International Law, Power, and Policy: A Contemporary Conception

INTERNATIONAL LAW,
POWER, AND POLICY:

A CONTEMPORARY
CONCEPTION
BY
MYRES S. McDOUGAL
G
MYRES S. MCDOUGAL
BIOGRAPHICAL NOTE
Myres SMITH MCDOUGAL; William K. TOWNSEND Professor of Law,
Yale University School of Law.
Born November 23, 1906; B.A., M.A., L.L.B., University of Missis-
sippi; B.A. in Jurisprudence, B.C.L., University of Oxford; J. S. D. ,
Yale University; Rhodes Scholar, University of Oxford 1927-1930.
Assistant General Counsel, Lend-Lease Administration, 1942; General
Counsel, The Office of Foreign Relief and Rehabilitation Operations,
United States Department of State, 1943; Lecturer, Fulbright Confe-
rence on American Studies, Cambridge University, Summer 1952.
Member of Editorial Board, The American Journal of International
Law; Member of Editorial Board, The American Journal of Compara-
tive Law.
PRINCIPAL PUBLICATIONS
1. Property, Wealth, Land : Allocation, Planning and Development; Selected
Cases and Other Materials On the Law of Real Property, An Intro-
duction. Charlottesville, Michie Casebook Corporation, 1948. viii,
1213 pp. (With David Haber. )
2. The Case for Regional Planning with Special Reference to New England,
by the Directive Committee on Regional Planning, Yale University.
New Haven, Yale University Press, 1947, 94 pp. (Chairman of
Committee, with Maurice E. H. Rotival.)
3. Legal Education and Public Policy: Professional Training in the Public
Interest. Yale Law Journal, 52:203-295, March, 1943. (With Harold D.
Lasswell.)
4. Treaties and Congressional-Executive or Presidential Agreements:
Interchangeable Instruments of National Policy, Tale Law Journal,
54:181-351; 534-615, June, 1945. (With Asher Lans.)
5. The Rights of Man in the World Community: Constitutional Illusions
Versus Rational Action. Yale Law Journal, 59:60-115, 1949. (With
Gertrude C. K. Leighton.) Also printed in Law and Contemporary
Problems, 14:490-536. 1949.
6. The Genocide Convention and the Constitution. Vanderbilt Law Review,
3:683-710. 1950. (With Richard Arens.)
7. The Veto and the Charter: An Interpretation for Survival. Yale Law
Journal, 60:268-292. 1951. (With Richard N. Gardner.)
8. The Comparative Study of Law for Policy Purposes : Value Clarification
as an Instrument of Democratic World Order. Yale Law Journal,
61:915-946. 1952. (Also in American Journal of Comparatine Law,
1:24-57. 1952.)
INTERNATIONAL LAW, POWER AND
POLICY :
A CONTEMPORARY CONCEPTION *)
"We shall not ask him ["the jurist of the immediate future"]
for a juristic romance built upon the cosmological romance
of some closed metaphysical system. But we may demand of
him a legal philosophy that shall take account of the social
psychology, the economics, the sociology as well as the law
and politics of today, that shall enable international law to
take in what it requires from without, that shall give us a
functional critique of international law in terms of social
ends, not an analytical critique in terms of itself, and above
all that shall conceive of the legal order as a process and not
as a condition."
POUND, Philosophical Theory and Inter-
national Law, 1 Bibliotheca Visseriana
73, 89 (1932)
INTRODUCTION
THE TASKS OF A POLICY-ORIENTED
JURISPRUDENCE (PHILOSOPHY-SCIENCE OF LAW)
IN OUR TIME
1. The great discrepancy between the interdependences of
peoples in fact throughout the world and the existing legal
organization of the world confronts students of international
law with unparalleled challenge and opportunity. Mankind
today lives in a context of world social and power processes;
without benefit of adequate legal organization these processes
1. Throughout these lectures the writer draws heavily upon collaborative
studies with Professor Harold Lasswell in seminars on Law, Science, and
Policy and World Community and Law. The writer is further gratefully
indebted to the Wenner-Gren Foundation for Ahthropological Research for
grants in support of such studies and to the Carnegie Endowment for Interna-
tional Peace for making possible the delivery of these lectures.
William K.'Townsend Professor of Law, Yale University.
138 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (6)
are undergoing transformations of unprecedented magnitude,
rapidity, and violence; the shadow of possible catastrophe
hangs, with increasing common apprehension, over all our
heads.
(a) The advent of new weapons of destruction, with impact
upon the security of every living human being, merely confirms
a trend long evident in the progressive industrialization of the
globe. Modern technology, which continues to expand at an
ever accelerating rate, has established an inescapable inter-
dependence in fact of all peoples everywhere, despite their
inherited governmental institutions emphasizing independence
in form, for controlling the conditions which determine the
degree to which they can achieve any one of their values and
all their values
1
.
(b) The history of recent centuries documents a rising
common demand of the peoples of the world, a demand which
transcends the boundaries and competence of their inherited
governmental forms, for all the values which we today sum-
marize as the values of a free society or as fundamental respect
for the dignity of the individual human being
2
. This rising
common demand is explicit in varying degrees, and implicit to
the fullest degree, in most of the new constitutions, territorial
and functional, international and national, created since World
War II, and it includes more specific, detailed demands for
the greater production and sharing of all values and for security
in the sense of opportunity to pursue and enhance all values by
peaceful, non-coercive procedures, free from violence and
threats of violence
s
.
(c) The peoples of the world are becoming continuously
more realistic in their consciousness of the conditions of inter-
dependence under which they live and, hence, are ever widening
1. Wright, The World Community (1948); Ogburn, Technology and
International Relations (1949); Linton (ed.) Most of the World (1949).
2. Lasswell, The Interrelations of World Organization and Society,
55 Yale L. J. 889 (1946) reprinted in Lerner and Lasswell, The Policy
Sciences c. VI (1951).
3. McDougal and Leigh ton, The Rights of Man in the World Community:
Constitutional Illusions Versus Rational Action, 59 Yale L. J. 60 (1949).
(7)
INTRODUCTION 139
their identifications to include in their demands for values more
and more of their fellow men whose fate they recognize they
share. These more inclusive identifications are demonstrated
and represented in continuously intensifying demands for wider
and wider political cooperation, for the more effective use of
conjoined community power for the securing of common
goalsas witnessed by a general purpose world organization,
multitudinous ancillary and subsidiary organizations and
agencies, a growing number of regional pacts and understand-
ings and of functional unifications, and almost countless multi-
lateral and bilateral agreements
1
.
(d) The eventual realization of a progressively freer, more
peaceful, and abundant world society is, however, today threa-
tened as never before in recent generations. The trend that
perhaps most conspicuously dominates the contemporary world
arena is not toward rational and peaceful cooperation in the
pursuit of interdependent values but rather toward hostile bi-
polarization, with ever increasing expectations of the most
comprehensive violence
2
. These expectations of impending
violence both vastly increase the ordinary difficulties of coopera-
tion across nation-state boundaries and stimulate measures and
processes within nation-states that are deeply destructive of
freedom and other values. The writer, drawing heavily upon a
colleague, has elsewhere summarized : "The whole global trans-
formation has been aptly described as a movement toward
'garrison-police' states, in which demands for power are accen-
tuated at the expense of every other value, with increasing
militarization, governmentalization, centralization, concentra-
tion, and regimentation, and in which all values other than
power are 'politicised', in such practices as 'the compulsion to
work' and the gradation and stabilization of income, the
'requisitioning of talent and skill', the 'administration of hate'
and 'withdrawal of affection', the 'requisitioning of loyalty',
1. Sohn, Cases and Other Materials on World Law (1950); Levi, Funda-
mentals of World Organization (1950); Bebr, Regional organizations:
Their Functions and Potentialities in the World Community (1951 J.S.D.
Thesis, Yale Law School Library).
