The Future of Public International Law and of the International Legal System in the Circumstances of Today
| Author | Gerald Fitzmaurice |
| Published date | 01 April 1976 |
| Date | 01 April 1976 |
| DOI | http://doi.org/10.1177/004711787600500301 |
| Subject Matter | Articles |
949
THE
FUTURE
OF
PUBLIC
INTERNATIONAL
LAW
AND
OF
THE
INTERNATIONAL
LEGAL
SYSTEM
IN
THE
CIRCUMSTANCES
OF
TODAY
Second and
Final
Part
of
an
Abstract
(prepared
by
the
Author)
of
a
Special
Report
a)
by
SIR
GERALD
FITZMAURICE
Rendered
to
the
Institute
of
International
Law
at
its
Centenary
Session
in
Rome,
September,
1973
NOTES
(i)
The
First
part
of
this
Abstract,
up
to
and
including
paragraph
67,
appeared
in
International
Relations
for
May,
197$b>,
-
see
the
corresponding
Note
on
p.743
from
which
the
following
explanatory
passage
is
reproduced.
&dquo;Most
of
the
footnotes
in
the
completed
version
have
been
omitted,
any
essential
references
being
inserted
in
the
body
of
the
text.
Those
retained
figure
under
their
original
num-
bering.
A
dot
(8)
in
the
text
where
a
footnote
number
would
have
appeared
indicates
the
omission
of
one.
There
are
a
few
new
notes,
lettered
not
numbered.
The
original
headings
and
paragraph
numbers
have
been
retained,
omissions
being
indicated.
Passages
paraphrased,
sum-
marized
or
consisting
of
linking
matter
are
placed
in
square
brackets.
The
Annexes
to
the
Report
are
omitted
with
the
exception
of
Annex
5.&dquo;
(ii)
Last
year’s
’half
of
the
Abstract
covered
the
whole
of
Part
I
of
the
original
Report,
entitled
&dquo;The
Past,
the
Present&dquo;
(paragraphs
1-60),
and
continued
with
the
opening
paragraphs
(61-67)
of
Part
II,
&dquo;The
Future&dquo;,
stopping
at
the
end
of
Section
A,
&dquo;The
distant
ideal&dquo;,
comprising
&dquo;1.
The
uses
of
Time&dquo;,
and
&dquo;2.
The
’Blue-Print’
World&dquo;.
The
broad
conclusion
reached
was
that
the
practical
realization
of
any
ideal
future
depended
on
modifications
in
the
situation
of
the
nation-State
so
unlikely
to
occur
that
they
could
be
discounted.
The
Report
then
went
on
to
Section
B,
-
which
starts
here.
*
B.
The
nearer
reality
and
the
art
of
the
possible
&dquo;The
optimist
thinks
that
this
is
the
best
of
all
possible
worlds;
the
pessimist
fears
that
this
is
true:&dquo;
JAMES
BRANCH
CABELL
a)
Published
in
the
Institute’s
Livre
du
Centenaire
1873-1973,
Editions
S.
Karger,
S.A.,
Basle.
b)
Vol.
X,
No. 1,
pp.743-775.
950
1.
Institutional
aspects
(A)
International
law-malting
(i)
Definitions
68.
[After
defining
&dquo;law-making&dquo;
as
&dquo;the
deliberate
crea.
tion
of
new
law
by
some
more
or
less
formal
act
or
process&dquo;,
the
Report,
recalling
what
had
been
said
earlier
about
the
not2
truly
law-creating
character
of
the
average
treaty
in
the
nature
of
lLx
specialis,
expresses
the
view
that
- with
one
all
important
exception
(the
&dquo;codifying
treaty&dquo;)-the
same
is
in
principle
true
even
of
the
so-called
&dquo;law-making&dquo;
or
normative
treaty.]
]
(ii)
The
&dquo;normative&dquo;
treaty
in
general
69..............................................
What
we
ventured
to
say
earlier
of
treaties
as
a
class’51
is,
in
our
view,
no
less
true
of
the
normative
or,
as
it
is
often
erroneously
called,
&dquo;law-making&dquo;
treaty.
Such
a
treaty
does
not
create
law
for
the
international
community
at
large,
but
law
(or
more
strictly
obligation)
only
for
the
particular
parties
to
it,
in
regard
to
the
particular
topic
it
deals
with.
The
all-important
exception
is
of
course
the
codify-
ing
treaty;
but
even
this
is
an
exception
of
a
peculiar
kind,
as
we
shall
see
in
a
moment.
Before
we
come
to
that,
we
must
draw
attention
to
something
that
goes
a
long
way
towards
put-
ting
the
role
of
the
treaty
into
its
proper
perspective
in
relation
to
international
law
as
a
whole,
and
which
also
leads
up,
through
contrast,
to
the
role
of
the
codifying
treaty.
A
member
of
our
society
has
expressed
this
matter
in
better
language
than
we
could
find,
and
therefore
we
shall
quote
him&dquo;’:
,
&dquo;Occasionally
a
treaty
rule
may
be
of
great,
even
supreme
importance.
