coexistence with the socialist state, in other words, whether peaceful coexistence was possible as a state of relations between the socialist state and the capitalist states.

Lenin answered this question in the affirmative. The socialist state's peaceful coexistence with the capitalist countries was quite feasible, Lenin and the Communist Party held, and the developments have fully corroborated it.

Lenin did not preclude the possibility of wars between the states of the two systems. What is more, he then thought them inevitable. Delivering the Central Committee's report to the Eighth Congress of the Russian Communist Party (Bolsheviks) on March 18, 1919, he said: "We are living not merely in a state, but in a system of states, and it is inconceivable for the Soviet Republic to exist alongside the imperialist states for any length of time. One or the other must triumph in the end. And before that end comes there will have to be a series of frightful collisions between the Soviet Republic and the bourgeois states.''^^2^^

This and some of Lenin's other statements on this question have time and again been quoted by the opponents of peaceful coexistence to justify their claims that Lenin held the peaceful coexistence of the states of the two systems impossible and that, in his opinion, the new, socialist state would go to war against the capitalist states to spread social-

~^^1^^ Lenin, Collected Works, Vol. 21, p. 299.

~^^2^^ The C.P.S.U. in Resolutions and Decisions of Congresses, Conferences, and Plenary Meetings of the Central Committee, Part I, 7th (Russian) ed., 1953, p. 329. (In this book Russian sources are given in English.)

~^^3^^ Ibid., p. 337.

~^^4^^ U.S.S.R. Foreign Policy Documents, Vol. I, pp. 11-12.

~^^1^^ Lenin, Collected Works, Vol. 32, p. 437.

~^^2^^ Ibid., Vol. 29, p. 153.

ism by force.^^1^^ These allegations by the enemies of communism have been proved false by the facts.

Citing history, notably bourgeois revolutions and particularly the French bourgeois revolution in the 18th century, Lenin warned the Party and the Russian working class and people that the ruling classes in the capitalist countries would not leave the newly-born socialist state alone, that they would use every means, including military, in their attempt to destroy the new social system dedicated to the abolition of the private ownership of the instruments and means of production, which meant the liquidation of capitalist rule in Russia and heralded the end of the capitalist system in general. In his report on peace to the Second All-Russia Congress of Soviets, on the very first day after the victory of the October Revolution, Lenin said: "The governments and the bourgeoisie will make every effort to unite their forces and drown the workers' and peasants' revolution in blood."² The Seventh Congress of the Russian Communist Party (Bolsheviks), held in March 1918, said in its resolution on war and peace: "In the present, initial period of the era of socialist revolution repeated military incursions by the imperialist states (from West and East) against Soviet Russia are historically inevitable".^^3^^ This scientifically substantiated prediction, unfortunately, soon came true. Shortly after that the Soviet state was attacked by the armed forces of fourteen capitalist states.

The imperialists' attempts to strangle the young Soviet state, Lenin pointed out, could, and inevitably would, lead to military clashes between the states of the two systems in spite of the peaceful policy followed by the socialist state. Declaring himself in favour of an onerous peace with Germany because it would give Soviet Russia a breathing-space, Lenin foresaw that the imperialists would not leave the socialist state alone and that the Entente would turn against it as soon as it was through with Germany. Lenin spoke of

~^^1^^ See the statement made by Dominguez Campora of Uruguay at the 465th plenary meeting of the U.N. General Assembly on Dec. 2, 1953 (Official Records of the General Assembly. Eighth Session. Plenary Meetings, New York, p. 391) and the statement by Guillaume Georges-Picot of France at the Twelfth Session of the U.N. General Assembly (ibid., Twelfth Session, p. 273).

~^^2^^ Lenin, Collected Works, Vol. 26, p. 253.

~^^3^^ The C.P.S.U. in Resolutions and Decisions of Congresses, Conferences, and Plenary Meetings of the Central Committee, Part I, p. 404.

the ``self-defence'' of the proletarian state and urged the formation of armed forces. He appealed to the Party and the Soviet people to strengthen the country's defence potential.

The failure of the armed intervention against Soviet Russia, the consolidation of socialist power at home, the growth of the labour movement in the capitalist countries and its opposition to the intervention in Russia, and the economic interests of the ruling classes in these countries forced them to make peace with the Soviet state.

In November 1920 Lenin thus summed up the progress in the Soviet state's relations with the capitalist countries since its inception: "We ... have won conditions enabling us to exist side by side with capitalist powers, who are now compelled to enter into trade relations with us. ... We have something more than a breathing-space: we have entered a new period, in which we have won the right to our fundamental international existence in the network of capitalist states.''^^1^^

Warning against the danger of "new attempts at invasion",^^2^^ Lenin at the same time foresaw that the establishment and development of economic and diplomatic relations between the Soviet state and the capitalist countries were inevitable in these new conditions and that there was even a possibility of establishing friendly relations. Speaking at the Plenary Meeting of the Moscow Soviet on November 20, 1922, he said: "The road we are on is absolutely clearly and well defined, and has ensured us success in face of all the countries of the world, although some of them are still prepared to declare that they refuse to sit at one table with us. Nevertheless, economic relations, followed by diplomatic relations, are improving, must improve and certainly will improve.''^^3^^ Referring in that same year to Soviet Russia's relations with Britain and France, Lenin told the correspondents of the London Observer and Manchester Guardian: "We believe fully friendly relations with both powers to be quite possible, and that is our aim. We believe that the development of commercial relations will inevitably go a very long way towards achieving this aim. We believe

~^^1^^ Lenin, Collected Works, Vol. 31, p. 412.

~^^2^^ Ibid., Vol. 33, p. 152.

~^^3^^ Ibid., p. 436.

that the interests of Britain and France, rightly understood, will likewise operate in that direction.''^^1^^

In this Lenin proceeded from the fact that the imperialist powers' policy towards the Soviet state was not determined solely by the wishes of the imperialists. The will of a state in general, and the will of the ruling class in particular, is determined by diverse factors. In his Ludwig Feuerbach and the End of Classical German Philosophy, Frederick Engels wrote: "The will of the state is, on the whole, determined by the changing needs of civil society, by the supremacy of this or that class, in the last resort, by the development of the productive forces and relations of exchange.''^^2^^

Imperialist foreign policy, which embodies the will of the ruling class, is determined not only by the wishes of this class. The imperialists' urge to destroy the world's first socialist state was hardly weaker in 1921 or 1924 than in 1918. In spite of this, the capitalist countries gradually set out to establish relations of peaceful coexistence with the Soviet state, for the situation had changed. The armed intervention had failed, the internal situation in the socialist state was growing increasingly stable. There was also the pressure exerted by the working class in the capitalist countries on the governments' policy to reckon with. Of no little importance too was the interest shown by certain capitalist groups in trade with the Soviet state. "There is a force more powerful than the wishes, the will and the decisions of any of the governments or classes that are hostile to us," Lenin said. "That force is world general economic relations, which compel them to make contact with us.''^^3^^

Lenin's thesis on the peaceful coexistence of states of the two different social systems has been proved correct by the subsequent developments.

Since then the correlation of forces in the world has changed radically. There has emerged a world socialist system which is becoming a decisive factor in world development; there have appeared new independent states as a result of the collapse of the colonial system, and most of them are for peaceful coexistence; the capacity of the working class and the working masses in the capitalist countries

to influence their governments' policies has grown vastly, and the position of imperialism has become much weaker. The aggressive nature of imperialism has not changed but the fundamental change in the correlation of forces in the world has compelled the imperialist states to reckon with it in their foreign policy.

The ruling classes in the imperialist countries cannot but see that a war against the socialist camp would inevitably end up as a world thermonuclear war which would not spare the imperialists or their wealth. The new correlation of forces in the world and the new character of a war unleashed by the imperialists force sober-minded representatives of the ruling classes in the imperialist countries to take a different view of war and peaceful coexistence.

The C.P.S.U. has drawn important conclusions in the process of elaborating the Marxist-Leninist theory on the peaceful coexistence of the socialist and capitalist countries in the present conditions. The Marxist-Leninist thesis that wars will remain inevitable as long as imperialism exists was worked out at a time when imperialism was an allembracing world system, when the social political forces not interested in war were weak, not sufficiently well organised and, consequently, incapable of making the imperialists renounce war. Today, there are mighty social and political forces which dispose of powerful means to prevent the imperialists from starting a war. And so a world war is no longer inevitable.

A thesis on the possibility of preventing world wars and securing peace was adopted by representatives of the Communist and Workers' Parties as a common platform at their conferences in 1957 and 1960.

The C.P.S.U. Programme stresses that it is possible to banish wars from the life of society even before the complete victory of socialism on earth. "It is possible to avert a world war by the combined efforts of the mighty socialist camp, of the peace-loving non-socialist countries, the international working class and all the forces championing peace," the Programme says. "The growing superiority of the socialist forces over the forces of imperialism, of the forces of peace over those of war, will make it actually possible to banish world war from the life of society even before the complete victory of socialism on earth, with capitalism surviving in a part of the world. The victory of socialism

~^^1^^ Lenin, Collected Works, Vol. 33, p. 383.

~^^2^^ Marx and Engels, Selected Works, Vol. II, Moscow, 1962, p. 395.

~^^3^^ Lenin, Collected Works, Vol. 33, p. 155.

throughout the world will do away completely with the social and national causes of all wars. To abolish wars and establish everlasting peace on earth is the historic mission of communism.''^^1^^

The theory of peaceful coexistence has been further developed. From the viewpoint of general laws governing social development, the peaceful coexistence of states of two different social systems connotes both their struggle and cooperation. The struggle between states on account of their contradictions, which are rooted in the class contradictions of society, goes back to the inception of the state. It has been waged with diverse intensity. But it has never precluded co-operation between states, although its degree has not been the same at all times, being determined mainly by the level of development of international economic relations and, in the final count, by the level of productive forces.

If, because of the laws governing social development, relations between the socialist and capitalist countries must include both struggle and co-operation, then what is specific about these relations between states of the two systems which we call peaceful co-operation, and which it is the policy of the socialist states to secure?

First of all, it is the very nature of these relations that is specific. There were states with different social systems before and they too maintained relations, but those were relations between exploiter states. With the emergence of the Soviet socialist state and then the world socialist system, there appeared relations between states not only with different, but with diametrically opposed systems, between the old, capitalist states whose social system is based on the private ownership of the means of production and exploitation of man by man and the new, socialist states whose social system is based on the public ownership of the means of production and abolition of the exploitation of man by man. Never before in human history had there been such international relations.

Consequently, it is a question of peaceful coexistence of states not merely with different political systems but with different social systems.^^2^^ This is precisely what determines

the special character of peaceful coexistence in our day and the laws governing its development.

Peaceful coexistence as a state of relations between countries with different social systems means first and foremost that these relations are peaceful. At the same time, peaceful coexistence cannot be interpreted solely as peace, although international peace is the main element of peaceful coexist-

ence.

Peaceful coexistence includes a number of aspects characterising this state of relations between countries. On the other hand, international peace requires the observance of a number of conditions which are included in the concept of peaceful coexistence.

The concept of peaceful coexistence upheld by the Soviet Union has been outlined in the G.P.S.U. Programme which says that peaceful coexistence implies renunciation of war as a means of settling international disputes, and their solution by negotiation; equality, mutual understanding and trust between countries; consideration for each other's interests; non-interference in internal affairs, recognition of the right of every nation to solve its problems by itself; strict respect for the sovereignty and territorial integrity of all countries; promotion of economic and cultural co-operation on the basis of complete equality and mutual benefit.^^1^^

The C.P.S.U. Twenty-Third Congress, held in 1966, reaffirmed these principles of Soviet policy, but firmly stressed that they did not apply to relations between oppressors and the oppressed, between the colonialists and the victims of colonial oppression.

Peaceful coexistence requires states to renounce the use of arms in order to extend their social and political system and to solve any international problems and disputes. However, renunciation of armed struggle in relations between states (it is only natural for a state to employ arms in selfdefence in the event of an armed attack) is not tantamount to renunciation of any struggle. To demand that all states, especially socialist and capitalist, abstain from all struggle and competition is to demand the impossible.

While peaceful coexistence between socialist and capitalist states precludes their armed struggle it does not mean cessation of their economic, political and ideological struggle.

~^^1^^ The Road to Communism, Moscow, p. 505.

~^^2^^ See G. I. Tunkin, "Coexistence and International Law", Rccuell des cours de I'Academie de la Haye, Vol. 95 (1958), p. 6.

~^^1^^ See The Road to Communism, p. 506

The decisive factor in the struggle of states of the two systems is their economic competition. In securing the highest possible rates of economic development and in steadily improving their peoples' welfare standards, the socialist states prove that the new social system is superior to capitalism and show the peoples of all other countries what they must fight for.

Economic competition between the two systems presupposes their economic co-operation on the basis of equality and mutual advantage. No state can today isolate itself economically from other states. Economic co-operation between the socialist and capitalist countries benefits them all. But it would be wrong to interpret it as cessation of the struggle between the two systems. In this competition the socialist economic system, which conforms to the present level of development of the productive forces, is scoring one victory after another over the capitalist economic system, which retards the development of the productive forces.

Peaceful coexistence also implies a sharp political struggle between the forces of peace and the forces of aggression and war. At present this means first and foremost a struggle against the imperialist states' "positions of strength" policies and arms drive. The socialist states are striving for peace, for disarmament as the main means of securing peace, for the abolition of colonialism in all its forms and manifestations. They constantly expose the dangerous policies of the imperialists. Consequently, peaceful coexistence is a struggle against imperialism which precludes armed struggle but includes the struggle against the imperialists' aggressive policies and for peace---and, at the same time, it is cooperation in the interest of peace in the diverse fields of relations between the states of the two systems.

There is wide scope for both economic and political cooperation between states of the two systems. The most illustrative examples are the establishment of the United Nations, the peace treaties of 1947, the 1954 Geneva agreements on Indo-China, the 1962 agreement on the neutrality of Laos, the 1963 Moscow treaty on the partial ban of nuclear tests, conventions on international law issues (among them the 1958 Geneva Convention on the Law of the Sea, the Antarctic Treaty of 1959, and the 1961 Vienna convention on diplomatic relations), and so on.

Since peaceful coexistence does not preclude economic

and political struggle which continues, still less does it preclude ideological struggle. What distinguishes this latter struggle is that there is no place in it for any compromise or agreement as the socialist and the bourgeois ideologies are irreconcilable. Consequently, the Soviet state, which strives to promote peaceful coexistence, holds that in building interstate relations it is essential to proceed from points on which co-operation and agreement are possible and not from ideological differences.

Rejecting peaceful coexistence, which is directed against the "positions of strength" and cold war policies, the most reactionary elements in the West seek to discredit the very idea of peaceful coexistence and distort its very meaning. "It is my belief," Senator William F. Knowland declared in the U.S. Senate in 1954, "that the Soviet Union is advancing the Trojan horse of coexistence only for the purpose of gaining sufficient time to accomplish what they may term atomic stalemate.''^^1^^ Theodore C. Achilles, U.S. Special Assistant to the Under-Secretary of State for Political Affairs, said even after the C.P.S.U. Twenty-Second Congress, which had defined with utter clarity the import of peaceful coexistence, that "the phrase 'peaceful coexistence' must be considered strictly tactical. It is designed to delude the free world, to keep it off balance, to lull it into complacency, to inhibit the free world while preserving a free hand for the communist conspiracy.''^^2^^ And West German Foreign Minister Schroeder told the NATO Council on December 16, 1963, that peaceful coexistence was nothing but "an instrument Moscow employs to split the Atlantic alliance".^^3^^

American publicists Strausz-Hupe, Kintner and Possony affirm that peaceful coexistence serves "as a diversion for calming the West's suspicions and weakening its determination to provide for its defence".^^4^^

The Chinese dogmatists are now also rejecting the possibility of peaceful coexistence of states with different social systems. Preaching "no compromise", a slogan which Lenin severely criticised and which clearly negates peaceful

~^^1^^ U.S. News and World Report, Nov. 26, 1954.

~^^2^^ The Department of State Bulletin, Feb. 26, 1962, p. 325.

~^^3^^ L'Humanile, Dec. 17, 1963.

~^^4^^ R. Strausz-Hupe, W. R. Kintner and S. T. Possony, A Forward Strategy for America, New York, 1961, p. 265.

coexistence, they have no reasonable alternative policy to offer that would accord with the interests of the people. And that is not surprising, for in present-day conditions a policy negating peaceful coexistence can only lead to greater tension and eventually to war.

Attempts are not infrequently made to interpret peaceful coexistence merely as absence of war, as a parallel existence of states with diametrically opposed social systems between which there can be no co-operation. The American Branch of the International Law Association, for instance, has declared itself against peaceful coexistence because it allegedly implies a struggle for power rather than co-operation.¹ Francis Vallat, legal adviser to the British Foreign Office, speaking at King's College in London in January 1962, affirmed that from the Soviet point of view peaceful coexistence "did not mean friendly co-operation but prosecution of the Marxist class struggle by all means short of world war".^^2^^ And Prof. John Hazard of Columbia University claims that the Marxist concept of peaceful coexistence is related solely "to keeping the peace between two diametrically opposed economic systems" and the non-Marxists consequently prefer to use the term ``co-operation''.^^3^^

As we have already pointed out, the peaceful coexistence of states with different systems means both their co-operation and struggle. The allegation that it does not include interstate co-operation is at odds with the facts. The C.P.S.U. Programme says in black and white that peaceful coexistence implies "mutual understanding and trust between countries" and "promotion of economic and cultural co-operation on the basis of complete equality and mutual benefit".^^4^^

Co-operation between states implies a struggle. In relations between the states of the two systems it is a class struggle between capitalism and socialism on an international

~^^1^^ See Proceedings and Committee Reports of the American Branch of the International Law Association, 1961-62, N.Y., p. 72.

~^^2^^ The 'limes, Jan. 15, 1963.

~^^3^^ John N. Hazard, "Codifying- Peaceful Coexistence", The American Journal of International Law, Vol. 55 (1961), No. 1, pp. 111-12. Also see speeches in the Sixth Committee of the U.N. General Assembly of Belgian (807th session, Nov. 8, 1963) and Canadian (815th session. Nov. 20, 1963) deleg-ates.

'' 'The Road to Communism, p. 506.

scale. The class struggle between the two systems is an objective law, and this struggle will continue as long as there is capitalism. Peaceful coexistence, which presupposes normal and friendly relations between the states of the two systems, cannot by its class nature be anything but a form of class struggle between socialism and capitalism.^^1^^

Peaceful coexistence as a state of relations between countries is not a cut-and-dried formula. Peaceful coexistence in one period may differ considerably from peaceful coexistence in another, in breadth and depth of co-operation, stability, etc. In our day, peaceful coexistence---especially between states of the two diametrically opposed social systems ---differs very much from peaceful coexistence before the Second World War.

In the present conditions, peaceful coexistence of states of the two systems is more than just something that makes the development of human society possible. It is an objective necessity of which people are becoming increasingly conscious and which exerts a growing influence on international relations. A world thermonuclear war is fraught with mortal danger for human civilisation.

The development of productive forces leads to closer economic and other ties between states, and these ties are a major factor of peaceful coexistence. Lastly, the social forces standing for peaceful coexistence and opposing the policy of aggression and war---the socialist countries, most of the newly-independent states, and many other states and peoples striving ever more actively for peaceful coexistence as indispensable for human progress---are steadily gaining strength.

2. PEACEFUL COEXISTENCE AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW

Since international law is now universal, its development is influenced by the struggle and co-operation of states on a world-wide scale. This world system of relations reflects the present contradictions between the economic, political and legal systems, ideologies, etc., of different countries. International relations cannot be interpreted only as relations

Ibid.

2-495

between the states of the two diametrically different social systems, nor obviously can the contradictions arising in international relations be taken to mean only contradictions between the socialist and capitalist states.

Marxism-Leninism, however, always singles out the main contradiction. In our day, it is the contradiction between socialism and imperialism, between the world socialist and imperialist systems. And the growth of this contradiction is of decisive significance for the destinies of mankind. "In our epoch," says the declaration adopted by the Conference of Representatives of the Communist and Workers' Parties in 1957, "world development is determined by the course and results of the competition between two diametrically opposed social systems.''^^1^^ Consequently, the chief aim in the sphere of international relations is to ensure the peaceful coexistence of the socialist and capitalist countries.

Moreover, in its broad sense, peaceful coexistence means the peaceful coexistence of all states, irrespective of their social systems. It must naturally be borne in mind that the world socialist system is a system with new international relations of the highest type which, conforming to the requirements of peaceful coexistence, are based on higher principles---the principles of proletarian internationalism.^^2^^

Consequently, the development of contemporary international law should not be approached only from the point of view of peaceful coexistence of socialist and capitalist states but from the broader point of relations between all states. At the same time, it is necessary to stress once again that the peaceful coexistence of the socialist and capitalist states is a decisive factor.

Peaceful coexistence between states of the two systems, implying their struggle and co-operation, presupposes a certain degree of agreement between them. Without agreements and reasonable compromises on international issues peaceful coexistence is inconceivable. For there are only two ways of resolving international problems: negotiation and war. Peaceful coexistence means renunciation of war and settlement of all international disputes by negotiation and

~^^1^^ 'The Struggle for Peace, Democracy and Socialism, Moscow, p. 7.

- For details sec G. I. Tunkin, Theoretical Problems of International Law, p[>, 306-07. This work was published in Berlin in 1963 under the title of Volkerrecht der Gegenwart and in Paris in 1965 under the title of Droit international public. Problemes theoriques.

agreement. This also applies to international law. Since international law rules are established by agreement among the states, the coexistence of states of the two systems allows for the existence of general international law. The extent of peaceful coexistence of the socialist and capitalist countries in the final count determines the level of development of present-day international law.

Successes achieved in peaceful coexistence are an earnest of the further development of international law. The forces championing peace and peaceful coexistence are the forces that stand for the progressive development and consolidation of international law.

International law rules come into existence in the process of the states' intercourse and are the result of their openly expressed or tacit agreement. Each state upholds its own principles and follows its own line in international law, which may or may not coincide with that of other states. This line is part of its foreign policy. International law rules regulate interstate relations, affect the interests of states, and the international law line of each state naturally proceeds from the principles underlying its foreign policy in general and pursues the same aims as this policy.

The influence exerted by a state's own line in international law on the development of international law depends, first and foremost, on the nature of this line, on the nature of the international law principles the state advances and upholds. The development of international law is generally determined by the laws governing social development. The state which advances international law principles contrary to these laws, and consequently militates against the general course of development of international law and the peoples' aspirations, cannot hope to exert much influence on the establishment of international law rules.

The principles of peaceful coexistence accord with the laws governing social development in our day and with the peoples' interests, and are supported by all progressive forces. It is this that in the final count determines the decisive influence of the policy of peaceful coexistence on the development of international law.

In the establishment of international law rules, the ones to act from the positions of peaceful coexistence are the socialist countries, the newly-independent neutralist states, and certain capitalist states.

2*

19

IS .

There are naturally substantial differences in the foreign policies followed by all these states. A country's foreign policy is closely bound up with its home policy, it is its sequel, as it were. Foreign policy in general is determined first and foremost by the state's social system, by the class nature of the state. The above-mentioned states' policies have one thing in common: they are all directed at safeguarding international peace and promoting co-operation between states regardless of their social systems, and, consequently, they are policies of peaceful coexistence.

The states following a policy of peaceful coexistence in general stand for the progressive development of international law into an effective weapon of peaceful coexistence, for the strict observance of international law rules by all states.

The Soviet socialist state, a state of the new social system, has been following a policy of peaceful coexistence since its inception. In those days international law contained, along with democratic principles and rules directed at promoting friendly relations between states (respect for state sovereignty, equality, non-interference and other principles), some reactionary principles, standards and institutions which reflected and consolidated the system of national oppression, colonial plunder and imperialist brigandage (colonies, protectorates, unequal treaties, spheres of influence, consular jurisdiction, etc.).

The Soviet state's attitude to international law was formulated by Lenin on the very next day after the Great October Socialist Revolution. Concluding his report on peace on November 8, 1917, he said: "The secret treaties must be published. The clauses dealing with annexations and indemnities must be annulled. There are various clauses, comrades---the predatory governments, you know, not only made agreements between themselves on plunder, but among them they also included economic agreements and various other clauses on good-neighbourly relations.... We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these.''^^1^^

The Soviet state recognised all the democratic principles of the international law of those days, notably those con-

cerning the respect for state sovereignty, equality and noninterference, and abided strictly by them in its relations with other countries. Proceeding from the basic principles of its foreign policy, it refused to recognise the reactionary institutes of international law and persisted in its efforts to have them annulled.

At the same time, in striving to make international law an efficient instrument of peace, the Soviet state from the very beginning did everything to introduce new, progressive principles and rul-es into international law and have them universally recognised.

Today the Soviet Union and other socialist countries persevere in their stand for the progressive development of international law and its strict observance by all states. On the initiative of the socialist states and certain Afro-Asian countries, and despite the resistance of the Western Powers, the Fifteenth and Sixteenth U.N. General Assembly sessions discussed the basic principles of U.N. activity in developing and codifying international law and adopted important resolutions.

Resolution 1505, adopted by the Fifteenth General Assembly, pointed out that the work done on the codification and progressive development of international law would help promote "friendly relations and co-operation among states". The Fifteenth General Assembly adopted a resolution emphasising "the important role of codification and progressive development of international law with a view to making international law a more effective means of furthering the purposes and principles set forth in Articles 1 and 2 of the Charter of the United Nations" (Resolution 1686/XVI of December 18, 1961). The same resolution instructed the General Assembly's Sixth Committee to codify and work out the basic principles of contemporary international law.

The stand taken by the Soviet Union and other socialist countries in the discussion of the progressive development and codification of international law at the U.N. General Assembly, in the International Law and Human Rights committees, and at international conferences^^1^^ vividly testifies to their tireless efforts to improve international law as an instrument of peace and international co-operation.

~^^1^^ Lenin, Collected Works, Vol. 26, p. 255.

~^^1^^ The most important U.N. conferences on the codification and

The development of international law is increasingly influenced by the independent Afro-Asian and Latin American countries favouring peaceful coexistence. Like the socialist countries, they are for the progressive development of international law, and this is eloquently expressed in the Bandung Declaration of 1955, in the declaration adopted by the Conference of Non-aligned States in Belgrade in 1961, and in the declaration adopted by the Heads of State and Government of the non-aligned states at the Cairo Conference in 1964. The Cairo Declaration said "the conference recommends the U.N. General Assembly to adopt on the occasion of the Organisation's twentieth anniversary a declaration on the principles of peaceful coexistence. This declaration would be an important step towards the codification of these principles". The overwhelming majority of the new Afro-Asian states vigorously advocate the substitution of obsolete principles and rules in international law by new, progressive ones.

The international legal positions of the imperialist states are organically weak because, representing a moribund social system, these states resist the progressive development of international law dictated by the laws governing social development. The imperialist states, which pursue a "positions of strength" policy towards the socialist countries and a policy of economic and political interference in the internal affairs of the developing countries, fear the progressive development of international law. The old international law with its "state's right to war", "right to intervention", etc., suits the imperialists' policy much more.

However, imperialism has lost its positions and its influence is dwindling all the time. Present-day international law is developing under the ever-increasing influence of states standing for peaceful coexistence, under the influence of the world socialist system, the non-socialist countries and all progressive forces championing peace.

The bourgeois science of international law is incapable of explaining the progressive development of contemporary international law in the conditions where states with different social systems and ideologies exist side by side.

progressive development of international law in recent years were the Geneva United Nations Conferences on the Law of the Sea in 1958 and 1960, the Vienna Conference on Diplomatic Relations in 1961, and the Vienna Conference on Consular Relations in 1963.

Proceeding from the erroneous conception that law, including international law, is an expression of ideological community, and stressing that there is no such community between the socialist and capitalist countries, many bourgeois international jurists do not conceal their anxiety for the fate of general international law and even openly affirm that there is no basis for the existence of general international law.

West German Prof. Gerhard Leibholz claims that in order to speak of an "international law community" one must have "the minimum of community of world outlooks", and there is none of that at present.^^1^^

Prof. Frederik M. van Asbeck of the University of Leiden is of the opinion that "as long as the antagonism in fundamental convictions continues to divide the world, the road to an international legal order . . . lies barred".^^2^^

The thesis that general international law cannot possibly exist leads to the justification of the "positions of strength" and cold war policies. The proponents of these policies seek to justify them by claiming that agreements between the capitalist and socialist states are impossible and that force is the only language that should now be used in foreign affairs.^^3^^

This extreme point of view is shared by relatively few prominent bourgeois international jurists. Far more widespread is another, more moderate though similar view, according to which the emergence of the socialist countries and new Afro-Asian states has complicated the progressive development of common international law.

Prof. Ch. de Visscher holds that the rapid extension of the sphere of international relations, both "from the view-

~^^1^^ G. Leibholz, "Zur gegenwartigen Lage des VSlkerrechts", Archiv dcs Vdlkerrechts, 1 (1948-49), S. 415, and E. Kordt, " Weltherrschaftsstreben und Volkerrecht", Festschrift fur R. Laun, Gottingen, 1962, S. 199.

~^^2^^ F. M. van Asbeck, "Growth and Movement of International Law, 'The International and Comparative Law Quarterly, Vol. II (October 1962), p. 4, and K. Wilk, "International Law and Global Ideological Conflict", The American Journal of International Law, Vol. 45 (1951), pp. 657-70.

~^^3^^ At his press conference on October 16, 1957, the late John Foster Dulles, U.S. Secretary of State, said: "An agreement is a meeting of minds, and so far I do not know of any agreement which has reflected a real meeting of the minds. We may have agreed on the same form of words, but there has not been a meeting of the minds.''

point of the human communities taking part in them and the interests they embrace .. . weakens the homogeneity of the traditional community of law".^^1^^

U.S. Prof. Alwyn V. Freeman believes that the appearance of newly-independent states "has impeded, not advanced, the emergence of a mature code of conduct",^^2^^ that is, international law in general.

J. J. G. Syatauw of Indonesia says "it is true that the growing interdependence of the world may have a favourable influence on the development of world prescriptions,³ but this interdependence being principally of material rather than of ideological nature, will certainly not lead to the strengthening of the Christian principles of international law". He calls it a "weakening development.''^^4^^

These pessimistic estimates of the prospects of general international law rest on a false philosophical premise and do not take into account the new situation in the world.

To substantiate the thesis that law is an expression of ``community''---community of interests, community of ideologies, etc.---many bourgeois scholars assert that without definite human ``community'' there could be no law at all, and certainly no international law. There is no denying of course that without community of people the existence of human society and, consequently, law would be impossible. But that does not mean that this community has given rise to law, that it is its basis, that law is an expression of this community.

Marxism-Leninism shows that law, like the state, made its appearance as a result of the emergence of classes and class contradictions. In pre-class society, human communities were more homogeneous, yet there was no law. The existence of general international law and the possibility of its development are not determined by the community of ideologies. Socialist and bourgeois ideologies are irreconcilable. The peaceful coexistence of the socialist and capitalist

~^^1^^ Ch. de Visscher, Theories et realties en droit international public (2nd ed.), Paris, 1955, p. 198.

~^^2^^ A. V. Freeman, "Professor McDougal's 'Law and Minimum Public Order' ", 'The American Journal of International Law, Vol. 58, July 1964, p. 712.

~^^3^^ Syatauw is a pupil of Prof. McDougal's and employs his terminology.

~^^4^^ J. J. G. Syatauw, Some Newly-established Asian States and the Development of International Law, The Hague, 1961, p. 21.

countries and the existence and development of international law as such would have been impossible had they presupposed agreement on ideological issues, on a community of ideologies.

The fundamental difference between the socialist and capitalist countries' ideologies and their ideological struggle do not preclude agreement between these states and, consequently, the existence and development of general international law.

For those who want to see relations between states with different systems improved, it is only a question of improving them, despite all the contrast of ideologies and the inevitable ideological struggle.

Although the ideological struggle takes place in the process of creation of international law rules too, there is never any question of agreement on ideological issues but only of the recognition of certain rules as international law standards. When the U.N. organs, for instance, discuss the question of codifying the international law principles of peaceful coexistence, the task before them is and must only be to elaborate a document including the appropriate principles of international law---the rules of conduct of states---and not a philosophical treatise about the substance of these principles or of international law as a whole.

Despite the differences of opinion on many ideological issues, notably on the nature of the state, and international law, the socialist and capitalist states can and must, for objective reasons, reach agreement on the recognition of certain rules as international law rules.

At the same time, one should not view the contrast of ideologies and ideological struggle abstractly. The influence exerted by an ideology on the development of international law depends on the nature of this ideology. The ideology of anti-communism, for instance, is utterly contrary to international law. Slandering the Soviet Union and other socialist countries, their foreign policy and international law positions, anti-communism claims that agreements between the capitalist and socialist states are impossible, useless and even inadmissible, and urges the development of ``Western'' international law to counterbalance common international law, etc.

Socialist ideology is an ideology of genuine humanism. It is impregnated with the idea of struggle for peace and

peaceful coexistence, is directed against colonialism in all its forms and manifestations, and exerts a beneficent influence on the development and consolidation of presentday international law.

3. PRESENT-DAY INTERNATIONAL LAW IS A NEW INTERNATIONAL LAW

The vast changes which have occurred in the world since the Great October Socialist Revolution have naturally affected international law too. Indeed, there is no sphere of international law which has not undergone more or less substantial changes.

Characteristically, all these changes have been decisively influenced by the socialist system.

While in the 19th century international law developed under the influence of the ideas advanced by the French bourgeois revolution, in the present age its development is decisively influenced by the ideas of the Great October Socialist Revolution.

The Soviet Union and the other countries of the socialist community have introduced an absolutely new element in international relations, an element stemming from their social system and class nature.

Since the Second World War an important role in the development of international law has been played by the states which have emerged as a result of the liberation of colonies and semi-colonies. An ever-increasing influence is exerted by the people themselves.

The influence of the progressive forces have first and foremost wrought substantial changes in the basic principles of international law, which actually determine its nature. As a result, many reactionary principles have vanished, new important progressive principles have appeared, and old democratic principles have been further developed.^^1^^

Among the most important new principles of international law are those banning aggressive wars and those concerning national self-determination, peaceful coexistence, disarmament, equality of nations, respect for human rights, etc.

Formulation of new important principles and rules promoting peace and friendly relations among states has been attended by the further development and consolidation of the old and universally recognised principles and rules of international law, such as respect for state sovereignty, non-interference in domestic affairs, equality of states, conscientious fulfilment of international commitments (pacta sunt servanta), etc.

In old international law these principles operated side by side with such institutions as spheres of influence, capitulation systems, consular jurisdiction, unequal treaties, etc., which sanctioned the predatory policies of imperialism. This could not but limit the effectiveness of the above-mentioned democratic principles. Eradication of reactionary institutions, principles and rules gradually cleared the way for their fuller development.

Further development of the old democratic principles of international law was greatly stimulated by the appearance of new progressive principles. The appearance of the principle of non-aggression in the form in which it now exists in international law also had an effect on the content of such principles as respect for sovereignty and non-- interference in the internal affairs of states. The most brutal forms of infringement of sovereignty and interference in the internal affairs of states were aggressive wars, armed interventions, armed reprisals and the threat of force, and their prohibition in accordance with the principle of non-- aggression naturally broadened the democratic content of the principles concerning the respect of state sovereignty and non-interference in the domestic affairs of states.

Especially important in this connection was the appearance of the principle of peaceful coexistence which, being the guiding principle of contemporary international law,

~^^1^^ See S. B. Krylov, "Les notions principales du droit dcs gens", Recueil dcs cours, Vol. 70 (1947); G. I. Tunkin, "Coexistence and International Law", Recueil des cours, Vol. 95 (1958); D. B. Levin, Basic Problems of Present-day International Law, Moscow, 1958; Y. A. Korovin, Basic Problems of Present-day International Relations, Moscow, 1959; G. I. Tunkin, Problems of International Law 'Theory, Moscow, 1962; R. L. Bobrov, Present-day International Law, Leningrad, 1962; N. A. Ushakov, International Law and the Problem of Sovereignty, Moscow, 1963; R. A. Tuzmukhamedov, National

Sovereignty, Moscow, 1963; O. V, Bogdanov, General and Complete Disarmament, Moscow, 1964; L. A. Mojoryan, Basic Rights and Duties of States, Moscow. 1965; S. A. Malinin, Lawful Foundations of Disarmament, Moscow, 1966; G. I. Tunkin, Ideological Struggle and International Law, Moscow, 1967.

influences the content of all the other principles and rules.

The changes which occurred in international law after the Great October Socialist Revolution were not confined to the basic principles. There were substantial changes also in concrete spheres of international law, in respect of the subjects of international law, its origins, the international law of the sea, diplomatic law, etc.

Before the Great October Socialist Revolution international law---we call it the old international law---was in effect the law of the strong: it recognised and legally secured the rule of force in international relations. This manifested itself most vividly, for example, in such principles as the "state's right to war", the "victor's right", etc. If a state was sufficiently strong and could expect to win, it could always find a pretext to use the "right to war" to satisfy its claims.

Present-day international law prohibits resort to war, the use of force or threat of force against the territorial integrity and political independence of any state, or in any other way incompatible with the purposes of the United Nations. The states are bound to settle their disputes solely by peaceful means.

The new international law is directed against war, it is a weapon of peace. The very appearance of the principle of non-aggression has considerably altered the nature of international law.

The old international law recognised two equivalent states of relations between countries: the state of peace and the state of war. Moreover, the questions of war were given greater prominence than those of peace.^^1^^ For instance, of the fourteen documents (thirteen conventions and one declaration) signed at the Second International Peace Conference in The Hague in 1907, only two were about peaceful relations among states. The rest were all about the law of war.

Aggressive war is now a major international crime for which not only the aggressor state but physical persons guilty of preparing, unleashing and waging wars are held responsible. In international law, a state of war is no longer a ``normal'' state of relations between states.

According to present-day international law, the sides in a war are not in the same position from the angle of law: one side, the aggressor, commits a major crime by unleashing war and waging it in violation of international law; the other side wages it in self-defence, that is, in accordance with international law.

The elimination of the "state's right to war" and the appearance in international law of the principle of non-- aggression led to the abolition of the "victor's right" and the law of conquest and to the spread of principles concerning a state's responsibility for war and its consequences.^^1^^

Increasing attention is paid in present-day international law to the regulation and consolidation of peaceful relations among states. Most of the post-war international conventions are devoted to peaceful relations among states.

The old international law contained rules and institutions which served as instruments of colonial and semi-colonial enslavement of peoples and sanctioned and legally secured the colonial regime and the economic rule of developed capitalist countries in underdeveloped countries. Thus, speaking of the international rules relating to state responsibility, the Mexican delegate in the U.N. International Law Commission rightly said that these rules were " established, not merely without reference to small states, but against them".^^2^^ The right to take possession of ``ownerless'' territory, the right of conquest, spheres of influence, colonial law, the protectorate regime, etc., belonged precisely in this category of international law rules and institutions. These rules and institutions existed side by side with the democratic principles and rules of the old international law.

By its nature, present-day international law is anti-- colonial. The recognition of the principle of national self-- determination as a universally accepted principle of international law turned international law against colonialism, which is utterly alien to it. Once an instrument of enslavement, international law has become a weapon of struggle for the liberation of the colonial and dependent peoples.

The old international law was chiefly the law of the so-

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, pp. 252-306 (German edition---pp. 199-239; French edition---pp. 191-227).

~^^2^^ Yearbook of the International Law Commission, 1957, Vol I p. 155.

~^^1^^ In Hugo Grotius's celebrated work De Jure Belli et Pads (On the Law of War and Peace), published in 1629, the "law of war" is given precedence over the "law of peace''.

called ``civilised'' or ``Christian'' states. The vast African continent and a considerable number of Asian countries, being objects of colonial oppression and exploitation, practically took no part in international affairs.

The disintegration of the colonial system and the emergence of new states as a result of national liberation revolutions expanded the sphere of operation of international law. International law is thus becoming more and more a universal law.

Present-day international law precludes the division of states into ``civilised'' and ``non-civilised'', ``Christian'' and ``non-Christian'', and their discrimination on these grounds. The reference to ``civilised'' nations in the International Court Statute now sounds as a complete anachronism.

Although the development of international law was progressive, it was far from smooth. Nazism sought to replace it by bloody tyranny. The victory won by the anti-Hitler coalition in the Second World War was also a victory of international law over the fascist doctrine of the rule of force in international affairs.

The changes in international law since the October Revolution justify the statement that contemporary international law is a qualitatively new international law which may briefly be called the law of peaceful coexistence and free development of people.^^1^^ Its basic principles and rules have taken shape in the period of coexistence of states of the two systems and under the decisive influence of the socialist states and other peace forces. The political basis of this new international law is peaceful coexistence of states with different social systems; its principles and rules reflect the basic conditions of peaceful coexistence and self-- determination of nations.

in general and of international law as one of the elements of the superstructure. However, the development of international law is influenced not only by society's economic system but by different parts of the superstructure: politics, national law, philosophy, ethics, etc. We have a complicated interaction of different phenomena in which international law, subjected to the influence of the economic system and other parts of the superstructure, itself exerts an influence on other parts of the superstructure and the economic system of society. Society's economic system influences the development of international law not only by the method of ``direct'' action but through other categories of superstructure whose influence on the whole cannot transcend the bounds defined by the economic system of society.

The distinctive feature of the present age is the coexistence of two diametrically opposed economic systems: socialist and capitalist. Each has its own superstructure, its type of state and law, its ideology. Both the socialist and the capitalist system and their superstructures exert an influence on international law.

Some bourgeois critics of the Soviet doctrine of international law, incapable of scientifically explaining the present-day developments in international law, allege that Marxism-Leninism cannot explain the existence of general international law.^^1^^ The Marxist theory of the correlation of the basis and the superstructure inevitably leads to the conclusion that there are two international laws and not one general international law.^^2^^

These critics, however, confuse Marxism with economic materialism and, thinking that they are criticising MarxismLeninism, are really criticising economic materialism which has been rejected by Marxism as wholly unsubstantiated.

Marxism-Leninism treats of the historical process in all its complexity and diversity. The Marxist-Leninist theory

4. THE NATURE OF PRESENT-DAY INTERNATIONAL LAW

International law is a category of superstructure and its main features and its essence are in the final count determined by society's economic system. The economic system of society determines the main features of the superstructure

~^^1^^ See E. McWhinney, "Le concept sovietique de 'coexistence pacifique', et les rapports juridiques entre 1'URSS, et les Etats occidentals", Revue generale du droit international public No. 3, 1963, p. 549; "Soviet and Western International Law and the Cold War in the Era of Bipolarity", Canadian Yearbook of International Law, 1963, p. 48; W. Kulski, "The Soviet Interpretation of International Law", The American Journal of International Law, Vol. 41 (1955), p. 520.

~^^2^^ See E. McWhinney, Peaceful Coexistence and Soviet-Western International Law, Leyden, 1964, p. 50.

~^^1^^ G. I. Tunkin, "Le droit international de la coexistence pacifique", Melanges offcrts a Henri Rolin, Paris, 1964.

SO

of law does not consider law and international law in particular a simple projection of the economic system in the sphere of superstructure.

In regarding international law as an expression of state will, analysing the connection between the will of the state and society's economic system and baring the mechanics of establishing the rules of international law, the MarxistLeninist theory of international law scientifically explains the possibility of universal international law existing in the conditions where there are two diametrically opposed socioeconomic systems, and the processes taking place today in international law.

States belonging to antagonistic social systems are not isolated from each other. They maintain economic, political, scientific, technical, cultural and other ties. These ties are going through the process of expansion and intensification, determined by the rise of the level of modern society's productive forces. Just as the existence of interstate relations and their expansion and intensification are a law-governed process, so is the existence of universal international law whose rules govern relations among all states.

The present stage in the development of international law from the economic point of view is distinguished by the fact that it is developing under the influence of two antagonistic systems---the capitalist and the socialist which is replacing it. The peaceful coexistence of these two opposing systems is the element which determines in general the development of international law at the present stage.^^1^^ Each of these systems exerts its influence on the development of international law through the will of states. It is through the will of states taking part in the establishment of international law rules that other parts of the superstructure--- the legal systems of states, ethics, religion, philosophy, etc. ---also exert their influence on the development of international law.

The will of a state is a determined will. The content of the will of the state participating in the establishment of international law rules, and its own position in international law are determined by the sum total of conditions in which the ruling class exists in the given state; in the Soviet people's state it is determined by the entire Soviet people and,

in the final analysis, by society's economic system. "All the needs of civil society---no matter which class happens to be the ruling one---must pass through the will of the state in order to secure general validity in the form of laws," Engels wrote.^^1^^ It is the urge to develop and strengthen a given economic system, the economic needs and interests of the class ruling the state---in the Soviet Union, of the entire people---that determine the main content of a state's will in the process of formation, development and modification of international law rules.^^2^^

Being the result of agreements between states, firstly between the states of the two diametrically opposed social systems, the principles and rules of contemporary universal international law are the expression of the wills of states. The correlation of the wills of states participating in the establishment of international law rules and the wills of their peoples depends on the type of each given state. The will of the Soviet state is the will of the entire Soviet people; the will of a capitalist state is always the will of its ruling class and is naturally determined by the sum total of the conditions in which this class exists.

Agreement on the establishment of an international law rule is the result of co-operation and struggle among the states, notably between the states of the opposing systems. The struggle and co-operation of states find expression in the contents of international law rules.

Being the result of agreements among states, first and foremost between the states of the two systems, and aiming at securing peace and peaceful coexistence, the rules of present-day international law are of a general democratic nature.

The struggle for international law, for its progressive development and for its strict observance by the states in present-day conditions is a component part of the struggle for peace and peaceful coexistence, and serves the same aims.

International law, which helps promote peace and peaceful coexistence---the only alternative in our day to a thermonuclear war---is a major factor in human progress.

The steadily increasing authority of the socialist and developing countries following the policy of peaceful coexist-

~^^1^^ Marx and Engels, Selected Works, Vol. II, Moscow, 1962, p. 395.

~^^2^^ See I. I. Lukashuk, "The U.S.S.R. and International Treaties", Soviet Yearbook of International Law, 1959, p. 19.

~^^1^^ See Section 2 of the present article.

3-495

ence and all other forces of peace creates favourable conditions for introducing in general international law such new progressive principles as that of general and complete disarmament, as well as for further developing the principles and rules already in operation.

The bourgeois science of international law, interpreting law as a non-class, general system of rules and ignoring the specifics of international law, is incapable of correctly determining the trends of its development. Almost all the bourgeois international jurists claim that international law is developing along the same lines as national law. Contemporary international law, they say, is at the initial stage of development, a stage long passed by national law. Consequently, international law is a ``primitive'' law. It nevertheless develops in the same direction as national law, that is, towards centralisation. Some, but now far from all, bourgeois international jurists go further and affirm that international law will become a ``real'' law only with the establishment of a world state or just before it.^^1^^

There are undoubtedly some common features in the development of international and national laws. Among these is the fact that at a certain stage of human society's development there was no national or international law and that at some very high stage of human society's development there will again be no national or international law.

However, the fact that there are certain common features in the development of international and national laws does not mean that international law has no specific features of its own. Attempts to approach international law with a national law yardstick is scientifically unjustified, for it makes it impossible to take into account the specifics of the phenomenon under investigation. International law is an original law, and it will remain so as long as it exists.

What especially distinguishes international law (leaving aside its new aspects) is that its chief function is to govern relations between sovereign states. Rejecting the arguments of the advocates of the "world state", some international law experts in the West rightly stress that the establishment of

~^^1^^ See Ph. Jessup, A Modern Law of Nations, New York, 1948, pp. 2-3; H. Kelsen, Principles of International Law, New York, 1952, p. 402; H. Lauterpacht, in L. Oppenheim's International Law, Vol. I, London, 1955, p. 370, and G. Schwarzenberger, The Frontiers of International Law, London, 1962, p. 312.

a "world state" would mean abolition of international law, for it would then be replaced by the internal law of the "world state".^^1^^

The main distinctive features of international law as a law governing relations between sovereign states are determined by the laws governing historical development. The existence of sovereign states now does not depend on the will and wishes of individuals. It is not a question of governments refusing to part with sovereign power, a thing those who advocate the abolition of state sovereignty ( Kelsen, Scelle and others) often complain about. The sovereign states owe their existence to the historical laws of our time.

In present-day conditions, the plans for the establishment of a world state and the appeals to abolish state sovereignty militate against the laws governing social development and objectively reflect the imperialist powers' tendency to use international organisations to further their reactionary aims. Belittling the importance of state sovereignty merely makes it easier for the big imperialist powers to interfere in the domestic affairs of the weaker nations in order to enslave them economically and politically.

Today, when the authority of the world socialist system and the newly-independent states is growing steadily and the forces of peace are becoming ever stronger, there is every reason to believe that the basic principles and rules of international law will be further developed and strengthened, and that new principles and rules, directed at promoting international co-operation and ensuring free development of the people and the peaceful coexistence of states on the basis of equality, respect of sovereignty and noninterference in domestic affairs, will be established.

~^^1^^ See D. Anzilotti, Corso di diritto internazionale, p. 47; A. Verdross, Volkerrecht (Fiinfte Auflage], Wien, 1964, S. 6; and Lucio M. Moreno Quintana, Tratado de Dcrccho International, Vol. 1, BuenosAires, 1963, p. 52.

R. L. Bobrov, LL. D.

ever, does not lessen the value of general principles. What is more, the forces standing for precise democratic international law rules find legal support in the general principles of present-day international law inasmuch as the high degree of concentration of legal institutions in itself requires the adoption of rules to clarify the given general principle. Opposition of concrete rules to general principles is in effect one of the forms of struggle reactionary jurisprudence uses against the basic democratic principles of presentday international law, in its struggle against the democratic content of these principles.

``The struggle of the peace-loving and democratic forces for peace and the freedom of nations has raised all international law problems to a definitely higher level and made it necessary to approach even highly special issues from the angle of its basic principles," D. B. Levin rightly says.^^1^^

The principles of international law are of a normative nature. They cannot be regarded as a category outside the legal substance, as an expression of merely the guiding ideas and qualitative peculiarities of the concrete norms of the given system of law. The removal of legal principles from the bounds of normativeness will in effect ``deprive'' them of their intrinsic quality. Actually, international law principles, in the full and direct sense of this term, always include definite rules of conduct irrespective of the form in which any of these principles are expressed.

The basic principles of present-day general international law secured by the U. N. Charter---such as prohibition of aggression and respect for sovereign equality---not only embody the general ideas and qualitative peculiarities of present-day international law but constitute its basic rules. Moreover, there is nothing in contemporary international law that excludes the application (both in diplomatic practice and in research) of the method of deriving general principles from any universally accepted international law rules of a more particular nature.

Vladimir Outrata rightly points out that correctly formulated general principles embracing the essential aspects of the corresponding concrete rules of the international law in

BASIC PRINCIPLES OF PRESENT-DAY INTERNATIONAL LAW

One of the most important features in the development of international law is the increasing importance of its basic principles.^^1^^

The basic principles of international law form a category which did not come into existence together with international law itself. Principles of this type appear only at a certain stage in the development of this law. They form as international law emerges from the stage of decentralisation and turns into the general international law of the feudal era (at the stage of its decay).

The presence of common elements in the basic principles of international law in different eras does not alter the fact that each of the systems of principles is a new whole. This applies particularly to the present era, whose system of basic international law principles differs radically in nature from the corresponding systems of the past.

One cannot possibly agree with the authors who, displaying a nihilistic attitude to the basic principles of presentday international law, consider them divorced from reality and of very little practical use.^^2^^

There is no doubt that it is very important to crystallise general principles, and Soviet diplomacy strives for the establishment of concrete rules that would accord with certain principles. The task of establishing precise rules, how-

~^^1^^ Cf. D. B. Levin, "On the Conception and the System of Presentday International Law", Soviet State and Law, No. 5, 1947, pp. 13- 14; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 120.

~^^2^^ See E. McWhinney, "Peaceful Coexistence and Soviet-Western International Law", The American Journal of International Law, No. 4, 1962, p. 967.

~^^1^^ D. B. Levin, Basic Problems o\ Present-day International Law, Moscow, 1958, p. 101.

operation "are of necessity legal rules, for all restrictions (of the limits of application or the resultant rights and obligations) contained in definite rules must perforce be reflected in the correctly formulated general principle too".^^1^^

In stressing the normative nature of the basic principles of international law, we do not in the least underestimate their specific role in the system of international law of each epoch.

As basic rules, basic principles express the guiding ideas and qualitative peculiarities of each given system of law. This exceptionally important trait of the basic principles is in no way contrary to their normativeness. What is more, it is this normativeness that ensures the given universal (by the composition and number of addressees) principle not simply a guiding but a specifically legal guiding character in relation to ordinary legal rules. The relation between the basic principles of international law and the more detailed rules of this law may definitely be likened to the relation between constitutional principles and the rules inherent in ordinary laws.^^2^^

Generalising the content of many concrete rules, the basic principles of international law are at the same time " independent normative criteria of a state's conduct".^^3^^

It should also be borne in mind that the basic principles of international law, being rules of conduct that are infinitely more concentrated than other rules, simultaneously differ from one another by the level of generalisation. Thus the principle of respect for state sovereignty is more general than the principle of the equality of states (sovereign equality) or the principle of non-interference in the sphere of internal competence of another state. The latter are simply aspects of the former. At the same time, both the principle of the equality of states and the principle of non-interfer-

~^^1^^ Vladimir Outrata, "K pojmu obecnych a zakladnich zasad mezinarodmho pravo", Casopis pro mezindrodni prdvo, No. 3, 1961, p. 191.

~^^2^^ See D. B. Levin, "On the Conception and the System of Presentday International Law", Soviet State and Law, No. 5, 1957, p. 13; V. N. Durdenevsky, "Five Principles of Peaceful Coexistence", International Law Forms of the Peaceful Coexistence of States and Nations, 1957, p. 7.

~^^3^^ See Vladimir Outrata, "K otazce formulace pravmch zasad pokojneho souziti", Casopis pro mezindrodni prdvo, No. 3, 1962, pp. 210- 11.

ence are not only independent principles with their own clearly formulated legal content but are themselves guiding principles in relation to ordinary and special rules establishing the basis of conduct of states in all spheres of interstate relations in conformity with the content of each rule.

This given conception reveals the interconnections really existing in the sphere of law. Life itself requires generalised (complex) basic rules. It also requires the reverse: dissection of complex rules into independent legal rules, including those which are themselves basic to the more concrete rules.

And so basic international law principles are rules of a universal nature. Here it is a matter not only of their universal acceptance but also of the fact that they establish the basis of conduct of states in international affairs and that, consequently, they must be observed in all spheres of interstate co-operation.

Besides the general principles there are principles of international law which may be the international law rule referring to any one sphere of interstate relations (trade, finances, navigation, etc.) and generalising in one or another degree the extant, more concrete rules or being the legal basis for the establishment of new corresponding concrete rules.

The international law rules contained in Chapter I of the Charter of the United Nations ("Purposes and Principles") are of course---in conformity with their international and purely legal nature---the basic principles of present-day international law.

The basic principles of any given system of international law reflect in a concentrated manner the main laws governing social development which operate in international relations. These laws are naturally reflected in international law through the will of states, not automatically.

In the conditions of formerly inconceivable contradictoriness of trends, which to one or another extent influence the elaboration of international law rules, the basic principles of international law have embodied, though not fully, the progressive, democratic ideas of the peoples' legal consciousness.

The basic principles of international law are the criterion of the legitimacy of all the other rules worked out by states

in the sphere of international affairs.^^1^^ These are the superior² and imperative^^3^^ rules. These are the general institutions to which the well-known proposition that special law cancels out general law is inapplicable. The above-mentioned `` statute'' contains one of the most important peculiarities of the basic principles of both national and international law. All the ordinary rules of international law must conform to its underlying principles. Any institution contradicting these principles cannot be considered a valid rule of law.

There were many international jurists in the 19th century who spoke of the invalidity of international treaties contradicting the underlying principles of international law. Some bourgeois lawyers still do so.^^4^^

As for the Soviet science of international law, all the authors dealing in one way or another with this subject lay stress on the illegality (invalidity) of the treaties which

violate the basic principles of the international law in operation,^^1^^ that is, of its imperative rules.

It is highly important that the proposition about the jus cogens rules is now included in the draft of the articles on the law of treaties drawn up by the U. N. International Law Commission.

Following a discussion, the International Law Commission at its fifteenth session adopted the following article: "A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." (Art. 50.)

This article (then listed as No. 37) was highly assessed by the Sixth Committee of the U.N. General Assembly when it discussed the International Law Commission's work at its fifteenth session. "The recognition by the International Law Commission that there exist in the general positive international law of today certain fundamental rules of international public order, contrary to which states may not validly contract (jus cogens) was considered by all representatives who referred to the matter as being a step of great significance and importance for the progressive development of international law.''^^2^^ Many representatives in the Sixth Committee pointed out that "Article 103 of the United Nations Charter, by proclaiming that obligations under the Charter prevailed over obligations under any other interna-

~^^1^^ Cf. M. Y. Rapoport, "Basic Principles of the Peaceful Coexistence of States Is a Criterion of Present-Day International Legality", Bulletin of Higher Educational Establishments, Jurisprudence, No. 4, 1960, p. 90.

~^^2^^ It is difficult to agree with French jurist Lucien Siorat who, recognising that the principles of law are the "guiding propositions to which a number of particular solutions are subordinated", draws a line between the principles of law and "superior rules" (see L. Siorat, Le probleme des lacunes en droit international, Paris, 1959, pp. 361-62).

~^^3^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 120.

~^^4^^ For a systematised analysis of this problem see V. M. Shurshalov's The Foundations of the Validity of International Treaties, Moscow, 1957, pp. 131-34. Bourgeois scholars, however, do not always draw the necessary practical conclusions from the theoretical negation of the validity of the international treaties which are contrary to the general principles of international law. Charles C. Hyde, for instance, writes: "In theory, any agreement which purports to do violence to the underlying principles of international law must, to that extent, be regarded by the family of nations as internationally invalid" (see Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1952, Vol. II, p. 1375). But, as M. I. Lazarev said, this did not prevent Hyde from contradicting himself in the same book by saying that "the element of compulsion is not deemed to vitiate the transaction or to give the relinquisher the right to repudiate the arrangement" (Charles Ch. Hyde, op. cit., Vol. I, p. 29). See M. I. Lazarev, "Recognition of Imperialist Treaties As Invalid by Soviet Students of International Affairs", Bulletin of the Institute of International Relations, Issue 2, Moscow, 1958, p. 123.

~^^1^^ See F. I. Kozhevnikov, "Certain Problems of the Theory and Practice of International Treaties", Soviet State and Law, No. 2, 1954; G. I. Tunkin, "Paris Agreements and International Law," Soviet State and Law, No. 2, 1955; V. M. Shurshalov, Foundations of Validity of International Treaties, Moscow, 1957; M. I. Lazarev, "Recognition of Imperialist Treaties As Invalid by Soviet Students of International Affairs", Bulletin of the Institute of International Relations, Issue 2, Moscow, 1958; Y. A. Korovin, "The Statement of the Conference of Representatives of the Communist and Workers' Parties and the Problems Confronting the Science of International Law", Bulletin of the Moscow State University, Series X, Jurisprudence, No. 3, 1961, p. 66.

Among the works expressing the same point of view by jurists of other socialist countries see R. Arzinger's "Vertragstreue und V61- kerrechtswidrige Vertrage", Festschrift fur Erwin Jacobi, Berlin, 1957, pp. 238-59, and S. Stefanov's The International Law Principles of the Foreign Policy of the Bulgarian People's Republic.

~^^2^^ Doc. A/5601, Nov. 6, 1963.

tional agreement, had aided greatly in creating that rule".¹ The reference in literature to the number of the underlying principles of present-day international law and the formulations of these principles are not characterised by monotony, and that to a certain extent is due to the interconnection of the principles which in some cases borders on

interpenetration.

* =:- ff

The entire system of the underlying principles of general international law of today is a system of peaceful coexistence principles. The core of this system is the principle after which it is named---the principle of peaceful coexistence, which absorbs the substance of all the other basic principles of the general international law in operation.^^2^^

The dominant socio-political trend of the international law principle of peaceful coexistence is to ensure the peaceful coexistence of states with different social systems. This follows not only from the present socio-political conditions which are directly relevant to the functioning of this principle but from the U. N. Charter.

The essence of the principle of peaceful coexistence, embodied in many articles of the U. N. Charter, is particularly clearly formulated in its Preamble which says that the peoples whose governments have assumed obligations are determined "to practise tolerance and live together in peace with one another as good neighbours''.

There is of course no question here of tolerance of aggression inasmuch as the formula above speaks of peace, inasmuch as peaceful coexistence is first and foremost peace, and the struggle against aggression is the United Nations' main task. It is well known how firmly the U. N. Charter demands of the member states to be intolerant of aggression (Para. 5, Art. 2) and that, under Para. 6, Art. 2, this directly applies also to states which are not members of the U. N.

Nor is it a question of tolerating the violation of other U. N. principles whose defence, under the Charter, is un-

~^^1^^ Doc. A/5601, Nov. 6, 1963. See also the records of discussion of the completed draft articles on the right to agreements by the Sixth Committee of the U.N. General Assembly at its 22nd Session (October 1967). Doc. A/6913, Nov. 24, 1967.

~^^2^^ Cf. G. I. Tunkin, Theoretical Problems of International Law, p. 52; International Law, Vol. 2, p. 27.

doubtedly the duty of all U. N. members. There remain the internal, notably social, peculiarities of states^^1^^ and their actions which are consistent with the U. N. Charter.

The Charter thus contains a demand which is diametrically contrary to the class interventionist conceptions of imperialism: that countries must live in peace and co-operate even if their social systems are different.^^2^^

Since relations between states with different systems are the central factor of international affairs today, their international law aspects cannot but influence decisively the development of the general international law of today. The establishment in present-day general international law of the principle of peaceful coexistence with its basic requirement of permanent good-neighbourliness as the juridical minimum of the demands made by the states upon one another and by international intercourse in general upon each state, is the result of the influence exerted on international law by the socialist and other forces of peace and progress.

It should be stressed that the principle of peaceful coexistence---both as a foreign policy principle guiding the socialist countries in their relations with the states of the capitalist system and as a principle of the general international law of today---is confined to interstate intercourse. "The principle of peaceful coexistence does not apply to relations between oppressors and oppressed, between colonialists and the victims of colonial oppression.''^^3^^ This principle, however, does not and cannot eliminate the uncompromising ideological struggle which reflects the essence of the contradictions between the two systems.^^4^^ It demands

' Also still important of course are the peculiarities engendered by religion in non-socialist countries. In the past, tolerance meant chiefly religious tolerance. But though this problem remains, it has long ceased to be of world-wide paramount importance.

~^^2^^ This demand of present-day international law is a victory for the ideas of the Soviet state, which had affirmed at the Genoa Conference in 1922 that states with different systems could co-operate fruitfully on the basis of full equality and mutual advantage. (See U.S.S.R. Foreign Policy Documents, Vol. V, Moscow, 1961, pp. 371-72.)

~^^3^^ Resolution of the C.P.S.U. 23rd Congress on the Central Committee's Report, 23rd Congress of the C.P.S.U., Moscow, Novosti Press Agency Publishing House, p. 288.

~^^4^^ For the ideological struggle within the sphere of international law see I. I. Lukashuk, The C.P.S.U. Programme and Contemporary International Law, 1962, pp. 32-35; G. I. Tunkin, Ideological Struggle and International Law, Moscow, 1964, pp. 1-6.

nevertheless that this struggle should not undermine universal peace.

The principle of equality of the two socio-economic systems is a component of the principle of peaceful coexistence.

There can be no real peaceful coexistence, which includes diverse forms of business co-operation, if there is no equality between the two social systems to which the co-operating states belong. The successful co-ordination of wills in the conclusion of international treaties^^1^^ requires of the parties drafting the treaty to proceed from the assumption of both the equality of states as subjects of international law and the equality of systems, whose social peculiarities predetermine the essence of the international legal positions of the contracting parties and the limits of possible mutual concessions.

The principle concerning the equality of the two systems reflects in a condensed manner the specifics of the social class pattern of present-day interstate intercourse. This principle is a demand which passes through all other components of the principle of peaceful coexistence and at the same time gradually crystallises in the form of a separate rule: today, when complex ties between the different parts of the socially divided world make it indispensable to find mutually acceptable solutions, it is necessary for the states of one system to respect the lawful interests of the states of the other, not to discriminate against states because they belong to another social system.

The principle of equality of systems is reflected in the U. N. Charter (Para. 3, Art. 27), though in an original juridical form. This must definitely be taken into account when constituting international organisations.^^2^^

In latter years this problem has been closely bound with the new task of simultaneously taking into account the interests of a large group of neutralist states in which the leading role is played by the newly-independent Afro-Asian countries.

Thus, to implement fully the principle of peaceful coexistence it is necessary to reckon with the lawful interests of all three basic political groups of present-day states: socialist, capitalist and the socially heterogenous states of the socalled Third World. This does not, and indeed cannot, cancel out the broader principle of the equality of the two social systems into which the present-day world is mainly divided; far from contradicting this broader principle, it

helps to implement it.

* =:- *

Let us deal first with the group of principles generalised by such a guiding principle of present-day international law as the obligation to maintain international peace and security.

The study of the principles of this group should begin with the principle of non-aggression (prohibition of aggression). Democratic jurisprudence has always regarded aggressive wars as unlawful. That is why, even before aggression had been prohibited by international law, the governments were time and again compelled to pass off aggressive wars for defensive. It might also be recalled that the 1907 Hague Convention for the Pacific Settlement of International Disputes stated that, "before an appeal to arms, the contracting powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers". (Art. II).

The bourgeois governments, however, then refused to contemplate rules prohibiting aggressive wars and proclaiming them international crimes.

After the Great October Socialist Revolution, when aggression was declared a crime^^1^^ by the supreme organ of power of the world's first socialist state,^^2^^ which became the organising centre of the struggle for peace, prohibition of aggression gradually became a part of international law thanks to the efforts of the Soviet socialist state and of the masses throughout the world.

A rule generally prohibiting agression was introduced into international law on July 24, 1929, that is, on the day

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, pp. 164-68.

~^^2^^ For details about this principle see R. L. Bobrov, "The Principle of the Equality of the Two Systems in Present-day International Law", Soviet State and Law, No. 11, 1960.

~^^1^^ See Lenin, Collected Works, Vol. 26, p. 40.

~^^2^^ See the Decree on Peace adopted by the Second All-Russia Congress of Soviets on November 8, 1917, U.S.S.R. Foreign Policy Documents, Gospolitizdat, 1957, Vol. 1, pp. 11-14.

the Briand-Kellogg Pact (the Paris Pact of 1928) came into force, though it required considerable improvement. One must say that the Briand-Kellogg Pact clauses played a big role in the punishment of the major German and Japanese war criminals who were later tried for planning, preparing, unleashing and conducting an aggressive war.

After the Second World War prohibition of aggression became a clearly formulated rule of international law, expressed in Para. 4, Art. 2, of the U. N. Charter and reflected also in other articles of this Charter. The prohibition of aggression is now universally accepted and provides for a series of measures aimed at preventing aggression and putting an end to it if that is not achieved (Chapter VII of the U. N. Charter).

The principle of non-aggression (prohibition of aggression) is exceptionally closely linked with the principle concerning the peaceful settlement of international disputes. Although each of these principles has its own content, they are often implicit in each other.^^1^^

Old international law, in which there was no rule prohibiting aggressive wars did not bind the states to settle their disputes peacefully. As we have already said, the 1907 Convention for the Pacific Settlement of International Disputes obliged them only to have recourse to the good services or mediation of other states before resorting to arms, and then only as far as the circumstances permitted.

The old international law rules for the peaceful settlement of disputes, rules which constituted an appropriate international law institution, cannot be identified with the principle concerning the settlement of interstate disputes and differences solely by pacific means. This principle, which precludes the right to resort to war to settle disputes, became a firmly established principle of international law only with the prohibition of war by international law.^^2^^

The role played by the principle of peaceful settlement of international disputes in the system of principles of peaceful coexistence is clearly defined in Para. 3, Art. 2, of the

U. N. Charter. "All Members," it says, "shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.''

The group under review also includes the principle of collective security (in the direct sense of the term), namely, giving assistance to the victim of aggression.^^1^^ This principle is formulated in Para. 5, Art. 2, in the following words: "All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action." This formula is elaborated in a number of subsequent articles. A whole chapter (VII) of the Charter is devoted to the employment of effective measures against aggression.

Speaking of enforcement measures provided for by international law, one should stress that these should be only the ones decided upon by the competent U. N. organ. The decision to apply these measures rests, under the U. N. Charter, with the Security Council and is made by the concurring votes of the permanent members.

The principle concerning the prohibition of war propaganda also belongs in the group of principles under review. Since aggressive war constitutes a major crime against mankind, war propaganda is definitely a crime too. It has been condemned in all its forms by the U. N. General Assembly, which has proposed to the governments of all U. N. member countries to take the following measures within the framework of their constitutions:

``a) To promote, by all means of publicity and propaganda available to them, friendly relations among nations based upon the Purposes and Principles of the Charter;

``b) To encourage the dissemination of all information designed to give expression to the undoubted desire of all peoples for peace.^^2^^

~^^1^^ Collective security in a broader sense implies an all-embracing guarantee of peaceful coexistence, providing for a number of measures for ensuring it, namely: 1) disarmament; 2) peaceful means of settling international disputes, and 3) enforcement action in accordance with Chapter VII of the U.N. Charter. (Cf. V. K. Sobakin, Collective Security Is an Earnest of Peaceful Coexistence, Moscow, 1962, p. 203.)

~^^2^^ Official records of the second session of the General Assembly

~^^1^^ Cf. G. I. Tunkin, Theoretical Problems of International Law, p. 32.

~^^2^^ See A. P. Movchan, Peaceful Means of Settling International Disputes, Moscow, 1957, pp. 4-5, and A. M. Ladyzhensky and I. P. Blishchenko, Peaceful Means of Settling Disputes Between States, Moscow, 1962, p. 15.

Among the principles concerning the obligation to maintain international peace and security the principle of disarmament is especially important.

The need to disarm---to liquidate the material and technical basis of wars---derives directly and fully from the principle concerning the obligation to maintain peace, a principle in relation to which disarmament plays the role of an international law means of achieving this particular aim. Consequently, the special U.N. Charter clauses on disarmament should be regarded as inseparable from this guiding principle of present-day international law.^^1^^

Unlike the principle of non-aggression, the principle of disarmament in its present form is a rule which makes it indispensable for the states to conclude a special concrete agreement on disarmament. Its very implementation must be effected under strict international control in each specific stage of disarmament.

As S. A. Malinin rightly notes, "the principles of the U.N. Charter do not yet directly oblige each state to disarm. This obligation should be enforced by means of other rules which directly prescribe the states to undertake such action. . . . The legal content of the principle of disarmament (its most general expression) secured in the U.N. Charter ... obliges the states and the principal organs of the United Nations (Security Council and General Assembly) to work out measures for the practical implementation of disarmament."'^^2^^

A particularly important part in the development of the international law principle of disarmament was played by Resolution 1378 (XIV) of November 20, 1959, adopted following the submission by the Soviet Union of radical and

comprehensive disarmament proposals to the Fourteenth U.N. General Assembly.^^1^^

Realisation of this principle will lead to the establishment of a system of new rules with the kind of explicit commitments human history has never known, rules that would make constructive action in the sphere of disarmament imperative.

A very important confirmation of the international law principle of disarmament is the Moscow test-ban treaty, whose preamble proclaims as the principal aim of the more than 100 signatory states the speediest possible achievement of an "agreement on general and complete disarmament under strict international control in accordance with the objectives of the United Nations" (Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of August 5, 1963).

The principal and decisive element in the disarmament problem is of course nuclear disarmament, the liquidation of mass-destruction weapons of incalculable power. Nuclear disarmament may be described without the least fear of exaggeration as the core of the programme of general and complete disarmament.^^2^^

It must be emphasised that all the principles we have dealt with here is a group of absolutely new principles whose appearance in international law is basically the result of the consistent struggle waged by the forces of socialism and the anti-imperialist democratic forces.

The second group of basic principles of present-day international law is that concerning respect for peoples' and states' sovereign rights. The U.N. Charter was signed by the governments on behalf of their peoples. In present-day conditions it is not an empty formula. The peoples are potential subjects of present-day international law.^^3^^

~^^1^^ See resolutions adopted by the General Assembly during its fourteenth session, September 15-December 13, 1959, New York, 1960, p. III.

Of the subsequent U.N. General Assembly resolutions on disarmament we may note resolutions 1653 (XVI), 1722 (XVI), 1767 (XVII) and 1837 (XVII). Resolution 1767 urges the 18-Nation Disarmament Committee to "resume at Geneva its negotiations on general and complete disarmament, with effective controls, expeditiously and in a spirit of constructive compromise, until agreement has been reached". Also see resolutions 190S (XVIII), 2031 (XX), and 2162 (XXI).

~^^2^^ See O. V. Bogdanov, Nuclear Disarmament, Moscow, 1961, p. 19. •' See R. L. Bobrov, Contemporary International Law (Objective

Premises and Social Purport), Leningrad, 1962, p. 96.

Resolutions, September 16-November 29, 1947, New York, p. 14.

Also see A. N. Trainin, Criminal Responsibility for the Propaganda of Aggression, Moscow, 1947; G. I. Morozov, "On the Question of Responsibility for War Propaganda, Soviet Yearbook of International Law, 1959, Moscow, I960; G. I. Tunkin, Theoretical Problems of International Law, pp. 60-63.

~^^1^^ See S. A. Malinin, "Legal Principles of Disarmament", Leningrad State University Bulletin, No. 17, 1956, pp. 137-38; 0. V. Bogdanov, General and Complete Disarmament International Law Aspects, Moscow, 1964, p. 113.

~^^2^^ S. A. Malinin, Legal Content of the Principle of Disarmament, Leningrad, 1966, pp. 26-27.

The group under review contains the principle of respect for state sovereignty. This ``old'' international law principle is in its simplest form an institution securing the structural peculiarities of international law as a co-ordinating law. But the rules amplifying upon this simplest concept of sovereignty and establishing the sphere of operation of the given principle (in one or another of its forms) are specific to each stage of social development.^^1^^ In our day, state sovereignty, characterised by the supremacy of state power within the country and the independence of the given state without, is at the same time based on the right of every nation to self-determination and applies to all nations without exception.

The Soviet state in its practical activity and the Soviet theory of international law resolutely supported the principle of respect for state sovereignty, which was vigorously attacked back in the 1920s, and developed it in accordance with the new, consistently democratic ideals of international law.

This principle, attacked by many reactionary sociologists and jurists seeking ``theoretically'' to substantiate the efforts of the big imperialist powers to subjugate other nations,² withstood the assault and became stronger still as a result of the change in the relation of world forces in favour of socialism and democracy.

``Despite all changes, it has not been possible to ban the spirit of sovereignty from international law", Josef L. Kunz writes, speaking of "an upsurge of sovereignty".^^3^^ Alfred

Verdross,^^1^^ Suzanne Bastid^^2^^ and others also speak of the preservation of the principle of sovereignty.

There is no doubt that this principle will become increasingly important in the future, for there can be no progress in the development of peaceful coexistence of present-day states if it is not strictly observed. According to the principal laws of our day, the principle of respect for state sovereignty actively helps promote the social progress of the peoples and enhance the influence they exert on international affairs.

The principle of respect for state sovereignty now generalises at least three basic principles: 1) the states' respect for territorial integrity; 2) sovereign equality, and 3) non-interference in the domestic affairs of other states (mutual respect for territorial supremacy).

The first of these is inseparable from the principle concerning the prohibition of aggression, and that testifies once again to the close interconnection of the basic principles of present-day international law.

The principle of sovereign equality underscores the universality of the principle of respect for state sovereignty, the inadmissibility of one sovereign party to interstate intercourse imposing its will upon another, and the equality of all states in the present-day world, irrespective of their geographical, economic, social, political or other status.

As for the principle of non-interference, it has penetrated deep into the principle of respect of state sovereignty and, in accordance with the latter, categorically forbids any state or any intergovernmental organisation to impose any social or political system upon other states.

The group of principles under review also includes the principle of nations' right to self-determination, which, though established in international law relatively recently, has already expanded and democratised the content of a number of other basic international law institutions.

This principle secures the right of each nation to independent existence as a state and to free choice of its social and political system, and obliges all states to respect this right in both its (interconnected) manifestations and to promote its implementation.

~^^1^^ For details about the progressive development of the principle of sovereignty see Y. A. Korovin. "The Soviet Union's Struggle for Sovereignty", Records of the Academy of Social Sciences of the Central Committee of the Communist Party of the Soviet Union (Bolsheviks), Issue 1, 1947.

~^^2^^ For details about attacks on the principle of state sovereignty by bourgeois jurists see H. Lauterpacht, "The Subject of the Law of Nations", The Law Quarterly Review, Vol. 63, 1947; Ph. Jessup, Transnational Law, New Haven, 1956; J. L. Brierly, The Law of Nations. An Introduction to the International Law of Peace, 6th ed., Oxford, 1963. For criticism of such doctrines see, for instance, L. A. Mojoryan, Subjects of International Law, Moscow, 1958, pp. 20-25; N. A. Ushakov, Sovereignly in Present-Day International Law, Moscow, 1963, pp. 201-32.

~^^3^^ See J. Kunz, "The Changing Law of Nations", The American journal of International Law, Vol. 51, No. 1, 1957, pp. 78 and 81.

~^^1^^ Sec A. Verdross, Volkerrecht, Vienna, 1964.

- Sec S. Bastid, Cours d'institutions Internationales, Paris, 1956, pp. 247-51.

•>'

51

It was the October Revolution which, for the first time in world history, advanced the principle concerning the right of all nations without exception to self-determination up to and including state secession as a state law principle and the international law policy of the Soviet state it had created. This principle was first formulated in its biunial quality in the Decree on Peace. This decree was followed by the Declaration of the Rights of the Peoples of Russia and the international law acts of the Soviet state securing the sovereign rights of its eastern neighbours.

As a result of the persistent efforts of the U.S.S.R. and the upsurge of the national liberation movement following the victory of the anti-Hitler coalition, the principle of the nations' right to self-determination was secured by the U.N. Charter (Para. 2, Art. 1). The widespread interpretation by bourgeois literature of the principle of self-- determination as one that is purely political, not legal, is entirely unjustified. The U.N. Charter is an international law act and its principles, being an expression of the will of states, have the power of law.^^1^^

Reflecting the victorious onmarch of the national liberation movement, the numerous anti-colonialist resolutions adopted by the U.N. General Assembly increasingly corroborate the principle of national self-determination secured in the Charter and develop it in accordance with this Charter.^^2^^

A particularly important part in the development of this principle is played by Resolution 1514 (XV) of December 14, 1960---Declaration on the Granting of Independence

to Colonial Countries and Peoples---which demands the total abolition of colonialism "in all its forms and manifestations".^^1^^ This resolution was adopted on the initiative of the U.S.S.R. and reflected the principal ideas contained in the Soviet draft.

As a result of the enormous growth of influence wielded in international affairs by the world socialist system, many peoples have acquired independence peacefully (in the sense that they have not had to resort to arms in their struggle). The further consolidation of the socialist camp and the increase in the number of Afro-Asian countries that have freed themselves from the colonial yoke multiply the possibilities of other peoples acquiring independence by non-military means. But since the colonialists are a diehard lot, the sharpest forms of struggle are inevitable---the national liberation wars which undoubtedly must be regarded from the point of view of present-day international law as defence against aggression, with all the ensuing international law consequences.

The favourite method of justifying colonial rule is the allegation that the colonial peoples are not ready for independence and that ``premature'' independence is fraught with the danger of war.