2. Lasswell, The World Revolution of Our Time (1951).
140 M. S. McDOUGALINTERN. LAW, POWER AMD POLICY (8)
the ' dogmatization and ritualization' of rectitude, and so
on
1
.
2. The great challenge to students of international law today,
in this context of world social and power processes and growing
threat to freedom, is, therefore, to extend their aspirations
beyond traditional exercises in technical formulae for deter-!
mining what conduct is lawful and what unlawful to the much
more urgent task of determining and recommending t hat inter-
national law, of the many possible systems of international law,
which is best designed to promote a free world society. The
dilemma t hat confronts us in the world today offers alternatives
not so much between non-law, or naked force, and law, as
between different kinds of law, a law promoting human indig-
nity or a law promoting human dignity. In this dilemma, it is
the over-riding moral responsibility of legal scholars, as the
appropriate skilled specialists of society, to identify or invent
and to recommend the prescriptions, organizations, and deci-
sions t hat favor a law of human dignity.
To meet this challenge legal scholars will require a compre-
hensive guiding theory and intellectual techniques adequate to
perform certain specific functions. These functions the author
and a colleague have elsewhere characterized as the elements
of a "policy-oriented" approach to the study of law
2
. We
emphasize policy purposes because we do not believe t hat a
jurisprudence which purports to be "scientific" only is ade-
quat e to the crisis of our time. Though it is imperative t hat a
scholar should seek to minimize the degree to which his pre-
ferences distort the accuracy of his observation of events, a
creative jurisprudence requires not only the ways of thinking
1. McDougal and Bebr, Human Rights and the United Nations, Neumann,
Nipperdey, and Scheuner (Eds.)> Die Grundrechte (publication in 1953-
1954). The colleague drawn upon is Lasswell, see note 2, p. 7.
2. Lasswell and McDougal, Legal Education and Public Policy: Profes-
sional Training in the Public Interest, 52 Yale L.J. 203 (1943).
For application of this approach to the study of comparative law see
McDougal, The Comparative Study of' Law for Policy Purposes : Value
Clarification as an Instrument of Democratic World Order, 61 Yale L. J.
915 (1952).
(9)
INTRODUCTION 141
and procedures of observation commonly called scientific but
also other integrated and interrelated methods of thought and
observation. In briefest summary, the various functions in-
dispensable to a policy-oriented approach to the study of inter-
national law and to the choice of an international law appro-
priate to a free world society may be indicated as follows:
( 1 ) The clarification of goal values and the detailed relation
of the flow of particular decisions that constitute the world
power process to such goal values
1
.
(2) The description of trends in decision, in terms of effects
upon values, and the identification in the greatest degree
possible of the variables, predispositional and environmental,
that affect particular decisions.
(3) The critical projection of trends into the future, on the
basis of historical and scientific knowledge, in attempt to predict
what future decisions are likely to be.
(4) The appraisal of decisions in terms of their compatibility
with goal values and the invention and evaluation of new alter-
natives of policyprescriptions and institutionsdesigned for
the better securing of such goal values.
3. Each of these multiple functions of a creative jurisprudence
preferential, descriptive-scientific, predictive, and inventive
has been a principal focus or objective of varying conceptions
of law in the past and each function is today performed, by
legal scholars and others, consciously and unconsciously, with
varying degrees of effectiveness. The enduring significance of
many of the great classical writers upon international law is due
in measure to the effectiveness with which, by a judicious
commingling of positivistic and natural law approaches, they
1. The clarification we recommend is of course in terms of the goal values
of a free world society.
It is sometimes objected that emphasis upon a policy-oriented approach
places the same methods of thought and observation equally at the disposal
of totalitarian. Such methods of thought and observation are, however,
obviously already at the disposal of, and being employed by, totalitarians.
What we urge is that those who cherish freedom cannot safely leave the
use of such methods only to the enemies of freedom.
were able to perform all these functions for their time. It may
be questioned, however, whether our contemporary theory
about international law, taken in the large and without dispara-
gement of the many brilliant individual contributions, is ade-
quate to meet the challenge that confronts us \
1. Cf. The dissenting opinion of Judge Alvarez in the Advisory Opinion
upon Competence of the General Assembly for the Admission of a State to
the United Nations, 1950 I.C.J. Reports I, 12.
CHAPTER I
THE INADEQUACIES OF CONTEMPORARY THEORY
ABOUT INTERNATIONAL LAW
I
T is no new thought that contemporary theory about
international law exhibits certain deep confusions about
its appropriate subject-matter and the relationship of that
subject-matter to the social and power processes by which men
seek a free, peaceful, and abundant world society. For our
immediate purposes these confusions may perhaps be most
conveniently outlined in terms of over-emphasis on technical
rules, unrelated to policies, as factors in guiding and shaping
decisions, of over-emphasis on naked power as a factor in
decision, of failure to achieve comprehensive description of the
participants in the world power process, and of failure to achieve
comprehensive description of the techniques of policy formula-
tion and application employed by such participants. We may
consider each of these types of confusion in turn.
I . OVER-EMPHASIS ON TECHNICAL RULES, UNRELATED TO
POLICIES, AS FACTORS IN GUIDING AND SHAPING DECISIONS.
The most fundamental obscurity in contemporary theory
about international law secretes itself in over-emphasis, by
most writers and many decision-makers, upon the potentialities
of technical "legal" rules, unrelated to policies, as factors and
instruments in the guiding and shaping of decisions. This over-
emphasis begins in the very definition of the subject-matter of
international law as a system of rules. Despite many differences,
and even internecine fights, as to justificationsin terms of
natural law, consent of states, religion, metaphysics, and so
onfor particular systems of rules and for particular rules
within systems, most observers today agree upon this basic
type of definition
1
. Some representative modem formulations
are as follows:
Professor Hyde:
"The term international law may be fairly employed to designate
the principles and rules of conduct declaratory thereof which states feel
themselves bound to observe, and, therefore, do commonly observe in
their relations with each other."
a
.
Professor Brierly:
"The Law of Nations, or International Law, may be defined as the
body of rules and principles of action which are binding upon civilized
states in their relations with one another."
3
.
Judge Moore:
"By international law we mean the body of rules which regulate the
intercourse of nations in war and peace."
4
.
Professor Korovin:
"International public law is the sum-total of legal norms governing
rights and duties of the collectivities of the ruling classesparticipants
in international intercourse."
5
.
The principal difficulty in this initial emphasis in definition
and orientation upon rules is that it causes too many people
to make sharp and unreal distinctions between law and policy,
between formulations de lege lata and formulations de lege ferenda,
and to assume that technical rules alone can perform, at one
and the same time and in one undifferentiated stroke, several
of the functions t hat we have suggested above as indispensable
to a policy-oriented approach to legal problems. Too often it is
assumed that the technical rules which are said to constitute
international law can in one formulation describe what decision-
makers have done, predict what they will do, and prescribe what
they ought to do. This multiplicity of functions, and ambiguity
in reference, ascribed to legal rules is commonly concealed in
an innocent-appearing insistence that the prime and unique
1. Historical justifications are briefly surveyed in Humphrey, On the
Foundations of International Law, 39 Am. J.I.L. 231 (1945) and in Nuss-
baum, A Concise History of the Law of Nations (1947).
2. I Hyde, International Law (2d Rev. ed., 1945) 1.
3. Brierly, Law of Nations (4th ed. 1949) 1.
4. Moore, Fifty Years of International Law, 50 Harv.L.Rev. 395 (1939).
5. Translated and quoted in Ghakste, The Soviet Concepts of the State,
International Law, and Sovereignty, 43 Am. J.I.L. 21, 26 (1949).