Such
is
the
case
with
the
rules
laid
down
in the
Charter
of
the
United
Nations....
It
nevertheless
remains ...
true
that
one
can
have
a
very
fair
idea
of
international
law without
having
read
a
single
treaty:
and
that
tone
cannot
gain
any
very
coherent
idea
of
the
essence
of
inter-
national
law
by
reading
treaties
alone&dquo; - (our
italics).
Comparing
this
situation
with
that
obtaining
in
the
&dquo;Common
Law&dquo;
countries,
in
particular
England
and
the
United
States
of
America,
the
author
points
out
[ibid.,
p.35]
that
&dquo; ...
in
either
country
one
may
get
on
very
well
without
the
statute
book
when
the
object
is
to
gain
a
general
understanding
of
tlze
legal
system
rather
than
to
master
the
details
of
any
particular
part
of
the
law.
And
one
will
not
advance
very
far
towards
that
object
with
merely
the
statute
book
before
one&dquo;
-
(our
italics).
154
viz.
that
they
are
sources
of
obligation
rather
than,
properly
speaking,
law, — just
as
in
the
case
of
private
law
contracts
the
only
real
"law"
involved
is
the
general
law
of
contracts
(or
in
some
cases
the
law
of
particular
classes
of
contracts)
which
governs
the
making,
interpreta-
tion
and
execution
of
the
contract,
and
which
is
the
antecedent
source
of
the
obligation,
in
the
sense
of
enjoining
that
what
has
been
undertaken
must
be
carried
out.
155
Clive
Parry,
The
Sources
and
Evidence
of
International
Law,
Manchester —
Oceana,
1965,
pp.34-35.
951
Professor
Parry
therefore
concludes
(and
we
agree
with
him
so
long
as
codifying
treaties
are
omitted
from
the
verdict)
that,
despite
their
great
numbers,
most
treaties
have
been
of
secon-
dary
importance
as
sources
of
general
law,
and
that
what
has
&dquo;’characterized
them
has
been,
in
fact,
a
certain
irrelevance
to
international
law&dquo;
[p.36] ,
to
which
they
have
remained
&dquo;essen-
tially
peripheral&dquo;
[p.34].
But - and
here
is
what
chiefly
interests
us
in
the
present
context
- Prof essor
Parry,
in
asking
whether
it
therefore
follows
from
the
nature
of
the
international
legal
system,
as
being
one
of
&dquo;co-ordination
rather
than
subordina-
tion&dquo;
[p.36],
that
it
&dquo;shall
have
as
its
basis
a
process
other
than
a
legislative
or
quasi-legislative
process&dquo;159a,
points
out
at
the
same
time
that
the
situation
he
so
vividly
describes
would
not
be
true
in
countries
in
which
the
legal
system
is
based
on
a
codification
of
the
law.
Thus
for
instance
[p.35] ,
&dquo;One
can
obtain
a
very
fair
idea
of
French
law
from
the
texts
of
the
Code
Civil
alone;
and ...
one
will
not
get
very
far
in
the
study
of
French
law
without
the
texts
of
the
code.&dquo;
(iii)
The
codifying
treaty
70.
The
same
is
of
course
also
true
of
many
other
national
systems
of
law.
But
it
is
not
true
of
international
law
at
present.
Yet
it
could
become
true
of
international
law
if
that
law
were
sufficiently
codified.
It
is
in
this
direction
therefore
that
we
must
look
first
for
something
approaching
a
general
legislative
process
in
the
international
field - an
opinion
which
has
also
been
expressed
by
others&dquo;,
some
of
whom,
sharing
our
own
scepticism
as
to
the
real
utility
of
non-codifying
treaties
for
general
law-making
purposes,
have
considered
that
for
the
future
we
should
look
to162
&dquo; ...
less
use
of
treaties
to
lay
down
substantive
rules,
and
to
more
use
of
treaties
to
set
up
common
constitutional
procedures
according
to
which
rules
will
be
established
within
the
limits
of
competence
set
by
the
treaty
itself.
The
treaty
process
is
simply
too
ponderous,
without
further
mechanisms
for
joint
action,
to
deal
with
international
legislative
needs&dquo;.
Now,
if
the
United
Nations
Charter
be
regarded
as
being
a
treaty
which,
in
a
sense,
it
is,
the
procedures
recommended
in
this
passage
are
exactly
those
that
have
been
adopted
through
the
creation
of
the
International
Law
Commission
under
Article
13,
paragraph
1
(a),
of
the
Charter,
and
through
the
processes
whereby
it
formulates
codificatory
texts
on
various
branches
of
161
See
Bishop,
General
Course,
Hague
Academy
Recueil,
1965,
Vol.
II,
pp.245-6,
citing
Jennings,
"Recent
Developments
in
the
International
Law
Commission:
Its
Relation
to
the
Sources
of
International
Law",
in
International
and
Comparative
Law
Quarterly,
Vol.
13,
No. 2
(1964),
pp.389-390.
162
Kaplan
and
Katzenbuch,
the
Political
Foundation
of
International
Law,
1961,
p.246.
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