Take John N. Hazard, for instance. Commenting on the codification of the principles of peaceful coexistence, he has said that the article on self-determination should be "couched in phrases rejecting its application in any place and at any time without regard to preparation of the people concerned for the responsibilities of independence" and added that "it will be hard to insert such restrictions in the face of inflamed public opinion in the developing areas, yet the codifiers must do so if their code is to foster peace".^^2^^

~^^1^^ For details about the principle of self-determination see F. I. Kozhevnikov, Textbook of International Public Law, Moscow, 1947; L. A. Mojoryan, Subjects of International Law, Moscow, 1958; G. B. Starushenko, The Principle of National Self-Determination in Soviet Foreign Policy, Moscow, 1960; G. I. Morozov United Nations Organisation, Moscow, 1962, and R. A. Tuzmukhamedov, National Sovereignty, Moscow, 1963; D. V. Ignatenko, From Colonial Regime to National Statehood, Moscow, 1966; A. T. Shimkov, "The Content of the Concept the 'Right of Colonial and Dependent Peoples to SelfDetermination' ", Pravna Mysl, No. 2, 1965, R. Arzinger, Das Selbstbestimnmngsrecht im allgemeinen Volkerrecht der Gcgenwart, Berlin, 1966.

~^^2^^ See resolutions 421D (V), 545 (VI), 637A (VII), 637C (VII), 738 (VIII), 837 (IX), 1514 (XV), 1654 (XVI), 1702 (XVI), 1S07 (XVII), 1810 (XVII), 2105 (XX), 2189 (XXI).

~^^1^^ See resolutions adopted by the General Assembly during its fifteenth session, Vol. I, September 20-December 20, 1960, New York, 1961, pp. 74-75.

~^^2^^ John N. Hazard, "Codifying Peaceful Coexistence", The American journal of International Law, Vol. 55, No. 1, 1961, p. 118.

The same argument, though somewhat muffled, is advanced by Hazard in an article on the codification of the principles of peaceful coexistence at the Brussels Conference of the Association of International Law in August 1962. (John N. Hazard, "Coexistence Codification Reconsidered", The American Journal of International Law, No. 1, 1963, p. 94.)

One indispensable condition for the preservation of international peace and security, however, is free self-- determination of all peoples. This provision is authoritatively confirmed in General Assembly resolutions 1514 (XV), 1654 (XVI), 1810 (XVII), 2105 (XX) and 2189 (XXI).

It would not be out of place here to recall that the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 [XV]) explicitly states that "inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence".^^1^^ A similar statement is to be found in Resolution 1654 (XVI).

The concept of "preparedness of colonial peoples for independence" is a colonialist concept which is contrary to the international law of today.^^2^^

The introduction into international law of the principles concerning the states' obligation to maintain peace and the nations' right to self-determination has thus enriched the content of sovereignty with the theses that the sovereign will of a nation is the fundamental principle of state sovereignty and that the violation of the sovereignty of another state is utterly inadmissible. The principle of sovereignty has consequently acquired a qualitatively new, democratic nature.

It should be noted in this connection that the principle of non-interference now extends "not only to sovereign states but to nations fighting for their right to self-- determination"?

The principle of equal rights and self-determination of peoples enunciated in Para. 2, Art. 1, of the U.N. Charter also amplifies upon the principle of sovereign equality of states. First, it provides a profoundly democratic basis for the principle of the equality of states, elevating it to the rank of law. Secondly, it establishes a definite parallel in

mternational law between the two categories of subjects of contemporary international law---1) the states and 2) the nations which are fighting for national independence and which have laid the foundations of their statehood, though they may still be in a state of embryo.

In old international law the principle of sovereignty actually cancelled itself out because it sanctioned the right to wage an aggressive war, which is one of the grossest means of violating the sovereignty of other states. The principle concerning the states' obligation to maintain international peace and security eliminates this profound contradiction,^^1^^ depriving the theory of "absolute sovereignty", which embodies this contradiction, of all basis.

The interpenetration of the principles concerning the states' obligation to maintain peace and respect each other's sovereignty, which is inherent in the U.N. Charter, is directly expressed in the following formula: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations" (Para. 4, Art. 2).^^2^^

~^^1^^ See N. A. Ushakov, Sovereignly in Present-Day International Law, pp. 175-fU.

~^^2^^ Mahcsh Prasad Tandon says the traditional concept of sovereignty has undergone revolutionary changes insofar as the signatories to the U.N. Charter have pledged to unite their strength to maintain international peace and security and to employ international machinery for the promotion of the economic and social advancement of all peoples (M. Tandon, Public International Law, Allahabad, 1955, pp. 107-08).

Charles de Visscher affirms that "jus bellandi (law of war), this traditional attribute of state sovereignty, has been shaken to its very foundation" (Ch. de Visscher, ``L'interdiction du recours a la force dans 1'organisation Internationale", Rechtsfragen tier Internationalcn

Organisation. Festschrift fiir Hans Wehberg zu seinem 70. Gcburtstag, Frankfort on the Main, 1958, p. 401).

This view is also shared by Suzanne Bastid. "The use of force in

the past depended solely on effective possibilities," she says, and "many authors criticised the concept of sovereignty for being the cause of international anarchy." Pointing out that "sovereignty is a reality of international life", Madame Bastid speaks of the elimination of the extreme consequences of the concept of sovereignty and stresses that

the right to use force now "exists only in the case of legitimate

defence and collective action against aggression" (S. Bastid, Cours d' institntions Internationales, Paris, 1956, p. 247).

Actually, all these three authors stress that the operation in present-

~^^1^^ Resolutions adopted by the General Assembly during- its fifteenth session, Vol. I, September 20-December 20, 1960, New York, p. 67.

~^^2^^ For details see R. A. Tuzmukhamedov, National Sovereignly, pp 78-150.

~^^3^^ A. S. Piradov and G. B. Starushenko, "Principle of Non-- interference in Contemporary International Law", Soviet Yearbook of International Law, 1958, p. 249, and A. N. Talalaycv, ''Non-Interference in Domestic Affairs Is an Important Condition of Peaceful Coexistence", Moscow Stale University Bulletin, No. 1, 1962, p. 51.

A particular role in the solution of international problems of an economic, cultural and humanitarian character is played by the principle of interstate co-operation which is closely bound up with both the first and the second group of principles (Para. 3, Art. 1, of the U.N. Charter).

As V. N. Durdenevsky and M. I. Lazarev rightly pointed out back in 1957, "implementation of the principle of peaceful coexistence presupposes not only abstention from certain actions but the undertaking of regular actions aimed at ensuring the peaceful coexistence of peoples, promoting closer mutual understanding and contacts, and curbing warmongers.

``Implementation of the principle of peaceful coexistence presupposes the convocation of conferences of governmental and non-governmental nature, effective negotiations and actions designed to mitigate international tensions.''^^1^^

It is also essential to single out the new principle of respect for human rights.

This principle ensued from Para. 3, Art. 1, of the U.N. Charter, which calls for the achievement of international cooperation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". It should be stressed that this is recorded in the article outlining the purposes and principles of the United Nations Organisation.

The Universal Declaration of Human Rights adopted by the General Assembly in 1948 formulated fairly conclusively the above-cited principle of the U.N. Charter.

The concluding stage in the formation of this principle will be the coming into force of the pacts on human rights adopted by the Twenty-First General Assembly in 1966. Moreover, there are two other principles one should mention---``old'' in origin, but ones assuming a new quality in our day. These principles are 1) conscientious fulfilment of international obligations and 2) responsibility for the violation of international law rules.

day international law of the principle concerning the state's obligation to maintain peace and the incompatibility of "absolute sovereignty" with the international law principles now in force require improvement on the old principle of state sovereignty.

~^^1^^ V. N. Durdenevsky and M. I. Lazarev, Five Principles of Peaceful Coexistence, Moscow, 1957, p. 84.

Each of these principles permeates every international law rule. What is more, the principle of conscientious fulfilment of international obligations in a sense includes the principle of responsibility, in the general sense of responsibility for the violation of international law rules.

It must be emphasised that each of these two principles vividly reflects the entire new system of basic principles in international law. Their importance has grown enormously. Moreover, they both pertain naturally only to legal institutions.

It should be unequivocally stressed that the element distinguishing the principle of responsibility is the singling out of the responsibility for international crimes, particularly for aggression.

And so all the basic principles of the general international law of today are of a democratic nature. They are interconnected, having as a pivot the principle of peaceful coexistence with its categorical stipulation that good-- neighbourliness is the absolute legal minimum in relations between states, irrespective of their social systems.

As for the socialist states, the principles of proletarian (socialist) internationalism, which are expressive of a qualitatively new type of relations, in no way contradict the imperative principles of general international law, for they promote friendly interstate relations and help secure peace.^^1^^

There is no doubt that the time has come to draw up a single official document codifying the basic principles of present-day international law. The work done in this field by the U.N. is of considerable theoretical and practical importance. The reference is to the preparation of the Declaration of the Principles of International Law Concerning Friendly Relations and Co-operation of States in Accordance with the U.N. Charter^^2^^ or, in other words, to declara-

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 32.">.

~^^2^^ See U. N. General Assembly resolutions 1505 (XV) of December 12, 1960, 1686 (XVI) of December IS. 1961, 1815 (XVII) of December IS. 1962. 1966 (XVIII) of December 16, 1963, 2103 (XX) of December 20, 1965 and 21.81 (XXI) of December 12, 1966.

tion of the principles of peaceful coexistence^^1^^ or, what amounts to the same thing, the basic principles of the international law in operation. As A. P. Movchan rightly says, this document "should first and foremost reflect, formulate and secure the principles incorporated in the U.N. Charter", amplifying their substance and purposes, as well as the "new principles of international law which emerged after the adoption of the Charter and fully accord with it".^^2^^

At the same time, the availability of even the most clearly formulated system of basic international law principles does not eliminate the need of elaborating appropriate rules aimed at implementing these principles as fully as possible. What is more, if any basic international law principle requires concretising rules for its implementation, it is the legal duty of the states to elaborate them.

V. M. Shurshalor, LL. D.

INTERNATIONAL LAW IN RELATIONS AMONG SOCIALIST COUNTRIES

1. OBJECTIVE BASIS OF NEW-TYPE INTERNATIONAL RELATIONS

The world socialist system is the social, economic and political community of free, sovereign nations building socialism and communism. The member countries of the socialist community have established fraternal relations with one another in the economic, political, social and cultural fields, relations which constitute in their totality a new type of intercourse among the nations that have freed themselves from expoitation.^^1^^

This new type of international relations is the result of the historic changes which have taken place in the world in the last few decades and which are an objective basis of equal and truly fraternal relations among the peoples. As the result of these profound revolutionary changes:

1) there has emerged a whole group of socialist states of a homogeneous social character. Power in all these countries is in the hands of the people, led by the working class, and for the first time in human history foreign policy and international relations have thus become a matter attended to by the working people themselves;

2) the system of private capitalist ownership has been replaced by the system of public ownership of the instruments and means of production. This has not only put an end to the exploitation of man by man but has eliminated the economic causes of international conflicts which are concomitants of the imperialist states striving for economic

~^^1^^ Cf. V. Outrata, "K otazcc formulace pravnich zasad pokojneho souziti", Casopis pro mczindrodni prdvo. No. 3, 1962; A. P. Movchan, "Codification of the International Law Principles of Peaceful Coexistence'". Soviet Yearbook of International Law, 1963. Moscow. 1965.

~ Sec A. P. Movchan, o[>. cit., p. 25.

~^^1^^ For details see International Law Forms of Co-operation Between Socialist Countries, Moscow, 1962.

expansion and seizure of markets and spheres of capital investment;

3) the masses in the socialist countries are led by the Communist and Workers' Parties which are armed with Marxism-Leninism, the most revolutionary and humane ideology in the world. This single ideology creates favourable conditions for mutual understanding and successful solution of vital international issues;

4) the peoples of the socialist community have common interests at heart in defending the revolutionary gains and national independence from the imperialist states. It is only natural that this community of interests requires unity and concerted action in defence of peace and in the struggle against imperialism and colonialism;

5) the socialist states pursue the same aim---the building of communist society. This noble aim explains the need for joint efforts and large-scale mutual aid in the building of communism and in the struggle for international peace and security, for this aim can be achieved only if there is peace.

These factors constitute the basis of the social, economic and political community of the socialist countries, the basis of their monolithic unity and invincibility. "This socioeconomic and political community constitutes the objective groundwork for lasting and friendly intergovernmental relations within the socialist camp," says the C.P.S.U. Programme.^^1^^ In other words, these factors constitute an objective basis for the new type of relations prevailing among the socialist states.

It is this objective basis which predetermines the main content and general trend of development of the new type of international relations towards closer rapprochement of the liberated nations, multiplies their strength in the construction of the new society, and decisively tips the scales in favour of socialism in its competition with capitalism.

These new-type international relations help develop and improve the most diverse forms of co-operation among the socialist countries. They include military and political cooperation, clearly expressed in the Warsaw Treaty and the bilateral treaties of friendship, co-operation and mutual assistance. Highly developed too is their economic co-

operation through the Council of Mutual Economic Assistance and various other channels. There is a whole system of treaties and agreements on the co-operation of the socialist countries in science, technology, training of specialists, literature, cinema, the arts, etc.

All these forms of co-operation merge to promote international unity and friendship.

Experience shows that the establishment and development of the world socialist system and new-type international relations is a lengthy and complicated process which has already achieved much success but still has definite difficulties to overcome. They are due to the different levels of development of the socialist countries, the existence of traditional national prejudices, distrust on the part of certain segments of the population left over from the past relations of the exploiting states, display in some cases of nationalism and great-power chauvinism and, lastly, inexperience in the organisation and development of a brand-new kind of relations which require a great deal of both organisational and theoretical work by the Communist and Workers' Parties. It may therefore be said without exaggeration that the history of the development of the socialist community is a history of incessant search for and improvement in the forms and methods of co-operation among the socialist countries which, in the final count, is developing into a new type of international relations.

It is the historic achievement of the Communist and Workers' Parties in power in the socialist countries that these new-type international relations exist, develop and exert a decisive influence on the international situation.

Lately, resorting to Left phraseology, the Mao Tse-tung clique has intensified its attacks on the Soviet Union, the bulwark of the world progressive movement. The Soviet Union, it alleges, is reviving capitalism and ``compromising'' with U.S. imperialism. Insofar as the socialist community is concerned, the Maoists preach splitting tactics and negate the need of unity. In doing this, they preach a sermon about reliance on one's own strength. Their rejection of the unity and co-operation of the revolutionary forces is passed off as a specimen of "Marxist wisdom." The Chinese splitters repeat the anti-Communists' slander about the Soviet Union's interference in the affairs of other socialist count-

The Road to Communism, Moscow, p. 565.

ries with the only difference that instead of speaking about "Moscow's hand", as bourgeois propaganda does, they prattle about "Moscow's rod". This, however, does not alter the substance.

In assessing the new-type international relations, the revisionists depart considerably from Marxism. They claim that socialist co-operation does not engender any new international law principles and that in their relations the socialist states are guided by the principle of peaceful coexistence. As for proletarian internationalism, it does not operate as an international law principle in socialist cooperation, they allege. Another characteristic trait of revisionism is the substitution of the slogan of proletarian internationalism by that of "national communism", which boils down to underestimating the internationalist character of proletarian dictatorship and the general laws governing the development of socialist states, and to sharply overestimating the inherent peculiarities of each country.

The dogmatic and revisionist distortions of Marxism are spearheaded against the groundwork of the new-type international relations and thus complicate their development and improvement.

The attempts of the revisionists and the Chinese dogmatists are naturally doomed to failure. The objective groundwork, which constitutes the solid foundation of the new-type international relations, will continue to determine, despite all possible zigzags, the main direction in the development of relations among the socialist countries.

2. NEW INTERNATIONAL LAW

PRINCIPLES GOVERNING RELATIONS

AMONG SOCIALIST COUNTRIES

The world socialist system has created objective prerequisites for the promotion of fundamentally new international law relations. The establishment and development of the socialist community is at the same time a creative process in the improvement of international law forms and principles of international co-operation.

The socialist states and their Communist and Workers' Parties have worked out correct principles of relations among the socialist countries and peoples, principles based

on Marxism-Leninism and proletarian internationalism. As a result, the socialist system has become the "prototype of the new society, of the future of all mankind".^^1^^

The new international law principles created by socialism incorporate the essence and main content of the fraternal relations among socialist states.

The first of these principles is the principle of socialist internationalism which constitutes the basis of the diverse forms of co-operation among socialist states and reflects most fully the nature of the new-type international relations. The immutable basis of this principle is the community of the vital interests of the workers all over the world. The principle of socialist internationalism has gone through three stages in its development.

Prior to the Great October Socialist Revolution of 1917 and the formation of the world's first socialist state it was the militant slogan of the international labour movement and determined relations between the vanguard detachments of the working class in the capitalist countries. But as there was no socialist state then and the proletariat was an oppressed class, this principle could not be implemented in interstate relations.

After the October Revolution and the formation of the Soviet state the sphere of application of the principle of proletarian internationalism greatly expanded. While remaining the militant slogan of solidarity of the workers, it also became one of the most important principles of the home and foreign policy of the world's first working people's state. Having become a mighty bulwark of the workers of the world, the Soviet Union began to pursue a profoundly internationalist policy in its relations with other countries. In this stage of development, proletarian internationalism likewise became a factor in interstate relations, notably between the U.S.S.R. and the Mongolian People's Republic.

The establishment of the world socialist system considerably expanded the sphere of operation of the principle of proletarian internationalism, which now extends to interstate relations and has thus become the basic legal principle governing relations between the socialist countries. As Janos Kadar has stressed, "within the framework of the socialist

~^^1^^ The Road to Communism, Moscow, p. 470.

camp proletarian internationalism has turned into solid, unshakable interstate alliances".^^1^^

In his report to the Ninth Congress of the Hungarian Socialist Workers' Party in November 1966, Janos Kadar reiterated Hungary's loyalty to the principles of socialist internationalism.^^2^^

The principle of socialist internationalism has been reaffirmed in joint declarations and statements of Communist and Workers' Parties and legally secured in many treaties among the socialist states. The most important of these documents are the Declaration of the Meeting of Representatives of Communist and Workers' Parties in 1957, the Statement of the Meeting of Representatives of Communist and Workers' Parties in 1960, the Warsaw Treaty, the declarations of the Bucharest (1966) and the Sofia (1968) meetings of the Warsaw Treaty countries, the Statement on the Meeting of High-ranking Representatives of Certain Socialist Countries in Dresden, and a whole series of bilateral treaties of friendship, co-operation and mutual assistance between socialist countries.

The Statement of the Meeting of Representatives of Communist and Workers' Parties, held in Moscow in November 1960, said:

``It is an inviolable law of the mutual relations between socialist countries strictly to adhere to the principles of Marxism-Leninism and socialist internationalism.''^^3^^

The same idea of socialist internationalism permeates all other important multilateral and bilateral documents/^^1^^

Devotion to the principles of internationalism was forcefully and clearly proclaimed by L. I. Brezhnev, General Secretary of the C.P.S.U. Central Committee, at the Ninth Congress of the Bulgarian Communist Party and the Ninth Congress of the Hungarian Socialist Workers' Party.^^5^^ Even where it is not specifically mentioned, the principle of socialist internationalism in fact underlies the entire content of the joint juridical acts of socialist countries, the

essence of the international law obligations formulated therein.

By its significance, the principle of socialist internationalism stands out among the other principles of international law applied in relations between socialist countries. It is the main factor influencing the content and application of all other principles.

From the legal point of view, the principle of socialist internationalism is best reflected in fraternal and disinterested mutual aid. However, such mutual aid, the main element of socialist internationalism, does not exclude all its other aspects which are important for understanding its essence. Also inherent in the principle of socialist internationalism are such important factors as voluntary co-- operation in the building of socialism and communism, in the upholding of state independence and in the struggle for international peace and security; factual, and not merely formal, equality, and inadmissibility of any forms of coercion and dictation; correct combination of national interests with the international tasks of the socialist community; coordination of national economic plans with a view to facilitating the more or less simultaneous transition to communism of all countries and enabling them to score a victory over capitalism not only politically but economically.

Like all other international law principles, socialist internationalism naturally endows the countries concerned with definite rights and imposes definite obligations.

A socialist country's right to receive all-round assistance in accordance with the principle of socialist internationalism presupposes its obligation to help its partners economically, politically and, if need be, militarily when their independence is threatened by the imperialist aggressors. The Soviet Union's generous and disinterested assistance to the Vietnamese people in their heroic resistance to American aggression is vivid proof thereof. It should be said in this connection that in the mechanism of mutual aid within the framework of socialist co-operation the states' strength is not used to subordinate and oppress weaker countries, as is usual with the capitalist states, but to help the relatively weaker states to intensify their economic development, uphold national independence and rebuff attempts at intervention from without. The principle of socialist internationalism thus means uniting each country's

~^^1^^ Janos Kadar, "Proletarian Internationalism and the Soviet Union", Pravda, Oct. 9, 1957.

- See Pravda, Nov. 29, 19GG.

^:1 The Struggle for Peace, Democracy and Socialism, Moscow, p. 50.

~^^4^^ See, for instance, the Declaration of the Bucharest Meeting of the Warsaw Treaty Countries of July 5, 1966.

~^^5^^ See Pravda, Nov. 16 and 30, 1966.

5-495

efforts to develop its economy, state system and culture and to strengthen its defences with the efforts made by all the countries to consolidate the world socialist system in general.

In peacetime, the chief feature of socialist internationalism, mutual assistance, is especially manifest in economic relations.^^1^^ As a rule, economic relations between capitalist countries are so built that it is the economically and politically advanced states that derive the greatest benefit. They regard the weaker countries merely as sources of raw materials and keep them from overcoming their backwardness. Economic relations between socialist countries are totally different. The economically more developed states generously help the weaker ones to build an independent and flourishing economy. In other words, their economic power is a progressive and organisational force.

This distinguishing feature of socialist co-operation was underscored by Todor Zhivkov when he referred to SovietBulgarian co-operation in his report to the Ninth Congress of the Bulgarian Communist Party.^^2^^

In the socialist community "mutual advantage" acquires a special meaning and very often its commercial aspect is entirely ignored. There are instances of the economically most developed countries concluding commercially unprofitable agreements, but these agreements multiply the successes of the socialist system in general, increase its power and promote closer friendship and better understanding between the countries. These too are advantages, but advantages that have a totally different, more important meaning imparted to them by the practical implementation of the principle of socialist internationalism which is inconceivable without the combination of national and international interests in all spheres of international co-operation.

Besides the principle of socialist internationalism, the countries of the world socialist system apply other new principles engendered by socialism.

One of them has already triumphed in the relations between socialist countries. It is the principle of permanent peace due to such an objective factor as absence of antag-

onistic, class contradictions in the socialist community. As the history of international relations shows, wars are concomitants of the development of the exploiting states.

For centuries mankind searched for ways of eliminating military conflicts. But it was only Marxism-Leninism that found it through the abolition of the exploitation of man by man and the establishment of socialist society. Marx wrote in his day that there would come a time in human history when peace would become an international principle.^^1^^

This time came with the formation of the socialist community. In the socialist governments there are no representatives of the exploiting classes interested in starting wars. Moreover, their economic system is based on public ownership and plan principles and, consequently, is immune to crises. This latter factor has eliminated the economic causes of war. As a social phenomenon, war is incompatible with the new social relationships in the socialist countries, with the new laws governing the development of the socialist community. Hence peace is a natural and constant state of affairs between the socialist countries, and they have only one task---to oppose the war menace presented by the imperialist states and untiringly expose the aggressors.

The development of interstate relations in the socialist community inevitably leads to closer unity among states and nations, to wider all-round co-operation among them. "It is on this basis that the moral and political unity of all the peoples of the great socialist community has arisen and has been growing," says the Statement of the Meeting of Representatives of the Communist and Workers' Parties.² Because of this, the principle of non-aggression no longer applies to relations between the socialist countries.^^3^^ In their relations, these countries go far beyond this principle, for inherent in the new-type international relations is the principle of perpetual peace which ensues directly from the principle of socialist internationalism.

~^^1^^ See Marx and Engels, Selected Works, Vol. I, Moscow, 1962, p. 490.

~^^2^^ 7 he Struggle for Peace, Democracy and Socialism, Moscow, p. 50.

~^^3^^ See International Law Forms of Co-operation Between Socialist Countries, Moscow, 1962, p. 20; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 362.

5'

67

~^^1^^ See V. I. Morozov, CMEA---an Alliance of Equals, Moscow, 1964.

~^^2^^ See Pravda, Nov. 15, 1966.

Such a conclusion naturally in no way belittles the importance of the principle of peaceful coexistence, for the implementation of which the socialist countries are waging a persevering struggle. What is more, the new relation of forces in the world and the consolidation of socialism have created real possibilities for banishing wars from the life of society.

The state of permanent peace in the socialist community thus exerts a decisive influence on the international situation and helps solve the problem of eliminating wars once and for all.

Speaking of the principle of permanent peace, which has triumphed in the socialist community, one should not forget of course that relations between socialist countries may be marred by snags and disputes on concrete issues as well as by differences over home and foreign policy questions. But no difficulties or differences can alter the objective laws governing the development of the socialist community which have to overcome all sorts of such obstacles on their path.^^1^^

Interstate relations in the socialist camp are distinguished by the consistent application of the principle of democracy in the rules of international law.^^2^^ This means that because of their social nature the socialist states invariably take their peoples' wishes and interests into account in concluding agreements. There is nothing of the kind in the capitalist countries. Lenin stressed time and again that in the exploitive world "there are differences between the governments and the peoples, and we must therefore help the peoples to intervene in questions of war and peace".³ The point, he said, is that in capitalist society everything that particularly interests the citizens---their economic conditions, war and peace---is decided secretly from society itself. The most important questions---war, peace, diplomatic questions ---are decided by a handful of capitalists who deceive not only the masses but very often parliament itself.^^4^^

Since the capitalist system is exploitive by nature, the democracy of international law rules cannot become a prin-

ciple of co-operation in the capitalist world. This has been confirmed in practice in many capitalist countries whose history contains quite a few examples of international treaties being concluded in utter disregard of the peoples' vital interests and their peaceful aspirations.

The principle of democracy of international law rules has triumphed in the relations between socialist countries in which government by the people harmonises with foreign policy acts which are imbued with concern for the interests of the masses and for world peace.

The democratic nature of treaties concluded by the socialist countries was vividly described by Vasil Kolarov, Bulgarian Communist Party leader. "What primarily distinguishes our treaties from all other treaties is that they really express the people's will," he wrote. "It may safely be said that our peoples have obliged us to conclude these treaties and dictated their contents.''^^1^^

Associated with the principle of democracy is another important principle, the principle of humanity, which is characteristic of the relations of the states forming the socialist community.^^2^^

The economic, social and political emancipation of the masses in the socialist countries, their liberation from class and national oppression, and the all-round development of the workingman have become the aim for which a new world is being built. This is the basic purport of the revolutionary humanity born of the Great October Socialist Revolution.

The victory of socialism in a number of countries has paved the way to the establishment of international relations permeated with profound solicitude for man, for the masses. The motto "Everything for the sake of man, for the benefit of man" applies not only to the socialist states' home policy but to their foreign policy too. The result is that it has been secured in bilateral and multilateral treaties and is thus becoming a rule. All the international treaties concluded within the framework of the socialist com-

~^^1^^ See On the Character of Relations Between Socialist Countries, Moscow, 1964.

- See International Law Forms of Co-operation Between Socialist Countries, pp. 23-28.

•' Lenin, Collected Works, Vol. 26, p. 252.

'• Ibid., Vol. 30, p. 488.

~^^1^^ V. Kolarov, The Treaty of Friendship, Co-operation and Mutual Assistance Between the Bulgarian People's Republic and the Rumanian People's Republic, Sofia, 1948, p. 36.

~^^2^^ The C.P.S.U. Central Committee decision of January 4, 1967, on preparations for the fiftieth anniversary of the Great October Socialist Revolution, Pravda, Jan. 8, 1967.

munity guarantee the peaceful labour of the masses, ensure the rapid rate of their economic development and thus help constantly to improve their well-being, promote their cultural improvement, expand the public health and social security systems, etc.

No such humane functions have been or are being exercised by the international treaties concluded in exploitive society, where the bourgeoisie has left no link between people save naked self-interest and callous ``cash-payment''.^^1^^

Consequently, the principle of humanity could not come into existence anywhere but the great socialist community.

case it is creative employment of the old form in the fulfilment of new tasks, with the result that the old form inevitably becomes subordinated to the new content.

It is natural that all the general democratic principles cannot be used in the relations between socialist states. We have already said that there is no ground in the socialist community for the application of the principle of non-- aggression and, consequently, this principle is not mentioned in the various agreements concluded by the socialist countries.

The triumph of the principle of socialist internationalism in the relations between socialist countries predetermines a special attitude to the principle of peaceful coexistence.

The principle of peaceful coexistence and the principle of socialist internationalism operate in two different spheres: the former in relations between states with different socioeconomic systems, the latter within the socialist community of nations. Consequently, in the relations between socialist states the principle of peaceful coexistence is replaced by the higher, more profound and qualitatively new principle of socialist internationalism.

Other general democratic principles, such as state sovereignty, equality of states, non-interference, national selfdetermination, etc., continue to play a positive role in the socialist community too. What is more, the new type of international relations creates favourable economic and political conditions for their fuller and more consistent implementation.

All this is reflected in the content of the principles under review and imparts new qualities to them. This is not difficult to see even in the process of a cursory examination of the most important basic principles of the international law of today.

In present-day conditions state sovereignty, the basis of co-operation of states, is an inherent attribute of a state as a subject of international law. Without respect for state sovereignty there can be no peaceful coexistence and fruitful co-operation. While sovereignty in the capitalist world is the expression of the will of the ruling classes, a will that often militates against the country's national interests, in the socialist community state sovereignty is genuinely a democratic sovereignty. This democracy is ensured by the economic and social system of the socialist countries, the establishment of the working people's government, and the moral

3. APPLICATION OF THE PRINCIPLES

OF GENERAL INTERNATIONAL LAW

IN THE SOCIALIST COMMUNITY

In their relations with one another the socialist states do not reject the general democratic principles of international law; they constantly make use of them. The application of these principles is positively influenced by the operation of the principle of socialist internationalism which precludes the purely mechanical application of the old principles and rules of international law.^^2^^

Actually, it is a matter of applying the principles and rules of international law and simultaneously filling the old form with a new socialist content.^^3^^ In this particular

~^^1^^ See Marx and Engels, Selected Works, Vol. I, Moscow, 1962, p. 36.

~^^2^^ Besides the point of view on the nature of the principles of state sovereignty, equality and non-interference in domestic affairs expressed in this article, there is another in Soviet writings on international law, regarding these principles as new and coinciding only in name with the corresponding principles of general international law. (See G. I. Tunkin, "New Type of International Relations and International Law", Soviet State and Law, No. 9, 1959; K. T. Usenko, "Basic International Law Principles of Co-operation Between Socialist States", Soviet State and Law, No. 3, 1961; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, pp. 302-27.)

It should be stressed that, generally speaking, there are no fundamental differences between these two viewpoints inasmuch as both agree that these principles acquire a new, more profound content in relations between socialist countries.

~^^3^^ See L. Tolkunov, "New Stage in the Development of the World Socialist System", Communist, No. 3, 1961, pp. 19-20; R. L. Bobrov, Contemporary international Law, Leningrad, 1962, p. 11; "Theses for the Centenary of the First International", Pravda, Sept. 17, 1964.

and political unity of society.^^1^^ Such a change in the social basis of the principle of state sovereignty is bound to result in far-reaching reforms.

The new content of the principle of state sovereignty, its democracy, influences, among other things, the formation of international law rules within the socialist community, imparts a profoundly democratic and progressive character to them, and ensures their observance.

It is well known that the establishment of international law rules presupposes the co-ordination of the wills of states. Since the socialist states express their peoples' will, the rules they establish are genuinely democratic and free of the anti-democratic features inherent in the relations between the imperialist states. As these rules simultaneously reflect the interests of both the peoples and the states, relations between the socialist states create conditions for the harmonious co-ordination of state and national sovereignty and for the promotion of their unity, a thing that is inconceivable in capitalist society. Being closely bound up with the principle of socialist internationalism, the principle of state sovereignty is implemented in the interests of the socialist community in general and in the national interests of each country. Consequently, exclusiveness and nationalism are alien to the democratic sovereignty of the socialist countries. This strengthens their independence, accelerates their national economic development and makes for a rapid growth of the strength of the socialist community and its superiority over the capitalist camp.

One of the most important principles of present-day international law is that of the equality of states. The imperialist states constantly violate it with the result that very often there is de facto and de jure inequality and subordination of some states by others. It was only after the victory of the socialist revolution in Russia that a relentless struggle was launched to introduce the principle of real equality into international affairs. This principle was further developed after the emergence of the world socialist system. As the C.P.S.U. Programme says, complete equality is the distinctive feature of the relations between the countries of the socialist community. The big and powerful states and their weaker partners play an absolutely equal part in

~^^1^^ See The Struggle for Pence. Democracy and Socialism, Moscow.

the solution of all major and minor international issues. In the practice of the socialist countries, this principle of equality transcends the bounds of the de jure equality of states and aims at achieving de facto equality. In the capitalist world the rights and the duties are distributed unjustly, unequally, with the strong countries usually enjoying all the rights and the weak and dependent ones getting all the duties. It is different with the socialist countries. Just distribution of rights and duties in the socialist community precludes all possibility of dictation, of subordination of some states to others, as is often the case among the capitalist countries.

The genuinely equal co-operation of the socialist states is at the same time mutually advantageous co-operation, for within the bounds of new-type international relations the principle of equality and the principle of mutual advantage are indissolubly linked and sort of supplement each other.

In the socialist community the principle of equality facilitates the fulfilment of one of the greatest tasks in history--- the levelling out of the economic development of all socialist countries and the ensuring of their more or less simultaneous transition from socialism to communism.

This is stressed by the Statement of the Meeting of Representatives of the Communist and Workers' Parties of 1960, which says that every country in the socialist camp is ensured genuinely equal rights.^^1^^

``The equality established in the socialist community," says the Soviet-Hungarian Declaration of March 28, 1957, "differs radically from the fictitious equality which exists between the imperialist powers and small countries and which really means exploitation of the latter's peoples and plunder of their wealth by the imperialist monopolies.''^^2^^

Another principle playing a big role in helping the socialist countries live in peace as good neighbours is the principle of non-interference. Frederick Engels wrote: "To secure international peace it is essential first and foremost to eliminate all possible national friction, and every nation must be independent and master in its own house.''^^3^^

National independence, the inadmissibility of one state imposing its will upon another, recognition of the peoples'

~^^1^^ Tin' Struggle for I'eac.e. Democracy and Socialism, Moscow, p. 50.

- Prtiwlu. March 29, 1957.

^:i Marx/Engcls, Werke. B. 21, Berlin, 1962, S. 207.

right freely to manage their affairs---these are the main features of the principle of non-interference.

Unlike some imperialist states which export counter-- revolution, the socialist countries, being genuinely independent members of their community, strictly abide by the principle of non-interference.^^1^^ Its application within the socialist community is directly bound up with the Marxist-Leninist theory concerning the nations' right to self-determination. The implementation of the principle of non-interference promotes the development of national state systems and culture, the formation of socialist nations. Moreover, it is in complete harmony with the principle of socialist internationalism. The independence of states and nations within the socialist community is dialectically linked with fraternal mutual assistance, socialist international division of labour, broad exchange of economic and political experience, co-ordination of national economic plans, and specialisation in production. This extends the principle of non-interference far beyond the limits of general democratic rules, giving it a much deeper meaning.

The role played in international law by the principle of national self-determination has increased substantially thanks to the efforts of the Soviet Union and other progressive forces. In their relations with one another, the socialist countries have not only fully translated into reality the general democratic content of this principle but have made a big step forward by consistently implementing the MarxistLeninist theory concerning the nations' right to self-- determination. This demands, on the one hand, complete respect for the peoples' national independence and their traditions and, on the other, the achievement of the moral and political unity of all peoples and their fraternal alliance in the struggle for a new society.

Mutual assistance in economic development, mutual enrichment of cultures for the sake of universal advancement, and intolerance of nationalism and great-power chauvinism are the main features of the principle of national self-- determination within the socialist community. In its general democratic sense, the principle of national self-determination is incapable of ensuring all this.

The full and consistent implementation of the principle of national self-determination in the relations between socialist countries has actually brought about a situation in the socialist community in which some institutes of international law cease to have any significance but nevertheless remain valid. Such an institute as protection of national minorities as well as many clauses of the Declaration of Human Rights and provisions for basic freedoms are superfluous there because they have long abolished national inequality and racial exclusiveness. As for human rights and basic freedoms, they are enjoyed to such an extent that the above-mentioned Declaration and its recommendations may be said to be a stage the socialist countries have long passed in their social and political development.

General international law also includes rules secured in the 1948 Convention on Genocide. These rules naturally do not apply in any way to the socialist states inasmuch as any acts which could be qualified as genocide are totally precluded there.

It follows therefore that the new type of relations between the socialist states and the underlying principle of socialist internationalism create extremely favourable conditions for the consistent and thorough implementation of general democratic principles. The general democratic and socialist principles interact in the socialist community and both serve the cause of communist construction and contribute to international peace and security.

In conclusion, it should be stressed that the countries of the socialist community maintain close ties with the developing countries of Asia, Africa and Latin America. These ties afford graphic evidence of the interaction and alliance of the two insuperable forces of today---socialism and the national liberation movement. In giving the developing countries all-round assistance and thus helping them consolidate their independence, the socialist countries are fulfilling their internationalist duty.

The Soviet Union is also giving all possible support to the developing countries in international affairs.^^1^^

~^^1^^ See The Struggle far Pence, Democracy and Socialism Moscow \>. 50.

~^^1^^ See L. I. Brezhnev, Report of the Central Committee of the Communist Party of the Soviet Union to the 23rd Congress of the C.P.S.U., Novosti Press Agency Publishing House, p. 38.

7.5

Its assistance to the developing countries and co-operation with them are part of the socialist countries' progressive co-operation with this group of states, co-operation that assumes the form of international treaties and agreements securing and amplifying upon the genuinely democratic principles of interstate relations.

What distinguishes these treaties and agreements is that they implement most fully and consistently the principles of peaceful coexistence and really embody the revolutionary effect of the socialist economic system on the developing countries.

Consequently, the socialist community's all-round co-- operation with the developing countries is a major factor in the preservation of peace, in the development of the democratic principles of the international law of today.

G. B. Starushenko. LL. /).

ABOLITION OF COLONIALISM AND INTERNATIONAL LAW

The peoples' struggle against the alien yoke is as old as the history of exploitive social formations. Prior to the October Socialist Revolution, which ushered in the era of mankind's emancipation from social oppression, its successes were not adequate to settle the colonial problem. The states arising from the colonies became enslavers of other nations, like the United States, or were subjected to a new type of alien rule, as was the case with the Latin American states, most of which still suffer from foreign oppression today, 150 years after their formal liberation.

This state of affairs has altered fundamentally in the past half-century and particularly since the Second World War. The national liberation movement, actively supported by the Soviet Union and other socialist countries, has on the whole abolished the colonial system. Increasingly vigorous steps are being taken to fully abolish the last remaining colonial regimes. The Twenty-First U.N. General Assembly, for instance, condemned Portugal's policy of preserving her colonial possessions as a "crime against humanity".^^1^^ The session instructed the appropriate U.N. bodies to find means of implementing immediately and fully the Declaration on the Granting of Independence to Colonial Countries and Peoples.^^2^^ All these anti-colonial resolutions are based on international law principles.

Yet before the October Revolution international law refused to recognise any rights of the ``uncivilised'' colonial peoples. The latter were regarded merely as objects of the law of the ``civilised'', that is, bourgeois, states---as objects of their domination. The colonial powers could ``lawfully'' con-

~^^1^^ U.N. Resolution 2184 (XXI) of December 12, 1966.

~^^2^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

quer, buy and sell colonies, rob and kill their inhabitants. The bourgeois science of international law took great pains to justify colonial conquests. There were references galore to "pity for the poor natives", to the need to "convert natives to Christianity", to "civilise barbarians", etc.

Bourgeois scholars sought to explain away the monstrous treatment of the colonial peoples by saying that "the Law of Nations, as a law between states based on the common consent of the members of the Family of Nations, naturally does not contain any rules concerning the intercourse with and treatment of such states as are outside that circle".¹ American jurist Charles Cheney Hyde, claiming that international law was ``inapplicable'' to the colonial peoples, alleged that even if they had a statehood, they were " unfamiliar with the full requirements of civilisation as tested by the standards prevailing in the international society".^^2^^

The legal writings in those days stressed that the oppressed peoples had no right whatever to freedom. Expressing the view which prevailed before the October Revolution, the well-known international jurist F. List wrote: "No tributary state can repudiate protectorateship inasmuch as it has renounced its state sovereignty in favour of a sovereign state. Such repudiation is invalid as is, for instance, a colony's declaration of independence.''^^3^^

The complete liberation of the oppressed peoples became really possible only after the October Socialist Revolution. It was only then that there appeared international law principles and rules creating favourable conditions for the national liberation movement.

1. PROHIBITION OF COLONIALISM BY INTERNATIONAL LAW

Post-war developments show that in the abolition of colonialism the material basis is the united strength of the world socialist system, the national liberation movement, and the progressive forces in the advanced capitalist countries; however, the legal basis is present-day international law which

~^^1^^ L. Oppenheim, International Law, London, New York, Toronto, 1948, Vol. I, p. 47.

~^^2^^ Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1951, Vol. I, p. 84.

~^^3^^ F. List, International Law, Yuriev (now Tartu), 1917, p. 72.

accelerates and facilitates the peoples' liberation struggle.

To turn international law from a weapon perpetuating colonial oppression into one of struggle against the colonial system it was necessary, first, to create new principles and rules capable of facilitating the liberation of the oppressed peoples; second, to eliminate the reactionary and colonialist rules of international law, and, third, to create an international situation which could guarantee the observance of international law rules. A task of this sort naturally could be solved only by states not interested in oppressing and suppressing other countries and peoples. These were the socialist states, primarily the world's first socialist state, the Soviet Union, and the states which had just freed themselves from the colonial yoke (the Mongolian People's Republic, Afghanistan and others).

The formulation and proclamation of new anti-colonial principles began at the very inception of the Soviet state. Soviet Russia not only proclaimed new principles in international relations but added a democratic, anti-colonial content to a number of old principles. Such very important international acts as the Decree on Peace, the Declaration of the Rights of the Peoples of Russia, the Declaration of the Rights of the Working and Exploited People, and the Appeal of the Council of People's Commissars to the Toiling Moslems of Russia and the East proclaimed the following principles: the right of nations and nationalities to self-- determination up to and including secession and the formation of independent states; the inadmissibility of colonial wars; the equality of nations, nationalities and states; the renunciation of secret diplomacy, free development for national minorities and ethnographic groups, etc.

The proclamation of the principle of national self-- determination was especially important for the oppressed peoples, for it is this principle that later became the legal ground of the demand for the complete abolition of colonialism. The principle of self-determination is a new international rule, for unlike its predecessor, the bourgeois principle of nationality, it does not necessarily stipulate secession but implies the possibility of various nations and nationalities uniting voluntarily into a big state on a federal or other basis. Secondly, it does not apply only to the European peoples, but those of Asia, Africa and America, including the colonial peoples. Thirdly, it provides not only for the

granting to peoples of the formal right to independent existence but creates the conditions for its realisation. Fourthly, it recognises the peoples' right to uphold their independence with all the means at their disposal, to be masters of their destiny.^^1^^

When they formulated the principle of self-- determination, the leaders of the Soviet state and the Communist Party naturally conceived it as a political principle. In the 1920s it was recognised by all the Soviet Republics and by ten or so bourgeois states, as evidenced by numerous international acts. It may therefore be said that even then it was not only a political but an international law principle. Prof. Krylov, for instance, wrote back in 1923 that "the principle of self-determination permeates both foreign and home policies and is manifest in a whole number of institutes ( minorities' rights, option, plebiscite, etc.)".^^2^^

The foreign policy principles advanced by the Soviet Union, notably the principle of self-determination, proved to be so popular, and their impact on the minds of people throughout the world so great, that the Western powers were forced formally to proclaim their own principle of selfdetermination in order to neutralise the revolutionising effect of the steps taken in this sphere by the Soviet Union (see Lloyd George's statement of January 5, 1918, and Wilson's Fourteen Points). But the Western rulers' real attitude to the rights of the oppressed peoples was best expressed by the U.S. Secretary of State, Robert Lansing. "The phrase (the principle of self-determination---G.S.) is simply loaded with dynamite," he wrote. "What a calamity that the phrase was ever uttered!''^^3^^ It is not surprising therefore that at the Paris Peace Conference, when the time came to pass from words to deeds, the principle of self-determination was substituted by the mandate system which, to quote Lenin, meant that "for the first time in world history, we see robbery, slavery, dependence, poverty and starvation imposed upon 1,250 million people by a legal act"/^^1^^

The principle of self-determination finally asserted itself in international law after the Second World War when, at the insistence of the Soviet Union, it was included in the U.N. Charter. One of the purposes of the United Nations is "to develop friendly relations among nations based on respect for the principle of equal rights and self-- determination of peoples''.

The principle of self-determination is also reaffirmed in very many U.N. General Assembly resolutions, in the final communique of the Bandung Conference, in the decisions of the Belgrade and Cairo conferences of non-aligned countries, in the Charter of the Organisation of African Unity and, lastly, in the Pacts on Human Rights approved in 1966. Especially important is the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted on the initiative of the Soviet Union by the Fifteenth U.N. General Assembly on December 14, 1960. "All peoples have the right to self-determination," the Declaration says. "By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.''^^1^^ In other words, the question of a nation's right to self-determination has two interlinking aspects: 1) external, by virtue of which the people determine their international ``political'' status up to and including secession and the formation of an independent state, and 2) internal, which recognises their right to be complete masters in their own home.

In its resolution on the strict observance of the ban on the threat or use of force in international relations and the right of the peoples to self-determination, the 21st U.N. General Assembly definitely confirmed the existence of the two aspects of the right to self-determination.

The General Assembly, this document says, reaffirms "the right of peoples under colonial rule to exercise their right to self-determination and independence" (external side--- G.S.) "and the right of every nation, large or small, to choose freely and without any external interference its political, social and economic system" (internal side---G.S.).^^2^^ Moreover, it is pointed out that the external side is important mainly for the "peoples under colonial rule" and the inter-

~^^1^^ See G. B. Starushenko, The Principle of National Self-- Determination in Soviet Foreign Policy, Moscow, pp. 41-50.

~^^2^^ See S. B. Krylov, "Option, Plebiscite and the Principle of SelfDetermination in Soviet International Treaties", Soviet Law, No. 2 (5), 1923, p. 43.

~^^3^^ R. Lansing, The Peace Negotiations, London, 1921, p. 87. '' Lenin, Collected Works, Vol. 31, p. 224.

~^^1^^ Resolution 1514 (XV).

~^^2^^ U.N. Resolution 2160 (XXI) of November 30, 1966.

6-495

nal side for the newly-independent peoples ("nations large and small").

Colonialism flagrantly violates both aspects of the principle of self-determination, especially the external one. As for internal self-determination, it is altogether impossible so long as a nation has not solved the question of its international status. Proceeding from the principle of self-- determination, the Declaration on the Granting of Independence to Colonial Countries and Peoples proclaimed the necessity of "bringing to a speedy and unconditional end colonialism in all its forms and manifestations''.

The demand for the abolition of colonialism is argumented in the Declaration by other well-established international law principles as well ("equal rights of nations large and small", "national sovereignty", "territorial integrity", etc.). Consequently, proclaiming colonialism unlawful, the 1960 Declaration did not create a new international law rule but merely confirmed the line of conduct all the states should follow proceeding from the already universally recognised rules of international law.^^1^^

Therefore, one cannot recognise as correct the assertions of certain Western jurists that the declaration on the abolition of colonialism is not binding inasmuch as General Assembly resolutions are merely recommendations. Colonialism is unlawful not because it is contrary to the Declaration on the Granting of Independence to Colonial Countries and Peoples but chiefly because it flagrantly violates the basic principles of present-day international law, and in their struggle against colonialism in all its forms the peoples and countries invariably proceed from these principles.^^2^^ The

declaration of December 14, 1960, confirmed this. Colonialism has been finally outlawed.

The elimination of obsolete colonialist rules from international law was likewise stimulated by the initiative of the Soviet state. The Appeal of the Council of People's Commissars to the Toiling Moslems of Russia and the East of November 20, 1917, said the Soviet Government considered "null and void" all the treaties on the division of Turkey, Iran and other territories, and that it had cancelled all shackling agreements.

The renunciation of all unequal agreements was secured in a number of international treaties. The Soviet Government, said Article 1 of the Soviet-Persian Treaty of February 26, 1921, "declares null and void all the treaties, pacts, conventions and agreements concluded by the former tsarist government with Persia and derogatory to the rights of the Persian people".^^1^^

Soviet Russia's renunciation of unequal treaties helped the peoples of the East free themselves from one of the most infamous manifestations of colonialism---the capitulations system. The Government of the Russian Soviet Federative Socialist Republic, said the Soviet-Turkish Treaty of March 16, 1921, "considering the system of capitulations incompatible with the free national development of any country or with the full exercise of its sovereign rights, considers null and void all sorts of actions and rights in any way related to this system" (Art. 7).

This stand of the Soviet Republics and the struggle of the oppressed peoples forced the imperialist states to agree to the cancellation of the system of capitulations. Turkey rid herself of it when she signed the Lausanne Peace Treaty in 1923, Iran in 1928, and other countries did so later. The system of capitulations is practically non-existent today.^^2^^

~^^1^^ Prof. L. A. Mojoryan maintains that the illegality of colonialism became an "international law rule" even before the adoption of the 1960 Declaration and that it was consistently adhered to by the socialist and newly-independent states (see his "The Disintegration of the Colonial System of Imperialism and Certain Aspects of International Law", Soviet Yearbook of International Law, 1961, Moscow, 1962, p. 38).

~^^2^^ The Charter of African Unity, for instance, is based on the following principles: sell-determination of peoples (Preamble), sovereign equality, non-interference, respect for sovereignty and territorial integrity, peaceful settlement of disputes, non-alignment (Article 3). The Declaration of the Cairo Conference of the Heads of State and Government of Non-aligned Countries is based on the principles of self-determination, equality of peoples, peaceful coexistence, etc.

S2

~^^1^^ Treaties, Agreements and Conventions with Foreign States, Issue 1, Moscow, 1924, p. 148.

~^^2^^ In Morocco the United States retained the rights provided for by this system until 1956 but was forced to waive them under^ the pressure of the national liberation movement (see R. Young, "End of American Consular Jurisdiction in Morocco", The American Journal of International Law, March 1957, pp. 402-06).

The system of capitulations has prevailed in one form or another only in some sultanates and emirates of the Arabian Peninsula.

The elimination of colonialist rules, the blow dealt the system of unequal treaties, and the establishment of new anti-colonial principles and rules in international law created exceptionally favourable international conditions for the national liberation movement. The oppressed peoples ceased to be objects of alien rule and became subjects of rights and obligations. Under the international law of today, sovereign and non-sovereign peoples alike enjoy the following rights: to self-determination (U.N. Charter), to defence from extermination (Convention on Genocide), to protection against racial discrimination (U.N. Declaration on the Elimination of All Forms of Racial Discrimination), to protection in times of war and all other kinds of military conflicts (1949 Geneva Conventions for the Protection of War Victims), etc. International law requires observance of the principle of equality in relation not only to states but peoples.^^1^^

The newly-independent nations have acquired not only definite rights but the possibility of exercising them. This is due to the radical change in the correlation of the world's forces in favour of socialism and progress and to the detriment of imperialism and reaction. For the newly-free countries the emergence and consolidation of the world socialist system of states mean, first, material defence against the attempts by old and new colonial powers to restore or preserve their rule; secondly, the possibility of obtaining real economic, technical and scientific aid on a just, mutually advantageous basis to secure their economic independence, without which political independence remains a mere formality; and, thirdly, permanent political and legal protection.

To render maximum assistance to the liberation movements while working to preserve universal peace and to prevent the outbreak of a catastrophic thermonuclear war, the Soviet Union and other socialist states pursue a policy based on the principles of peaceful coexistence and not a pacifist policy. This policy enables them to support the peoples' struggle for self-determination, complete liberation and genuine equality with all lawful means.

That the colonial peoples' rights are becoming increasingly real is evidenced by the results they have achieved in their liberation struggle since the appearance of the first socialist states. In 1917, on the eve of the October Socialist Revolution, 77 per cent of the world's territory and 69 per cent of its population were under colonial rule. Today, only 4 per cent of the territory with an aggregate population of 35 million, or about 1 per cent of the total, remain in colonial fetters.

About 70 new states have appeared on the map of the world since the end of the Second World War. A number of territories, moreover, have gained freedom by joining newlyindependent states (for instance, West Irian joined Indonesia, Goa joined India, Zanzibar united with Tanganyika to form a single state known as Tanzania, etc.).

The fact that a number of new states have themselves decided what social system they want is evidence that they are independent in fact and not merely in name. Cuba, for instance, has chosen socialism and the United Arab Republic, Algeria, Mali, Burma, Guinea, Syria, Tanzania and the Congo (Brazzaville) have taken the path of non-capitalist development which may bring them to socialism.

The quantitative changes in the liberation movement ( increase in the number of independent states) have turned into qualitative ones: the colonial system of imperialism has gone out of existence. The national liberation movement is now in the process of eliminating the last remnants of the colonial regimes. At the same time, it is confronted by new tasks---consolidation of political independence and struggle for economic and social emancipation. The peoples' struggle has entered a new stage.

2. ILLEGALITY OF NEOCOLONIALISM

Life shows beyond all doubt that the abolition of colonialism is a law-governed historical development specific to our epoch. Like all other developments of this kind, it requires a persevering struggle by all the revolutionary antiimperialist forces against the colonial policy of imperialism.

Colonialism is a system not only of political domination but of the economic exploitation of other countries, a system which prevents the free development of their produces

~^^1^^ For details see G. A. Osnitskaya, "Colonial Conceptions Regarding Subjects of International Law, Full-fledged and Otherwise, in the Theory and Practice of Imperialist States", Soviet Yearbook of International Law, 1962, Moscow, 1963, p. 49.

tive forces---especially the most important productive force, the working people---and which makes use of military, political, economic and ideological means. That is why the elimination of the colonial system of imperialism, that most odious by-product of the foreign policy of the exploitive states, makes imperative the struggle against neo-- colonialism, a colonial policy pursued by new methods and means. Despite their diversity, the neo-colonialist methods have one thing in common: violation of the internal aspect of the principle of self-determination, that is, the right of nationalities and nations to be complete masters in their own homes.

It cannot be said that all the actions taken by powers following the policy of neo-colonialism militate against the interests of the peoples striving for freedom. Some are even useful, for to a certain extent they promote their economic development and facilitate their struggle against disease and ignorance. On the whole, however, neo-colonialist measures aim at keeping the newly-independent country concerned within the capitalist system and retaining the possibility of exploiting its people and natural wealth, and this inevitably entails intensified political control, ideological subversion and gross interference in its domestic affairs, in short, the preservation of alien rule.

One of the methods of neo-colonialism is the conclusion of unequal treaties. The illegitimacy of many treaties is evident from the very circumstances in which they are concluded. At the time of the disintegration of the colonial empires there were especially many instances of metropolitan countries imposing shackling treaties as a precondition of independence. Thus, on July 4, 1946, the Philippines was forced to sign a treaty of general relations with the United States^^1^^ which gave the American imperialists control over the Philippine defences and armed forces. And on June 27, 1960---that is, on the day after the proclamation of the Malagasy Republic's independence---France imposed upon it a number of agreements^^2^^ which badly impaired its sovereignty in the foreign policy, defence, finance and economic spheres.

A country which does not yet possess independence is naturally not an equal partner of the metropolitan country and is compelled to agree to terms which it would never accept in different circumstances. In some instances, the dependencies were represented in the negotiation of such agreements by the colonial officials of the metropolitan country.

The illegality of many neo-colonialist treaties is also evident from the fact that the contracting parties are in an unequal position as far as obligations and opportunities are concerned. True, the Western powers have of late been including a clause on "equal opportunities" for the sake of camouflage. But how can there be any talk about "equal opportunities" when one of the contracting parties is an imperialist state armed to the teeth and economically powerful, and the other is a weak country bled white by its alien rulers. The Franco-Malagasy agreement of 1960 on the reciprocal employment of civil servants in practice paved the way to French control over all the state institutions of the Malagasy Republic.^^1^^ Such agreements violate one of the basic principles of the international law of today---the principle of equality---and consequently cannot be regarded as the international law sources of the rights and obligations the states are bound to observe and respect. Unequal treaties, Emmerich von Vattel wrote more than 100 years ago, were "those in which the parties did not assume the same or equivalent obligations", those which benefited only one party.^^2^^

The neo-colonialist treaties imposed by the imperialists upon new states are also contrary to other basic principles of international law, such as the principles of state sovereignty, non-interference and self-determination; they are therefore illegal and invalid. This applies to agreements on economic, military, financial and technical assistance which, in the conditions where the colonial system is crumbling, are widely used as weapons of neo-colonialist policy.

The imperialists use agreements on military aid to go on

~^^1^^ Sec Journal officiel de la Republique Francaise, July 19-20, 1960.

~^^2^^ E. von Vattel, Le droit des gens on principes de la loi naturelle appliques a la conduite et aux affaires des nations et des souverains, Paris, 1863, Vol. II, p. 164.

~^^1^^ See United Nations. Treaty Series, Vol. 7, 1947, p. 4.

~^^2^^ See Journal officiel de la Republique Frangaise. Lois et decrets, July 19-20, 1960.

exploiting the newly-independent nations and their natural wealth and to interfere in their domestic affairs.^^1^^

The aims of neo-colonialism are also served by the aggressive military blocs set up by the imperialist powers (NATO, SEATO, CENTO). These blocs, whose activity is utterly contrary to the basic principles of international law, are being used by the colonial powers against the national liberation movement (Vietnam, Angola, Mozambique, the Dominican Republic, etc.).

Among other things, military pacts ignore the principle of non-interference. Article 2 of the SEATO^^2^^ pact binds the signatories to take action against subversion of their territorial integrity and political stability from without and Article 4 gives them the ``right'' to joint efforts in the sphere of ``defence'' in the event any of the states in the "treaty area" is threatened in any way other than by armed attack or by any other fact or situation. The deliberately vague formulations of the pact allow the imperialist powers to use SEATO whenever they want to establish and preserve the neo-colonialist order.

To secure their rule the colonial powers use their military bases. The imperialists have forced many new Afro-Asian and Latin American states to sign illegal agreements on the preservation of their military bases on the latter's territory. These agreements, usually forced upon these states before the proclamation of their independence, actually revive the ``settlements'', extraterritoriality and the system of capitulations rejected by present-day international law.

Under the agreement with the Philippines of March 14, 1947, for instance, the United States has acquired the free-

dom of movement throughout that country. The Americans are exempt from customs duties and all other levies and taxes. The United States can make use of any government services, aerodromes, ports, roads, rivers, etc., for its needs.^^1^^

As the new states consolidate their independence, they intensify their struggle for the abolition of foreign bases on their territory. The idea that such bases are inadmissible, which the Soviet Union has advanced and upholds, is meeting with increasing support. "Parts of territories taken away by occupying Powers and converted into autonomous bases for their own benefit at the time of independence must be given back to the countries concerned", says the Declaration of the Cairo Conference of Non-aligned Heads of State or Government (Part V, Para. II). The Twenty-First U.N. General Assembly supported the Soviet Union's proposal and requested "the colonial Powers to dismantle their military bases and installations in colonial Territories".^^2^^

The establishment of reactionary puppet regimes is another form of neo-colonialism, and a very common one, which enables the colonial powers to use different ways of implementing this policy (including those enumerated above) and give them a semblance of ``legality''. Such regimes are often set up by the colonial powers before granting formal independence and they do it by reorganising the colonial administration into a government (for instance, most of the countries of tropical Africa received independence together with regimes suiting their former masters). Puppet regimes are also imposed by the imperialist powers with the aid of overt (Guatemala, Gabon, South Vietnam) or covert intervention (Brazil, Thailand), or by open support of the forces the people want to overthrow (South Vietnam, Venezuela).

The above-mentioned neo-colonialist methods naturally do not exhaust the arsenal of weapons that imperialism now uses in the pursuit of its neo-colonialist policy. Diverse as they may be, these methods have one thing in common: the illegality of the aims they are meant to achieve---- preservation or restoration of alien rule.

~^^1^^ The U.S.-Philippine agreements restrict the independence of the Philippines in the organisation of its defences. The Philippines is forbidden to acquire the war materiel it needs from other countries without the consent of the United States or employ any foreigners other than U.S. citizens in its armed forces.

The agreements gave the United States access to secret materials ostensibly to check whether the Philippines was making appropriate use of the aid given it. In practice, this gave the United States unlimited opportunity to interfere in that country's internal affairs (see A. N. Talalayev and V. G. Boyarshinov, "Unequal Treaties as a Weapon for Keeping the New Afro-Asian States in Colonial Dependence", Soviet Yearbook of International Law, 1961, Moscow, 1962.

~^^2^^ Bulletin of Department of State, No. 795. September 20, 1951.

~^^1^^ United Nations. Treaty Series, Vol. 43, 1949, pp. 276-80.

~^^2^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

S9

3. WAYS AND MEANS OF ABOLISHING COLONIALISM AND NEO-COLONIALISM

Today, when the principles demanding the abolition of colonialism have become firmly established in international law, the imperialist states seek to distort them and even introduce their own neo-colonialist principles into foreign affairs. They deny the new countries' state sovereignty, refuse to recognise the national sovereignty of the nationalities and nations which have not yet achieved statehood, and distort the meaning of the principles of non-- interference and self-determination and other anti-colonial rules. That is why the centre of attention has now shifted to the struggle around the question of ways of implementing anticolonial principles and rules.

Western representatives still affirm that international law and, especially, the U.N. Charter contain no binding provisions for the abolition of the colonial order, that the colonies should be granted independence only if they "can stand on their own feet", that premature liberation may lead to "instability and chaos", and so on. The 24-Nation Committee declared invalid these assertions of the colonial powers, which opposed granting "small territories" the right to self-determination on the grounds that they were incapable of independent existence. It showed that the status of each colony should be determined by its people in the conditions of full freedom.

The question of abolishing the colonial order in any territory may also be raised by other states as well as by the United Nations. All that is required is the will of the selfdetermining people, expressed in one way or another. However, the question of the liberation of the territory in question may also be raised as part of a general plan for the abolition of colonialism. It follows from the U.N. Charter that the question of liberating a nation may be raised at any time, and the quicker the better, since keeping nations in subjection is contrary to the underlying principles of the United Nations (Articles 1 [Para. 2) and 55 [Para. C] of the Charter).

As the imperialist powers hinder the liberation of the oppressed peoples or else force them to agree to incomplete independence, the question of the means they should choose in their struggle is of particular importance. Seeking to

disarm the peoples, the apologists of imperialism demand that this struggle should be waged "in accordance with constitutional processes, and with proper regard for the rights of other states and peoples".^^1^^ They attack armed struggle, national liberation wars and social revolutions with particular violence, labelling them acts of "internal aggression''.

The Soviet Union and the other socialist countries uphold the peoples' right to use any means in their struggle against the colonial yoke, including uprisings, liberation wars and revolutions.

National liberation wars, being a means of defence against the illegal actions of the colonial powers, cannot be qualified as "acts of internal aggression". In the past the liberation wars waged by the oppressed peoples were recognised as just by international law (the War of Independence in North America in 1775-83, the war of independence in the Spanish possessions in South America in 1810-25, the Slav peoples' war against the Turkish yoke, etc.). Such wars are absolutely just now, when colonialism has been outlawed.

Article 51 of the U.N. Charter, it may be recalled, speaks of the "inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the necessary measures to maintain international peace and security". The right to self-defence of states not affiliated with the United Nations is likewise recognised. As for the oppressed peoples fighting for liberation, these are, as we have said above, subjects of international law and as such definitely enjoy the right to self-defence.^^2^^

The legitimacy of liberation wars is also recognised in the Declaration of Human Rights, which regards it as a last resort ("Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against

~^^1^^ This proposal was made by the American representative at the eighth session of the Commission on Human Rights in the spring of 1952 (U.N. Document E/CN, 4/L, 28/Rev. 2).

~^^2^^ See L. A. Mojoryan, "The Disintegration of the Colonial System of Imperialism and Certain Aspects of International Law", Soviet Yearbook of International Law, 1961, p. 39; R. A. Tuzmukhamedov, Op. cit., p. 185; V. K. Sobakin, Collective Security Is an Earnest o} Peaceful Coexistence, Moscow, 1962, p. 409.

tyranny and oppression, that human rights should be protected by the rule of law. . .").

At the 1954 Geneva Conference national liberation wars were recognised as a means of peoples' struggle against colonialism.^^1^^

The Cairo Conference of Non-aligned States likewise recognised liberation wars as legitimate and thus substantiated its decision:

``The process of liberation is irresistible and irreversible. Colonised peoples may legitimately resort to arms to secure the full exercise of their right to self-determination and independence if the colonial powers persist in opposing their natural aspirations" (Part I).

Now that socialism has become the decisive factor of world development, and the liberation movement and the international authority of new states are growing rapidly, the peaceful method of abolishing colonialism and eliminating its consequences is prevailing increasingly over the nonpeaceful. Three-quarters of the states which have come into existence since the end of the Second World War have acquired independence in a relatively peaceful way. The imperialists were in fact compelled to grant them independence under the pressure of the national liberation movement which had the all-round support of the socialist states and the workers' movement in the metropolitan countries.

The efforts made by reactionary jurists to ``outlaw'' social revolutions and the establishment of more progressive systems in the new countries, and thus to justify the export of counter-revolution by the imperialist powers, have no legal basis.

The U.N. Charter fully recognises the right of each people and each nation to run its own life, and forbids interference in its internal affairs from without. People's right to selfdetermination includes the right to rebuild their entire life. That is as far as international law can go. As for the means people employ to reorganise their social, economic or political system, that is their own affair.

This principle, upheld by the Soviet Union since its inception, is now supported by the absolute majority of the states. "Foreign pressure and intervention to impose changes

in the political, economic and social system chosen by a country are contrary to the principles of international law and peaceful coexistence," says the Declaration of the Cairo Conference of Non-aligned Heads of State or Government (Part V).

One important means of struggle against neo-colonialism is the abrogation of unequal treaties. The legal ground for this is the principle of illegality of unequal treaties which has become established in international law with the active assistance of the socialist and newly-independent states. At the insistence of the former it was reaffirmed in an important multilateral international agreement, in the Declaration on the Neutrality of Laos (1962). The signatories to this document agreed that the Laotian Government "will cancel all treaties and agreements" contrary to the principles of peaceful coexistence; to the principles of Laos's sovereignty, independence, neutrality, unity and territorial integrity; to the principle stating that there should be no foreign military bases on its territory and that its territory should not be used for military purposes; to the principle stating that foreign aid extended to it should not be granted on any political or other conditions infringing upon its independence; and to the principle binding Laos not to join or accept the protection of any military bloc, including SEATO.^^1^^

The principle concerning the illegality of unequal treaties has also been reaffirmed by authoritative international lawyers in the U.N. Committee of International Law. This committee has prepared a document which is to serve as a basis of an international convention on the right of agreement. It states: "A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.''^^2^^

The comment on this document mentions slave trade, genocide, piracy and treaties violating the equality of states or the principle of self-determination as actions contradict-

~^^1^^ See Izvestia, July 31, 1962.

~^^2^^ "Report of the International Law Commission on the Work of Its 15th Session, May 6-July 12, 1963". General Assembly. Official Records: 18th Session, Supplement No. 9 (A/5509), United Nations, New York, 1963, p. 11.

~^^1^^ For details see Manfred Lachs, Uklady indochinskie, Genewa 1954 (1954 Geneva Agreements on Indo-China), Warsaw, 1955.

ing jus cogens.^^1^^ It is evident, therefore, that treaties directed at restoring colonial dependence in any form are also invalid.

Of late there have been numerous instances of completely justified abrogation of shackling treaties.^^2^^

It should further be stressed that it is now the duty of the administering powers to free the non-self-governing countries. This duty is imposed upon them both by Art. 1, Para 2, of the Charter, which proclaims the principle of self-determination, and by Articles 73b and 76b, which specify the administering powers' responsibilities towards the non-self-governing territories.

This interpretation of the Charter, long upheld by the official representatives and jurists of the Soviet Union, was reiterated in the Declaration on the Granting of Independence to Colonial Countries and Peoples. "All armed action or repressive measures of all kinds directed against dependent peoples," it says, "shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.''^^3^^

The Soviet Union has always maintained that if a colonial power does not fulfil its duty and free its colonies it should be treated as an aggressor and be subjected to sanctions. In its Statement on Angola of May 1961, the Soviet Government urged all states and nations to "compel Portugal to end its predatory colonial war in Angola and abide by the principles of the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples.''^^4^^ This stand is now widely supported both inside and outside the United Nations. The Twenty-First U.N. General Assembly in 1966 again recommended the Security Council to take sanctions against Portugal and South Africa in order

to accelerate the abolition of colonialism and racialism in the south of Africa. The Cairo Conference of NonAligned States called upon its participants to assist the special Organisation of African Unity bureau in applying sanctions against Portugal, to sever diplomatic and consular relations with that country, and take effective measures to discontinue all trade and economic relations with it.

The international law of today allows states to help the peoples fighting for independence. This proposition is now backed by most countries. The participants in the Cairo Conference undertook to "work unremittingly to eradicate all vestiges of colonialism and to combine their efforts to render all necessary aid and support, whether moral, political or material, to peoples struggling against colonialism and neo-colonialism" (Part I). The Twenty-First U.N. General Assembly announced that it "reaffirms its recognition of the legitimacy of the struggle of the peoples under colonial rule to exercise their right to self-determination and independence and urges all States to provide material and moral assistance to the national liberation movements in colonial Territories".^^1^^

The African states are establishing training facilities for insurgents from the Portuguese colonies, and supplying them with arms and ammunition. Such actions constitute legitimate collective self-defence against the colonialists' collective aggression (Portugal is supported by NATO members).

The Soviet Union has long been giving such assistance to the peoples fighting for independence. It has rendered considerable political, moral and material aid to the peoples of Algeria, Angola, Mozambique and many other countries.

International law is a sphere of relentless political struggle whose results have contributed and are contributing to the abolition of colonialism. This struggle shows that very often the political ideals of the revolutionary peoples become legal principles of world-wide importance thanks to the active foreign policy of their states. These principles turn into a mighty force after they have captivated the minds of the masses and have to be reckoned with by all states, including the imperialist. The latter naturally do everything they can to avoid observing international law principles, and very often grossly violate them; however, these

~^^1^^ See "Reports of the International Law Commission on the Second Part of Its 17th Session, January 3-28, 1966, and on Its 18th Session, May 4-July 1966". General Assembly. Official Records: 21st Session, Supplement No. 9 (A/6309 Rev. I), United Nations, New York, 1966, pp. 76-77.

~^^2^^ Abrogation of the 1952 U.S.-Cuban military aid treaty by Cuba in 1960; of unequal agreements with France by Mali; of the agreement on bases with the United States by Morocco; of the defence ``agreement'' with Britain by Nigeria, etc.

~^^3^^ U.N. Resolution 1514 (XV) of December 14, 1960.

~^^4^^ Pravda, May 27, 1961.

~^^1^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

.95

principles triumph in the end. This is evidenced by the abolition of the colonial system of imperialism on the basis of the principles advanced by the Soviet state half a century ago.

States and peoples have every possibility of making effective use of international law in the struggle against neo-colonialism, just as they did in the struggle against colonialism.

N. A. Vshakov, LL. D.

INTERNATIONAL LAW AND SOVEREIGNTY

Sovereignty is one of the most important principles of international law.

Without an understanding of the essence of sovereignty there can be no understanding of the substance and nature of international law, of the questions of the relationship between international and national law, domestic jurisdiction of states and the nature and limits of their authority, the legal nature of territory and the nature of international organisations, of the peaceful coexistence of states with differing socio-economic systems, and many other questions.

Since sovereignty is an inherent political-legal feature of any state, it predetermines the existence and development of important international principles, such as respect for state sovereignty, sovereign equality, territorial integrity and political independence of states, non-interference in their domestic affairs, and non-aggression.

When national movements came into existence sovereignty ceased to be only a state feature and became a national one. In our day, state and national sovereignty are closely linked categories.

1. THE CONCEPT OF STATE SOVEREIGNTY

State sovereignty implies a state's territorial supremacy and independence in international affairs.^^1^^

Sovereignty is an indispensable political and legal feature of any state, inseparably bound with its specific nature.

One important feature of any society organised into a state is public state power. Although this power does not

~^^1^^ See G. I. Tunkin, Fundamentals of Present-day International Law. A Textbook, Moscow, 1956, p. 15. A more or less similar definition of sovereignty is given by many Soviet jurists.

7-495

exhaust the concept and features of the state, it personifies the state and acts on its behalf. The activity of a state ensues directly from the activity of state power. Consequently, as a state feature, sovereignty is at the same time specific of state power.

Sovereignty, however, belongs to the state and not to state power. This is especially clearly manifest in international law which regards the state and not state power as a subject of law, and accordingly settles questions concerning the recognition of states, their responsibilities, etc.

State power is a ramified system of state organs exercising together the internal and external functions of the state. A permanent diplomatic representative of a state or its plenipotentiary appointed to conduct negotiations with another state exercises the functions of sovereignty to the same extent as the supreme organs of state power. As in the case of the state, sovereignty is a feature of state power as a whole and not its individual organs.

Sovereignty is not a formal legal category. It reflects the real qualitative features of the state which are manifest in real social relationships. The state is a real force capable of being the supreme governor of its territory and a sovereign independent organisation in international affairs.

The concept of sovereignty includes only the legal features of the state (supremacy and independence). It does not point at the other categories of decisive importance for understanding the essence of the state and, consequently, the essence of state sovereignty. Therefore, the concept of sovereignty as a political and legal feature of the state may be analysed only if one bears in mind the fact that the social essence of the sovereignty of a given state is ultimately determined by its socio-economic structure.

The sovereignty of states with differing socio-economic systems has a different social basis. In this sense, the sovereignty of socialist states differs fundamentally from that of bourgeois states.

The sovereignty of a capitalist state is an expression of the rule of the bourgeoisie which protects private capitalist property and the system of exploitation of the working classes with the aid of the state.

The abolition of private ownership of the means of production and their transformation into the property of the

entire people lead to the establishment of a qualitatively new, socialist type of state and alter the socio-political nature and significance of sovereignty. State power ceases to be a weapon of oppression of the working masses, the means of their suppression. A sovereign socialist state is used by the working class to build socialism and communism. The working class fulfils this historic mission in the interest of all working people.

Sovereignty, as a particular feature of the state, is not an eternal category. The state is a historical social phenomenon. It appeared as a result of society's division into classes. It will become unnecessary and wither away with the disappearance of classes and the construction of communist society. "Historical development inevitably leads to the withering away of the state," says the C.P.S.U. Programme. "To ensure that the state withers away completely, it is necessary to provide both internal conditions ---the building of a developed communist society---and external conditions---the victory and consolidation of socialism in the world arena.''^^1^^

As we have said above, the sovereignty of a state finds expression in two inseparably linked qualities---its territorial supremacy and its independence in international affairs.

The supremacy of the state means subordination to it of all persons and organisations within the bounds of state territory.

The state has supreme power over all the organisations and persons on its territory. All these organisations and persons are bound to submit to it. Exceptions to this rule are possible only with the direct consent of the state in each concrete case or in accordance with international law rules which, as is known, are established on the basis of agreement among sovereign states.

The state exercises territorial supremacy and full public power (legislative, executive and judicial) over the population, precluding the operation of any other power within its confines. State power exercises its functions within the bounds of state territory and governs it, organising it administratively, for instance. The commands of state power within the limits of state territory are binding on all the organs of the state, officials, organisations, and citizens.

~^^1^^ The Road to Communism, p. 556.

CONTEMPORARY

INTERNATIONAL

LAW

Collection of Articles

Russian text

edited

by Grigory Tunkin, LL. D.

Progress Publishers Moscow

Translated from the Russian by G. Ivanov-Mumjiev

Designed by V. Yeryomin

CONTENTS

COBPEMEHHOE

nPABO

Page

PEACEFUL COEXISTENCE AND INTERNATIONAL LAW, by

G. /. TUNKIN................... 5

BASIC PRINCIPLES OF PRESENT-DAY INTERNATIONAL LAW,

by R. L. BOBROV...................56

INTERNATIONAL LAW IN RELATIONS AMONG SOCIALIST

COUNTRIES, by V. M. SHURSHALOV...........59

ABOLITION OF COLONIALISM AND INTERNATIONAL LAW, by

G. B. STARUSHENKO.................. 77

INTERNATIONAL LAW AND SOVEREIGNTY, by N. A. USHAKOV 97 INTERNATIONAL LAW AND THE U.N., by G. I. MOROZOV 118

THE DISARMAMENT PROBLEM IN INTERNATIONAL LAW, by

O. V. BOGDANOV...................141

Ha

SOURCES OF PRESENT-DAY /. /. LUKASHUK.....

INTERNATIONAL LAW, by

First printing 1969

HOW FOREIGN POLICY AND DIPLOMACY INFLUENCE THE ESTABLISHMENT OF INTERNATIONAL LAW RULES, by D. B. LEVIN....................1SS

RECOGNITION OF STATES AND GOVERNMENTS IN PRESENTDAY INTERNATIONAL LAW, by D. I. FELDMAN......204

NEUTRALITY IN PRESENT-DAY INTERNATIONAL LAW, by

L. A. MOJORYAN..................216

THE HUMAN RIGHTS PROBLEM IN PRESENT-DAY INTERNATIONAL LAW, by A. P. MOVCHAN............233

TECHNOLOGICAL PROGRESS AND TODAY, by M. I. LAZAREV . . .

INTERNATIONAL LAW ...........251

FUNDAMENTAL PRINCIPLES OF SPACE LAW, by G. P. ZI1UKOV 263

Printed in the Union of Soviet Socialist Republics

G. /. Tunkin, LL. D.

PEACEFUL COEXISTENCE AND INTERNATIONAL LAW

1. LENIN'S THESIS

ON THE PEACEFUL COEXISTENCE

OF SOCIALIST AND CAPITALIST STATES

Lenin's thesis on the peaceful coexistence of socialist and capitalist states is closely linked with the Marxist-Leninist theory of imperialism and proletarian revolution. Proceeding from the fact that capitalism was developing unevenly, Lenin proved that a socialist revolution could not take place simultaneously the world over, that at first it would occur in one or several countries and that, consequently, there would inevitably be a period when the socialist and capitalist states would exist side by side.

The question, then, was one of relations between the states of these two diametrically opposed social systems. The answer to this question was given in the theory of the proletarian revolution Lenin and the Communist Party had elaborated before the Great October Socialist Revolution of 1917. After the revolution the principles were further developed and implemented.

Rejecting Trotsky's idea of "permanent revolution" as "absurdly Left",^^1^^ Lenin was against ``pushing'' the revolution, against spreading it by force. Those who claimed that "the interests of the world revolution require that it should be given a push and that such a push can be given only by war"^^2^^ were "either madmen or provocateurs", Lenin said.

The peace policy of the proletarian state is predetermined by its class essence, by the nature of the socialist system.

~^^1^^ See Lenin, Collected Works, Moscow, Vol. 20, p. 346.

~^^2^^ Ibid., Vol. 27, p. 71.