(13) INADEQUACIES OF CONTEMPORARY THEORY 145
task of legal scholarship is simply to ascertain and state "what
the law is". In such a mode of discourse, the question "what the
law is" is made, explicitly or implicitly, to include the questions
"what the law was", "what the law will be" and "what the law
ought to be". By ascribing an autonomous prescriptive force,
independent of policy preferences and consequences, to tech-
nical formulations, "what the law ought to be" is, for still
further confusion, distinguished from "how the law ought to be
changed". For a typical example of this commingling of
functions, and attempted isolation of lex lata from lex ferenda,
we may draw upon Sir John Fischer-Williams, who writes:
" Our standpoint is thus to treat the study of law in the great inter-
national society as a factual study. On this view the question to be asked
is : ' What at the given time are the rules which the determining authority
of a society ... considers proper for enforcement?' This is a question
of fact. What is the existing law, the law sometimes called in Latin
lex lata? We do not ask what rules might properly be derived from general
principles and would if accepted be productive of peace, order, and
good governmentthe general aims of law(what, to use a Latin
expression again, is the lex f erenda?) but what in fact at any given time
are the rules which are actually recognized as law. " *.
The ambiguity inherent in this type of statement has been
characterized by the writer and a colleague as "normative-
ambiguity". Full quotation of this characterization may help
to clarify our point:
"Several frames of reference are often unwittingly invoked by those
who purport to state the "law"; and until these differences are explored,
confusion is compounded.
Consider, for a moment, the following statement uttered by a law
teacher who is expounding a case, a legal adviser who is arguing with
a client, or an advocate who is addressing the court: "This is the law
(followed by a statement of a ' doctrine' ). " This statement may be treated
as a summary of past statements made by sources who are treated as
qualified spokesmen (authorities). It may also be taken to refer to future
events, predicting what certain authorities will say (even though there
is doubt about what they have said in the past), or it may be construed
as a declaration of preference by the professor, adviser, advocatea
statement of what the speaker thinks the law should be even though the
authorities (before or after) dissent. If this last construction is put upon
the words, the speaker may affirm that he is misunderstood, since he
1. Williams, Aspects of Modern International Law (1939) 8, 9.
Comparable statements may be found in Kelsen, General Theory of Law
and State (1946) xiii, xiv, xv. See also Kunz, The 'Vienna School' and Inter-
national Law, 11 New York U.L.Q,. Rev. 370 (1934).
I. 1953. 10
did not use words that categorically convey preference; nevertheless,
the listener may believe that the speaker lays himself open because so
many talkers do in practice say "the law is so and so" when what they
meanin the sense of what they say if challengedis a preference for
the law to be so and so. Under some circumstances the statement goes
beyond a simple preference and becomes a volition to do whatever is
feasible to get the "should" accepted as an "is".
Hence, if we take the statement of the "law" at face value we may
find it ambiguous; and we can call it normative-ambiguous, because t he
word "law" is used, and "law" is a word that refers to norms, even though
it is unclear whether the norm in question pertains exclusively to t he
speaker, whether it is shared by the speaker with others, or whether,
though a norm of others it is not the norm of the speaker at all. Common
sense experience emphasizes the enormous role of such normative-ambi-
guous statements in the discourse that purports to expound "law" or
"ethics" or "Divine Will". "That is right (morally)" is a sentence open
to all the doubts raised about the "this is the law" sentence; and "this
is God's Will" is no whit less ambiguous. By evoking such word sequences,
a speaker may conceal his own preference or volition on contentious
matters and increase the attention paid to what he says by enunciating
norms whose sponsor appears to transcend the speaker."
1
.
The confusing, and often harsh and impolitic, impact, this,
normative-ambiguity in basic conception continues to exert
upon the application of particular technical rules to specific
cases can, unfortunately, be too easily demonstrated. Illustration
1. Lasswell and McDougal, Legal Education and Public Policy: Profes-
sional Training in the Public Interest, 52 Yale L. J. 203, 266 (1943).
Perhaps we may be permitted, in order to make certain that it is under-
stood, to put our major point again. What we suggest is this: whenever
the question is asked "what is the law", this question, if it is to be cast into
operational terms into terms of decision-makers actually applying rules
to concrete controversies between people must be expanded to include
series of questions, such as :
(1) What are the facts the events, the value changes between people
to which it is expected that decision-makers will respond?
(2) What have been the decisions on comparable facts in the past and
what factors appear to have influenced the decisions? What rules were
applied and what rejected ?
Knowledge of the degree to which practice has conformed to rules is
indispensable if experience is to be correctly evaluated.
(3) Who are the probable decision-makers and what variables are likely
to influence their decision?
Many factors other than rules generalized from past practice may affect
decision. Such rules may be so general that they admit of many specific
applications. One cannot simply assume from the "efficaciousness" of a.
system as a whole that any particular decision will in fact ensue.
(4) What ought the decision to be?
Rational choice may require a weighing of syntactical derivations from
prior decisions in terms of the consequences of alternative derivations for
the values of all people likely to be affected by decision.
abounds with respect to both customary rules and rules' created
by agreement
1
. We offer in some detail one example from each
of these traditional types of rules.
For demonstration with respect to customary rules we offer
in exhibit the case of Bernstein v. Van Heyghen Frres S.A.
2
.
The facts in this important case were as follows:
The plaintiff, Bernstein, a German national of Jewish faith,
had been imprisoned in 1937 by "Nazi officials" and, by threats
of bodily and other harm, had been compelled to transfer a ship
he owned to a Nazi designee. This designee then transferred the
ship to the defendant Belgian Corporation which took, it was
alleged, with knowledge of the coercion practiced upon Bern-
stein. During the war the ship was sunk and the proceeds of
insurance, substantially in excess of what the defendant paid
for the ship, were put upon deposit in a New York bank. Bern-
stein, having escaped to the United States, brought suit in
federal court for conversion and sought to attach the insurance
proceeds. The United States Circuit Court of Appeals affirmed
a district court in quashing the attachment and dismissing the
complaint. Speaking for the majority of the Court, Judge
Learned Hand, one of our greatest judges, referred to what he
regarded as appropriate prior decisions and extracted a rule
"that a court of the forum will not undertake to pass upon the
validity under the municipal law of another state of the acts
of officials of that state, purporting to act as such". Though he
noted a certain inconsistency between his decision and the
practices of our military government in occupied Germany,
Judge Hand could find no clear executive view in our govern-
1. For a complete and classic demonstration in one important area of
international law of the general point we make, see Dunn, The Protection
of Nationals (1932).
Professor Dunn builds explicitly, as we do, upon the work of the group
of writers in the United States who have come te be called "legal realists".
For brief, but influential statements of the point of view and methods of this
group, see Cook, Scientific Method and the Law 13 A.B.A.J. 303 (1927);
Oliphant, A Return to Stare Decisis, 14 A.B.A.J. 71, 159 (1928); and
Oliphant and Hewitt, Introduction to Rueff, From the Physical to the Social
Sciences (1929). A useful recent statement is Cohen, Field Theory and
Judicial Logic, 59 Yale L.J. 238 (1950).
2. 163 F. (2d) 246 (1947).
ment which would permit him to reach another decision.
Referring to the same prior decisions, Judge Clark dissented.
He thought that the earlier precedents did "not deal with, or
even appear to visualize, the situation where our executive acts
later to repudiate the recognition which has been granted and
to declare the acts of that nation as wrongful and void, to be
wiped out by a tremendous war effort and by acts of retribution
at the war's end". He added: "Many things have happened
since the days when Nazi Germany was the recognized govern-
ment of German territoryso many and so important that we
have no precedent to govern the case. In short, a new one must
be formulated."
The researches of scholars since the Bernstein decision have
made it clear that Judge Clark in his dissent was correct
1
.
The facts of the prior cases upon which the court drew were
quite different from the facts in the Bernstein case and nothing
in the policies previously thought to underlie the rule of "acts
of state"policies of reciprocal self-restraint designed to pro-
mote harmonious relations between nation-statesrequired the
extension of that rule to the new facts of the Bernstein case.