It is always the people's blood that is spilled in wars, always the working masses that suffer most. And so, saying that "civil wars, i.e., wars waged by an oppressed class against the oppressor", and defensive wars were progressive in character, Lenin stressed that "Socialists have always condemned wars between nations as barbarous and brutal".^^1^^

The resolution adopted at the conference of the Russian Social-Democratic Labour Party organisations abroad, held in Berne from February 27 to March 4, 1915, stated that the future state of proletarian dictatorship would resort to war only "to safeguard the gains made by the victorious proletariat in the struggle against the bourgeoisie".^^2^^ The resolution passed by the Seventh All-Russia Conference of the Russian Social-Democratic Labour Party (Bolsheviks) in April 1917, pointed out that if the proletariat took over power in Russia it "would immediately and openly propose to all nations to conclude a democratic peace fully renouncing all annexations and indemnities".^^3^^

Accordingly, the Soviet state consistently followed the principle of peaceful coexistence in its foreign policy. In its Decree on Peace of November 8, 1917, it proclaimed predatory, aggressive wars to be "the greatest of crimes against humanity" and urged the belligerent states to stop the slaughter and immediately negotiate a just, democratic peace.^^4^^

The Communist Party of the Soviet Union has always proceeded from the Leninist thesis that the struggle between the states of the two systems will be decided by their economic competition and that in present-day conditions socialism exerts its influence on the world revolutionary process chiefly by its economic successes. Back in 1921 Lenin wrote: "We are now exercising our main influence on the international revolution through our economic policy.. .. The struggle in this field has now become global. Once we solve this problem, we shall have certainly and finally won

on an international scale. That is why for us questions of economic development become of absolutely exceptional importance. On this front, we must achieve victory by a steady rise and progress which must be gradual and necessarily slow.''^^1^^ This fully substantiates the thesis that peaceful economic competition is the decisive factor in the battle of the two systems.

Lenin thus regarded the Soviet state's policy of peaceful coexistence with the capitalist countries not as a transient policy dictated by capitalism's military and industrial superiority over socialism in those days but as a policy which best accords with the working people's interests and, consequently, with the principles of proletarian internationalism.

There was also the question of whether the capitalist countries would consent to peaceful coexistence with the socialist state, in other words, whether peaceful coexistence was possible as a state of relations between the socialist state and the capitalist states.

Lenin answered this question in the affirmative. The socialist state's peaceful coexistence with the capitalist countries was quite feasible, Lenin and the Communist Party held, and the developments have fully corroborated it.

Lenin did not preclude the possibility of wars between the states of the two systems. What is more, he then thought them inevitable. Delivering the Central Committee's report to the Eighth Congress of the Russian Communist Party (Bolsheviks) on March 18, 1919, he said: "We are living not merely in a state, but in a system of states, and it is inconceivable for the Soviet Republic to exist alongside the imperialist states for any length of time. One or the other must triumph in the end. And before that end comes there will have to be a series of frightful collisions between the Soviet Republic and the bourgeois states.''^^2^^

This and some of Lenin's other statements on this question have time and again been quoted by the opponents of peaceful coexistence to justify their claims that Lenin held the peaceful coexistence of the states of the two systems impossible and that, in his opinion, the new, socialist state would go to war against the capitalist states to spread social-

~^^1^^ Lenin, Collected Works, Vol. 21, p. 299.

~^^2^^ The C.P.S.U. in Resolutions and Decisions of Congresses, Conferences, and Plenary Meetings of the Central Committee, Part I, 7th (Russian) ed., 1953, p. 329. (In this book Russian sources are given in English.)

~^^3^^ Ibid., p. 337.

~^^4^^ U.S.S.R. Foreign Policy Documents, Vol. I, pp. 11-12.

~^^1^^ Lenin, Collected Works, Vol. 32, p. 437.

~^^2^^ Ibid., Vol. 29, p. 153.

ism by force.^^1^^ These allegations by the enemies of communism have been proved false by the facts.

Citing history, notably bourgeois revolutions and particularly the French bourgeois revolution in the 18th century, Lenin warned the Party and the Russian working class and people that the ruling classes in the capitalist countries would not leave the newly-born socialist state alone, that they would use every means, including military, in their attempt to destroy the new social system dedicated to the abolition of the private ownership of the instruments and means of production, which meant the liquidation of capitalist rule in Russia and heralded the end of the capitalist system in general. In his report on peace to the Second All-Russia Congress of Soviets, on the very first day after the victory of the October Revolution, Lenin said: "The governments and the bourgeoisie will make every effort to unite their forces and drown the workers' and peasants' revolution in blood."² The Seventh Congress of the Russian Communist Party (Bolsheviks), held in March 1918, said in its resolution on war and peace: "In the present, initial period of the era of socialist revolution repeated military incursions by the imperialist states (from West and East) against Soviet Russia are historically inevitable".^^3^^ This scientifically substantiated prediction, unfortunately, soon came true. Shortly after that the Soviet state was attacked by the armed forces of fourteen capitalist states.

The imperialists' attempts to strangle the young Soviet state, Lenin pointed out, could, and inevitably would, lead to military clashes between the states of the two systems in spite of the peaceful policy followed by the socialist state. Declaring himself in favour of an onerous peace with Germany because it would give Soviet Russia a breathing-space, Lenin foresaw that the imperialists would not leave the socialist state alone and that the Entente would turn against it as soon as it was through with Germany. Lenin spoke of

~^^1^^ See the statement made by Dominguez Campora of Uruguay at the 465th plenary meeting of the U.N. General Assembly on Dec. 2, 1953 (Official Records of the General Assembly. Eighth Session. Plenary Meetings, New York, p. 391) and the statement by Guillaume Georges-Picot of France at the Twelfth Session of the U.N. General Assembly (ibid., Twelfth Session, p. 273).

~^^2^^ Lenin, Collected Works, Vol. 26, p. 253.

~^^3^^ The C.P.S.U. in Resolutions and Decisions of Congresses, Conferences, and Plenary Meetings of the Central Committee, Part I, p. 404.

the ``self-defence'' of the proletarian state and urged the formation of armed forces. He appealed to the Party and the Soviet people to strengthen the country's defence potential.

The failure of the armed intervention against Soviet Russia, the consolidation of socialist power at home, the growth of the labour movement in the capitalist countries and its opposition to the intervention in Russia, and the economic interests of the ruling classes in these countries forced them to make peace with the Soviet state.

In November 1920 Lenin thus summed up the progress in the Soviet state's relations with the capitalist countries since its inception: "We ... have won conditions enabling us to exist side by side with capitalist powers, who are now compelled to enter into trade relations with us. ... We have something more than a breathing-space: we have entered a new period, in which we have won the right to our fundamental international existence in the network of capitalist states.''^^1^^

Warning against the danger of "new attempts at invasion",^^2^^ Lenin at the same time foresaw that the establishment and development of economic and diplomatic relations between the Soviet state and the capitalist countries were inevitable in these new conditions and that there was even a possibility of establishing friendly relations. Speaking at the Plenary Meeting of the Moscow Soviet on November 20, 1922, he said: "The road we are on is absolutely clearly and well defined, and has ensured us success in face of all the countries of the world, although some of them are still prepared to declare that they refuse to sit at one table with us. Nevertheless, economic relations, followed by diplomatic relations, are improving, must improve and certainly will improve.''^^3^^ Referring in that same year to Soviet Russia's relations with Britain and France, Lenin told the correspondents of the London Observer and Manchester Guardian: "We believe fully friendly relations with both powers to be quite possible, and that is our aim. We believe that the development of commercial relations will inevitably go a very long way towards achieving this aim. We believe

~^^1^^ Lenin, Collected Works, Vol. 31, p. 412.

~^^2^^ Ibid., Vol. 33, p. 152.

~^^3^^ Ibid., p. 436.

that the interests of Britain and France, rightly understood, will likewise operate in that direction.''^^1^^

In this Lenin proceeded from the fact that the imperialist powers' policy towards the Soviet state was not determined solely by the wishes of the imperialists. The will of a state in general, and the will of the ruling class in particular, is determined by diverse factors. In his Ludwig Feuerbach and the End of Classical German Philosophy, Frederick Engels wrote: "The will of the state is, on the whole, determined by the changing needs of civil society, by the supremacy of this or that class, in the last resort, by the development of the productive forces and relations of exchange.''^^2^^

Imperialist foreign policy, which embodies the will of the ruling class, is determined not only by the wishes of this class. The imperialists' urge to destroy the world's first socialist state was hardly weaker in 1921 or 1924 than in 1918. In spite of this, the capitalist countries gradually set out to establish relations of peaceful coexistence with the Soviet state, for the situation had changed. The armed intervention had failed, the internal situation in the socialist state was growing increasingly stable. There was also the pressure exerted by the working class in the capitalist countries on the governments' policy to reckon with. Of no little importance too was the interest shown by certain capitalist groups in trade with the Soviet state. "There is a force more powerful than the wishes, the will and the decisions of any of the governments or classes that are hostile to us," Lenin said. "That force is world general economic relations, which compel them to make contact with us.''^^3^^

Lenin's thesis on the peaceful coexistence of states of the two different social systems has been proved correct by the subsequent developments.

Since then the correlation of forces in the world has changed radically. There has emerged a world socialist system which is becoming a decisive factor in world development; there have appeared new independent states as a result of the collapse of the colonial system, and most of them are for peaceful coexistence; the capacity of the working class and the working masses in the capitalist countries

to influence their governments' policies has grown vastly, and the position of imperialism has become much weaker. The aggressive nature of imperialism has not changed but the fundamental change in the correlation of forces in the world has compelled the imperialist states to reckon with it in their foreign policy.

The ruling classes in the imperialist countries cannot but see that a war against the socialist camp would inevitably end up as a world thermonuclear war which would not spare the imperialists or their wealth. The new correlation of forces in the world and the new character of a war unleashed by the imperialists force sober-minded representatives of the ruling classes in the imperialist countries to take a different view of war and peaceful coexistence.

The C.P.S.U. has drawn important conclusions in the process of elaborating the Marxist-Leninist theory on the peaceful coexistence of the socialist and capitalist countries in the present conditions. The Marxist-Leninist thesis that wars will remain inevitable as long as imperialism exists was worked out at a time when imperialism was an allembracing world system, when the social political forces not interested in war were weak, not sufficiently well organised and, consequently, incapable of making the imperialists renounce war. Today, there are mighty social and political forces which dispose of powerful means to prevent the imperialists from starting a war. And so a world war is no longer inevitable.

A thesis on the possibility of preventing world wars and securing peace was adopted by representatives of the Communist and Workers' Parties as a common platform at their conferences in 1957 and 1960.

The C.P.S.U. Programme stresses that it is possible to banish wars from the life of society even before the complete victory of socialism on earth. "It is possible to avert a world war by the combined efforts of the mighty socialist camp, of the peace-loving non-socialist countries, the international working class and all the forces championing peace," the Programme says. "The growing superiority of the socialist forces over the forces of imperialism, of the forces of peace over those of war, will make it actually possible to banish world war from the life of society even before the complete victory of socialism on earth, with capitalism surviving in a part of the world. The victory of socialism

~^^1^^ Lenin, Collected Works, Vol. 33, p. 383.

~^^2^^ Marx and Engels, Selected Works, Vol. II, Moscow, 1962, p. 395.

~^^3^^ Lenin, Collected Works, Vol. 33, p. 155.

throughout the world will do away completely with the social and national causes of all wars. To abolish wars and establish everlasting peace on earth is the historic mission of communism.''^^1^^

The theory of peaceful coexistence has been further developed. From the viewpoint of general laws governing social development, the peaceful coexistence of states of two different social systems connotes both their struggle and cooperation. The struggle between states on account of their contradictions, which are rooted in the class contradictions of society, goes back to the inception of the state. It has been waged with diverse intensity. But it has never precluded co-operation between states, although its degree has not been the same at all times, being determined mainly by the level of development of international economic relations and, in the final count, by the level of productive forces.

If, because of the laws governing social development, relations between the socialist and capitalist countries must include both struggle and co-operation, then what is specific about these relations between states of the two systems which we call peaceful co-operation, and which it is the policy of the socialist states to secure?

First of all, it is the very nature of these relations that is specific. There were states with different social systems before and they too maintained relations, but those were relations between exploiter states. With the emergence of the Soviet socialist state and then the world socialist system, there appeared relations between states not only with different, but with diametrically opposed systems, between the old, capitalist states whose social system is based on the private ownership of the means of production and exploitation of man by man and the new, socialist states whose social system is based on the public ownership of the means of production and abolition of the exploitation of man by man. Never before in human history had there been such international relations.

Consequently, it is a question of peaceful coexistence of states not merely with different political systems but with different social systems.^^2^^ This is precisely what determines

the special character of peaceful coexistence in our day and the laws governing its development.

Peaceful coexistence as a state of relations between countries with different social systems means first and foremost that these relations are peaceful. At the same time, peaceful coexistence cannot be interpreted solely as peace, although international peace is the main element of peaceful coexist-

ence.

Peaceful coexistence includes a number of aspects characterising this state of relations between countries. On the other hand, international peace requires the observance of a number of conditions which are included in the concept of peaceful coexistence.

The concept of peaceful coexistence upheld by the Soviet Union has been outlined in the G.P.S.U. Programme which says that peaceful coexistence implies renunciation of war as a means of settling international disputes, and their solution by negotiation; equality, mutual understanding and trust between countries; consideration for each other's interests; non-interference in internal affairs, recognition of the right of every nation to solve its problems by itself; strict respect for the sovereignty and territorial integrity of all countries; promotion of economic and cultural co-operation on the basis of complete equality and mutual benefit.^^1^^

The C.P.S.U. Twenty-Third Congress, held in 1966, reaffirmed these principles of Soviet policy, but firmly stressed that they did not apply to relations between oppressors and the oppressed, between the colonialists and the victims of colonial oppression.

Peaceful coexistence requires states to renounce the use of arms in order to extend their social and political system and to solve any international problems and disputes. However, renunciation of armed struggle in relations between states (it is only natural for a state to employ arms in selfdefence in the event of an armed attack) is not tantamount to renunciation of any struggle. To demand that all states, especially socialist and capitalist, abstain from all struggle and competition is to demand the impossible.

While peaceful coexistence between socialist and capitalist states precludes their armed struggle it does not mean cessation of their economic, political and ideological struggle.

~^^1^^ The Road to Communism, Moscow, p. 505.

~^^2^^ See G. I. Tunkin, "Coexistence and International Law", Rccuell des cours de I'Academie de la Haye, Vol. 95 (1958), p. 6.

~^^1^^ See The Road to Communism, p. 506

The decisive factor in the struggle of states of the two systems is their economic competition. In securing the highest possible rates of economic development and in steadily improving their peoples' welfare standards, the socialist states prove that the new social system is superior to capitalism and show the peoples of all other countries what they must fight for.

Economic competition between the two systems presupposes their economic co-operation on the basis of equality and mutual advantage. No state can today isolate itself economically from other states. Economic co-operation between the socialist and capitalist countries benefits them all. But it would be wrong to interpret it as cessation of the struggle between the two systems. In this competition the socialist economic system, which conforms to the present level of development of the productive forces, is scoring one victory after another over the capitalist economic system, which retards the development of the productive forces.

Peaceful coexistence also implies a sharp political struggle between the forces of peace and the forces of aggression and war. At present this means first and foremost a struggle against the imperialist states' "positions of strength" policies and arms drive. The socialist states are striving for peace, for disarmament as the main means of securing peace, for the abolition of colonialism in all its forms and manifestations. They constantly expose the dangerous policies of the imperialists. Consequently, peaceful coexistence is a struggle against imperialism which precludes armed struggle but includes the struggle against the imperialists' aggressive policies and for peace---and, at the same time, it is cooperation in the interest of peace in the diverse fields of relations between the states of the two systems.

There is wide scope for both economic and political cooperation between states of the two systems. The most illustrative examples are the establishment of the United Nations, the peace treaties of 1947, the 1954 Geneva agreements on Indo-China, the 1962 agreement on the neutrality of Laos, the 1963 Moscow treaty on the partial ban of nuclear tests, conventions on international law issues (among them the 1958 Geneva Convention on the Law of the Sea, the Antarctic Treaty of 1959, and the 1961 Vienna convention on diplomatic relations), and so on.

Since peaceful coexistence does not preclude economic

and political struggle which continues, still less does it preclude ideological struggle. What distinguishes this latter struggle is that there is no place in it for any compromise or agreement as the socialist and the bourgeois ideologies are irreconcilable. Consequently, the Soviet state, which strives to promote peaceful coexistence, holds that in building interstate relations it is essential to proceed from points on which co-operation and agreement are possible and not from ideological differences.

Rejecting peaceful coexistence, which is directed against the "positions of strength" and cold war policies, the most reactionary elements in the West seek to discredit the very idea of peaceful coexistence and distort its very meaning. "It is my belief," Senator William F. Knowland declared in the U.S. Senate in 1954, "that the Soviet Union is advancing the Trojan horse of coexistence only for the purpose of gaining sufficient time to accomplish what they may term atomic stalemate.''^^1^^ Theodore C. Achilles, U.S. Special Assistant to the Under-Secretary of State for Political Affairs, said even after the C.P.S.U. Twenty-Second Congress, which had defined with utter clarity the import of peaceful coexistence, that "the phrase 'peaceful coexistence' must be considered strictly tactical. It is designed to delude the free world, to keep it off balance, to lull it into complacency, to inhibit the free world while preserving a free hand for the communist conspiracy.''^^2^^ And West German Foreign Minister Schroeder told the NATO Council on December 16, 1963, that peaceful coexistence was nothing but "an instrument Moscow employs to split the Atlantic alliance".^^3^^

American publicists Strausz-Hupe, Kintner and Possony affirm that peaceful coexistence serves "as a diversion for calming the West's suspicions and weakening its determination to provide for its defence".^^4^^

The Chinese dogmatists are now also rejecting the possibility of peaceful coexistence of states with different social systems. Preaching "no compromise", a slogan which Lenin severely criticised and which clearly negates peaceful

~^^1^^ U.S. News and World Report, Nov. 26, 1954.

~^^2^^ The Department of State Bulletin, Feb. 26, 1962, p. 325.

~^^3^^ L'Humanile, Dec. 17, 1963.

~^^4^^ R. Strausz-Hupe, W. R. Kintner and S. T. Possony, A Forward Strategy for America, New York, 1961, p. 265.

coexistence, they have no reasonable alternative policy to offer that would accord with the interests of the people. And that is not surprising, for in present-day conditions a policy negating peaceful coexistence can only lead to greater tension and eventually to war.

Attempts are not infrequently made to interpret peaceful coexistence merely as absence of war, as a parallel existence of states with diametrically opposed social systems between which there can be no co-operation. The American Branch of the International Law Association, for instance, has declared itself against peaceful coexistence because it allegedly implies a struggle for power rather than co-operation.¹ Francis Vallat, legal adviser to the British Foreign Office, speaking at King's College in London in January 1962, affirmed that from the Soviet point of view peaceful coexistence "did not mean friendly co-operation but prosecution of the Marxist class struggle by all means short of world war".^^2^^ And Prof. John Hazard of Columbia University claims that the Marxist concept of peaceful coexistence is related solely "to keeping the peace between two diametrically opposed economic systems" and the non-Marxists consequently prefer to use the term ``co-operation''.^^3^^

As we have already pointed out, the peaceful coexistence of states with different systems means both their co-operation and struggle. The allegation that it does not include interstate co-operation is at odds with the facts. The C.P.S.U. Programme says in black and white that peaceful coexistence implies "mutual understanding and trust between countries" and "promotion of economic and cultural co-operation on the basis of complete equality and mutual benefit".^^4^^

Co-operation between states implies a struggle. In relations between the states of the two systems it is a class struggle between capitalism and socialism on an international

~^^1^^ See Proceedings and Committee Reports of the American Branch of the International Law Association, 1961-62, N.Y., p. 72.

~^^2^^ The 'limes, Jan. 15, 1963.

~^^3^^ John N. Hazard, "Codifying- Peaceful Coexistence", The American Journal of International Law, Vol. 55 (1961), No. 1, pp. 111-12. Also see speeches in the Sixth Committee of the U.N. General Assembly of Belgian (807th session, Nov. 8, 1963) and Canadian (815th session. Nov. 20, 1963) deleg-ates.

'' 'The Road to Communism, p. 506.

scale. The class struggle between the two systems is an objective law, and this struggle will continue as long as there is capitalism. Peaceful coexistence, which presupposes normal and friendly relations between the states of the two systems, cannot by its class nature be anything but a form of class struggle between socialism and capitalism.^^1^^

Peaceful coexistence as a state of relations between countries is not a cut-and-dried formula. Peaceful coexistence in one period may differ considerably from peaceful coexistence in another, in breadth and depth of co-operation, stability, etc. In our day, peaceful coexistence---especially between states of the two diametrically opposed social systems ---differs very much from peaceful coexistence before the Second World War.

In the present conditions, peaceful coexistence of states of the two systems is more than just something that makes the development of human society possible. It is an objective necessity of which people are becoming increasingly conscious and which exerts a growing influence on international relations. A world thermonuclear war is fraught with mortal danger for human civilisation.

The development of productive forces leads to closer economic and other ties between states, and these ties are a major factor of peaceful coexistence. Lastly, the social forces standing for peaceful coexistence and opposing the policy of aggression and war---the socialist countries, most of the newly-independent states, and many other states and peoples striving ever more actively for peaceful coexistence as indispensable for human progress---are steadily gaining strength.

2. PEACEFUL COEXISTENCE AND PROGRESSIVE DEVELOPMENT OF INTERNATIONAL LAW

Since international law is now universal, its development is influenced by the struggle and co-operation of states on a world-wide scale. This world system of relations reflects the present contradictions between the economic, political and legal systems, ideologies, etc., of different countries. International relations cannot be interpreted only as relations

Ibid.

2-495

between the states of the two diametrically different social systems, nor obviously can the contradictions arising in international relations be taken to mean only contradictions between the socialist and capitalist states.

Marxism-Leninism, however, always singles out the main contradiction. In our day, it is the contradiction between socialism and imperialism, between the world socialist and imperialist systems. And the growth of this contradiction is of decisive significance for the destinies of mankind. "In our epoch," says the declaration adopted by the Conference of Representatives of the Communist and Workers' Parties in 1957, "world development is determined by the course and results of the competition between two diametrically opposed social systems.''^^1^^ Consequently, the chief aim in the sphere of international relations is to ensure the peaceful coexistence of the socialist and capitalist countries.

Moreover, in its broad sense, peaceful coexistence means the peaceful coexistence of all states, irrespective of their social systems. It must naturally be borne in mind that the world socialist system is a system with new international relations of the highest type which, conforming to the requirements of peaceful coexistence, are based on higher principles---the principles of proletarian internationalism.^^2^^

Consequently, the development of contemporary international law should not be approached only from the point of view of peaceful coexistence of socialist and capitalist states but from the broader point of relations between all states. At the same time, it is necessary to stress once again that the peaceful coexistence of the socialist and capitalist states is a decisive factor.

Peaceful coexistence between states of the two systems, implying their struggle and co-operation, presupposes a certain degree of agreement between them. Without agreements and reasonable compromises on international issues peaceful coexistence is inconceivable. For there are only two ways of resolving international problems: negotiation and war. Peaceful coexistence means renunciation of war and settlement of all international disputes by negotiation and

~^^1^^ 'The Struggle for Peace, Democracy and Socialism, Moscow, p. 7.

- For details sec G. I. Tunkin, Theoretical Problems of International Law, p[>, 306-07. This work was published in Berlin in 1963 under the title of Volkerrecht der Gegenwart and in Paris in 1965 under the title of Droit international public. Problemes theoriques.

agreement. This also applies to international law. Since international law rules are established by agreement among the states, the coexistence of states of the two systems allows for the existence of general international law. The extent of peaceful coexistence of the socialist and capitalist countries in the final count determines the level of development of present-day international law.

Successes achieved in peaceful coexistence are an earnest of the further development of international law. The forces championing peace and peaceful coexistence are the forces that stand for the progressive development and consolidation of international law.

International law rules come into existence in the process of the states' intercourse and are the result of their openly expressed or tacit agreement. Each state upholds its own principles and follows its own line in international law, which may or may not coincide with that of other states. This line is part of its foreign policy. International law rules regulate interstate relations, affect the interests of states, and the international law line of each state naturally proceeds from the principles underlying its foreign policy in general and pursues the same aims as this policy.

The influence exerted by a state's own line in international law on the development of international law depends, first and foremost, on the nature of this line, on the nature of the international law principles the state advances and upholds. The development of international law is generally determined by the laws governing social development. The state which advances international law principles contrary to these laws, and consequently militates against the general course of development of international law and the peoples' aspirations, cannot hope to exert much influence on the establishment of international law rules.

The principles of peaceful coexistence accord with the laws governing social development in our day and with the peoples' interests, and are supported by all progressive forces. It is this that in the final count determines the decisive influence of the policy of peaceful coexistence on the development of international law.

In the establishment of international law rules, the ones to act from the positions of peaceful coexistence are the socialist countries, the newly-independent neutralist states, and certain capitalist states.

2*

19

IS .

There are naturally substantial differences in the foreign policies followed by all these states. A country's foreign policy is closely bound up with its home policy, it is its sequel, as it were. Foreign policy in general is determined first and foremost by the state's social system, by the class nature of the state. The above-mentioned states' policies have one thing in common: they are all directed at safeguarding international peace and promoting co-operation between states regardless of their social systems, and, consequently, they are policies of peaceful coexistence.

The states following a policy of peaceful coexistence in general stand for the progressive development of international law into an effective weapon of peaceful coexistence, for the strict observance of international law rules by all states.

The Soviet socialist state, a state of the new social system, has been following a policy of peaceful coexistence since its inception. In those days international law contained, along with democratic principles and rules directed at promoting friendly relations between states (respect for state sovereignty, equality, non-interference and other principles), some reactionary principles, standards and institutions which reflected and consolidated the system of national oppression, colonial plunder and imperialist brigandage (colonies, protectorates, unequal treaties, spheres of influence, consular jurisdiction, etc.).

The Soviet state's attitude to international law was formulated by Lenin on the very next day after the Great October Socialist Revolution. Concluding his report on peace on November 8, 1917, he said: "The secret treaties must be published. The clauses dealing with annexations and indemnities must be annulled. There are various clauses, comrades---the predatory governments, you know, not only made agreements between themselves on plunder, but among them they also included economic agreements and various other clauses on good-neighbourly relations.... We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good-neighbourly relations and all economic agreements; we cannot reject these.''^^1^^

The Soviet state recognised all the democratic principles of the international law of those days, notably those con-

cerning the respect for state sovereignty, equality and noninterference, and abided strictly by them in its relations with other countries. Proceeding from the basic principles of its foreign policy, it refused to recognise the reactionary institutes of international law and persisted in its efforts to have them annulled.

At the same time, in striving to make international law an efficient instrument of peace, the Soviet state from the very beginning did everything to introduce new, progressive principles and rul-es into international law and have them universally recognised.

Today the Soviet Union and other socialist countries persevere in their stand for the progressive development of international law and its strict observance by all states. On the initiative of the socialist states and certain Afro-Asian countries, and despite the resistance of the Western Powers, the Fifteenth and Sixteenth U.N. General Assembly sessions discussed the basic principles of U.N. activity in developing and codifying international law and adopted important resolutions.

Resolution 1505, adopted by the Fifteenth General Assembly, pointed out that the work done on the codification and progressive development of international law would help promote "friendly relations and co-operation among states". The Fifteenth General Assembly adopted a resolution emphasising "the important role of codification and progressive development of international law with a view to making international law a more effective means of furthering the purposes and principles set forth in Articles 1 and 2 of the Charter of the United Nations" (Resolution 1686/XVI of December 18, 1961). The same resolution instructed the General Assembly's Sixth Committee to codify and work out the basic principles of contemporary international law.

The stand taken by the Soviet Union and other socialist countries in the discussion of the progressive development and codification of international law at the U.N. General Assembly, in the International Law and Human Rights committees, and at international conferences^^1^^ vividly testifies to their tireless efforts to improve international law as an instrument of peace and international co-operation.

~^^1^^ Lenin, Collected Works, Vol. 26, p. 255.

~^^1^^ The most important U.N. conferences on the codification and

The development of international law is increasingly influenced by the independent Afro-Asian and Latin American countries favouring peaceful coexistence. Like the socialist countries, they are for the progressive development of international law, and this is eloquently expressed in the Bandung Declaration of 1955, in the declaration adopted by the Conference of Non-aligned States in Belgrade in 1961, and in the declaration adopted by the Heads of State and Government of the non-aligned states at the Cairo Conference in 1964. The Cairo Declaration said "the conference recommends the U.N. General Assembly to adopt on the occasion of the Organisation's twentieth anniversary a declaration on the principles of peaceful coexistence. This declaration would be an important step towards the codification of these principles". The overwhelming majority of the new Afro-Asian states vigorously advocate the substitution of obsolete principles and rules in international law by new, progressive ones.

The international legal positions of the imperialist states are organically weak because, representing a moribund social system, these states resist the progressive development of international law dictated by the laws governing social development. The imperialist states, which pursue a "positions of strength" policy towards the socialist countries and a policy of economic and political interference in the internal affairs of the developing countries, fear the progressive development of international law. The old international law with its "state's right to war", "right to intervention", etc., suits the imperialists' policy much more.

However, imperialism has lost its positions and its influence is dwindling all the time. Present-day international law is developing under the ever-increasing influence of states standing for peaceful coexistence, under the influence of the world socialist system, the non-socialist countries and all progressive forces championing peace.

The bourgeois science of international law is incapable of explaining the progressive development of contemporary international law in the conditions where states with different social systems and ideologies exist side by side.

progressive development of international law in recent years were the Geneva United Nations Conferences on the Law of the Sea in 1958 and 1960, the Vienna Conference on Diplomatic Relations in 1961, and the Vienna Conference on Consular Relations in 1963.

Proceeding from the erroneous conception that law, including international law, is an expression of ideological community, and stressing that there is no such community between the socialist and capitalist countries, many bourgeois international jurists do not conceal their anxiety for the fate of general international law and even openly affirm that there is no basis for the existence of general international law.

West German Prof. Gerhard Leibholz claims that in order to speak of an "international law community" one must have "the minimum of community of world outlooks", and there is none of that at present.^^1^^

Prof. Frederik M. van Asbeck of the University of Leiden is of the opinion that "as long as the antagonism in fundamental convictions continues to divide the world, the road to an international legal order . . . lies barred".^^2^^

The thesis that general international law cannot possibly exist leads to the justification of the "positions of strength" and cold war policies. The proponents of these policies seek to justify them by claiming that agreements between the capitalist and socialist states are impossible and that force is the only language that should now be used in foreign affairs.^^3^^

This extreme point of view is shared by relatively few prominent bourgeois international jurists. Far more widespread is another, more moderate though similar view, according to which the emergence of the socialist countries and new Afro-Asian states has complicated the progressive development of common international law.

Prof. Ch. de Visscher holds that the rapid extension of the sphere of international relations, both "from the view-

~^^1^^ G. Leibholz, "Zur gegenwartigen Lage des VSlkerrechts", Archiv dcs Vdlkerrechts, 1 (1948-49), S. 415, and E. Kordt, " Weltherrschaftsstreben und Volkerrecht", Festschrift fur R. Laun, Gottingen, 1962, S. 199.

~^^2^^ F. M. van Asbeck, "Growth and Movement of International Law, 'The International and Comparative Law Quarterly, Vol. II (October 1962), p. 4, and K. Wilk, "International Law and Global Ideological Conflict", The American Journal of International Law, Vol. 45 (1951), pp. 657-70.

~^^3^^ At his press conference on October 16, 1957, the late John Foster Dulles, U.S. Secretary of State, said: "An agreement is a meeting of minds, and so far I do not know of any agreement which has reflected a real meeting of the minds. We may have agreed on the same form of words, but there has not been a meeting of the minds.''

point of the human communities taking part in them and the interests they embrace .. . weakens the homogeneity of the traditional community of law".^^1^^

U.S. Prof. Alwyn V. Freeman believes that the appearance of newly-independent states "has impeded, not advanced, the emergence of a mature code of conduct",^^2^^ that is, international law in general.

J. J. G. Syatauw of Indonesia says "it is true that the growing interdependence of the world may have a favourable influence on the development of world prescriptions,³ but this interdependence being principally of material rather than of ideological nature, will certainly not lead to the strengthening of the Christian principles of international law". He calls it a "weakening development.''^^4^^

These pessimistic estimates of the prospects of general international law rest on a false philosophical premise and do not take into account the new situation in the world.

To substantiate the thesis that law is an expression of ``community''---community of interests, community of ideologies, etc.---many bourgeois scholars assert that without definite human ``community'' there could be no law at all, and certainly no international law. There is no denying of course that without community of people the existence of human society and, consequently, law would be impossible. But that does not mean that this community has given rise to law, that it is its basis, that law is an expression of this community.

Marxism-Leninism shows that law, like the state, made its appearance as a result of the emergence of classes and class contradictions. In pre-class society, human communities were more homogeneous, yet there was no law. The existence of general international law and the possibility of its development are not determined by the community of ideologies. Socialist and bourgeois ideologies are irreconcilable. The peaceful coexistence of the socialist and capitalist

~^^1^^ Ch. de Visscher, Theories et realties en droit international public (2nd ed.), Paris, 1955, p. 198.

~^^2^^ A. V. Freeman, "Professor McDougal's 'Law and Minimum Public Order' ", 'The American Journal of International Law, Vol. 58, July 1964, p. 712.

~^^3^^ Syatauw is a pupil of Prof. McDougal's and employs his terminology.

~^^4^^ J. J. G. Syatauw, Some Newly-established Asian States and the Development of International Law, The Hague, 1961, p. 21.

countries and the existence and development of international law as such would have been impossible had they presupposed agreement on ideological issues, on a community of ideologies.

The fundamental difference between the socialist and capitalist countries' ideologies and their ideological struggle do not preclude agreement between these states and, consequently, the existence and development of general international law.

For those who want to see relations between states with different systems improved, it is only a question of improving them, despite all the contrast of ideologies and the inevitable ideological struggle.

Although the ideological struggle takes place in the process of creation of international law rules too, there is never any question of agreement on ideological issues but only of the recognition of certain rules as international law standards. When the U.N. organs, for instance, discuss the question of codifying the international law principles of peaceful coexistence, the task before them is and must only be to elaborate a document including the appropriate principles of international law---the rules of conduct of states---and not a philosophical treatise about the substance of these principles or of international law as a whole.

Despite the differences of opinion on many ideological issues, notably on the nature of the state, and international law, the socialist and capitalist states can and must, for objective reasons, reach agreement on the recognition of certain rules as international law rules.

At the same time, one should not view the contrast of ideologies and ideological struggle abstractly. The influence exerted by an ideology on the development of international law depends on the nature of this ideology. The ideology of anti-communism, for instance, is utterly contrary to international law. Slandering the Soviet Union and other socialist countries, their foreign policy and international law positions, anti-communism claims that agreements between the capitalist and socialist states are impossible, useless and even inadmissible, and urges the development of ``Western'' international law to counterbalance common international law, etc.

Socialist ideology is an ideology of genuine humanism. It is impregnated with the idea of struggle for peace and

peaceful coexistence, is directed against colonialism in all its forms and manifestations, and exerts a beneficent influence on the development and consolidation of presentday international law.

3. PRESENT-DAY INTERNATIONAL LAW IS A NEW INTERNATIONAL LAW

The vast changes which have occurred in the world since the Great October Socialist Revolution have naturally affected international law too. Indeed, there is no sphere of international law which has not undergone more or less substantial changes.

Characteristically, all these changes have been decisively influenced by the socialist system.

While in the 19th century international law developed under the influence of the ideas advanced by the French bourgeois revolution, in the present age its development is decisively influenced by the ideas of the Great October Socialist Revolution.

The Soviet Union and the other countries of the socialist community have introduced an absolutely new element in international relations, an element stemming from their social system and class nature.

Since the Second World War an important role in the development of international law has been played by the states which have emerged as a result of the liberation of colonies and semi-colonies. An ever-increasing influence is exerted by the people themselves.

The influence of the progressive forces have first and foremost wrought substantial changes in the basic principles of international law, which actually determine its nature. As a result, many reactionary principles have vanished, new important progressive principles have appeared, and old democratic principles have been further developed.^^1^^

Among the most important new principles of international law are those banning aggressive wars and those concerning national self-determination, peaceful coexistence, disarmament, equality of nations, respect for human rights, etc.

Formulation of new important principles and rules promoting peace and friendly relations among states has been attended by the further development and consolidation of the old and universally recognised principles and rules of international law, such as respect for state sovereignty, non-interference in domestic affairs, equality of states, conscientious fulfilment of international commitments (pacta sunt servanta), etc.

In old international law these principles operated side by side with such institutions as spheres of influence, capitulation systems, consular jurisdiction, unequal treaties, etc., which sanctioned the predatory policies of imperialism. This could not but limit the effectiveness of the above-mentioned democratic principles. Eradication of reactionary institutions, principles and rules gradually cleared the way for their fuller development.

Further development of the old democratic principles of international law was greatly stimulated by the appearance of new progressive principles. The appearance of the principle of non-aggression in the form in which it now exists in international law also had an effect on the content of such principles as respect for sovereignty and non-- interference in the internal affairs of states. The most brutal forms of infringement of sovereignty and interference in the internal affairs of states were aggressive wars, armed interventions, armed reprisals and the threat of force, and their prohibition in accordance with the principle of non-- aggression naturally broadened the democratic content of the principles concerning the respect of state sovereignty and non-interference in the domestic affairs of states.

Especially important in this connection was the appearance of the principle of peaceful coexistence which, being the guiding principle of contemporary international law,

~^^1^^ See S. B. Krylov, "Les notions principales du droit dcs gens", Recueil dcs cours, Vol. 70 (1947); G. I. Tunkin, "Coexistence and International Law", Recueil des cours, Vol. 95 (1958); D. B. Levin, Basic Problems of Present-day International Law, Moscow, 1958; Y. A. Korovin, Basic Problems of Present-day International Relations, Moscow, 1959; G. I. Tunkin, Problems of International Law 'Theory, Moscow, 1962; R. L. Bobrov, Present-day International Law, Leningrad, 1962; N. A. Ushakov, International Law and the Problem of Sovereignty, Moscow, 1963; R. A. Tuzmukhamedov, National

Sovereignty, Moscow, 1963; O. V, Bogdanov, General and Complete Disarmament, Moscow, 1964; L. A. Mojoryan, Basic Rights and Duties of States, Moscow. 1965; S. A. Malinin, Lawful Foundations of Disarmament, Moscow, 1966; G. I. Tunkin, Ideological Struggle and International Law, Moscow, 1967.

influences the content of all the other principles and rules.

The changes which occurred in international law after the Great October Socialist Revolution were not confined to the basic principles. There were substantial changes also in concrete spheres of international law, in respect of the subjects of international law, its origins, the international law of the sea, diplomatic law, etc.

Before the Great October Socialist Revolution international law---we call it the old international law---was in effect the law of the strong: it recognised and legally secured the rule of force in international relations. This manifested itself most vividly, for example, in such principles as the "state's right to war", the "victor's right", etc. If a state was sufficiently strong and could expect to win, it could always find a pretext to use the "right to war" to satisfy its claims.

Present-day international law prohibits resort to war, the use of force or threat of force against the territorial integrity and political independence of any state, or in any other way incompatible with the purposes of the United Nations. The states are bound to settle their disputes solely by peaceful means.

The new international law is directed against war, it is a weapon of peace. The very appearance of the principle of non-aggression has considerably altered the nature of international law.

The old international law recognised two equivalent states of relations between countries: the state of peace and the state of war. Moreover, the questions of war were given greater prominence than those of peace.^^1^^ For instance, of the fourteen documents (thirteen conventions and one declaration) signed at the Second International Peace Conference in The Hague in 1907, only two were about peaceful relations among states. The rest were all about the law of war.

Aggressive war is now a major international crime for which not only the aggressor state but physical persons guilty of preparing, unleashing and waging wars are held responsible. In international law, a state of war is no longer a ``normal'' state of relations between states.

According to present-day international law, the sides in a war are not in the same position from the angle of law: one side, the aggressor, commits a major crime by unleashing war and waging it in violation of international law; the other side wages it in self-defence, that is, in accordance with international law.

The elimination of the "state's right to war" and the appearance in international law of the principle of non-- aggression led to the abolition of the "victor's right" and the law of conquest and to the spread of principles concerning a state's responsibility for war and its consequences.^^1^^

Increasing attention is paid in present-day international law to the regulation and consolidation of peaceful relations among states. Most of the post-war international conventions are devoted to peaceful relations among states.

The old international law contained rules and institutions which served as instruments of colonial and semi-colonial enslavement of peoples and sanctioned and legally secured the colonial regime and the economic rule of developed capitalist countries in underdeveloped countries. Thus, speaking of the international rules relating to state responsibility, the Mexican delegate in the U.N. International Law Commission rightly said that these rules were " established, not merely without reference to small states, but against them".^^2^^ The right to take possession of ``ownerless'' territory, the right of conquest, spheres of influence, colonial law, the protectorate regime, etc., belonged precisely in this category of international law rules and institutions. These rules and institutions existed side by side with the democratic principles and rules of the old international law.

By its nature, present-day international law is anti-- colonial. The recognition of the principle of national self-- determination as a universally accepted principle of international law turned international law against colonialism, which is utterly alien to it. Once an instrument of enslavement, international law has become a weapon of struggle for the liberation of the colonial and dependent peoples.

The old international law was chiefly the law of the so-

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, pp. 252-306 (German edition---pp. 199-239; French edition---pp. 191-227).

~^^2^^ Yearbook of the International Law Commission, 1957, Vol I p. 155.

~^^1^^ In Hugo Grotius's celebrated work De Jure Belli et Pads (On the Law of War and Peace), published in 1629, the "law of war" is given precedence over the "law of peace''.

called ``civilised'' or ``Christian'' states. The vast African continent and a considerable number of Asian countries, being objects of colonial oppression and exploitation, practically took no part in international affairs.

The disintegration of the colonial system and the emergence of new states as a result of national liberation revolutions expanded the sphere of operation of international law. International law is thus becoming more and more a universal law.

Present-day international law precludes the division of states into ``civilised'' and ``non-civilised'', ``Christian'' and ``non-Christian'', and their discrimination on these grounds. The reference to ``civilised'' nations in the International Court Statute now sounds as a complete anachronism.

Although the development of international law was progressive, it was far from smooth. Nazism sought to replace it by bloody tyranny. The victory won by the anti-Hitler coalition in the Second World War was also a victory of international law over the fascist doctrine of the rule of force in international affairs.

The changes in international law since the October Revolution justify the statement that contemporary international law is a qualitatively new international law which may briefly be called the law of peaceful coexistence and free development of people.^^1^^ Its basic principles and rules have taken shape in the period of coexistence of states of the two systems and under the decisive influence of the socialist states and other peace forces. The political basis of this new international law is peaceful coexistence of states with different social systems; its principles and rules reflect the basic conditions of peaceful coexistence and self-- determination of nations.

in general and of international law as one of the elements of the superstructure. However, the development of international law is influenced not only by society's economic system but by different parts of the superstructure: politics, national law, philosophy, ethics, etc. We have a complicated interaction of different phenomena in which international law, subjected to the influence of the economic system and other parts of the superstructure, itself exerts an influence on other parts of the superstructure and the economic system of society. Society's economic system influences the development of international law not only by the method of ``direct'' action but through other categories of superstructure whose influence on the whole cannot transcend the bounds defined by the economic system of society.

The distinctive feature of the present age is the coexistence of two diametrically opposed economic systems: socialist and capitalist. Each has its own superstructure, its type of state and law, its ideology. Both the socialist and the capitalist system and their superstructures exert an influence on international law.

Some bourgeois critics of the Soviet doctrine of international law, incapable of scientifically explaining the present-day developments in international law, allege that Marxism-Leninism cannot explain the existence of general international law.^^1^^ The Marxist theory of the correlation of the basis and the superstructure inevitably leads to the conclusion that there are two international laws and not one general international law.^^2^^

These critics, however, confuse Marxism with economic materialism and, thinking that they are criticising MarxismLeninism, are really criticising economic materialism which has been rejected by Marxism as wholly unsubstantiated.

Marxism-Leninism treats of the historical process in all its complexity and diversity. The Marxist-Leninist theory

4. THE NATURE OF PRESENT-DAY INTERNATIONAL LAW

International law is a category of superstructure and its main features and its essence are in the final count determined by society's economic system. The economic system of society determines the main features of the superstructure

~^^1^^ See E. McWhinney, "Le concept sovietique de 'coexistence pacifique', et les rapports juridiques entre 1'URSS, et les Etats occidentals", Revue generale du droit international public No. 3, 1963, p. 549; "Soviet and Western International Law and the Cold War in the Era of Bipolarity", Canadian Yearbook of International Law, 1963, p. 48; W. Kulski, "The Soviet Interpretation of International Law", The American Journal of International Law, Vol. 41 (1955), p. 520.

~^^2^^ See E. McWhinney, Peaceful Coexistence and Soviet-Western International Law, Leyden, 1964, p. 50.

~^^1^^ G. I. Tunkin, "Le droit international de la coexistence pacifique", Melanges offcrts a Henri Rolin, Paris, 1964.

SO

of law does not consider law and international law in particular a simple projection of the economic system in the sphere of superstructure.

In regarding international law as an expression of state will, analysing the connection between the will of the state and society's economic system and baring the mechanics of establishing the rules of international law, the MarxistLeninist theory of international law scientifically explains the possibility of universal international law existing in the conditions where there are two diametrically opposed socioeconomic systems, and the processes taking place today in international law.

States belonging to antagonistic social systems are not isolated from each other. They maintain economic, political, scientific, technical, cultural and other ties. These ties are going through the process of expansion and intensification, determined by the rise of the level of modern society's productive forces. Just as the existence of interstate relations and their expansion and intensification are a law-governed process, so is the existence of universal international law whose rules govern relations among all states.

The present stage in the development of international law from the economic point of view is distinguished by the fact that it is developing under the influence of two antagonistic systems---the capitalist and the socialist which is replacing it. The peaceful coexistence of these two opposing systems is the element which determines in general the development of international law at the present stage.^^1^^ Each of these systems exerts its influence on the development of international law through the will of states. It is through the will of states taking part in the establishment of international law rules that other parts of the superstructure--- the legal systems of states, ethics, religion, philosophy, etc. ---also exert their influence on the development of international law.

The will of a state is a determined will. The content of the will of the state participating in the establishment of international law rules, and its own position in international law are determined by the sum total of conditions in which the ruling class exists in the given state; in the Soviet people's state it is determined by the entire Soviet people and,

in the final analysis, by society's economic system. "All the needs of civil society---no matter which class happens to be the ruling one---must pass through the will of the state in order to secure general validity in the form of laws," Engels wrote.^^1^^ It is the urge to develop and strengthen a given economic system, the economic needs and interests of the class ruling the state---in the Soviet Union, of the entire people---that determine the main content of a state's will in the process of formation, development and modification of international law rules.^^2^^

Being the result of agreements between states, firstly between the states of the two diametrically opposed social systems, the principles and rules of contemporary universal international law are the expression of the wills of states. The correlation of the wills of states participating in the establishment of international law rules and the wills of their peoples depends on the type of each given state. The will of the Soviet state is the will of the entire Soviet people; the will of a capitalist state is always the will of its ruling class and is naturally determined by the sum total of the conditions in which this class exists.

Agreement on the establishment of an international law rule is the result of co-operation and struggle among the states, notably between the states of the opposing systems. The struggle and co-operation of states find expression in the contents of international law rules.

Being the result of agreements among states, first and foremost between the states of the two systems, and aiming at securing peace and peaceful coexistence, the rules of present-day international law are of a general democratic nature.

The struggle for international law, for its progressive development and for its strict observance by the states in present-day conditions is a component part of the struggle for peace and peaceful coexistence, and serves the same aims.

International law, which helps promote peace and peaceful coexistence---the only alternative in our day to a thermonuclear war---is a major factor in human progress.

The steadily increasing authority of the socialist and developing countries following the policy of peaceful coexist-

~^^1^^ Marx and Engels, Selected Works, Vol. II, Moscow, 1962, p. 395.

~^^2^^ See I. I. Lukashuk, "The U.S.S.R. and International Treaties", Soviet Yearbook of International Law, 1959, p. 19.

~^^1^^ See Section 2 of the present article.

3-495

ence and all other forces of peace creates favourable conditions for introducing in general international law such new progressive principles as that of general and complete disarmament, as well as for further developing the principles and rules already in operation.

The bourgeois science of international law, interpreting law as a non-class, general system of rules and ignoring the specifics of international law, is incapable of correctly determining the trends of its development. Almost all the bourgeois international jurists claim that international law is developing along the same lines as national law. Contemporary international law, they say, is at the initial stage of development, a stage long passed by national law. Consequently, international law is a ``primitive'' law. It nevertheless develops in the same direction as national law, that is, towards centralisation. Some, but now far from all, bourgeois international jurists go further and affirm that international law will become a ``real'' law only with the establishment of a world state or just before it.^^1^^

There are undoubtedly some common features in the development of international and national laws. Among these is the fact that at a certain stage of human society's development there was no national or international law and that at some very high stage of human society's development there will again be no national or international law.

However, the fact that there are certain common features in the development of international and national laws does not mean that international law has no specific features of its own. Attempts to approach international law with a national law yardstick is scientifically unjustified, for it makes it impossible to take into account the specifics of the phenomenon under investigation. International law is an original law, and it will remain so as long as it exists.

What especially distinguishes international law (leaving aside its new aspects) is that its chief function is to govern relations between sovereign states. Rejecting the arguments of the advocates of the "world state", some international law experts in the West rightly stress that the establishment of

~^^1^^ See Ph. Jessup, A Modern Law of Nations, New York, 1948, pp. 2-3; H. Kelsen, Principles of International Law, New York, 1952, p. 402; H. Lauterpacht, in L. Oppenheim's International Law, Vol. I, London, 1955, p. 370, and G. Schwarzenberger, The Frontiers of International Law, London, 1962, p. 312.

a "world state" would mean abolition of international law, for it would then be replaced by the internal law of the "world state".^^1^^

The main distinctive features of international law as a law governing relations between sovereign states are determined by the laws governing historical development. The existence of sovereign states now does not depend on the will and wishes of individuals. It is not a question of governments refusing to part with sovereign power, a thing those who advocate the abolition of state sovereignty ( Kelsen, Scelle and others) often complain about. The sovereign states owe their existence to the historical laws of our time.

In present-day conditions, the plans for the establishment of a world state and the appeals to abolish state sovereignty militate against the laws governing social development and objectively reflect the imperialist powers' tendency to use international organisations to further their reactionary aims. Belittling the importance of state sovereignty merely makes it easier for the big imperialist powers to interfere in the domestic affairs of the weaker nations in order to enslave them economically and politically.

Today, when the authority of the world socialist system and the newly-independent states is growing steadily and the forces of peace are becoming ever stronger, there is every reason to believe that the basic principles and rules of international law will be further developed and strengthened, and that new principles and rules, directed at promoting international co-operation and ensuring free development of the people and the peaceful coexistence of states on the basis of equality, respect of sovereignty and noninterference in domestic affairs, will be established.

~^^1^^ See D. Anzilotti, Corso di diritto internazionale, p. 47; A. Verdross, Volkerrecht (Fiinfte Auflage], Wien, 1964, S. 6; and Lucio M. Moreno Quintana, Tratado de Dcrccho International, Vol. 1, BuenosAires, 1963, p. 52.

R. L. Bobrov, LL. D.

ever, does not lessen the value of general principles. What is more, the forces standing for precise democratic international law rules find legal support in the general principles of present-day international law inasmuch as the high degree of concentration of legal institutions in itself requires the adoption of rules to clarify the given general principle. Opposition of concrete rules to general principles is in effect one of the forms of struggle reactionary jurisprudence uses against the basic democratic principles of presentday international law, in its struggle against the democratic content of these principles.

``The struggle of the peace-loving and democratic forces for peace and the freedom of nations has raised all international law problems to a definitely higher level and made it necessary to approach even highly special issues from the angle of its basic principles," D. B. Levin rightly says.^^1^^

The principles of international law are of a normative nature. They cannot be regarded as a category outside the legal substance, as an expression of merely the guiding ideas and qualitative peculiarities of the concrete norms of the given system of law. The removal of legal principles from the bounds of normativeness will in effect ``deprive'' them of their intrinsic quality. Actually, international law principles, in the full and direct sense of this term, always include definite rules of conduct irrespective of the form in which any of these principles are expressed.

The basic principles of present-day general international law secured by the U. N. Charter---such as prohibition of aggression and respect for sovereign equality---not only embody the general ideas and qualitative peculiarities of present-day international law but constitute its basic rules. Moreover, there is nothing in contemporary international law that excludes the application (both in diplomatic practice and in research) of the method of deriving general principles from any universally accepted international law rules of a more particular nature.

Vladimir Outrata rightly points out that correctly formulated general principles embracing the essential aspects of the corresponding concrete rules of the international law in

BASIC PRINCIPLES OF PRESENT-DAY INTERNATIONAL LAW

One of the most important features in the development of international law is the increasing importance of its basic principles.^^1^^

The basic principles of international law form a category which did not come into existence together with international law itself. Principles of this type appear only at a certain stage in the development of this law. They form as international law emerges from the stage of decentralisation and turns into the general international law of the feudal era (at the stage of its decay).

The presence of common elements in the basic principles of international law in different eras does not alter the fact that each of the systems of principles is a new whole. This applies particularly to the present era, whose system of basic international law principles differs radically in nature from the corresponding systems of the past.

One cannot possibly agree with the authors who, displaying a nihilistic attitude to the basic principles of presentday international law, consider them divorced from reality and of very little practical use.^^2^^

There is no doubt that it is very important to crystallise general principles, and Soviet diplomacy strives for the establishment of concrete rules that would accord with certain principles. The task of establishing precise rules, how-

~^^1^^ Cf. D. B. Levin, "On the Conception and the System of Presentday International Law", Soviet State and Law, No. 5, 1947, pp. 13- 14; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 120.

~^^2^^ See E. McWhinney, "Peaceful Coexistence and Soviet-Western International Law", The American Journal of International Law, No. 4, 1962, p. 967.

~^^1^^ D. B. Levin, Basic Problems o\ Present-day International Law, Moscow, 1958, p. 101.

operation "are of necessity legal rules, for all restrictions (of the limits of application or the resultant rights and obligations) contained in definite rules must perforce be reflected in the correctly formulated general principle too".^^1^^

In stressing the normative nature of the basic principles of international law, we do not in the least underestimate their specific role in the system of international law of each epoch.

As basic rules, basic principles express the guiding ideas and qualitative peculiarities of each given system of law. This exceptionally important trait of the basic principles is in no way contrary to their normativeness. What is more, it is this normativeness that ensures the given universal (by the composition and number of addressees) principle not simply a guiding but a specifically legal guiding character in relation to ordinary legal rules. The relation between the basic principles of international law and the more detailed rules of this law may definitely be likened to the relation between constitutional principles and the rules inherent in ordinary laws.^^2^^

Generalising the content of many concrete rules, the basic principles of international law are at the same time " independent normative criteria of a state's conduct".^^3^^

It should also be borne in mind that the basic principles of international law, being rules of conduct that are infinitely more concentrated than other rules, simultaneously differ from one another by the level of generalisation. Thus the principle of respect for state sovereignty is more general than the principle of the equality of states (sovereign equality) or the principle of non-interference in the sphere of internal competence of another state. The latter are simply aspects of the former. At the same time, both the principle of the equality of states and the principle of non-interfer-

~^^1^^ Vladimir Outrata, "K pojmu obecnych a zakladnich zasad mezinarodmho pravo", Casopis pro mezindrodni prdvo, No. 3, 1961, p. 191.

~^^2^^ See D. B. Levin, "On the Conception and the System of Presentday International Law", Soviet State and Law, No. 5, 1957, p. 13; V. N. Durdenevsky, "Five Principles of Peaceful Coexistence", International Law Forms of the Peaceful Coexistence of States and Nations, 1957, p. 7.

~^^3^^ See Vladimir Outrata, "K otazce formulace pravmch zasad pokojneho souziti", Casopis pro mezindrodni prdvo, No. 3, 1962, pp. 210- 11.

ence are not only independent principles with their own clearly formulated legal content but are themselves guiding principles in relation to ordinary and special rules establishing the basis of conduct of states in all spheres of interstate relations in conformity with the content of each rule.

This given conception reveals the interconnections really existing in the sphere of law. Life itself requires generalised (complex) basic rules. It also requires the reverse: dissection of complex rules into independent legal rules, including those which are themselves basic to the more concrete rules.

And so basic international law principles are rules of a universal nature. Here it is a matter not only of their universal acceptance but also of the fact that they establish the basis of conduct of states in international affairs and that, consequently, they must be observed in all spheres of interstate co-operation.

Besides the general principles there are principles of international law which may be the international law rule referring to any one sphere of interstate relations (trade, finances, navigation, etc.) and generalising in one or another degree the extant, more concrete rules or being the legal basis for the establishment of new corresponding concrete rules.

The international law rules contained in Chapter I of the Charter of the United Nations ("Purposes and Principles") are of course---in conformity with their international and purely legal nature---the basic principles of present-day international law.

The basic principles of any given system of international law reflect in a concentrated manner the main laws governing social development which operate in international relations. These laws are naturally reflected in international law through the will of states, not automatically.

In the conditions of formerly inconceivable contradictoriness of trends, which to one or another extent influence the elaboration of international law rules, the basic principles of international law have embodied, though not fully, the progressive, democratic ideas of the peoples' legal consciousness.

The basic principles of international law are the criterion of the legitimacy of all the other rules worked out by states

in the sphere of international affairs.^^1^^ These are the superior² and imperative^^3^^ rules. These are the general institutions to which the well-known proposition that special law cancels out general law is inapplicable. The above-mentioned `` statute'' contains one of the most important peculiarities of the basic principles of both national and international law. All the ordinary rules of international law must conform to its underlying principles. Any institution contradicting these principles cannot be considered a valid rule of law.

There were many international jurists in the 19th century who spoke of the invalidity of international treaties contradicting the underlying principles of international law. Some bourgeois lawyers still do so.^^4^^

As for the Soviet science of international law, all the authors dealing in one way or another with this subject lay stress on the illegality (invalidity) of the treaties which

violate the basic principles of the international law in operation,^^1^^ that is, of its imperative rules.

It is highly important that the proposition about the jus cogens rules is now included in the draft of the articles on the law of treaties drawn up by the U. N. International Law Commission.

Following a discussion, the International Law Commission at its fifteenth session adopted the following article: "A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." (Art. 50.)

This article (then listed as No. 37) was highly assessed by the Sixth Committee of the U.N. General Assembly when it discussed the International Law Commission's work at its fifteenth session. "The recognition by the International Law Commission that there exist in the general positive international law of today certain fundamental rules of international public order, contrary to which states may not validly contract (jus cogens) was considered by all representatives who referred to the matter as being a step of great significance and importance for the progressive development of international law.''^^2^^ Many representatives in the Sixth Committee pointed out that "Article 103 of the United Nations Charter, by proclaiming that obligations under the Charter prevailed over obligations under any other interna-

~^^1^^ Cf. M. Y. Rapoport, "Basic Principles of the Peaceful Coexistence of States Is a Criterion of Present-Day International Legality", Bulletin of Higher Educational Establishments, Jurisprudence, No. 4, 1960, p. 90.

~^^2^^ It is difficult to agree with French jurist Lucien Siorat who, recognising that the principles of law are the "guiding propositions to which a number of particular solutions are subordinated", draws a line between the principles of law and "superior rules" (see L. Siorat, Le probleme des lacunes en droit international, Paris, 1959, pp. 361-62).

~^^3^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 120.

~^^4^^ For a systematised analysis of this problem see V. M. Shurshalov's The Foundations of the Validity of International Treaties, Moscow, 1957, pp. 131-34. Bourgeois scholars, however, do not always draw the necessary practical conclusions from the theoretical negation of the validity of the international treaties which are contrary to the general principles of international law. Charles C. Hyde, for instance, writes: "In theory, any agreement which purports to do violence to the underlying principles of international law must, to that extent, be regarded by the family of nations as internationally invalid" (see Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1952, Vol. II, p. 1375). But, as M. I. Lazarev said, this did not prevent Hyde from contradicting himself in the same book by saying that "the element of compulsion is not deemed to vitiate the transaction or to give the relinquisher the right to repudiate the arrangement" (Charles Ch. Hyde, op. cit., Vol. I, p. 29). See M. I. Lazarev, "Recognition of Imperialist Treaties As Invalid by Soviet Students of International Affairs", Bulletin of the Institute of International Relations, Issue 2, Moscow, 1958, p. 123.

~^^1^^ See F. I. Kozhevnikov, "Certain Problems of the Theory and Practice of International Treaties", Soviet State and Law, No. 2, 1954; G. I. Tunkin, "Paris Agreements and International Law," Soviet State and Law, No. 2, 1955; V. M. Shurshalov, Foundations of Validity of International Treaties, Moscow, 1957; M. I. Lazarev, "Recognition of Imperialist Treaties As Invalid by Soviet Students of International Affairs", Bulletin of the Institute of International Relations, Issue 2, Moscow, 1958; Y. A. Korovin, "The Statement of the Conference of Representatives of the Communist and Workers' Parties and the Problems Confronting the Science of International Law", Bulletin of the Moscow State University, Series X, Jurisprudence, No. 3, 1961, p. 66.

Among the works expressing the same point of view by jurists of other socialist countries see R. Arzinger's "Vertragstreue und V61- kerrechtswidrige Vertrage", Festschrift fur Erwin Jacobi, Berlin, 1957, pp. 238-59, and S. Stefanov's The International Law Principles of the Foreign Policy of the Bulgarian People's Republic.

~^^2^^ Doc. A/5601, Nov. 6, 1963.

tional agreement, had aided greatly in creating that rule".¹ The reference in literature to the number of the underlying principles of present-day international law and the formulations of these principles are not characterised by monotony, and that to a certain extent is due to the interconnection of the principles which in some cases borders on

interpenetration.

* =:- ff

The entire system of the underlying principles of general international law of today is a system of peaceful coexistence principles. The core of this system is the principle after which it is named---the principle of peaceful coexistence, which absorbs the substance of all the other basic principles of the general international law in operation.^^2^^

The dominant socio-political trend of the international law principle of peaceful coexistence is to ensure the peaceful coexistence of states with different social systems. This follows not only from the present socio-political conditions which are directly relevant to the functioning of this principle but from the U. N. Charter.

The essence of the principle of peaceful coexistence, embodied in many articles of the U. N. Charter, is particularly clearly formulated in its Preamble which says that the peoples whose governments have assumed obligations are determined "to practise tolerance and live together in peace with one another as good neighbours''.

There is of course no question here of tolerance of aggression inasmuch as the formula above speaks of peace, inasmuch as peaceful coexistence is first and foremost peace, and the struggle against aggression is the United Nations' main task. It is well known how firmly the U. N. Charter demands of the member states to be intolerant of aggression (Para. 5, Art. 2) and that, under Para. 6, Art. 2, this directly applies also to states which are not members of the U. N.

Nor is it a question of tolerating the violation of other U. N. principles whose defence, under the Charter, is un-

~^^1^^ Doc. A/5601, Nov. 6, 1963. See also the records of discussion of the completed draft articles on the right to agreements by the Sixth Committee of the U.N. General Assembly at its 22nd Session (October 1967). Doc. A/6913, Nov. 24, 1967.

~^^2^^ Cf. G. I. Tunkin, Theoretical Problems of International Law, p. 52; International Law, Vol. 2, p. 27.

doubtedly the duty of all U. N. members. There remain the internal, notably social, peculiarities of states^^1^^ and their actions which are consistent with the U. N. Charter.

The Charter thus contains a demand which is diametrically contrary to the class interventionist conceptions of imperialism: that countries must live in peace and co-operate even if their social systems are different.^^2^^

Since relations between states with different systems are the central factor of international affairs today, their international law aspects cannot but influence decisively the development of the general international law of today. The establishment in present-day general international law of the principle of peaceful coexistence with its basic requirement of permanent good-neighbourliness as the juridical minimum of the demands made by the states upon one another and by international intercourse in general upon each state, is the result of the influence exerted on international law by the socialist and other forces of peace and progress.

It should be stressed that the principle of peaceful coexistence---both as a foreign policy principle guiding the socialist countries in their relations with the states of the capitalist system and as a principle of the general international law of today---is confined to interstate intercourse. "The principle of peaceful coexistence does not apply to relations between oppressors and oppressed, between colonialists and the victims of colonial oppression.''^^3^^ This principle, however, does not and cannot eliminate the uncompromising ideological struggle which reflects the essence of the contradictions between the two systems.^^4^^ It demands

' Also still important of course are the peculiarities engendered by religion in non-socialist countries. In the past, tolerance meant chiefly religious tolerance. But though this problem remains, it has long ceased to be of world-wide paramount importance.

~^^2^^ This demand of present-day international law is a victory for the ideas of the Soviet state, which had affirmed at the Genoa Conference in 1922 that states with different systems could co-operate fruitfully on the basis of full equality and mutual advantage. (See U.S.S.R. Foreign Policy Documents, Vol. V, Moscow, 1961, pp. 371-72.)

~^^3^^ Resolution of the C.P.S.U. 23rd Congress on the Central Committee's Report, 23rd Congress of the C.P.S.U., Moscow, Novosti Press Agency Publishing House, p. 288.

~^^4^^ For the ideological struggle within the sphere of international law see I. I. Lukashuk, The C.P.S.U. Programme and Contemporary International Law, 1962, pp. 32-35; G. I. Tunkin, Ideological Struggle and International Law, Moscow, 1964, pp. 1-6.

nevertheless that this struggle should not undermine universal peace.

The principle of equality of the two socio-economic systems is a component of the principle of peaceful coexistence.

There can be no real peaceful coexistence, which includes diverse forms of business co-operation, if there is no equality between the two social systems to which the co-operating states belong. The successful co-ordination of wills in the conclusion of international treaties^^1^^ requires of the parties drafting the treaty to proceed from the assumption of both the equality of states as subjects of international law and the equality of systems, whose social peculiarities predetermine the essence of the international legal positions of the contracting parties and the limits of possible mutual concessions.

The principle concerning the equality of the two systems reflects in a condensed manner the specifics of the social class pattern of present-day interstate intercourse. This principle is a demand which passes through all other components of the principle of peaceful coexistence and at the same time gradually crystallises in the form of a separate rule: today, when complex ties between the different parts of the socially divided world make it indispensable to find mutually acceptable solutions, it is necessary for the states of one system to respect the lawful interests of the states of the other, not to discriminate against states because they belong to another social system.

The principle of equality of systems is reflected in the U. N. Charter (Para. 3, Art. 27), though in an original juridical form. This must definitely be taken into account when constituting international organisations.^^2^^

In latter years this problem has been closely bound with the new task of simultaneously taking into account the interests of a large group of neutralist states in which the leading role is played by the newly-independent Afro-Asian countries.

Thus, to implement fully the principle of peaceful coexistence it is necessary to reckon with the lawful interests of all three basic political groups of present-day states: socialist, capitalist and the socially heterogenous states of the socalled Third World. This does not, and indeed cannot, cancel out the broader principle of the equality of the two social systems into which the present-day world is mainly divided; far from contradicting this broader principle, it

helps to implement it.

* =:- *

Let us deal first with the group of principles generalised by such a guiding principle of present-day international law as the obligation to maintain international peace and security.

The study of the principles of this group should begin with the principle of non-aggression (prohibition of aggression). Democratic jurisprudence has always regarded aggressive wars as unlawful. That is why, even before aggression had been prohibited by international law, the governments were time and again compelled to pass off aggressive wars for defensive. It might also be recalled that the 1907 Hague Convention for the Pacific Settlement of International Disputes stated that, "before an appeal to arms, the contracting powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly powers". (Art. II).

The bourgeois governments, however, then refused to contemplate rules prohibiting aggressive wars and proclaiming them international crimes.

After the Great October Socialist Revolution, when aggression was declared a crime^^1^^ by the supreme organ of power of the world's first socialist state,^^2^^ which became the organising centre of the struggle for peace, prohibition of aggression gradually became a part of international law thanks to the efforts of the Soviet socialist state and of the masses throughout the world.

A rule generally prohibiting agression was introduced into international law on July 24, 1929, that is, on the day

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, pp. 164-68.

~^^2^^ For details about this principle see R. L. Bobrov, "The Principle of the Equality of the Two Systems in Present-day International Law", Soviet State and Law, No. 11, 1960.

~^^1^^ See Lenin, Collected Works, Vol. 26, p. 40.

~^^2^^ See the Decree on Peace adopted by the Second All-Russia Congress of Soviets on November 8, 1917, U.S.S.R. Foreign Policy Documents, Gospolitizdat, 1957, Vol. 1, pp. 11-14.

the Briand-Kellogg Pact (the Paris Pact of 1928) came into force, though it required considerable improvement. One must say that the Briand-Kellogg Pact clauses played a big role in the punishment of the major German and Japanese war criminals who were later tried for planning, preparing, unleashing and conducting an aggressive war.

After the Second World War prohibition of aggression became a clearly formulated rule of international law, expressed in Para. 4, Art. 2, of the U. N. Charter and reflected also in other articles of this Charter. The prohibition of aggression is now universally accepted and provides for a series of measures aimed at preventing aggression and putting an end to it if that is not achieved (Chapter VII of the U. N. Charter).

The principle of non-aggression (prohibition of aggression) is exceptionally closely linked with the principle concerning the peaceful settlement of international disputes. Although each of these principles has its own content, they are often implicit in each other.^^1^^

Old international law, in which there was no rule prohibiting aggressive wars did not bind the states to settle their disputes peacefully. As we have already said, the 1907 Convention for the Pacific Settlement of International Disputes obliged them only to have recourse to the good services or mediation of other states before resorting to arms, and then only as far as the circumstances permitted.

The old international law rules for the peaceful settlement of disputes, rules which constituted an appropriate international law institution, cannot be identified with the principle concerning the settlement of interstate disputes and differences solely by pacific means. This principle, which precludes the right to resort to war to settle disputes, became a firmly established principle of international law only with the prohibition of war by international law.^^2^^

The role played by the principle of peaceful settlement of international disputes in the system of principles of peaceful coexistence is clearly defined in Para. 3, Art. 2, of the

U. N. Charter. "All Members," it says, "shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.''

The group under review also includes the principle of collective security (in the direct sense of the term), namely, giving assistance to the victim of aggression.^^1^^ This principle is formulated in Para. 5, Art. 2, in the following words: "All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action." This formula is elaborated in a number of subsequent articles. A whole chapter (VII) of the Charter is devoted to the employment of effective measures against aggression.

Speaking of enforcement measures provided for by international law, one should stress that these should be only the ones decided upon by the competent U. N. organ. The decision to apply these measures rests, under the U. N. Charter, with the Security Council and is made by the concurring votes of the permanent members.

The principle concerning the prohibition of war propaganda also belongs in the group of principles under review. Since aggressive war constitutes a major crime against mankind, war propaganda is definitely a crime too. It has been condemned in all its forms by the U. N. General Assembly, which has proposed to the governments of all U. N. member countries to take the following measures within the framework of their constitutions:

``a) To promote, by all means of publicity and propaganda available to them, friendly relations among nations based upon the Purposes and Principles of the Charter;

``b) To encourage the dissemination of all information designed to give expression to the undoubted desire of all peoples for peace.^^2^^

~^^1^^ Collective security in a broader sense implies an all-embracing guarantee of peaceful coexistence, providing for a number of measures for ensuring it, namely: 1) disarmament; 2) peaceful means of settling international disputes, and 3) enforcement action in accordance with Chapter VII of the U.N. Charter. (Cf. V. K. Sobakin, Collective Security Is an Earnest of Peaceful Coexistence, Moscow, 1962, p. 203.)

~^^2^^ Official records of the second session of the General Assembly

~^^1^^ Cf. G. I. Tunkin, Theoretical Problems of International Law, p. 32.

~^^2^^ See A. P. Movchan, Peaceful Means of Settling International Disputes, Moscow, 1957, pp. 4-5, and A. M. Ladyzhensky and I. P. Blishchenko, Peaceful Means of Settling Disputes Between States, Moscow, 1962, p. 15.

Among the principles concerning the obligation to maintain international peace and security the principle of disarmament is especially important.

The need to disarm---to liquidate the material and technical basis of wars---derives directly and fully from the principle concerning the obligation to maintain peace, a principle in relation to which disarmament plays the role of an international law means of achieving this particular aim. Consequently, the special U.N. Charter clauses on disarmament should be regarded as inseparable from this guiding principle of present-day international law.^^1^^

Unlike the principle of non-aggression, the principle of disarmament in its present form is a rule which makes it indispensable for the states to conclude a special concrete agreement on disarmament. Its very implementation must be effected under strict international control in each specific stage of disarmament.

As S. A. Malinin rightly notes, "the principles of the U.N. Charter do not yet directly oblige each state to disarm. This obligation should be enforced by means of other rules which directly prescribe the states to undertake such action. . . . The legal content of the principle of disarmament (its most general expression) secured in the U.N. Charter ... obliges the states and the principal organs of the United Nations (Security Council and General Assembly) to work out measures for the practical implementation of disarmament."'^^2^^

A particularly important part in the development of the international law principle of disarmament was played by Resolution 1378 (XIV) of November 20, 1959, adopted following the submission by the Soviet Union of radical and

comprehensive disarmament proposals to the Fourteenth U.N. General Assembly.^^1^^

Realisation of this principle will lead to the establishment of a system of new rules with the kind of explicit commitments human history has never known, rules that would make constructive action in the sphere of disarmament imperative.

A very important confirmation of the international law principle of disarmament is the Moscow test-ban treaty, whose preamble proclaims as the principal aim of the more than 100 signatory states the speediest possible achievement of an "agreement on general and complete disarmament under strict international control in accordance with the objectives of the United Nations" (Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water of August 5, 1963).

The principal and decisive element in the disarmament problem is of course nuclear disarmament, the liquidation of mass-destruction weapons of incalculable power. Nuclear disarmament may be described without the least fear of exaggeration as the core of the programme of general and complete disarmament.^^2^^

It must be emphasised that all the principles we have dealt with here is a group of absolutely new principles whose appearance in international law is basically the result of the consistent struggle waged by the forces of socialism and the anti-imperialist democratic forces.

The second group of basic principles of present-day international law is that concerning respect for peoples' and states' sovereign rights. The U.N. Charter was signed by the governments on behalf of their peoples. In present-day conditions it is not an empty formula. The peoples are potential subjects of present-day international law.^^3^^

~^^1^^ See resolutions adopted by the General Assembly during its fourteenth session, September 15-December 13, 1959, New York, 1960, p. III.

Of the subsequent U.N. General Assembly resolutions on disarmament we may note resolutions 1653 (XVI), 1722 (XVI), 1767 (XVII) and 1837 (XVII). Resolution 1767 urges the 18-Nation Disarmament Committee to "resume at Geneva its negotiations on general and complete disarmament, with effective controls, expeditiously and in a spirit of constructive compromise, until agreement has been reached". Also see resolutions 190S (XVIII), 2031 (XX), and 2162 (XXI).

~^^2^^ See O. V. Bogdanov, Nuclear Disarmament, Moscow, 1961, p. 19. •' See R. L. Bobrov, Contemporary International Law (Objective

Premises and Social Purport), Leningrad, 1962, p. 96.

Resolutions, September 16-November 29, 1947, New York, p. 14.

Also see A. N. Trainin, Criminal Responsibility for the Propaganda of Aggression, Moscow, 1947; G. I. Morozov, "On the Question of Responsibility for War Propaganda, Soviet Yearbook of International Law, 1959, Moscow, I960; G. I. Tunkin, Theoretical Problems of International Law, pp. 60-63.

~^^1^^ See S. A. Malinin, "Legal Principles of Disarmament", Leningrad State University Bulletin, No. 17, 1956, pp. 137-38; 0. V. Bogdanov, General and Complete Disarmament International Law Aspects, Moscow, 1964, p. 113.

~^^2^^ S. A. Malinin, Legal Content of the Principle of Disarmament, Leningrad, 1966, pp. 26-27.

The group under review contains the principle of respect for state sovereignty. This ``old'' international law principle is in its simplest form an institution securing the structural peculiarities of international law as a co-ordinating law. But the rules amplifying upon this simplest concept of sovereignty and establishing the sphere of operation of the given principle (in one or another of its forms) are specific to each stage of social development.^^1^^ In our day, state sovereignty, characterised by the supremacy of state power within the country and the independence of the given state without, is at the same time based on the right of every nation to self-determination and applies to all nations without exception.

The Soviet state in its practical activity and the Soviet theory of international law resolutely supported the principle of respect for state sovereignty, which was vigorously attacked back in the 1920s, and developed it in accordance with the new, consistently democratic ideals of international law.

This principle, attacked by many reactionary sociologists and jurists seeking ``theoretically'' to substantiate the efforts of the big imperialist powers to subjugate other nations,² withstood the assault and became stronger still as a result of the change in the relation of world forces in favour of socialism and democracy.

``Despite all changes, it has not been possible to ban the spirit of sovereignty from international law", Josef L. Kunz writes, speaking of "an upsurge of sovereignty".^^3^^ Alfred

Verdross,^^1^^ Suzanne Bastid^^2^^ and others also speak of the preservation of the principle of sovereignty.

There is no doubt that this principle will become increasingly important in the future, for there can be no progress in the development of peaceful coexistence of present-day states if it is not strictly observed. According to the principal laws of our day, the principle of respect for state sovereignty actively helps promote the social progress of the peoples and enhance the influence they exert on international affairs.

The principle of respect for state sovereignty now generalises at least three basic principles: 1) the states' respect for territorial integrity; 2) sovereign equality, and 3) non-interference in the domestic affairs of other states (mutual respect for territorial supremacy).

The first of these is inseparable from the principle concerning the prohibition of aggression, and that testifies once again to the close interconnection of the basic principles of present-day international law.

The principle of sovereign equality underscores the universality of the principle of respect for state sovereignty, the inadmissibility of one sovereign party to interstate intercourse imposing its will upon another, and the equality of all states in the present-day world, irrespective of their geographical, economic, social, political or other status.

As for the principle of non-interference, it has penetrated deep into the principle of respect of state sovereignty and, in accordance with the latter, categorically forbids any state or any intergovernmental organisation to impose any social or political system upon other states.

The group of principles under review also includes the principle of nations' right to self-determination, which, though established in international law relatively recently, has already expanded and democratised the content of a number of other basic international law institutions.

This principle secures the right of each nation to independent existence as a state and to free choice of its social and political system, and obliges all states to respect this right in both its (interconnected) manifestations and to promote its implementation.

~^^1^^ For details about the progressive development of the principle of sovereignty see Y. A. Korovin. "The Soviet Union's Struggle for Sovereignty", Records of the Academy of Social Sciences of the Central Committee of the Communist Party of the Soviet Union (Bolsheviks), Issue 1, 1947.

~^^2^^ For details about attacks on the principle of state sovereignty by bourgeois jurists see H. Lauterpacht, "The Subject of the Law of Nations", The Law Quarterly Review, Vol. 63, 1947; Ph. Jessup, Transnational Law, New Haven, 1956; J. L. Brierly, The Law of Nations. An Introduction to the International Law of Peace, 6th ed., Oxford, 1963. For criticism of such doctrines see, for instance, L. A. Mojoryan, Subjects of International Law, Moscow, 1958, pp. 20-25; N. A. Ushakov, Sovereignly in Present-Day International Law, Moscow, 1963, pp. 201-32.

~^^3^^ See J. Kunz, "The Changing Law of Nations", The American journal of International Law, Vol. 51, No. 1, 1957, pp. 78 and 81.

~^^1^^ Sec A. Verdross, Volkerrecht, Vienna, 1964.

- Sec S. Bastid, Cours d'institutions Internationales, Paris, 1956, pp. 247-51.

•>'

51

It was the October Revolution which, for the first time in world history, advanced the principle concerning the right of all nations without exception to self-determination up to and including state secession as a state law principle and the international law policy of the Soviet state it had created. This principle was first formulated in its biunial quality in the Decree on Peace. This decree was followed by the Declaration of the Rights of the Peoples of Russia and the international law acts of the Soviet state securing the sovereign rights of its eastern neighbours.

As a result of the persistent efforts of the U.S.S.R. and the upsurge of the national liberation movement following the victory of the anti-Hitler coalition, the principle of the nations' right to self-determination was secured by the U.N. Charter (Para. 2, Art. 1). The widespread interpretation by bourgeois literature of the principle of self-- determination as one that is purely political, not legal, is entirely unjustified. The U.N. Charter is an international law act and its principles, being an expression of the will of states, have the power of law.^^1^^

Reflecting the victorious onmarch of the national liberation movement, the numerous anti-colonialist resolutions adopted by the U.N. General Assembly increasingly corroborate the principle of national self-determination secured in the Charter and develop it in accordance with this Charter.^^2^^

A particularly important part in the development of this principle is played by Resolution 1514 (XV) of December 14, 1960---Declaration on the Granting of Independence

to Colonial Countries and Peoples---which demands the total abolition of colonialism "in all its forms and manifestations".^^1^^ This resolution was adopted on the initiative of the U.S.S.R. and reflected the principal ideas contained in the Soviet draft.

As a result of the enormous growth of influence wielded in international affairs by the world socialist system, many peoples have acquired independence peacefully (in the sense that they have not had to resort to arms in their struggle). The further consolidation of the socialist camp and the increase in the number of Afro-Asian countries that have freed themselves from the colonial yoke multiply the possibilities of other peoples acquiring independence by non-military means. But since the colonialists are a diehard lot, the sharpest forms of struggle are inevitable---the national liberation wars which undoubtedly must be regarded from the point of view of present-day international law as defence against aggression, with all the ensuing international law consequences.

The favourite method of justifying colonial rule is the allegation that the colonial peoples are not ready for independence and that ``premature'' independence is fraught with the danger of war.

Take John N. Hazard, for instance. Commenting on the codification of the principles of peaceful coexistence, he has said that the article on self-determination should be "couched in phrases rejecting its application in any place and at any time without regard to preparation of the people concerned for the responsibilities of independence" and added that "it will be hard to insert such restrictions in the face of inflamed public opinion in the developing areas, yet the codifiers must do so if their code is to foster peace".^^2^^

~^^1^^ For details about the principle of self-determination see F. I. Kozhevnikov, Textbook of International Public Law, Moscow, 1947; L. A. Mojoryan, Subjects of International Law, Moscow, 1958; G. B. Starushenko, The Principle of National Self-Determination in Soviet Foreign Policy, Moscow, 1960; G. I. Morozov United Nations Organisation, Moscow, 1962, and R. A. Tuzmukhamedov, National Sovereignty, Moscow, 1963; D. V. Ignatenko, From Colonial Regime to National Statehood, Moscow, 1966; A. T. Shimkov, "The Content of the Concept the 'Right of Colonial and Dependent Peoples to SelfDetermination' ", Pravna Mysl, No. 2, 1965, R. Arzinger, Das Selbstbestimnmngsrecht im allgemeinen Volkerrecht der Gcgenwart, Berlin, 1966.

~^^2^^ See resolutions 421D (V), 545 (VI), 637A (VII), 637C (VII), 738 (VIII), 837 (IX), 1514 (XV), 1654 (XVI), 1702 (XVI), 1S07 (XVII), 1810 (XVII), 2105 (XX), 2189 (XXI).

~^^1^^ See resolutions adopted by the General Assembly during its fifteenth session, Vol. I, September 20-December 20, 1960, New York, 1961, pp. 74-75.

~^^2^^ John N. Hazard, "Codifying Peaceful Coexistence", The American journal of International Law, Vol. 55, No. 1, 1961, p. 118.

The same argument, though somewhat muffled, is advanced by Hazard in an article on the codification of the principles of peaceful coexistence at the Brussels Conference of the Association of International Law in August 1962. (John N. Hazard, "Coexistence Codification Reconsidered", The American Journal of International Law, No. 1, 1963, p. 94.)

One indispensable condition for the preservation of international peace and security, however, is free self-- determination of all peoples. This provision is authoritatively confirmed in General Assembly resolutions 1514 (XV), 1654 (XVI), 1810 (XVII), 2105 (XX) and 2189 (XXI).

It would not be out of place here to recall that the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514 [XV]) explicitly states that "inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence".^^1^^ A similar statement is to be found in Resolution 1654 (XVI).

The concept of "preparedness of colonial peoples for independence" is a colonialist concept which is contrary to the international law of today.^^2^^

The introduction into international law of the principles concerning the states' obligation to maintain peace and the nations' right to self-determination has thus enriched the content of sovereignty with the theses that the sovereign will of a nation is the fundamental principle of state sovereignty and that the violation of the sovereignty of another state is utterly inadmissible. The principle of sovereignty has consequently acquired a qualitatively new, democratic nature.

It should be noted in this connection that the principle of non-interference now extends "not only to sovereign states but to nations fighting for their right to self-- determination"?

The principle of equal rights and self-determination of peoples enunciated in Para. 2, Art. 1, of the U.N. Charter also amplifies upon the principle of sovereign equality of states. First, it provides a profoundly democratic basis for the principle of the equality of states, elevating it to the rank of law. Secondly, it establishes a definite parallel in

mternational law between the two categories of subjects of contemporary international law---1) the states and 2) the nations which are fighting for national independence and which have laid the foundations of their statehood, though they may still be in a state of embryo.

In old international law the principle of sovereignty actually cancelled itself out because it sanctioned the right to wage an aggressive war, which is one of the grossest means of violating the sovereignty of other states. The principle concerning the states' obligation to maintain international peace and security eliminates this profound contradiction,^^1^^ depriving the theory of "absolute sovereignty", which embodies this contradiction, of all basis.

The interpenetration of the principles concerning the states' obligation to maintain peace and respect each other's sovereignty, which is inherent in the U.N. Charter, is directly expressed in the following formula: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations" (Para. 4, Art. 2).^^2^^

~^^1^^ See N. A. Ushakov, Sovereignly in Present-Day International Law, pp. 175-fU.

~^^2^^ Mahcsh Prasad Tandon says the traditional concept of sovereignty has undergone revolutionary changes insofar as the signatories to the U.N. Charter have pledged to unite their strength to maintain international peace and security and to employ international machinery for the promotion of the economic and social advancement of all peoples (M. Tandon, Public International Law, Allahabad, 1955, pp. 107-08).

Charles de Visscher affirms that "jus bellandi (law of war), this traditional attribute of state sovereignty, has been shaken to its very foundation" (Ch. de Visscher, ``L'interdiction du recours a la force dans 1'organisation Internationale", Rechtsfragen tier Internationalcn

Organisation. Festschrift fiir Hans Wehberg zu seinem 70. Gcburtstag, Frankfort on the Main, 1958, p. 401).

This view is also shared by Suzanne Bastid. "The use of force in

the past depended solely on effective possibilities," she says, and "many authors criticised the concept of sovereignty for being the cause of international anarchy." Pointing out that "sovereignty is a reality of international life", Madame Bastid speaks of the elimination of the extreme consequences of the concept of sovereignty and stresses that

the right to use force now "exists only in the case of legitimate

defence and collective action against aggression" (S. Bastid, Cours d' institntions Internationales, Paris, 1956, p. 247).

Actually, all these three authors stress that the operation in present-

~^^1^^ Resolutions adopted by the General Assembly during- its fifteenth session, Vol. I, September 20-December 20, 1960, New York, p. 67.

~^^2^^ For details see R. A. Tuzmukhamedov, National Sovereignly, pp 78-150.

~^^3^^ A. S. Piradov and G. B. Starushenko, "Principle of Non-- interference in Contemporary International Law", Soviet Yearbook of International Law, 1958, p. 249, and A. N. Talalaycv, ''Non-Interference in Domestic Affairs Is an Important Condition of Peaceful Coexistence", Moscow Stale University Bulletin, No. 1, 1962, p. 51.

A particular role in the solution of international problems of an economic, cultural and humanitarian character is played by the principle of interstate co-operation which is closely bound up with both the first and the second group of principles (Para. 3, Art. 1, of the U.N. Charter).

As V. N. Durdenevsky and M. I. Lazarev rightly pointed out back in 1957, "implementation of the principle of peaceful coexistence presupposes not only abstention from certain actions but the undertaking of regular actions aimed at ensuring the peaceful coexistence of peoples, promoting closer mutual understanding and contacts, and curbing warmongers.

``Implementation of the principle of peaceful coexistence presupposes the convocation of conferences of governmental and non-governmental nature, effective negotiations and actions designed to mitigate international tensions.''^^1^^

It is also essential to single out the new principle of respect for human rights.

This principle ensued from Para. 3, Art. 1, of the U.N. Charter, which calls for the achievement of international cooperation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". It should be stressed that this is recorded in the article outlining the purposes and principles of the United Nations Organisation.

The Universal Declaration of Human Rights adopted by the General Assembly in 1948 formulated fairly conclusively the above-cited principle of the U.N. Charter.

The concluding stage in the formation of this principle will be the coming into force of the pacts on human rights adopted by the Twenty-First General Assembly in 1966. Moreover, there are two other principles one should mention---``old'' in origin, but ones assuming a new quality in our day. These principles are 1) conscientious fulfilment of international obligations and 2) responsibility for the violation of international law rules.

day international law of the principle concerning the state's obligation to maintain peace and the incompatibility of "absolute sovereignty" with the international law principles now in force require improvement on the old principle of state sovereignty.

~^^1^^ V. N. Durdenevsky and M. I. Lazarev, Five Principles of Peaceful Coexistence, Moscow, 1957, p. 84.

Each of these principles permeates every international law rule. What is more, the principle of conscientious fulfilment of international obligations in a sense includes the principle of responsibility, in the general sense of responsibility for the violation of international law rules.

It must be emphasised that each of these two principles vividly reflects the entire new system of basic principles in international law. Their importance has grown enormously. Moreover, they both pertain naturally only to legal institutions.

It should be unequivocally stressed that the element distinguishing the principle of responsibility is the singling out of the responsibility for international crimes, particularly for aggression.

And so all the basic principles of the general international law of today are of a democratic nature. They are interconnected, having as a pivot the principle of peaceful coexistence with its categorical stipulation that good-- neighbourliness is the absolute legal minimum in relations between states, irrespective of their social systems.

As for the socialist states, the principles of proletarian (socialist) internationalism, which are expressive of a qualitatively new type of relations, in no way contradict the imperative principles of general international law, for they promote friendly interstate relations and help secure peace.^^1^^

There is no doubt that the time has come to draw up a single official document codifying the basic principles of present-day international law. The work done in this field by the U.N. is of considerable theoretical and practical importance. The reference is to the preparation of the Declaration of the Principles of International Law Concerning Friendly Relations and Co-operation of States in Accordance with the U.N. Charter^^2^^ or, in other words, to declara-

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 32.">.

~^^2^^ See U. N. General Assembly resolutions 1505 (XV) of December 12, 1960, 1686 (XVI) of December IS. 1961, 1815 (XVII) of December IS. 1962. 1966 (XVIII) of December 16, 1963, 2103 (XX) of December 20, 1965 and 21.81 (XXI) of December 12, 1966.

tion of the principles of peaceful coexistence^^1^^ or, what amounts to the same thing, the basic principles of the international law in operation. As A. P. Movchan rightly says, this document "should first and foremost reflect, formulate and secure the principles incorporated in the U.N. Charter", amplifying their substance and purposes, as well as the "new principles of international law which emerged after the adoption of the Charter and fully accord with it".^^2^^

At the same time, the availability of even the most clearly formulated system of basic international law principles does not eliminate the need of elaborating appropriate rules aimed at implementing these principles as fully as possible. What is more, if any basic international law principle requires concretising rules for its implementation, it is the legal duty of the states to elaborate them.

V. M. Shurshalor, LL. D.

INTERNATIONAL LAW IN RELATIONS AMONG SOCIALIST COUNTRIES

1. OBJECTIVE BASIS OF NEW-TYPE INTERNATIONAL RELATIONS

The world socialist system is the social, economic and political community of free, sovereign nations building socialism and communism. The member countries of the socialist community have established fraternal relations with one another in the economic, political, social and cultural fields, relations which constitute in their totality a new type of intercourse among the nations that have freed themselves from expoitation.^^1^^

This new type of international relations is the result of the historic changes which have taken place in the world in the last few decades and which are an objective basis of equal and truly fraternal relations among the peoples. As the result of these profound revolutionary changes:

1) there has emerged a whole group of socialist states of a homogeneous social character. Power in all these countries is in the hands of the people, led by the working class, and for the first time in human history foreign policy and international relations have thus become a matter attended to by the working people themselves;

2) the system of private capitalist ownership has been replaced by the system of public ownership of the instruments and means of production. This has not only put an end to the exploitation of man by man but has eliminated the economic causes of international conflicts which are concomitants of the imperialist states striving for economic

~^^1^^ Cf. V. Outrata, "K otazcc formulace pravnich zasad pokojneho souziti", Casopis pro mczindrodni prdvo. No. 3, 1962; A. P. Movchan, "Codification of the International Law Principles of Peaceful Coexistence'". Soviet Yearbook of International Law, 1963. Moscow. 1965.

~ Sec A. P. Movchan, o[>. cit., p. 25.

~^^1^^ For details see International Law Forms of Co-operation Between Socialist Countries, Moscow, 1962.

expansion and seizure of markets and spheres of capital investment;

3) the masses in the socialist countries are led by the Communist and Workers' Parties which are armed with Marxism-Leninism, the most revolutionary and humane ideology in the world. This single ideology creates favourable conditions for mutual understanding and successful solution of vital international issues;

4) the peoples of the socialist community have common interests at heart in defending the revolutionary gains and national independence from the imperialist states. It is only natural that this community of interests requires unity and concerted action in defence of peace and in the struggle against imperialism and colonialism;

5) the socialist states pursue the same aim---the building of communist society. This noble aim explains the need for joint efforts and large-scale mutual aid in the building of communism and in the struggle for international peace and security, for this aim can be achieved only if there is peace.

These factors constitute the basis of the social, economic and political community of the socialist countries, the basis of their monolithic unity and invincibility. "This socioeconomic and political community constitutes the objective groundwork for lasting and friendly intergovernmental relations within the socialist camp," says the C.P.S.U. Programme.^^1^^ In other words, these factors constitute an objective basis for the new type of relations prevailing among the socialist states.

It is this objective basis which predetermines the main content and general trend of development of the new type of international relations towards closer rapprochement of the liberated nations, multiplies their strength in the construction of the new society, and decisively tips the scales in favour of socialism in its competition with capitalism.

These new-type international relations help develop and improve the most diverse forms of co-operation among the socialist countries. They include military and political cooperation, clearly expressed in the Warsaw Treaty and the bilateral treaties of friendship, co-operation and mutual assistance. Highly developed too is their economic co-

operation through the Council of Mutual Economic Assistance and various other channels. There is a whole system of treaties and agreements on the co-operation of the socialist countries in science, technology, training of specialists, literature, cinema, the arts, etc.

All these forms of co-operation merge to promote international unity and friendship.

Experience shows that the establishment and development of the world socialist system and new-type international relations is a lengthy and complicated process which has already achieved much success but still has definite difficulties to overcome. They are due to the different levels of development of the socialist countries, the existence of traditional national prejudices, distrust on the part of certain segments of the population left over from the past relations of the exploiting states, display in some cases of nationalism and great-power chauvinism and, lastly, inexperience in the organisation and development of a brand-new kind of relations which require a great deal of both organisational and theoretical work by the Communist and Workers' Parties. It may therefore be said without exaggeration that the history of the development of the socialist community is a history of incessant search for and improvement in the forms and methods of co-operation among the socialist countries which, in the final count, is developing into a new type of international relations.

It is the historic achievement of the Communist and Workers' Parties in power in the socialist countries that these new-type international relations exist, develop and exert a decisive influence on the international situation.

Lately, resorting to Left phraseology, the Mao Tse-tung clique has intensified its attacks on the Soviet Union, the bulwark of the world progressive movement. The Soviet Union, it alleges, is reviving capitalism and ``compromising'' with U.S. imperialism. Insofar as the socialist community is concerned, the Maoists preach splitting tactics and negate the need of unity. In doing this, they preach a sermon about reliance on one's own strength. Their rejection of the unity and co-operation of the revolutionary forces is passed off as a specimen of "Marxist wisdom." The Chinese splitters repeat the anti-Communists' slander about the Soviet Union's interference in the affairs of other socialist count-

The Road to Communism, Moscow, p. 565.

ries with the only difference that instead of speaking about "Moscow's hand", as bourgeois propaganda does, they prattle about "Moscow's rod". This, however, does not alter the substance.

In assessing the new-type international relations, the revisionists depart considerably from Marxism. They claim that socialist co-operation does not engender any new international law principles and that in their relations the socialist states are guided by the principle of peaceful coexistence. As for proletarian internationalism, it does not operate as an international law principle in socialist cooperation, they allege. Another characteristic trait of revisionism is the substitution of the slogan of proletarian internationalism by that of "national communism", which boils down to underestimating the internationalist character of proletarian dictatorship and the general laws governing the development of socialist states, and to sharply overestimating the inherent peculiarities of each country.

The dogmatic and revisionist distortions of Marxism are spearheaded against the groundwork of the new-type international relations and thus complicate their development and improvement.

The attempts of the revisionists and the Chinese dogmatists are naturally doomed to failure. The objective groundwork, which constitutes the solid foundation of the new-type international relations, will continue to determine, despite all possible zigzags, the main direction in the development of relations among the socialist countries.

2. NEW INTERNATIONAL LAW

PRINCIPLES GOVERNING RELATIONS

AMONG SOCIALIST COUNTRIES

The world socialist system has created objective prerequisites for the promotion of fundamentally new international law relations. The establishment and development of the socialist community is at the same time a creative process in the improvement of international law forms and principles of international co-operation.

The socialist states and their Communist and Workers' Parties have worked out correct principles of relations among the socialist countries and peoples, principles based

on Marxism-Leninism and proletarian internationalism. As a result, the socialist system has become the "prototype of the new society, of the future of all mankind".^^1^^

The new international law principles created by socialism incorporate the essence and main content of the fraternal relations among socialist states.

The first of these principles is the principle of socialist internationalism which constitutes the basis of the diverse forms of co-operation among socialist states and reflects most fully the nature of the new-type international relations. The immutable basis of this principle is the community of the vital interests of the workers all over the world. The principle of socialist internationalism has gone through three stages in its development.

Prior to the Great October Socialist Revolution of 1917 and the formation of the world's first socialist state it was the militant slogan of the international labour movement and determined relations between the vanguard detachments of the working class in the capitalist countries. But as there was no socialist state then and the proletariat was an oppressed class, this principle could not be implemented in interstate relations.

After the October Revolution and the formation of the Soviet state the sphere of application of the principle of proletarian internationalism greatly expanded. While remaining the militant slogan of solidarity of the workers, it also became one of the most important principles of the home and foreign policy of the world's first working people's state. Having become a mighty bulwark of the workers of the world, the Soviet Union began to pursue a profoundly internationalist policy in its relations with other countries. In this stage of development, proletarian internationalism likewise became a factor in interstate relations, notably between the U.S.S.R. and the Mongolian People's Republic.

The establishment of the world socialist system considerably expanded the sphere of operation of the principle of proletarian internationalism, which now extends to interstate relations and has thus become the basic legal principle governing relations between the socialist countries. As Janos Kadar has stressed, "within the framework of the socialist

~^^1^^ The Road to Communism, Moscow, p. 470.

camp proletarian internationalism has turned into solid, unshakable interstate alliances".^^1^^

In his report to the Ninth Congress of the Hungarian Socialist Workers' Party in November 1966, Janos Kadar reiterated Hungary's loyalty to the principles of socialist internationalism.^^2^^

The principle of socialist internationalism has been reaffirmed in joint declarations and statements of Communist and Workers' Parties and legally secured in many treaties among the socialist states. The most important of these documents are the Declaration of the Meeting of Representatives of Communist and Workers' Parties in 1957, the Statement of the Meeting of Representatives of Communist and Workers' Parties in 1960, the Warsaw Treaty, the declarations of the Bucharest (1966) and the Sofia (1968) meetings of the Warsaw Treaty countries, the Statement on the Meeting of High-ranking Representatives of Certain Socialist Countries in Dresden, and a whole series of bilateral treaties of friendship, co-operation and mutual assistance between socialist countries.

The Statement of the Meeting of Representatives of Communist and Workers' Parties, held in Moscow in November 1960, said:

``It is an inviolable law of the mutual relations between socialist countries strictly to adhere to the principles of Marxism-Leninism and socialist internationalism.''^^3^^

The same idea of socialist internationalism permeates all other important multilateral and bilateral documents/^^1^^

Devotion to the principles of internationalism was forcefully and clearly proclaimed by L. I. Brezhnev, General Secretary of the C.P.S.U. Central Committee, at the Ninth Congress of the Bulgarian Communist Party and the Ninth Congress of the Hungarian Socialist Workers' Party.^^5^^ Even where it is not specifically mentioned, the principle of socialist internationalism in fact underlies the entire content of the joint juridical acts of socialist countries, the

essence of the international law obligations formulated therein.

By its significance, the principle of socialist internationalism stands out among the other principles of international law applied in relations between socialist countries. It is the main factor influencing the content and application of all other principles.

From the legal point of view, the principle of socialist internationalism is best reflected in fraternal and disinterested mutual aid. However, such mutual aid, the main element of socialist internationalism, does not exclude all its other aspects which are important for understanding its essence. Also inherent in the principle of socialist internationalism are such important factors as voluntary co-- operation in the building of socialism and communism, in the upholding of state independence and in the struggle for international peace and security; factual, and not merely formal, equality, and inadmissibility of any forms of coercion and dictation; correct combination of national interests with the international tasks of the socialist community; coordination of national economic plans with a view to facilitating the more or less simultaneous transition to communism of all countries and enabling them to score a victory over capitalism not only politically but economically.

Like all other international law principles, socialist internationalism naturally endows the countries concerned with definite rights and imposes definite obligations.

A socialist country's right to receive all-round assistance in accordance with the principle of socialist internationalism presupposes its obligation to help its partners economically, politically and, if need be, militarily when their independence is threatened by the imperialist aggressors. The Soviet Union's generous and disinterested assistance to the Vietnamese people in their heroic resistance to American aggression is vivid proof thereof. It should be said in this connection that in the mechanism of mutual aid within the framework of socialist co-operation the states' strength is not used to subordinate and oppress weaker countries, as is usual with the capitalist states, but to help the relatively weaker states to intensify their economic development, uphold national independence and rebuff attempts at intervention from without. The principle of socialist internationalism thus means uniting each country's

~^^1^^ Janos Kadar, "Proletarian Internationalism and the Soviet Union", Pravda, Oct. 9, 1957.

- See Pravda, Nov. 29, 19GG.

^:1 The Struggle for Peace, Democracy and Socialism, Moscow, p. 50.

~^^4^^ See, for instance, the Declaration of the Bucharest Meeting of the Warsaw Treaty Countries of July 5, 1966.

~^^5^^ See Pravda, Nov. 16 and 30, 1966.

5-495

efforts to develop its economy, state system and culture and to strengthen its defences with the efforts made by all the countries to consolidate the world socialist system in general.

In peacetime, the chief feature of socialist internationalism, mutual assistance, is especially manifest in economic relations.^^1^^ As a rule, economic relations between capitalist countries are so built that it is the economically and politically advanced states that derive the greatest benefit. They regard the weaker countries merely as sources of raw materials and keep them from overcoming their backwardness. Economic relations between socialist countries are totally different. The economically more developed states generously help the weaker ones to build an independent and flourishing economy. In other words, their economic power is a progressive and organisational force.

This distinguishing feature of socialist co-operation was underscored by Todor Zhivkov when he referred to SovietBulgarian co-operation in his report to the Ninth Congress of the Bulgarian Communist Party.^^2^^

In the socialist community "mutual advantage" acquires a special meaning and very often its commercial aspect is entirely ignored. There are instances of the economically most developed countries concluding commercially unprofitable agreements, but these agreements multiply the successes of the socialist system in general, increase its power and promote closer friendship and better understanding between the countries. These too are advantages, but advantages that have a totally different, more important meaning imparted to them by the practical implementation of the principle of socialist internationalism which is inconceivable without the combination of national and international interests in all spheres of international co-operation.

Besides the principle of socialist internationalism, the countries of the world socialist system apply other new principles engendered by socialism.

One of them has already triumphed in the relations between socialist countries. It is the principle of permanent peace due to such an objective factor as absence of antag-

onistic, class contradictions in the socialist community. As the history of international relations shows, wars are concomitants of the development of the exploiting states.

For centuries mankind searched for ways of eliminating military conflicts. But it was only Marxism-Leninism that found it through the abolition of the exploitation of man by man and the establishment of socialist society. Marx wrote in his day that there would come a time in human history when peace would become an international principle.^^1^^

This time came with the formation of the socialist community. In the socialist governments there are no representatives of the exploiting classes interested in starting wars. Moreover, their economic system is based on public ownership and plan principles and, consequently, is immune to crises. This latter factor has eliminated the economic causes of war. As a social phenomenon, war is incompatible with the new social relationships in the socialist countries, with the new laws governing the development of the socialist community. Hence peace is a natural and constant state of affairs between the socialist countries, and they have only one task---to oppose the war menace presented by the imperialist states and untiringly expose the aggressors.

The development of interstate relations in the socialist community inevitably leads to closer unity among states and nations, to wider all-round co-operation among them. "It is on this basis that the moral and political unity of all the peoples of the great socialist community has arisen and has been growing," says the Statement of the Meeting of Representatives of the Communist and Workers' Parties.² Because of this, the principle of non-aggression no longer applies to relations between the socialist countries.^^3^^ In their relations, these countries go far beyond this principle, for inherent in the new-type international relations is the principle of perpetual peace which ensues directly from the principle of socialist internationalism.

~^^1^^ See Marx and Engels, Selected Works, Vol. I, Moscow, 1962, p. 490.

~^^2^^ 7 he Struggle for Peace, Democracy and Socialism, Moscow, p. 50.

~^^3^^ See International Law Forms of Co-operation Between Socialist Countries, Moscow, 1962, p. 20; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 362.

5'

67

~^^1^^ See V. I. Morozov, CMEA---an Alliance of Equals, Moscow, 1964.

~^^2^^ See Pravda, Nov. 15, 1966.

Such a conclusion naturally in no way belittles the importance of the principle of peaceful coexistence, for the implementation of which the socialist countries are waging a persevering struggle. What is more, the new relation of forces in the world and the consolidation of socialism have created real possibilities for banishing wars from the life of society.

The state of permanent peace in the socialist community thus exerts a decisive influence on the international situation and helps solve the problem of eliminating wars once and for all.

Speaking of the principle of permanent peace, which has triumphed in the socialist community, one should not forget of course that relations between socialist countries may be marred by snags and disputes on concrete issues as well as by differences over home and foreign policy questions. But no difficulties or differences can alter the objective laws governing the development of the socialist community which have to overcome all sorts of such obstacles on their path.^^1^^

Interstate relations in the socialist camp are distinguished by the consistent application of the principle of democracy in the rules of international law.^^2^^ This means that because of their social nature the socialist states invariably take their peoples' wishes and interests into account in concluding agreements. There is nothing of the kind in the capitalist countries. Lenin stressed time and again that in the exploitive world "there are differences between the governments and the peoples, and we must therefore help the peoples to intervene in questions of war and peace".³ The point, he said, is that in capitalist society everything that particularly interests the citizens---their economic conditions, war and peace---is decided secretly from society itself. The most important questions---war, peace, diplomatic questions ---are decided by a handful of capitalists who deceive not only the masses but very often parliament itself.^^4^^

Since the capitalist system is exploitive by nature, the democracy of international law rules cannot become a prin-

ciple of co-operation in the capitalist world. This has been confirmed in practice in many capitalist countries whose history contains quite a few examples of international treaties being concluded in utter disregard of the peoples' vital interests and their peaceful aspirations.

The principle of democracy of international law rules has triumphed in the relations between socialist countries in which government by the people harmonises with foreign policy acts which are imbued with concern for the interests of the masses and for world peace.

The democratic nature of treaties concluded by the socialist countries was vividly described by Vasil Kolarov, Bulgarian Communist Party leader. "What primarily distinguishes our treaties from all other treaties is that they really express the people's will," he wrote. "It may safely be said that our peoples have obliged us to conclude these treaties and dictated their contents.''^^1^^

Associated with the principle of democracy is another important principle, the principle of humanity, which is characteristic of the relations of the states forming the socialist community.^^2^^

The economic, social and political emancipation of the masses in the socialist countries, their liberation from class and national oppression, and the all-round development of the workingman have become the aim for which a new world is being built. This is the basic purport of the revolutionary humanity born of the Great October Socialist Revolution.

The victory of socialism in a number of countries has paved the way to the establishment of international relations permeated with profound solicitude for man, for the masses. The motto "Everything for the sake of man, for the benefit of man" applies not only to the socialist states' home policy but to their foreign policy too. The result is that it has been secured in bilateral and multilateral treaties and is thus becoming a rule. All the international treaties concluded within the framework of the socialist com-

~^^1^^ See On the Character of Relations Between Socialist Countries, Moscow, 1964.

- See International Law Forms of Co-operation Between Socialist Countries, pp. 23-28.

•' Lenin, Collected Works, Vol. 26, p. 252.

'• Ibid., Vol. 30, p. 488.

~^^1^^ V. Kolarov, The Treaty of Friendship, Co-operation and Mutual Assistance Between the Bulgarian People's Republic and the Rumanian People's Republic, Sofia, 1948, p. 36.

~^^2^^ The C.P.S.U. Central Committee decision of January 4, 1967, on preparations for the fiftieth anniversary of the Great October Socialist Revolution, Pravda, Jan. 8, 1967.

munity guarantee the peaceful labour of the masses, ensure the rapid rate of their economic development and thus help constantly to improve their well-being, promote their cultural improvement, expand the public health and social security systems, etc.

No such humane functions have been or are being exercised by the international treaties concluded in exploitive society, where the bourgeoisie has left no link between people save naked self-interest and callous ``cash-payment''.^^1^^

Consequently, the principle of humanity could not come into existence anywhere but the great socialist community.

case it is creative employment of the old form in the fulfilment of new tasks, with the result that the old form inevitably becomes subordinated to the new content.

It is natural that all the general democratic principles cannot be used in the relations between socialist states. We have already said that there is no ground in the socialist community for the application of the principle of non-- aggression and, consequently, this principle is not mentioned in the various agreements concluded by the socialist countries.

The triumph of the principle of socialist internationalism in the relations between socialist countries predetermines a special attitude to the principle of peaceful coexistence.

The principle of peaceful coexistence and the principle of socialist internationalism operate in two different spheres: the former in relations between states with different socioeconomic systems, the latter within the socialist community of nations. Consequently, in the relations between socialist states the principle of peaceful coexistence is replaced by the higher, more profound and qualitatively new principle of socialist internationalism.

Other general democratic principles, such as state sovereignty, equality of states, non-interference, national selfdetermination, etc., continue to play a positive role in the socialist community too. What is more, the new type of international relations creates favourable economic and political conditions for their fuller and more consistent implementation.

All this is reflected in the content of the principles under review and imparts new qualities to them. This is not difficult to see even in the process of a cursory examination of the most important basic principles of the international law of today.

In present-day conditions state sovereignty, the basis of co-operation of states, is an inherent attribute of a state as a subject of international law. Without respect for state sovereignty there can be no peaceful coexistence and fruitful co-operation. While sovereignty in the capitalist world is the expression of the will of the ruling classes, a will that often militates against the country's national interests, in the socialist community state sovereignty is genuinely a democratic sovereignty. This democracy is ensured by the economic and social system of the socialist countries, the establishment of the working people's government, and the moral

3. APPLICATION OF THE PRINCIPLES

OF GENERAL INTERNATIONAL LAW

IN THE SOCIALIST COMMUNITY

In their relations with one another the socialist states do not reject the general democratic principles of international law; they constantly make use of them. The application of these principles is positively influenced by the operation of the principle of socialist internationalism which precludes the purely mechanical application of the old principles and rules of international law.^^2^^

Actually, it is a matter of applying the principles and rules of international law and simultaneously filling the old form with a new socialist content.^^3^^ In this particular

~^^1^^ See Marx and Engels, Selected Works, Vol. I, Moscow, 1962, p. 36.

~^^2^^ Besides the point of view on the nature of the principles of state sovereignty, equality and non-interference in domestic affairs expressed in this article, there is another in Soviet writings on international law, regarding these principles as new and coinciding only in name with the corresponding principles of general international law. (See G. I. Tunkin, "New Type of International Relations and International Law", Soviet State and Law, No. 9, 1959; K. T. Usenko, "Basic International Law Principles of Co-operation Between Socialist States", Soviet State and Law, No. 3, 1961; G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, pp. 302-27.)

It should be stressed that, generally speaking, there are no fundamental differences between these two viewpoints inasmuch as both agree that these principles acquire a new, more profound content in relations between socialist countries.

~^^3^^ See L. Tolkunov, "New Stage in the Development of the World Socialist System", Communist, No. 3, 1961, pp. 19-20; R. L. Bobrov, Contemporary international Law, Leningrad, 1962, p. 11; "Theses for the Centenary of the First International", Pravda, Sept. 17, 1964.

and political unity of society.^^1^^ Such a change in the social basis of the principle of state sovereignty is bound to result in far-reaching reforms.

The new content of the principle of state sovereignty, its democracy, influences, among other things, the formation of international law rules within the socialist community, imparts a profoundly democratic and progressive character to them, and ensures their observance.

It is well known that the establishment of international law rules presupposes the co-ordination of the wills of states. Since the socialist states express their peoples' will, the rules they establish are genuinely democratic and free of the anti-democratic features inherent in the relations between the imperialist states. As these rules simultaneously reflect the interests of both the peoples and the states, relations between the socialist states create conditions for the harmonious co-ordination of state and national sovereignty and for the promotion of their unity, a thing that is inconceivable in capitalist society. Being closely bound up with the principle of socialist internationalism, the principle of state sovereignty is implemented in the interests of the socialist community in general and in the national interests of each country. Consequently, exclusiveness and nationalism are alien to the democratic sovereignty of the socialist countries. This strengthens their independence, accelerates their national economic development and makes for a rapid growth of the strength of the socialist community and its superiority over the capitalist camp.

One of the most important principles of present-day international law is that of the equality of states. The imperialist states constantly violate it with the result that very often there is de facto and de jure inequality and subordination of some states by others. It was only after the victory of the socialist revolution in Russia that a relentless struggle was launched to introduce the principle of real equality into international affairs. This principle was further developed after the emergence of the world socialist system. As the C.P.S.U. Programme says, complete equality is the distinctive feature of the relations between the countries of the socialist community. The big and powerful states and their weaker partners play an absolutely equal part in

~^^1^^ See The Struggle for Pence. Democracy and Socialism, Moscow.

the solution of all major and minor international issues. In the practice of the socialist countries, this principle of equality transcends the bounds of the de jure equality of states and aims at achieving de facto equality. In the capitalist world the rights and the duties are distributed unjustly, unequally, with the strong countries usually enjoying all the rights and the weak and dependent ones getting all the duties. It is different with the socialist countries. Just distribution of rights and duties in the socialist community precludes all possibility of dictation, of subordination of some states to others, as is often the case among the capitalist countries.

The genuinely equal co-operation of the socialist states is at the same time mutually advantageous co-operation, for within the bounds of new-type international relations the principle of equality and the principle of mutual advantage are indissolubly linked and sort of supplement each other.

In the socialist community the principle of equality facilitates the fulfilment of one of the greatest tasks in history--- the levelling out of the economic development of all socialist countries and the ensuring of their more or less simultaneous transition from socialism to communism.

This is stressed by the Statement of the Meeting of Representatives of the Communist and Workers' Parties of 1960, which says that every country in the socialist camp is ensured genuinely equal rights.^^1^^

``The equality established in the socialist community," says the Soviet-Hungarian Declaration of March 28, 1957, "differs radically from the fictitious equality which exists between the imperialist powers and small countries and which really means exploitation of the latter's peoples and plunder of their wealth by the imperialist monopolies.''^^2^^

Another principle playing a big role in helping the socialist countries live in peace as good neighbours is the principle of non-interference. Frederick Engels wrote: "To secure international peace it is essential first and foremost to eliminate all possible national friction, and every nation must be independent and master in its own house.''^^3^^

National independence, the inadmissibility of one state imposing its will upon another, recognition of the peoples'

~^^1^^ Tin' Struggle for I'eac.e. Democracy and Socialism, Moscow, p. 50.

- Prtiwlu. March 29, 1957.

^:i Marx/Engcls, Werke. B. 21, Berlin, 1962, S. 207.

right freely to manage their affairs---these are the main features of the principle of non-interference.

Unlike some imperialist states which export counter-- revolution, the socialist countries, being genuinely independent members of their community, strictly abide by the principle of non-interference.^^1^^ Its application within the socialist community is directly bound up with the Marxist-Leninist theory concerning the nations' right to self-determination. The implementation of the principle of non-interference promotes the development of national state systems and culture, the formation of socialist nations. Moreover, it is in complete harmony with the principle of socialist internationalism. The independence of states and nations within the socialist community is dialectically linked with fraternal mutual assistance, socialist international division of labour, broad exchange of economic and political experience, co-ordination of national economic plans, and specialisation in production. This extends the principle of non-interference far beyond the limits of general democratic rules, giving it a much deeper meaning.

The role played in international law by the principle of national self-determination has increased substantially thanks to the efforts of the Soviet Union and other progressive forces. In their relations with one another, the socialist countries have not only fully translated into reality the general democratic content of this principle but have made a big step forward by consistently implementing the MarxistLeninist theory concerning the nations' right to self-- determination. This demands, on the one hand, complete respect for the peoples' national independence and their traditions and, on the other, the achievement of the moral and political unity of all peoples and their fraternal alliance in the struggle for a new society.

Mutual assistance in economic development, mutual enrichment of cultures for the sake of universal advancement, and intolerance of nationalism and great-power chauvinism are the main features of the principle of national self-- determination within the socialist community. In its general democratic sense, the principle of national self-determination is incapable of ensuring all this.

The full and consistent implementation of the principle of national self-determination in the relations between socialist countries has actually brought about a situation in the socialist community in which some institutes of international law cease to have any significance but nevertheless remain valid. Such an institute as protection of national minorities as well as many clauses of the Declaration of Human Rights and provisions for basic freedoms are superfluous there because they have long abolished national inequality and racial exclusiveness. As for human rights and basic freedoms, they are enjoyed to such an extent that the above-mentioned Declaration and its recommendations may be said to be a stage the socialist countries have long passed in their social and political development.

General international law also includes rules secured in the 1948 Convention on Genocide. These rules naturally do not apply in any way to the socialist states inasmuch as any acts which could be qualified as genocide are totally precluded there.

It follows therefore that the new type of relations between the socialist states and the underlying principle of socialist internationalism create extremely favourable conditions for the consistent and thorough implementation of general democratic principles. The general democratic and socialist principles interact in the socialist community and both serve the cause of communist construction and contribute to international peace and security.

In conclusion, it should be stressed that the countries of the socialist community maintain close ties with the developing countries of Asia, Africa and Latin America. These ties afford graphic evidence of the interaction and alliance of the two insuperable forces of today---socialism and the national liberation movement. In giving the developing countries all-round assistance and thus helping them consolidate their independence, the socialist countries are fulfilling their internationalist duty.

The Soviet Union is also giving all possible support to the developing countries in international affairs.^^1^^

~^^1^^ See The Struggle far Pence, Democracy and Socialism Moscow \>. 50.

~^^1^^ See L. I. Brezhnev, Report of the Central Committee of the Communist Party of the Soviet Union to the 23rd Congress of the C.P.S.U., Novosti Press Agency Publishing House, p. 38.

7.5

Its assistance to the developing countries and co-operation with them are part of the socialist countries' progressive co-operation with this group of states, co-operation that assumes the form of international treaties and agreements securing and amplifying upon the genuinely democratic principles of interstate relations.

What distinguishes these treaties and agreements is that they implement most fully and consistently the principles of peaceful coexistence and really embody the revolutionary effect of the socialist economic system on the developing countries.

Consequently, the socialist community's all-round co-- operation with the developing countries is a major factor in the preservation of peace, in the development of the democratic principles of the international law of today.

G. B. Starushenko. LL. /).

ABOLITION OF COLONIALISM AND INTERNATIONAL LAW

The peoples' struggle against the alien yoke is as old as the history of exploitive social formations. Prior to the October Socialist Revolution, which ushered in the era of mankind's emancipation from social oppression, its successes were not adequate to settle the colonial problem. The states arising from the colonies became enslavers of other nations, like the United States, or were subjected to a new type of alien rule, as was the case with the Latin American states, most of which still suffer from foreign oppression today, 150 years after their formal liberation.

This state of affairs has altered fundamentally in the past half-century and particularly since the Second World War. The national liberation movement, actively supported by the Soviet Union and other socialist countries, has on the whole abolished the colonial system. Increasingly vigorous steps are being taken to fully abolish the last remaining colonial regimes. The Twenty-First U.N. General Assembly, for instance, condemned Portugal's policy of preserving her colonial possessions as a "crime against humanity".^^1^^ The session instructed the appropriate U.N. bodies to find means of implementing immediately and fully the Declaration on the Granting of Independence to Colonial Countries and Peoples.^^2^^ All these anti-colonial resolutions are based on international law principles.

Yet before the October Revolution international law refused to recognise any rights of the ``uncivilised'' colonial peoples. The latter were regarded merely as objects of the law of the ``civilised'', that is, bourgeois, states---as objects of their domination. The colonial powers could ``lawfully'' con-

~^^1^^ U.N. Resolution 2184 (XXI) of December 12, 1966.

~^^2^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

quer, buy and sell colonies, rob and kill their inhabitants. The bourgeois science of international law took great pains to justify colonial conquests. There were references galore to "pity for the poor natives", to the need to "convert natives to Christianity", to "civilise barbarians", etc.

Bourgeois scholars sought to explain away the monstrous treatment of the colonial peoples by saying that "the Law of Nations, as a law between states based on the common consent of the members of the Family of Nations, naturally does not contain any rules concerning the intercourse with and treatment of such states as are outside that circle".¹ American jurist Charles Cheney Hyde, claiming that international law was ``inapplicable'' to the colonial peoples, alleged that even if they had a statehood, they were " unfamiliar with the full requirements of civilisation as tested by the standards prevailing in the international society".^^2^^

The legal writings in those days stressed that the oppressed peoples had no right whatever to freedom. Expressing the view which prevailed before the October Revolution, the well-known international jurist F. List wrote: "No tributary state can repudiate protectorateship inasmuch as it has renounced its state sovereignty in favour of a sovereign state. Such repudiation is invalid as is, for instance, a colony's declaration of independence.''^^3^^

The complete liberation of the oppressed peoples became really possible only after the October Socialist Revolution. It was only then that there appeared international law principles and rules creating favourable conditions for the national liberation movement.

1. PROHIBITION OF COLONIALISM BY INTERNATIONAL LAW

Post-war developments show that in the abolition of colonialism the material basis is the united strength of the world socialist system, the national liberation movement, and the progressive forces in the advanced capitalist countries; however, the legal basis is present-day international law which

~^^1^^ L. Oppenheim, International Law, London, New York, Toronto, 1948, Vol. I, p. 47.

~^^2^^ Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1951, Vol. I, p. 84.

~^^3^^ F. List, International Law, Yuriev (now Tartu), 1917, p. 72.

accelerates and facilitates the peoples' liberation struggle.

To turn international law from a weapon perpetuating colonial oppression into one of struggle against the colonial system it was necessary, first, to create new principles and rules capable of facilitating the liberation of the oppressed peoples; second, to eliminate the reactionary and colonialist rules of international law, and, third, to create an international situation which could guarantee the observance of international law rules. A task of this sort naturally could be solved only by states not interested in oppressing and suppressing other countries and peoples. These were the socialist states, primarily the world's first socialist state, the Soviet Union, and the states which had just freed themselves from the colonial yoke (the Mongolian People's Republic, Afghanistan and others).

The formulation and proclamation of new anti-colonial principles began at the very inception of the Soviet state. Soviet Russia not only proclaimed new principles in international relations but added a democratic, anti-colonial content to a number of old principles. Such very important international acts as the Decree on Peace, the Declaration of the Rights of the Peoples of Russia, the Declaration of the Rights of the Working and Exploited People, and the Appeal of the Council of People's Commissars to the Toiling Moslems of Russia and the East proclaimed the following principles: the right of nations and nationalities to self-- determination up to and including secession and the formation of independent states; the inadmissibility of colonial wars; the equality of nations, nationalities and states; the renunciation of secret diplomacy, free development for national minorities and ethnographic groups, etc.

The proclamation of the principle of national self-- determination was especially important for the oppressed peoples, for it is this principle that later became the legal ground of the demand for the complete abolition of colonialism. The principle of self-determination is a new international rule, for unlike its predecessor, the bourgeois principle of nationality, it does not necessarily stipulate secession but implies the possibility of various nations and nationalities uniting voluntarily into a big state on a federal or other basis. Secondly, it does not apply only to the European peoples, but those of Asia, Africa and America, including the colonial peoples. Thirdly, it provides not only for the

granting to peoples of the formal right to independent existence but creates the conditions for its realisation. Fourthly, it recognises the peoples' right to uphold their independence with all the means at their disposal, to be masters of their destiny.^^1^^

When they formulated the principle of self-- determination, the leaders of the Soviet state and the Communist Party naturally conceived it as a political principle. In the 1920s it was recognised by all the Soviet Republics and by ten or so bourgeois states, as evidenced by numerous international acts. It may therefore be said that even then it was not only a political but an international law principle. Prof. Krylov, for instance, wrote back in 1923 that "the principle of self-determination permeates both foreign and home policies and is manifest in a whole number of institutes ( minorities' rights, option, plebiscite, etc.)".^^2^^

The foreign policy principles advanced by the Soviet Union, notably the principle of self-determination, proved to be so popular, and their impact on the minds of people throughout the world so great, that the Western powers were forced formally to proclaim their own principle of selfdetermination in order to neutralise the revolutionising effect of the steps taken in this sphere by the Soviet Union (see Lloyd George's statement of January 5, 1918, and Wilson's Fourteen Points). But the Western rulers' real attitude to the rights of the oppressed peoples was best expressed by the U.S. Secretary of State, Robert Lansing. "The phrase (the principle of self-determination---G.S.) is simply loaded with dynamite," he wrote. "What a calamity that the phrase was ever uttered!''^^3^^ It is not surprising therefore that at the Paris Peace Conference, when the time came to pass from words to deeds, the principle of self-determination was substituted by the mandate system which, to quote Lenin, meant that "for the first time in world history, we see robbery, slavery, dependence, poverty and starvation imposed upon 1,250 million people by a legal act"/^^1^^

The principle of self-determination finally asserted itself in international law after the Second World War when, at the insistence of the Soviet Union, it was included in the U.N. Charter. One of the purposes of the United Nations is "to develop friendly relations among nations based on respect for the principle of equal rights and self-- determination of peoples''.

The principle of self-determination is also reaffirmed in very many U.N. General Assembly resolutions, in the final communique of the Bandung Conference, in the decisions of the Belgrade and Cairo conferences of non-aligned countries, in the Charter of the Organisation of African Unity and, lastly, in the Pacts on Human Rights approved in 1966. Especially important is the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted on the initiative of the Soviet Union by the Fifteenth U.N. General Assembly on December 14, 1960. "All peoples have the right to self-determination," the Declaration says. "By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.''^^1^^ In other words, the question of a nation's right to self-determination has two interlinking aspects: 1) external, by virtue of which the people determine their international ``political'' status up to and including secession and the formation of an independent state, and 2) internal, which recognises their right to be complete masters in their own home.

In its resolution on the strict observance of the ban on the threat or use of force in international relations and the right of the peoples to self-determination, the 21st U.N. General Assembly definitely confirmed the existence of the two aspects of the right to self-determination.

The General Assembly, this document says, reaffirms "the right of peoples under colonial rule to exercise their right to self-determination and independence" (external side--- G.S.) "and the right of every nation, large or small, to choose freely and without any external interference its political, social and economic system" (internal side---G.S.).^^2^^ Moreover, it is pointed out that the external side is important mainly for the "peoples under colonial rule" and the inter-

~^^1^^ See G. B. Starushenko, The Principle of National Self-- Determination in Soviet Foreign Policy, Moscow, pp. 41-50.

~^^2^^ See S. B. Krylov, "Option, Plebiscite and the Principle of SelfDetermination in Soviet International Treaties", Soviet Law, No. 2 (5), 1923, p. 43.

~^^3^^ R. Lansing, The Peace Negotiations, London, 1921, p. 87. '' Lenin, Collected Works, Vol. 31, p. 224.

~^^1^^ Resolution 1514 (XV).

~^^2^^ U.N. Resolution 2160 (XXI) of November 30, 1966.

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nal side for the newly-independent peoples ("nations large and small").

Colonialism flagrantly violates both aspects of the principle of self-determination, especially the external one. As for internal self-determination, it is altogether impossible so long as a nation has not solved the question of its international status. Proceeding from the principle of self-- determination, the Declaration on the Granting of Independence to Colonial Countries and Peoples proclaimed the necessity of "bringing to a speedy and unconditional end colonialism in all its forms and manifestations''.

The demand for the abolition of colonialism is argumented in the Declaration by other well-established international law principles as well ("equal rights of nations large and small", "national sovereignty", "territorial integrity", etc.). Consequently, proclaiming colonialism unlawful, the 1960 Declaration did not create a new international law rule but merely confirmed the line of conduct all the states should follow proceeding from the already universally recognised rules of international law.^^1^^

Therefore, one cannot recognise as correct the assertions of certain Western jurists that the declaration on the abolition of colonialism is not binding inasmuch as General Assembly resolutions are merely recommendations. Colonialism is unlawful not because it is contrary to the Declaration on the Granting of Independence to Colonial Countries and Peoples but chiefly because it flagrantly violates the basic principles of present-day international law, and in their struggle against colonialism in all its forms the peoples and countries invariably proceed from these principles.^^2^^ The

declaration of December 14, 1960, confirmed this. Colonialism has been finally outlawed.

The elimination of obsolete colonialist rules from international law was likewise stimulated by the initiative of the Soviet state. The Appeal of the Council of People's Commissars to the Toiling Moslems of Russia and the East of November 20, 1917, said the Soviet Government considered "null and void" all the treaties on the division of Turkey, Iran and other territories, and that it had cancelled all shackling agreements.

The renunciation of all unequal agreements was secured in a number of international treaties. The Soviet Government, said Article 1 of the Soviet-Persian Treaty of February 26, 1921, "declares null and void all the treaties, pacts, conventions and agreements concluded by the former tsarist government with Persia and derogatory to the rights of the Persian people".^^1^^

Soviet Russia's renunciation of unequal treaties helped the peoples of the East free themselves from one of the most infamous manifestations of colonialism---the capitulations system. The Government of the Russian Soviet Federative Socialist Republic, said the Soviet-Turkish Treaty of March 16, 1921, "considering the system of capitulations incompatible with the free national development of any country or with the full exercise of its sovereign rights, considers null and void all sorts of actions and rights in any way related to this system" (Art. 7).

This stand of the Soviet Republics and the struggle of the oppressed peoples forced the imperialist states to agree to the cancellation of the system of capitulations. Turkey rid herself of it when she signed the Lausanne Peace Treaty in 1923, Iran in 1928, and other countries did so later. The system of capitulations is practically non-existent today.^^2^^

~^^1^^ Prof. L. A. Mojoryan maintains that the illegality of colonialism became an "international law rule" even before the adoption of the 1960 Declaration and that it was consistently adhered to by the socialist and newly-independent states (see his "The Disintegration of the Colonial System of Imperialism and Certain Aspects of International Law", Soviet Yearbook of International Law, 1961, Moscow, 1962, p. 38).

~^^2^^ The Charter of African Unity, for instance, is based on the following principles: sell-determination of peoples (Preamble), sovereign equality, non-interference, respect for sovereignty and territorial integrity, peaceful settlement of disputes, non-alignment (Article 3). The Declaration of the Cairo Conference of the Heads of State and Government of Non-aligned Countries is based on the principles of self-determination, equality of peoples, peaceful coexistence, etc.

S2

~^^1^^ Treaties, Agreements and Conventions with Foreign States, Issue 1, Moscow, 1924, p. 148.

~^^2^^ In Morocco the United States retained the rights provided for by this system until 1956 but was forced to waive them under^ the pressure of the national liberation movement (see R. Young, "End of American Consular Jurisdiction in Morocco", The American Journal of International Law, March 1957, pp. 402-06).

The system of capitulations has prevailed in one form or another only in some sultanates and emirates of the Arabian Peninsula.

The elimination of colonialist rules, the blow dealt the system of unequal treaties, and the establishment of new anti-colonial principles and rules in international law created exceptionally favourable international conditions for the national liberation movement. The oppressed peoples ceased to be objects of alien rule and became subjects of rights and obligations. Under the international law of today, sovereign and non-sovereign peoples alike enjoy the following rights: to self-determination (U.N. Charter), to defence from extermination (Convention on Genocide), to protection against racial discrimination (U.N. Declaration on the Elimination of All Forms of Racial Discrimination), to protection in times of war and all other kinds of military conflicts (1949 Geneva Conventions for the Protection of War Victims), etc. International law requires observance of the principle of equality in relation not only to states but peoples.^^1^^

The newly-independent nations have acquired not only definite rights but the possibility of exercising them. This is due to the radical change in the correlation of the world's forces in favour of socialism and progress and to the detriment of imperialism and reaction. For the newly-free countries the emergence and consolidation of the world socialist system of states mean, first, material defence against the attempts by old and new colonial powers to restore or preserve their rule; secondly, the possibility of obtaining real economic, technical and scientific aid on a just, mutually advantageous basis to secure their economic independence, without which political independence remains a mere formality; and, thirdly, permanent political and legal protection.

To render maximum assistance to the liberation movements while working to preserve universal peace and to prevent the outbreak of a catastrophic thermonuclear war, the Soviet Union and other socialist states pursue a policy based on the principles of peaceful coexistence and not a pacifist policy. This policy enables them to support the peoples' struggle for self-determination, complete liberation and genuine equality with all lawful means.

That the colonial peoples' rights are becoming increasingly real is evidenced by the results they have achieved in their liberation struggle since the appearance of the first socialist states. In 1917, on the eve of the October Socialist Revolution, 77 per cent of the world's territory and 69 per cent of its population were under colonial rule. Today, only 4 per cent of the territory with an aggregate population of 35 million, or about 1 per cent of the total, remain in colonial fetters.

About 70 new states have appeared on the map of the world since the end of the Second World War. A number of territories, moreover, have gained freedom by joining newlyindependent states (for instance, West Irian joined Indonesia, Goa joined India, Zanzibar united with Tanganyika to form a single state known as Tanzania, etc.).

The fact that a number of new states have themselves decided what social system they want is evidence that they are independent in fact and not merely in name. Cuba, for instance, has chosen socialism and the United Arab Republic, Algeria, Mali, Burma, Guinea, Syria, Tanzania and the Congo (Brazzaville) have taken the path of non-capitalist development which may bring them to socialism.

The quantitative changes in the liberation movement ( increase in the number of independent states) have turned into qualitative ones: the colonial system of imperialism has gone out of existence. The national liberation movement is now in the process of eliminating the last remnants of the colonial regimes. At the same time, it is confronted by new tasks---consolidation of political independence and struggle for economic and social emancipation. The peoples' struggle has entered a new stage.

2. ILLEGALITY OF NEOCOLONIALISM

Life shows beyond all doubt that the abolition of colonialism is a law-governed historical development specific to our epoch. Like all other developments of this kind, it requires a persevering struggle by all the revolutionary antiimperialist forces against the colonial policy of imperialism.

Colonialism is a system not only of political domination but of the economic exploitation of other countries, a system which prevents the free development of their produces

~^^1^^ For details see G. A. Osnitskaya, "Colonial Conceptions Regarding Subjects of International Law, Full-fledged and Otherwise, in the Theory and Practice of Imperialist States", Soviet Yearbook of International Law, 1962, Moscow, 1963, p. 49.

tive forces---especially the most important productive force, the working people---and which makes use of military, political, economic and ideological means. That is why the elimination of the colonial system of imperialism, that most odious by-product of the foreign policy of the exploitive states, makes imperative the struggle against neo-- colonialism, a colonial policy pursued by new methods and means. Despite their diversity, the neo-colonialist methods have one thing in common: violation of the internal aspect of the principle of self-determination, that is, the right of nationalities and nations to be complete masters in their own homes.

It cannot be said that all the actions taken by powers following the policy of neo-colonialism militate against the interests of the peoples striving for freedom. Some are even useful, for to a certain extent they promote their economic development and facilitate their struggle against disease and ignorance. On the whole, however, neo-colonialist measures aim at keeping the newly-independent country concerned within the capitalist system and retaining the possibility of exploiting its people and natural wealth, and this inevitably entails intensified political control, ideological subversion and gross interference in its domestic affairs, in short, the preservation of alien rule.

One of the methods of neo-colonialism is the conclusion of unequal treaties. The illegitimacy of many treaties is evident from the very circumstances in which they are concluded. At the time of the disintegration of the colonial empires there were especially many instances of metropolitan countries imposing shackling treaties as a precondition of independence. Thus, on July 4, 1946, the Philippines was forced to sign a treaty of general relations with the United States^^1^^ which gave the American imperialists control over the Philippine defences and armed forces. And on June 27, 1960---that is, on the day after the proclamation of the Malagasy Republic's independence---France imposed upon it a number of agreements^^2^^ which badly impaired its sovereignty in the foreign policy, defence, finance and economic spheres.

A country which does not yet possess independence is naturally not an equal partner of the metropolitan country and is compelled to agree to terms which it would never accept in different circumstances. In some instances, the dependencies were represented in the negotiation of such agreements by the colonial officials of the metropolitan country.

The illegality of many neo-colonialist treaties is also evident from the fact that the contracting parties are in an unequal position as far as obligations and opportunities are concerned. True, the Western powers have of late been including a clause on "equal opportunities" for the sake of camouflage. But how can there be any talk about "equal opportunities" when one of the contracting parties is an imperialist state armed to the teeth and economically powerful, and the other is a weak country bled white by its alien rulers. The Franco-Malagasy agreement of 1960 on the reciprocal employment of civil servants in practice paved the way to French control over all the state institutions of the Malagasy Republic.^^1^^ Such agreements violate one of the basic principles of the international law of today---the principle of equality---and consequently cannot be regarded as the international law sources of the rights and obligations the states are bound to observe and respect. Unequal treaties, Emmerich von Vattel wrote more than 100 years ago, were "those in which the parties did not assume the same or equivalent obligations", those which benefited only one party.^^2^^

The neo-colonialist treaties imposed by the imperialists upon new states are also contrary to other basic principles of international law, such as the principles of state sovereignty, non-interference and self-determination; they are therefore illegal and invalid. This applies to agreements on economic, military, financial and technical assistance which, in the conditions where the colonial system is crumbling, are widely used as weapons of neo-colonialist policy.

The imperialists use agreements on military aid to go on

~^^1^^ Sec Journal officiel de la Republique Francaise, July 19-20, 1960.

~^^2^^ E. von Vattel, Le droit des gens on principes de la loi naturelle appliques a la conduite et aux affaires des nations et des souverains, Paris, 1863, Vol. II, p. 164.

~^^1^^ See United Nations. Treaty Series, Vol. 7, 1947, p. 4.

~^^2^^ See Journal officiel de la Republique Frangaise. Lois et decrets, July 19-20, 1960.

exploiting the newly-independent nations and their natural wealth and to interfere in their domestic affairs.^^1^^

The aims of neo-colonialism are also served by the aggressive military blocs set up by the imperialist powers (NATO, SEATO, CENTO). These blocs, whose activity is utterly contrary to the basic principles of international law, are being used by the colonial powers against the national liberation movement (Vietnam, Angola, Mozambique, the Dominican Republic, etc.).

Among other things, military pacts ignore the principle of non-interference. Article 2 of the SEATO^^2^^ pact binds the signatories to take action against subversion of their territorial integrity and political stability from without and Article 4 gives them the ``right'' to joint efforts in the sphere of ``defence'' in the event any of the states in the "treaty area" is threatened in any way other than by armed attack or by any other fact or situation. The deliberately vague formulations of the pact allow the imperialist powers to use SEATO whenever they want to establish and preserve the neo-colonialist order.

To secure their rule the colonial powers use their military bases. The imperialists have forced many new Afro-Asian and Latin American states to sign illegal agreements on the preservation of their military bases on the latter's territory. These agreements, usually forced upon these states before the proclamation of their independence, actually revive the ``settlements'', extraterritoriality and the system of capitulations rejected by present-day international law.

Under the agreement with the Philippines of March 14, 1947, for instance, the United States has acquired the free-

dom of movement throughout that country. The Americans are exempt from customs duties and all other levies and taxes. The United States can make use of any government services, aerodromes, ports, roads, rivers, etc., for its needs.^^1^^

As the new states consolidate their independence, they intensify their struggle for the abolition of foreign bases on their territory. The idea that such bases are inadmissible, which the Soviet Union has advanced and upholds, is meeting with increasing support. "Parts of territories taken away by occupying Powers and converted into autonomous bases for their own benefit at the time of independence must be given back to the countries concerned", says the Declaration of the Cairo Conference of Non-aligned Heads of State or Government (Part V, Para. II). The Twenty-First U.N. General Assembly supported the Soviet Union's proposal and requested "the colonial Powers to dismantle their military bases and installations in colonial Territories".^^2^^

The establishment of reactionary puppet regimes is another form of neo-colonialism, and a very common one, which enables the colonial powers to use different ways of implementing this policy (including those enumerated above) and give them a semblance of ``legality''. Such regimes are often set up by the colonial powers before granting formal independence and they do it by reorganising the colonial administration into a government (for instance, most of the countries of tropical Africa received independence together with regimes suiting their former masters). Puppet regimes are also imposed by the imperialist powers with the aid of overt (Guatemala, Gabon, South Vietnam) or covert intervention (Brazil, Thailand), or by open support of the forces the people want to overthrow (South Vietnam, Venezuela).

The above-mentioned neo-colonialist methods naturally do not exhaust the arsenal of weapons that imperialism now uses in the pursuit of its neo-colonialist policy. Diverse as they may be, these methods have one thing in common: the illegality of the aims they are meant to achieve---- preservation or restoration of alien rule.

~^^1^^ The U.S.-Philippine agreements restrict the independence of the Philippines in the organisation of its defences. The Philippines is forbidden to acquire the war materiel it needs from other countries without the consent of the United States or employ any foreigners other than U.S. citizens in its armed forces.

The agreements gave the United States access to secret materials ostensibly to check whether the Philippines was making appropriate use of the aid given it. In practice, this gave the United States unlimited opportunity to interfere in that country's internal affairs (see A. N. Talalayev and V. G. Boyarshinov, "Unequal Treaties as a Weapon for Keeping the New Afro-Asian States in Colonial Dependence", Soviet Yearbook of International Law, 1961, Moscow, 1962.

~^^2^^ Bulletin of Department of State, No. 795. September 20, 1951.

~^^1^^ United Nations. Treaty Series, Vol. 43, 1949, pp. 276-80.

~^^2^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

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3. WAYS AND MEANS OF ABOLISHING COLONIALISM AND NEO-COLONIALISM

Today, when the principles demanding the abolition of colonialism have become firmly established in international law, the imperialist states seek to distort them and even introduce their own neo-colonialist principles into foreign affairs. They deny the new countries' state sovereignty, refuse to recognise the national sovereignty of the nationalities and nations which have not yet achieved statehood, and distort the meaning of the principles of non-- interference and self-determination and other anti-colonial rules. That is why the centre of attention has now shifted to the struggle around the question of ways of implementing anticolonial principles and rules.

Western representatives still affirm that international law and, especially, the U.N. Charter contain no binding provisions for the abolition of the colonial order, that the colonies should be granted independence only if they "can stand on their own feet", that premature liberation may lead to "instability and chaos", and so on. The 24-Nation Committee declared invalid these assertions of the colonial powers, which opposed granting "small territories" the right to self-determination on the grounds that they were incapable of independent existence. It showed that the status of each colony should be determined by its people in the conditions of full freedom.

The question of abolishing the colonial order in any territory may also be raised by other states as well as by the United Nations. All that is required is the will of the selfdetermining people, expressed in one way or another. However, the question of the liberation of the territory in question may also be raised as part of a general plan for the abolition of colonialism. It follows from the U.N. Charter that the question of liberating a nation may be raised at any time, and the quicker the better, since keeping nations in subjection is contrary to the underlying principles of the United Nations (Articles 1 [Para. 2) and 55 [Para. C] of the Charter).

As the imperialist powers hinder the liberation of the oppressed peoples or else force them to agree to incomplete independence, the question of the means they should choose in their struggle is of particular importance. Seeking to

disarm the peoples, the apologists of imperialism demand that this struggle should be waged "in accordance with constitutional processes, and with proper regard for the rights of other states and peoples".^^1^^ They attack armed struggle, national liberation wars and social revolutions with particular violence, labelling them acts of "internal aggression''.

The Soviet Union and the other socialist countries uphold the peoples' right to use any means in their struggle against the colonial yoke, including uprisings, liberation wars and revolutions.

National liberation wars, being a means of defence against the illegal actions of the colonial powers, cannot be qualified as "acts of internal aggression". In the past the liberation wars waged by the oppressed peoples were recognised as just by international law (the War of Independence in North America in 1775-83, the war of independence in the Spanish possessions in South America in 1810-25, the Slav peoples' war against the Turkish yoke, etc.). Such wars are absolutely just now, when colonialism has been outlawed.

Article 51 of the U.N. Charter, it may be recalled, speaks of the "inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken the necessary measures to maintain international peace and security". The right to self-defence of states not affiliated with the United Nations is likewise recognised. As for the oppressed peoples fighting for liberation, these are, as we have said above, subjects of international law and as such definitely enjoy the right to self-defence.^^2^^

The legitimacy of liberation wars is also recognised in the Declaration of Human Rights, which regards it as a last resort ("Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against

~^^1^^ This proposal was made by the American representative at the eighth session of the Commission on Human Rights in the spring of 1952 (U.N. Document E/CN, 4/L, 28/Rev. 2).

~^^2^^ See L. A. Mojoryan, "The Disintegration of the Colonial System of Imperialism and Certain Aspects of International Law", Soviet Yearbook of International Law, 1961, p. 39; R. A. Tuzmukhamedov, Op. cit., p. 185; V. K. Sobakin, Collective Security Is an Earnest o} Peaceful Coexistence, Moscow, 1962, p. 409.

tyranny and oppression, that human rights should be protected by the rule of law. . .").

At the 1954 Geneva Conference national liberation wars were recognised as a means of peoples' struggle against colonialism.^^1^^

The Cairo Conference of Non-aligned States likewise recognised liberation wars as legitimate and thus substantiated its decision:

``The process of liberation is irresistible and irreversible. Colonised peoples may legitimately resort to arms to secure the full exercise of their right to self-determination and independence if the colonial powers persist in opposing their natural aspirations" (Part I).

Now that socialism has become the decisive factor of world development, and the liberation movement and the international authority of new states are growing rapidly, the peaceful method of abolishing colonialism and eliminating its consequences is prevailing increasingly over the nonpeaceful. Three-quarters of the states which have come into existence since the end of the Second World War have acquired independence in a relatively peaceful way. The imperialists were in fact compelled to grant them independence under the pressure of the national liberation movement which had the all-round support of the socialist states and the workers' movement in the metropolitan countries.

The efforts made by reactionary jurists to ``outlaw'' social revolutions and the establishment of more progressive systems in the new countries, and thus to justify the export of counter-revolution by the imperialist powers, have no legal basis.

The U.N. Charter fully recognises the right of each people and each nation to run its own life, and forbids interference in its internal affairs from without. People's right to selfdetermination includes the right to rebuild their entire life. That is as far as international law can go. As for the means people employ to reorganise their social, economic or political system, that is their own affair.

This principle, upheld by the Soviet Union since its inception, is now supported by the absolute majority of the states. "Foreign pressure and intervention to impose changes

in the political, economic and social system chosen by a country are contrary to the principles of international law and peaceful coexistence," says the Declaration of the Cairo Conference of Non-aligned Heads of State or Government (Part V).

One important means of struggle against neo-colonialism is the abrogation of unequal treaties. The legal ground for this is the principle of illegality of unequal treaties which has become established in international law with the active assistance of the socialist and newly-independent states. At the insistence of the former it was reaffirmed in an important multilateral international agreement, in the Declaration on the Neutrality of Laos (1962). The signatories to this document agreed that the Laotian Government "will cancel all treaties and agreements" contrary to the principles of peaceful coexistence; to the principles of Laos's sovereignty, independence, neutrality, unity and territorial integrity; to the principle stating that there should be no foreign military bases on its territory and that its territory should not be used for military purposes; to the principle stating that foreign aid extended to it should not be granted on any political or other conditions infringing upon its independence; and to the principle binding Laos not to join or accept the protection of any military bloc, including SEATO.^^1^^

The principle concerning the illegality of unequal treaties has also been reaffirmed by authoritative international lawyers in the U.N. Committee of International Law. This committee has prepared a document which is to serve as a basis of an international convention on the right of agreement. It states: "A treaty is void if it conflicts with a peremptory norm of general international law from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.''^^2^^

The comment on this document mentions slave trade, genocide, piracy and treaties violating the equality of states or the principle of self-determination as actions contradict-

~^^1^^ See Izvestia, July 31, 1962.

~^^2^^ "Report of the International Law Commission on the Work of Its 15th Session, May 6-July 12, 1963". General Assembly. Official Records: 18th Session, Supplement No. 9 (A/5509), United Nations, New York, 1963, p. 11.

~^^1^^ For details see Manfred Lachs, Uklady indochinskie, Genewa 1954 (1954 Geneva Agreements on Indo-China), Warsaw, 1955.

ing jus cogens.^^1^^ It is evident, therefore, that treaties directed at restoring colonial dependence in any form are also invalid.

Of late there have been numerous instances of completely justified abrogation of shackling treaties.^^2^^

It should further be stressed that it is now the duty of the administering powers to free the non-self-governing countries. This duty is imposed upon them both by Art. 1, Para 2, of the Charter, which proclaims the principle of self-determination, and by Articles 73b and 76b, which specify the administering powers' responsibilities towards the non-self-governing territories.

This interpretation of the Charter, long upheld by the official representatives and jurists of the Soviet Union, was reiterated in the Declaration on the Granting of Independence to Colonial Countries and Peoples. "All armed action or repressive measures of all kinds directed against dependent peoples," it says, "shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.''^^3^^

The Soviet Union has always maintained that if a colonial power does not fulfil its duty and free its colonies it should be treated as an aggressor and be subjected to sanctions. In its Statement on Angola of May 1961, the Soviet Government urged all states and nations to "compel Portugal to end its predatory colonial war in Angola and abide by the principles of the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples.''^^4^^ This stand is now widely supported both inside and outside the United Nations. The Twenty-First U.N. General Assembly in 1966 again recommended the Security Council to take sanctions against Portugal and South Africa in order

to accelerate the abolition of colonialism and racialism in the south of Africa. The Cairo Conference of NonAligned States called upon its participants to assist the special Organisation of African Unity bureau in applying sanctions against Portugal, to sever diplomatic and consular relations with that country, and take effective measures to discontinue all trade and economic relations with it.

The international law of today allows states to help the peoples fighting for independence. This proposition is now backed by most countries. The participants in the Cairo Conference undertook to "work unremittingly to eradicate all vestiges of colonialism and to combine their efforts to render all necessary aid and support, whether moral, political or material, to peoples struggling against colonialism and neo-colonialism" (Part I). The Twenty-First U.N. General Assembly announced that it "reaffirms its recognition of the legitimacy of the struggle of the peoples under colonial rule to exercise their right to self-determination and independence and urges all States to provide material and moral assistance to the national liberation movements in colonial Territories".^^1^^

The African states are establishing training facilities for insurgents from the Portuguese colonies, and supplying them with arms and ammunition. Such actions constitute legitimate collective self-defence against the colonialists' collective aggression (Portugal is supported by NATO members).

The Soviet Union has long been giving such assistance to the peoples fighting for independence. It has rendered considerable political, moral and material aid to the peoples of Algeria, Angola, Mozambique and many other countries.

International law is a sphere of relentless political struggle whose results have contributed and are contributing to the abolition of colonialism. This struggle shows that very often the political ideals of the revolutionary peoples become legal principles of world-wide importance thanks to the active foreign policy of their states. These principles turn into a mighty force after they have captivated the minds of the masses and have to be reckoned with by all states, including the imperialist. The latter naturally do everything they can to avoid observing international law principles, and very often grossly violate them; however, these

~^^1^^ See "Reports of the International Law Commission on the Second Part of Its 17th Session, January 3-28, 1966, and on Its 18th Session, May 4-July 1966". General Assembly. Official Records: 21st Session, Supplement No. 9 (A/6309 Rev. I), United Nations, New York, 1966, pp. 76-77.

~^^2^^ Abrogation of the 1952 U.S.-Cuban military aid treaty by Cuba in 1960; of unequal agreements with France by Mali; of the agreement on bases with the United States by Morocco; of the defence ``agreement'' with Britain by Nigeria, etc.

~^^3^^ U.N. Resolution 1514 (XV) of December 14, 1960.

~^^4^^ Pravda, May 27, 1961.

~^^1^^ U.N. Resolution 2189 (XXI) of December 13, 1966.

.95

principles triumph in the end. This is evidenced by the abolition of the colonial system of imperialism on the basis of the principles advanced by the Soviet state half a century ago.

States and peoples have every possibility of making effective use of international law in the struggle against neo-colonialism, just as they did in the struggle against colonialism.

N. A. Vshakov, LL. D.

INTERNATIONAL LAW AND SOVEREIGNTY

Sovereignty is one of the most important principles of international law.

Without an understanding of the essence of sovereignty there can be no understanding of the substance and nature of international law, of the questions of the relationship between international and national law, domestic jurisdiction of states and the nature and limits of their authority, the legal nature of territory and the nature of international organisations, of the peaceful coexistence of states with differing socio-economic systems, and many other questions.

Since sovereignty is an inherent political-legal feature of any state, it predetermines the existence and development of important international principles, such as respect for state sovereignty, sovereign equality, territorial integrity and political independence of states, non-interference in their domestic affairs, and non-aggression.

When national movements came into existence sovereignty ceased to be only a state feature and became a national one. In our day, state and national sovereignty are closely linked categories.

1. THE CONCEPT OF STATE SOVEREIGNTY

State sovereignty implies a state's territorial supremacy and independence in international affairs.^^1^^

Sovereignty is an indispensable political and legal feature of any state, inseparably bound with its specific nature.

One important feature of any society organised into a state is public state power. Although this power does not

~^^1^^ See G. I. Tunkin, Fundamentals of Present-day International Law. A Textbook, Moscow, 1956, p. 15. A more or less similar definition of sovereignty is given by many Soviet jurists.

7-495

exhaust the concept and features of the state, it personifies the state and acts on its behalf. The activity of a state ensues directly from the activity of state power. Consequently, as a state feature, sovereignty is at the same time specific of state power.

Sovereignty, however, belongs to the state and not to state power. This is especially clearly manifest in international law which regards the state and not state power as a subject of law, and accordingly settles questions concerning the recognition of states, their responsibilities, etc.

State power is a ramified system of state organs exercising together the internal and external functions of the state. A permanent diplomatic representative of a state or its plenipotentiary appointed to conduct negotiations with another state exercises the functions of sovereignty to the same extent as the supreme organs of state power. As in the case of the state, sovereignty is a feature of state power as a whole and not its individual organs.

Sovereignty is not a formal legal category. It reflects the real qualitative features of the state which are manifest in real social relationships. The state is a real force capable of being the supreme governor of its territory and a sovereign independent organisation in international affairs.

The concept of sovereignty includes only the legal features of the state (supremacy and independence). It does not point at the other categories of decisive importance for understanding the essence of the state and, consequently, the essence of state sovereignty. Therefore, the concept of sovereignty as a political and legal feature of the state may be analysed only if one bears in mind the fact that the social essence of the sovereignty of a given state is ultimately determined by its socio-economic structure.

The sovereignty of states with differing socio-economic systems has a different social basis. In this sense, the sovereignty of socialist states differs fundamentally from that of bourgeois states.

The sovereignty of a capitalist state is an expression of the rule of the bourgeoisie which protects private capitalist property and the system of exploitation of the working classes with the aid of the state.

The abolition of private ownership of the means of production and their transformation into the property of the

entire people lead to the establishment of a qualitatively new, socialist type of state and alter the socio-political nature and significance of sovereignty. State power ceases to be a weapon of oppression of the working masses, the means of their suppression. A sovereign socialist state is used by the working class to build socialism and communism. The working class fulfils this historic mission in the interest of all working people.

Sovereignty, as a particular feature of the state, is not an eternal category. The state is a historical social phenomenon. It appeared as a result of society's division into classes. It will become unnecessary and wither away with the disappearance of classes and the construction of communist society. "Historical development inevitably leads to the withering away of the state," says the C.P.S.U. Programme. "To ensure that the state withers away completely, it is necessary to provide both internal conditions ---the building of a developed communist society---and external conditions---the victory and consolidation of socialism in the world arena.''^^1^^

As we have said above, the sovereignty of a state finds expression in two inseparably linked qualities---its territorial supremacy and its independence in international affairs.

The supremacy of the state means subordination to it of all persons and organisations within the bounds of state territory.

The state has supreme power over all the organisations and persons on its territory. All these organisations and persons are bound to submit to it. Exceptions to this rule are possible only with the direct consent of the state in each concrete case or in accordance with international law rules which, as is known, are established on the basis of agreement among sovereign states.

The state exercises territorial supremacy and full public power (legislative, executive and judicial) over the population, precluding the operation of any other power within its confines. State power exercises its functions within the bounds of state territory and governs it, organising it administratively, for instance. The commands of state power within the limits of state territory are binding on all the organs of the state, officials, organisations, and citizens.

~^^1^^ The Road to Communism, p. 556.

Because they are very far from understanding the true nature of the state and the peculiarities of its sovereignty, many bourgeois scholars affirm that the state is subordinated to some greater power which is allegedly the source of its sovereignty. For Jean-Jacques Rousseau it was the social treaty,^^1^^ for the various other trends of the school of natural law it is "eternal and immutable" principles of reason, nature, God's will, ethics, etc.; according to the realistic school of law, state power subordinates itself to the law it has created; for the "pure theory of law" of H. Kelsen sovereignty is an element of supreme law subordinating national law which implies the state; for the solidarists the state is subordinated to the idea, the rules of social solidarity; for many Western jurists of today the distinguishing trait of the sovereign state is its subordination solely to international law.^^2^^

Actually, however, a state's supremacy is the consequence of the fact that there is no other power over it which could establish or restrict its powers and demand its subordination. It finds expression in the fact that in a society organised into a state, public state power is the only basis for the competent functioning of all state organs and officials. The state's supremacy and sovereignty are not rooted in any outer forces but in the material living conditions of society at a certain stage of its historical development which engender the need for establishing a state with all the attributes of its public power.

The state exercises supremacy on its territory (territorial sovereignty) solely in virtue of its own properties arising from the objective living conditions of a society organised into a state.

The state's territorial supremacy means the concentration in its hands of all compulsive power and means of imperious coercion. Imperious coercion may be applied either

~^^1^^ "Just as Nature gives each man absolute power over all his members," he wrote, "so does the social treaty give the political body absolute power over all the members of the latter, and it is this same power which, directed by general will, is called, as I have said, sovereignty" (J. J. Rousseau. Du Contract social: ou, principes du droil politique, Paris, 1964, Vol. Ill, p. 372).

~^^2^^ "Indeed," Paul Guggenheim affirms, "the characteristic of the sovereign state consists by rights in that it is not subordinated to any law other than common international law" (Traite du droit international public, Geneva, 1953, Vol. I, p. 173).

by state organs on behalf of the state or by a state-- empowered non-state organisation whose competence and existence depend exclusively on the will of the state. The concentration of power in the hands of the state, its monopolisation of coercion "does not mean that the state only coerces by imperious methods but that only the state coerces by imperious methods".^^1^^ The state's supremacy thus makes itself evident in its sovereignty over its territory.