Under the shelter of compulsion by technical rulesby the
automatic translation of an irrelevant "law that was" into an
imperative "law that ought to be"the court in fact made a
policy choice, a choice that it may have concealed even from
itself and that, if explicitly examined, would have been difficult
to justify. One scholarly journal has offered pertinent criticism
of the decision :
" I n pursuing its primary task of attaining the just resolution of contro-
versies, a court may well be led astray by blind adherence to so sweeping
a rule as the act of state doctrine. A concept of this nature should be
applied only with a view toward implementing the development of
justice, giving the regard to the rational basis of the rule. No practical
restriction on such judicial freedom exists other than the necessity of
avoiding interference with the governmental departments responsible
for foreign policy and for preventing the impairment of amicable rela-
tions with other countries. Where such dangers are absentwhere the
government involved has been removed and repudiatedlitigants
should be assured full judicial inquiry into the legality of its measures." *.
1. The cases are collected in editorial comments and notes in 57 Yale
L.J. 108 (1947); 15 U.Chi.L.Rev. 415 (1948) ; 47 Col.L.Rev. 1061 (1947).
2. Note, 47 Col.L.Rev. 1061, 1067 (1947).
(17) INADEQUACIES OF COJfTEMPORART THEORY 149
For documentation of the perils of normative-ambiguity with
respect to rules created by agreement, we may refer to the
controversy about the application of Art. 27(3) of the United
Nations Charter to the Security Council resolutions in June,
1950 condemning the invasion of Korea and recommending
"that the members of the United Nations furnish such assistance
to the Republic of South Korea as may be necessary to repel
armed attack and to restore international peace and security in
the area"
l
.
The constitutionality, in terms of the requirements of the
United Nations Charter, of these Security Council resolutions
has been questioned by commentators who purport to invoke a
"literal" or "objective" interpretation of Article 27, paragraph 3,
of the Charter with respect to voting by the Security Council
a
.
This paragraph provides that decisions of the Security Council
on all matters other than procedural :
"shall be made by an affirmative vote of seven members including
the concurring votes of the permanent members."
By rendering the final seven words of this paragraph, not
exactly as written, but as if they read :
"the concurring votes o all Jive permanent members, who must be present
and voting,"
such commentators conclude that since the Soviet Union was
absent during the passage of the Korean resolutions and did
not cast a concurring vote, the Korean resolutions are invalid.
With necessary consistency, it is further urged that the validity
of all the substantive resolutions passed between January 13,
1950, when the Soviet delegate left the Council, and August 20,
1950 when that delegate returned cannot be explained and that
the unavoidable import of Article 27(3) is to permit any one
1. U.N.Doc. S/1511.
2. The paragraphs upon the Korean resolutions and principles of inter-
pretation which immediately follow are taken in both paraphrase and
direct quotation from McDougal and Gardner, The Veto and the Charter:
An Interpretation for Survival; 60 Yale L. J. 258 (1951).
I
of the five permanent members of the Security Council to render
that body impotent by the simple expedient of staying away
1
.
These conclusions are sought to be justified largely by reitera-
ted emphasis that the words of Article 27 are "unambiguous"
and "mandatory" and that there is "scarcely any room for
doubt" that the concurring votes of all five permanent members
are needed to pass a valid resolution". The numerous resolutions
adopted by the Council throughout its history without the
concurring votes of all five permanent members are discounted
on the ground that "mere practice" cannot alter the "strict
requirements" of the Charter's words. The practice of absten-
tion is distinguished from absence on the ground that absten-
tion, "although not in conformity with Article 27(3)", is "tacit
agreement", "a manifestation of consent in disguise", and
hence not in violation of "the principle of unanimity". Not even
the "rule of effectiveness" (the principle which gives preference
to that interpretation of a treaty which best promotes its major
purposes) can justify a broader interpretation. Paralysis in the
event of the absence of great power agreement was the "inten-
ded" result of the Yalta voting formula. "The Council was
infected," so we are told, "with the virus of paralysis at its
birth." It makes no difference that the absence of the Soviet
Union was voluntaryan attempt to intimidate the Council
after the failure to oust the reresentative of Nationalist China.
For the provision of Article 27(3) "embodies the principle of
unanimity of the permanent members of the Security Council"
and is "not concerned with the means or circumstances which
prevent the fulfilment of this requirement". The framers of the
Charter made the "error", this argument insists, of assuming
unanimity among the great powers, and, when that unanimity
is not forthcoming, the members of the United Nations should
accept the fact that their organization "can not function as an
1. The views we here summarize and quote somewhat impressionisti-
cally are taken from Professor Leo Gross' article Voting in the Security
Council : Abstention from Voting and Absence from Meetings, 60 Yale L. J.
209 (1951). Comparable views were, however, expressed by others in both
scholarly publications and public debate. See Schick, Videant Cnsules,
3 West.Pol.Q,. 311 (1950) and Note, 28 Can. Bar Rev. 902 (1950).
effective organ for the maintenance of international peace and
security" *.
The principal defect in this argument against the legality of
the Korean resolutions resides most obviously in the assumption
that the words of Article 27(3) have an "unambiguous" meaning
which makes their interpretation unnecessary. In its most
vulnerable form, this assumption appears to be the not uncom-
mon faith that words have an "absolute" meaning, independent
of their users and interpreters, and independent of objectives
and contexts. This may be called the fallacy of univocalism,
the fallacy that words speak for themselves, and with a single
voice. It is no longer revolutionary, however, to point out that
the effort to impose upon any language of a complicated multi-
lateral treaty like the United Nations Charteran "absolute",
"literal", "plain", or "natural" meaning puts an impossible
burden on words. The main point was long ago generalized by
Dean Wigmore:
"There can be, in the nature of things, no absoluteness of standard in
interpretation. ... The fallacy consists in assuming that there is or ever
can be some one real or absolute meaning. In truth, there can be only some
person's meaning. . . "
2
.
To this succinct statement, Dean Wigmore might well have
added: not only "some person's meaning", but some person's
meaning in relevant context. It is the principal lesson of contem-
porary semantics that all words, legal and otherwise, take their
complete meaning from such a context
8
. For understanding
any communication the relevant and indispensable questions
are: Who, says What, to Whom, for what Objectives, How,
under what Conditions, and with what Effects. Omission of
any element of this inquiry leaves an observer in that degree
1. The quotations in this paragraph are, as indicated above, excerpted
from Professor Gross' article.
Perhaps, however, we should make it explicit that the remarks we make
in the paragraphs that follow are not directed to any particular critic o'i
the constitutionality of the Korean resolutions but rather to proponents in
general of literal or strict interpretation.
2. 9 Wigmore, Evidence 191-2 (3d ed. 1940).
3. See Morris, Signs, Language and Behavior (1946); Sapir, Language,
9 Encyc.Soc.Sci. 169 (1933); Richards, The Philosophy of Rhetoric (1936);
Lasswell, Power and Personality (1948) 217 et seq.
with inadequate or false orientation. It should need no further
emphasis to-day that the words of an international agreement
cannot be taken as timeless absolutes; apart from their uses in
context, such words, like other words, are but "shapes on paper"
or "agitations in the air "
x
. This common sense insight, long
accepted with respect to national constitutions and authoritative
doctrine, has been made fully explicit as applied to international
agreements by many authoritative commentators
2
. An observer
who seeks to cloak his interpretation in some fanciful deperson-
alized, disembodied "literal" meaning which transcends context
merely conceals from himself, and perhaps from others, his own
active role, and the context he substitutes, in the choices he
makes.