The state's supremacy also finds expression in the fact that the state alone can prescribe the rules and standards of conduct for all the organs, organisations and persons on its territory, that is, promulgate laws and guarantee their observance. Only the will of the sovereign state, expressed in state power, becomes a law, and the essence and the content of state will depend on the socio-economic nature of the given state and are determined by the material conditions of the society organised into a state.^^2^^

The state's territorial supremacy is inseparably linked with two important qualities of sovereign state power---its unity and legal unrestrictedness.

The state's supremacy presupposes the unity of state power inasmuch as sovereign state power alone can have supremacy and sovereignty within a state.

In the process of aggravation of class contradictions and open class struggle it may so happen that two organisations claim state power and there then arises a situation in which there is dual power. That, however, is an exceptional and temporary phenomenon. Their struggle inevitably ends in a victory for one of them and in the establishment of single state power which fully exercises the functions of the state.

Within the bounds of state territory, supremacy is not exercised by individual state organs but by state power as a single whole. To suppose otherwise, that is, to assume that state power consists of several independent organs, is to come to the conclusion that there are several sovereign organisations exercising supremacy within the bounds of the state or that there is absolutely no supreme state power.

The distribution of state functions and competence among

~^^1^^ I. D. Levin, Sovereignty, Moscow, 1948, p. 103.

~^^2^^ The so-called law of precedence in the Anglo-Saxon countries is in fact also sanctioned by the state.

different organs, usually secured by the rules of national law, in no way contradicts state power. It is not a division of state power but its organisation. In this given case, all the organs act on behalf of state power and within the rights and duties it establishes.

The unity of state power is based on the unity of state will. The former finds its concrete expression in the unity of policies pursued by the organs of state power in their practical activity.

Another important feature of sovereign state power is its legal unrestrictedness.

The very concept of state supremacy negates the possibility of formally restricting state power. State power operates on the basis of the law and order it itself creates. The fact that the competence of state power is secured and determined by the rules of law does not imply its restriction; it is a method employed in the implementation of state sovereignty. The legal restriction of the competence and activity of individual state organs do not detract from the fact that the state is free at any time to modify or cancel all restrictions, promulgate amendments to the constitution or adopt a new one.

However, it should be kept in mind that the legal unrestrictedness of state power means only that there is no higher authority to prescribe rules of conduct to it. This does not and cannot mean that state power is absolutely unrestricted in its activity. Actually, the state's activity is determined by the prevailing internal and external conditions, by its socio-political nature.

It should also not be forgotten that the law, determined in the final count by the material living conditions in the given society (a slave-owning mode of production means a slave-owning law, a capitalist mode of production---a bourgeois law, etc.) in its turn actively influences society's economic conditions. It can accelerate their progressive development or, on the contrary, retard it. In the latter case, the objective laws of social development predetermine the inevitability of changes in the law to make it fit in with society's economic conditions, by revolutionary means, if need be.

The state's supremacy thus means the concentration in the hands of the state of all power and imperious coercion against the organisations and persons on its territory, the

establishment of internal law and order, and the unity and legal unrestrictedness of state power.

While in internal affairs the state has supreme power over all the organisations and persons on its territory, in the external affairs it has no authority above it.

The state is independent of the power of other states. It exercises its internal and external functions and defines its own domestic and foreign policies. Consequently, state independence manifests itself in two ways: in the state's independence in home affairs and in its independence in foreign affairs.

There is a considerable difference between these two aspects of state sovereignty.

The state's independence in its internal affairs (internal independence) presupposes full freedom in the socio-- political organisation of society, that is, in the establishment of the state's social and political system and law and order. This is embodied in the universally recognised fact that the interference of one state in the affairs of another is inadmissible.

Internal independence is rooted in the state's territorial supremacy, which also presupposes its independence from the authority of other states. If the power of a state is dependent on another, it is obviously not supreme, and if it is supreme it cannot be dependent upon another, for the latter would then be supreme.

There are essentially no legal restrictions on internal independence. International law does not and cannot govern social relations within a state, for that is the exclusive prerogative of the state itself. The states can and do subject certain relations, governed by their national law, to international control. Such control, however, does not and cannot effect the essence of society's socio-political organisation within the state.

``In consequence of its internal independence and territorial supremacy," says L. Oppenheim, "a state can adopt any constitution it likes, arrange its administration in any way it thinks fit, enact such laws as it pleases, organise its forces on land and sea, build and pull down fortresses, adopt any commercial policy it likes, and so on.''^^1^^

~^^1^^ L. Oppenheim, International Law. A Treatise, London, Vol. I, Part I, Chapter II, § 124, pp. 255-56.

However, internal independence should not be interpreted in the absolute sense of unrestricted freedom for a state to do what it wants in internal affairs. Each state is free to decide its internal affairs but only if it is not to the detriment of the freedom and independence of other states.^^1^^

In other words, a state's freedom in internal affairs is restricted by its obligation to respect the sovereignty of other states.

Another aspect of a state's independence in international relations is its independence in external affairs (external independence) which means independent exercise of its external functions, the settling of foreign policy issues independently of other states.

In the sphere of foreign policy, a state's freedom is restricted by the need to observe the rules of international law. Its obligations under international law do not mean, however, that it is not independent in external affairs. On the contrary, they confirm the state's independence in international affairs.

The states take part in international affairs as sovereign, independent political organisations over which there is no authority capable of prescribing the rules of conduct they should follow. The rules of general international law are the product of agreement among the states. The aim of this agreement is to establish binding rules of conduct which accord with the interests of all states, take due account of their independence in internal and external affairs, and serve to protect this independence.

A state's activity in international affairs is dependent both on the actual circumstances of its existence within the system of states and on its duty to observe the principles and rules of international law.

Consequently, a state's independence in external affairs means independence in foreign policy within the framework of general international law. Apart from the universally recognised rules of international law which are binding for

all states, there are no legal restrictions on the activities of states in international affairs.^^1^^

Within the bounds of its international law obligations a state is entirely free to establish relations with other states if it thinks they accord with its needs and interests, to decide itself on all foreign issues affecting it, and follow its own foreign policy. This freedom is restricted de jure and de facto only by its duty to respect the freedom and independence of other states.

A state's independence in international affairs is notably distinguished by the fact that the only international law rules binding upon it are those it has consented to. No other state or states can unilaterally prescribe the rules of conduct it should follow in international affairs.

If a state violates universally recognised imperative rules of international law, other states or international organisations have certain rights to take measures sanctioned by international law against it. However, they can react only to illegal actions. The states are bound to respect the freedom of action in foreign policy guaranteed to states by international law and to refrain from interfering in other states' foreign policy acts if they are legitimate and are not contrary to the universally recognised principles and rules of international law.

According to its Charter, the United Nations is competent to decide how serious a violation of international law is and to take steps against it. This competence, however, is valid only if there is danger to peace, if peace has been violated or an act of aggression committed. Such competence was given it by a collective of states wishing to secure their defence against the most dangerous forms of encroachment upon their territorial integrity or political independence.

A state's independence in international affairs thus finds expression in its complete independence in internal affairs (in the establishment of the socio-political system in a society organised into a state) and in its independence in external affairs within the framework of general international law.

~^^1^^ A state may perform internal acts which directly affect its relations with other states. If, for instance, it permits any persons on its territory to engage in activity against the territorial supremacy or political independence of another state or, worse still, organises such activity, it will be performing internal acts from which it is obliged to abstain and for which it must bear international responsibility.

~^^1^^ Conclusion of international treaties which conform to the universally accepted and universally binding rules and under which states assume certain obligations also constitute exercise of their independence in foreign policy.

10 j

2. STATE SOVEREIGNTY AND INTERNATIONAL LAW

Essentially, the question of the relationship of state sovereignty and international law is one of whether state sovereignty is compatible with international law which is binding upon sovereign states, or whether the states obliged to observe the rules of international law are sovereign.

Jurisprudence, in the person of many of its representatives, followed a course of formally and logically contraposing sovereignty and international law, alleging that they were incompatible and negating international law or sovereignty.

The theories of "absolute sovereignty", linked chiefly with the names of Thomas Hobbes and Benedict Spinoza, made their appearance back in the 17th century. According to Hobbes, sovereignty implied supreme and absolute power, unrestricted by any laws or treaties. The state was preceded by a natural condition which he characterised as a "warre; and such a warre, as is of every man, against every man". This natural condition prevailed in the relations between states inasmuch as they were not subordinated to civitas maxima. Therefore, the states were continually in the "state and posture of gladiators", that is, in a state of real or potential war. Since, Hobbes claimed, any positive law could be created only by a higher authority, there was no positive law existing in the relations between states and it was nothing but a name inasmuch as "Covenants, without the Sword, are but Words, and of no strength to secure a man at all". Consequently, Hobbes vested the state with absolute sovereignty and negated international law, making an exception only for the "Principles of Reason".^^1^^

More of less similar views were held by Spinoza.^^2^^

According to Hegel's philosophy,^^3^^ a state is a "reality of ethics" on the earth, it is not the means but the aim, the highest of all aims; the existence of the state is "God's descent into the world". The state, being an absolute power on the earth, is a sovereign, independent personality in relation to other states. Sovereignty, in Hegel's opinion, is absolute inasmuch as the states do not recognise any higher

authority over them which could restrict their law. Since there is no suprastate power in relations between states, there is no international law, only an "external national law" which is a manifestation of the developing idea of state.

Hegel's views thus also boil down to claiming that state sovereignty is unbounded and absolute and to reducing international law to the status of "external national law", that is, to negating international law.

Emulating Hobbes and Hegel and affirming that sovereignty and international law were incompatible, many jurists openly negated international law, reducing it either to "external national law" created by the states in their own interest or to "international ethics''.

The theories of absolute sovereignty and negation that the states were in any way bound by international law rules, which were widespread in the 19th and at the beginning of this century, were used to justify the leading capitalist countries' lust for expansion and aimed at `` legalising'' arbitrariness in international affairs. These theories flourished best in Kaiser Germany and were later picked up by the nazi theoreticians who revived the concepts of "external national law".^^1^^ The theories of absolute sovereignty have very little currency today because they have definitely proved to be groundless and invalid.

To assert that a state possesses "absolute sovereignty" and that it is not bound by anything in its relations with other states and establishes the order and content of these relations solely at its discretion in accordance with its own "external national law" or "international ethics" is to negate not only international law but the sovereignty of states inasmuch as in such a case it would depend on the discretion of other, stronger states and would wholly be reduced to relations of strength. From such a conception of sovereignty, as I. D. Levin has justly pointed out, it would be logical to conclude that only one state can be recognised as sovereign, for the sovereignty of any other state would by its very existence mean restriction of the absolute sovereignty of the first state.^^2^^ And some authors have indeed come to this conclusion, claiming that the sovereignty

~^^1^^ See Thomas Hobbes, Leviathan, London, 1943, p.

~^^2^^ See Benedictus de Spinoza, Tractatus politicus.

~^^3^^ See G. Hegel, Philosophy of Right.

64.

~^^1^^ See, for instance, Ludwig Schecher, Deutsches Aussenstaatsrecht, Berlin, 1953; K. Schidt, Politische Teologie, Berlin, 1953.

~^^2^^ See 1. D. Levin, Sovereignty, p. 114.

of one state directly precludes the sovereignty of all other states.^^1^^ That, however, is too obviously contrary to reality, to the existence of the system of sovereign states and to the increasingly complicate interstate relations which are regulated by international law. Nor are there conditions in the present-day world which would allow the apologists of absolute sovereignty to pass off the ``right'' to wage war as a supreme expression of the sovereignty of states and thus justify the ``absoluteness'' of the sovereignty of states in international intercourse. All this makes the theories of absolute sovereignty completely pointless.

At the beginning of the 20th century there arose and took root in jurisprudence another trend, which negated state sovereignty and demanded its abolition in favour of "world law" or "world government''.

The political meaning of the theories negating state sovereignty was bluntly expounded by the well-known Russian jurist A. Yashchenko who demanded that "the idea of international intercourse extending to all mankind should be placed above national sovereignty". The conflict "of the interests of the class as a whole with the interests of a part of this class, that is, the conflict of the interests of the international class with the state class", he wrote, "is sharply manifest in the struggle waged against state sovereignty by finance, trade and industrial capital. The social task of international law is to uphold the interests of world capital against the exclusiveness of states. Protection of the interests of finance capital, the most powerful of all, has already made itself felt strongly in the regulation of interstate relations. .. .''^^2^^

Conceptions negating sovereignty, which inevitably lead to the advocacy of world government, have in the past few decades predominated in the Western doctrine. Their ultimate aim, irrespective of the subjective intentions of their authors, is to justify and camouflage the expansion of the imperialist powers which grossly infringe upon the sovereignty of weaker peoples and states, unceremoniously interfere in their domestic affairs and seek to impose upon

them their own kind of socio-political order. Urging the peoples to renounce sovereignty and accept instead the idea of ``integration'' (for instance, ``united'' Europe or interAmerican ``solidarity''), some Western theoreticians depict the United States and other imperialist powers as protectors of mankind's interests and the fighters for the freedom and independence of the peoples as followers of obsolete and moribund ``egoistic'' nationalism. The conceptions concerning the renunciation of sovereignty are used to counter the stand of the Soviet Union and other socialist countries which consistently uphold the peoples' right to self-- determination and demand unconditional respect for the sovereignty of all states, big and small. They are also directed against the growing national liberation movement which is sweeping the imperialist colonial system off the face of the earth and pressing for the consolidation of the national independence of the peoples who have freed themselves.

Conceptions which proclaim sovereignty and international law as incompatible are scientifically invalid, irrespective of whether they proceed from the position of absolute sovereignty or negate it. They are contrary to objective reality.

In fact, there exist both a system of states, each of which is sovereign, and international law, which is created by sovereign states in the process of their international intercourse. The freedom of action of states in foreign affairs, which is one of the symptoms of sovereignty, is not boundless; it is restricted by the freedom of other states. It is freedom to do only those things which do not infringe upon the sovereignty (territorial supremacy and independence in international affairs) of other states.

International law essentially arises from the fact that there exist sovereign states which maintain ramified relations with one another.

The state, being the political organisation of a given society, is destined not only to maintain the political rule of the class which governs society but to defend its position in the system of states, to defend it first and foremost against an attack from without. As it is interested in maintaining its own sovereignty, the state cannot refuse to recognise the sovereignty of other states. The common interests of states thus require the transformation of state sovereignty into a general, universal principle of international rela-

~^^1^^ See Leonard Nelson, Die Reclitswissenschaft ohnc Rccht, Leipzig, 1917, p. 60.

~^^2^^ A. Yashchenko, The Theory of Feudalism, Yuriev (Tartu), 1912, p. 806.

tions, a mutually binding obligation to respect one another's sovereignty. And this obligation is created by international law.

Being a product of interstate agreement, international law does not negate or restrict sovereignty. It takes account of the really extant peculiarities of state sovereignty---- separately and together---and makes the states' duty to respect the sovereignty of one another a general principle of international relations.

In universalising sovereignty, international law prescribes the concrete content of state sovereignty in international relations, that is, it establishes the limits of a state's freedom of action with due respect for the sovereignty of other states.

The establishment of the legal bounds of freedom of foreign policy activity does not mean restriction of sovereignty and independence in foreign affairs. On the contrary, it reaffirms this independence. The mutually binding rules of international law established by the states do not contain any restriction of a state's independence in international affairs other than that entailed by its duty to respect the sovereignty and independence of other states. Consequently, genuine, real sovereignty in international relations means that a state is independent in international affairs as long as it keeps within the bounds of the generally accepted and mutually binding rules of international law.

There is therefore a close link between state sovereignty and international law. They are not only compatible but form a sort of dialectical whole.

``International law," I. D. Levin rightly points out, "is not a formally logical negation of sovereignty. On the contrary, it is the universalisation of sovereignty, its transformation into a general, though not the only, principle governing relations between independent states. The principle of sovereignty is not a negation of international law but an elucidation of its specific nature, which is distinct from that of national law.''^^1^^

The relation, the link, between state sovereignty and international law thus means that they are interdependent: the international intercourse of sovereign states is a pre-

requisite of international law; at the same time, in obliging the states to respect the sovereignty of one another, international law serves as an instrument for reaffirming state sovereignty in international relations.

The close link between state sovereignty and international law is illustrative of the latter's specific peculiarities.

International law is not established by individual states pursuing their own interests but is a product of the coordination of the different wills of the participants in international intercourse. Such co-ordination, however, is feasible only if the participating states are independent and if their sovereignty has been transformed into a general principle governing their relations. There can be no international law on any other basis. It should be borne in mind, however, that the role of international law as one of the means of reaffirming state sovereignty in international relations differed from one historical epoch to another.

The development of capitalist relations, the rise on their basis of sovereign national states and the rapid expansion of economic ties and international relations in the 18th and 19th centuries led to the intensive evolution of international law and substantial qualitative changes in it. In that period international law made a big step forward in establishing the principle of sovereignty in international relations, proclaiming equality, non-interference in the internal affairs of states, freedom of navigation and respect for the honour and dignity of states as their basic principles. Simultaneously, international law continued to confine its sphere of operation to ``civilised'' states, legalising imperialist brigandage over the vast expanses of the colonial `` uncivilised'' world and retaining in its arsenal such institutes militating against state sovereignty as the ``right'' to war, debellation and annexation, the capitulations system, international settlements, spheres of influence, etc.

The Great October Socialist Revolution brought about a radical change in the system of international relations and ushered in a period of wide progressive development in international law. The Soviet state proclaimed that in its foreign policy it would be guided by the following principles: recognition of the freedom and independence of all states and peoples, absolute respect for the sovereignty of all countries, big and small, complete equality among them, strict non-interference in their internal affairs, the right

~^^1^^ I. D. Levin, Sovereignty, p. 113.

of nations to self-determination, and peaceful coexistence of states with differing social systems. It declared aggression, aggressive wars and annexation the greatest crimes against humanity. It strove firmly and tirelessly for the recognition of these democratic principles by all states and for their practical implementation in international relations.

The emergence of the world socialist system of states, which has become a decisive force in world development, the unprecedented spread of the national liberation movement and the rise of many new sovereign states in the postwar years have exerted a vast influence on the progress of international law.

The basic principles of present-day international law are those concerning mutual respect for state sovereignty, sovereign equality of states, non-interference in their internal affairs, prohibition of the threat or use of force against the territorial integrity or political independence of any state, settlement of disputes between states solely by peaceful means, national self-determination, and peaceful coexistence of states with different socio-political systems. Embodied in these principles is the underlying idea of the international law of today---the idea of intercourse of equal sovereign states.

3. MUTUAL RESPECT FOR STATE SOVEREIGNTY

Like many other generally accepted and mutually binding international law principles, the principle concerning the respect for state sovereignty is by origin a rule of international common law.^^1^^ It is a common rule because the principle of state sovereignty became binding and generally accepted in international law as a result of its recognition by all the states of the world in the lengthy process of international intercourse.^^2^^

Today, however, the principle concerning the respect for state sovereignty is not only a rule of common law but also a conventional rule. That state sovereignty must be respected has been recognised by all the states of the world in numerous bilateral and multilateral treaties and agreements, notes and statements.

The principle of mutual respect for sovereignty was solemnly reaffirmed along with the other principles of peaceful coexistence in the Soviet-Indian statements of June 22 and December 13, 1955, in the joint statements made by the Soviet Union and Burma on November 3, 1955, by the Soviet Union and Great Britain on April 26, 1956, by the Soviet Union and France on May 10, 1956, by the Soviet Union and Indonesia in September 1956, by the Soviet Union and Egypt in June 1956, and in a number of other important international documents signed by the Soviet Union and other states.

The Preamble of the Warsaw Treaty of Friendship, Cooperation and Mutual Assistance of May 14, 1955, speaks of the socialist countries joining efforts to promote friendship, co-operation and mutual assistance "in accordance with the principles of respect for the independence and sovereignty of states and non-interference in their internal affairs''.

Respect for the sovereignty of all countries, says Para. 2 of the Declaration on the Promotion of World Peace and Co-operation adopted by 29 Afro-Asian countries at the Bandung Conference in April 1955, is one of the principles of friendly co-operation among the states. The resolution of the Afro-Asian Solidarity Conference of January 1, 1958, also refers to respect for the sovereignty of all states.

One of the aims of the Arab League, according to Art. II of the Covenant of the League of Arab States of March 22, 1945, is to secure the independence and sovereignty of the League members.^^1^^

Lastly, as Cezary Berezowski rightly says, "the entire

~^^1^^ "A considerable part of rules and principles secured in international treaties remain to a certain extent general principles and rules," G. I. Tunkin writes in Theoretical Problems of International Law (Moscow, 1962, p. 107). "They include, for instance, the principles concerning the respect of state sovereignty, non-interference in internal affairs, non-aggression, and equality. These principles are secured in the U.N. Charter. But for the states not associated with the U.N. they remain ordinary principles of international law.''

~^^2^^ As P. I. Lukin rightly says, "international principles of ordinary origin cannot be fully identified with international custom". Inter-

national custom, he says, does not formulate international law principles. It introduces into practice an already formulated principle, turns it into an obligation and makes it a rule of international law (see P. 1. Lukin, The Sources of International Law, Moscow 1960 pp. 86-87).

~^^1^^ International Law---Selected Documents, Vol. II, Moscow, 1957 p. 181.

8-495

system of the United Nations Organisation rests on the principle of respect for sovereignty and this is not only confirmed by the U.N. Charter itself but by the charters of numerous U.N. specialised agencies, for instance, in the principles relating to international air navigation".^^1^^

The proclamation of the sovereign equality of U.N. members, political independence and territorial integrity of states, non-interference in their internal affairs, prevention and elimination of any threat to the sovereignty of states by means of effective collective measures, promotion of friendly relations among states on the basis of the principle of equality and national self-determination as principles and purposes of the United Nations mean solemn recognition and affirmation by the states of their duty strictly to abide by the principle of mutual respect for sovereignty in their international relations and collectively to secure the sovereignty of each state.

Mutual respect for sovereignty by the states is thus one of the most important generally recognised principles of present-day international law.

The obligation to respect sovereignty arises exclusively from the fact of the state's existence and does not depend on any other reasons inasmuch as "state sovereignty is not based on international law; a state acts in international affairs as a sovereign formation; its sovereignty is not the result of its participation in international affairs. On the contrary, the elaboration of international law rules is the result of action by sovereign states.''^^2^^

By virtue of its sovereignty and its international law obligation to respect state sovereignty a state becomes ipso facto a subject of international relations, a subject of international law.

Under the influence of the leading capitalist powers, which pursued a colonialist policy, the international law operating before the October Revolution did not recognise the countries of the East---the objects of imperialist expansion---as subjects of international law. The original members of the family of nations, Oppenheim wrote in his

treatise on international law, were the Christian states of Western Europe. The family of nations was later joined by the Christian states arising outside Europe. It was "with the reception of Turkey into the family of nations in 1856" that "international law ceased to be a law between Christian states only". But even after that Turkey's position remained "anomalous because her civilisation was deemed to fall short of that of the Western states. . .. Before the First World War the position of such states as Persia, Siam, China, Abyssinia, and the like, was to some extent doubtful.''^^1^^

However, under the impact of enormous socio-political changes in the world since then international relations and international law have altered radically. The peoples of the East have ceased to be the object of the undivided sway and exploitation of the imperialist ``civilisers''. No longer are attempts made to deprive the Eastern states of their rights on the pretext that they are economically, politically and culturally backward or that they are not Christian.

The U.N. Charter, the basic source of present-day international law, equally secures the sovereignty of all U.N. member states, most of which are Afro-Asian countries, and recognises them as subjects of international law. The principles of the Charter are also recognised by states not associated with the U.N. The United Nations proclaimed as its aim the promotion of international co-operation on the basis of respect for human rights and basic freedoms for all irrespective of race, sex, language and religion.

Every state is bound to respect the sovereignty of other states irrespective of whether or not it maintains normal relations with them and whether or not they are recognised by other states.

The Soviet science of international law definitely recognises all states as subjects of international law. Soviet international jurists have thoroughly repudiated the constitutive theory of recognition, proving it scientifically groundless.^^2^^

~^^1^^ L. Oppenheim, International Law. A Treatise, Vol. I, Introduction, Chapter I, pp. 45-46.

~^^2^^ See D. I. Feldman, Recognition of Governments in International Law, Kazan, 1961; Y. M. Kazarovet.s, Recognition of New States and Governments in Present-day International Law, Moscow, 1958; R. L. Bobrov, "Two Aspects of the Theory of Recognition of New States and Governments", Soviet State and Law, No. 1, 1958.

8'

115

~^^1^^ Cezary Berezowski, Zagadnienia zwierzchnictwa terylorialnego. Z teorii prawa mifdzynarodowego, Warsaw, 1957, p. 7.

~^^2^^ G. I. Tunkin, Fundamentals of Present-day International Law, Moscow, 1956, pp. 15-16.

International law, Tunkin writes, "recognises the sovereign states' basic, generally accepted rights and obligations, such as the right to respect for territorial integrity and sovereignty and the corresponding obligation to abstain from violating the territorial integrity and sovereignty of other states; the right to maintain international relations, notably to exchange diplomatic missions, conclude international treaties, and take part in international organisations, and the right to individual and collective self-defence. Every state has such rights and obligations irrespective of the number of states by which it is recognised, that is, irrespective of recognition. Non-recognition by any state of a new state does not mean that it can ignore the rights of the state it refuses to recognise.''^^1^^

The role and significance of the principle of respect for state sovereignty are determined by the objective conditions of the development of present-day society, in which the number of sovereign states is constantly increasing.

Consolidation of sovereign statehood is one of the main prerequisites of the progressive development of human society. State sovereignty is destined to strengthen and develop the progressive forms of social life, abolish the social system the peoples no longer want and history has doomed, and secure the freedom of national development.

The joint efforts of the overwhelming majority of the peoples of the world to ensure their progressive development within the framework of sovereign statehood testify to the profound importance of the principle of state sovereignty and pave the way to the further development of international law.

Present-day international law, in forbidding the use and threat of force in international relations, practically guarantees against the most dangerous kind of violation of state sovereignty---against the armed attack on a state.

So far, however, there are no material guarantees against the violation of state sovereignty with the aid of armed force. Such guarantees could be established by the abolition everywhere of all armed forces and armaments, that is by general and complete disarmament.

The Soviet Union and the other socialist countries are constantly striving to achieve agreement on disarmament under strict international control, and in that they are supported by all the peace-loving states and all the peoples of the world.

~^^1^^ C. p. 21.

I. Tunkin, Fundamentals oj Present-day International Law,

G. /. Morozov, LL. D.

on the basis of progressive principles of international law and international relations.

The claim by many bourgeois jurists and historians that the foundation of the United Nations was laid by the socalled Atlantic Charter of August 14, 1941, does not hold water. While one must admit that this document played a positive part in mobilising the anti-Hitler forces, one should not attribute to it what it did not say. The Atlantic Charter contains nothing to confirm that claim, and this is recognised by some historians in the West.

The idea of establishing an international peace-keeping organisation based on progressive and genuinely democratic principles was advanced and consistenly upheld by the Soviet Union. This is evidenced, for instance, by the Soviet Government's statement at the Inter-Allied Conference in London on September 24, 1941, by its statement of December 4, 1941, by the Soviet Union's stand at the Moscow Conference in October 1943, and at the Dumbarton Oaks (August-October 1944), San Francisco (April-June 1945) and other conferences.

The Soviet Union succeeded in getting a number of important international law principles inserted in the U.N. Charter.^^1^^

The U.N. Charter, as is well known, embodies the principle of the inadmissibility of aggression and the threat of force, which was proclaimed by Lenin's Decree on Peace in the very first days of Soviet power. The Soviet Government proposed to insert in the U.N. Charter a number of other fundamental principles, including the one that interstate relations should be promoted on the basis of respect for the principle of equality and national self-- determination. It further proposed the inclusion of a clause saying

INTERNATIONAL LAW AND THE U.N.

1. THE SOVIET UNION AND THE U.N. CHARTER

The analysis of the international law aspects of the pattern and activity of the United Nations demands first and foremost an analysis of its Charter. This document has no precedent---never before has there been an act so allembracing so far as international law principles are concerned. The Charter has been in existence for more than two decades. It has on the whole stood the test of time. There has been practically no case of the solution of any controversial international issue being hindered by a flaw in the Charter. As experience shows, it is invariably the policies pursued by the imperialist powers that are the cause of international disputes and of delays in their settlement.^^1^^ The principles and purposes of the U.N. Charter are therefore all the more important, for their observance can secure normal international co-operation.

An objective study of the Charter's history will help correctly interpret each of these principles and purposes and the international law nature of the U.N. in general.

The drafting of the U.N. Charter was a complex process, entailing as it did the co-ordination of views of the various powers of the anti-Hitler coalition, notably those of the leading partners who represented different social systems: the Soviet Union, on the one hand, and the United States and Great Britain, on the other.

The U.N. Charter was drawn up during the war. The Soviet Union's outstanding role in the victory over fascism made it not only one of the leading parties in the compilation of the Charter but helped it to get the U.N. established

~^^1^^ See V. N. Durdenevsky and S. B. Krylov, The United Nations Organisation. Collection of Documents Relating to the Foundation and Activities of the U.N., Moscow, 1956; Y. A. Korovin, The U.N. Conference and International Security (from Dumbarton Oaks to San Francisco, Moscow, 1945, "The U.S.S.R. and the Establishment of the United Nations Organisation", International Affairs, No. 9, 1957, and International Peace and Security Organisations, Moscow, 1945; S. B. Krylov, The History of the United Nations Organisation, Moscow, 1960; G. I. Morozov, The United Nations Organisation (Basic International Law Aspects of Its Structure and Activities), Moscow, 1962, and The Soviet Union in the U.N., Vol. 1, Moscow, 1965.

~^^1^^ See U.N. and Key International Issues (U.N.'s 20th Anniversary), Moscow, 1965.

international co-operation should be given expression through the encouragement of respect for human rights, notably the right to work and the right to education, as well as for fundamental freedom for all without distinction as to race, language, religion and sex. The Soviet proposals also stipulated that international disputes liable to lead to breaches of the peace should be resolved peacefully and settled in accordance with the principles of justice and international law. One should also mention the Soviet proposal that coercive action on the basis of the U.N. Charter may be taken in accordance with regional agreements or by regional organs only with the permission of the Security Council, with the exception of the instances provided for by the existing treaties aimed at preventing the revival of the aggressive policy of the aggressor states in the present war.

Chapter I of the U.N. Charter clearly

shows that these

Soviet proposals have been expressed in

a number of its

basic principles, notably in paragraphs

1, 2 and 3 of Article 1.

The U.N. Charter secures such progressive principles of international law as the principle of recognition of the equality of the two social systems (confirmed, in particular, by the rule on the unanimity of the permanent members of the Security Council); the principles of peaceful coexistence and the prohibition of aggression and the threat of force in international relations, the principles of non-- interference, equality and sovereignty, the principle of self-- determination, the obligation to settle international disputes peacefully; and also the principles of international co-operation, promotion of economic and social progress, respect for human rights and fundamental freedoms. The Charter provides for the establishment of a universal system of collective security and joint action by states to prevent and eliminate threats to peace and acts of aggression. The character and significance of the basic principles of the U.N. Charter allow to regard it, if it is strictly observed by all states, as a legal programme of peaceful coexistence.

The U.N. Charter plays a highly important role in the progressive development of international law.

2. THE LEGAL NATURE OF THE U.N. CHARTER

The U.N. Charter is usually characterised as an international treaty. Such characterisation undoubtedly requires major reservations. For the Charter is a treaty of a special kind (sui generis). This, incidentally, is emphasised by the very title of ``Charter'', which presupposes the agreement of the member states on the fundamental principles of their organisation, established to implement the principles and purposes they have proclaimed, and to create detailed organisational forms to that end.

The Charter is of a multilateral nature and presupposes the membership in the United Nations Organisation of all the countries of the world. Originally, there were 51 signatories, and they included European, Asian, Latin American and African countries. The number of U.N. members now is 123 (the place of the People's Republic of China is illegally occupied by Chiang Kai-shek). The absence of the representatives of China's lawful government is contrary to the principle of universalism, which is one of the most important elements of the legal aspect of the U.N.

Present conditions make it essential to admit the two German states---the German Democratic Republic and the Federal Republic of Germany---to U.N. membership. The G.D.R., as its Foreign Ministry rightly pointed out in a statement on the occasion of the fifteenth anniversary of the U.N., has from its very inception made the principles enunciated in the U.N. Charter the principles of its foreign policy. The German Democratic Republic's genuinely peaceful foreign policy has fully confirmed this. In 1966 the G.D.R. Government applied for U.N. membership.

The admission of the two German states to the United Nations would reaffirm the present state of affairs and at the same time deter the revenge and militarist forces in West Germany and the NATO allies these forces support.

Analysing the legal nature of the U.N. Charter as an international treaty, one should emphasise the signal importance of the above-mentioned principles and rules of international law it has secured.

One of the most important features of the U.N., the foundation stone of the Organisation, is the principle of unanimity of the permanent members of the Security Coun-

cil.^^1^^ It signifies the legal recognition of the equality of two opposing systems, the only correct basis of international relations at the present stage.

The question of veto was the most discussed question in the past. The Soviet veto in the Security Council prevented the United Nations from being used for aggressive purposes. The United States and its allies, acting in circumvention of the Security Council, tried to vest the General Assembly, where they long enjoyed a mechanical majority, with the Security Council's powers. At the same time, they unleashed a propaganda campaign against the Soviet Union, accusing it of "abusing the right of veto". The slanderous nature of this campaign is obvious. The fact is that every time the Soviet delegates use the veto it is to protect the principles and purposes of the U.N. Charter from being violated or disregarded.

In the past, the Soviet Union used its right of veto most in connection with the vote on the admission of new members. This was due to the unfair approach to this issue by the Western powers which for many years opposed the admission to the U.N. of certain socialist states, although this militated against the principles of the U.N. Charter and the interests of international co-operation which can be promoted by the U.N. only if it is a truly universal organisation. The Soviet Union's efforts finally led at the Tenth General Assembly to the simultaneous admission of sixteen states, including a number of socialist countries.

The Soviet veto was also an insurmountable obstacle on the path of those who sought to organise interference in the domestic affairs of sovereign states in contravention of the U.N. Charter and force the Organisation to pass resolutions legalising colonialist actions and occupation of other states.

One example is the stand taken by the Soviet Union in the Security Council in December 1961 when it met to discuss India's liberation of the territories of Goa, Daman and Diu from the Portuguese colonial yoke. The Soviet veto

frustrated the efforts made by the Portuguese colonialists' patrons---the United States, and its followers---to use the U.N. and prevent the Indian people from exercising their legitimate rights.

The fact that the U.N. Charter is an international treaty already makes it a source of present-day international law. Being a special kind of treaty, securing the basic principles of the international law of today, the Charter enjoys an advantage over all treaties concluded before and after its approval. The commitments which states assume under international agreements and which are contrary to their obligations under the U.N. Charter are therefore invalid (see Art. 103 of the Charter). They include obligations assumed as parties to aggressive imperialist blocs, shackling unequal political and economic agreements, and so on.

A state violating the basic principles of the U.N. or resolutions especially adopted in relation to it places itself beyond the pale of the Organisation. This wholly applies, for instance, to South Africa. In its memorandum to the Sixteenth General Assembly regarding the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Soviet Government pointed out that since "the Government of the Union of South Africa persists in its policy of racial discrimination and apartheid, the right course for the General Assembly would be to declare the Union of South Africa expelled from the United Nations, while the Security Council would apply to the Union the appropriate sanctions provided for in the Charter of the United Nations. That would serve as a lesson to all colonialists and racists.''^^1^^

This proposal was profoundly justified and fully accorded with the legal principles of the U.N. Charter. This was confirmed by the discussion of the issue at the subsequent General Assembly sessions, at which the problem of adopting sanctions against South Africa was put in practical terms.

The analysis of the legal nature of the U.N. makes it imperative to take account of the practical activity of the U.N. along with the principles of the U.N. Charter.^^2^^ Espe-

~^^1^^ See V. N. Fyodorov, U. N. Security Council, Moscow, 1956; F. I. Kozhevnikov, "The Principle of Great-Power Unanimity in the U.N. Security Council", Moscow University Herald, No. 4, 1949; N. A. Ushakov, The Principle of Great-Power Unanimity in the U. N., Moscow, 1956, and "The Right of Veto in the U.N.", Soviet Yearbook of International Law, 1959.

~^^1^^ hvestia, Sept. 30, 1961.

~^^2^^ For U.N, activity see The U.N. and Current International Issues (20th Anniversary of the U.N.), Moscow, 1965; The Soviet Union in the U.N., Moscow, 1965; S. V. Molodtsov, G. I. Morozov, The U.N, and the Problem of Peace, Moscow, 1965.

dally important in this connection is the principle of sovereignty.^^1^^ V. P. Danevsky, the well-known Russian prerevolutionary international jurist, wrote that "the whole history of the birth and maturity of the idea of international union has since the 17th century been a struggle of two principles, the correct combination of which alone makes it possible to build up the idea and organise an international union, that is, the combination of the principle of state independence with the supreme principle of the system constituting the so-called legal intercourse of the peoples. . .. In international law this task (establishment of the international organisation.---G.M.) boils down to correctly combining the subjective principle of international law---the principle of sovereignty (sovereign independence)---with the objective principle---the principle of international legal intercourse.''^^2^^

Only the harmonious combination of these principles can ensure the establishment of an international organisation which will reject the idea of some countries dominating others. In present-day international law respect for the sovereignty of states is one of the main principles.

The principle of sovereignty acquires particular importance in the conditions of peaceful coexistence of states with different social systems. Strict, absolute observance of this principle is indispensable for real peaceful coexistence, which precludes all interference in the internal affairs of states.

It was only thanks to the initiative of the Soviet Union that the principle of state and national sovereignty was inserted in the U.N. Charter. "The Organisation is based on the principle of the sovereign equality of all its members," says Para. 1, Art. 2. Its members must "develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples" (Para. 2, Art. 1), which is a major prerequisite for the preservation and consolidation of world peace.

The principles of respect of sovereignty and the equality of states require strict observance in the United Nations of

the interests of all countries and of the basic social groups of states, and that should predetermine, among other things, the composition of the main U.N. agencies. The one-sided composition of these agencies, in which the socialist countries and the young neutralist states are not sufficiently well represented, is contrary to the legal nature of the U.N.

The sovereign equality of U.N. members finds its practical expression in the fact that each has one vote.

The principle of passing U.N. resolutions by the majority of votes (General Assembly, Economic and Social Council, Trusteeship Council) does not impinge upon the sovereign rights of the member states. Since the General Assembly usually adopts only recommendations (Articles 10-14 and 17 of the Charter), Prof. Krylov rightly points out that they cannot affect the sovereignty of member states.^^1^^ This also applies to the competence of the Economic and Social Council (Art. 62 and 63) and the Trusteeship Council (Art. 87). "Thus," Prof. Krylov goes on, "although any state in the three above-mentioned organs of the Organisation may find itself in the minority and a decision may be taken against its will by a simple or qualified majority, in almost every case it is only a question of individual decisions limited to certain periods or of recommendations that are not legally binding on member states.''^^2^^

One should not by-pass the efforts made by certain jurists to contrapose the rule of unanimity of the permanent members of the Security Council to the principle of the sovereign equality of states.^^3^^ Back in 1951, in 'The Law of the United Nations, Hans Kelsen sought to prove that there were no legal grounds for giving the Great Powers special rights in the U.N. And Prof. Robert M. Maclver of Columbia University alleges in 'The Nations and the United Nations that there is a contradiction between the rule of unanimity of the permanent members of the Security Council and the principle of the equality of U.N. member states. He consequently sets out to prove that the sovereignty of the U.N. members is ``unequal'' because the permanent members of

~^^1^^ See P. A. Ushakov, Sovereignty in Present-day International Law, Moscow, 1963.

~^^2^^ V. P. Danevsky, Textbook of History and System of International Law, Kharkov, 1892, pp. 6-8.

~^^1^^ See S. B. Krylov, "The History of the United Nations Organisation, p. 256.

2 Ibid.

~^^3^^ For details see N. A. Ushakov's "The Right of Veto in the U.N.", Soviet Yearbook of International Law, 1959, p. 219.

the Security Council enjoy special rights and that the Council's decisions are therefore unconstitutional.^^1^^

The groundlessness of such allegations (and there are many in the West who share Prof. Maclver's views) is obvious. These allegations revive the medieval conception of absolute sovereignty which in its ultimate form is entirely incompatible with any normal international relations, with the existence of international law and international organisations. The imperialist ideologists have raked up this conception to justify the "positions of strength" policy in the United Nations, since it has helped justify the tactics of by-passing the Security Council and endowing the General Assembly with functions that are alien to it.

It should be borne in mind that normal international relations, and notably the activity of the United Nations, must be based on a combination of the principles of sovereign equality and joint action by states with a view to securing common interests and, first and foremost, to banishing war from international relations, facilitating the pacific settlement of disputes, and so on. The states act as legally equal subjects of international intercourse, though their individual contributions and responsibilities cannot be equal because their military and economic might, the size of their territory and population, and so on, are different.

The states' joint peace-keeping actions, which include compromises and reciprocal concessions as indispensable elements, must not prejudice the principles of international law, notably the principle of sovereign equality. The unanimity of the permanent members of the Security Council firmly guarantees, among other things, the observance of the principles of sovereign equality of U.N. members.^^2^^

As for the right of veto which the permanent members of the Security Council are vested with, it should be stressed that it is not a privilege which they can use to the detriment of the United Nations, for then it would indeed militate against the principle of sovereign equality. The principle of unanimity is expressive of the special responsibility of the permanent members of the Security Council for questions

~^^1^^ See R. Maclver, The Nations and the United Nations, New York, 1959, pp. 60, 62, 88.

^^2^^ See N. A. Ushakov, "The Right of Veto in the U.N.", Soviet Yearbook of International Law, 1959, p. 220, and D. B. Levin, Fundamental Problems of Present-day International Law, p. 257.

of war and peace, their responsibility as states on which these questions primarily depend. It is expressive of their particular duty to mankind, of their obligation to seek pacific settlements.

Speaking of the analysis of the legal nature of the United Nations, one must say that revision of the basic principles of its Charter is out of the question, for it would inevitably lead to the distortion of the legal nature of the Organisation.

The idea of revising the U.N. Charter de facto has taken firm root in Western writings on international law. The bourgeois jurists' interpretation of the Charter is based on the conception of arbitrary, or ``liberal'' interpretation. Hans Kelsen, for instance, claimed that legal norms have "more than one meaning" and thus justified the arbitrary interpretation of the U.N. Charter which, he said, "has the advantage of making the law adaptable to changing circumstances, without the requirement of formal alteration".^^1^^ Ten years later, one of the leading officers of the American Association for the United Nations sought to substantiate the same ideas. As an example of ``liberal'' interpretation he cited the General Assembly's Resolution 377 (V), or the "Uniting for Peace" resolution.^^2^^

This approach to the question of the Charter's interpretation in effect means distortion of its purposes and merely justifies its violation. The interpretation of the Charter, as that of any other international law act, is of course permissible. But it should not transcend the bounds of its basic principles and, still less, militate against them. First and foremost, it should be honest. The Charter itself formulates the principles (Art. 2) on the basis of which it should be interpreted.

While the U.N. Charter binds the member states strictly to observe its basic principles and provisions, it does not

~^^1^^ H. Kelsen, The Law of the United Nations, pp. XIV-XV.

~^^2^^ This resolution, it may be recalled, tended to demolish the structure and competence of the main U.N. organs provided for by the U.N. Charter. The Security Council's inalienable rights were to be illegally passed on to the General Assembly. It was thus intended to ignore the rule concerning the unanimity of the permanent members of the Council and to entrust the solution of important peace-keeping problems, in violation of the Charter, to the General Assembly, where the American "voting machine" was then in operation.

rule out the possibility of their suggesting improvements. The founders of the Organisation inserted Chapter XVIII in the Charter providing for amendments which might be prompted by the activities of the United Nations and would help it exercise its functions more effectively. It goes without saying that these amendments should be adopted only if they strengthen and improve the United Nations as an international organisation set up to promote wide international co-operation and maintain international peace and security.

Since the end of the war the world has undergone sweeping changes: it has seen the emergence and consolidation of the socialist community and the rise from the ruins of the colonial empires of more than seventy sovereign states. These changes have told on the composition of the U.N., whose membership has more than doubled. The imperialist powers no longer dominate the United Nations. There is a growing awareness among U.N. members of the need for joint action against imperialism and colonialism.

The new correlation of forces in the international sphere has made it necessary to alter the organisational structure of some of the principal organs of the U.N.

It was with this aim in view that the Presidium of the U.S.S.R. Supreme Soviet ratified in December 1964 the amendments to Articles 23, 27 and 61 of the U.N. Charter providing for an increase in the number of members of the Security Council (from 11 to 15) and the Economic and Social Council (from 18 to 27). These amendments had been adopted by the U.N. General Assembly in its Resolution 1991 (XVIII) of December 17, 1963.^^1^^

As a result of the changes in the world situation, the composition of the U.N. Secretariat has also altered somewhat. There are more officials from the newly-independent states, and the U.S.S.R. and other socialist countries are slightly better represented. On the whole, however, the situation is still unsatisfactory. Citizens of the United States and other Western countries still hold quite a few posts which ought to be filled by other countries. The situation is

particularly intolerable in the agency charged with implementing the programme of technical aid to developing countries; the number of U.S. citizens there is especially large.^^1^^

The time has come to improve the Secretariat and to ensure that the socialist and neutralist states are properly represented in it.^^2^^

The changes in the correlation of forces in the U.N. are yielding increasingly positive results. One may cite in this connection the U.N. declarations and resolutions on the granting of independence to colonial countries and peoples, on general and complete disarmament, on the prohibition of the use of nuclear weapons, on the non-orbiting of spaceships with nuclear weapons, on principles governing the activities of states in the exploration and use of outer space, on the abolition of racial discrimination in all its forms, on the convocation of the U.N. Conference on Trade and Development, and others. All these acts are highly significant and it is not difficult to see that they all to a greater or lesser extent amplify and concretise U.N. Charter principles.

Hitherto we have dealt with' the legal nature of the U.N. in the broad sense of the term. As for the more specific meaning of this question, namely, the U.N.'s status as the subject of law, we must note that it has been studied by many Soviet jurists.^^3^^

The most complete definition of this status has been given by R. L. Bobrov.

``The United Nations Organisation," he writes, "is a

~^^1^^ See Special U.N. Agencies in the Modern World, Moscow, 1967.

~^^2^^ See A. M. Medvedev, The U.N. Secretariat and Present-day Requirements, Moscow, 1962.

~^^3^^ See International Law, Moscow, 1947, p. 110; F. I. Kozhevnikov, Textbook of International Public Law, Moscow, 1947, p. 54; D. B. Levin, "A Propos of the Conception and System of Present-day International Law", Soviet State and Law, No. 5, 1947, pp. 11-12; S. B. Krylov, The History of the United Nations Organisation, pp. 257-58; G. I. Tunkin, Fundamentals of Present-day International Law, pp. 17-18; D. B. Levin, Fundamental Problems of Present-day International Law, pp. 80-86; L. A. Mojoryan, Subjects of International Law, Moscow, 1958, pp. 31-40; R. L. Bobrov, "The Legal Nature of the U.N.", Soviet Yearbook of International Law, 1959, pp. 229-40; S. A. Malinin, "The Status of Subject of Law of International Organisations", Herald of the Leningrad State University, No. 17, 1965, pp. 105-17.

9-495

J29

~^^1^^ See Izvestia, Dec. 18, 1964. The non-permanent members of the Security Council now include one East European socialist country, three African countries, two Asian countries, two Latin American countries, and two West European countries.

secondary, derivative (non-typical) subject of present-day international law, constituted by the will of sovereign states, the original, primary subjects of this law. Set up as a centre co-ordinating the actions of states in strengthening and promoting international co-operation on a democratic basis, the U.N. is vested with the status of subject of international law it absolutely needs to exercise its functions. The salient features of the status of the United Nations Organisation are interlinked and form on the whole a specific legal status which is legally different from that of a state. The U.N.'s status as a subject of law is restricted to the limits defined by its Charter.''^^1^^

One need only add that the specific nature of the U.N.'s legal status should not be interpreted in the sense that it is the opposite of the legal status of the primary and the only full-fledged subjects of international law---the individual states. What distinguishes the legal status of the U.N. is above all the fact that its scope is more limited than that of the legal status of states. This scope is defined in the U.N. Charter by the sum total of its principles and, concretely, by Article 105.

Recognition of the limited international law status of the U.N. fully conforms to the ideas which guided the founders of the Organisation.^^2^^ After a lengthy discussion of this question in the IV/2 Committee at the San Francisco Conference it was decided that "the text (of the Charter.---G.M.) includes nothing concerning international juridical personality, it being assumed that this will be determined by implication from the provisions of the Charter taken as a whole".^^3^^

That the U.N. had a specific status in international law was also stressed by the International Court in its consultative ruling of April 11, 1949, on the question of compensation for damage suffered while in the service of the U.N.⁴ The Court pointed out that there was nothing in the above-

cited statement to show that the juridical personality of the U.N. was identical to a state or a superstate.

The U.N. Charter and practice show that the Organisation has the right to maintain relations with states and other international organisations and to conclude agreements with them, provided their scope does not transcend the bounds of its competence.^^1^^ Although the agreements provided for by the U.N. Charter have a number of specific peculiarities engendered by the legal nature of the Organisation and the special character of its status as a subject of law, these agreements should be regarded as international treaties.^^2^^

One factor testifying to the international legal status of the United Nations, it is rightly pointed out, is the existence of permanent missions in the Organisation. These original institutes, different from ordinary diplomatic missions, are evidence of the specific character of relations between the U.N. and its members. They are headed by permanent representatives, usually with the rank of ambassador extraordinary and plenipotentiary---and sometimes with the rank of minister, appointed by the governments concerned solely at their own discretion, without the prior discussion usually attending such appointments.

Very important for the determination of the U.N. as a subject of law is Article 104, which says the Organisation "shall enjoy in the territory of each of its members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes". The United Nations has accumulated considerable experience in concluding treaties of a private legal nature.

One should also note the privileges and immunities of the U.N., provided for by Articles 104 and 105, for they are a practical expression of its international legal status.^^3^^

~^^1^^ R. L. Bobrov, "The Legal Nature of the U.N.", Soviet Yearbook of International Law, 1959, pp. 239-40.

~^^2^^ See S. B. Krylov, The History of the United Nations Organisation, p. 232.

~^^3^^ Documents of the United Nations Conference on International Organisation, San Francisco, 1945, London and New York, 1945, Vol. VIII, pp. 663, 710.

~^^4^^ See International Court of Justice, 1949, pp. 174-220.

~^^1^^ See I. I. Lukashuk, "International Organisation as a Party to International Treaties", Soviet Yearbook of International Law, 1960, Moscow, 1961.

~^^2^^ See G. I. Tunkin, Fundamentals of Present-day International Law, p. 11.

~^^3^^ See O. V. Bogdanov, "The Privileges and Immunities of the U.N.", Soviet Yearbook of International Law, 1959, pp. 243-58, and Legal Aspects of U.N. Residence in the U.S.A., Moscow, 1962.

3. THE LEGAL NATURE

OF THE U.N. AND SETTLEMENT

OF ISSUES WITHIN THE ORGANISATION

The U.N. is an organisation of sovereign states. It was founded for the purpose of regulating international intercourse in such a way as to preclude the settlement of interstate disputes by force and to promote close international co-operation in the most varied fields.

Since there are states of two completely different systems in the U.N., their ideological community is excluded. Peaceful coexistence, however, does not presuppose such a community, since ideological struggle is its most important element. Its aim is to save mankind from aggression and to promote broad co-operation in the cultural, economic, scientific and other fields.

The U.N. is an organisation destined to facilitate the difficult and complicated process of co-ordinating the interests of states with different systems in the resolution of major international issues. Its foundation was itself the result of such co-ordination. The establishment of the United Nations on the basis of the principle of sovereign equality of states testifies to the fact that dictation and imposition of unilateral decisions are incompatible with its legal nature.

For many years in the past the situation in the General Assembly was largely dependent on the notorious "voting machine" which enabled the U.S. State Department to get it to pass the resolutions it wanted, to the detriment of the interests of the Organisation itself. From the legal point of view, this practice was extremely bad. The "voting machine", a creation of the "positions of strength" policy, was used to nullify efforts to reach agreement on international issues and to impose decisions suiting one state or small group of states.

The legal nature of the U.N. as an organisation of sovereign states calls for the settlement of international issues through methods ensuring the fullest possible realisation of the purposes and principles of the Charter and observance of the interests of the basic groups of states or individual states, as the case may be, provided these interests are not contrary to the Charter.

Can the noble aims which the U.N. Charter has proclaimed and which fully accord with international law be

achieved by the illegal methods of dictation? Of course not. Such methods are liable in effect to deprive the U.N. of its character as an international organisation set up to maintain peace and security. They are only capable of nullifying the possibilities of effectively using the means provided for this by the U.N. Charter.

Take, for instance, the notorious "U.N. Operation in Korea", which the reactionary international jurists have lauded as a "successful experience in collective security".¹ Actually, this ``operation'' was a typical example of imperialist aggression carried out under the cover of the United Nations, and some well-informed Americans themselves, incidentally, do not deny it. Stephen S. Goodspeed, for one, has written that the United States launched operations "before the Council had called for military support. ... What followed (the Council's decision.---G.M.} was an improvisation of forces nominally under United Nations command but actually responsible to the military and civilian policy-makers in the United States who found it convenient to employ the United Nations as a shield for its Korean policy.''^^2^^

This ``operation'' and the colonial adventures undertaken by the United States and its allies under the U.N. flag (in the Congo, for instance), as well as many other demonstrations of strength policy and the imposition upon the United Nations of illegal decisions with the aid of the "voting machine", seriously impaired the Organisation's authority and efficiency.

~^^1^^ See Ross N. Berkes, "NATO and the United Nations", Current History, No. 229, 1960, p. 160.

~^^2^^ Stephen S. Goodspeed, The Nature and Function of International Organisation, pp. 224, 605.

``The mental image of Korea as a U.N. 'police action', rather than an American-led war of alliance," William R. Frye wrote in A United Nations Peace Force (p. 57), "survived reasonably well.''

And Robert M. Maclver, in The Nations and the United Nations (p. 89), wrote: "The Korean struggle was not fought out in accordance with these provisions (the U.N. Charter.---G.M.). By a fortunate series of chances (``fortunate'' for the interventionists.---G.M.) the U.N. flag flew at the head of the expedition, but the direction of the war was not really controlled by the United Nations. It was an action commanded and in effect directed by the United States, and the more momentous decisions taken during the war were made by that country.''

When the correlation of forces in the U.N. changed, the "voting machine" fell apart. This has produced a good effect in many respects. As we have said above, the U.N. has adopted a number of useful decisions on peace-keeping. Attempts to use the U.N. to aggravate world tensions now meet with firm resistance. One illustrative example is the so-called financial crisis,^^1^^ which testified rather clearly to the changes taking place in the United Nations and showed that the new correlation of forces in the Organisation made it impossible for the imperialist bloc to force its decisions upon it.

To win over the majority in the U.N. and isolate the Soviet Union and other socialist countries, the United States, supported by the states associated with it in aggressive blocs, raised the question of the United Nations' so-called financial crisis. Violating the U.N. Charter, they demanded that the Soviet Union and certain other countries should pay their ``arrears'' for the maintenance of the U.N. "emergency armed forces" in the Middle East and the Congo. Then, in November 1962, the United States tried to exert pressure on the Afro-Asian countries by announcing that it would stop contributing to the U.N. technical aid programme. This was downright blackmail to force the neutralist countries to back the United States' provocative action.

The Soviet Union vigorously opposed the efforts made by the United States and its allies to make peace-loving countries pay for the crimes perpetrated by the colonialists and aggressors. In its statement of March 21, 1964, the Soviet Government said: "We hold---and we are convinced that this is in the interest of all states wishing to live in peace and security---that the responsibility for the elimination of the consequences of aggression, including the financial, must be borne by those who committed aggressive acts. Any other approach would merely encourage aggressors.

That is precisely the main reason why the Soviet Union does not and will not share in the payment of expenses for the U.N. operations in the Middle East and the Congo.''

Most of the U.N. members did not side with the imperialist group. Having provoked the "financial crisis", the United States and the small group of its NATO allies found themselves in isolation, opposed by all the peace-loving forces in the United Nations.

U.S. diplomacy is now busy seeking new ways of preserving its position in the U.N. and using this position to prevent the implementation of any resolutions adopted by the Organisation which do not suit the United States.

There are plans for subjecting the General Assembly to U.S. influence with the aid of new voting methods. For a long time, ever since the appearance of the first signs of the"changing correlation of forces in the U.N., the West has been insisting on the need to introduce the so-called "weighted voting" system in the Assembly, that is, a system taking into consideration the country's financial contribution to the U.N., the size of population or national income, the size of territory, etc.

To study the possible effect of the introduction of the "weighted voting" system in the General Assembly, the U.S. "State Department set up a special working group under Harlan Cleveland, Assistant Secretary for International Organisations Affairs, in 1963. Its investigations revealed that this new system of voting would not be able to halt the decline of U.S. authority in the General Assembly.^^1^^

Having convinced itself that the "weighted voting" system was unacceptable to the United Nations, the State Department set out to plan the establishment of so-called special committees to replace the General Assembly. The composition of these committees, according to the American plan, would be such as to give the Western countries, notably the United States, a guaranteed majority. The implementation of this and other similar plans would help Western diplom-

~^^1^^ See G. Morozov and Y. Pchelintsev, "Behind the U.N. 'Financial Crisis'," International Affairs, No. 6, 1964, pp. 23-29; "Memorandum of the Government of the U.S.S.R. Concerning the Procedure for Financing the Operations of the U.N. Emergency Armed Force in the Middle East and U.N. Operations in the Congo", International Affairs, No. 5, 1962, pp. 119-21; "On the Financial Position of the United Nations", International Affairs, No. 10, 1964, pp. 114-18; Statement by the U.S.S.R. Permanent Mission in the U.N. of November 7, 1962, Pravda, Nov. 10, 1964.

~^^1^^ Fifteen different "weighted voting" systems were tested with the aid of computers to see what results they would have produced in 178 key votes taken by the U.N. between 1954 and 1961. They proved to be lamentable for the U.S. As far as the socialist countries were concerned, the vote doubled. (See Lincoln P. Bloomfield, The U.N. at Twenty and After, Headline Series, 1965, pp. 49-50.)

acy establish efficient control over the anti-colonial and anti-imperialist majority which has formed in the U.N. in recent years.

At the same time, taking advantage of the states' interest in peace, the official and unofficial representatives of the imperialist countries are trying to push through their plan for U.N. ``peace-keeping'' operations. They propose the establishment of a permanent armed force which will not include contingents from the socialist countries and will not be subordinated to the Security Council. The United States has circularised a memorandum in the United Nations concerning changes in the system and methods of organising and financing U.N. peace-keeping operations with the aid of armed force. This memorandum proposes that the specific powers granted to the Security Council to maintain international peace and security should be handed over not to the General Assembly, as formerly suggested, but to a special exclusive committee composed mainly of "large financial contributors to the United Nations", that is, chiefly of imperialist powers.

In its memorandum of July 10, 1964, the Soviet Government, citing U.N. Charter principles, pointed out that the employment of the U.N. armed forces was an extreme measure and that they could be used only if all other means had been exhausted. Attention should be concentrated on the peaceful means of settling disputes. Decisions on the establishment and employment of the U.N. armed forces, as well as on the financing of U.N. operations, could and should be taken exclusively by the Security Council. In the present conditions socialist, Western and neutralist states should participate in the U.N. armed forces with their contingents and in the U.N. command. The Soviet Government also pointed out that the participation of the permanent members of the Security Council in these contingents is inadvisable.

And so while the United States and its allies have advanced plans which would entail the revision of the Charter and turn the U.N. into an instrument of their imperialist policy, the Soviet Union is in favour of increasing the U.N.'s efficiency in accordance with its Charter, implementing the principles of peaceful coexistence, consolidating its authority and prestige as an organisation of equal co-operation in the interests of peace and peoples' welfare.

4. CERTAIN CONCEPTIONS WHICH DISTORT THE LEGAL NATURE OF THE U.N.

There are a number of conceptions distorting the legal nature of the United Nations in the West. The first to take shape was the one regarding the U.N. as the prototype of a "world government" and "suprastate formation".^^1^^ This conception was widespread in the initial years of its existence, for it gave rise to hopes that the Western powers would dominate in the U.N. thanks to their "mechanical majority". One also often met with claims that the U.N. was a federative or confederative organisation.''^^2^^

The major changes in the world robbed this idea of some of its popularity.^^3^^

A characteristic feature of the legal writings of the last few years is the absence of propaganda on the United Nations' suprastate nature. There is no "real pressure to amend the Charter so as to give it a closer resemblance to a system of world government", Geoffrey L. Goodwin writes.^^4^^ Lack of interest in such conceptions, he says, is explained by their utter unfeasibility. The United Nations, writes Leland M. Goodrich, an American jurist, "is not a world state".^^5^^ This view is shared by Stephen S. Goodspeed. The U.N., he says, "is not a superstate, and it does not encompass a world government. By no means does it represent a federal type of government.''^^6^^ D. W. Bowett says almost the same thing: "The Organisation created by the Charter is not a `superstate' or anything resembling a world govern-

~^^1^^ See, for instance, Norman Bentwich, From Geneva to San Francisco, London, 1946, p. 79.

~^^2^^ Cf., for instance, Hersch Lauterpacht's views (L. Oppenheim, International Law, Vol. I, London, 1955). The confederative nature of the U.N. is also mentioned in The United Nations Secretariat, Carnegie Endowment for International Peace, New York, 1950, p. 13.

~^^3^^ See, for instance, S. Clark and L. Soha, World Peace Through World Law, Cambridge, 1960. Also William R. Frye's A United Nations Peace Force (p. 103) in which he urges making the U.N. "a world government" and giving it "a monopoly of military might''.

~^^4^^ Geoffrey L. Goodwin, Britain and the United Nations, London, 1957, pp. 439-40.

~^^5^^ L. Goodrich, The United Nations, New York, 1959, p. 29.

~^^6^^ S. Goodspeed, The Nature and Function of International Organisation, New York, 1959, p. 107.

ment.''^^1^^ Lincoln P. Bloomfield, another American international jurist, thinks so too.^^2^^

These admissions testify to certain changes in the bourgeois international law doctrine. The reasons for dropping the idea of turning the U.N. into a "world government" are now obvious. "On any realistic calculation the relation of forces in the United Nations has clearly moved to the Soviet advantage," Geoffrey Goodwin wrote back in 1961.^^3^^ One of the reasons for the transformation of the bourgeois doctrine is the growing influence in the United Nations of the Soviet Union and other socialist countries and the newlyindependent neutralist states, on the one hand, and the weakening position of the imperialist bloc, on the other.

The United Nations is indeed devoid of all traits inherent in a state as a sovereign formation. It has no sovereign rights or sovereign will, no right to territorial supremacy, no right to legislate or rule over the citizens of its member states.

Seeking to justify its policy of dictation and its abuses in the United Nations, U.S. diplomacy replied to the Soviet proposal to improve the U.N. executive organs by stepping up its propaganda of the idea that the U.N. is by nature a parliamentary organisation. Adlai E. Stevenson, the late U.S. representative in the United Nations, told the Senate Committee on Foreign Relations that the U.N. was based on Western parliamentary traditions and that to destroy this property was to destroy the very structure of the Organisation. Clearly indulging in wishful thinking, he thus tried to attribute to the U.N. the traits of bourgeois parliamentarism so dear to bourgeois politicians.

Bourgeois jurists are trying theoretically to justify this interpretation of the legal nature of the U.N. too. Take Robert M. Maclver, for instance. "Now that it (the United Nations.---G.M.) is becoming inclusive of more and more of the nations of the world," he wrote, "it is nearer than before to becoming the parliament of the peoples.''^^4^^ Sidney

~^^1^^ D. Bowett, The Law of International Institutions, London, 1963, p. 22.

~^^2^^ L. Bloomfield, The United Nations and U.S. Foreign Policy, Boston-Toronto, 1960, p. 18.

~^^3^^ G. Goodwin, "The Expanding United Nations", International Affairs, No. 2, 1961, p. 171.

~^^4^^ Robert M. Maclver, The Nations and the United Nations, pp. 21, 76.

Bailey sees parliamentary traits in U.N. procedures.^^1^^ John G. Hadwen of Canada and Johan Kaufmann of Holland cite bourgeois parliamentary traditions in justifying the unlawful and unseemly methods employed by Western diplomacy to get votes. "The U.N. is no better and no worse in this respect than, for example, the national parliaments of member governments," they write.^^2^^

Dag Hammarskjold, the late U.N. Secretary-General, drew practical conclusions from the supposedly parliamentary nature of the U.N. in his report to the Fifteenth General Assembly. The increase in the number of U.N. members, the report said, necessitated "improving the methods applied in the parliamentary institutions of the Organisation".^^3^^ This meant revision of the U.N. Charter, which would allow the General Committee of the General Assembly to conduct the work of the Assembly and entrust the U.N. Secretary-General with wider executive tasks.^^4^^

Hammarskjold's report also sought to substantiate the conception of "preventive diplomacy" created on the basis of experience gained in the course of "U.N. operations" in Korea and the Congo. The idea is that the U.N. should be excluded from the most important sphere in which it operated---that of ensuring peaceful coexistence. "With its constitution and structure, it is extremely difficult for the United Nations to exercise an influence on problems which are clearly and definitely within the orbit of present-day conflicts between power blocs", the report said.^^5^^ It was necessary, it went on, to concentrate U.N. activities on matters concerning neutralist countries, notably in cases where the expulsion of the colonialists had created a "power vacuum". This was to be the U.N.'s "preventive diplomacy". It was thus a question of justifying the use of the Organisation as a weapon of the colonialists and the imperialists who could railroad through the decisions they wanted with the aid of "parliamentary methods''.

~^^1^^ See Sidney D. Bailey, The General Assembly of the United Nations (A Study of Procedure and Practice), New York, 1960, p. 2.

~^^2^^ John G. Hadwen and Johan Kaufmann, How United Nations Decisions Arc Made, Sytholt-Leyden, 1961, p. 35.

~^^3^^ "Introduction to the Fifteenth Annual Report of the SecretaryGeneral to the General Assembly, Aug. 31, 1960", United Nations Review, No. 4, 1960, p. 22.

~^^4^^ Ibid., p. 24.

~^^5^^ Ibid.

The concept of "preventive diplomacy" was thought up to help the reactionary imperialist quarters make use of the U.N. to suppress the national liberation movements in the colonies and dependencies. To make this U.N. ``activity'' effective, the Secretary-General's report said, the U.N. Secretariat should be reinforced with military experts and be allowed to use armed force to deal with any situation which the Organisation might suddenly have to face.^^1^^

The concept of "preventive diplomacy", A. M. James writes, means giving the Secretary-General the right to "act without guidance from the General Assembly or trie Security Council should this appear to him necessary to help filling any vacuum that might appear in the systems which the Charter and traditional diplomacy provide for the safeguarding of peace" (italics mine.---G.M.).^^2^^

Such are the far-reaching practical conclusions drawn from the distorted interpretation of the legal nature of the United Nations. The above-mentioned conception is obviously invalid. There are no grounds whatever for attributing to the U.N. the properties of bourgeois parliaments. The U.N. is an international forum set up to settle issues in such a manner that the lawful interests and rights of states are not jeopardised.

The traits inherent in a state or suprastate organisation are alien to the nature of the United Nations. As we have already said, it is an organisation of sovereign states created to promote co-operation in the interests of peace and its activities can be based only on respect for the sovereignty and interests of all member states.

0. V. Bogdanov, LL. D.

THE DISARMAMENT PROBLEM IN INTERNATIONAL LAW

Disarmament is one of the key problems that have intruded themselves upon international law.

It is a problem that plays a prominent role in the life of the nations. Its solution holds out bright prospects for mankind, for it will eliminate or restrict the material possibilities of conducting wars and deliver human society from the danger of nuclear catastrophe. That is why the idea of disarmament has gripped the minds of peace-lovers everywhere and has become the practical aim millions of people of good will are striving to achieve.

Does this exert any influence upon international law? The only answer is Yes. The problem of disarmament has taken firm root in international law. This of course should not be taken to mean that it is purely, or largely, a legal problem. Disarmament is a many-faceted problem---it has its political, economic, technical, military and legal aspects. Its legal aspect cannot be denied if only because a new international law act---a disarmament treaty---is in the process of elaboration, and international jurists are destined to play quite a big part in it.

The transformation of the disarmament problem from a political problem into one of international law as well began earlier this century. In the 19th century disarmament was not an urgent foreign policy problem and still less a problem of international law. The situation underwent a substantial change only after the First World War which showed more clearly than ever the tragic results of the arms race.

This object lesson stimulated the struggle against the arms race. The world resounded with demands for an end to intense war preparations, for which mankind had paid so dearly.

~^^1^^ See "Introduction to the Fifteenth Annual Report of the Secretary-General to the General Assembly, Aug. 31, 1960", United Nations Review, No. 4, 1960, pp. 23-24.

~^^2^^ A. M. James, The Role of the Secretary-General of the United Nations in International Relations, No. 12, 1959.

The struggle for disarmament was vastly stimulated by the appearance of the Soviet socialist state. It is in the nature of a socialist state to strive to abolish the weapons of war. Under the socialist system there are no and can be no groups interested in producing and building up arms. The tendency typical of the socialist system is to direct the economic resources towards raising material standards, towards improving people's welfare, and not towards squandering national wealth on the manufacture of arms.

This is the solid social base from which socialism proceeds in its desire to put an end to the arms race and the accumulation of the means of destruction. It found its expression in the very first foreign policy act of the Soviet state---in Lenin's Decree on Peace which urged the governments of the world to deliver mankind from the horrors of war and its consequences. The Soviet state exerted---and continues to exert---every effort to achieve this aim. The Soviet Union has always held that the best way to achieve this is to abolish the weapons of war. That is why one of the first steps it took in the international arena was to propose the solution of the disarmament problem. Such proposals were made at the Genoa and Moscow conferences in 1922. This marked the beginning of a purposeful struggle for disarmament which became one of the basic features distinguishing Soviet foreign policy.

The situation arising after the First World War as a result of the above-mentioned factors compelled the victorious powers to make the first steps towards recognising the incompatibility of the arms race and peace.

The Covenant of the League of Nations included clauses stressing the need for the members to reduce national armaments and armed forces. Para. 1 of Art. 8 stated: "The members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations." It was also stipulated that at least every ten years the League's Council, "taking account of the geographical situation and circumstances of each state, shall formulate plans for such reduction for the consideration and action of the several governments" (Para. 2, Art. 8). The level of armaments thus decided upon and adopted by the League members could not be exceeded without the consent to inter-

change "full and frank information" as to the scale of their armaments and the condition of their war industries (Para. 6, Art. 8).

It is not difficult to see that these clauses of the League's Covenant were rather ambiguous. Their effect was further weakened by the fact that the Covenant did not bind the members to refrain from the use of force in their international relations and did not prohibit aggressive wars. Consequently, there was no solid legal basis for implementing disarmament measures. Actually, these clauses did nothing to prevent the intensification of the arms race and the preparations for the Second World War by nazi Germany and other aggressive states.

Suffice it to recall in this connection the failure of the World Disarmament Conference of 1932-34 and the meetings of its Preparatory Committee. The Soviet Union proposed effective and urgent disarmament measures in the committee and at the conference. Especially noteworthy was the draft Convention on General, Complete and Immediate Disarmament it submitted in 1928. This was the first official proposal in the history of international relations completely to abolish armaments.

The Western countries came to the conference with such a vague and inconcrete programme that it was impossible to draw up any agreements on disarmament proper. Under pressure from Germany, then preparing to unleash aggression, the conference ultimately adopted a thesis on " equality in the sphere of armaments", which paved the way to the legalisation of war preparations by aggressive states. The conference thus not only did not contribute to disarmament but, on the contrary, helped intensify the arms race. The main reason was the Western powers' refusal to disarm. A negative role was also played by the absence of appropriate clauses in the League's Covenant, making it easy to sabotage the disarmament effort.

After the Second World War the struggle for disarmament flared up with renewed vigour, in conditions very much different from those of the past. The main change was the considerable consolidation of the forces standing for peace and international security. The peoples who had gone through the difficulties and suffered privations in the world war joined energetically in the struggle to create effective guarantees against wars. The leading role in this

struggle was played by the Soviet Union and the other states of the socialist community. Their initiative decisively influenced the discussion of the disarmament and other urgent international issues and became a major factor in the development of present-day international law.

The states solemnly reaffirmed the illegality of aggressive wars, proclaiming the preparation and unleashing of war to be a grave international crime. This found its expression in the new international security organisation---the United Nations.

The way the disarmament issue is dealt with in the U.N. Charter is different too. Its clauses on this problem differ substantially from those of the League Covenant both in content and spirit. While the Covenant clauses were highflown and pretentious, those of the U.N. Charter are terse and businesslike.

Speaking of the states' co-operation in the maintenance of peace, the U.N. Charter refers to disarmament as one of the basic means of achieving this aim.^^1^^

What particularly distinguishes the Charter clauses on disarmament is that they closely bind it with the over-all tasks of preserving peace. This is sufficiently clearly evidenced by the fact that disarmament is mentioned as one of the main aims of the General Assembly and the Security Council in the maintenance of international peace.

The Charter entrusts the General Assembly with considering the general principles governing disarmament and making recommendations with regard to such principles to the member states of the U.N. and the Security Council (Para. 1, Art. 11). The Charter charges the Security Council with the responsibility for formulating plans to be submitted

~^^1^^ It is characteristic of certain Western authors to minimise the significance of the U.N. Charter clauses on disarmament. This trend is to be seen, for instance, in a well-known work by Leland Goodrich and Edward Hambro, who thus formulated the essence of the system provided for by the U.N. Charter: "If one should attempt to define the three pillars of this system, they should be: 'Security, Pacific Settlement and Welfare.' Disarmament is given a very subordinate position" (L. Goodrich and E. Hambro, Charter of the United Nations. Commentary and Documents, Boston, 1946, p. 97).

In other words, they actually exclude disarmament from the purposes and principles of the U.N. Charter. As we shall show below, this stand is wrong although formally it is in a way justified inasmuch as disarmament is not specifically mentioned in the enumeration of the U.N. purposes and principles in Chapter I of the Charter.

to the U.N. members for the establishment of a system for the regulation of armaments (Art. 26).

Mention should also be made of Art. 47 concerning the functions of the Military Staff Committee which must " advise and assist the Security Council on all questions relating to the Security Council's military requirements", including the "regulation of armaments, and possible disarmament''.

Here is how concrete disarmament plans are elaborated. The elaboration of the principles which are to underlie the disarmament programme is provided for by the General Assembly's terms of reference. The task of the Security Council is to draw up concrete disarmament plans with due account of these principles and then submit them to the U.N. members for their consideration; the latter are entitled by the Charter to pass or reject such plans.

In other words, the Charter provides for agreements on disarmament between sovereign U.N. member states. It thus respects the principle of sovereignty, stressing that important problems like disarmament should be solved directly by agreement between the countries concerned.

True, some jurists challenge the advisability of such procedure and even allege that the disarmament principles in the Charter are ``weak'' because it does not stipulate that the plans made by the U.N. organs of disarmament are obligatory for the members of the Organisation. Norman Bentwich and Andrew Martin, British commentators of the Charter, write, for instance: "The Charter confers no authority upon the United Nations to impose upon its members a system for disarmament or even for the regulation of armaments.''^^1^^ In this they are inclined to see one of the shortcomings of the Charter. In fact, this merely helps strengthen the decisions reached on disarmament. Moreover, it eliminates the loop-holes allowing one group of states to railroad decisions through to the detriment of other countries.

Articles 11, 26 and 47 of the Charter all speak of " regulation of armaments". The content of this conception deserves a special analysis. Articles 11 and 47 refer both to ``disarmament'' and "regulation of armaments". Article 26 does not specifically mention ``disarmament'', but its meaning

~^^1^^ Norman Bentwich and Andrew Martin, A Commentary on the Charter of the United Nations, London, 1951, p. 04.

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makes it clear that "regulation of armaments", to which it refers, includes reduction of armaments. Moreover, it defines in general form the approximate scale of such reduction, stressing the need of "the least diversion for armaments of the world's human and economic resources". This formulation clearly shows that what the Charter means is a considerable reduction of armaments.

The fact that the Charter does not precisely define " regulation of armaments" has nevertheless given certain Western jurists cause to claim that this conception does not stipulate the reduction of armaments. As a rule they completely ignore the fact that Article 11 mentions disarmament before it speaks of the regulation of armaments. One is therefore surprised by the following statement by Bentwich and Martin: "Where the Covenant spoke of the `reduction', the Charter speaks of the 'regulation of armaments'.''^^1^^ The authors seem not to notice the paragraphs of Articles 11 and 47 referring to disarmament.

In the sense given it by the U.N. Charter, "regulation of armaments" should be interpreted as a conception presupposing a system of arms restriction and reduction, that is, what in international relations is usually referred to as partial disarmament. The question in this connection is to decide on the meaning of the term ``disarmament'', mentioned in Articles 11 and 47.

Generally speaking, ``disarmament'' in its present-day sense is sometimes used to denote partial disarmament and sometimes, complete abolition of armaments. The U.N. Charter does not specify in which of these two senses it used the term. But the very fact that it draws a line between ``disarmament'' and "regulation of armaments" (which, as we have shown, means reduction and restriction of armaments) leads one to interpret ``disarmament'' in this particular case in its broadest sense, which means the total abolition of armaments.

The term ``disarmament'' is mentioned in two articles--- 11 and 47. Article 11 says the General Assembly may consider "the principles governing disarmament and the regulation of armaments". In the light of the interpretation of ``disarmament'' given above, this means it is a question of

principles governing not only partial disarmament but total disarmament too.

In Article 47 ``disarmament'' is mentioned among the issues on which the Military Staff Committee is to advise and assist the Security Council. This means that the Committee is empowered to advise on questions relating to the total abolition of armaments too.

It follows, therefore, that the U.N. Charter raises the question of complete disarmament as a possibility in the future and that the immediate task it sets is to draw up plans for the "regulation of armaments", that is, partial disarmament (see Article 26 of the Charter). In this connection it should be stressed that the Charter proceeds from the assumption that the process of disarmament should be brought to its conclusion.

The U.N. Charter closely ties disarmament with such very important principles essential for the maintenance of peace as the ones binding U.N. members to refrain from the threat or use of force in international relations, to settle international disputes by peaceful means, etc. In other words, disarmament supplements the prohibition of aggressive wars and the obligations assumed by states to settle disputes only peacefully. Disarmament is thus destined to play the role of a material guarantee that the renunciation by the states of the use of force in their international relations will be observed.

That is why the claims made by some Western jurists that the U.N. Charter clauses on disarmament are weaker than those in the Covenant of the League of Nations are not convincing. That is the view of Hersch Lauterpacht, Georg Schwarzenberger and certain other authors. The chief and formal argument they advance is that the U.N. Charter clauses on disarmament are terse.^^1^^ This argument covers the tendency, typical of all these authors, to minimise the importance of the prohibition of aggressive wars and of all the instruments and principles of international law, including disarmament, bound with it.

In the more than twenty years the U.N. has been in existence the Charter clauses on disarmament have time and

~^^1^^ Ibid. An almost similar view is held by Leland M. Goodrich (see The United Nations, New York, 1959, p. 218).

~^^1^^ L. Oppenheim, International Law, Vol. II, 7th ed., p. 127; G. Schwarzenberger, A Manual of International Law, Vol. I, London, I960, p. 312.

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again been clarified in General Assembly resolutions which have played a big role in the development of these clauses.