A second form of the assumption of "unambiguous meaning",
scarcely less vulnerable, is the belief that it is possible for contem-
porary interpreters to derive in exact detail the "true" or "real"
intention of agreement makers of an earlier day. This may be
called the fallacy of "detailism", the fallacy that parties can
project a minutely detailed intent into the future and that
subsequent interpreters can, and should, make such detailed
intent prevail over more general objectives. When, however,
an agreement of any importance is effected among two or more
nation-states the relevant events include, at the minimum: a
great variety of actors (negotiators, drafters, approvers, rati-
fiers), expressing agreement through verbal forms of all degrees
of generality or precision, by all the methods known to inter-
national law, for implementation of a great variety of both short-
run and long-term objectives, under the peculiar conditions and
perspectives of their day, and with certain designed and unde-
signed effects upon the expectations of all the parties and the
distribution of values among them. When at some later date
decision-makers are confronted with the necessity of interpreting
this agreement, the events relevant for understanding again
include at a minimum: certain interpreters (located in value
1. The quoted words are borrowed from I. A. Richards.
2. Harvard Research in International Law, Law of Treaties (1935) 947
and authorities cited. With respect to national constitutions, see Llewellyn,
The Constitution as an Institution, 34 Col.L.Rev. 1 (1934).
and institutional position), applying traditional criteria of inter-
pretation, to the words and acts of the earlier day and to the
subsequent practice of the parties under the agreement, for
certain contemporary objectives, under the conditions and
perspectives of their day, and with certain obvious effects upon
the distribution of values among the parties. From this compre-
hensive perspective of the relevant events, it is wholly fantastic
to assume either, first, that the framers of the original agree-
ment can project their vision and anticipate all the more specific
details of the evolving future or agree upon a common purpose
with respect to all these details or draft so precisely as to remove
all ambiguity with respect to such common purpose, or, secondly,
that the later interpreters of the agreement working in a new
total context, with their own contemporary objectives and
conscious of many changes in conditions since the making of the
agreement, can resurrect in detail the subjectivities of the original
framers of the agreement and ascertain what was their clear
intent concerning the new events confronting the interpreter.
The Harvard Research has appropriately insisted that the process
of interpretation, "rightly conceived", is not a mere "mechani-
cal" matter of "searching for and discovering some preexisting
specific intention of the parties" with respect to situations which
they did not foresee or at least did not provide for, but rather a
task of "giving a meaning to a text"
1
. It is for this reason that
each generation must, whatever its faith in words and rules, in
considerable measure interpret its legacy of agreements, as well
as of other authoritative doctrine, in terms of contemporary
conditions and objectives.
The rational alternative to the assumption of "unambiguous
meaning" is, of course, interpretation in terms of the major
purposes of parties to agreements. This may be called the prin-
ciple of interpretation by basic goals, emphasizing the parties'
major demands and expectations, as contrasted with the "detai-
lism", referred to above, which seeks to emphasize lesser demands
and more minute expectations. Though it is beyond the com-
petence of framers of agreements to anticipate in utmost detail
1. Harvard Research in International Law, Law of Treaties (1935) 946.
the unfolding events of the future or to specify with exact
precision the minute modalities of their projected cooperation
with respect to events and conditions constantly changing, it is
possible for them to project both a primary pattern of expectations
with respect to their major, general objectives, and, with varying
degrees of precision, even a secondary pattern of the institu-
tional means by which their objectives are to be effected. When
the march of events inevitably lays bare ambiguities and alter-
natives of interpretation with respect to the secondary institu-
tional means so prescribed, even the most modest deference to
rationality must require that interpretation of such means which
best promotes the major purposes for which they were esta-
blished. Hence, the principle of interpretation which is most
widely accepted to-day (and which, incidentally, is also of the
most ancient lineage) * is that international agreements must
be interpreted primarily in terms of the major, general purposes
they are intended to serve. The Harvard Research summarizes
concisely :
"A treaty is to be interpreted in the light of the general purpose which
it is intended to serve. The historical background of the treaty, travaux
prparatoires, the circumstances of the parties at the time the treaty was
entered into, the change in these circumstances sought to be effected,
the subsequent conduct of the parties in applying the provisions of the
treaty, and the conditions prevailing at the time interpretation is being
made, are to be considered in connection with the general purpose which
the treaty is intended to serve."
2
.
So great is contemporary concern for the continuing validity of
major, general purposes, the principle of "effectiveness" (res
magis valeat quam pereat) has on occasion been presented as "a
major principle, in the light of which the intention of the
parties must always be interpreted, even to the extent of dis-
regarding the letter of the instrument and of reading into it
something which, on the face of it, it does not contain"
3
.
1. Scire leges non hoc est verba earum tenere, sed vim ac potestatem.
Celsus, Digest I, 3,17.
2. Harvard Research in International Law, Law of Treaties (1935) 937.
See also Pollux, Interpretation of the Charter, 23 B.Y.I.L. 54 (1946).
3. Lauterpacht, The Development of International Law 69-70 (1930).
For definitive survey, see Lauterpacht, Restrictive Interpretation and the
Principle of Effectiveness in the Interpretation of Treaties, 26 B.Y.I.L. 48
(1949).
Considering the major purposes of the United Nations, given
the ambiguities of Article 27(3) and other relevant provisions
of the Charter, reviewing the confused "legislative" history of
Article 27(3), and observing the prior practice of the Security
Council with respect to abstention and absencean inter-
preter may, we suggest, reasonably conclude that the Security
Council, itself an authorized interpreter, did not abuse its
powers in adopting the disputed Korean resolutions and that
these resolutions were constitutional, within the prescriptions
of the Charter, despite the absence of the Soviet Union. The
detailed arguments to support this conclusiona conclusion
which at the time of the Korean invasion seemed indispensable
to the survival even of the United Nationsare elsewhere
marshalled
1
. It is not, however, this conclusion that we wish
here to emphasize or even to make persuasive. The point upon
which we hope to persuade is that the language of Article 27(3)
can dictate no particular interpretation and that any decision
about the constitutionality of the Korean resolutions, whether
for or against, must depend upon policy choicesand policy
choices that may be made with varying degrees of consciousness
and, hence, also with varying degrees of rational consideration
of relevant factors.
It is, fortunately, becoming increasingly recognized that "law"
and "policy" are not distinct and that every application of
general rules, customary or conventional or however derived,
to specific cases in fact requires the making of policy choices
2
.
From the perspective of a scientific observer, it is obvious that
the behavior of decision-makers in the world power process is
influenced by many variables, environmental and predisposi-
tional, other than legal rules, and that technical legal rules,
divorced from the content of the policy perspectives of decision-
makers and the groups with which they identify, are not compe-
tent to coerce or predict decisions or to prescribe what decisions
1. McDougal and Gardner, see note 2, p. 17.
2. This recognition is not parochial. Hazard in Law and Social Change
in the U.S.S.R. (1953) 275 writes: "International law has always been
defined by Soviet authors in similar terms to municipal law, namely as an
instrument of policy".
156 M. S. McDOUGALINTERX. LAW, POWER AND POLICT (24)
ought to be or even adequately to describe what decisions have
been. This impotence of technical legal rules has seldom been
better stated t han by Professor Kelsen:
"The 'jurists' believe and would like to persuade others that they
possess an objective or even a scientific method which permits them to
designate the single 'just' meaning from among those which the interpre-
tation reveals. In reality no such method exists. The choice between
several meanings can only be dictated by a judgment of subjective,
political value. From a purely juridical point of view all possible meanings
have the same value. This so-called juridical method of interpretation
is but the product of an ideology which the need of legal security of the
public as well as the professional interest of the jurists preserves. But
this ideology of the jurist, even if it serves the stubbornly held illusion
of legal security is easily seen through by the politician who soon perceives
that in most cases the jurist with his 'juridical' interpretation can easily
prove the contrary to what he advances."
1
.
It is, therefore, not merely formulations de lege f erendathe point
may be emphasizedbut even applications allegedly lex lata
t hat require policy choices. In the process of decision-making
in the world arena, the technical rules t hat constitute the lex
lata are continually being defined and redefined in the applica-
tion of policy to ever-changing facts in ever-changing contexts.
For understanding why this must be so, however much he may
continue to wish for the illusory certainty and false security of
normative-ambiguity, the student of international law has only
to recall the imprecision of such important and recurring
concepts as state, independence, intervention, jurisdiction,
equality, recognition, representation, prescription, occupation,
political offenses, denial of justice, reprisals, aggression, neu-
trality, expropriation and confiscation, or to remember how
many fundamental concepts and rulessuch as "domestic
jurisdiction" and "international concern", "aggressive war"
and "self-defence", pacta sunt servanda and rebus sic stantibus,
"change of st at e" and "change of government", and so on
travel in pairs of opposites.
It should perhaps be added t hat we recognize that we draw
from Professor Kelsen's observation a conclusion different from
t hat drawn by Professor Kelsen himself. Professor Kelsen consi-
1. Kelsen, Legal Technique in International Law: A Textual Critique of
the League Covenant, Geneva Studies, Vol. X, No. 6 (1939) 14. See also
Kelsen, The Law of the United Nations (1950) xiv.
ders it a "veritable usurpation of competence" for "jurists" to
attempt "to determine the social ends to be attained" because
"no matter how profound may be one's understanding of what
the law is, this cannot cast light on what, because it is 'just',
socially good, must be the content of law". "This question," he
insists, "is not juridical but specifically political. It is the domain
par excellence of the politician"
1
. Where, with deference, we
differ from Professor Kelsen is in this insistence that the task
of the jurist, the peculiarly legal function, must stop when the
jurist outlines for decision-makers the various alternatives that
the legal forms afford. Our suggestion is that, if an international
law of human dignity is to be achieved, the jurist, as a responsible
interpreter of the policy commitments embodied in legal pre-
scriptions and procedures and as a skilled specialist with pecu-
liarly intimate opportunity to observe such prescriptions and
procedures in action, must extend his role beyond mere inquiry
into and advice about legal syntactics
2
, or the logical interrela-
tions among legal propositions, to the further tasks of inquiry
into and advice about the possible effects upon overall commu-
nity values of the various alternatives that the legal forms afford.
I I . OVER-EMPHASIS ON NAKED POWER AS A FACTOR IN DECISION
At the opposite extreme from over-emphasis on technical
rules, is an attitude increasingly common today which under-
estimates the role of rules, and of legal processes in general, and
over-emphasizes the importance of naked power. This attitude
is sometimes referred to as the "pure theory of power" as
1. See note 1, p. 24.
2. This is not to suggest that legal syntactics are not important. It is to
suggest only that legal syntactical systems, like other syntactical systems,
become completely meaningful only when related to a semantic dimension.
The point was once made by Walter Wheeler Cook as follows :
"Suppose we say:
All gostaks are doshes,
All doshes are galloons:
again we do not know what we are talking about, but if we assume that these
mysterious terms stand for classes of things, we can by the strictest of logic
draw the inference that
All gostaks are galloons."
Scientific Method and the law, 13 A. B. A. J. 303, 305 (1927).
contrasted with the "pure theory of law"
1
. In many of the
manifestations of this attitude it seems to be assumed, though
the assumption is not always made explicit, that the detailed
application of legal rules is always a function of the immediate
power interests, of a mere calculation of momentary expediencies
without regard to long-term community interests of the decision-
maker and that legal ruleshowever clearly related to com-
munity policies, however sustained by balancing of power, and
however sanctionedare in some unchangeable nature of
things irretrievably powerless to restrain the lawless behavior
of absolutely and permanently sovereign nation-states.
For notable recent illustration of this attitude we may cite
the writings of Ambassador George F. Kennan and Professor
Hans J. Morgenthau, who attack what is characterized as a
"legalistic-moralistic" approach to foreign policy and demand
a freer use of "old-fashioned" diplomatic procedures. Ambas-
sador Kennan puts the point most directly. After reviewing the
failings of the United States in foreign policy for fifty years, he
summarizes :
"As you have no doubt surmised, I see the most serious fault of our
past policy formulation to lie in something that I might call the legalistic-
moralistic approach to international problems. This approach runs
like a red skein through our foreign policy of the last fifty years. It has
in it something of the old emphasis on arbitration treaties, something of
the Hague Conferences and schemes for universal disarmament, someth-
ing of the more ambitious American concepts of the role of international
law, something of the League of Nations and the United Nations,
something of the Kellogg Pact, something of the idea of a universal
"Article 51" pact, something of the belief in World Law and World
Government. But it is none of these, entirely. Let me try to describe it.
It is the belief that it should be possible to suppress the chaotic and
dangerous aspirations of governments in the international field by the
acceptance of some system of legal rules and restraints. This belief
undoubtedly represents in part an attempt to transpose the Anglo-Saxon
concept of individual law into the international field and to make it
applicable to governments as it is applicable here at home to individuals...
It is the essence of this belief that, instead of taking the awkward
conflicts of national interest and dealing with them on their merits with
a view to finding the solutions least unsettling to the stability of inter-
national life, it would be better to find some formal criteria of a juridical
nature by which the permissible behavior of states could be defined."
2
.
1. Kunz, Review, 39 Mich.L.Rev. 1337, 1339 (1944).
2. Kennan, American Diplomacy 1900-1950 (1951) 95, 96.
The greatest deficiency in "the legalistic approach to inter-
national affairs," he finds, "is the inevitable association of
legalistic ideas with moralistic ones: the carrying over into the
affairs of states of the concepts of right and wrong, the assump-
tion that state behavior is a fit subject for moral judgment"
1
.
The expressions of Professor Morgenthau are scarcely less
emphatic. In his most comprehensive study he offers such state-
ments as:
"Law in general and, especially, international law is primarily a
static social force. It defines a certain distribution of power and offers
standards and processes to ascertain and maintain it in concrete situa-
tions."
a
.
"International law is a primitive type of law resembling the kind of
law which prevails in certain preliterate societies, such as the Australian
aborigines and the Yurok of Northern California."
3
.
In later publication he classifies "legalism" along with utopia-
nism, sentimentalism, and isolationism as major errors of Ameri-
can post-war foreign policy. The "legalistic approach" is said to
follow "logically from the assumption that international politics
is not a continuous struggle for power in which all great nations
are of necessity involved"; the United Nations is described as
having become a forum for "legalistic exercises" that have "done
nothing at all to bring closer to solution the great political issues
outstanding between the contenders on the international scene";
and it is urged that from "that iron law of international politics,
that legal obligations must yield to the national interest, no
nation has ever been completely immune"
4
.
It does not perhaps do complete justice to Dr. Schwarzen-
berger to make reference to him in this context, since he is
optimistic about the potentialities of certain forms of interna-
tional law and organization. Some of Dr. Schwarzenberger's
judgments of other forms, however, seem to us to involve grievous
underestimation of their role. One may find in the latest edition
of his Power Politics such statements as the following :
1. Kennan, American Diplomacy 1900-1950 (1951) 100.
2. Morgenthau, Politics among the Nations (1948) 64.
3. Id. 211.
4. Morgenthau, In Defense of the National Interest (1951) 101, 102, 144.
160 M. S. McDOUG-ALINTERN. LAW, POWER AND POLICY (28)
"I n a society in which power is the overriding consideration it is the
primary function of law to assist in maintaining the supremacy of force
and the hierarchies established on the basis of power and to lend to
such a system the respectability and sanctity of law. In a variety of ways,
international law serves these purposes."
1
.
"To the extent to which international law is a law of power, it fulfils
the functions of an extreme society law. It gives the authority and sanctity
of law to power and brute force; without seriously restraining the mighty,
it serves them as a handy ideology with which to disguise some of the
brutalities which are inherent in any system of power politics."
a
.