The General Assembly has concentrated its attention on disarmament from the very first. A list of its resolutions on this problem would take up too much space, so we shall confine ourselves to only a few, such as resolutions 41 (I), 502 (VI) and 808 (IX), which regard disarmament as one of the main principles of the U.N. Charter.

These resolutions offer much valuable material for the interpretation of the U.N. clauses on disarmament. Especially important is Resolution 1378 which was unanimously adopted by the Fourteenth General Assembly on November 20, 1959. It was drawn up jointly by the Soviet Union and the United States, and---and that is an important criterion of its authoritativeness---they were later joined as coauthors by all the other U.N. members.

What distinguished this resolution was the unanimous endorsement of the idea of general and complete disarmament by all U.N. members. "The General Assembly," it said, "moved by the desire to save the present and succeeding generations from the danger of a new and disastrous war, striving to put an end completely and for ever to the armaments race ... considering that the question of general and complete disarmament is the most important one facing the world today, calls upon governments to make every effort to achieve a constructive solution of this problem.''!

The adoption of such a document by the U.N. was important not only from a political viewpoint. It was of legal significance too, for it paved the way to securing the principle of general and complete disarmament in international law.

The Soviet initiative exerted a vast influence on the subsequent discussion of the disarmament issue in the United Nations. It was also thanks to this initiative that further documents on disarmament were drawn up.

One was the Soviet-American statement of agreed principles for disarmament negotiations (this joint statement was submitted to and unanimously adopted by the Sixteenth General Assembly). "Reaffirming their adherence to all the

provisions of the General Assembly Resolution 1378 (XIV) of 20 November 1959," it said, the Soviet Union and the United States "call upon other states to co-operate in reaching early agreement on general and complete disarmament in a peaceful world.''^^1^^ This joint Soviet-American statement actually meant reaffirmation by the governments of these two countries of their obligation to implement Resolution 1378 (XIV).

It is noteworthy that all the General Assembly resolutions on disarmament adopted after the Fourteenth Session reaffirmed the principles enunciated in Resolution 1378 and stressed the need to implement them. Here are some examples.

Resolution 1722, adopted without a vote by the Sixteenth General Assembly on December 20, 1961, referred to Resolution 1378 and stressed that the General Assembly was "deeply concerned that the objective of that resolution be achieved as early as possible''.

Resolution 1837 on the conversion to peaceful needs of the resources released by disarmament, unanimously adopted by the Seventeenth General Assembly, called on the governments to multiply their efforts to achieve general and complete disarmament with effective international control as soon as possible.

The disarmament resolution unanimously adopted by the Eighteenth General Assembly on November 27, 1963, also urged the states to "resume with energy and determination" their "negotiations on general and complete disarmament''.

Resolution 2030 (XX), adopted on November 29, 1965, said it was imperative "to exert further efforts towards reaching agreement on general and complete disarmament with effective international control, with a view to securing lasting peace in the world''.

It should especially be noted that the aims of Resolution 1378 were reaffirmed in such an important international law act as the 1963 Moscow Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water. The signatories proclaimed in its preamble "as their principal aim the speediest possible achievement of an agree-

~^^1^^ Resolutions Adopted by the General Assembly During Its Fourteenth Session, New York, 1960, p. 3.

its

~^^1^^ Joint Statement by the United States and the U.S.S.R. of Agreed Principles for Disarmament Negotiations (U.N. Document A/4879, September 20, 1961).

ment on general and complete disarmament under strict international control in accordance with the objectives of the United Nations, which would put an end to the armaments race". This statement in a treaty undersigned by more than 100 states clearly shows that it is now an international law obligation of the states to help achieve general and complete disarmament.^^1^^

What are the legal consequences of all the above-- mentioned facts? First and foremost it is the recognition of the fact that the principle of general and complete disarmament is now in the process of formation in international law.² This process represents the progressive development of the above-mentioned U.N. Charter clauses on disarmament, and this, without doubt, greatly enriches present-day international law.

In the light of the interpretation above of Articles 11, 26 and 47 of the U.N. Charter, there is no doubt that the idea of complete disarmament in no way contradicts the Charter. What is more, the Charter in its general approach to the methods of securing universal peace proceeds from the premise that the prohibition of the use of force in international relations must be followed by the states' renunciation of the material means of war conduct. The prospect

of complete disarmament outlined in the U.N. Charter articles mentioned above would effectively help the U.N. achieve its principal purpose: "To save succeeding generations from the scourge of war.''

The question is how far the process of formation of this principle has advanced.

In our opinion, the principle of general and complete disarmament has yet to establish itself completely in international law. There is no rule in international law obliging the states to renounce and scrap armaments. Legally, they still have the right to have armies and armaments. The principle of general and complete disarmament has not advanced to a point abolishing this right. Nevertheless, it already imposes definite legal responsibilities upon the states. What is the concrete content of these responsibilities?

So far only the first step has been made towards the establishment of this principle in international law---it is in the initial stage of its formation. This stage envisages the legally formulated recognition of the need for general and complete disarmament and assumption by the states of the obligation to draw up as quickly as possible a document which would clearly and concretely stipulate the date and manner of the abolition of armed forces and armaments in all countries. Such a document can only be an international treaty on general and complete disarmament. In other words, the states are now bound by an international law obligation to take the necessary measures for an early conclusion of an international treaty on general and complete disarmament.

The conclusion of the treaty (let us call it the second stage) will crown the formation of the principle of general and complete disarmament. Such a treaty will establish an international law rule forbidding states to have armies and armaments. Preservation of the means of war conduct will thus be prohibited and proclaimed an international crime, as has been done with aggressive war.

Such in general is the process of and outlook for the establishment of the disarmament principle in international law. It must be stressed that the principle already imposes a definite legal obligation---to conclude a treaty on the elimination of armaments as quickly as possible.

Why, one may ask, is it necessary to conclude an appropriate international treaty to implement the principle of

~^^1^^ The objections against this thesis which one meets in Western legal writings are groundless. For instance, Allan Gotlieb, citing the preamble of the Moscow Treaty in his Disarmament and International Law (19G5, p. 17), writes: "The preamble restates what is clearly one of the foremost objectives of the parties adhering to it. But the commitment of the major powers to this goal, firm as it is, cannot be described as a legal obligation arising from a treaty." He thus disputes the legal force of the preamble of the Moscow Treaty, without actually adducing any arguments in defence of his statement. For the preamble of any treaty is just as binding upon its signatories as the rest of the text. It cannot be otherwise, unless one wants arbitrarily to ignore international law. Any principle secured in any part of an international treaty has indisputable legal force and must be observed by the parties adhering to it.

~^^2^^ For details about the principle of disarmament in international law see G. I. Tunkin, Theoretical Problems of International Law, pp. 54-59; International Law, edited by F. I. Kozhevnikov, pp. 596-98; R. L. Bobrov, Present-day International Law. Objective Prerequisites and Social Purposes, Leningrad, 1962, p. 104; O. V. Bogdanov, General and Complete Disarmament. International Law Problems, pp. 101-45; S. A. Malinin, "Legal Fundamentals of Disarmament", Leningrad, 1966, pp. 6-34, Science of Law, No. 2, 1963, pp. 151-52; G. I. Morozov, The United Nations Organisation (Basic International Law Aspects of Its Structure and Activities'), Moscow, 1962, pp. 215-16.

disarmament? Other principles of international law do not always require a treaty to secure their implementation and, in any case, it is not every principle in operation that is secured by a special international treaty. The answer to this question should be sought in the specific nature of the disarmament process.

The process of disarmament is a chain of complex material and technical measures which can be carried out only on the basis of an agreed plan. In practice it is done as follows. After the states have agreed to disarmament measures (in the present conditions, such an agreement has already been reached in principle), the thing is to work out detailed disarmament plans, an appropriate control system, etc. This stage of the preparation of practical disarmament measures is possible only after negotiation and agreement on all the questions that arise. As a result, the states must elaborate a detailed plan clearly establishing the date and order in which the appropriate measures are implemented.

The need for complete agreement among the states on detailed disarmament plans is dictated not only by the technical complexity of the process of disarmament but by the fact that disarmament affects the vital interests of all states and is closely interwoven with their most important sovereign rights ensuring their protection against attacks from without. In limiting or completely abolishing its military potential, a state naturally takes the path which would preclude the possibility of its independence or security being imposed upon. And this is possible only if the states first agree on all practical steps in the sphere of disarmament.

The only practical form of such agreement is a comprehensive disarmament treaty laying down (and, what is more, very concretely and with fixed dates) the states' obligation to take practical steps in the sphere of disarmament. This in fact applies to any disarmament programme and particularly to complete disarmament.

A comprehensive disarmament programme can be carried out only with the aid of a multilateral and detailed international treaty. The possibility is not excluded, of course, of states taking unilateral steps to disarm as an act of good will. We may recall in this connection the Soviet Union's initiative in reducing its armed forces. This was meant as an example to be followed by other states. But it in no way

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replaced the agreed and systematic disarmament measures on a wide international scale; it only served to promote them. The same may be said of the measures undertaken in recent years on the basis of the policy of "reciprocal example" (e.g., the Soviet-American agreement not to orbit spacecraft with nuclear weapons, the agreement reached by the Soviet Union, the United States and Britain to reduce the output of fissile materials for military purposes). Nor do such measures replace agreed disarmament actions; they merely serve to create favourable conditions for them.

Unilateral disarmament measures or "reciprocal example" steps are thus practically taken to facilitate comprehensive international agreements on disarmament.

As we have said above, it is both the moral and legal duty of the states to help draw up a disarmament treaty as early as possible. How do they discharge this duty? What have they done and what remains to be done to conclude a treaty on general and complete disarmament?

To answer this question we would have to analyse all the disarmament discussions in recent years, and that naturally cannot be done in one article. Broadly speaking, no treaty on general and complete disarmament has yet been drawn up. The discussions on the subject have clearly revealed two lines---the line of active struggle for the conclusion of such a treaty and the line of stubborn resistance to it. The first line is that of the Soviet Union and other socialist states, as well as of the neutralist states; the second is characteristic of the Western countries' approach to the problem.

Let us briefly illustrate this with the two concrete documents now playing an essential part in the disarmament discussions: the Soviet draft treaty on general and complete disarmament^^1^^ and the U.S. outline of basic provisions of a treaty on general and complete disarmament.^^2^^

The Soviet draft treaty on general and complete disarmament is a radical plan for the stage-by-stage abolition of all weapons of war under strict control. It provides for

~^^1^^ See Fifty Years of the U.S.S.R.'s Struggle for Disarmament. Collection of Documents, Moscow, 1967, pp. 481-506, and U.N. Disarmament Committee document ENDC (2) REV. 1, November 1962.

~^^2^^ See U.N. Disarmament Committee document ENDC/30, April 18, 1962, and The American Journal of International Law, No. 3, 1962, Supplement, pp. 899-925.

three stages, each of definite duration, and the total duration of the process is set at four-five years.

The Soviet draft proposes to effect complete disarmament in strict and logical sequence. In the first place it is proposed to eliminate the possibility of a nuclear attack by one state on another by destroying the means of delivering nuclear weapons. The second stage provides for the destruction of all weapons of mass extermination and, consequently, the elimination of the threat of destructive war. The third stage will bring about the abolition of all armaments and armed forces capable of waging war and create the conditions for building a world without wars.

The draft covers, as it were, three aspects of the process of disarmament: 1) abolition of all armaments, armies and military institutions---this is what is usually called practical disarmament; 2) establishment of strict and effective international control over the implementation of the treaty on general and complete disarmament, and 3) establishment of an effective mechanism preventing states from restoring their military potential after the implementation of the programme of general and complete disarmament. The Soviet draft clearly outlines the sequence and interaction of all three aspects of the process of disarmament, and this gives it the character of a well-thought-out, highly concrete and practically effective document.

The American draft of basic provisions of a treaty on general and complete disarmament looks entirely different. Frankly speaking, its very name implies that it is a rough copy that lays no claim to covering the disarmament programme fully. And yet for several years this document has in practice been the only, and invariable, expression of the attitude not only of the United States but of all other Western countries towards general and complete disarmament.

Speaking of the most specific traits of the American draft, one must first and foremost mention such points as the incompleteness of the process of disarmament (it does not clearly fix the date of the abolition of armaments or clearly outline appropriate measures), the absence of clear-cut provisions for the destruction of the means of mass extermination, especially of nuclear weapons (their destruction is not specifically mentioned), and the laying down of the principle of "first control and then disarmament" as a pre-con-

dition (that is, proposing in effect a system of control before disarmament or, in other words, control over the process of disarmament).

These are not the only shortcomings of the American draft but they suffice to show that it is incapable of ensuring the implementation of the above-mentioned U.N. resolutions on disarmament. It is especially far removed from the agreed principles for disarmament negotiations approved by the Sixteenth General Assembly.

Having submitted such an ambiguous and ineffective document, the United States and the Western countries supporting it did not fulfil the obligations arising from the principle of disarmament. These powers have as yet done nothing to contribute practically to the implementation of this principle. This is precisely why they are entirely responsible for the fact that this principle has not yet been embodied in an international treaty.

The struggle for disarmament is now being waged in many forms and directions. The two most important lines are 1) complete disarmament and 2) partial disarmament measures. The latter, while by no means being a substitute for a programme of complete disarmament, are destined to regulate as early as possible the most vital aspects of the problem and thus practically facilitate the general progress of disarmament.

By way of illustration one may cite the treaty on partial nuclear ban signed in Moscow in 1963. Despite its limited scope, it has definitely played a positive role as a step towards the achievement of the ultimate goal. The TwentyFirst General Assembly in 1966 adopted a Draft Treaty on Principles Governing the Activities of States in the Exploitation and Use of Outer Space, Including the Moon and Other Celestial Bodies. Among other things it forbids to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction. In the process of elaboration are other partial measures, such as non-proliferation of nuclear weapons, prohibition of underground nuclear tests, and total renunciation of the use of nuclear weapons. They all could be made a starting point in the prohibition and destruction of nuclear weapons.

Nevertheless, it would be absolutely wrong to reduce the

disarmament programme solely to such measures. It is necessary to stress this because many Western jurists perservere in refusing to touch the question of radical disarmament measures and thus imply that they do not consider them very effective. It is typical, for instance, of Edward McWhinney of Canada who thus characterises the tasks in the sphere of disarmament: "The presently important priority in Soviet-Western relations seems to be to continue the empirically-based, step-by-step approach to minimising and reducing the dangers of nuclear conflict.''^^1^^

Some Western theoreticians go even further. Georg Schwarzenberger of Britain, for example, affirms that "in a world so hopelessly split as ours, it proved impossible to devise generally acceptable principles 'governing disarmament and the regulation of armaments' ".^^2^^ This highly pessimistic appraisal is clearly at odds with the facts, for the principles governing the disarmament negotiations approved later by the Sixteenth General Assembly had been devised in 1961, a year before the publication of his book.^^3^^ Such principles are of course very far from being tantamount to an agreement on disarmament. But what Schwarzenberger actually said was that it was impossible to devise generally acceptable disarmament principles, and he said it after they had already been accepted as a basis of action.

It should also be pointed out that the preference shown for partial disarmament measures in Western writings is not fortuitous. The advocates of these measures deliberately ignore the aim they serve, that they are supposed to be followed by wider measures of disarmament. They thus emasculate the struggle for disarmament of its prospects, and without that it can be neither broad nor purposeful.

Partial measures certainly can and must play a useful role. But that will be possible only if the aim they are to achieve---implementation of broad and effective measures towards complete disarmament---always remains clear. It is

precisely thus that the relation between partial and complete disarmament is understood by all those who are genuinely interested in maintaining a lasting international peace.

The struggle for disarmament has been going on for years and the number of participants is constantly increasing. It has already yielded quite a few significant results, and will no doubt yield many more. One of them is the progressive development of international law. Of much interest in this connection is the outlook for the further formation of the principle of disarmament. We have already said that only the first stage in this process has been passed and that the second stage will be the conclusion of a disarmament treaty which will make prohibition of armies and armaments a rule of international law. What impact will this have on the system of principles of present-day international law?

An attempt to answer this question is not being made only by those jurists who realise that the struggle for disarmament already exerts and will continue to exert a serious influence on the development of international law. Relations among the disarmed states are subjected to close scrutiny by international organisations too. It was discussed in detail, for instance, by the 52nd Conference of the International Law Association in 1966.^^1^^

At present, international law plays the role of an instrument of peace mainly by forbidding the states to attack one another and by compelling them to settle their disputes by peaceful means. The formation of the principle of disarmament will mean a big step forward, for the states will then also be bound to abolish armaments and armies and to prevent their reappearance. As a result, international law will naturally become immeasurably more effective as an instrument of peace.

The formation of the principle of disarmament objectively helps consolidate other important principles governing the maintenance of peace. Although complete disarmament will undoubtedly create new conditions for the application of the above-mentioned principles, the principle of disarmament will not replace and will not minimise the signif-

~^^1^^ Edward McWhinney, "Changing International Law Method and Objectives in the Era of the Soviet-Western Detente", The American Journal of Interational Law, Vol. 59, January 1955, p. 15.

~^^2^^ Georg Schwarzenberger, The Frontiers of International Law, London, 1962.

~^^3^^ See Resolutions Adopted by the General Assembly During Its Sixteenth Session (September 19, 1961-February 23, 1962), Vol. I, New York, pp. 7-8.

~^^1^^ International Law Association. Report of the Fifty-Second Conference held at Helsinki, August 14-20, 1966. London, 1947, pp. 596- 653.

icance of the war-preventing principles which have already established themselves. On the whole, it will make them more effective still.

The principle of disarmament will not serve, for instance, to replace the system of collective security which now means a system of collective struggle against aggression. This system will retain its importance in a disarmed world, though its functions will alter somewhat. While today the states proceed from the need to take collective action to counter aggressive acts, after complete disarmament they will do so to counter any attempts to disturb peace, especially attempts to violate the treaty on general and complete disarmament.

Generally speaking, the disarmament treaty will be based on the principle of collective responsibility of all its signatories with the ultimate goal not to allow the restoration of the means of aggression.

The principle of collective action against violations of international law (the disarmament treaty will become one of its components) will thus lose none of its significance. In other words, the need of some system of collective security will remain after disarmament too.

Things will remain the same too with such principles as the prohibition of the use of force by states against one another and their duty to settle international disputes by peaceful means. Disarmament will merely strengthen these principles. The use of armed force in the settlement of international disputes will become practically impossible and aggression will be regarded more than ever before as a grave international crime.

The abolition of the material means of war will thus make it possible successively to implement all the principles governing the maintenance of peace---the principles of disarmament, collective security, prohibition of aggressive wars, and peaceful settlement of international disputes, principles that should be regarded as interacting and intersupplementing. In this connection one may ask whether the basic principles secured by the U.N. Charter will retain their validity in a disarmed world. This question requires an answer, for on the whole there is no disputing the fact that disarmament will have far-reaching consequences for the system of international relations. The elimination of the material possibilities of conducting wars will lead to the elimination of many institutions and phenomena that are characteristic of

current international affairs. For instance, it will entail renunciation of the existing military blocs and regional alliances based on the right to collective self-defence; all these alliances and blocs will be replaced by an all-- embracing disarmament treaty which will guarantee the security of the states. The abolition of the material means of waging wars will put an end to such ugly phenomena in presentday international affairs as the cold war, distrust and fear. Disarmament will thus make a big impact on the international situation. But does that mean that it will lead to the cancellation of the important international law principles secured by the U.N. Charter?

We consider highly artificial the attempts to deny the possibility of applying such principles of present-day international law as sovereignty, equality of states, non-- interference in their internal affairs, etc., in a disarmed world. Disarmament will in no way impair these principles. On the contrary, it will create extremely favourable conditions for their consistent implementation.

Relations among states in a disarmed world will remain relations among equal sovereign participants in international intercourse. One cannot imagine them to be anything else and still be realistic. Let us take the principle of sovereignty. In a world without armaments this principle will be developed to the utmost. The elimination of all possibility of armed aggression will make armed attack, that is, violation of state sovereignty in its worst form, impossible. Objectively, this cannot but further strengthen the principle of sovereignty and create new prerequisites for its strict observance.

Disarmament will in no way deprive the states of their inherent right to build the kind of life their people want. However, no country can remain free to decide its internal affairs without appropriate international law prerequisites. And these prerequisites are the observance of the principles of sovereignty and equality of states and of non-- interference in their internal affairs. The observance of these principles alone ensures the freedom of the state's internal development and freedom of choice of its social and state system.

Characteristically enough, some Western jurists are inclined to approach legal problems in a disarmed world from ``supranational'' positions. These jurists, among them Arthur Larson and such well-known American exponents of the

disarmament problem as Granville Clark and Louis B. Sohn, suggest creating in a disarmed world a system of "world law" which would entail the abolition of state sovereignty and the complete revision of international law and the U.N. Charter.^^1^^ Such ideas militate against the objective laws governing social development in our age, against laws which will remain wholly valid even in a disarmed world.

Disarmament will thus not cancel out the principles of the international law now in operation and the principles of the U.N. Charter. Nevertheless, it is necessary to draw a line between the operation of the above-mentioned general principles and the more specific question of preserving the inviolability of all the principles of the Charter. The latter question requires a somewhat different solution since not all the clauses of the Charter will retain their validity in a disarmed world. As an example one may cite the article of the U.N. Charter obliging the member states to hold immediately available special armed force contingents for combined international enforcement acts (Art. 45). After the abolition of the armies the states will not be able to do so and all international enforcement acts will be undertaken solely with the aid of the police contingents at the disposal of states. Consequently, this provision of Article 45 will in the future refer only to such contingents.

The question of the role and nature of enforcement in a disarmed world invariably arises when jurists discuss plans for building a disarmed world. What forms of enforcement will it be necessary to elaborate to ensure the observance of international law rules in a disarmed world? Lack of space in this article naturally makes it impossible to analyse the question in detail so we shall confine ourselves to a few general principles.

The nature of enforcement acts in a disarmed world will be predetermined by the nature of relations among the disarmed states. These will be relations of co-operation in the political, economic and cultural fields, and a solid basis will be created for that purpose. The abolition of armaments will entail the elimination of such factors as mutual distrust and fear of surprise attack, that is, of all that now hampers

multilateral co-operation among the states. In the overwhelming majority of instances the principles of international law (including the treaty on disarmament) will then be observed without any coercion since all the countries will be interested in promoting peace and closer co-operation. And if some states do try to act contrary to the commitments assumed under the disarmament treaty or to the generally accepted principles of international law, the joint political and economic measures taken by the other states making up the international community will generally suffice to force them to give up the idea of acting unlawfully.

The concrete forms of possible collective measures of non-military nature are given in the U.N. Charter; its provisions on this subject will be widely applied in a disarmed world. For instance, the right given the Security Council by Article 41 to employ measures not involving the use of armed force such as "complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations", will remain fully valid.

These measures, especially if taken simultaneously, are indisputably effective in any situation. And in the conditions of complete disarmament, when their employment becomes more flexible and timely thanks to the information received from the control organs, they will be especially effective.

As a last possible sanction in emergency situations (which, being highly improbable, are chiefly of a hypothetical nature) there still remains the possibility of joint action by states with the participation of the police contingents at their disposal. This is the only form of military enforcement action admissible in a disarmed world and quite sufficient to compel a state or group of states to abide by the disarmament treaty and the principles of international law in general.

The discussion of the legal aspects of disarmament is a pressing and urgent problem. It is already going on in many countries. But the jurists have still much to do for its practical solution, to meet the vital requirements of international affairs, for they lag considerably behind in the elaboration of this problem in international law literature.

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~^^1^^ The most detailed plans of this type are given in Granville Clark's and Louis B. Sohn's World Peace Through World Law, Cambridge, Mass., U.S.A., 1960, p. 44.

Very few now deny that the disarmament problem has legal aspects. Nevertheless, there prevails the very outdated opinion in the West that disarmament is a problem far removed from international law. It is highly illustrative, however, that many prominent Western jurists are becoming increasingly critical of this opinion.

Noteworthy in this respect is the fact that the disarmament problem invariably figures prominently in almost all the important treatises of the Western jurists. We may cite the very well-known international law courses of Charles Hyde and Lassa Oppenheim and Hersch Lauterpacht who devote whole chapters to disarmament and stress its importance for international law.^^1^^ It should be noted that these two courses were published shortly after the Second World War and sort of summed up its results in formulating the pressing post-war international law problems.

Some of the latest treatises on disarmament stress the urgent need to draw the jurists' attention to the study of this problem. Allan Gotlieb, the Canadian jurist mentioned above, says the time has come "to suggest what role the lawyer can play in the achievement of the goal of a totally disarmed world.''^^2^^

An interesting book entitled Legal Aspects of Disarmament was published in Britain in 1963. Its author, Andrew Martin, an active member of the International Law Association, also urged that lawyers should study the disarmament problem. "It will be argued that disarmament is a subject unfit for lawyers," he writes. Saying that some people think it "wrong, unscientific and contrary to tradition" for "practitioners and academic exponents of inter national law to raise these questions and seek to analyse them," he adds: "If there is such a tradition, then, I suggest, we are in urgent need for a new one and we ought to start it forthwith. .. . Disarmament, as we have been told innumerable times, is the key problem of world politics; and it is a fact that since the end of the war and particularly during the past few years, countless volumes and papers (many of them extremely valuable) have been published on

the political, strategic and scientific aspects of the problem; more recently also about the economic consequences of disarmament. . .. Only the lawyers' contribution has been conspicuously modest.''^^1^^

Such appeals to the jurists to study intensely the problems of disarmament are quite logical. Jurists really can and must contribute to the solution of this very important problem.

It would be unnecessary to say that such a contribution would be very timely. The present situation is such that it is clearly necessary to step up the efforts to push disarmament ahead. The need to do so has been stressed time and again in the United Nations and other international organisations.

Practical work is now being done to draw up concrete measures for disarmament. In recent years considerable attention has been attached to the elaboration of a nonproliferation treaty. The 18-Nation Disarmament Committee completed its draft which was forwarded to the General Assembly for its consideration in March 1968. Next in line are other disarmament measures and among them are the ban of underground nuclear tests and renunciation of the use of nuclear weapons. A world disarmament conference is to be convened in the future.

Peace-loving people everywhere insist on effective disarmament measures, rightly holding that there is no task so important and urgent as that of banishing the danger of war from the life of society.

~^^1^^ L. Oppenheim, International Law, Vol. II, 7th ed., London, 1952, pp. 127-31.

~^^3^^ A. Gotlieb, Disarmament and International Law, Toronto, 1965, p. 5.

~^^1^^ A. Martin, Legal Aspects of Disarmament, London, 1963, pp. 1-2.

/. /. Lukashuk, LL. D.

of states.^^1^^ The exclusion of a state's agreement disrupts this process and makes it impossible scientifically to solve the problem of the source of international law.^^2^^ For it is agreement that creates international law rules. And from this point of view agreement is the sole source of international law, the only means of establishing its rules. Without agreement there can be no international law rules.

International law rules are created by agreement and not by consent. Consent is merely an element of agreement. This is a factor of major significance. One of the arguments advanced against the theory of agreement, it may be recalled, is that international custom is not created by tacit agreement but "comes into being as a result of a number of unilateral acts".^^3^^ What is more, those who advance these arguments do not seem to realise that the corresponding acts of consent are the elements of the requisite agreement.

SOURCES OF PRESENT-DAY INTERNATIONAL LAW

1. THE AGREEMENT OF STATES IS THE SOURCE OF INTERNATIONAL LAW

The decisive factor in any law is society's material living conditions, that is, the sum total of the economic and social conditions determining the basic features of that society. International law is no exception to this rule. Its development is influenced most by international relations. Without international relations there can be no international law. The nature of general international law depends on the nature of the system of international relations.

Consequently, the realities of human society make the existence of international law indispensable and determine its content. Before they can be expressed in the rules of international law, however, the requirements of reality must be embodied in the wills of states and through them in agreement.

Many hold that the source of international law is legal consciousness. There is no doubt that it is an important element of the law-making process. But it cannot be regarded as a source of international law rules, since it finds expression in these rules only through the will of states embodied in agreement.

International law is bound up with society's material living conditions through a number of links in a single chain which are very important for the development of law. The requirements of material life are discerned by the state, reflected in legal consciousness, and determine the will of the state. The materially substantiated wills of states create by agreement the rules of international law and are embodied in them.

The main link in the establishment of international law rules is agreement, which embodies the co-ordinated wills

2. THE NATURE OF THE AGREEMENT OF STATES

The basic distinguishing feature of the agreement is its will factor. That is quite natural, for the will factor is one of the most important symptoms of law in general.

The will factor is made the basis of agreement by the

~^^1^^ This point of view prevails in the science of international law in the socialist countries. See, for instance, G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 164; D. B. Levin, Basic Problems of Present-day International Law, Moscow, 1958, p. 99; International Law, edited by F. I. Kozhevnikov, Moscow, 1964, p. 41; P. I. Lukin, Sources of International Law, Moscow, p. 11; R. L. Bobrov, Present-day International Law, p. 62; Mikhail Genovski, Sources of International Law, Sofia, 1956, p. 17; Cezary Berezowski, Kazimierz Libera and Wojciech Goralczyk, Prawo miqdzynarodowe publiczne, Warsaw, 1962, p. 70.

~^^2^^ This thesis may be illustrated by Prof. Torsten Gihl's treatise on the sources of international law (The Legal Character and Sources of International Law, Stockholm, 1957, p. 83). While rightly stressing the influence exerted on the process of establishment of international law by different social factors, the Swedish jurist excluded from this process such factors as the wills of states and agreement. And having eliminated the main link from the chain of interconnected phenomena, Prof. Gihl found himself unable to solve the problem and proclaimed it altogether unfeasible. His conclusion follows: "We are therefore driven to the conclusion that no source of law in a formal, that is to say proper, sense for international customary law can be pointed to. International customary law exists, and that indeed is quite sufficient.''

~^^3^^ T. Gihl, Op. cit., p. 77.

overwhelming majority of the Western authors who regard agreement as the legal foundation of international law.¹ These authors, however, give no reply to such important questions as Whose will the agreement reflects and What its sources are.

The science of international law in the socialist countries regards the will factor as one of the most important features of international law and the agreement underlying it and lays emphasis on the class nature and the material substantiation of the state wills embodied in law. The philosophical battle round the substantiation and freedom of the will has been going on for centuries. The exponents of indeterminism, negating the objective laws operating in social relations, proclaim a wholly unsubstantiated, absolute freedom of the will.

The exponents of the opposite point of view are the advocates of the simplified concept of determinism and negate all freedom of the will, holding that man's actions are fully determined by causes beyond his will.

Both the first and the second trend distort the real nature of the process establishing law rules. Indeterminism leads to voluntarism, to the ideological justification of adventurism in politics and to arbitrariness in law, while the simplified concept of determinism leads to fatalism.

The theories bound up with the simplified concept of determinism play a major part in the doctrine of international law. Their exponents in effect deny the role the state's will plays in the establishment of international law rules. This applies to representatives of different trends and schools, including the exponents of natural law and the solidarists.

Paul Fauchille, for instance, held that natural law was just as general and absolute as the laws of nature.^^2^^ According to this point of view, juridical laws exist just as objec-

tively as the laws of nature. The problem is to discover them. The will of the state does not create law.

A more or less similar conclusion was drawn by Georges Scelle, a representative of an entirely different philosophical school in law. He assumed that the laws of social development were the objective laws underlying law and order. The law-maker's main task, in his opinion, is to give the most accurate definition of the existing "objective law" in his acts.^^1^^

How are the wills of states determined when they are embodied in an agreement? The will of a state is essentially the will of its ruling class and is determined by society's standard of living, in which the leading role is played by the relations of production, the economic basis of society.

The economic basis is the main but far from the only factor determining the content of the state's will and the agreements embodying it. International law is also influenced, through this will, by such superstructural phenomena as philosophy, politics, ethics, national law, etc.^^2^^

Consequently, while stressing the determinant significance of material factors, one should not forget that superstructural phenomena also exert much influence on the state will. Public ideas and views are extremely important both for the establishment and the implementation of the rules of international law.

Let us dwell briefly on the factors characterising the nature of the agreement. The parties to international intercourse today are the sovereign states over which there is no suprastate power. This being the case, no rules of law can be imposed upon a state against its will. The rules binding upon the state can be established only with its consent. Consequently, only the wills of sovereign states embodied in agreements can create international law rules.

Agreement between states is the only means of creating international law rules and the only act engendering them.

~^^1^^ See G. Scelle, "Essai sur les sources formelles du droit international", Recueil d'etudes sur les sources du droit, en I'honneur de Frangais Geny, Vol. Ill, 1937, p. 401.

~^^2^^ See G. I. Tunkin, "Forty Years of Coexistence and International Law", Soviet Yearbook of International Law, 1958, p. 27,

~^^1^^ See, for instance, Dionisio Anzilotti, Corso di diritto internazionale, Cedam-Padova, 1955; H. Triepel, Volkerrecht und Ldndersrecht, Leipzig, 1899, p. 32; K. Strupp, "Regies generales du droit de la paix", Recue.il des cours, Paris, 1934, Vol. 47, p. 301.

~^^2^^ See P. Fauchille, Traite du droit international public, Paris, 1922, Vol. 1, p. 41. Similar views are outlined in Scheuner's "Naturrechtliche Stromungen in heutigen Volkerrecht", Zeitschrift fur ausldndisches offentliches Recht und Volkerrecht, No. 3, 1951, pp. 583-84.

Not every agreement, however, possesses this property. To become a source of international law, the agreement must be expressive of the co-ordinated wills of states, aimed at establishing international law rules.

There have been instances in international relations of the co-ordinated wills of states, directed at achieving certain aims, not being set the task of establishing international law rules. In such cases they cannot be a source of international law. One example is the decisions of international organisations which are expressive of the co-ordinated wills of states but are not sources of international law inasmuch as the states do not set them such a task.

To establish a rule, the agreement between states must be given a definite legal form, the form of an international treaty or custom. The correct solution of the problem of the relation between the agreement of states, on the one hand, and the treaty or custom, on the other, is highly important.

Sir Gerald Fitzmaurice, special rapporteur of the U.N. International Law Commission, has proposed to regard the treaty both as a text and as a legal act. Moreover, in his opinion, the text and the act could exist independently of each other. In this sense, Fitzmaurice says, there may be a treaty which has not yet come into force or has ceased to be valid. Such a rupture of the source of international law is absolutely unjustified.

The basis of this phenomenon as the source of international law is the agreement of states. It is always vested in one of the two following forms---treaty or custom. The treaty embodies a clearly expressed agreement, the custom---a tacit agreement. There can be no agreement of states without a definite form.^^1^^

Consequently, it is customary to speak of two sources of present-day international law.^^2^^

~^^1^^ This proposition was rightly noted by G. I. Tunkin when G. Fitzmaurice's suggestion was discussed in the International Law Commission. Other members (Gilberto Amado and Ricardo F. Alfaro) likewise affirmed that it was impossible to divide the treaty into an agreement---a legal act---and a text in the draft on the codification of the law of international treaties (Yearbook of the International Law Commission, 1959, Vol. I, p. 19).

~^^2^^ For analyses of the different concepts of international law sources see V. N. Durdenevsky, Sources of International Law; P. I. Lukin, Sources of International Law; P. Corbett, "Consent of States and the

3. INTERNATIONAL TREATY

The main source of international law at present is the treaty. This proposition, which is unanimously recognised in the socialist countries^^1^^ and has many supporters in other countries,^^2^^ fully accords with international practice. Suffice it to say that both the U.N. Charter and the Statute of the International Court of Justice also consider the treaty the main source of international law.

The growing significance of international treaties is an objective process that is determined not by the desire of any one government but by the laws governing the development of international affairs.

In our day, the agreement is both the main source of international law and the main method of settling all international issues. This follows from the very nature of international relations as ties between sovereign states.

In the past, a state was free to decide whether or not it should settle a particular situation by negotiation or war. What is more, it could reject settlement altogether.

It is different now. A state has no right to use force to settle a dispute. What is more, it has no right to refuse to settle any dispute, the continuance of which is likely to endanger the maintenance of international peace and security (Art. 33 of the U.N. Charter). And the basic means of

Sources of the Law of Nations", The British Yearbook of International Law, 1925.

~^^1^^ See International Law, edited by V. N. Durdenevsky and S. B. Krylov, Moscow, 1947, pp. 20-21; F. I. Kozhevnikov, International Law Textbook, Moscow, 1947, p. 32; International Law, edited by Y. A. Korovin, Moscow, 1951, p. 16; V. I. Lisovsky, International Law, Kiev. 1955, p. 28; G. I. Tunkin, Fundamentals of Present-day International Law, Moscow, 1956, p. 12; V. M. Shurshalov, Basic Questions of the Theory of International Treaty, Moscow, 1959, p. 7; International Law, edited by D. B. Levin and G. P. Kaluzhnaya, Moscow, 1960, p. 30; A. N. Talalayev, Legal Nature of International Law, Moscow, 1963, p. 164 ff.; C. Berezowski, K. Libera and W. Goralczyk, Op. cit., p. 74; H. Kroger, Staat und Recht, 1955, No. 1, pp. 15-16; V. Outrata, Mezindrodni pravo vefejne, Prague, 1960, p. 26; A. Klafkowski, Prawo mie.dzynarodowe publiczne, Warsaw, 1964, p. 31.

~^^2^^ See, for instance, A. Alvarez, Le droit international nouveau dans les rapports avec la vie actuelle des peuples. Paris, 1956, p. 157; E. Sauer, Grundlehre des Volkerrechts, Cologne-Berlin, 1955, p. 16; M. Tandon, Public International Law, Allahabad, 1955, p. 28; W. Jenks, "Craftsmanship in International Law", The American Journal of International Law, Vol. 50, 1956, No. 1, p. 54; G. Schwarzenberger, The Frontiers of International Law, London, 1962, p. 36.

peaceful settlement are negotiations and agreements. As a result, negotiations and agreements have become the only legitimate means of promoting international co-operation.

The socialist states contend that in present-day conditions, given the good will of the states concerned, agreement on an equal and mutually-advantageous basis can be reached on practically any international issue.

Apart from what we have said above there are the following factors which tend to make the treaty the main source of international law:

1) The complexity and unprecedented rate of development in international affairs make precise and effective legal settlement essential.

2) The increasing importance of international relations in the life of all countries and peoples requires a more effective regulation of international relations by means of international law.

3) The form of treaty makes it possible to formulate most clearly rules, reciprocal rights and obligations, facilitates control over their observance (which can be exercised not only by the states but by a broad cross-section of the population) and thus helps enhance international legality.

4) With the expansion of international co-operation and the growth of the role played in international affairs by the democratic forces, it is becoming increasingly important to secure by international law the basic tasks and aims pursued by the states in the international sphere. The most appropriate form is the international treaty.

5) Many crucial international issues can be settled only by means of a treaty. The custom is not suitable for that purpose. Suffice it to recall such vital problems as disarmament and control over disarmament, economic, scientific, technical and other co-operation. There are very many international organisations today and they play an important role. But they too have been established, and operate, on the basis of treaties. Consequently, the range of objects of an international treaty in the sphere of international relations is practically boundless.^^1^^

~^^1^^ See A. N. Talalayev, Legal Nature of the International Treaty, p. 175.

Some present-day lawyers, holding that the custom is the main source of law, stress that it is flexible, fluid and the most "political"

The part played by the treaty in regulating international relations is immeasurably more important than that of the custom, and is growing all the more so. The treaty has penetrated into such seemingly exclusive spheres of operation of the custom as maritime and diplomatic laws and international treaty law. And the result is definitely positive.

To engender international law rules and serve as a source of international law the treaty must be valid.^^1^^

The validity of a treaty is not affected by its form. But it plays a very big role in the life of the international treaty and in ensuring its effectiveness.^^2^^ Suffice it to recall that one of the main reasons why the treaty is held to be the basic source of international law lies precisely in its form.

Are all legitimate treaties sources of international law? The discussion of this question, started chiefly by the works of Jellinek, Bergbohm and Triepel,^^3^^ has been going on ever since the latter half of the 19th century. Then came the division of treaties in legal literature into ``law-making'' treaties and treaties of a contractual nature. Some lawyers affirm that the ``law-making'' treaties, that is, multilateral treaties establishing general rules of international law, can alone be sources of internaitonal law.^^4^^

Such an interpretation does not take into account the specific nature of international law. It is based on the civilistic concepts of national law according to which the law is a

form of international law (see, for instance, R. Higgins, The Development of International Law Through the Political Organs of the United Nations, London-New York-Toronto, 1963, p. 1). Plainly speaking, the reference is to the ambiguity of the custom which offers an opportunity to interpret it variously, especially in the practice of the imperialist powers.

~^^1^^ See V. M. Shurshalov, Essential Validity of International Treaties, Moscow, 1957; A. N. Talalayev, Legal Nature of International Treaties, Ch. III.

~^^2^^ See I. I. Lukashuk, Structure and Form of International Law, Saratov, 1960.

~^^3^^ See G. Jellinek, Die rechtlische Natur der Staatsvertrdge, Vienna, 1880; C. Bergbohm, Staatsvertrdge und Gesezte als Quellen des Volkerrechts, Dorpat, 1877; H. Triepel, Volkerrecht und Ldndersrecht, Leipzig, 1899.

~^^4^^ See C. Bergbohm, Op. cit., p. 79; H. Triepel, Op. cit., p. 32; P. Fauchille, Traite de droit international public, Paris, 1922, p. 45 ff; H. Briggs, The Law of Nations, New York, 1952, p. 46; K. Saksena, Public International Law, Allahabad, 1955, p. 33.

normative act and the contract, a legal fact. This interpretation cannot apply to international law for the very important reason that the states are both rule-makers and parties to the treaty. Consequently, it is practically impossible to draw even a relatively clear-cut line between the parties to a treaty as law-makers, on the one hand, and as parties to a treaty of a contractual nature, on the other. But practice does not even require such distinction.

There are, of course, treaties that establish universal rules of international law and treaties that establish rules binding only two states. But this is no reason to deny the latter's law-making character. The difference is in the sphere of action and very often in the exact content of the rules too. This point of view is shared by all the students of international law in the socialist countries^^1^^ and many lawyers elsewhere.^^2^^ Therefore, one cannot but agree with Prof. Tunkin that the "significance of the above-mentioned problem ... is greatly exaggerated in bourgeois international law literature. In practice, it never arises.''^^3^^

Between treaties as sources of international law there is no co-subordination as there is between the various normative acts within national law. The U.N. Charter is in a class by itself as a treaty. In the event of a conflict between the obligations of the members of the United Nations under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail (Art. 103).

By virtue of their sovereignty, the states which adopted the U.N. Charter had the right to include this principle, thus giving priority to the obligations arising from the Charter. The inclusion of such a principle was justified.

First, the Charter is today the most authoritative act embodying the basic universally recognised principles of international law. Secondly, without the priority of the Charter over conflicting obligations the United Nations with its extremely wide range of activities could not be an efficient universal international organisation.

In present-day international law there is no rule establishing the priority of multilateral acts, which create the general rules of international law, over bilateral treaties. A conflict between the two is settled according to general rules.^^1^^

Of special significance are the universal conventions which establish jus cogens rules. These enjoy priority on account of the special character of the rules they establish.

To be a source, a treaty must be concluded by subjects of international law. At present there are two types of subjects of international law: a) the basic, universal subject ---the state, and b) the derivative, special subject---the international, that is, interstate, organisation.^^2^^ Hence the question: can treaties with the participation of international organisations be sources of international law?^^3^^

If it is a matter of the possible, and sometimes quite expedient, participation of an organisation along with states in a universal convention which establishes general rules of international law, such participation does not affect the law-

~^^1^^ See V. M. Shurshalov, Basic Questions of the Theory of International Law, pp. 272-82; M. Lachs, Umowy wielostronne, Warsaw, 1958, pp. 214-28; S. Crandall, Treaties, Their Making and Enforcement, Washington, 1916, p. 402; W. Jenks, "The Conflict of Lawmaking Treaties", The British Yearbook of International Law, 1953: Ch. de Visscher, Theory and Reality in Public International Law, Princeton, 1957, p. 262; B. Jovanovic, "The Maximum and Minimum Obligations in Some General International Conventions", Jugoslovenska revija za medunarodno pravo, Belgrade, I960, No. 2.

~^^2^^ If a party to a contract concluded by a state is not an interstate organisation but an international trust, cartel or firm, this contract is not an international treaty and cannot serve as a source of international law (see I. I. Lukashuk, "On the Question of Agreements Similar to International Treaties", Soviet State and Law, No. 12, 1960).

~^^3^^ In his Legal Nature of the International Treaty (p. 161), Soviet lawyer A. N. Talalayev answers this question in the negative. " International organisations as subjects of international law do not possess a sovereign will and, consequently, cannot create international law rules without the participation and assistance of states," he writes. "Therefore, the treaties concluded by international organisations with one another are not sources of international law.''

~^^1^^ F. I. Kozhevnikov, International Law Textbook, Moscow, 1947, p. 32, and International Law, Moscow, 1951, p. 16; V. M. Shurshalov, Basic Questions of the Theory of International Treaty, Moscow, 1959, pp. 117-18; P. I. Lukin, Sources of International Law, Moscow, 1960; Manfred Lachs, Umowy wielostronne, Warsaw, 1958; M. Genovski, Sources of International Law, Sofia, 1956, p. 274; V. Outrata, Mezinarodni prdvo vefejne, Prague, 1960, p. 27).

~^^2^^ See, for instance, H. Kelsen, Principles of International Law, New York, 1952, p. 319 ff: Ch. de Visscher, "Coutume et traite en droit international public", Revue generale de droit international public, 1955, No. 3, p. 360.

~^^3^^ G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 72.

making nature of the treaty. Consequently, there can be a question only of bilateral treaties between an international organisation and a state, or of treaties the two parties of which are international organisations.

Analysis of such treaties leads one to conclude that they are acts of public international law, the only form of law capable of serving as a basis for the operation of such treaties.^^1^^ International organisations are subjects of international law. They conclude agreements with one another with a view to regulating their relations. There could be no such regulation without the establishment of international law rules. Consequently, treaties between international organisations are sources of international law.

Agreements between international organisations are sources of the second order^^2^^ in the sense that they cannot operate outside the limits of interstate treaties, particularly the statutes of these organisations. They serve mainly as a source of the law of international organisations. But there too they do not establish the basic rules. The latter are within the competence of interstate treaties. Agreements between international organisations and their implementation, however, exert a considerable influence on the content of these treaties.

4. INTERNATIONAL CUSTOM

Unlike the treaty, the customary rule of international law embodies the tacit agreement of states (taciturn pactum).

In substance, custom does not differ from treaty. Their content may be identical. The difference lies in the process of creation of rules and in the form of their expression.

For historical reasons, the custom predominated in the past.^^3^^ In the last century the situation has changed, and it has been relegated to second place by the treaty. However, the rules of customary law continue to play a very big role in the practice of international law.

The international custom is an unwritten rule which the states recognise as legally binding (opinio sui necessitatis juris).^^1^^

The custom is a rule of international law designed to regulate interstate relations. If there is a coincidence in the practice of states abiding by the same rule but not recognising it as legally binding, then it is not custom but usage or comity (comitas gentium)? The latter also may regulate interstate relations but not by legal means.^^3^^

There is no obstacle between usage and comity on the one hand and the custom on the other. Usage has been known to turn into a customary rule following the recognition of its binding legal force. Very often usage precedes custom in the process of its formation. It may also happen that customary rules lose their legal character and become comities.

Many lawyers hold that the formation of a custom is a lengthy process. Generally speaking, it is. The time it takes to form, however, is not dictated by legal considerations. Sometimes it forms very quickly as a result of states' recognition of a certain precedent.^^4^^

~^^1^^ Opinio juris means a state regards one or another customary rule as a rule of international law, as a rule legally binding on an international scale. It is an expression of the will of states. When other states also express their will in the same direction there results a tacit agreement on the recognition of the customary rule as a rule of law (G. I. Tunkin, Theoretical Problems of International Law, p. 95).

~^^2^^ See Y. A. Korovin, "A Propos of the Revision of the Basic Concepts of International Law", Soviet Law, No. 6, 1925, pp. 33-34; V. I. Koretsky, Essays on the Anglo-American Doctrine and Practice of Private International Law, Moscow, 1948, p. 3; D. B. Levin, Diplomatic Immunity, Moscow, 1949, p. 210 if.; F. Stoerk, Volkerrecht and Volkercourtoisie, 1908; P. Fauchille, Traite de droit international public, Paris, 1922, Vol. I, p. 24.

~^^3^^ Few lawyers now do not draw a line between custom and usage, which is of major significance. Nevertheless, there are such lawyers.

~^^4^^ Some authors say sometimes a few hours are sufficient. After the launching of the first Soviet sputnik, for instance, it took but a few hours for the principle recognising the right of artificial Earth Satellites to fly unimpeded over foreign territory to form (see K. Wolfe, ``L'element subjectif dans la coutume internationale",

Zeszyty Naukowe Uniwersytetu Wroslawskiego, 1960, Series A, No. 27, p. 161 if.; A. Klafkowski, Prawo migdzynarodowe publiczne, Warsaw, 1964, p. 33).

~^^1^^ See I. I. Lukashuk, "The International Organisation as a Party to International Treaties", Soviet Yearbook of International Law, 1960, Moscow, 1961.

~^^2^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 84.

~^^3^^ A somewhat different point of view is set forth in G. Schwarzenberger's "International Law in Early English Practice", The British Yearbook of International Law, 1948, pp. 87-88.

It must be stressed that the present international relations have seriously influenced the custom, adapting it to the rhythm and other aspects of international life. The acceptance and, consequently, formation of customs have been substantially accelerated and somewhat simplified. International practice becomes universally known immeasurably faster than before. The same applies to the reciprocal reaction of states.

An increasingly important role in the formation of customs is played by such a form of tacit recognition as the absence of protests. Elaborating on this, Polish lawyer Karol Wolfke writes: "It is also increasingly justified to rest content with presumption of acceptance of the practice as expression of law, in view of the. better and better knowledge of international law and hence of the consequences of toleration of a new practice. The governments know that toleration of practice leads to its being legalised, to formation of a new customary rule. Hence their increasing watchfulness.''^^1^^

A universal custom becomes a rule through universal practice. It also can form through the practice of a few states, and then become universal by being accepted by other countries. Generally speaking, the process is similar to that in the conclusion of treaties which may become universal if adhered to by other states.

All this proves once again that the decisive factor in the formation of customs is the agreement of states to form rules of law. Time and other factors are important only to the extent to which they help in the formation of tacit agreement.

The legal nature of the custom makes possible the existence of universal, regional and particular customs, this depending on the number of states recognising them.^^2^^ It goes without saying that regional and particular customs

should not run counter to the generally accepted rules of international law.

Of undoubted interest is the relation between customary and treaty rules. There is no unanimity on this question in international law theory. Some authors affirm that, all other conditions being the same, the treaty rules are indisputably superior to the rules of customary law.^^1^^ Others maintain that the custom is capable of annulling treaty rules to more or less the same extent as a treaty cancels out a custom.^^2^^

This question has also been discussed by the U.N. International Law Commission. Article 68 of its draft on the law of treaties is headed "Modification of a Treaty by a Subsequent Treaty, by Subsequent Practice or by Customary Law" [my italics---I.L.]. This article says inter alia: "The operation of a treaty may also be modified ... by the subsequent emergence of a new rule of customary law relating to matters dealt with in the treaty and binding upon all the parties.''^^3^^

This means that if a new customary rule is accepted by all the parties to the treaty, it can replace a corresponding treaty rule. More often than not, the custom introduces changes not in the treaty itself but in its implementation. The custom is capable of amending, amplifying and supplementing the treaty, extending or restricting its application, and thus influencing its actual content. This influence may be considerable, though it is usually limited and affects details rather than the basic principles and purposes of the treaty. The custom does not annul the treaty. All this testifies to the definite priority of the treaty.

Consequently, in practice if not in theory, treaty principles, all other conditions being equal, enjoy a definite priority over the customary rules. In dealing with any issue, the states and the international courts turn first to any existing treaty clauses on the given issue.

Also see G. I. Tunkin, Theoretical Problems of International Law, p. 85, and T. Cyprian and J. Sawicky, Prawo Norymberske, WarsawCracow, 1948, p. 518.

^^1^^ Karol Wolfke, Custom in Present International Law, Wroclaw, 1964, p. 70.

~^^2^^ The existence of local customary rules is also mentioned in the documents of the International Court of Justice (see, for instance, Right of Passage Over Indian Territory Case. International Court of Justice, Re/torts of Judgments, Advisory Opinions and Orders, 1960).

~^^1^^ See, for instance, V. N. Durdenevsky, Sources of International Law, p. 57; A. N. Talalayev, Legal Nature of the International Treaty, p. 177; M. Genovski, Sources of International Law, p. 19.

~^^2^^ See, for instance, G. I. Tunkin, Theoretical Problems of International Law, pp. 109-11; V. Outrata, Mezindrodni prdvo vefejne, p. 26; A. Klafkowski, Prawo mie_dzynarodowe publiczne, Warsaw, 1964, p. 32; Ch. Rousseau, Droit international public, Paris, 1963, pp. 67-68.

~^^3^^ See Report of the International Law Commission Covering the Work of Its Sixteenth Session, A/CN. 4/173, July 30, 1964, p. 62.

12-495

Since the custom is based on agreement, it is binding only on the states accepting it, that is, its status is analogical to that of the treaty. There are also some peculiarities arising not from the substance but from the specific forms of the custom and the treaty. A treaty is a clearly expressed agreement, a custom is a tacit agreement. Consequently, agreement to take part in a treaty should be clearly expressed while the acceptance of a custom is often tacit.^^1^^

The most widespread evidence of a state's acceptance of customary law is its readiness to respect the law, the demand that this law should be observed, and also its enjoyment of the rights ensuing from this law.

Many Western lawyers hold the view that the customary rules established by a large number of states, including the leading powers, are binding on all states, including those which come into existence after the custom.^^2^^

In the light of what we have said above, it is obvious that this point of view is contrary to the very nature of present-day international law and its basic principles. It is repudiated by scholars from the socialist countries.^^3^^ Support for this viewpoint is tantamount to recognition of the fact that in the present system of international relations the numerous and powerful majority has the right to dictate its will in the form of customary rules to the less powerful countries which are in the minority. On what grounds? In present-day international law, based on the principle of the sovereign equality of states, there are no grounds for that.

States naturally play different roles in international affairs. They also exert varied influence on the formation of

general international law, for law reflects reality. But the other, legal, aspect of the question is important too. According to the principles of the international law of today, rules cannot be imposed upon a state against its will.

Like treaty rules, customary law rules embody the wills of states which are determined by society's standard of living. The attempts made to explain the custom as something related to human nature,^^1^^ etc., do not introduce anything new into the universally known theories of natural law. Theories reflecting the decisive significance of interstate agreements on the formation of customs^^2^^ do not accord with the facts and, what is more, are apt to exert a negative influence on international law.

There arises the question in theory and practice of the ability of international organisations to establish rules of customary law. In principle, the question is solved in the same way as the question of the participation of international organisations in the formation of treaty rules. International organisations can establish customary law rules in the sphere which is within their competence, namely, in the law of international organisations. But even here they can establish only derivative rules which develop and amplify the basic clauses of interstate treaties, primarily in the statutes of these organisations.

Despite the fact that the treaty is gradually replacing the custom even from its traditional spheres, the latter still plays a big part in international relations and international law. Custom should not be opposed to treaty---they have the same legal nature and common aims. They supplement each other and interact.

~^^1^^ For the significance of tacit acceptance see I. C. MacGibbon, "Customary International Law and Acquiescence", The British Yearbook of International Law, 1957.

~^^2^^ See, for instance, H. Kelsen, Principles of International Law, New York, 1952, p. 313; J. Basdevant, "Regies generates du droit de la paix", Recueil des cours, Vol. 58, 1936, p. 509 ff.; G. Morelli, Nozioni di diritto internazionale, Padua, 1951, § 19; J. Kunz, "The Nature of Customary International Law", The American Journal of International Law, Vol. 47 (1953), No. 4, p. 666.

~^^3^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 96 if.; P. I. Lukin, Sources of International Law, pp. 85-86; G. P. Zhukov, Critique of the Natural Legal Theories of International Law, Moscow, 1961, p. 99.

For a somewhat different view see C. Berezowski, K. Libera and W. Goralczyk, Prawo mie.dzynarodowe publiczne, pp. 110-11; A. Klafkowski, Prawo mifdzynarodowe publiczne, p. 26.

5. OTHER SOURCES OF INTERNATIONAL LAW

Various writers on the subject regard a great many different acts as sources of international law. By way of illustration, we could cite those which were held to be sources of law in Russian pre-revolutionary legal literature, which

~^^1^^ See, for instance, E. Sauer, Grundlehre des Volkerrechts, Cologne-Berlin, 1955, p. 10.

~^^2^^ See, for instance, G. Scelle, Manuel de droit international, Paris, 1948, p. 572; R. Ago, Scienza giurdica e diritto internazionale, Milan, 1950; J. Kunz, "The Nature of Customary International Law", The American Journal of International Law, Vol. 47 (1953), No. 4, p. 666.

12-

179

reflected the general state of the theory of international law of the time.

Besides the treaty, custom and the decisions of international organisations, it included: a) national law ( Byaletsky, Danevsky and Martens); b) decisions of international courts (Byaletsky, Stoyanov, Danevsky and Martens); c) decisions of national courts (Byaletsky, Danevsky and Martens); d) doctrine of international law (Stoyanov, Danevsky, Byaletsky and Martens); e) general principles of international law (Kachenovsky and Stoyanov); f) diplomatic acts (Stoyanov and Martens).

The decisions of international organisations, national law, the decisions of national courts and the doctrine of international law are not and cannot be sources of international law because they are not in a position to establish its rules. The significance of the above-mentioned factors is nevertheless considerable. They are important additional material for the interpretation of international law rules. This material has no legal validity, and its significance is gauged by its relevance. It is in this sense that one should interpret Clause ``d'' of Paragraph 1 of Article 38 of the Statute of the International Court of Justice, which says the Court shall apply "judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law".^^1^^

On the other hand, the above-mentioned factors play an important role in the preliminary stages of formation of international law rules. However, all these factors, taken separately or together, cannot establish rules of international law. They exert an influence on international law through the states' legal consciousness and will. A rule of law can come into existence only as a result of the will of states embodied in an agreement.

A principle may first be formulated in a national law, in a statement of an organisation, or in a scientific treatise. It may be recalled that many of the principles advanced and formulated by Hugo Grotius subsequently became rules of international law. But that was made possible by interstate agreements embodying these principles.

Widespread in Western literature is a view that the decisions of the International Court are of a law-making nature.^^1^^

However, analysis of the facts underlying the activities of the International Court proves that the court is not endowed with a law-making function. Such an important function cannot be implied; the powers vested in an organisation to exercise it must be set forth absolutely clearly. The task of the International Court is merely to apply the rules established by states to particular cases. This is confirmed by the practice of the International Court.^^2^^

Decisions taken by international organisations belong in the category of acts whose legal nature has now become a highly urgent problem. That is not fortuitous, considering the vast role such organisations play in international affairs.

There are various views about the legal nature of the decisions of international organisations. The range is extremely wide: from negation of their validity to their acceptance as important sources of international law.

The solution of this question requires a practical approach.

In referring to the binding force of the decisions of international organs and organisations, S. A. Malinin is

' See 0. Lissitzyn, The International Court of Justice, New York, 1951; H. Lauterpacht, The Development of International Law by the International Court, 1958; Q. Wright, The Role of International Law in the Elimination of War, 1961, p. 48.

~^^2^^ See, for instance, the International Court of Justice decision in the case concerning the Northern Cameroons (preliminary objections) of December 2, 1963 (International Court of Justice. Reports of judgments, Advisory Opinions and Orders, 1963, p. 22); the opinions of judges S. B. Krylov and F. I. Kozhevnikov, " International Court of Justice. Report of Judgments, Advisory Opinions and Orders", International Law, Moscow, 1964, p. 43; Yoshihiko Ogawa, "The International Court of Justice and Law-Making", Kwansei Gakuin Law Review, Vol. II, Nishinomiya, 1963, p. 33.

~^^1^^ It is noteworthy that pre-revolutionary Russian lawyers interpreted the above-mentioned ``sources'' in much the same way. F. F. Martens, who regarded "diplomatic negotiations and acts" as sources of international law, held that they were designed to serve only as an "important aid in clarifying the legal principles in international relations" (The Present-day International Law of Civilised Nations, St. Petersburg, 1898, Vol. I, p. 193). See also D. I. Kachenovsky, International Law---A Course of Studies, Kharkov, 1863, Part I, p. 48.

right in saying: "It all depends on whether or not the states or international organs are vested with such rights.''^^1^^

It is not fortuitous that the states have no intention of regarding the decisions of international organisations as sources of international law. This follows from the nature of present-day international relations, in which there is no place for suprastate power.

The authors who seek to prove that it is possible for international organisations of a suprastate nature to exist today and to adopt legally binding decisions by a majority vote usually cite the statutes of certain West European international organisations.^^2^^ What is more, they usually point out that membership in such organisations is open only to states already bound together by a close community of interests, culture, traditions, etc.

It should be noted from the start that the competence of these West European organisations is relatively restricted. It does not extend to issues of paramount importance. Moreover, if we consider not only their statutes but their implementation, we see that the experience of these West European organisations likewise proves that there is no place for suprastate power in present-day international relations. The members of these organisations prefer negotiation and the adoption of decisions by unanimous rather than majority vote.

It is significant, for instance, that Alting von Geusau, author of a voluminous treatise on West European organisations and advocate of wide powers for them, has nevertheless come to the following conclusion: "Although certain decisions in the ministerial bodies of these organisations can be taken by majority of their members, the practice of negotiating a (unanimous) decision seems to be predominant.'*

Developments following the establishment of West European organisations vested with the broadest possible

powers for the adoption of decisions have proved that the principles underlying their statutes are ineffective.^^1^^

It should therefore be recognised that the resolutions of international organisations are not, as a rule, sources of international law.

If in some particular case states wish to establish organs vested with the right to adopt binding decisions, this must be expressly stipulated. Such an important legal point cannot be presumed.

In some spheres of international co-operation the acts of international organisations adopted by member states through a simplified procedure have already established a considerable number of special rules. Revealing in this respect is the activity of such specialised international organisations as the World Health Organisation.

It should be noted that decisions adopted by international organisations serve as important sources of their internal law, although most of them are exclusively administrative, not of a generally normative nature.

What, then, gives the decisions of international organisations the nature of a source of rules? The answer is always the same: will, consent of states determined by the present-day conditions in the international arena. Binding decisions are the most suitable, and at times the only possible, means for the efficient solution of numerous problems concerning the specialised co-operation and internal activity of international organisations.

A particularly timely and widely discussed question is that of the extent to which U.N. General Assembly resolutions are binding. But this problem too is on the whole solved on a universal basis. With the exception of the decisions on the United Nations' internal law, General Assem-

* French Foreign Minister Maurice Couve de Murville told the National Assembly on October 25, 1965, that the commission set up under the Rome Treaty was given no "right to adopt decisions, with the exception of modest measures within the framework of current business. Its status, and that has been done deliberately, differs radically from the status of the High Authority of the European Coal and Steel Community. The latter's establishment was decided upon in a romantic epoch and it is a theoretical organ independent of governments. Experience has shown that such a system is not justified. The Common Market fathers have tried not to repeat such an experiment" (Za Rubezhom, No. 44, 1965, p. 10).

~^^1^^ S. A. Malinin, "A Propos of the Criteria of the Legality of U.N. General Assembly Resolutions", Jurisprudence, No. 2, 1965, p. 115.

~^^2^^ See, for instance, Alting von Geusau, European Organisations and Foreign Relations of States, Leyden, 1964; K. Skubiszewski, Uchwaly prawotworcze organizacji miedzynarodowych, Poznan, 1965,

~^^3^^ Alting von Geusau, Op. cit., p. 210.

bly resolutions are not sources of international law and are more or less binding only morally and politically.

Many lawyers attach particular importance to the General Assembly resolutions which are adopted unanimously or by the overwhelming majority of members, including states representing all the basic socio-political systems. Some Soviet lawyers hold that such resolutions can serve as sources of international law if they are recognised by the states.^^1^^ It should be said in this connection that the propositions may become rules of law not because they are contained in a General Assembly resolution but because the states consent to regard them as rules, that is, because of agreement among states.

Acceptance, being essentially the states' consent to some rule, is an element of agreement. Consequently, it plays an important role in international law. With its assistance, the states^ can turn a provision, whatever its form---whether a resolution adopted by an international organisation, a national law or a treaty concluded by other states, legal writings, etc.---into a rule of international law.

The states can thus make the provisions of U.N. General Assembly resolutions legally binding. That, however, requires more than just a unanimous adoption of the resolution. It demands that the states recognise the legally binding nature of the provisions of the resolution.

The fact that the resolutions of international organisations are not sources of international law should not lead to the underestimation of the part they play in the process of its formation and development. It is a well-known fact that both practice and theory attach much significance to such acts. Among the most important are the U.N. General Assembly resolutions adopted unanimously or by the overwhelming majority of states, including those representing all the basic socio-political systems.

The Soviet Union and the other peace-loving states have a high respect for the General Assembly resolutions adopted in accordance with the purposes and principles of the U.N.

~^^1^^ See International Law, Moscow, 1947, p. 24; International Law, Moscow, 1957, p. 9; International Law, Moscow, 1964, p. 43.

Much importance is also attached to unanimously adopted General Assembly resolutions by a number of prominent foreign lawyers (see, for instance, M. BartoS, Medunarodno javno bravo, Belgrade 1954 pp. 112-13).

Charter and aimed at strengthening peace, promoting cooperation, combating colonialism, etc. They faithfully abide by such resolutions and work with determination for their fulfilment.^^1^^

The acts of international organisations play an important part in expressing, clarifying, confirming and developing the rules of international law. This is due chiefly to the fact that the resolutions of universal international organisations, expressing the views of the states representing the basic socio-political systems, highly authoritatively interpret the contents of international law rules. These resolutions are authoritative acts expressive of the universal elements of international law, which is extremely important for determining the path along which international law is to develop.

Confirmation of any international law rules by a unanimous act of such an organisation as the U.N. means authoritative confirmation of their universal nature and validity. Such a confirmation undoubtedly helps greatly in strengthening the principles and rules thus confirmed.

The decisions of international organisations exert---- although not in any authoritatively legal way, it is true---a very serious influence on the content of the treaty rules established by bilateral and multilateral agreements. Their impact upon the rules of customary law, however, is especially great. Very often it is these decisions which help custom to keep abreast of the rapid developments of our age.

This interaction of the decisions of international organisations and custom are of considerable theoretical and practical interest. But, being a relatively new phenomenon, it has not yet been thoroughly studied.

Although the decisions of international organisations are

~^^1^^ The communique on negotiations between the Soviet Union and the United Arab Republic, published on May 19, 1966, said: "The U.A.R. Government has expressed satisfaction with the initiative displayed at the 20th Session of the U.N. General Assembly by the Soviet Union in proposing the adoption of a Declaration on the inadmissibility of interference in the domestic affairs of states and on the protection of their independence and sovereignty. The Parties urge complete respect for and observance of this important declaration, which was unanimously adopted by the U.N. General Assembly" (Pravda, May 19, 1966).

not legally binding, the authority of many is so high that customary rules are studied in the light of these acts. The states recognise that these acts correctly reflect the trends in the development of international law rules.

No little role in the development of the basic principles of international law is also played by the decisions of international organisations. Being authoritative acts reflecting and concretising international practice, these decisions exert a great deal of influence on the formation and development of international law principles. It must be re-emphasised, however, that this influence is controlled by the consent of states and is not exerted from suprastate positions.

Consequently, international organisations exert influence on international law chiefly through the effect they produce on the legal consciousness and practice of states. As a result of interstate agreements, their provisions find expression in international law.

In this connection it must be noted that it is wrong to contrapose the role international organisations play in the development of international law to the law-making role of states. Unfortunately, one often meets with this in legal writings on international organisations. Essentially, it is not so much a matter of organisations as of the states themselves. By taking an increasingly active part in international organisations, the states naturally exert a big influence on international law through this particular organisational form. True, the significance of the organisational form in general should not be underestimated either. The main thing, however, is that a present-day international organisation is not a suprastate power opposing the states, but an organ of states, a form of their co-operation.

broad sense of the word,^^1^^ or treaty acts. The form of the principle does not affect its legal force. The principle possesses legal force not because it is expressed in the form of a treaty or custom but because by its content it is one of the basic, that is, one of the most important, rules of international law.

In the past, the rules of general international law were established and amended by a small group of powers. The rights and interests of the weaker countries were not reckoned with; they were not active makers of world policies and international law.

Today, both international relations and international law are based on universality. Every state, irrespective of its size and power, has the right freely to voice its opinion. It is entitled to take part in the solution of world problems and in the establishment of international law rules of universal interest.

International affairs and international law are now becoming increasingly social: whereas in the past they depended overwhelmingly on the individualistic, nationalist interests of the leading powers, today the common interests of all countries are taken increasingly into account.

In the light of the above-mentioned facts, the importance of correctly solving the theoretical and practical problems concerning the sources of international law becomes even more obvious. The promotion of international legality and the successful progressive development of international law depend to no little degree on this.

Many authors single out the "basic principles" of international law as independent sources of international law.

Although the basic principles occupy a special, dominant position among the rules of international law, they nevertheless do not constitute any special, third source of international law either in substance or form. In substance, they are a universal agreement of states; in form, they are either unwritten rules, that is, a variety of customary law in the

~^^1^^ See V. N. Durdenevsky, "The Five Principles", International Affairs, No. 3, 1956, pp. 45-50; P. I. Lukin, Sources of International Law, p. 86; F. I. Kozhevnikov, "Universally Recognised Principles and Rules of International Law", Soviet State and Law, No. 12, 1959, p. 18; V. Outrata, Mezindrodni prdvo verejne, p. 28.

D. B. Levin, LL. D.

everything else only is a passive effect. There is, rather, interaction on the basis of economic necessity, which ultimately always asserts itself.''^^1^^ Moreover, like all other parts of the superstructure, politics may accelerate historical development, which is governed by objective social laws, or, on the contrary, retard it---and, consequently, it may be a progressive or regressive factor.

Politics covers the most diverse spheres of life of the state. The most important subdivisions are home and foreign policies. Foreign policy is the sum total of the state's aims and means of intercourse with other states and nations. It has its own specific features and own forms of implementation. Nevertheless, it is organically bound up with home policy. Foreign and home policies have the same basis--- the social system of the state. Their social content is the same too. The leading role in the maintenance of the state's social system is played by its home policy. Foreign policy is a continuation of home policy. Its aim is to strengthen the state's social system by improving its position in the system of states and to uphold the interests of the ruling class---in the Soviet state the interests of the entire people---beyond the bounds of the state. The home and foreign policies are both directed and controlled by the same supreme state organs: head of state, government and parliament. The special state organs directly responsible for foreign policy function in accordance with the procedure established by the Constitution or the operating laws.

Foreign policy is indissolubly bound up with diplomacy. Diplomacy is the most important instrument of a state's foreign policy.^^2^^ There are also other instruments of foreign policy, notably economic and cultural ties. But they have their own aims and tasks. Diplomacy, on the other hand, serves solely the aims of foreign policy and in a large measure predetermines the limits and ways for the employment of other instruments in foreign policy. Consequently, diplomacy may be regarded as the main, basic instrument of foreign policy.^^3^^ Today, when technology and culture are developing intensely and international economic, technical, humanitarian and cultural ties are expanding, the role of

HOW FOREIGN POLICY

AND DIPLOMACY INFLUENCE

THE ESTABLISHMENT OF INTERNATIONAL LAW RULES

The influence exercised by foreign policy and diplomacy on the establishment of international law rules is an element of the big problem of the correlation of foreign policy and international law, a problem of considerable importance for the determination of the substance of international law and its role in international affairs.

Politics is a very broad and multifaceted conception. According to Lenin, it is the "definition of the forms, aims and content of state activity".^^1^^ It covers both the purposes and principles of the state's activity and the methods of implementing them.

Marxism defines politics as a phenomenon engendered by objective social laws, although it does not deny the significance of subjective factors, including the aspirations, will and abilities of individuals. Lenin stressed time and again that politics had its own objective logic, irrespective of what persons or parties planned in advance.^^2^^ As an objective social phenomenon, politics is a part of the superstructure over the economic basis of society. Consequently, Lenin called politics a "concentrated expression of economics".^^3^^ At the same time, Marxism attaches much importance to the reverse effect which the superstructure has on the basis. "Political, juridical, philosophical, religious, literary, artistic, etc., development is based on economic development," Engels wrote. "But all these react upon one another and also upon the economic basis. It is not that the economic condition is the cause and alone active, while

~^^1^^ Lenin, Collected Works, Vol. 33, 5th Russ. ed., p.

~^^2^^ Ibid., Vol. 11, p. 379.

~^^3^^ Ibid., Vol. 32, p. 83.

340.

~^^1^^ Marx and Engels, Selected Works, Vol. II, p. 504.

~^^2^^ See Diplomatic Dictionary, Vol. I, Moscow, 1960, p. 457.

~^^3^^ See D. B. Levin, Diplomacy: Its Essence, Methods and Forms, Moscow, 1962, pp. 35-38.

other instruments of foreign policy has grown considerably. All the more important then is diplomacy's task of correctly co-ordinating the instruments of foreign policy.

The Great October Socialist Revolution, which ushered in a new era in human history, created the world's first socialist state which initiated a new, socialist foreign policy. It also gave rise to a new type of diplomacy---socialist diplomacy, which expresses the aspirations and interests of the masses and is an effective factor in world peace.^^1^^ The decisive superiority which the forces of socialism have achieved over the forces of imperialism in the international sphere, the widespread anti-colonial national liberation movement and the growth of the political activity of the masses have wrought a change in the objective laws governing international affairs. This change should be carefully taken into account when analysing the part foreign policy and diplomacy play in international law-making, in establishing new rules of international law and in developing them.

The content of international law rules is determined in the final count---and only in the final count---by the social system of states taking part in international relations. The establishment of the rules of international law is also considerably influenced by a number of intermediate factors which, in their turn, depend on the social system of the states concerned: their policy, particularly foreign, the principles and system of their national law, which to a greater or lesser extent tell on their international law positions, the ideology of their ruling classes and their political views and morals, legal consciousness, etc. However, both the social system of states and these intermediate factors influence international law rules through the will of states. The will of states is the indispensable element in the establishment of legal rules in all the branches of law. Nevertheless, it plays different roles in the establishment of rules in national and international law: while in national law the will of the state is formulated by the supreme organs through the promulgation of laws or normative acts and in some countries also with the aid of courts, in international law we meet with the will of many or several or at least two

states. These wills are first formulated by the diplomacy of each of these states---but by no means in the same way ---and are then co-ordinated with the aid of the same diplomacy by an interstate agreement or customary practice.¹ Consequently, diplomacy plays the leading role in the establishment of international law rules.

The diplomacy of different states naturally plays a different part in establishing international law rules. The part depends both on the role of the state in international affairs and on the nature of its foreign policy, the trend of this policy and its purposes and principles. Highly important too is the way the purposes and principles of the state's foreign policy and diplomacy correspond to the objective laws of social development. Even the Great Powers cannot, as a rule, long preserve the international law rules and institutions that have ceased to correspond to these laws. This is illustrated by the unsuccessful attempts made by the diplomacy of the colonial powers to keep the international law institutions of colonial policy in force. The attempts of the reactionary diplomacy of certain imperialist states to establish new institutes that would violate the universally accepted principles of international law, check the onmarch of history and hamper social development have even less chance of success.

International law-making is influenced considerably by progressive world public opinion. This influence has become considerably stronger in the last few decades with the increasing political activity of the masses and the growth of the part they play in international affairs. The influence exerted by public opinion on the newly-established rules of international law of course also passes through the will of states formulated by their diplomacy. It is exercised in unison with progressive diplomacy, with the diplomacy of the socialist states, with the diplomacy of most of the nonaligned states, and strengthens it. It is spearheaded against reactionary diplomacy, the diplomacy of the imperialist states and their satellites, and very often forces them to back down, to make concessions to world public opinion and to accept progressive international law rules even if

~^^1^^ See V. A. Zorin, Fundamentals of Diplomacy, Moscow, 1964, pp. 51-71.

~^^1^^ A detailed analysis of the process of establishment of international law rules is made in G. I. Tunkin's Theoretical Problems of International Law, Moscow, 1962, Chapters III and IV.

their content is utterly contrary to the wishes of the ruling class of these states. It was with the active support of progressive world public opinion that the principle of peaceful coexistence, advanced by the Soviet Union, the principle of non-aggression, the principle of peaceful settlement of international issues and other principles were included in international law. And it is under the influence of progressive public opinion that the principle of general and complete disarmament is now being established as a rule of international law.

Diplomacy plays its law-making part in different ways, this depending on the historical conditions obtaining in the given country, the level of its internal development and especially the international situation, as well as on the specific nature and the inherent properties of the international law rules themselves, the newly-established rules and the rules changing under the direct influence of diplomacy.

The diplomacy of one or several states may advance new political ideas or back the ideas advanced by socio-political quarters or movements in its own or other countries. It can get other states to accept these ideas as guiding principles of international intercourse binding on them all, that is, as generally accepted rules of international law. If they are general principles that have a direct bearing on international relations, their acceptance by all states or the overwhelming majority of states is tantamount to the establishment of new basic principles of international law. A number of important basic principles of present-day international law have originated in this way. These may also be principles relating to some separate branch of international law which have been internationally accepted thanks to the diplomacy of one or more states and which have made a major contribution to international law. We shall deal below with individual instances" of political ideas turning into principles of international law.

In speaking of international acceptance as a prerequisite for the transformation of the new political ideas advanced by diplomacy into generally recognised rules of international law, we should bear in mind that inasmuch as present-day international law is essentially the law of peaceful coexistence of states with differing social systems, such acceptance presupposes the participation in that process of states belonging to both systems. Without it no

normative act can be regarded as a rule of general international law in our day. It can at best become merely a rule of particular international law even if a large number of states have accepted it.^^1^^

Diplomacy naturally does not exert an influence on international law only by advancing political ideas in the international field, ideas that become rules of international law after they have been universally recognised. In defending and upholding the existing principles and rules of international law, and relying solidly upon them in determining the state's foreign policy, diplomacy tends to consolidate and develop them into instruments regulating international relations. Here is one example. Consistently implementing the international law principle concerning the peaceful settlement of international disputes, Soviet diplomacy has displayed the initiative in the conclusion of a whole number of agreements on conciliatory procedures, agreements on the settlement of border disputes, etc. It has thus helped enhance the part the principle of peaceful settlement of disputes plays in regulating international relations as well as develop the international law institutions based on this principle.

If the content of this or that rule of international law is not sufficiently clear and is shaping out under the direct influence of the practice of states, the international law position of the state may help clarify it. This is the way the rules concerning diplomatic immunity have finally been formed. The principle regarding the immunity of diplomatic representatives from civil jurisdiction of the country of residence took final shape only under the influence of the diplomatic and legal practice of many states which formulated their international law positions more or less uniformly. The rules of diplomatic immunity were then codified in the 1961 Vienna Convention on Diplomatic Relations which took full account of the international law positions of the signatory countries.

Diplomacy paves the way for the conclusion of agreements on the establishment of international law rules which regulate interstate relations in different spheres of interna-

~^^1^^ This important moment is rightly underscored by G. I. Tunkin in his Theoretical Problems of International Law, p. 101.

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tional affairs.^^1^^ In this it not only formulates the political ideas which are to constitute the basis of new rules but makes wide use of its country's jurisprudential experience, proceeding from the principles of its internal law, its legal and administrative practice and the opinions of its jurists, in making the content of these rules suitable for the country. This does not preclude the possibility of the diplomacy of this country taking recourse to the legal and administrative practice and the opinions of jurists of other countries, though it generally gives preference to the practice and doctrine of its own country.