"Both in the eras of the League of Nations and of the United Nations,
the gap between the ideals of these collective systems and reality was
bridged by processes of de facto revision of the covenant and the charter,
t hat is to say, by the adaptation and subordination of these commitments
to the requirements of world power politics. In both cases, the result
was the same. What emerged was a system of power politics in disguise."
3
.
It is submitted that all the contemporary manifestations of the
"pure power" theory, of which the citations above give but the
barest indications
4
, both profoundly misconceive law and power
and greatly underestimate both the role that Jaw presently plays
in the world power process and the role that, with a more
effective balancing of power, it could be made to play in pro-
moting and preserving the values of a free, peaceful, and abun-
dant world society. Much of our exposition below will be rele-
vant to the substantiation of this criticism
6
.
III. FAILURE TO ACHIEVE COMPREHENSIVE DESCRIPTION OF THE
PARTICIPANTS IN THE WORLD POWER PROCESS
It is common knowledge that in recent years the participants
in the world power process have undergone and are continuing
1. Schwarzenberger, Power Politics (2d rev. ed. 1951) 203. For higher
appraisals of "the international law of reciprocity" and "the international
law of coordination", see pages 207, 211.
2. Id. 206.
3. Id. 713.
4. Even Professor Corbett in his Law and Society in the Relations of
States (1951) comes perilously close to this theory. Thus, he writes:
"After many attempts to justify an original preference for the classi-
fication of international usages as law, I have come to the conclusion
that the effort involves wasteful self-deception and misdirection of energy,
and leads to false expectations on the part of the public."
(p. 11). See also pp. 75, 76, 77, 85.
5. See also McDougal, Law and Power, 46 Am. J. I. L. 102 (1952) and
Dr. Schwarzenberger's Power Politics, 47 Am. J.I.L. 115 (1953); Oliver,
Reflections on Two Recent Developments Affecting the Function of Law in
the International Community, 30 Texas L.Rev. 815 (1952).
to undergo tremendous transformations. The traditional, terri-
torially organized bodies politic, known as "nation-states", are,
on the one hand, being dwarfed by the emergence of huge new
bi-polarized and other regional groupings and, on the other
hand, being challenged by the rise of a host of new and powerful
functional organizationsincluding international governmental
organizations, transnational political parties, transnational pres-
sure groups, and transnational private associations. Contem-
porary theory about international law, obsessed by a technical
conception of the "subjects of international law", continues,
however, greatly to over-estimate the role of the "nation-state"
and to underestimate the role of all these other new participants.
Evidence to support this indictment can be found in almost any
standard treatise. Not only is the proper subject-matter of inter-
national law defined, as we have seen, as rules "governing the
relations of nation-states" and the great bulk of attention in dis-
cussion confined to nation-states, but frequently explicit assertion
is made that only nation-states can be regarded as appropriate
subjects of international law. Since the decision of the Inter-
national Court of Justice in the case on Reparation for Injuries
Suffered in the Service of the United Nations
l
it has ceased to be
breach of etiquette to refer to international governmental orga-
nizations as at least partial subjects, but it is still common to
question or castigate writers who are so bold as to suggest that
the individual human being is himself a subject of international
law
2
. Most of the other group participants are largely ignored.
From the perspective of scientific description, the individual
human being is the ultimate actor in all arenas and on the world
scene acts not only as a total personality, including all his group
identifications, demands, and expectations, but also as a spe-
cialized member of each of the important groups that we have
listed abovenation-states (including greater and lesser terri-
torially organized bodies politic), international governmental
1. 1949 I.C.J. Reports 174.
2. See, for example, Briggs, The Law of Nations (2d ed. 1952) 93 et sec,
with references. Contrast Jessup, A Modern Law of Nations (1947); Politis,
The New Aspects of International Law (1928).
I. 1953. 11
organizations, transnational political parties, transnational pres-
sure groups, and transnational private associations. The world
power process affords arenas for the individual both as an indivi-
dual and in each specialized group capacity; individuals are pro-
tected in control of bases of power both as individuals and in
each group capacity; and policies are continually being formu-
lated and applied by varying specialized techniques on behalf
of individuals both as individuals and in their various group
capacities. The governmental forms of territorial organization,
so exalted in importance by traditional theory, are frequently
but channels for the expression of decisions in fact made in some
one or more of the many functional groupings we have indicated.
International law can, in its prescriptive formulations, continue
to blind itself to these facts only at the cost of becoming increas-
ingly inconsequential
1
.

IV. FAILURE TO ACHIEVE COMPREHENSIVE DESCRIPTION OF THE
TECHNIQUES OF POLICY FORMULATION AND APPLICATION IN THE
WORLD POWER PROCESS
The most casual observation of the flow of decisions in the
world arena today reveals that policies are being formulated,
recommended, prescribed, and reformulated and represcribed
in multiplied thousands of agreements, conferences, resolutions,
declarations, codifications, and customary practices of foreign
office and other officials as well as by judicial and arbitral deci-
sion and that policies are being applied, appraised and termin-
ated, in countless informal interactions in international and
national arenas of all kinds
2
. In much of the technical literature
on international law, however, one still finds an over-concentra-
tion on "the court" as the principal instrument of law in world
affairs and a supporting assumption that the principal function
of a court, with its "given" rules, is the maintenance of opposi-
tion to change. For reasonably explicit illustration we may again
1. Cogent criticism of traditional views appears in Lauterpacht, Inter-
national Law and Human Rights (1950) Ch. 1-4.
2. Schachter, The Place of Law in the United Nations, Annual Review
of United Nations Affairs (1950) 205.
call upon Professor Morgenthau. He both includes international
law among "ideologies of the status quo"
1
and writes:
"The legalistic approach, by its very nature, is concerned with isolated
cases. The facts of life to be dealt with by the legal decision are artifi-
cially separated from the facts that precede, accompany, and follow
them and are thus transformed into a 'case' of which the law disposes
'on its merits'. Once a legal case has been decided or otherwise disposed
of, the problem is solved, until a new legal case arises to be taken care
of in similar fashion".
a
.
The image here seems clearly to be the common image of the
court.
It is not to deny the importance of the judicial function to
insist that other functions are equally important and require
equally explicit attention if an international law promoting
human dignity is to be furthered
3
. The task of "law" includes
not only the applying of a "given" body of prescriptions in specific
instances but also the creation of new prescriptions. The task of
creating new prescriptions is presently being performed in a
great variety of ways and perhaps new ways must be invented if
the major objectives we specify are to be attained. A creative
theory of international law must take all these ways into account
and assist in the task of invention.
The inadequacies of contemporary theory about international
law add up, accordingly, to failure effectively to perform the
various functions indicated above as indispensable to a policy-
oriented approach to the study of international law.
The question now is what framework of inquiry might permit
the more effective performance of these functions and, in parti-
cular, assist the legal scholar in his distinctive task of clarifying
the policies implicit in past and proposed systems of international
law. It is reasonably obvious t hat such a framework must offer a
comprehensive way of talking about the world social and power
processes in which decisions occur, rational criteria for identify-
1. Morgenthau, Politics Among the Nations (1948) 63.
2. Morgenthau, In Defense of the National Interest (1951) 101.
3. The classic study of the potentialities of international judicial institu-
tions is of course Lauterpacht, The Function of Law in the International
Community (1933). Similar studies are, however, needed of the potentialities
of other institutions for the performance of various necessary policy functions.
ing the decisions regarded as law, and an organization of studies
for examining the flow of specific decisions which will facilitate
both the testing of specific decisions for compatibility with the
goal values of a free society and scientific study of the variables
which in fact affect decision. Many different systems of inquiry
might of course be devised for achieving these purposes. The
framework we propose seeks both a way of outlining the total
context of world social and power processes and a way of keeping
specific decisions constantly at the focus of attention, however
various the participants, the arenas of interaction, the base
values invoked, the instruments of policy applied, or outcomes
achieved in any particular context. It must be recognized, how-
ever, that no intellectual tools can be devised which will cut the
"big, blooming, buzzing confusion" which is the world about us
with final and dogmatic precision. What we are attempting to
do is, almost literally, slowly to turn a globe or sphere (the
context of the world social and power processes) for the purpose
of spotlighting, investigating, and relating to total context now
one set of decisions, with all their goals and conditioning varia-
bles, and then another set. The performance of this task must
inevitably be marked by over-laps, gaps, and imprcisions.