The British jurist C. Wilfred Jenks draws special attention to this aspect of law-making in international relations. "During critical phases in the development of a legal system," he writes, "the quality of the craftsmanship which practitioners of the law bring to its service can have a decisive influence on the process of development and on the whole texture of the legal system resulting from that process of development.''^^2^^ He further explains that "good craftsmanship in international law must rest upon a solid foundation of sound scholarship".^^3^^ He then describes in detail the role which highly-qualified jurists working in the diplomatic services of the different countries and in international organisations play in the development of international law rules.

Among the international law issues in which diplomacy, participating in the establishment of the rules of international law, makes especially wide use of jurisprudence, particularly that of its own country, are international arbitration, the international responsibilities of states, certain aspects of the problem of succession in international law, etc.

Diplomacy works out constructive proposals for settling international problems and methods of regulating international affairs. In working out these proposals and then advancing and upholding them in the international field, it seeks to embody in them not only political decisions but legal obligations as well. And, as experience shows, the acceptance and implementation of the constructive pro-

~^^1^^ See I. I. Lukashuk, "Drawing Up International Treaties", Studies of the Kursky Law Institute, Issue I, Saratov, 1957.

~^^2^^ C. Wilfred Jenks, "Craftsmanship in International Law", The American Journal of International Law, Vol. 50, No. 1, 1956, pp. 32-33.

~^^3^^ Ibid., p. 33.

posals worked out and advanced by the diplomacy of a state or states are often linked with the creation of new rules and institutions of international law. A number of important international law institutions have in the last few decades come into existence largely thanks to the constructive proposals advanced by the diplomacy of the Soviet Union and other countries. They include primarily some of the institutions of general international law linked with the establishment and operation of general and specialised international organisations, with measures for the maintenance of peace, prevention and suppression of aggressive acts, and mutual assistance in the face of aggression, with the co-ordination of international co-operation in economic, cultural and humanitarian spheres, etc.

Diplomacy may thus take an active part in the establishment of new rules of international law, advancing new political ideas as guiding principles for the entire system of international law or any part thereof, working out with the direct assistance of jurisprudence the principles which will constitute the basis for the legal solution of particular problems of international relations, and advancing constructive proposals for the settlement of urgent international issues.

These are of course only the main points and they do not exhaust the variety of means used in diplomacy to influence the development of international law.

It is important to analyse, however, not. only the part diplomacy plays in international law-making but the peculiarities of this complex process, peculiarities engendered by the different social and historical conditions. Since these peculiarities are many and varied, we shall deal only with the main ones.

In the centuries of its development international law has gone through different stages: the stage of the social and ideological community of states maintaining international relations, the stage of the replacement of one socio-- economic formation by another, and the transitional stages when there were states with different social systems and different ideologies in the international arena.

The establishment of new international law rules in the conditions of the social and ideological community of states maintaining international relations was with a few exceptions a more or less evolutionary process in which a rather

13'

important part was played by the gradual recognition by states of the new principles and rules of international intercourse as customary rules of international law secured by treaties and agreements. It is thus that international law developed in the times of feudalism and capitalism, in the period of the establishment of the capitalist system and its undivided rule in European and American countries.

In the transitional periods when a new class came to power in some countries, creating a new social system and altering the content of international relations, this new content, though partially still vested in old international law forms, wrought changes in their political essence and at the same time required the establishment of new rules of international law. The states with a new social system advanced new principles and rules of conduct in international relations and worked for their universal acceptance as rules of international law. All through, the transitional period the struggle waged by the diplomacy of these states for their foreign policy interests was attended by the struggle of the new, nascent principles and institutions of international law against the old, obsolescent principles and institutions. Where the new social system triumphed, this struggle ended in the firm establishment of new principles and institutions of international law as well as in the modification of certain old principles and institutions in accordance with the new content of international relations. For instance, the struggle between the bourgeois and feudal principles in international law continued for more than half a century after the French Revolution of 1789 and ended in a complete victory for the bourgeois principles only in the mid-19th century, when the capitalist system was already firmly established in most of the countries of Europe and in America.

Attention should be drawn, however, to the substantial differences in the development of international law in the transitional periods of the past and the present. In the transitional periods in the past the struggle went on between the different socio-economic formations of exploiter society. Consequently, the struggle between the old and new principles of international law was rarely acute. On the whole, its sharpness was mitigated by the fact that both the old and the new formation were essentially exploitive

and that the latter to a large extent continued with the home and foreign policies of the former and shared its attitude to international law rules. For instance, although bourgeois diplomacy in the period of transition from feudalism to capitalism had proclaimed the principles of sovereignty and equality of nations and states and of noninterference in the domestic affairs of states, the international law forms securing colonial seizures remained and were only slightly ``modernised'', and these included whole institutions which helped ``legalise'' gross violation of the principles of sovereignty, equality, non-interference in the internal affairs of the underdeveloped countries which were the objects of colonial policy.

An utterly different situation has taken shape now, in the period of transition from capitalism to socialism, with the appearance in the world of socialist states whose social system means abolition of all exploitation and replacement of exploitive society by socialist and then communist society. The formation of the world socialist system, the emergence of the community of socialist states and their foreign policy and diplomacy are introducing much more profound and fundamental changes into international law than those introduced in the periods of transition of the preceding socio-economic formations. Today, when there exist socialist states, the national liberation movements in the colonial and dependent countries and the formation of newly-independent states exert far greater influence on the progressive and democratic development of international law than did the national liberation movements and the formation of new national states in the 19th century.

Under the influence of the socialist forces, the national liberation movement of the colonial and dependent peoples and the masses of the world, the bourgeois principles and rules of international law, according to which war was a legal means of settling international disputes and the different forms of colonial oppression were considered lawful, have given way to principles and rules of international law which proclaim aggressive war an international crime, recognise the right of all nations---big and small---to selfdetermination and equality, and declare all forms of colonial oppression unlawful.

Let us cite a few examples to illustrate the above-stated propositions on the influence exerted by foreign policy

and diplomacy on the creation of rules of international law.

One of the most important principles of international law, the cornerstone of its entire system, is the principle of sovereignty. The sources of this principle are to be found in the idea of supremacy and independence of state power advanced by the ideologists of limited monarchy (legists) and later by the ideologists of absolutism (Jean Bodin and Thomas Hobbes in Western Europe, Ivan Peresvetov in Russia) to justify their sovereigns' home and foreign policies. The latter applied this idea widely in their struggle against feudal disunity and against the claims to supremacy laid by the popes and the German emperors. It was under the influence of the diplomacy of the absolute monarchies that the principle of sovereignty in its feudal-patrimonial expression, that is, as the principle of the monarch's sovereignty, became part of international law. This principle was first officially recognised as a rule of international law in the Peace Treaty of Westphalia of 1648, which confirmed the independence of Switzerland, the Netherlands and 355 German states, although it had been earlier mentioned in the provisions of the Augsburg Peace Treaty of 1555 on their religious independence---which established that the religion of the monarchs was the religion of the subjects.

In the period of transition from feudalism to capitalism, notably in the period of the French bourgeois revolution, its ideologists (Jean-Jacques Rousseau, Sieyes, Robespierre, Marat, and others) advanced a new idea to replace the feudal idea of the monarch's sovereignty---the idea of popular sovereignty. In the years of the revolution this idea was proclaimed rather widely in constitutional and diplomatic acts but it did not and could not leave any lasting traces in the national and international law of the bourgeois states, apart from the purely declarative provisions concerning popular sovereignty in some bourgeois constitutions. As the bourgeois system gained strength, its ideologists and politicians began to replace the idea of popular sovereignty with that of state sovereignty, and it was this idea, though with a highly limited content, that became a legal principle of bourgeois national and international law. Bourgeois international law recognised the sovereignty of the capitalist states of Europe and America (the "civilised

states"), which acted in the international sphere as independent subjects of international law, and refused to recognise the right to self-determination and state independence of the colonial and semi-colonial countries. Under the influence of the colonial policy of the capitalist states international law institutions were formed which grossly violated the sovereignty of these countries: protectorate, capitulations system and other ``legalised'' forms of colonial oppression and enslavement.

In their struggle against capitalist exploitation and social and national oppression the working class and its Marxist-Leninist parties have advanced the idea of the right of all nations to self-determination, of the sovereignty and equality of all countries, irrespective of their size, strength and level of development. These ideas have been embodied in the state system of the multinational Soviet Union and its foreign policy which has helped them to reassert themselves in international law. In the early years of the Soviet state they constituted the basis of its international law relations with Turkey, Iran, Afghanistan, China and other Eastern countries upon which the capitalist states imposed diverse forms of political and legal dependence. Secured by the U.N. Charter at the proposal of the Soviet Union, the ideas of the self-determination and equality of nations became the basic principles of international law and were later reaffirmed and further developed in a special international act, the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was likewise adopted on the initiative of the U.S.S.R. These international acts render invalid the diverse forms of restriction of sovereignty which came into being in the era of capitalism. The international law principle of sovereignty thus came into existence and developed under the direct influence of foreign policy and diplomacy which introduced new political ideas into international practice and international law.

Another highly important principle of present-day international law---the principle of peaceful coexistence--- became a part of international law in the process of transition from capitalism to socialism under the influence of the foreign policy and diplomacy of the socialist states which uphold progressive ideas of peace, friendship and co-- operation among the nations. The idea of peace was time and

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again advanced by the progressive philosophers and politicians of the past, right from ancient times, but the ruling classes of the slave-owning, feudal and capitalist societies did not support it, and so it never became a dominant idea and could not assert itself in the international law of those periods. In the era of capitalism the idea of peace was resolutely upheld by the masses, particularly by the working class. It was proclaimed at a number of socialist congresses, starting with the one in Brussels in 1891 and ending with the one in Basle in 1912. Although it acquired much moral and political force, it could not penetrate into the sphere of state policy of the capitalist countries which pursued an imperialist militaristic policy. It was only after the Great October Socialist Revolution that the idea of peace began to turn into a principle of state policy and a rule of law. In its very first act---the Decree on Peace---the Soviet state proclaimed peace the basis of its foreign policy and condemned war as a crime against humanity. The influence exerted, on the one hand, by the foreign policy and diplomacy of the Soviet state, which consistently adhered to the idea of peace and constantly advanced new constructive proposals based on this idea, and, on the other hand, by the anti-war sentiment of the world's masses, whose political activity and role in international affairs had grown so much in the new historical conditions that the governments could no longer ignore them, led to the adoption of a number of international acts recognising non-aggression, pacific settlement of international disputes and condemnation of aggressive war as an international crime, as principles of international law.

Since the ideas of peace and prohibition of wars, advanced and actively supported by the forces of socialism, asserted themselves in international law in the transitional period, in the conditions of coexistence of socialist and capitalist states, there came into being the principle of peaceful coexistence of states with differing social systems, advanced as one of the most important principles of Soviet foreign policy by Lenin, the founder of the world's first socialist state. After the victory scored by the peace-loving peoples over the fascist aggressors in the Second World War and the formation of the community of socialist countries this principle became the foundation of international relations and international law and gave a new, more pro-

found meaning to its other basic principles. This found expression and confirmation in the U.N. Charter, in the special resolutions on the promotion of peaceful and goodneighbourly international relations adopted by the Twelfth and Thirteenth General Assembly sessions, in the 29-Nation Bandung Declaration on universal peace and co-operation, in the resolution on the consideration of the international law principles concerning the friendly relations and cooperation of states adopted by the Seventeenth U.N. General Assembly, in the Declaration of the Cairo Conference, of Non-Aligned States, and in many other multi- and bilateral acts.

The diplomacy of the socialist states in their relations with one another has helped create new, socialist international law principles and rules which may be described as principles of socialist internationalism. These are principles of fraternal friendship and close co-operation in political, economic and cultural spheres, obligatory mutual assistance, the raising of backward countries to the level of the advanced, etc.

As examples of the law-making activity of diplomacy, in which the latter relies on the principles of national law, its country's jurisprudential experience and legal doctrines, we may cite rules of international law such as the principle of the freedom of the seas, the principle of the legal immunity of foreign states, rules on the right to refuge, extradition of criminals, etc.

The principle of the freedom of the seas became a part of international law after a struggle of more than 150 years waged by the diplomacy of Holland and other young bourgeois states against the feudal states' claims to ownership of certain seas. In this struggle bourgeois diplomacy cited legal writings which substantiated the demand for the freedom of the seas by references to the Roman Law, natural law and the judicial and administrative practice of states.^^1^^

A big role in the establishment and substantiation of the principle of the legal immunity of foreign states was played by references not only to the general principles of international law, sovereignty, diplomatic immunity, etc., but

~^^1^^ See Hugo Grotius, De jure belli et pads; Emerich de Vattel, Law of Nations; Higgins and Colombos, The International Law of the Sea.

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to the practice of national courts.^^1^^ The principle of the right of refuge for political criminals, first advanced by the diplomacy of revolutionary France and supported by the diplomacy of other bourgeois states in the struggle against the reactionary policies of the European feudal monarchies, was initially proclaimed in constitutional and diplomatic acts and was secured in internatonal treaties only after it had been widely recognised as a principle of law. The rules concerning political refuge and the rules about the extradition of criminals, in particular, took shape in international law in such a manner that the extraditional conventions were formed largely along the same lines as some states' rules of national law and sometimes even contained direct references to these rules.^^2^^

Some vivid examples of the significance the constructive proposals advanced by diplomacy have for law-making may be met in the problem of disarmament. Disarmament became one of the most important principles of the foreign policy of the Soviet Union which had from the very start been advancing constructive proposals for the implementation of this principle. Under the influence of the struggle for disarmament waged by socialist diplomacy the disarmament problem began to play an increasingly important part in international politics and the principle of disarmament started to acquire importance as an international law principle too. This found expression in its confirmation by the U.N. Charter (Articles 11 and 26).

The resolution on general and complete disarmament adopted by the Fourteenth General Assembly and the principles concerning disarmament negotiations approved by the Sixteenth General Assembly are a step towards the recognition of disarmament as a principle of international law and the development of a whole number of international law rules arising from the need to implement this principle.

Thus, as a result of diplomatic activity, chiefly that of the Soviet Union, and the constructive proposals following therefrom, "the principle of disarmament is becoming one

of the universally accepted principles of international law, a principle imposing definite obligations upon the states at the present stage".^^1^^

Socialist diplomacy's influence on the development of international law also manifests itself in other spheres of international law: collective security, permanent neutrality and neutralisation of certain territory with a view to creating guarantees for peace, peaceful uses of outer space, etc.

The examples cited above, illustrative of the influence exerted by foreign policy and diplomacy on the development of international law, also show that at present the most important and active part in international relations is played by the foreign policy and diplomacy of the socialist states which are the main motive forces of historical progress in all the spheres of human life, including the sphere of international relations and international law.

~^^1^^ See M. M. Boguslavsky, Immunity of Foreign States, Moscow, 1962, Chapter I.

~^^2^^ See L. Oppenheim, International Law, Vol. I, Sth ed., LondonNew York-Toronto, 1957, pp. 697-98, 704-07.

~^^1^^ 0. V. Bogdanov, "International Aspects of the Implementation of General and Complete Disarmament", Soviet State and Law, No. 6, 1962 pp. 88-89; Universal and Complete Disarmament, Moscow, 1964, Vol.'l,

D. I. Feldman, LL. D.

greater the need for international law regulation. This determines the importance of the establishment of interstate relations and the role of recognition in international law.^^1^^

Recognition in international law is an act of sovereign states (clearly expressed or tacit) testifying to the emergence of a new sovereign formation or a new government, and is aimed at the establishment by the recognising and recognised states of relations whose nature and volume depend on the modes of recognition and its forms.

The new sovereign formations to which recognition may be granted are either newly-independent states or peoples fighting for independent statehood who have established organs of public power. As for the governments, the only recipients of recognition are the new governments which come to power in an existing state as the result of radical changes in its political life, in an ``unconstitutional'' way. It goes without saying that they can expect recognition only if their emergence into the international field does not violate the basic principles of international law.

The mode of recognition has no legal significance: it may be either explicit or implicit. Recognition connotes a statement, it has no constitutive force.

There are two basic theories regarding the legal substance of recognition: constitutive and declarative.

The constitutive theory of recognition came into existence at the beginning of the 19th century and has taken firm root. Its main principles form the basis of diplomatic and juridical practice of certain bourgeois states to this day. The most prominent supporter of the constitutive theory of recognition in the last few decades has been Hersch Lauterpacht who has affirmed that the recognition of a new state is "a momentous, decisive and indispensable function of ascertaining and declaring the existence of the requisite elements of statehood with a constitutive effect for the commencement of the international rights and duties of the community in question".^^2^^

The constitutive theory is an ideological weapon of the old world which seeks by all possible means to retard an irresistible process---the formation of new states on the

~^^1^^ See Laszlo Buza, "The Trend of Development of International Law", Questions of International Law, Budapest, 1964, p. 8.

~^^2^^ H. Lauterpacht, Recognition in International Law, Cambridge, 1948, p. 51.

RECOGNITION OF STATES AND GOVERNMENTS IN PRESENT-DAY INTERNATIONAL LAW

The radical changes occurring in the international field exert a vast influence on the development of international relations and the international law that governs them. The institutions of international law transformed most are those employed by the people in their struggle for national and social liberation.

A big role is played by recognition of states and governments.

This institution unites the rules of international law linked with the emergence of new states (subjects of international law) or new governments representing old states.

The specific feature of relations between the recogniser and the recognised is that one of the parties is always a state (subject of international law) already taking part in international intercourse and international relations and the other is a new state, a new government, or organs of national liberation struggle.

Another specific feature is that such relations follow from the act of recognition itself, irrespective of whether or not the recognising and recognised states establish treaty, diplomatic, consular or other relations with each other. These are relations between subjects of international law bound to observe in their relations the universally accepted principles and rules of international law and free to enter into any international law relations whenever they deem it to be in their interest. Recognition creates a legal basis for all subsequent relations between the recognising and recognised states.

One objective law of current development is the expansion of international economic, political and cultural ties. The more complex international relations become, the

ruins of colonial empires. The constitutive theory is invalid.^^1^^

Its principles contradict the universally accepted principles and rules of international law, according to which the formation of new states (subjects of international law) does not depend on recognition. Many bourgeois jurists (Josef L. Kunz, Chen Ti-chuang, Jean Charpentier and others)^^2^^ have been forced to admit this. Reflecting the policy of the most reactionary circles in the imperialist countries, constitutivism falsifies the nature of relations engendered by the act of recognition.^^3^^

The declarative theory of recognition was advanced in reply to the constitutive theory which could not and did not supply the answer to many questions raised by international affairs.

The declarative theory, which came into existence in the struggle against feudal absolutist regimes during the formation of bourgeois national states, was definitely progressive in nature. Although it has undergone substantial changes in the process of its development, it still evokes sharp criticism from certain representatives of the bourgeois international law doctrine.^^4^^

Soviet jurists have approached the declarative theory of recognition with a critical eye and have introduced important new elements into its content.^^1^^ They emphasise the declarative, not the constitutive, significance of the act of recognition and attribute to it all the aspects of recognition without exception. They do not regard recognition solely as an informative act: it is important politically and entails serious legal consequences.^^2^^ But it does not create new subjects of international law.

The name ``declarative'' does not quite characterise the content of this theory inasmuch as the act of recognition does not only declare the fact of the emergence of a new state or government but helps it stabilise its international position and implement the basic rights which it can claim irrespective of recognition.

The overwhelming majority of the jurists in the socialist countries support the declarative theory of recognition.^^3^^

In the question of whether recognition is a voluntary or compulsory act, the absolute majority of bourgeois jurists support the discretional theory which regards recognition as a voluntary act. The discretional theory objectively justifies official non-recognition of the new sovereign peaceloving and truly democratic states and new governments.

Describing the substance of the discretional doctrine in his monograph on recognition, French jurist Jean Charpentier speaks mostly of non-recognition. "Recognition," he writes, "is a discretional doctrine. The states are free not

~^^1^^ See R. L. Bobrov, "Two Questions of Theory of Recognition of New States and Governments", Soviet State and Law, No. 1, 1958; Y. M. Kazarovets, Problems of Recognition of New States and Governments in Present-day International Law, Moscow, 1958; D. I. Feldman, Recognition of States in Present-day International Law, Kazan, 1965; Fundamentals of Present-day International Law, Vol. 3, Moscow, 1967, and others.

~^^2^^ J. Kunz, Die Anerkennung von Staaten und Regierungen im Volkerrecht, Stuttgart, 1928, p. 25; Chen Ti-chuang, The International Law of Recognition, London, 1951, p. 4; J. Charpentier, La reconnaissance Internationale et devolution du droit des gens, Paris, 1956, pp. 190-93.

~^^3^^ The eclectic trends in the theory of recognition, which have appeared in recent years and which aim at reconciling the constitutive and declarative conceptions, are in effect tantamount to advocacy of constitutivism in present conditions (neo-constitutivism). See J. Starke, An Introduction to International Law, London, 1958, p. 108; R. Patel, Recognition in the Law of Nations, Bombay, p. 35.

~^^4^^ In the early post-war years the attack on the declarative theory of recognition was led by H. Kelsen and H. Lauterpacht. See H. Kelsen, "Recognition in International Law", The American Journal of International Law, Vol. 35, Oct. 4, 1941; H. Lauterpacht, Op. cit., Chapter V.

Later, the declarative theory was sharply criticised by Patel (R. Patel, Op. cit., pp. 11-17).

~^^1^^ See E. Pashukanis, Studies of International Law, 1935, p. 88; F. I. Kozhevnikov, Textbook of International Public Law (Studies), Moscow, 1947, pp. 55-56; International Law, edited by Y. A. Korovin, Moscow, 1951, pp. 176-77; G. I. Tunkin, Fundamentals of Presentday International Law, Moscow, 1956, pp. 20-21; International Law, edited by F. I. Kozhevnikov, Moscow, 1964, p. 171; International Law, edited by D. B. Levin and G. P. Kaluzhnaya, Moscow, 1964, p. 109; Fundamentals of Present-day International Law, Vol. 3, Moscow, 1967, pp. 11, 12, and others.

^^2^^ For details see L. A. Mojoryan, "Significance of the Recognition of States and Governments at the Present Stage", Questions of the Theory and Practice of Present-day International Law, Moscow, 1960, p. 20 ff.

~^^3^^ See Istvan Herczeg, Allamok es kormdnyok elismerese, Budapest, 1959; Mikhail Genovski, Fundamentals of International Law, Sofia, 1956, p. 94; Milan F. Bartos, Medunarodno javno pravo, 1954, p. 198; Vladimir Paul, "Uznani statu a vlady v pravu mezinarodnim", Studie z mezinarodniho prdva, Prague, No. 7, 1963, p. 97.

to recognise (my italics---D.F.]; they are free to recognise if it does not impinge on anyone's rights.''^^1^^ The chapter in Charpentier's book about the discretional nature of recognition begins with a section called "Freedom Not To Recognise".^^2^^

In the view of bourgeois jurists and diplomats discretion is essentially arbitrary interpretation of the freedom of states to recognise or not recognise other states. However, if the recipient of recognition does not meet the requisites of recognition, then its recognition is illegal no matter what political considerations guided the states recognising it (for instance, recognition of South Rhodesia). If the recipient of recognition meets the requisites but is stubbornly denied recognition, then this is not only a hostile act but, in the light of Paragraphs 2 and 3 of Article 1 of the U.N. Charter, urging development of friendly relations among nations and international co-operation in solving international problems, illegal as well.

The non-recognition of certain socialist states by imperialist states and reference to the discretional nature of recognition both testify to the fact that the discretional theory of recognition militates against the principles of peaceful coexistence.

The discretional theory is also used to justify the nonrecognition of new states arising in the flames of national liberation struggles. The imperialist countries do not voluntarily grant freedom to the colonial peoples or withdraw from the countries they exploit. They resort both to armed force and non-military, notably diplomatic, measures to prevent the colonial peoples from winning and upholding their independence. But they can no longer diplomatically blockade any new state as they did the world's first socialist state.^^3^^ The overwhelming majority of the states and governments formed after the war have been recognised diplomatically. This is one of the proofs that

the general line of development of international law and its institutions is determined by the laws governing social development.^^1^^

The illegality of non-recognition of new states follows from the principle of peaceful coexistence and the right it gives states to take part in international intercourse.

At the same time, after the adoption by the Fifteenth U.N. General Assembly of the Declaration on the Granting of Independence to Colonial Countries and Peoples, one may speak of a new rule now in the process of formation--- the right of the newly-independent states to international law recognition and the obligation of the other states to recognise them. Solemnly proclaiming the need for putting an immediate and unconditional end to colonialism in all its forms and manifestations, and reaffirming the nations' right to self-determination, the Declaration plays a big part in introducing this new rule into present-day international law. This is an important contribution to the progressive development of international law, and a mighty blow at imperialism which seeks to suppress the peoples' aspirations to freedom, independence, democracy and progress.^^2^^

Non-recognition of newly-independent states is unlawful. It is incompatible with the basic principles of present-day international law and first and foremost with the principles of peaceful coexistence and self-determination.

Experience shows that the practice of not recognising the newly-independent states is becoming a thing of the past. In effect, there is already a customary law obliging the states to recognise newly-independent states.^^3^^ Refusal to do so and pressure upon other countries to force them not to recognise a state are incompatible with present-day international law.

In the course of the discussion in the U.N. Special Committee in 1964 on the Principles of International Law Concerning Friendly Relations and Co-operation Among

~^^1^^ J. Charpentier, Op. cit., p. 313.

~^^2^^ Ibid., p. 285.

~^^3^^ For details see R. L. Bobrov, "International Law Recognition of the Soviet State", Studies of Leningrad State University, 1948; A. L. Narochnitsky, "Recognition of the Soviet Union by Capitalist Countries", International Affairs, No. 9, 1957; S. Olenev, International Recognition of the U.S.S.R., Moscow, 1962; A. Leonidov, "The Policy of `Non-Recognition' in the Past and Present", New Times, No. 23, 19(54.

~^^1^^ For details see G. I. Tunkin, Theoretical Problems of International Law, Moscow, 1962, p. 220; L. Antonowicz, Lixwidacja kolonializmuze Stanowiska prawa mie_dzynarodowego, Warsaw, 19G4, pp. 176-78. and others.

~^^2^^ See D. I. Feldman, Present-day Theories of International Legal Recognition, Kazan, 1963, p. 46.

~^^3^^ J. Kirsten, "On the Participation in the Conference on the Right of Treaties", Soviet State and Law, No. 1, 1968, p. 118.

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States, Czechoslovakia suggested that states should refrain from exerting any pressure, including threats to disrupt diplomatic relations, as a means of forcing a state not to extend recognition to another state. This proposal reflects the international law in force. Just as unlawful as nonrecognition are the various doctrines of non-recognition, such as the notorious Hallstein Doctrine^^1^^.

Soviet international jurists wrote even before the Second World War that the emergence of a state was first and foremost a historical fact, and that international law had to reckon with it as such.^^2^^ This conception was subsequently developed in the socialist science of international law.

The appearance or disappearance of a state is a fact which has definite juridical consequences.^^3^^ The first question that arises with the appearance of a state is when it becomes a subject of international law.

The overwhelming majority of the states emerging after the war came into existence as a result of their peoples exercising the right to self-determination.^^4^^

The formation of new states after the Second World War reveals that the problem of their becoming subjects of law is now solved differently. Today, when the world socialist system exerts a decisive influence on world development, the overwhelming majority of the new states become active participants in international intercourse and full-fledged subjects of international law, even if some Western powers deny them recognition. Neither the U.N. Charter nor the General Assembly resolutions on the principles of selfdetermination and peaceful coexistence make the recognition of new states a prerequisite for their full participation in international affairs.

The birth of a new state and the appearance of a new subject of international law are simultaneous processes.

There are no grounds for the claim that states become subjects of law only after they have been recognised.

The formation of a state---that is, a subject of international law---should be freely decided upon by the nation itself.*

According to present-day international law, neither the existing states taken individually nor the states united in international organisations can endow a new state with the attributes of a subject of international law. It acquires them as the result of its people exercising their right to form an independent state.

Recognition by no means produces subjects of international law. It merely creates a legal basis for relations between the recognising and the recognised states. However powerful a new state may be, it cannot exist by itself. Isolation is unnatural and in fact impossible.

Acknowledgement of the emergence of a new sovereign state and the intention to establish relations with it find expression in the act of recognition.

The question of whether a new state (subject of international law) has really emerged is solved as a rule with the aid of certain criteria.

The main condition is that the appearance of any new formation claiming to be a subject of international law should not contravene generally recognised principles of international law and particularly the principle of selfdetermination.

Thanks to the Soviet Union, self-determination of nations has become one of the most important principles of present-day international law. A nation exercising its right to self-determination by establishing an independent state in full conformity with this principle acts in the international field as an independent sovereign state, a subject of international law.

One of the most important attributes of a subject of international law is political independence. What distinguishes the subjects of international law---the states---is

~^^1^^ For details, see D. I. Feldman, "Illegality of the Hallstein Doctrine", Soviet Yearbook of International Law, 1962, Moscow, 1963, pp. 158-65.

~^^2^^ Y. Pashukanis, Studies of International Law, 1935, p. 84.

~^^3^^ See L. A. Mojoryan, Subjects of International Law, Moscow, 1958, p. 15; G. I. Tunkin, Theoretical Problems of International Law, p. 47; V. Outrata, Mezindrodni prdvo vefejne, Prague, 1960, p. 94; L. A. Mojoryan, Basic Rights and Duties of States, Moscow, 1965, p. 85.

~^^4^^ See G. V. Ignatenko, From Colonial Regime to National Statehood, Moscow, 1966, pp. 36-53.

~^^1^^ See G. I. Tunkin, Theoretical Problems of International Law, p. 47; N. A. Ushakov, Sovereignty in Present-day International Law, Moscow, 1963, p. 86; V. Paul, "Uznani statu a vlady v pravu mezinarodnim," Studie z mezindrodmlio prdva, Prague, No. 7, 1963, p. 173.

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their sovereignty, i.e., supremacy on their territory and independence in international relations.^^1^^

The entry of a new state, of a new subject of international law in the social-class sense, into international intercourse does not mean its admission to the membership of any international organisation; a new state becomes a party to international intercourse by virtue of its existence.^^2^^

And the emergence of a new state is a socio-political and legal fact directly influencing not only some already existing state or group of states but the entire international law community.

the governments that really exercise government power as what they are in fact".^^1^^

In present-day international law an end has also been put to such a prerequisite for recognition as the fulfilment of the international obligations of the old regime. This has been graphically evidenced in international law practice by the recognition of the Soviet socialist state and other states of the world socialist system.^^2^^

Recognition of a new government means that the recognising states regard it as the sole representative of the given state in international intercourse.^^3^^

While refusing to recognise some of the new socialist governments, the imperialist states continue to recognise the overthrown regimes, the diplomatic representatives they had appointed, the agreements they had signed, and so on. This practice fully contradicts international law which deals with the real representatives of states that are subjects of international law, and not with fictions.

The question of recognising a government arises when its advent to power in an ``old'' state is not the result of the usual constitutional procedure but that of a revolution or a coup d'etat.^^3^^

In international relations a state is represented by the government which factually and independently exercises power on its territory.^^4^^

The criteria for the recognition of new governments are different from those for the recognition of new states. The main is effectiveness. In relation to governments, it usually implies real possession of state power. It must be obvious that the new government is viable, that it exercises state power. The effectiveness of new power naturally also means its genuine independence. Back in 1918, in its Note of November 25, the People's Commissariat of Foreign Affairs said "the Russian Government always recognises the factually existing governments as such and recognises

Recognition ensures favourable legal conditions for constructive interstate co-operation and facilitates the establishment of diplomatic relations.

In the documents on full official recognition, the establishment of diplomatic relations is regarded as one of the most important consequences of recognition. True, there may be a considerable interval between recognition and the establishment of diplomatic relations, and sometimes diplomatic relations are not established altogether. The realisation of this very important consequence of recognition depends not only on the recognising states but on the

~^^1^^ See Fundamentals of International Law, Vol. 1, Moscow, 1967, pp. 146-47.

~^^2^^ See R. L. Bobrov, Present-day International Law, p. 61. See also N. A. Ushakov, Sovereignty in Present-day International Law, p. 86. "By virtue of its sovereignty," he writes, "a new state inevitably enters into relations with the already existing states, irrespective of whether or not it has been recognised.''

See also N. A. Ushakov, "Subjects of Present-day International Law", Soviet Yearbook of International Law, 1965, p. 62.

~^^3^^ See M. I. Lazarev, Coup d'etats in Latin America (International Lawful Recognition of New Governments], Moscow, 1967, Chapters III and IV.

~^^4^^ See G. I. Tunkin, Fundamentals of Present-day International Law, Moscow, 1956, pp. 22-23.

~^^1^^ See Soviet Foreign Policy Documents, Vol. I, Moscow, 1957, pp. 576-77.

~^^2^^ See N. V. Zakharov, "A Propos of the Subjects of International Law Under a Social Revolution---Some Questions of Succession in Law," Soviet Yearbook of International Law, 1960, Moscow, 1961, p. 161; M. M. Avakov, The Soviet State's Succession in Law, Moscow, 1961, pp. 57-86; N. V. Zakharov, Influence Exerted by Social Revolution upon the Force of International Agreement, Moscow, 1966, pp. 26-64; The International Law Association Report of the FiftySecond Conference, Helsinki, 1966, pp. 558-59, and others.

~^^3^^ For details on criteria for recognition of new governments see D. I. Feldman, Recognition of Governments in International Law, Kazan, 1961, pp. 16-51.

recognised state too. Diplomatic relations may be established only by mutual consent (Art. 2 of the Vienna Convention on Diplomatic Relations, 1961). Inasmuch as a new state is a full-fledged subject of international law from the moment of its inception, the equal part played by the wills of the recognising and recognised states in the establishment of diplomatic relations rules out the possibility of the recognising state enjoying any advantage. Recognition of new governments usually entails restoration rather than establishment of diplomatic relations.

Establishment of consular relations may follow either full official recognition or incomplete recognition; in much the same way as in the establishment of diplomatic relations, recognition may be implied and does not have to be verbally expressed. The establishment of consular relations in the absence of diplomatic relations does not mean that official recognition is incomplete.

Among other consequences of recognition is the conclusion of bilateral international treaties which are expressive of the co-ordinated wills of states regarding their reciprocal wills and obligations in the political, economic and other spheres.

The bilateral treaty is one of the most important juridical consequences of recognition. Moreover, its conclusion is one of the manifestations of implied official recognition. Although there are instances of bilateral treaties being concluded in the absence of recognition, the sphere of these treaties, as M. Lachs rightly says, is narrow and limited.¹ In principle, the conclusion of bilateral treaties by states is regarded as evidence of their official recognition of each other.^^2^^ The question here is of course only one of bilateral treaties in the usual sense. If it is a matter of a treaty in which each party consists of several states, the rule operating in the question of relation between recognition and the treaty is the one in force for multilateral treaties.^^3^^

Analysing the documents of the U.N. International Law Commission on the codification of the law of treaties, one

may conclude that the refusal of some states to recognise each other cannot prevent the unrecognised state from taking part in open multilateral treaties and that the joint participation of states in such treaties does not imply official recognition.^^1^^

However, at the signing of a general multilateral treaty there appear factual and juridical ties among all the parties, including those which do not recognise one another.² These ties are regulated both by the provisions of the treaty, the parties to which do not all recognise each other, and by general international law rules. This, however, complicates international relations.

Recognition is not indispensable for the participation of a new state or a new government in international conferences and organisations.^^3^^ The right of a new state to take part in international organisations by no means depends on recognition. As a subject of international law, it is entitled to this. Ensuring the new state greater scope for exercising the rights it possesses as a subject of international law, recognition may help it exercise its right to membership in internatonal organisations but it does not create this right. There is no legal link between the recognition of this right and membership in international organisations. There is nothing in the statutes, charters or other documents of any international organisation that makes the admission of any state to their membership conditional on its recognition by other member states. The question of the link between recognition of new states and their representation in international organisations is solved in a similar way.^^4^^

~^^1^^ See Report of the International Law Commission on the Work of its Fifteenth Session, May 6-July 12, 1963, General Assembly Official Records, Eighteenth Session, Supplement No. 9 (A/5509); see also L. N. Ryabtseva, Depository of International Multilateral Treaty

and Recognition of States. Collection of Post-Graduate Theses in 1965, Kazan, 1966, pp. 143-51.

~^^2^^ See N. N. Ulyanova, "Recognition of States and Governments and Participation in Multilateral Treaties," Soviet Yearbook of International Law, 1961, Moscow, 1962, pp. 319-20.

~^^3^^ See V. S. Nesterov. ''Some Problems Concerning the Organisation of International Conferences," Soviet State and Law, No. 4, 1959, p. 94; J. Kirsten, "On the Participation in the Conference on the Right, of Treaties", Soviet Stale and Law, No. 1, 196S, p. 118.

~^^4^^ See D. I. Feldman, "Recognition of States and Membership in International Organisations", Soviet Yearbook of International Law, 1961, p. 59.

~^^1^^ M. Lachs, "Recognition and Modern Methods of International Co-operation", The British Yearbook of International Law, 1959, Oxford, 1960, pp. 253-54.

~^^2^^ G. I. Tunkin, "Non-Aggression Pact: Important Step Towards Detente", International Affairs, No. 10, 1963, pp. 9-14.

^:! For details see A. N. Talalayev, Legal Nature of International Treaty, Moscow, 1963, p. 43.

L. A. Mojoryan, LL. D.

became a practice to conclude international treaties under which states pledged to "conduct themselves impartially" (unparteusches Uerhalten),^^1^^ to "abstain from war" ( gerrarum abstinentia},^^2^^ to "sit still" (stille sitzen, se tenir tranquille).^^3^^ Gradually there came into existence the practice of neutralising certain territories on which it was forbidden to erect fortifications or keep troops. Article 10 of Savoy's treaty with Geneva of June 21, 1603, said, for instance, that "His Highness the Duke [of Savoy---L.M.] agrees not to keep armed men, erect fortifications or maintain garrisons within four leagues from the city of Geneva".^^4^^ The conception of neutrality thus had two aspects in the period of feudalism: a state's attitude to the belligerents and its conduct in peacetime.

The first of these aspects was especially widely developed at the end of the 18th century and in the 19th century. As in the preceding periods, war as a means of settling interstate disputes was not forbidden during the development of capitalist relations. What is more, the so-called "right to war" was recognised as "one of the fundamental rights" of states. Wars, however, caused damage to trade and navigation, and this impelled governments to take steps to limit the sphere of military operations and ensure the security of neutral states and citizens in wartime. It was with this aim in view that rules of conduct for belligerent and neutral countries were worked out and were subsequently secured by the Hague conventions of 1899 and 1907.

The concept of neutrality in peacetime was likewise developed in the 19th century. There came into existence the status of permanent neutrality, with the states concerned promising to follow a policy which would prevent their being involved in a war between other states. One of such states is Switzerland (since 1815). Belgium preserved the status of permanent neutrality from 1831 to 1914 and Luxemburg from 1867 to 1914. Another notion that came into being was that of the demilitarised and neutralised

NEUTRALITY IN PRESENT-DAY INTERNATIONAL LAW

1. CONCEPTION OF PRESENT-DAY NEUTRALITY AND ITS PECULIARITIES

Neutrality, positive neutrality, constructive neutrality, active neutrality, neutralism, freedom from alliances, nonalignment---such is by far not the complete list of terms used in characterising the international law status of the 25 states which took part in the Belgrade Conference of 1961 and the 47 states which attended the Cairo Conference of 1964. To this it should be added that the position of Switzerland and Austria is defined as perpetual neutrality and that of Sweden as traditional neutrality.

It is only natural that in studying the problem of neutrality one should be guided less by the terminology itself than by its content.

The most widely used term is "non-aligned states", and this predetermined its employment when the Belgrade and Cairo conferences were convened in 1961 and 1964. It should be noted, however, that the most common, historically justified and legally clear-cut definition is the term "`neutrality''.

In its classical sense ``neutrality'' connotes the status of a state which refrains from taking part in a war between other states and which in peacetime pursues a policy that cannot involve it in a war.

As any other phenomenon of public affairs, the concept of neutrality is not immutable. Its content has been variously interpreted at different stages of world history.

Some elements of neutrality existed even in relations between the ancient Greek city-states which sought to restrict the theatre of war. The institution of neutrality was further developed in the period of feudalism, when it

~^^1^^ See Wolfgang Krauel, Neutralitat, Neutralisation imd Befriedung in Volkerrccht, Munich-Leipzig, 1915, p. 7.

~^^2^^ Anglo-Danish convention of 1463 (see Maurice Henry, Les causes de la Neiitralitc de la Suisse et son Attitude Pendant la Guerre de 1914-1918, Geneva, 1934, p. 17.

~^^3^^ Zurich's treaty with Leopold III (see Krauel, Op. cit., p. 7).

~^^4^^ See Krauel, Op. cit., p. 69.

``free city". A number of treaties provided for the neutralisation of border areas, islands (the Aland Islands, for instance), and important international waterways (for example, the Suez Canal).

After the Great October Socialist Revolution in 1917, the world's first socialist Soviet state proclaimed in its Decree on Peace that the imperialist war was the greatest crime against humanity. The vast impact made by the Decree on Peace on the masses led to the prohibition of aggressive wars being further developed in a number of international law acts (League of Nations Covenant, Briand-Kellogg Pact, etc.)

The Second World War was followed by the formation of a powerful world socialist system. The peaceful coexistence of states with differing social systems, based on mutual respect by states of one another's sovereign equality and non-interference in one another's domestic affairs, is an objective requisite for the development of human society. Military technique has reached such a level that the only alternative for mankind is peaceful coexistence or catastrophic thermonuclear war. War as a means of settling international disputes is no longer the "right of states", it is forbidden by present-day international law. Aggressive war is considered the greatest crime against humanity. Neutrality in wartime is losing its old meaning.

Nevertheless, many present-day bourgeois international jurists find it possible in studying the question of neutrality in general and permanent neutrality in particular to reduce the whole issue to non-participation in war, entirely ignoring its political and legal consequences in peacetime. Thus, shortly before the Second World War, Nicolas Politis defined conventional and permanent neutrality as one when a country is "bound by a treaty to observe in all cases and never to start an aggressive war".^^1^^ Entirely ignoring the changes that have taken place since then, notably the appearance of the vastly destructive nuclear weapons and admitting that the concept of neutrality and political neutrality or freedom from alliances are not identical, West German jurist Heinz Fiedler does not in fact draw any line between them. He defines neutrality as "a legal status governing relations between belligerents and non-bellige-

rents in wartime" and "political neutrality or freedom from alliances" as "a state's readiness not to take part in alliance treaties which would bind it to enter the war".^^1^^

Neutrality in peacetime, which is becoming particularly important, has almost nothing in common with the peacetime neutrality of the 19th century and even that of the first half of this century, when it meant passive non-- participation in world developments capable of provoking military conflicts. It is no accident that the policy of peacetime neutrality became especially widespread in the 1950s, that is, in the years when the Western powers were knocking together their reactionary military-political blocs in Europe and Asia. Since these blocs endanger peace and imperil the independence and sovereignty of new national states, the policy of neutrality can no longer be a policy of passive observation of developments which could lead the world to a devastating thermonuclear war. The states proclaiming neutrality as a rule take an active part in the struggle for world peace and security, peaceful coexistence of states and international friendship.

It should be noted that although the number of new national states adhering to the policy of neutrality is growing, their rights and duties and the procedure of legally formulating the policy of neutrality and its guarantees are not sufficiently clearly defined. The absence of a clear definition of the status of neutrality facilitates its violation by the member states of aggressive military blocs. The question of the international law status of neutral states is a highly important one. It was discussed by the 1961 Belgrade and 1964 Cairo conferences of the nonaligned states and by the Seventh Congress of the International Association of Democratic Lawyers and its Special Committee in 1960-61.

The Declaration adopted by the heads of state or government of the non-aligned countries at the Belgrade Conference enumerates the tasks set themselves by the states pursuing a policy of neutrality in peacetime. They include 1) active struggle for peace; 2) support of the principles of peaceful coexistence and condemnation of the cold war; 3) support of steps aimed at the unconditional, immediate

N. Politis, La neulralite et la {iaix, Paris, 1935, p. 35.

~^^1^^ H. Fiedler, Der sowjclisclic A'eutralitiitsbegriff in Theorie nnd Praxis. Ein Beitrag zum Problem dcs Disengagement, Cologne, 1959, p. 19.

and total abolition of colonialism, struggle for the withdrawal of foreign troops from colonial territories, support for the peoples fighting for the right to self-determination and concerted effort to "end all varieties of neo-colonialism and imperialist domination"; 4) assistance and support of all countries opposing the maintenance of foreign military bases on their territory, and 5) efforts to "remedy the economic imbalance inherited from colonialism and imperialism".^^1^^

The Cairo Declaration of October 11, 1964, outlined in detail the foreign policy platform of the non-aligned states which urged concerted action for the elimination of colonialism, neo-colonialism and imperialism; respect for the right of all peoples to self-determination and condemnation of the use of force to prevent the exercise of this right; concerted action of all states against racial discrimination and political apartheid; peaceful coexistence and codification of its principles by the United Nations; respect for the sovereignty of states and their territorial integrity; pacific settlement of international disputes and differences in accordance with the principles of the U.N. Charter; general and complete disarmament, peaceful use of atomic energy, prohibition of all nuclear weapon tests, establishment of nuclear-free zones, nuclear non-proliferation, destruction of all nuclear weapons, abolition of all foreign military bases, and withdrawal of foreign troops.^^2^^

The Belgrade and Cairo conference documents do not define the status of states pursuing a policy of neutrality in peacetime. Nevertheless, they show the way this status should be formulated.

Present-day neutrality may be classified, first, by its legal form; secondly, by the methods of its observance by the other states, and, thirdly, by its content, determined by the rights and duties of neutral states.

2. THE LEGAL FORM AND OBSERVANCE OF PRESENT-DAY NEUTRALITY

As may be seen from international practice, present-day neutrality may be given a legal form by the following acts:

1) unilateral declaration by the state wishing to follow a policy of neutrality and its tacit or clearly expressed recognition by other states; 2) bilateral agreement, and 3) multilateral agreement, in which neutrality may be recognised or both recognised and guaranteed. In all these cases, the status of neutrality is predicated upon agreement between states.

The unilateral declaration does not by itself create rules of international law. The observance and respect of such a declaration follows from the fact that the recognition of a state and the establishment of diplomatic relations with it presuppose the recognition of its domestic legislation and foreign policy principles, provided of course they are not directed against the basic rights of other states and do not contradict the guiding principles of present-day international law. To impart greater clarity and legal binding force to domestic legislation and unilateral declarations of neutrality statesmen often strive for their official recognition by other governments. In such cases recognition may assume the form of bilateral or multilateral agreement. Austria's permanent neutrality, for instance, was established by the Federal Constitutional Act of October 26, 1955. In that same year Austrian neutrality was recognised in the unilateral declarations of forty states. Today it is universally recognised.

Sweden's neutrality, proclaimed as a guiding foreign policy principle to which she has traditionally adhered, has been officially recognised by a number of states. In the Soviet-Swedish communique of April 8, 1956, the Soviet Government declared that the Soviet Union would continue to respect "Sweden's non-alignment and peaceful policy".^^1^^

But while Austria's neutrality presupposes a definite international law status in times of both peace and war, the traditional policy of neutrality pursued by Sweden is based on a unilateral declaration. As far as Sweden is concerned, she is bound to maintain neutrality only in relation to the states with which she has concluded appropriate agreements.

The legal form of Afghanistan's neutrality is similar in nature. Neutrality is one of the guiding foreign policy principles of this country. The Soviet-Afghan Treaty of

~^^1^^ Sec Conference of Heads of State or Government o[ Non-aligned Countries, Belgrade, 1961, pp. 208-75.

~^^2^^ See New 'rimes, No. 42, October 21, 1964, p. 9.

~^^1^^ hvestia, Apr. 4, 1956.

Neutrality and Non-Aggression of August 31, 1926, somewhat amended and prolonged in 1931 and then in 1955, legally secured Afghanistan's policy of neutrality.

A bilateral agreement, however, may also contain an exclusively bilateral obligation on the part of the contracting states to remain neutral in relation to each other in peacetime. This is the nature of the treaties of non-- aggression and neutrality concluded by the Soviet Union with a number of European states in-between the two world wars. The peace-loving Soviet Union concluded these treaties in an effort to promote good-neighbourly relations with other states and ease international tension. Such treaties were signed with Germany on April 24, 1926, and Italy on September 2, 1933. They did not establish a status of neutrality for Germany and Italy in general but they would have played a big part in strengthening European peace had the fascist rulers of Germany and Italy really shown any desire to observe them. Instead, they violated them by taking the path of aggression and thus plunged mankind into the Second World War.

Lastly, neutrality may be given legal form by multilateral agreements in which it is either recognised or both recognised and guaranteed by the Great Powers bearing special responsibility for the destinies of the world. The neutrality of Switzerland, which has succeeded in keeping out of international conflicts for more than 150 years,¹ well illustrates the importance of such multilateral agreements.

A declaration on the neutrality of Laos was signed in June 1962 at the International Conference on the Settlement of the Laotian Question in Geneva.^^2^^ Stressing its significance for the peaceful development of Laos in his message to the Soviet Government of August 20, 1962, Prince Norodom Sihanouk, the Cambodian Head of State, urged the Great Powers to recognise and guarantee the

neutrality of his country too. The message said: "Territorial claims backed by the use of armed force---incursions across the border, violations of air space, recent occupation of parts of our territory by foreign troops---may soon, I am afraid, create an extremely dangerous situation which could lead to an international conflict whose consequences cannot now be foreseen." The Soviet Government emphasised in its reply that "the Soviet Union has always deeply respected Cambodia's neutrality, which is the basis of her foreign policy" and that it "fully understands and supports" the proposal that the powers which took part in the conference on the settlement of the Laotian question should officially recognise and guarantee the neutrality and territorial integrity of Cambodia too.^^1^^

The other socialist states also replied positively to Cambodia's proposal. On January 18, 1964, the U.S.S.R. Foreign Ministry handed to the British Ambassador in Moscow the draft of a joint proposal by the co-chairmen of the 1954 Geneva Conference on Indo-China to convoke a conference on Cambodia in Geneva in April of that year.

This conference was never held on account of the negative attitude of the Western powers, notably the United States.^^2^^

There are two kinds of guarantees of neutrality: a guarantee under which each guarantor power is bound to protect the guaranteed rights irrespective of whether this is done by the other guarantor powers, and the "collective guarantee" under which the guarantor powers are obliged to act together. The first kind of guarantee was given Switzerland in 1815 and Belgium in 1831,^^3^^ the second---to Luxemburg in 1867/*

~^^1^^ Pravda, Aug. 25, 1962.

~^^2^^ For details see B. V. Ganyushkin, Neutrality and Non-Alignment, Moscow, 1965, p. 63 ff.

^a Belgium's permament neutrality, treacherously violated by Kaiser Germany in 1914, was officially disaffirmed by the Paris peace treaties of 1919-20.

~^^4^^ The powers guaranteeing the perpetual neutrality of Luxemburg, likewise violated by Germany in 1914, withdrew their guarantees after the First World War. However, in its communication to the Secretary-General of the League of Nations of April 28, 1923, the Government of the Grand Duchy declared that the treaty of May 11, 1867, which had legally secured Luxemburg's neutrality, "is still in force" and that Luxemburg was, consequently, "an independent, indi-

~^^1^^ The Act of November 20, 1815, recognising and guaranteeing Switzerland's permanent neutrality and territorial integrity, was signed by the representatives of Austria, France, England, Russia, Portugal and Prussia.

~^^2^^ The Declaration was signed by Burma, the Democratic Republic of Vietnam, India, Cambodia, Canada, China, Poland, the Republic of Vietnam, the Soviet Union, Great Britain, the United States, Thailand, and France.

The declaration on the neutrality of Laos did not define the nature of guarantees. It merely specified that the signatories "undertake, in the event of a violation or threat of violation of the sovereignty, independence, neutrality, unity or territorial integrity of the Kingdom of Laos, to consult jointly with the Royal Government of Laos and among themselves in order to consider measures which might prove to be necessary to ensure the observance of these principles and other provisions of the present Declaration".^^1^^ What action---collective or individual---the guarantor powers will take in the event Laotian neutrality is violated thus depends on their consultations with the Government of Laos and with one another.

Another distinctive trait of the guarantees given Laos is that one of the guarantors of her neutrality---Cambodia--- has herself proclaimed a policy of neutrality. As international law practice shows, it has hitherto been held that a neutral state can only recognise but not guarantee the neutrality of another state inasmuch as that is fraught with the danger of its being involved in a war. Cambodia's position follows from the new content of the concept of neutrality: active struggle for peace and the right of all states to individual and collective self-defence allow the neutral states to take part in guaranteeing the neutrality of the states whose security is indissolubly connected with their own.

not defined in quite the same way in different acts. The most complex phenomenon is positive neutrality, also sometimes called active, dynamic or constructive neutrality.

The policy of positive neutrality has been proclaimed chiefly by the states which recently freed themselves from colonial dependence and for which peace is inseparable from freedom. They are waging a resolute struggle for a just, democratic peace, against colonialism and neo-- colonialism, against military blocs which threaten their freedom and security, and against the foreign military bases and foreign troops which menace their territorial integrity and sovereignty.

The Cambodian Constitutional Act of January 12, 1957, defines neutrality as a duty to "refrain from entering into any military or ideological alliances with foreign states" and "never to start any aggression against any foreign state". At the same time, the Act stresses that Cambodia reserves the right to appeal for help to friendly powers in the event she is attacked from without.^^1^^

Although the neutrality of Laos, like that of Switzerland, has been secured by an international agreement among the countries guaranteeing it, it is much closer in content to Cambodian neutrality. In its statement of July 9, 1962, the Laotian Government formulated the basic principles of neutrality and said it would 1) demand of all states to respect the country's sovereignty, independence, unity and territorial integrity; 2) prohibit interference in any form in the domestic affairs of Laos; 3) demand the withdrawal from Laos of all foreign troops and bar their re-entry in the future; 4) accept assistance from all states willing to give it unconditionally, and 5) annul all international treaties and agreements militating against the interests of the Laotian people, their peace policy and neutrality, and notably against the Geneva agreements of 1962. While proclaiming these rights, the Laotian Government voluntarily assumed the following duties: 1) firmly to implement the five principles of peaceful coexistence in international relations and to promote friendly relations with all countries, primarily with the neighbouring ones,

3. THE RIGHTS AND DUTIES OF NEUTRAL STATES

The legal content of present-day neutrality is determined by the rights and duties of neutral states. The definition of these rights and duties requires taking into account the national and international law acts giving legal force to the proclamation, recognition or guarantee of neutrality. These rights and duties, it should be noted, are

visible, inalienable and perpetually neutral state" (see Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1947, Vol. I, p. 117). It was only on December 21, 1944, that the Grand Duchess of Luxemburg officially renounced perpetual neutrality.

~^^1^^ International Conference on the Settlement of the Laotian Question, London, 1962, p. 17.

~^^1^^ See Leon Pignon, "Le prince Sihanouk a loyalement applique en toute occasion la politique de neutralite, Lc Monde Diplomatique, April 1961, p. 5.

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on the basis of equality and providing they respect the independence and sovereignty of Laos; 2) not to resort to the threat or use of force or jeopardise the peace of other countries; 3) not to take part in any military alliances or any military or other agreements that are incompatible with neutrality; 4) not to allow foreign countries to build military bases on Laotian territory^^1^^; 5) not to allow any country to use Laotian territory for military purposes or for interfering in the domestic affairs of other countries; 6) not to accept assistance in defence from any alliance or military coalition, including SEATO,^^2^^ and 7) to observe all treaties and agreements signed in the interests of the Laotian people and in accordance with the policy of peace and neutrality of Laos and the Geneva agreements of 1962.^^3^^

Neutrality today does not mean only non-alignment or prohibition of foreign military bases but also active struggle for the country's national independence, against colonialism and neo-colonialism, for world peace and security.

At the present level of technical development, the struggle for peace is indispensable. The active nature of neutrality as an element expanding the peace zone is illustrated by the policy followed by the Asian, African and Latin American countries which have refused to be drawn into Western powers' imperialist blocs. But the neutrality of European states can no longer be of the same nature as the passive "freedom from alliances" characteristic of the permanently neutral states of the past.

Neutral Finland is an active champion of peace and of the peaceful coexistence of states with differing social systems. Asked by an Austrian TV interviewer whether Finland's treaty of friendship, co-operation and mutual assistance with the Soviet Union in any way restricted her neutrality, President Urho Kekkonen said: "The treaty obligations refer only to Finland's defence of her own territory. They may be considered concrete obligations for Finland to prevent her territory from being used as a base

or for passage of troops in an attack on the Soviet Union. Such obligations in no way contradict our policy of neutrality.''^^1^^

Traditionally neutral Sweden does not keep aloof from the struggle for peace either. The Soviet-Swedish communique of June 26, 1964 said that the Soviet Union "highly appreciates Sweden's policy of neutrality and regards it as a major contribution to peace and stability in Northern Europe. The Soviet Union and Sweden have reaffirmed their desire to do everything to facilitate measures which could ease tension and consolidate peace in Europe.''^^2^^

The duties of the neutral states, envisaged in the acts legally securing their policy of neutrality, may generally be summed up as follows: 1) non-participation in GreatPower military blocs and military-political actions; 2) nonparticipation in actions directly or indirectly connected with military blocs, and 3) refusal to acquire nuclear weapons. The last ensures least respect for and observance of neutrality.

Like all other countries, neutral states have a right to demand respect for their territorial integrity, to protect themselves from aggression, and to prevent interference in their domestic affairs. In the event of an armed attack, they have the right to both individual and collective self-defence. The participants in the 1962 Geneva Conference on the settlement of the Laotian question, including the five Great Powers, pledged not to establish in Laos and not to help the establishment or reconcile themselves to the establishment in that country of any foreign military bases and strongpoints or any other military installations.^^3^^

If a country's neutral status is guaranteed by other states, it is entitled to demand that the guarantor powers fulfil their obligations in the event of necessity.

4. INVALID ARGUMENTS OF THE OPPONENTS OF PRESENT-DAY NEUTRALITY

The thesis advanced by some Western international jurists that present-day neutrality is incompatible with the

~^^1^^ It was in accordance with this provision that Laos and France reached agreement in December 1962 on the transfer to Laos of French military installations at Seno.

~^^2^^ This is both the right and the duty of Laos.

~^^3^^ For details about Laotian neutrality see O. N. Khlestov's article in Soviet State and Law, No. 5, 1963, pp. 91-100.

~^^1^^ Za Rubezhom, No. 33, Aug. 15, 1964, p. 22.

~^^2^^ Pravda, June 27, 1964.

~^^3^^ See Soviet State and Law, No. 5, 1963, p. 99.

purposes and principles of the United Nations is thoroughly invalid. Regretting Sweden's refusal in the spring of 1949 to join the North Atlantic Treaty because it was contradictory to her traditional policy of neutrality, Norwegian Professor Nils Orvik claimed that neutrality was incompatible with U.N. membership and with the Charter.^^1^^ A similar view is expressed by Isidro Fabela who claims that "neutrality is incompatible with the spirit and the letter of the U.N. Charter" and that "from a legal point of view, a state adhering to the U.N. Charter cannot be neutral".^^2^^ One of the commentators of the U.N. Charter, Hans Kelsen, likewise asserts that the Charter repudiates the idea of neutrality.^^3^^

An analysis of the U.N. Charter will show, however, that the policy of neutrality fully accords with the purposes and principles of the Charter and the principles of collective security. While the establishment of aggressive military blocs is incompatible with the purposes and principles of the United Nations and the spirit and the letter of its Charter, the policy of neutrality fully accords with these purposes and principles if only because it means nonparticipation in war---cold or hot---and in aggressive military blocs and prohibition of foreign military bases and troops on the territory of neutral states.

If the Security Council decides to apply sanctions against an aggressor, the U.N. member states, including those pursuing a policy of neutrality, are bound by Article 25 of the Charter to take part in them. This article says the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter. Participation in sanctions will in such a case be an act of indispensable defence, a legitimate reaction to aggression.

If it is a matter of economic sanctions, one cannot but agree with the arguments advanced by the well-known Austrian lawyer Alfred Verdross who says that in accordance with Article 41 of the U.N. Charter the Security

Council can release a neutral state from its obligation to participate in economic sanctions.^^1^^

As for the participation of neutral states in military sanctions, it is possible only by special agreement with the Security Council governing the numbers of forces, the volume of assistance and nature of facilities, and the granting of the right of passage. The right of the neutral countries to participate in military sanctions is not denied in principle either by the neutral countries themselves or the other states.

It should be noted that the Cairo Declaration of the Heads of State or Government of Non-aligned Countries envisaged sanctions against Portugal which is waging a brutal war against the peoples of Angola, Mozambique and Portuguese Guinea in an attempt to suppress the national liberation movement and refusing to recognise their right to self-determination and independence. The Cairo Conference urged the participating countries to sever diplomatic and consular relations with the Salazar Government and to take effective measures to stop trade and all other economic intercourse with Portugal. They condemned racial discrimination in Rhodesia and the annexation of South-West Africa by South Africa. They called upon all states to stop deliveries of arms, equipment and oil to South Africa and to carry out the U.N. resolutions to this effect.

There are a number of international documents confirming the compatibility of the policy of neutrality with the obligations entailed by membership in world organisations set up to maintain international peace. Although Switzerland got the League of Nations to recognise her right not to take part in the sanctions provided for in Article 16 of the Covenant, the resolution of the League Council on the admission of Switzerland of February 12, 1920, said: "The Council recognises that the perpetual neutrality of Switzerland and the guarantee of the inviolability of her territory as incorporated in the Law of Nations, particularly in the Treaties and in the Act of 1915, are justified by the interests of general peace and as such are compatible with the

~^^1^^ See Nils Orvik, The Decline of Neutrality 1914-1941, Oslo, 1953, pp. 256-57, 253.

~^^2^^ I. Fabela, Neutralite, Paris, 1949, p. 145.

~^^3^^ H. Kelsen, 'Ihe Law of the United Nations, New York, 1950, p. 94.

?.28

~^^1^^ A. Verdross, "Austria's Permanent Neutrality and the United Nations Organisation", 77(6' American Journal of International Law, No. 1, 1950,'p- 60.

Covenant.''^^1^^ When Luxemburg joined the League of Nations, the following special article was inserted in her Constitution: "The Grand Duchy of Luxemburg is a perpetually neutral state without detriment, however, to the obligations contained in the League of Nations Covenant." Sweden joined the United Nations at its inception without any reservations. The Soviet-Swedish communique on the talks which took place in Moscow from March 29 to April 4, 1956, said: "Sweden is pursuing her traditional policy of freedom from alliances in peacetime with the aim of maintaining neutrality in the event of war within the framework of the obligations imposed upon her by U.N. membership.''^^2^^

Some of the non-aligned states are members of such international organisations as the Arab League and the Organisation of African Unity, whose task is to ensure peace and security, sovereignty and non-interference, and to promote a joint struggle against aggression and colonialism in all their forms and manifestations. Membership in these organisations does not impinge upon the neutrality and independence of the states concerned. On the contrary, it strengthens them.

The status of neutrality thus not only does not preclude but presupposes membership and active participation in the U.N. and other international organisations destined to consolidate world peace, as well as active participation in the struggle against aggressive war and for an effective system of collective security.

sive military blocs), and dispossesses them of their ``right'' to war. This argument, however, does not hold water. If sovereignty is restricted, it is in the system of imperialist military blocs which are a form employed by powerful states to impose their will on others. Admission to military blocs is usually preceded by the economic penetration of the strong countries into the weak and the latter's political subordination. The powerful states use military pacts to legalise the establishment of bases and maintenance of troops in other countries and to enable their economic, political and military advisers to interfere in these countries' internal affairs.

The Cairo Declaration of October 11, 1964, said: "Noting with concern that foreign military bases are in practice a means of bringing pressure on nations and retarding their emancipation and development based on their own ideological, political, economic and cultural ideas, the Conference declares its full support to countries which are seeking to secure the evacuation of foreign bases on their territory and calls upon all states maintaining troops and bases in other countries to remove them forthwith.''^^1^^

Far from infringing upon the sovereignty of the states following it, the policy of neutrality now offers them wide opportunities to pursue an independent home and foreign policy in the interests of the nation and its security.

For the states which have broken out of colonial fetters, the policy of neutrality is a form of struggle against neocolonialism, against attempts to drag them into war preparations undertaken within the system of aggressive imperialist military blocs. The urge for neutrality increased among many Afro-Asian and Latin American countries after the appearance of the reactionary SEATO and CENTO military blocs. This is not surprising, for in these blocs the Western powers are setting the national states against one another and are at the same time seeking to legalise the military bases on the territory of these states and to subordinate them to their influence. Any attempt _to prolong the colonial order in any country is fraught with the danger of military conflict while the establishment of military bases and the maintenance of armed forces on the territory of new states, as well as other manifestations of

5. IMPORTANCE OF PRESENT-DAY NEUTRALITY

IN THE STRUGGLE FOR PEACE

AND INDEPENDENCE AND AGAINST COLONIALISM AND NEO-COLONIALISM

One of the most widespread arguments advanced by the opponents of neutrality is that it ``undermines'' the independence of states, restricts their activity in international affairs, deprives them of the right to membership in the so-called "security system" (meaning membership in aggres-

~^^1^^ Charles Cheney Hyde, International Law Chiefly As Interpreted and Applied by the United States, Boston, 1947, Vol. I, p. 113.

~^^2^^ Pravda, Apr. 4, 1956.

International Affairs, No. 11, 1964, p. 109.

neo-colonialism, imperil their sovereignty and security, and that is why they are bitterly resisted by their peoples! Neutrality is an effective means of struggle against the alien yoke, for world security and national sovereignty.

The policy of present-day neutrality is an answer to the policy of establishing aggressive military blocs and alliances. It helps expand the zone of peace, promotes peaceful coexistence and general security, and strengthens world peace. This explains the warm support given by the Soviet Union and other socialist states to the policy of genuine neutrality in all its forms, especially to the policy of positive neutrality which presupposes an active struggle for peace and the freedom and happiness of all peoples.

A. P. Movchan, LL. M.

THE HUMAN RIGHTS PROBLEM IN PRESENT-DAY INTERNATIONAL LAW

(U.N. Charter on Human Rights)

The appearance and affirmation in present-day international law of the principle concerning universal respect for the fundamental human rights and freedoms vividly testify to the progressive development of international law.

This principle was unknown in the old, ``traditional'' international law. Few treaties and agreements dealt with the protection of human rights. These included agreements on the struggle against slavery and slave trade, white slavery and traffic in children, and treaties on respect for the rights of religious and national minorities.

The need for international law principles to regulate the struggle against slavery and slave trade arose in the first quarter of the 19th century with the development of capitalist relations and the replacement of non-economic coercion by economic. Principles concerning the respect for certain rights of the national minorities were included in the Versailles system of treaties to substantiate the recarving of the political map of Europe after the First World War, as a result of which these minorities made their appearance.

The above-mentioned agreements to a certain extent played a constructive role. They helped abolish slavery and slave trade, led to the qualification of these disgraceful phenomena as crimes under international law, and brought about the condemnation of all discrimination against the minorities' rights. Moreover, the conclusion by states of treaties and agreements concerning the protection of certain human rights showed that international co-operation in this sphere was perfectly feasible.

However, it was only with the emergence of the Soviet

state that the principle concerning universal respect for the fundamental human rights really appeared and established itself.

In its Declaration of the Rights of the Peoples of Russia (November 1917) and Declaration of the Rights of the Toiling and Exploited People (January 1918), the Soviet Government proclaimed and secured full social equality, the rights of the peoples to self-determination, and the free development of the national minorities and ethnic groups, and abolished all national privileges and restrictions. The idea of universal human freedoms was incorporated in the constitutional acts of the Soviet state which made the equality of all citizens in all spheres of life irrespective of their nationality, race, sex and religion, an immutable feature of Soviet socialist society. The Soviet state was the first in human history to grant socio-economic rights to its citizens---the right to work, rest, education and social security.

In its foreign policy documents and actions the Soviet state has repeatedly and persistently drawn the attention of all states and nations to the fact that respect for human rights and for the people's dignity and democratic freedoms is indissolubly bound up with respect for the rights of the peoples, with their establishment of friendly relations with one another and, consequently, with the consolidation of international peace and security.

Developments on the eve of the Second World War proved that preparations for aggressive wars entail infringement of the rights and freedoms of wide sections of the population. The onslaught on people's political and civic freedoms by the reactionary ruling element is an inevitable consequence of the policy of unleashing aggressive wars.

Before launching her aggressive war, nazi Germany had crushed the last vestiges of bourgeois democratic freedom at home and established a regime of complete lawlessness and tyranny. The war she started led to the suppression of all human rights in the occupied countries. Fascism exterminated millions of entirely innocent people.

Restoration of the freedom and independence of the nations enslaved by fascism, of the democratic rights and freedoms trampled upon and desecrated by the nazis, was one of the main goals of the anti-fascist liberation struggle in the Second World War.

The demands of the peoples for the re-establishment and

protection of human rights and basic freedoms were reflected in the declarations of the states of the anti-Hitler coalition^^1^^ and secured as international law principles in the U.N. Charter. Its preamble, for instance, says the peoples of the United Nations are determined "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small" and "to promote social progress and better standards of life in larger freedom''.

The practical embodiment in the U.N. Charter of the peoples' demands for the protection of human rights and world peace was to a large degree determined by the postwar growth of national liberation movements and the forces of democracy and peace.^^2^^ The records of the San Francisco Conference and the various treatises on the U.N. Charter show that it was largely due to the initiative of the Soviet Union that the principles concerning human rights were inserted in the Charter.^^3^^

The Charter is the international document which, for the first time in the history of international relations, has secured the principle of universal respect for fundamental human rights and freedoms for all without distinction as a principle of international law.

One of the purposes of the United Nations, according to the Charter, is to achieve international co-operation "in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion" (Para. 3, Art. I).^^4^^

~^^1^^ Anglo-American Declaration of August 14, 1941; Soviet Government Declaration of September 24, 1941; U.N. Declaration of January 1, 1947.

~^^2^^ See G. Tavrov, "International Defence of Human Rights", Soviet State and Law, No. 7 ,1948.

~^^3^^ See Webster, The Making of the Charter of the United Nations, offprint from History, March 1947, Vol. 33, No. 115, p. 35; H. Lauterpacht, International Law and Human Rights, New York, 1950, p. 146.

~^^4^^ This was made one of the main purposes of the United Nations at the San Francisco Conference following the amendments introduced by four powers (U.S.S.R., U.S.A., Britain and China) to the proposals worked out at Dumbarton Oaks. These joint amendments were based on the proposals drawn up by each of the four powers at the beginning of the San Francisco Conference. The Soviet delegation, for instance, proposed to insert a principle concerning the " encouragement of respect for human rights, notably the right to work and the

The fact that the U.N., which has been set up to maintain international peace and security, should stress that one of its main purposes is to achieve co-operation in promoting human rights proves that this co-operation has been recognised as indispensable for the consolidation of universal peace.

This is clearly stated in Art. 55 of the Charter which says the U.N. must promote universal respect for, and observance of, human rights for all without distinction as to race, sex, language, or religion "with a view to the creation of conditions of stability and wellbeing which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples''.

These two fundamental U.N. Charter principles on human rights thus reveal sufficiently clearly the close link between the Organisation's purposes concerning human rights and the other purposes of the United Nations and stress its direct significance for the maintenance and promotion of peaceful and friendly relations among states.

This aspect of the problem of human rights in international law is dealt with from the point of view of the principles of Art. 1 and Art. 55 of the Charter by many international jurists studying this problem or commenting upon the U.N. Charter.^^1^^

Closely linked with the task of promoting universal respect for human rights are the obligations of the U.N. members "to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55" (Art. 56). The legal force of these obligations for all U.N. member states is not to be doubted. It is determined by the legal nature of the U.N. Charter as a special kind of international treaty. As for the Organisation in general, it was set up as a centre for harmonising the actions of nations in the attainment of common

right to education, as well as fundamental freedoms for all without distinction as to race, language and religion''.

~^^1^^ L. M. Goodrich and E. Hambro, The Charter of the United Nations, London, 1949, pp. 96-97; M. McDougal and G. Behr, "Human Rights in the United Nations", The American Journal of International Law, July 1964, Vol. 58, No. 3, p. 612; S. A. Ivanov, Problems of International Regulation of Labour, Moscow, 1964; V. A. Romanov, "The Soviet Union and International Respect for Fundamental Human Rights", Soviet Yearbook of International Law, 1958, p. 362.

ends (Para. 4, Art. 1) and, consequently, in the achievement of international co-operation in protecting human rights.

Thus, irrespective of the differences in their socio-- economic systems, the U.N. member states recognised the possibility and necessity of co-operating in promoting the universal observance of human rights. Assumption by all U.N. members of appropriate obligations in accordance with the constitutional procedure meant that with the coming into force of the U.N. Charter there appeared in present-day international law a new, general rule of law binding on all states: the principle concerning universal respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

This principle was further confirmed and developed in a number of multilateral and bilateral international documents as well as in the provisions of the national legal systems of different states. We may cite, for instance, such international declarations as the U.N. Universal Declaration of Human Rights (1948), the U.N. Declaration on the Abolition of All Forms of Racial Discrimination (1963), and the Convention of 1965 on this subject, Pacts on Human Rights of 1966, the Bandung Declaration of 1955, the Belgrade Declaration of 1961, and the Cairo Declaration of 1964.

The fundamental principles of present-day international law are interconnected. This also applies to the principle of universal respect for fundamental human rights.

According to the U.N. Charter, the task of maintaining international peace, taking effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression is of paramount importance for the Organisation's activity. It is perfectly clear that the U.N. can encourage co-operation in the sphere of human rights only if there is international peace and if the nations maintain friendly relations with one another.

Such a conclusion follows directly from the provisions of the Charter, notably from articles 1 and 2. Despite this, however, some imperialist states seek to make use of the discussion and elaboration of human rights problems in the United Nations to further ends which hamper the promotion of friendly relations among states and impinge upon their independence in the solution of development problems.

These attempts accentuate the problem of the relation between the principles of non-interference and international protection of human rights. Legal writings in the West advance various ideas to justify the imperialist powers' policy of interference and hinder the progressive development of international law in the sphere of human rights. Some American and British jurists (Kelsen, Jessup, Lauterpacht and others) have, for instance, claimed that the principle of non-interference in the domestic affairs of other states is incompatible with the task of securing human rights on a world-wide scale, prevents its implementation and, consequently, is inapplicable in this sphere of international co-operation.^^1^^

That such statements do not hold water is confirmed by the explicit provision of the U.N. Charter that, in pursuit of the purposes stated in Article 1, the Organisation and its members (my italics---A.M.) shall act in accordance with the principles outlined in Article 2. This obligation, as may be seen from the Charter provisions cited, applies not only to the Organisation as a whole but to each of its members. As for Article 2, one of its main principles is that concerning non-interference "in matters which are essentially within the domestic jurisdiction of any state" (Para. 7).

Consequently, the international co-operation of U.N. members in the promotion of human rights should be based on strict observance of the principle of non-interference in the domestic affairs of states.

This was clearly stated, moreover, by Committee 3 of Commission II of the U.N. San Francisco Conference when it discussed the provisions on economic, social and humanitarian co-operation. Its minutes said "the members of Committee 3 of Commission II are in full agreement that nothing contained in Chapter IX (of the U.N. Charter--- A.M.) can be construed as giving authority to the Organisation to intervene in the domestic affairs of member states".^^2^^

The provisions of Chapter IX on international economic

and social co-operation and the powers they vest in U.N. organs accord strictly with the principles governing U.N. activities, including the principle of non-interference in the domestic affairs of states.

The direct regulation of human rights and freedoms in accordance with the peculiarities of the social and political system of the state concerned is an internal affair of this state, and human rights should be protected in the manner provided for by its national laws.

This is generally recognised in international law. It is confirmed both by interstate treaties on the defence of human rights and by the doctrine of international law.

International agreements dealing in one way or another with the protection of human rights and regulating these rights (for instance, conventions on slavery and slave trade, International Labour Organisation conventions on the defence of man's working rights and struggle against forced labour, U.N. conventions on women's political rights and married women's citizenship) create international rights and obligations only for the contracting parties. They refer to the human rights and freedoms which the states concerned pledge themselves to respect and observe under their national laws. Speaking of such international treaties, British jurist Oppenheim wrote that "although such treaties generally speak of rights which individuals shall have as derived from the treaties themselves, this is, as a rule, nothing more than an inaccuracy of language. In fact, such treaties do not normally create these rights, but they impose the duty upon the contracting states of calling these rights into existence by their municipal laws.''^^1^^

The Soviet science of international law is unequivocal in its claim that the "legal position of individuals is determined by national and not international law".^^2^^ Professor S. B. Krylov, for instance, writes in his work on the U.N. history that the "individual is protected not directly by international law but only with the aid of national law".^^3^^

~^^1^^ See H. Kelsen, The Law of the United Nations, New York, 1950, p. 774; Ph. Jessup, A Modem Law of Nations, New York, 1948, p. 2; H. Lauterpacht, International Law and Human Rights, New York, 1950, p. 166.

~^^2^^ Documents of the United Nations Conference on International Organisation, Vol. X, San Francisco, 1945, p. 83.

~^^1^^ L. Oppenheim, International Law. A Treatise, New York-- LondonToronto, Vol. I, pp. 580-81.

~^^2^^ G. I. Tunkin, Fundamentals of Present-day International Law, Moscow, 1956, p. 19; International Law, edited by F. I. Kozhevnikov, Moscow, 1964, pp. 169, 260.

~^^3^^ S. B. Krylov, Materials on the History of the United Nations, Issue 1, Moscow, 1949, p. 255.

International law proceeds from the recognition of the individual as a subject of national law and does not admit the direct protection of his rights by any international organ in circumvention of the state and disregard of the jurisdiction of the state organs in this sphere since this would be tantamount to interference in the domestic affairs of states and to impingement upon their sovereignty.

These principles are challenged by only a few international jurists (Scelle and Politis among them) who support the theory that the individual is a subject of international law, a theory advanced in the West before the Second World War and backed by some British and American scholars (Lauterpacht, Jessup and others.)^^1^^

This theory alleges that the individual is a subject of international law, enjoys international rights and, consequently, his rights must be defended not only by the state but directly by international organs with the aid of various measures involving interference in the domestic affairs of states. The exponents of such a cosmopolitan interpretation of human rights in essence completely negate the sovereignty of states and in fact negate international law by replacing it with "human right''.

The theory that the individual is a subject of international law is incompatible with the nature of international law as interstate law and has very few supporters among international jurists.

The powers given the United Nations to achieve international co-operation in promoting universal respect for fundamental human rights were worked out and secured in the U.N. Charter with due account of the nature of international law as a law governing interstate relations of which individuals are not subjects. These powers envisage measures encouraging states to take steps to promote their peoples' economic and social progress and to ensure the observance of fundamental human rights and freedoms. The Organisation may only recommend states to take certain measures in addition to drawing up declarations and draft conventions on human rights and other social and

humanitarian problems. The implementation of the recommended measures and the conclusion of conventions depend on the states themselves, notably on their signing and ratifying these conventions in accordance with their constitutional procedures. In taking the initiative, the U.N. merely suggests these measures and co-ordinates the states' actions without intervening in matters within their domestic jurisdiction.

The functions and powers of the United Nations in the sphere of international defence of human rights are limited to the drafting of international documents on human rights. These documents must be observed in accordance with the laws of each U.N. member.

Responsibility for the discharge of the functions of the Organisation in promoting universal respect for human rights is vested, according to Article 60 of the U.N. Charter, in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council. Their responsibilities, functions and powers are set forth in Article 13 and Chapters IX and X of the U.N. Charter. Article 13 says the General Assembly shall initiate studies and make recommendations, notably with a view to assisting in the realisation of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. The Economic and Social Council is authorised, according to Article 62, to make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all. Para. 1 of this article says the Council is authorised to make these recommendations to the General Assembly, to the members of the United Nations and to the specialised agencies set up under inter-governmental agreements to deal with international economic, social, cultural, educational, health and other matters. Moreover, the Council submits draft conventions to the General Assembly, with reference to matters falling within its competence (Para. 3, Art. 62), and, consequently, with reference to human rights as well.

To fulfil its functions, the Council sets up commissions in economic and social fields and for the promotion of human rights (Art. 68). It was the U.N. Commission on Human Rights, established at the very inception of the U.N., that was given the particular task of drawing up recommendations and draft conventions on the promotion of

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241

~^^1^^ See H. Lauterpacht, An International Bill of the Rights of Man, New York, 1945; International Law and Human Rights, New York, 1950; Ph. Jessup, A Modern Law of Nations, New York, 1948; J. Kunz, "La crise et les transformations du droit des gens", Recueil des cours, Vol. 88.

universal respect for, and observance of, human rights and fundamental freedoms.

The first step taken by the Organisation in implementing the principle of universal respect for fundamental human rights and freedoms was, it may be recalled, the decision to draw up the Covenant of Human Rights. The Covenant was ultimately to consist of at least two parts: the Universal Declaration of Human Rights and Pacts (Agreements) on Human Rights.

The decision adopted on this point by the Human Rights Commission and subsequently approved by the majority of the U.N. members said the Universal Declaration of Human Rights would be a recommendation of the General Assembly, while the Pacts on Human Rights would be agreements on international law concluded, signed and ratified by U.N. member states.

The main purpose of the Pacts on Human Rights after the proclamation in 1948 of the Universal Declaration of Human Rights was to create legally binding rules ensuring the observance of fundamental human rights and freedoms by the states parties to the Pacts.

The Pacts on Human Rights, which were adopted by the Twenty-First General Assembly and which must be signed and ratified by the U.N. members, will impose definite international obligations upon the states and will thus become an international law guarantee of the observance of specific rights and freedoms. This is one of the main aims of the Pacts as international agreements on human rights.

The Pacts are destined to promote the realisation of the Charter provisions on human rights by the United Nations and its members. Their conclusion will be a practical consequence of both joint and individual efforts the U.N. members are bound by the Charter to undertake to ensure the observance of human rights.

The records of the Human Rights Commission, the Economic and Social Council, and the Third Committee of the U.N. General Assembly show that the imperialist powers consistently did everything they could to prevent the insertion of democratic clauses in the Pacts on Human Rights. With the passage of years, however, the proposals made by the representatives of the Soviet Union and other socialist countries, as well as the non-aligned Afro-Asian countries, gained increasing support. On the initiative of

these countries the Commission inserted in the Pacts a number of progressive provisions opposed by the United States, Britain and other Western countries. They included recognition of the peoples' right to self-determination; equal rights for men and women; struggle against racial and national discrimination and against racial and national hate propaganda, and recommendations concerning the right to work, education, social security, and other economic and social rights.

The drafting of the Pacts,^^1^^ which contained definite obligations concerning observance of human rights, disappointed the hopes of the imperialist diplomats who planned to use these documents in an ideological offensive against the socialist states and to create ``grounds'' for interference in their domestic affairs. And so the bourgeois politicians lost interest in the idea of international agreements on human rights.

This found expression in the U.S. and South African refusal to ratify the Pacts on Human Rights. The United States in fact openly refused to help the U.N. achieve its noble aim of securing universal observance of fundamental human rights with a view to promoting friendly relations among the nations and ensuring international peace.

The United States' refusal to ratify the Pacts on Human Rights was sharply criticised and condemned by U.N. members. Illustrative in this respeci are the statements made by the representatives of certain countries at the ninth session of the Human Rights Commission. The Indian delegate, for instance, declared that the U.S. Government's decision not to ratify the Pacts on Human Rights, taken long before they had been drawn up, aimed at nullifying the Commission's efforts. The Chilean delegate stressed that the American Government's statement could not but evoke profound alarm in the smaller countries where people were beginning better to understand the difference between the declarations and the true intentions of some states.^^2^^

Lastly, the U.S. stand on the problem of human rights and the realisation by the United Nations of its aims in

~^^1^^ The pacts were approved and made open for signing by states by General Assembly Resolution 2200 (XXI), adopted on December 16, 1966.

~^^2^^ See Human Rights Commission Document E/2573.

16-

this sphere of international relations is vividly illustrated by the fact that the United States has not yet ratified a single U.N. convention on human rights.^^1^^

In the twenty-odd years of its existence the United Nations had adopted a number of important international documents securing universal respect for, and observance of, rights and fundamental freedoms for all peoples in the world. These documents include the International Convention on the Prevention and Punishment of the Crime of Genocide (1948), Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutes and Practices (1956), Convention on the Political Rights of Women (1952), and the UNESCO Convention Against Discrimination in Education.

On December 21, 1965, the Twentieth General Assembly unanimously adopted the International Convention on the Elimination of All Forms of Racial Discrimination.

The Convention prohibits racial discriminaton, that is, "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life". (Art. 1).

The Convention is especially critical of racial segregation and apartheid.

It binds the states to take effective steps to revise their policies on a national and local scale and to annul any laws or decrees tending to create or perpetuate racial discrimination. It further prohibits any assistance in the promotion of racialist activities. The Convention bans the activities and existence of racist organisations and makes membership in such organisations a criminal offence.

Dissemination of any ideas of racial superiority or hate and incitement to racial discrimination are also criminal offences.

After the adoption of the Convention on the Abolition of Racial Discrimination in All Its Forms the United Nations drew up and approved an international programme for putting this international agreement into effect.

This programme of measures (establishment of the Committee for the Abolition of Racial Discrimination, intended to prepare information and recommendations on problems dealt with in the Convention and to help settle disputes among the parties to the Convention, etc.) may serve as a precedent, for working out other international agreements on human rights.

It should be noted that the initial experience of working out measures for the implementation of the Convention showed that the Western powers were extremely inconsistent on this issue. While giving lip service to these measures, they actually oppose their elaboration and in fact favour only the recommendatory and facultative character of the provisions on implementation.

When the Convention comes into force, it will turn the prohibition of racism and all other utterly illegal and criminal forms of racial discrimination into a principle and rule of international law. That is why it is an international act which helps promote present-day international law in a progressive direction and may be used in the struggle against the colonial powers' racial tyranny.

By its content, the Convention is on the whole antiimperialist and anti-colonialist. Its provisions expose the illegal and criminal nature of the policy and practice of racialism and racial discrimination in the United States, South Africa and other imperialist countries and their colonies.

In the course of the discussion, the representatives of the socialist and Afro-Asian countries, who acted jointly on all key issues, constantly emphasised that the Convention could not be separated from the abolition of colonialism in all its forms and manifestations.

The attempts made by the U.S. and other Western delegations to emasculate the Convention and to defer and prevent its adoption by the Twentieth General Assembly were rebuffed by the overwhelming majority of the U.N. members.

The delegates of the developing countries time and again spoke of the outstanding role played by the Soviet Union

~^^1^^ This fact, Richard N. Gardner, U.S. Deputy Assistant Secretary of State for International Organisation Affairs, admits in his "Human Rights and Foreign Policy" (Saturday Review, Sept. 19, 1964), has evoked widespread surprise and, consequently, urgent steps should be taken, he says, to justify the U.S. stand.

in the struggle against all forms of national oppression and discrimination and expressed gratitude to the Soviet delegation for its contribution to the elaboration of the Convention.

Like the Convention on the Prevention and Punishment of the Crime of Genocide, the Declaration and Convention on the Elimination of All Forms of Racial Discrimination is a step towards the elimination of these disgraceful phenomena and the curbing of the imperialist reactionary forces' propaganda and practice of discrimination, racialism, genocide and other criminal acts against humanity.

The United Nations has also drawn up and presented declarations on the practical implementation of the principle of universal respect for human rights and fundamental freedoms. These include the Universal Declaration of Human Rights, the Declaration on the Elimination of Racial Discrimination in All Its Forms and Manifestations, the Declaration of the Rights of the Child, the Declaration on the Abolition of Women's Discrimination, and others.

The elaboration of these democratic documents of an international character testify to the growth of the forces of socialism, democracy and peace which exert an increasingly progressive influence on many aspects of U.N. activity and on the development of international relations and the principles and rules of present-day international law.

The very appearance of these documents---documents never known in the history of international relations before ---are evidence of the impact made on international law by the new democratic forces engendered by the socialist revolution, the national liberation movements in Asia, Africa and Latin America, and the victory scored by the forces of democracy and peace over the forces of reaction.

These declarations and conventions vary in content and so we shall deal only with the common issues which are immediately relevant to the consolidation and development of the principle of universal respect for human rights in present-day international law and its importance for all. These U.N. declarations show in the first place which rights and freedoms of the individual may be classified as fundamental human rights and freedoms and must be universally respected, that is, which rights and freedoms must be granted and observed in all countries.

The problem of international defence of human rights

is an example of the interconnection of national and international laws. The U.N. agencies' list of rights and freedoms enumerated in the Universal Declaration, the Pacts on Human Rights, the Convention of Women's Political Rights and other U.N. documents on human rights testify to the influence exerted on the development of present-day international law by the progressive principles and purposes of national systems of law. This is proved by the insertion in the Universal Declaration and the Pacts of a number of provisions on human rights lacking in the constitutions of capitalist countries and figuring in those of the socialist states. It was under the influence of the Constitution of the U.S.S.R. and the constitutions of other socialist countries that such important socio-economic rights as the right to work, rest and leisure, social security and education were included in the Declaration as fundamental human rights.

When the Universal Declaration was being discussed, the imperialist countries tried to ignore the progressive experience accumulated by mankind in the struggle for human rights and the enormous contribution made to it by the Great October Socialist Revolution. This is the reason why such an important right as the right to national self-- determination is not reflected in the Declaration.^^1^^ On the whole, however, the imperialist countries could not prevent the acceptance of the demands made upon the international documents on human rights by champions of progress and democracy. And so the Universal Declaration and the Pacts on Human Rights proclaim and secure such rights of individuals as equality for all without any discrimination, the right to existence, freedom and personal immunity, the right to the inviolability of honour, reputation and the home, the right of each to the protection of rights by an unbiassed court; such social and political rights as the right to citizenship and shelter, the right to property, marriage, freedom of thought, conscience and religion, freedom of conviction, peaceful assembly and association, universal suffrage by secret ballot; such socio-economic rights as the right to work and equal pay for equal work, the right to establish trade unions, the right to rest and leisure and

~^^1^^ For details see L. V. Speranskaya, The Principle of Self-- determination in International Law, Moscow, 1961.

social security, the right to education and participation in society's cultural activities. The Declaration and the Pacts stress that these human rights and freedoms must be respected and observed everywhere.

Although the right to national self-determination was not included in the Universal Declaration, the United Nations recognised despite the opposition of the colonial powers that it was one of the most important rights and that unless it was respected the peoples and nations, and the individuals forming them, could not be free. This authoritative opinion, voiced during the discussion and elaboration of the Pacts on Human Rights, was secured and concretised in the General Assembly resolutions of February 5 and December 16, 1952, and in Article 1 of the Pacts.

The aim of all the U.N. documents on human rights is to ensure the respect and observance of all the human rights and freedoms they contain in all countries, whatever their social systems. For this it was essential that every provision of international documents on human rights, both as regards the range and volume of rights and freedoms and, especially, as regards measures to ensure the implementation of these rights, should take into account the economic, social and national peculiarities of the states concerned.

The content of the declarations and conventions drawn up by the U.N. shows that this difficulty has been overcome.

The fact that these documents have been drawn up and accepted is also of major international significance because it proves that it is quite possible for states with differing social systems to co-operate in the sphere of human rights too. The U.N. states have agreed on the general principles by which they must be guided in the interests of universal observance of human rights.

In working out the drafts of these international acts the U.N. organs met with considerable difficulties owing to the states' varying attitudes to the elaboration of their provisions. Each state proceeded from the principles legislatively secured and implemented in the country. But whenever the U.N. members, seeking to reach an agreed solution taking into consideration the views of all states, abided by the principles and purposes of the U.N. Charter, these difficulties were successfully overcome.

The U.N. documents on human rights contributed to the further development of the principle of universal respect for fundamental human rights and freedoms. These international law acts help the people in their struggle for human rights. The proclamation of socio-economic rights as fundamental human rights, for instance, facilitates the workers' struggle in the capitalist countries for the right to work, social security, and other human rights and freedoms that are vital to ordinary people.

Especially important in these documents are the demands for the abolition of all racial discrimination in colonies and other dependencies and of Negroes and other peoples in South Africa, the United States and a number of other capitalist countries.

U.N. documents, reaffirming the principle of universal respect for human rights, now serve as a groundwork for the adoption of practical decisions aimed at stopping violation of the democratic rights and freedom of peoples. General Assembly Resolution 2331 (XXII) of December 18, 1967, on the measures to be taken against nazism and racial intolerance is a good example. The resolution states outright that nazism is incompatible with the purposes of the U.N. Charter, the Universal Declaration on Human Rights, the Convention on Prevention and Punishment for Genocide, the U.N. Declaration and the International Convention on the Abolition of All Forms of Racial Discrimination. Proceeding from these the General Assembly emphatically condemned nazism and called upon all states without any exception to take immediate and effective measures against any manifestations of nazism and racial intolerance.

Under the impact of the forces of peace, democracy and socialism, the United Nations Organisation has been concentrating on the implementation of the U.N. documents on human rights and the fulfilment by all states of the principle of universal respect for human rights and basic freedoms. The 22nd General Assembly resolutions adopted at the end of 1967 are a graphic illustration. The General Assembly Resolution 2337 called on the states to ratify the Pacts on Human Rights as soon as possible. Special Resolution 2332 (XXII) of December 18, 1967, is completely devoted to the measures on early implementation of the international documents directed against racial discrimina-

tion. It makes explicit demands on the states which are still trying to ignore the principle of universal respect for human rights and basic freedoms.

In order to stress the paramount importance of the principle of universal respect for human rights and to draw the attention of the broad masses to it, the General Assembly declared December 10 the Day of Human Rights.¹ From 1963 to 1967 the General Assembly adopted a number of resolutions---1961 (XVIII) of December 12, 1963, 2081 (XX) of December 20, 1965, 2217 (XXI) of December 19, 1966, 2339 (XXII) of December 18, 1967---declaring 1968 to be the International Year of Human Rights. It was clearly pointed out that further enhancement of respect for human rights will, in its turn, contribute to the consolidation of international peace and friendship.

All these U.N. decisions testify to the strengthening and further progressive development of the most important principle of present-day international law---the principle of universal respect for human basic rights and freedoms, and, consequently, to the growth of the forces of democracy and progress which uphold this principle to promote universal peace and friendship.

M. I. Lazarev, LL. D.

TECHNOLOGICAL PROGRESS AND INTERNATIONAL LAW TODAY

One of the distinctive features of socio-economic development today is the rapidity of scientific and technological progress. Its sweeping rate and scale fully justify speaking of a scientific and technical revolution which exerts an influence on virtually all branches of material production and human activity. Our knowledge of the world around us has changed and is constantly changing while the achievements of science penetrate more and more into the most diverse spheres of production and technology, altering everything in this world.

Never before has there been a greater need for regulating the intrusion of technology into man's life by law.

While the application of technology inside a state is regulated by national law, in the international sphere it is governed by the rules of international law.^^1^^

Technology has been creating additional possibilities for the states to pursue this or that policy and exerting an influence on the international law in operation all through the history of human society and interstate relations. At the same time, technological development and changes in interstate relations enrich the rules of international law which, in their turn, influence technological progress.

As far as the impact produced by technological progress on international law in general is concerned, the principles and rules of present-day international law may be divided into two categories.

~^^1^^ On the observance of this Day in the U.S.S.R. see "The Day of Human Rights", Soviet State and Law, 1968, No. 4, pp. 128-29.

~^^1^^ See P. S. Romashkin, "Technological Progress and Soviet Law". Soviet State and Law, No. 1, 1960, p. 14; V. Hanzlik, Pravni predpisy pro techniky, Prague, 1962; V. Kopal, "K otazkam technickeho rozvoje v soudobych mezinarodnich vztazich", Prdvnik, Prague, 1959, p. 4.

The first includes the rules and principles whose origin is not directly bound up with the development of techniques and technological progress: principles of sovereignty, noninterference, non-aggression, peaceful coexistence, equality and mutual advantage, observance of international treaties, etc.

Included in the second category are the principles and rules directly or indirectly connected with techniques and technological progress.

As historical experience shows, technological progress exerts a dual influence on the principles and rules of the second group.

First, technological progress leads to the expansion of the sphere of application of the universally recognised fundamental principles of international law and of their content. For instance, to the extension of states' sovereignty to their air space following the invention of flying machines and to the extension of the operation of the U.N. Charter to outer space following man's breakthrough into space.

Another instance is the institution of demilitarisation and neutralisation. In the past it sufficed to demilitarise and neutralise a small part of border territory. Now, in the day of rocketry and nuclear technique, it is a question of demilitarising whole continents (Antarctica, Africa) or areas including the territory of many countries. The latter, for example, is provided for by the plans for nuclear-free zones in Central Europe, the Balkans, Scandinavia, the Pacific Ocean, and Latin America.

Second, leading to the establishment of a new type of interstate relations due to the development of productive forces in certain spheres, technological progress may promote not only new international law principles and rules but new branches of international law.

The formation of the international capitalist market as a result of the expansion of international trade and the appearance of new means of transport (steamers, locomotives) was attended by the growing migration of people and displacement of things from country to country, increasing number of business transactions started in one country and consummated in another, of contracts and marriages with foreigners, of flights of delinquents and bankrupts abroad. To denote such an outstanding range of contradictory rules the American Joseph Story in 1828 proposed the term of

particular international law^^1^^ which has prevailed to this day. Technological progress exerts a vast influence on the rules of this branch of law which governs, among other things, the questions of copyright and patents.^^2^^

Technological progress also exerted and continues to exert a very big influence on the formation of such an important branch of international law as the law of the sea.

Cornelius van Bynkershoek thus formulated the width of coastal waters: "The authority of the coast ends where the action of its armed force ends" (what he had in mind was the range of coastal guns). The Italian scholar Fernando Galiani amplified on Bynkershoek's formula in 1782, explaining that the width of the waters under the jurisdiction of the coastal state was equal to 3 nautical miles (about 5 kilometres), for that was the range of artillery.³ Then, as the range of artillery increased, this rule became invalid.

A new branch of science and practice is emerging in our day known as sea farming (cultivation of water plants containing valuable salts, vitamins, etc.), and the prospects are extremely vast and require international regulation.

At the U.N. conference on the international law of the sea in April 1958 the participating states adopted the Convention on the Continental Shelf. This convention recognised that the coastal states exercised sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural resources. Only recently very many scientists believed that the fish resources in the seas and oceans were inexhaustible. The gradual development of fishing and improvement of fishing equipment have led to a considerable reduction of the natural reserves of fish and other sea products. Hence the need for international regulation of fishing and organisation of co-operation of all the states whose citizens practise this profession.

A number of international conventions have been concluded with a view to preventing the fish resources from

~^^1^^ See International Law, edited by V. N. Durdenevsky and S. B. Krylov, Moscow, 1947, p. 72.

~^^2^^ See M. M. Boguslavsky, Problems of Patents in International Relations (International Law Problems of Invention), Moscow, 1962, p. 231 S.

^^3^^ See International Law, edited by V. N. Durdenevsky and S. B. Krylov, Moscow, 1947, pp. 244-45.

25.?

being destroyed by modern technical means and to restoring and increasing the species.^^1^^

Some fifty years ago a statement on the need and possibility of creating a "law of the air" would have been met with a smile. But the rapid development of aviation---of international passenger and freight airlines---have led to the appearance of a national and an international "law of the air" containing a whole series of rules regulating international air communications, rights, duties and responsibilities of states and their natural and juridical persons.^^2^^

The development of aviation also exerts influence on the formation of what is known as international medical law, for, as the British lawyer C. Wilfred Jenks rightly says, it makes it necessary to intensify control over the spread of diseases.^^3^^

The Soviet Union's brilliant successes in space research, its launching of the first artificial Earth satellites and spacecraft, the flight of the first cosmonauts, and the major achievements made in space research by the United States necessitated the creation of a law of space. It covers the principles concerning the legal regime of space, the legal status of space crews, rescue of cosmonauts and spacecraft involved in accidents, responsibility for the damage and loss caused by the exploitation of spacecraft, etc., etc.

Legal regulation is also to be extended to such state measures in space as the creation of the system of superlong-distance communications, establishment of world meteorological services with the aid of artificial Earth satellites, organisation of the tracking of spaceships and other objects sent in the direction of the Moon, Mars, Venus and other planets of the solar system with the aid of radiotechn-

~^^1^^ See Treatises on the International Law of the Sea, edited by V. M. Koretsky and G. I. Tunkin, Moscow, 1962, pp. 260-90; T. B. Vandanov, "Interaction of International Technical and Legal Rules Concerning the Collision of Sea Vessels", Navigation (Scientific and Technical Symposium), Moscow-Leningrad, No. 6, 1966, pp. 128-32.

~^^2^^ See U.S.S.R. Air Code, promulgated on January 1, 1962 (U.S.S.R.

Supreme Soviet Records, No. 52, December 29, 1961, Section I); A. Kislov and A. Vereshchagin, International Law of the Air, Moscow, 1966, p 199; P. H. Sand, "Die Entwicklung des Luftfahrrechts in der

Sowjetunion," Ost Europe Recht, No. 3, 1964, S. 158-208.

~^^3^^ C. W. Jenks, "Law, Freedom and Welfare in Action for Peace", International Law in a Changing World, New York, 1963, p. 7.

ical and optical instruments, and co-operation in the compilation of charts of the terrestrial magnetic field.

The conquest of space by man is the greatest scientific and technical achievement of our age. But it can be used to the detriment of people and not only for their wellbeing. It all depends on whether the states' activity is directed at the solution of peaceful, creative problems or is made to serve the aims of destruction and war.^^1^^

The peaceful uses of space were first discussed by the Thirteenth U.N. General Assembly on the initiative of the Soviet Union.

At present there are already several international documents concerning space. They include the Declaration of Legal Principles Governing the Activities in Space of December 13, 1963, the Moscow Treaty of August 5, 1963, Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water and, lastly, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space Including the Moon and Other Celestial Bodies adopted by the General Assembly on January 27, 1967.

An atomic law^^2^^ is being elaborated along with the law on space.

Technological progress entailed the need for legal regulation of questions concerning the disposal of radioactive waste produced by nuclear reactors in the processing of nuclear materials, regenerating of nuclear fuel and working with radioactive isotopes. Particularly acute was the question of the disposal of radioactive waste material in the open seas, an inadmissible practice widely resorted to by the United States and Britain, and the prohibition by law of such actions in the future.^^3^^

~^^1^^ Sec G. P. Zhukov, E. G. Vasilevskaya and P. I. Lukin, Space and the Problem of World Peace, edited by G. P. Zadorozhny, Moscow, 1966, and G. P. Zhukov, Space Law, Moscow, 1966.

~^^2^^ See P. Radoinov, "International Co-operation in the Peaceful Uses of Atomic Energy", Pravna mysl, Sofia, 1962, pp. 40-50.

'^J See V. A. Romanov's report at the third annual meeting of the Soviet International Law Association about the scientific conference on the disposal of radioactive waste material in Monaco in November 1959 (Soviet Yearbook of International Law, 1960, pp. 398-99); "A Propos of the Peaceful Uses of Atomic Energy", report by G. Y. Vilkov in the Soviet Yearbook of International Law, 1962, pp. 271-74; O. P. Khlestov's report on the 1961 conference on the disposal of

The International Law Association set up a special committee to deal with the legal aspects of nuclear energy. Among the questions raised in this committee by the rapporteur, E. Zaldivar, and other members, were the states' responsibility to third parties for nuclear explosions on their own territory, responsibility for nuclear accidents on ships sailing through foreign territorial waters, guarantees that atomic energy will be used for peaceful purposes,^^1^^ and responsibility for any accidents which may occur during the international shipments of nuclear raw materials.^^2^^ Finnish lawyer V. Metsalampi urged a ban on the disposal of nuclear waste materials in territorial waters and stressed the need for appropriate legislative measures, pointing out that Article 25 of the 1958 Geneva Convention on the High Seas, forbidding the pollution of the open seas, was insufficient.^^3^^

The Convention on Third Party Liability for the Damage Caused by the Use of Nuclear Energy was signed by the eighteen members of the Organisation of European Economic Community in Paris on July 29, I960,^^4^^ and a convention on the liability of operators of nuclear ships for the damage caused by the harmful use of nuclear energy was signed in Brussels on May 25, 1962.^^5^^

The appearance of nuclear weapons brought into existence the legal concept of "atomic neutrality".^^6^^

ities offered by the scientific and technical revolution is becoming an important element of their struggle.

Technology may serve aggression (the employment by the United States of war material, gases, napalm and other banned weapons in Vietnam, the Dominican Republic, etc.) and it may serve the cause of peace and progress.

Technology accelerates the elimination of colonialism and its consequences (the Soviet Union's assistance to India, the United Arab Republic and other countries in their industrialisation) and it is also used to preserve colonialism and neo-colonialism (in Portugal's war against the Angolans, in the process of ``aid'' given by the imperialist states to the Afro-Asian and other countries).

Technological development may increase the danger to international security^^1^^ and peace and aggravate international tension. At the same time, it may help relax world strains (annual programmes in the spheres of culture, science, education and technology, international exhibitions, technical congresses, scientific conferences, etc.).

It is not a matter of technology itself but of the policy it serves. If we are to believe some of the concepts current in the West, it is not capitalism that is responsible for the destructive and pernicious actions "of present-day technology but technological progress abstracted from politics.

Many Western scientists tend to exaggerate the independent part played by technology in present-day international relations, the so-called technological fetishism which attributes to technology the evils inherent in the capitalist system.

Some of them, for instance, hold that technological progress is a factor of regress (A. Rapoport of the United States and others), alleging that the "destructive element dominates over the positive" in technical changes. Hence the proposal to "harness technological progress". Instead of agreeing that the greatest discoveries of human genius can and must be used for man's well-being, they negate the use of the discoveries themselves.^^2^^

Technological progress is taking place in a world in which there are two opposing socio-economic systems: socialist and capitalist, and the realisation of the opportun-

radioactive waste material in the seas (Soviet Yearbook of International Law, 1962, pp. 274-76).

~^^1^^ The International Law Association (Founded 1873). Report of the 48th Conference, New York, 1958, pp. 19-21, 23, 26.

~^^2^^ The International Law Association. Report of the 49th Conference held at Hamburg, 1960, London, 1961, p. 324.

~^^3^^ The International Law Association. Report of the 59th Conference held at Hamburg, 1960, p. 325.

~^^4^^ The International Lain Association. Report of the 49th Conference held at Hamburg, 1960, p. 324.

~^^5^^ The International Law Association. Report of the 50th Conference, Brussels, 1962, p. 382.

~^^6^^ For details see V. N. Durdenevsky, "Neutrality and Nuclear Weapons (in the Light of the Principle of Peaceful Coexistence)", Soviet Yearbook of International Law, 1960, p. 106.

~^^1^^ We may recall in this connection the loss of nuclear bombs by an American plane near the Spanish village of Palomares in 1966 and the crash of the B-52 with four nuclear bombs near Thule in Greenland in January 1968.

~^^2^^ See Historical Materialism and the Social Philosophy of the Bourgeoisie Today, edited by Y. P. Frantsev, Moscow, 1961, pp. 207-09.

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Swiss Professor Jacques Freymond clearly overestimates the influence technology has on international relations. If synthetic coffee were invented tomorrow, he claims, it would radically alter present-day international relations because Brazil, being the world's leading coffee exporter, would not be able to sell it to the world's biggest consumer, the United States. This, Freymond says, would upset U.S.- Brazilian relations and that, in its turn, would lead to a change in interstate relations in the Western Hemisphere and, subsequently, throughout the world.^^1^^ While bringing the nations closer together, the development of the means of communications, radio, transport and aviation at the same time sets them against one another, drawing small and medium-size states into international conflicts.

Actually, it is imperialism and neo-colonialism, and not technology, that ``pits'' nations against one another. In the capitalist conditions, the scientific and technical revolution develops spontaneously and unevenly, aggravating the existing and engendering new antagonistic contradictions. The international exchange of the achievements of science and technology depends entirely on the selfish interests of the monopolies which use them to foster their expansionist and aggressive aims.

Socialism, acting in accordance with the objective laws governing human development, uses technical achievements for the well-being of all, for accelerating human progress, for consolidating and developing the democratic rules of international law.

The socialist community offers many examples of how the achievements of technology are used in the conditions of new-type interstate relations.

Scientific and technical co-operation is an important element of growing international ties between socialist countries---ties that rest on genuine equality and mutual respect for their sovereign rights.

Co-operation in the sphere of science and technology has become a major factor in the technological progress of socialist countries.

The Basic Principles of International Socialist Division

of Labour adopted by the Council of Mutual Economic Assistance opened up new possibilities for the further rapid development of the socialist countries on the basis of the broad international division of labour, specialisation and co-operation in production, and all-round economic, scientific and technical co-operation.^^1^^

The socialist division of labour has nothing in common with the abnormal monocrop pattern of economy the capitalist powers usually imposed on the weak and dependent countries in turning them into ``banana'', ``tea'' or ``coffee'' republics. It aims at harmoniously developing the economies of all socialist countries, at creating a rational economic complex in each. The aim of the international socialist division of labour is to improve the efficiency of social production, speed up economic growth, raise welfare standards in all socialist countries, promote their industries and gradually eliminate the difference in their economic development levels, and create a material basis for their more or less simultaneous transition to communism within one and the same historical era.

The socialist countries' friendly co-operation protects them from possible economic pressure by the capitalist powers.

The economic and technical assistance rendered by the socialist states to developing countries aims at helping them build up their economies with a view to achieving genuine economic independence and eliminating the consequences of colonialism. The aid given by the U.S.S.R. and other socialist countries does not take the form of capital exports and does not serve as a means of acquiring profits and privileges. It is not given on any political or other conditions infringing upon the sovereignty of the developing countries. It is based on mutual benefit, on the principles of equality and mutual respect for one another's sovereignty, and non-interference in one another's domestic affairs.^^2^^

~^^1^^ See the Communique on the meeting of representatives of the Communist and Workers' Parties of the member countries of the Council of Mutual Economic Assistance, Pravda, June 9, 1962.

~^^2^^ For details see M. M. Boguslavsky, "Legal Aspects of Soviet Economic and Technical Assistance to Afro-Asian Countries", Soviet Yearbook of International Law, 1961, and his Legal Aspects of Soviet Technical Assistance to Foreign States and Licence Treaties, Moscow, 1963.

~^^1^^ Jacques Freymond, "Progres Technique et Relations Internationales, Annuaire de I'Association Suisse de Science Politique 1961, Lausanne, 1961, pp. 46-60.

•a*

Czechoslovak jurist V. Kopal has rightly said that in the hands of the socialist countries technology does not divide states but brings them together, that the technical assistance of socialist countries helps abolish colonialism.^^1^^

Economic co-operation between the Soviet Union and other socialist countries, on the one hand, and the emergent states, on the other, strengthens the latter economically, helps them build important sectors of national industry, train technicians and other specialists, and consolidate their position in the world market. Such co-operation promotes peace and ensures the peoples' right to freedom and independent development.

December 1, 1959;^^1^^ the resolution on the declaration of Africa a denuclearised zone adopted by the Sixteenth General Assembly on the initiative of African states on November 24, 1961;^^2^^ the resolution forbidding the nonnuclear countries to have nuclear weapons on their territory adopted by the same General Assembly session on December 4, 1961; the Moscow partial nuclear test ban treaty of August 5, 1963, and the Twenty-First General Assembly resolution pledging the states not to undertake any action hampering agreement on nuclear non-- proliferation.^^3^^

The harm caused by technology may further be restricted, for instance, by such international law institutions and measures as neutralisation and demilitarisation of more territories and outer space, closure of military bases, ban on the use of nuclear weapons, cessation of nuclear tests, prohibition of the disposal of nuclear waste material in the seas, etc.

The adoption by the states of international standardisation rules concerning, for instance, the alteration of the gauge, the establishment of single postal tariffs, single metric systems of weights and measures and single traffic rules likewise help promote technological progress.

International law and technological progress influence each other.

Objectively, international law creates favourable legal conditions for the normal use and development of technology in international relations, for technological progress in the interest of all states and peoples.

Since there are international law rules restricting the use of technology by one state to the detriment of another, the states are compelled to abide by the existing prohibitive rules which thus exert an influence on technological development. In some spheres of present-day international relations this influence is generally recognised and makes itself felt (law of the sea, law of the air, atomic law, etc.).

International law protects peaceful technical installations and facilities and their exploitation for peaceful purposes. It protects the telegraph, telephone and other cables laid by states or their juridical persons in the open seas, on land and on foreign territory, technical installations in the shelf zone (oil derricks, man-made islands, fisheries, etc.), international oil pipelines, high-voltage transmission lines, meteorological probes in the atmosphere and outer space, etc.

Promoting technological development for peaceful purposes and encouraging the formation of a peaceful technical policy by the states, international law curbs the technology of destruction and militarism. Important from the point of view of international law are the Antarctic Treaty of

Rapid technological development is increasing the gap between the relatively slow establishment of the legal rules designed to regulate it and technology itself.

Western and socialist scientists interpret differently the thesis that "law should keep abreast of technology". Many Western jurists hold that because of technological progress the states should relinquish sovereignty and the other generally recognised values bound up with it. Speaking of the tempestuous development of science and technology in our day, Professor James K. Pollock, the former American president of the International Political Science Association,

~^^1^^ The Antarctic Treaty prohibits the establishment of military bases in Antarctica (Art. 1), nuclear explosions and disposal of radioactive waste material there (Art. 5).

~^^2^^ See "Major Resolutions of the 16th General Assembly", International Affairs,'No. 1, 1962, pp. 122-26.

~^^3^^ Pravda, Nov. 3, 1966.

~^^1^^ V. Kopal, Op. tit., p. 348.

claims that state frontiers and state sovereignty are obsolete conceptions. "Perhaps we have dieted too long and too exclusively on the heavy pastry of law and constitutions," he says, adding that "the older discipline of the law still has its stranglehold on political science in many areas", and that is intolerable in the nuclear age.^^1^^

The development of political science and the practice of states he is advocating would mean neither more nor less than greater opportunities for the leading capitalist powers and their monopolies to push on with expansionist aims.

Most of the scientists and statesmen realise, however, that the normal development of states and their peaceful coexistence are inconceivable without respect for state sovereignty.

The peoples of the world and the men promoting scientific and technological progress are stepping up their efforts to consolidate peace and banish wars.

The peoples' movement for peace and not militarism, the ideals of socialism and not imperialism, the principles of present-day international law and not arbitrariness are now the stimulants of technological progress in the interest of mankind.

G. P. Zhukov, LL. D.

FUNDAMENTAL PRINCIPLES OF SPACE LAW

In its day, the development of navigation led to the appearance of the law of the sea and the development of aviation to the law of the air. The spectacular successes scored in an unprecedentedly brief period of time in the exploration of the Universe have created real objective prerequisites for the establishment of space law.

Space law may be defined as a sum total of international law rules governing relations among the states and their relations with international organisations in the sphere of space research, and establishing an international law regime for outer space and celestial bodies in accordance with the fundamental principles of international law.^^1^^

It should be borne in mind that the programme of space exploration falls within the internal competence of states and is regulated by national law. However, in the process of the states' individual or joint activities in the exploration and use of outer space---and this applies to their doing it through international organisations---there comes into existence a sphere of international relations which requires special regulation in accordance with international law principles.

There are already a whole number of international documents regulating interstate relations in space research. The list is headed by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, which was adopted by the Twenty-First U.N. General Assembly on December 19, 1966, and made available for the

~^^1^^ Presidential Address "Political Science in the Nuclear Age" by Prof. James K. Pollock, International Political Science Association, Fourth World Congress, Rome, Sept. 16, 1958, pp. 2-3.

~^^1^^ See G. Zhukov, Weltraumrecht, Berlin Verlag, 1968, S. 19.

signature and ratification by all states on January 27, 1967.ⁱ What distinguishes this treaty is that its sphere of operation extends to all of outer space, including the Moon and other celestial bodies. The legal principles formulated by General Assembly Declaration 1962 of December 13, 1963 extended to both outer space and the celestial bodies. There was no doubt about this, although no mention was made of the celestial bodies in the title of the declaration and some of its articles. In order to eliminate any doubts on this score, however, the treaty speaks of the principles governing the activities of states in the exploration and use of outer space, including the Moon and other celestial bodies.

Precisely expressed and developed in this treaty are the legal principles formulated in the General Assembly Declaration of December 13, 1963, the Moscow Treaty of August 5, 1963, and General Assembly Resolution 1884 of October 17, 1963. The treaty also takes certain specific points into account.

The 1967 Treaty is undoubtedly a big step towards the further formation of space law rules. The next step is to establish international law rules for many problems arising in the process of space research. Acting on instructions from the General Assembly^^2^^, the U.N. Committee on the Peaceful Uses of Outer Space and its Legal Sub-Committee have been working for several years on the text of a convention regarding the responsibility for damage caused by objects launched into space. In its Resolution 2222 of December 19,

1966, the Twenty-First General Assembly also asked the U.N. Committee on the Peaceful Uses of Outer Space to define the concept of outer space and the use of outer space and the celestial bodies, as well as to study the various consequences of space communications.

The conclusion of an international treaty on the fundamental principles governing the activities of states in the exploration and use of outer space was the result of the efforts exerted over the years by the Soviet Union. This treaty came into force on October 10, 1967, after its ratification by the governments of five countries, including the Soviet Union, the United States and Britain. On December 19, 1967, the U.N. General Assembly unanimously approved the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space. This agreement was simultaneously opened for signature in Moscow, Washington and London on April 22, 1967.

The tenth anniversary of the exploration of space was thus marked by the adoption of the first international space code.

We may now speak of the establishment of the following fundamental principles of space law:

1. freedom of exploration and use of outer space and celestial bodies;

2. non-appropriation of outer space and celestial bodies;

3. exploration and use of outer space in accordance with the fundamental principles of international law, including the basic principles of the U.N. Charter;

4. partial demilitarisation of outer space and complete demilitarisation of celestial bodies;

5. retention by the states of sovereign rights to objects launched into outer space;

6. responsibility of the states for national activities in outer space, including damage caused by space objects;

7. prevention of potentially harmful consequences of experiments in outer space and on celestial bodies;

8. assistance to personnel of spacecraft in the event of accidents, distress, emergency or unintended landing;

9. promotion of international co-operation in the peaceful exploration and use of outer space and celestial bodies.

The principles of space law extend to the most general rules of conduct by which the states must be guided in their

~^^1^^ A major step towards the conclusion of the Outer Space Treaty was the adoption by the Eighteenth U.N. General Assembly, on December 13, 1963, of the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. This was preceded by the signing in Moscow on August 5 of that year of a treaty banning nuclear tests in the atmosphere, in outer space and under water, and the Soviet-U.S. agreement not to orbit spaceships with nuclear weapons and other weapons of mass destruction. This agreement was confirmed on October 13, 1963, by Resolution 1884 of the Eighteenth General Assembly. In 1963 too the Extraordinary Administrative Radio Conference adopted important decisions on the allotment of frequencies for space radio services (these decisions came into force on January 1, 1965). To this one can add a considerable number of bilateral and multilateral agreements on scientific and technical co-operation in space research.

~^^2^^ U.N. General Assembly Resolutions 1802 (XVII), 1963 (XVIII), 2222 (XXI).

space activities. These principles determine the features of space law as a separate branch of international law, and the main trends in the further formation of space law rules applying to specific relations among states in their space activities. States have the right to conclude any agreement relating to the peaceful exploration of outer space. Such agreements, however, should not contradict the basic principles of space law.^^1^^

Important in this connection is the analysis of the content of each of the above-mentioned principles.

FREEDOM OF EXPLORATION AND USE OF OUTER SPACE AND CELESTIAL BODIES

The treaty says: "The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or social development, and shall be the province of all mankind.

``Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

``There shall be freedom of scientific investigation in outer space, including the Moon and other celestial bodies, and states shall facilitate and encourage international cooperation in such investigation" (Art. 1).

The demand that the exploration and use of outer space and the celestial bodies should be carried out for the benefit and in the interests of all countries is especially important. In the exploration and use of outer space states should guide themselves first and foremost by this principle. Moreover, ``exploration'' here means scientific activity aimed at

~^^1^^ The Soviet Union proposed the inclusion of this important provision in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. Art. 14 of the Soviet draft treaty of October 5, 1966 said: "This treaty shall not be construed as affecting the right of states parties to the treaty to conclude any international agreements relating to the activities of states in the peaceful exploration and use of outer space, provided that such agreements do not conflict with the provisions of this treaty" (U. N. Document A/6352/Rev. 1).

unravelling the mysteries of the Universe. Scientific investigation paves the path for the practical ``use'' of outer space and celestial bodies.

The achievements of science and technology in the spheres linked with space research have made it possible to carry out a whole number of practical measures for the use of outer space. This applies particularly to space radio communications and meteorology. Scientific investigation of space and the practical application of its results will help promote better understanding and closer relations between states and improve the well-being of all. This is precisely why the treaty regards the exploration and use of outer space as the province of all mankind.

The provision concerning the exploration and use of outer space and celestial bodies for the benefit and in the interests of all countries is of vast significance. It accords with the preamble of the treaty which speaks of the great prospects opening up before mankind following man's penetration into outer space, of humanity's interest in the progress of the exploration and peaceful use of outer space, of the need to explore and use outer space for the benefit of all nations, of the desire to promote broad international co-operation both in the scientific and legal aspects of the exploration and peaceful use of outer space, and of the confidence that such co-operation will make for better understanding and stronger friendship between the states and the peoples.

All these provisions outline the further development of the fundamental principles of space law. Only in the light of these general provisions can one properly appreciate the significance of the freedom of exploration and the use of outer space and celestial bodies.

The freedom to explore and use outer space and celestial bodies means first and foremost that every state has the right to launch objects into outer space. The launching of the world's first artificial Earth satellite by the Soviet Union on October 4, 1957 ushered in the international practice of space flights. This practice rests on the recognition of the fact that the exploration and use of the unbounded expanses of the Universe should be carried out for the benefit and in the interests of all countries. This new field of human activity is viewed as the "province of all mankind''.

Since all states are sovereign and equal, outer space is

open and free for the exploration and use by all states without discrimination of any kind and on a basis of complete equality. Granting the right to all states freely to explore and use outer space is not confined to recognition of their specific rights. It also means the assumption of certain obligations on their part, for freedom to explore and use outer space presupposes that the states will not hamper one another in their space research. In other words, they must respect one another's rights and interests in outer space and on celestial bodies. While in outer space or on some celestial body, spaceships and their crews abide by the laws and orders only of the state of registry. Hence it is the duty of every state not to interfere with foreign objects during their flight in space. A state's exclusive control and jurisdiction over its object and the crew during their flight makes all states equal in the exploration and use of outer space and is a safeguard against the abuse of the freedom of space.

The principle of the freedom of exploration and use of outer space and celestial bodies is universally recognised. It finds practical implementation in the following three basic types of space activity: 1) scientific investigation of outer space, 2) manned space flights, and 3) utilisation of artificial Earth satellites for radio, television, meteorology and navigation. The states explore outer space primarily on a national basis. But the vast scale and the problems of space research, and the difficulties met with, make it imperative for the states to co-ordinate and unite their scientific, technical and material potentialities and resources.

It is bearing this in mind that Article 1 of the treaty calls on the states to facilitate and encourage international co-operation in the exploration of outer space, including the Moon and other celestial bodies.

The Soviet Union attaches much importance to international co-operation in peaceful space research. The U.S.S.R. acts in this sphere both through the U.N. and other international organisations and on a bilateral and multilateral basis.^^1^^

The international documents governing the activities of states do not define the frontier between air space, which

~^^1^^ See V. S. Vereshchagin, "Legal Forms of the Soviet Union's International Co-operation in the Peaceful Exploration of Outer Space", Soviet State and Law, No. 1, 1967.

is under the jurisdiction of states, and outer space, which is open for exploration and use by all states. Such frontiers will probably be established in the future on the basis of an appropriate multilateral agreement or in accordance with the customary rules of international law.^^1^^

NON-APPROPRIATION OF OUTER SPACE AND CELESTIAL BODIES

The Outer Space Treaty secures the universally recognised principle that "outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means" (Art. II).

It thus precludes any possibility of outer space, including the Moon and other celestial bodies, being appropriated by states, private persons or companies. From the point of view of space law, the sale of lots on celestial bodies by realty companies, as has been done in some countries, is absolutely inadmissible.^^2^^

While Soviet jurists have all along opposed the national appropriation of outer space, the Moon and other celestial bodies, the view originally predominating among American lawyers was that the extension of sovereignty to outer space and the seizure of celestial bodies were quite possible. Heated debates on the conditions essential for the seizure of celestial bodies went on in American legal literature right up to 1960. It was only after Lunik II had delivered a Soviet pennant to the Moon in 1959 and Lunik III had photographed its invisible side that the idea that national appropriation of celestial bodies was impossible began to

~^^1^^ The author's views on this issue are given in greater detail in the article "Space Flights and the Problem of the Altitudinal Frontiers of Sovereignty", Soviet State and Law, No. 2, 1967.

~^^2^^ According to foreign press reports, more than 4,500 U.S. citizens had bought lunar lots at $1 an acre by the end of 1965. The shares of the realty companies engaged in such deals are quoted on the Stock Exchange, and every success in space research tells on their value. In Japan, an enterprising businessman organised the sale of lots on Mars. It is no accident therefore that the draft resolution prepared by the Working Group III of the International Institute of Space Law in 1966 said the celestial bodies and parts thereof were not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

gain the upper hand in the writings of American lawyers.¹ Western literature very often, and without any grounds, raises the question of transferring "property rights" in outer space to an international organisation. The well-known British lawyer G. Wilfred Jenks, who is very cautious in his judgments and conclusions, writes: "Conceivably it [outer space] might be appropriated by the United Nations acting on behalf of the world community as a whole.''^^2^^ At present, our earthly experience rejects such a possibility. Even Antarctica has not been placed under international administration. The Antarctic Treaty of 1959 merely provides for regular convocation of consultative meetings. Consultations would be quite acceptable in the case of celestial bodies too.

There is no doubt that many questions requiring the coordinated efforts of the countries concerned will arise in the exploration of outer space, It may be necessitated, for instance, by the construction and maintenance of landing and launching facilities on the Moon, distribution of power resources there, mutual assistance in the event of accidents or distress, jurisdictional arrangements, establishment of communications on celestial bodies, exploitation of minerals, conservation of natural resources, promotion of research and scientific co-operation, exchange of meteorological and other information indispensable to people on the Moon, and many other problems which cannot be foreseen. Mankind has an interest in making the exploration of outer space, the Moon and other celestial bodies serve the cause of peace and progress. This is precisely what the Soviet Union is working for.

EXPLORATION AND USE OF OUTER SPACE

AND CELESTIAL BODIES IN ACCORDANCE

WITH THE FUNDAMENTAL PRINCIPLES

OF INTERNATIONAL LAW

The Outer Space Treaty contains a provision saying the states "shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in

~^^1^^ For a more detailed account of the evolution of American lawyers' views on this issue see G. P. Zhukov, "The Moon, Politics, Law", International Affairs, No. 10, 1966, pp. 50-52.

~^^2^^ C. Wilfred Jenks, Space Law, London, 1965, p. 201.

accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding" (Art. III).

The treaty thus reaffirms the principle which has come into existence as a result of man's penetration into the expanses of the Universe and the states' activities there.^^1^^

The fundamental (general) principles of international law should be applied to relations forming among states in the process of space research, with due account of the specifics of their activity in outer space and on celestial bodies. These specifics are reflected in the rules of space law. One illustration is the principle relating to the prohibition of national appropriation of outer space and celestial bodies. This principle makes the legal regime of outer space substantially different from that of the air over which the states enjoy complete and exclusive sovereignty. The same applies to the legal regime of the celestial bodies to which the international law rules governing the methods of acquisition of territory on Earth do not extend.

Will the great technological and scientific achievements of our day be used for the benefit and in the interests of all countries or will they bring untold calamity to mankind? That depends largely on how well the principles of international law, including those of the U.N. Charter, are observed not only on Earth but in outer space.

In the exploration of outer space states should first and foremost be guided by such fundamental principles of international law as non-aggression (prohibition of aggression), pacific settlement of disputes, prohibition of war propaganda, and disarmament.

The principle of non-aggression (prohibition of aggression) is a universally recognised principle of international law whose sphere of action also extends to the activities of states in outer space. This not only does not preclude but, on the contrary, presupposes the adoption of special legal principles which would amplify the provisions of the U.N. Charter and make aggression in outer space, or because of outer space, practically impossible. A big role in the prevention of such aggression could be played by an

~^^1^^ M. Lachs, "Przestrzeri kosmiczna---nowy wymiar prawa ml^ dzynarodowego", Panstwo i Prawo, Warsaw, No. 3, 1966, p. 441.

international agreement or any other international document prohibiting espionage from outer space. The principle of non-aggression by no means precludes the use of outer space for striking back at an aggressor in self-defence. In other words, it does not mean prohibition of the use of outer space for military aims in accordance with Article 51 of the U.N. Charter which authorises individual or collective self-defence in the event of aggression. Attempts to interpret this article in any wider sense should not be tolerated, however. By way of example one may cite some American lawyers who affirm that membership in the United Nations does not rule out the traditional right of preventive self-defence.

Such arguments are refuted by the explicit text of Article 51 of the U.N. Charter which deals with the right to selfdefence only in the event of an armed attack and which thus does not authorise preventive action by way of `` selfdefence''.

This, however, does not deprive the states of the right to take other measures essential for their security, like those envisaged by Chapter VII of the U.N. Charter ("Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression").

Austrian lawyer E. Fasan advocates the legalisation of self-defence in outer space, or from outer space, against an attack in or from outer space. He also maintains that an attack launched on the Earth does not justify a retaliatory attack on celestial bodies even if the enemy maintains bases on them.^^1^^ Such a conclusion may be dictated by humane considerations but it is not binding so long as there is no appropriate international agreement on this issue.

The U.N. Charter provisions concerning the pacific settlement of disputes (Para. 3, Art. 2, and Chapter VI) relate to disputes which may break out between states in their activities in the exploration and use of outer space, including the Moon and other celestial bodies.

The states engaged in space activity are in duty bound to settle their disputes solely by peaceful means. The choice of the peaceful means for settling disputes is left to the

Countries involved.^^1^^ This point is explicitly stated in the Soviet Draft Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.^^2^^

Although this provision of the Soviet draft was not included in the final text of the treaty, it will undoubtedly play an important part in the preparation of other international agreements on the peaceful exploration of outer space.

The principle of non-aggression includes prohibition of aggressive wars and the threat or use of force in international relations but does not directly forbid ideological preparations for aggressive war. This is done by the principle prohibiting war propaganda.

Under this principle the government organs are forbidden to conduct war propaganda and they must see to it that this is not done by non-government organisations and individuals either.^^3^^

In its Resolution 110 (II) of November 3, 1947, the U.N. General Assembly condemned "all forms of propaganda, in whatsoever country conducted, which is either designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression''.

The principle prohibiting war propaganda acquires particular significance now that artificial satellites are being widely used in communications and to relay radio and television programmes.

~^^1^^ See A. P. Movchan, Peaceful Means of Settling International Disputes, Moscow, 1957.

~^^2^^ Article 15 of the treaty says: "1. If any dispute arises between two or more states parties to the treaty with regard to the interpretation or application of this treaty, those state parties to the treaty shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of this nature not so resolved shall, with the consent, in each case, of all parties to the dispute, be referred to the International Court of Justice for settlement, but failure to reach agreement on reference to the International Court shall not relieve the parties to the dispute of responsibility for continuing to endeavour to resolve it by one of the various peaceful means referred to in Paragraph 1 of this article.''

~^^3^^ For details see A. N. Trainin, Defence of Peace and Struggle Against Crimes Against Humanity, Moscow, 1956, pp. 161-77, and G. I. Morozov, "Responsibility for War Propaganda", Soviet Yearbook of International Law, 1959, pp. 312-27.

~^^1^^ E. Fasan, "Law and Peace for the Celestial Bodies", report submitted to the Third Congress of the International Astronautical Federation in Varna, Bulgaria, in 1962.

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In their exploration of outer space the states must be guided by the principle prohibiting war propaganda. Communications with the aid of artificial satellites must be used to promote friendly international relations and to disseminate truthful information. That is precisely why the 1963 Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space and the subsequent Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, make it a special point of recalling that the General Assembly resolution of November 3, 1947, which condemns war propaganda designed or likely to provoke or encourage any threat to the peace, breach of the peace, or act of aggression, applies to outer space.

The principle prohibiting war propaganda is designed to prevent the ideological preparation of war in any form, including the propaganda of national and racial hatred and of hostility between nations.

The propaganda of national and racial hatred and hostility between nations is condemned by the International Convention on the Elimination of All Forms of Racial Discrimination, which was approved by the Twentieth General Assembly in 1965.^^1^^

The reference in the treaty to the General Assembly Resolution of November 3, 1947, is thus very important in the light of possible use of communication satellites. This general reference should be made more explicit with due account of the activities of the space radio communication services. It would be desirable, for instance, to take the following measures to prevent the use of space radio communications for hostile propaganda:

1. To include in the appropriate section of the agreement on the establishment of an international system of longdistance radio communications with the aid of Earth satellites provisions binding the states to use this new means of international intercourse for the benefit of all mankind and

in the interests of international friendship and understanding.

2. To create within the international system of longdistance radio communications with the aid of artificial satellites, if the states deem it necessary, a special body to supervise the fulfilment of this provision.

3. To conclude a special convention on the use of international systems of long-distance radio communications with the aid of artificial satellites for the benefit of mankind and in the interests of international peace and friendship. In this convention it would also be expedient to settle the question of broadcasting single programmes of a global nature and their synchronised translation into different languages. The arrangement of such programmes could be entrusted to UNESCO, in which a special committee could be set up to deal with this problem. The convention should include provisions concerning the responsibility of states for the violation of its principles.

In raising the question of concluding such a convention one may cite as a noteworthy precedent the International Convention Concerning the Use of Broadcasting in the Cause of Peace, done at Geneva on September 23, 1936.^^1^^

An especially important part in the legal regulation of the space regime is played in the system of general principles of international law by the principle of disarmament. This principle has been secured in the U.N. Charter (Art. 11) and in the Fourteenth U.N. General Assembly's Resolution 1378 on General and Complete Disarmament of November 20, 1959.^^2^^

The implementation of this principle requires the conclusion of a special international agreement on disarmament under strict international control in each one of its phases.

Prohibition of the means of attack or, in other words, general and complete disarmament would be a natural consequence of the development of the principle of non-- aggression. The ban on all means of armed attack would simul-

^^1^^ International Convention on the Elimination of All Forms of Racial Discrimination. U.N. General Assembly Resolution 2106 (XX) of December 21, 1965. See Henryk Andrzejczak, "Prawno-materialny zakres konwencji ONZ w sprawie likwidacji wszelkich form dyskrymanacji rasowej," Sprawy Miedzynarodowe, No. 12, 1966, pp. 83- 102.

~^^1^^ The Soviet Union also took part in drawing up the Convention. Formally, it came into force on April 2, 1938, but the international situation on the eve of the Second World War complicated its implementation.

~^^2^^ O. V. Bogdanov, General and Complete Disarmament, Moscow, 1964, pp. 28-145.

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275

taneously mean the establishment of a demilitarised and' neutralised regime in outer space, that is, prohibition of the use of outer space for military purposes. This would lead to the assertion in space law of the principle concerning¹ the use of outer space exclusively for peaceful aims.

ij

PARTIAL DEMILITARISATION OF OUTER SPACE AND COMPLETE DEMILITARISATION OF CELESTIAL BODIES

The principle of partial demilitarisation of outer space and complete demilitarisation of celestial bodies is formulated in Article IV of the treaty.

Demilitarisation of outer space and celestial bodies means prohibition of activities pursuing military aims in peacetime. In the case of partial demilitarisation the international agreement would stipulate what activities the states could undertake in space; in the case of complete demilitarisation it would ban all military activities in peacetime. Neutralisation of outer space and celestial bodies means their complete or partial exclusion from the zone of operations in the event of an armed conflict. The treaty binds the signatory states not to place in orbit around the Earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, nor to instal such weapons on celestial bodies, or station them in outer space in any other manner. It thus secures the Eighteenth General Assembly's Resolution 1884 on the same subject. Insertion of the principle concerning partial demilitarisation of outer space is an important step towards restricting the dissemination of nuclear weapons in outer space.

Very important too is the complete demilitarisation of the Moon and other celestial bodies. The treaty stipulates that the Moon and other celestial bodies will be used by the signatories only for peaceful aims. It is forbidden to build military bases, installations and fortifications on the celestial bodies, to test any weapons or carry out manoeuvres. The treaty nevertheless allows the employment of military personnel for scientific research or any other peaceful purposes and the use of any equipment necessary for the peaceful exploration of the Moon and other celestial bodies.

If agreement on the complete demilitarisation of outer space is reached in the future, the principle concerning the

partial demilitarisation of outer space and complete demilitarisation of celestial bodies will be replaced by the principle governing the use of outer space exclusively for peace"ul purposes.

There is no such agreement at present and so interna.onal documents speak of the exclusively peaceful explora;ion and use of outer space as the goal the states should strive for.

Complete demilitarisation of outer space makes it necessary for the states to agree 1) not to place in orbit around the Earth, the Moon and other celestial bodies any military objects and 2) not to use outer space for (or during) military manoeuvres or for testing any weapons (combat missiles, combat air and space devices, etc.).

The Soviet Union has always maintained that outer space and celestial bodies should be used solely for peaceful purposes. It first advanced a proposal on this point in March 1958.^^1^^ The basic principles prohibiting- the use of outer space for military purposes, subsequently advanced by the Soviet Union, were included in the Soviet programme for general and complete disarmament.

Article 15 of the Soviet draft treaty on general and complete disarmament under strict international control of March 14, 1962, said:

``1. Rockets and space devices should be launched exclusively for peaceful purposes.

``2. The International Disarmament Organisation shall exercise control over the fulfilment of Para. 1 of this article by stationing at rocket-launching sites used for peaceful purposes control teams which shall be present at launchings and thoroughly examine every rocket or satellite before launching.''

Article 14 of the draft stipulated that the states parties to the treaty should give advance notification to the International Disarmament Organisation of all rockets launched for peaceful purposes.

If the states were to agree to destroy all combat missiles and to establish international control over the launching of rockets and space devices exclusively for peaceful purposes, they would ensure not only complete demilitarisation of outer space but its neutralisation. Complete neutral-

~^^1^^ Izvestia, March 16, 1958. 19-495

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isation of outer space would preclude its use in wartime for 1) launching military space objects with a view to inflicting losses upon the enemy, 2) conducting war operations, and 3) for firing combat missiles through space at targets in other countries.

Partial neutralisation would mean prohibition of the forms of space activity specified by international agreements.

In Western, particularly American, literature one often meets with claims that the very question of using outer space solely for peaceful purposes is illegal because it restricts the right of states to self-defence, as guaranteed by international law and Article 51 of the U.N. Charter. They ignore, however, the indisputable fact that a state's right to individual or collective self-defence does not mean that it should have and has an unlimited choice of means, methods and place for implementing this right. Such freedom has its limits and by way of illustration we may cite the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and the Bacteriological Methods of Warfare of June 17, 1925, and the Antarctic Treaty of 1959. Prohibition of this type has never been considered incompatible with the right to self-defence.

RETENTION BY STATES OF JURISDICTION OVER OBJECTS LAUNCHED INTO OUTER SPACE

The Outer Space Treaty says: "A state party to the treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the state party to the treaty on whose registry they are carried shall be returned to that state party, which shall, upon request, furnish identifying data prior to their return" (Art. VIII).

The treaty thus proceeds from the fact that the state launching an object into outer space retains jurisdiction and control over the object and its personnel while they are in outer space. However, it does not answer the ques-

tion about the control and jurisdiction over an object and its personnel while in the air space of a foreign state. This question will obviously be dealt with in an appropriate international agreement. Theoretically, there are two ways of settling it:

1) by recognising that the state launching an object into outer space retains jurisdiction and control over it during its flight in outer space and in the air space of a foreign state (naturally with its permission);

2) by recognising that during the flight of a space object in the air space of a foreign state the latter exercises control and jurisdiction over the object and its personnel.

Both ways of settling the question of jurisdiction are predicated upon the need to differentiate between outer and air space within which the state exercises complete and exclusive jurisdiction.

Bearing in mind the considerable speed with which a space device moves, we consider that it would be expedient for the state launching it to retain jurisdiction and control over the device and its personnel throughout the flight, even while it is within the air space of a foreign state, provided the latter agrees to this flight.

The treaty completely rejects the thesis advanced in Western legal literature that an object launched into space loses its ``citizenship'' and becomes a "no man's object''.

The Eighteenth U.N. General Assembly's Declaration 1962 did not mention control and jurisdiction over objects and their personnel while on a celestial body or refer to the ownership of objects landed or constructed on a celestial body. The treaty, on the other hand, contains a provision on the ownership of objects and on jurisdiction and control over them in the light of possible activities on the Moon and other celestial bodies. According to the treaty, states retain ownership of the objects and laboratories they land or construct on the Moon or other celestial bodies. There is no doubt either that the state establishing a research station or settlement on the Moon will, since it is responsible for all that happens there, exercise jurisdiction over its citizens at the station or in the settlement as well as control over everything taking place there.

Since states retain ownership of the objects they launch into outer space, the other states are in duty bound to return them to their lawful owners in the event of discovery. The

19*

ownership of the space objects is established by the national identifying data. The Soviet Union, for instance, places pennants with its arms in all its space objects. Detailed conditions for the return of space objects or their component parts are enumerated in the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space of April 22, 1968.

The agreement envisages that objects launched into outer space or their component parts discovered beyond the territory of the state that launched those objects are returned to representatives of the state, who should provide, on request, indentifying data prior to their return. The agreement also envisages that each contracting party should notify the state which launched the space object and the Secretary-General of the United Nations about the fact of the discovery and the return of any such object or its component parts, and, on the request of the state that launched the object, take every practically possible step to save the object or its component parts.

The agreement does not give a direct answer to the question repeatedly raised in the Legal Sub-committee of the U. N. Committee on the Peaceful Uses of Outer Space, as to whether all space objects without exception and regardless of their character and purposes, should be returned, or only those which have not been used to the detriment of the state on the territory of which they landed.^^1^^ Nowadays there is a current opinion in the doctrine of international law that the rules of the agreement envisaging the return of space objects to the state that launched them, are not to be applied to space objects used for purposes which are incompatible with the basic principles of international law. We think that the Agreement on Rescue should apply only to such activities in the exploration and use of outer space which are carried out in compliance with the principles of the Outer Space Treaty of January 27, 1967.

carried out by both governmental and non-governmental entities.

According to the treaty, "the activities of non-- governmental entities in outer space, including the Moon and other celestial bodies, shall require authorisation and continuing supervision by the appropriate state party to the treaty" (Art. VI).

This principle takes into account the specifics of cosmonautics, the traits that distinguish it, for instance, from navigation and aeronautics. For even in the countries where private firms have access to the use of outer space---in the United States, for example---the launching of objects into space is still in the hands of the state. The private-owned Communication Satellite Corporation ``rents'' booster rockets to orbit its satellites from the National Aeronautics and Space Administration. The state is thus in a position constantly to control the space activities of private firms.

The treaty contains no provisions concerning the authorisation and continuing supervision by a state of the space activities of non-governmental organisations. One of the questions that arises is whether such authorisation should be given for a definite period or renewed for each launching. Authorisation arrangements should provide for the continuing supervision by the state of the activities of nongovernmental organisations in outer space.

Granting a concession to a private firm to engage in space activity without continuing supervision by the state concerned is incompatible with the obligations imposed by the principle relating to the states' international responsibility for national activities in outer space.^^1^^

The activities of states in the exploration and use of outer space require both a high level of scientific and technological development and considerable financial outlays. And so many states tend to unite their resources.^^2^^

Bearing in mind this tendency, the treaty says: "When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organisation,

STATES' INTERNATIONAL RESPONSIBILITY FOR NATIONAL ACTIVITIES IN OUTER SPACE

The Outer Space Treaty establishes the states' international responsibility for all national activities in outer space

~^^1^^ C. Wilfred Jenks, for instance, opposes all possible methods of circumventing this principle. See his Space Law, London, 1965, pp. 211-12.

~^^2^^ By way of illustration we may cite the European Space Research Organisation (ESRO) and the European Space Vehicle Launcher Development Organisation (ELDO).

^^1^^ See TJ.N. Document A/AC. 105/c 2/L/2 Rev. 1, Rev. 2, Rev. 3.

responsibility for compliance with this treaty shall be borne by the international organisation and by the states parties to the treaty participating in such organisation" (Art. VI).

In this particular case, it seems, it is a question only of inter-governmental international organisations. Responsibility for such organisations (Eurospace, for instance) should be borne only by the states whose representatives or citizens participate in them. Since the state, as provided for by the treaty, bears international responsibility for the activities in outer space of the non-governmental national organisation it controls, the states should---by analogy---bear joint responsibility for the space activities of the non-- governmental international organisation uniting several nongovernmental national organisations.

The principle of the states' international responsibility for national activities in outer space also includes international liability for damage caused by space objects.

The treaty stipulates that "each state party to the treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each state party from whose territory or facility an object is launched, is internationally liable for damage to another state party to the treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies" (Art. VII).

At the present stage of rocket development the launching of objects into outer space should be regarded as a source of particular danger. Any resultant damage should be compensated irrespective of whether or not the launcher state is guilty. Such responsibility is usually considered absolute.

The international law questions concerning responsibility for damage caused by a space object have yet to find their solution in a special international convention. Hungary, the United States and Belgium have already submitted draft conventions to the Legal Sub-committee of the U.N. Committee on the Peaceful Uses of Outer Space. It will be for the convention to determine when absolute responsibility for damage is inapplicable, to define the sphere of action of such international responsibility in the event of joint activity in outer space of two or more states or international organisations, and to establish the limits of compensation.

In our opinion, absolute responsibility for damage is not applicable when it is a result of 1) collision of objects in outer space, 2) natural calamity, and 3) deliberate action, carelessness or mistake on the part of the claimant state or the natural or juridical persons it represents.

As for the possible sphere of action of the future international convention on the responsibility for damage, various views have been expressed. This convention apparently should not extend to cases where damage is caused by a space object within the limits of the state launching it, or when it is caused to its natural and juridical persons as well as its organisations and institutions on foreign territory. In such cases damage should be compensated in accordance with the laws of the state bearing responsibility.

The question of sharing responsibility for damage in the event of joint space activities by two or more states will clearly have to be decided on the basis of the principle concerning the responsibility of states with the right of claiming damages from the co-defendant. The distribution of damages among the parties in proportion to their share of responsibility appears to be a more complicated and, consequently, less desirable method of solving the problem.

Since international organisations are taking an increasingly important part in the exploration of outer space, it is quite natural to raise the question of their responsibility for damage caused by objects in outer space.^^1^^

In drawing up the convention on responsibility for damage, it will be desirable to establish the limits of compensation. Care should be taken, however, not to allow this question to become a stumbling block in the preparation of the draft of such a convention. This applies all the more so if a provision is inserted in the convention to the effect that it will not be extended to damage caused by a space object with a nuclear reactor on board. The question of filing claims and the manner of their satisfaction are also very important, as is the question concerning the participants in the appropriate convention.

~^^1^^ See J. Herczeg, "Some Legal Problems of Responsibility Arising from Outer Space Activities", Questions of International Law, Budapest, 1966, pp. 89-96, and M. Bourely, International Organisations for Co-operation in Space and the Problem of Liability for Space Activities, Eighth Colloquium on Space Law, Athens, 1965.

PREVENTION OF POTENTIALLY HARMFUL CONSEQUENCES

OF EXPERIMENTS IN OUTER SPACE

AND ON CELESTIAL BODIES

``In the exploration and use of outer space, including the Moon and other celestial bodies," the treaty says, "states parties to the treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other states parties to the treaty. States parties to the treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose" (Art. IX).

In 1966 there were more than 600 space objects orbiting around the Earth. Most of them have already fulfilled their missions and are of no scientific value. To prevent outer space from being thus littered, steps should be taken to reduce to the minimum the number of space objects that continue to revolve around the Earth when they have lost all scientific or practical value. Such a reduction could follow an agreement on the withdrawal of ``dead'' objects from outer space. Also linked therewith is the question of terminating the transmission of radio information from space objects after they have fulfilled their mission.^^1^^

The littering of outer space with space objects involves not only the danger of their collision (which will probably remain insignificant for a long time yet) and of radio interference (already a major problem). Observation of space objects which have fulfilled their mission may with time become an impossible task for the terrestrial tracking stations.

The problem of preventing the pollution of outer space includes prevention of its radioactive, biological and chemical contamination.

Prevention of the radioactive contamination of outer space was to a major extent facilitated by the Moscow partial nuclear test ban treaty of 1963 and the agreement reached by the U.S.S.R. and the United States not to orbit any objects carrying nuclear weapons or other weapons of mass destruction, which was later confirmed by Resolution 1884 adopted by the Eighteenth General Assembly in 1963. Important in this connection is the 1967 treaty ban on the installation of nuclear weapons in outer space.

Strict observance of this provision by states will considerably reduce the danger of contamination of outer space with radioactive products. The time is ripe too for studying ways of eliminating the possibilities of contamination bound to be caused by spaceships with nuclear rocket engines and nuclear power installations in the future.

It is necessary to draw up clear-cut regulations to prevent or reduce the harmful consequences of possible contamination of outer space, including the Moon and other celestial bodies, by terrestrial matter, and to eliminate the possibility of the Earth being adversely affected by non-- terrestrial matter. This requires above all the elaboration of legal rules providing for the sterilisation of interplanetary flying machines and other prophylactic measures to prevent contamination.

The problem of states' responsibility for damage caused by the contamination or littering of outer space also requires special regulation by international law.

Prevention of the littering and contamination of outer space is part of the general problem of preventing any potentially harmful consequences of experiments in outer space.

Much attention to this problem is devoted by the United Nations and other international organisations.^^1^^ The need

of appropriate devices (battery life, timing devices, ground command, etc.) that will ensure definite cessation of emissions"; and Article 14 says: "Space stations shall be fitted with appropriate devices to quickly terminate their radio emissions whenever required to do so under the provisions of these Regulations" (Final Acts of the Extraordinary Administrative Radio Conference to Allocate Frequency Bands for Space Radiocommunication Purposes, Geneva, 1963, pp. 85-115).

~^^1^^ The Committee on Space Research (COSPAR) set up a special consultative group in 1962 to ascertain the potentially harmful consequences of experiments in outer space. The group prepared a report

~^^1^^ The Extraordinary Administrative Radio Conference held in Geneva in 1963 adopted appropriate addenda to Articles 7 and 14 of the International Radio Regulations. Article 7 now says: "Space stations shall be made capable of ceasing radio emissions by the use

for preventing the harmful consequences of experiments in outer space was stressed in 1964 by the Scientific and Technical Sub-committee of the U.N. Committee on the Peaceful Uses of Outer Space. Its recommendations were included in the Committee's report to the Twentieth General Assembly. The latter approved them in Resolution 2130 of December 21, 1965.

As for the 1967 treaty, it envisages the possibility of international consultations. Responsibility for holding such consultations is placed upon the state planning an experiment with potentially harmful consequences. States not taking part in the experiment have the right to request such consultations if they deem it necessary.

The manner in which such international consultations are to be held requires further precising. At present it is not yet entirely clear when such consultations should be undertaken (immediately or long before the experiment), with whom they should be held (with some definite group of states, with all states, or with some international organ), what international consultations imply exactly, and to what extent the states are bound to reckon with them; and the legal consequences of actions undertaken by a state after an unsuccessful effort to reach agreement in such consultations.

This sphere of space law, it may justly be said, is still in the initial phase of its development.

to portray cosmonauts as "world citizens" not subject to national and international law are dictated by considerations that have nothing in common with the recognition of these courageous space explorers' services to mankind. Cosmonauts retain their citizenship during the space flight and after their return to the Earth.

The treaty provides for international co-operation in rendering cosmonauts assistance in the event of accident, distress, emergency or unintended landing, and helping them in their activities in outer space, including the Moon and other celestial bodies. International co-operation in the rescue of cosmonauts is regulated by the special agreement of April 22, 1968.^^1^^

This agreement develops and concretises the obligations assumed by states under the Outer Space Treaty in rendering cosmonauts all-round assistance in the event of accident, distress, emergency or unintended landing at all stages of flight, including flight in outer space or when landing on the Moon.

The co-operation of states in rendering assistance to space explorers is aimed at protecting their lives and health, and is very important as far as its humane objectives are concerned.

The agreement takes due account of the fact that there exist international non-governmental space organisations and West European international organisations---ELDO and ESRO. The agreement says the term "the state that has launched an object" refers both to the state and the international organisation responsible for the launching, provided such an organisation observes the rights and duties enumerated in the agreement, and the majority of the member countries of this organisation have signed the agreement and the Outer Space Treaty of January 27, 1967.

The relevant article of the Agreement was based on Article XIII of the Outer Space Treaty of January 27, 1967, which stipulates that the clauses of this agreement will be applied to space activities carried out by states both individually and jointly, including those within international inter-governmental organisations.

ASSISTANCE TO PERSONNEL OF SPACECRAFT IN THE EVENT

OF ACCIDENT, DISTRESS, EMERGENCY

OR UNINTENDED LANDING

Article V of the treaty refers to assistance to the crews of spaceships in the event of accident, distress, emergency or unintended landing, and envisages possible international law forms of implementing this provision.

This provision implies that the cosmonauts should conduct all their activities "for the benefit and in the interests of all countries" and that these activities should not contradict the basic principles of space law as formulated in the treaty. The attempts made by some Western authors

on this subject and submitted it to the COSPAR general meeting in Florence in May 1964. The latter adopted a special resolution on this question.

~^^1^^ Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space, Pravda, April 23, 1968.

The clauses of the agreement thus apply to international inter-governmental organisations even if the latter have not signed it. Such decision is in keeping with international practice from which it follows that international organisations are not admitted as parties to general multilateral agreements of universal type. International organisations assume definite obligations only under bilateral agreements with states. The stipulation that the majority of member countries of international inter-governmental organisations should participate in the Outer Space Treaty of January 27, 1967, and in the Agreement on Rescue endorsed by the 22nd U.N. General Assembly is a guarantee that these organisations will fulfil obligations they have taken upon themselves.

The conclusion of the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space will no doubt promote further international co-operation in the exploration and use of outer space.

PROMOTION OF INTERNATIONAL CO-OPERATION IN THE PEACEFUL EXPLORATION AND USE OF OUTER SPACE AND CELESTIAL BODIES

Observation of space objects launched by states is carried out with the aid of optical, radar, radio and infrared equipment.

Such devices make it possible to establish the orbit, speed and position of the object at any moment of its flight. The space-tracking services also make use of telemetry to receive measurements carried out in the space objects, including data relating to their functions.

A state launching a space object is naturally interested in keeping it under constant observation. However, it is practically impossible to do this from the territory of one state. The only exceptions are the artificial Earth satellites placed on a stationary orbit. And so it is of major practical importance to promote international co-operation in keeping artificial space objects under observation and obtaining telemetric data.

This is done in three ways:

1) States exchange information and data through COSPAR.

2) States launching space objects and the states maintaining tracking stations conclude agreements.

3) States conclude agreements on the construction and use of tracking stations.

Tracking stations are especially important for manned space flights. Not only the success of these flights but the cosmonauts' lives often depend on constant contact with the Earth.

All this shows that the countries launching space objects should have the right to make use, on an equal footing and without any discrimination, of the services of tracking stations in different parts of the world.

Article X of the treaty says: "In order to promote international co-operation in the exploration and use of outer space, including the Moon and other celestial bodies, in conformity with the purposes of this treaty, the states parties to the treaty shall consider on a basis of equality any requests by other states parties to the treaty to be afforded an opportunity to observe the flight of space objects launched by those states.

``The nature of such an opportunity for observation and the conditions under which it could be afforded shall be determined by agreement between the states concerned.''

A state which allows one party to the treaty to build and use a tracking station on its territory should not refuse similar opportunities for observing the flight of artificial Earth satellites to other parties to the treaty.

The extension of the most-favoured-nation regime to the conditions on which states are afforded an opportunity to observe the flight of space objects on foreign territory helps promote international co-operation in the exploration of space.

The treaty says the states agree, "to the greatest extent feasible and practicable," to submit information on their activities in outer space, including the Moon and other celestial bodies, to the U.N. and other international organisations (Art. XI).

According to established practice, the launching of a space object may be announced in the press or over the radio and reported for registration to the United Nations, as provided for by General Assembly Resolution 1921 (XVI) of December 20, 1961.

The Soviet Union strictly abides by this resolution and

regularly informs the United Nations of the launching of spaceships.

Who is to make the announcement if several states take part in the launching of a space object? When the working group of the Legal Sub-committee of the U.N. Committee on the Peaceful Uses of Outer Space discussed this question in October 1964, it was suggested that states taking part in the joint launching should agree on which of them is to make the announcement.^^1^^

The idea of an exchange of technical and scientific information about activities in the exploration of outer space was first mooted during the preparations for the 1957-58 International Geophysical Year (IGY). The conference held in Washington in 1957 compiled a special manual for the IGY World Data Centres which contained recommendations regarding the announcement of space launchings.^^2^^ At the COSPAR conference in Washington in May 1962 these recommendations were revised and a new manual on the exchange of information about rockets and satellites and on the results of exploration was compiled and adopted.^^3^^

From 1957 to 1962 inclusive space objects were designated in chronological order by Greek letters and the year of launching (for instance, Lunik 1 was Alpha 1959). The 1962 COSPAR manual contains a new system of designating space objects, and since January 1, 1963, it has been used in compiling reports of launchings.

The 1962 COSPAR manual on the exchange of information does not impose any legal obligations upon the parties involved. Its provisions are fulfilled by each state voluntarily and at its own discretion. The recommendations, however, create a basis for international scientific co-operation in space exploration.

The treaty on the principles governing the activities of states also says: "All stations, installations, equipment and space vehicles on the Moon and other celestial bodies shall be open to representatives of other states parties to the treaty on a basis of reciprocity. Such representatives shall

give notice of projected visit, in order that appropriate consultations may be held and that maximum precautions may be taken to assure safety and to avoid interference with normal operations in the facility to be visited" (Art. XII).

Reciprocal visits to stations, installations, equipment and space vehicles on the Moon and other celestial bodies, provided advance notice has been given, create favourable opportunities for the states' co-operation in the difficult job of exploring the Moon and other celestial bodies. The states may, for instance, agree in the future on the joint use of lunar launching pads. Other forms of co-operation on the Moon are also possible, and they may require reciprocal visits to stations, installations, equipment and space vehicles. The system of reciprocal visits on the Moon and other celestial bodies thus has a special purpose and is designed to promote international co-operation in the exploration and use of outer space, including the Moon and other celestial bodies.

The time will come when scientific expeditions are dispatched not only to the Moon, Mars and Venus but to more remote parts of the Universe. The emissaries of our planet may meet intelligent beings there. It is quite possible that these meetings will lead to mutual understanding, and it will then be necessary to establish rules of a new, interplanetary law which will govern relations between the inhabitants of different planets. For the time being, however, this belongs to the realm of fantasy.

Today it is far more important to solve international law problems arising from the space activities of states and to exert every effort to make space a zone of lasting peace, an arena for fruitful international co-operation for the benefit of mankind and of all countries.

~^^1^^ U.N. Document A/AC. 105/21. Supplement IV, p. 4.

~^^2^^ Annals of International Geophysical Year, Vol. VI, IGY Manual of Rockets and Satellites, pp. 465-72.

~^^3^^ COSPAR Information Bulletin, No. 9, July 1962, pp. 4-42.

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