CHAPTER II
A PROPOSED FRAMEWORK OF INQUIRY: INTER-
NATIONAL LAW LOCATED IN THE CONTEXTS OF
WORLD SOCIAL AND POWER PROCESSES
I
N our effort to achieve comprehensive orientation we begin
in this chapter by seeking to outline workable formulations of
the world social process, of the world power process, of the
major characteristics of a policy-oriented international law, and
of the postulated goal values of an international law of human
dignity.
I . THE CONTEXT OF THE WORLD SOCIAL (COMMUNITY) PROCESS
The degree to which the peoples of the world, with all their
political and social organizations, today constitute a world
community or a world society is a matter much disputed. Some
observers point to vast divergences in detailed institutional prac-
tices about the globe, to the basic conflicts between the free and
totalitarian philosophies of life and government, and to the
defective political organization of the world arena and, hence,
deny the existence on a global scale of any community or society
among peoples. Other observers point to peoples' rising demands
for common values, to their increasing interdependences (in
securing values) made inescapable by contemporary technology,
to their increasing consciousness of these interdependences, and
to the ever widening identifications that attend this consciousness
and, hence, emphasize, as we have done above, what is des-
cribed as an accelerating movement toward a world community
or world society. The position that any particular observer takes
in this controversy appears to depend in considerable measure
upon how he defines "community" or "society" and upon the
purposes of his immediate discourse.
It is seldom contested, however, that the peoples of the world
today interact with and upon each other in a social process, what-
ever the degree of community or society, that is global in its
ramifications. Events occurring, choices that are made or deci-
sions that are taken, in any one area of the world may have
effects upon persons and their values in a few, several, many,
most or all other areas of the world. Because of ever accelerating
technological developments and increasing rates in population
growth, it can confidently be assumed that, short of some over-
whelming catastrophe resulting in the near obliteration of the
human race, this process of global interaction or interdetermina-
tion will in the future become more rather than less intensive
x
.
It is with these events in the world social process, events that
have effects in more than one national community, that the
prescriptions and decisions of international law are and must be
concerned. The sequence of events that gives rise to and includes
an invocation and application of international law, even as con-
ventionally conceived, may perhaps be relevantly generalized
somewhat as follows: certain persons act to deprive other per-
sons of values in ways that have effects across national bound-
aries; the persons who have been deprived, or others who are
authorized, invoke the prescriptions of international law and
appeal to a decision-maker, who may be located at any one of
many different levels of national and international govern-
mental authority, to redress the injury to their values; the deci-
sion-maker, responding to a variety of environmental and pre-
dispositional variables and interpreting and applying the pres-
criptions of international law, acts, with varying degrees of
effective coercion at his disposal, to condemn or condone the
injury and with varying effects upon the values of the parties
disputant and others. It should need no argument that an inves-
tigator who would study international prescriptions and proce-
dures in action, and who would assist in perfecting prescriptions
and procedures appropriate to a free world society, must work
with a framework of theory adequate to comprehend this total
process and to describe in any necessary detail all component
parts of it.
1. Lasswell, The World Revolution of our Time (1951) 29.
(35) FRAMEWORK OF INQUIRY 167
The comprehensive framework of theory that we propose for
describing the world social process is indicated in skeletonized
form in Chart I, which is set out below
1
.
The most general formulation upon which this Chart is based
is: people strive to maximize values by applying institutions to
resources.
2
.
With respect to people, we would emphasize that the most
relevant description must include not merely their numbers,
spatial distribution, physical characteristics, value and institu-
tional positions and so on, but also their perspectives (subjectivi-
ties, predispositions)their demands for values, their identifi-
cations with others, and their factual expectations (beliefs) about
past and future.
Dple
.vith
perspectives
identifications
demands
expectations
th doctrine
using
formula (legal rules)
miranda
organizational
hnique
non
wer
pect
ightenment
alth
11-being
ititude
11
ection
Chart I
Community Proces
base values
routines
government
party
pressure groups
private associations
-organizational
among
people
with
power
respect
enlightenment through institutions
wealth
well-being
rectitude
skill
affection
on resources
perspectives
identifications
demands
expectations
unprocessed
land to shape and distribut
processed scope values
land
facilities
human energy
2. More detailed expositions of the general mode of analysis we recommend
may be found in Lasswell and Kaplan, Power and Society (1950); Lasswell,
Power and Personality (1948) and The World Revolution of our Time (1951) ;
Lerner and Lasswell (eds.) The Policy Sciences (1951); Lasswell, Leites and
Associates, Language of Politics (1949).
By the term values, we refer to major categories of desired
events. For purposes of the present comprehensive analysis we
recommend as convenient the following eight categories : power,
respect, enlightenment, wealth, well-being, skill, affection, and
rectitude. In brief, preliminary definition, power may be taken
to refer to participation in the making of important decisions
(decisions involving severe deprivations) ; respect, to access to other
values on the basis of merit, without discrimination on grounds
irrelevant to capacity; enlightenment, to access to the knowledge
on which rational choice depends ; wealth, to control over econo-
mic goods and services; well-being, to the enjoyment of physical
and psychic health; skill, to proficiency in the exercise of latent
talent; affection, to the enjoyment of congenial human relations;
and rectitude, to the sharing of common standards of respon-
sibility.
The term institutions is used to refer to the pattern of practices
by which values are shaped and shared. Such patterns include,
as may be seen from the Chart, both myth and technique, or
both rules and operations.
Resources include the physical objects and materials and human
energy that are employed in the shaping and sharing of values
and their significance obviously varies greatly from value t o
value and context to context.
The postulate t hat people strive to maximize their values is
introduced as a dynamic principle to account for individual and
group choices. It is a postulate that has proved most fruitful in
many branches of psychological and social science investigation.
Keeping in mind this brief explanation of terms and major
postulate, we may now read Chart I as formulating a description
of community or social process in terms of people, with varying
perspectives, in varying situations, employing base values, by
practices (myth and technique), to effect a redistribution among
people of certain demanded or "scope" values. In any particular
study of specific value processes, the people and their perspec-
tives, the situations in which they demand values, the base values
they employ, the practices by which they shape and share values,
and the effects they obtain upon the distribution of values may
be described in as much detail as the materials permit or as the
particular problem of the investigator requires.
It may be emphasized that any particular value may be either
employed as a means or sought as an end, may be either a base
value or a scope value. The total world social process may,
indeed, be usefully conceived as a series of interrelated value
processes: a power process, a respect process, an enlightenment
process, a wealth process, a well-being process, a skill process,
an affection process, and a rectitude process. Any given interac-
tion may be identified by examining in detail the demands and
expectations of the people in the situation.
It is because of the interrelation of value processes, the point
may bear further emphasis, that rational inquiry by jurists can-
not be confined exclusively to power processes. Though we will
presently recommend a conception of law in terms of a form of
power (including both myth and technique, rules and opera-
tions), any realistic study of power processes requires the relation
of such processes to the other value processes. The events which
give rise to controversies and result in the invocation of power
decisions occur, as already indicated, in every value process;
power decisions may be in fact affected by considerations of any
or all the other values; and, finally, such decisions may in turn
affect any one or all of the values. In more abstract statement,
the world process affects each of the other value processes and
the other value processes in turn affect the world power process
and each other. The jurist who would concern himself with
causes and effects, conditions and consequences, must be pre-
pared to extend his inquiries to the totality of value processes.
A more complete presentation of the relevance of the world
social process context might here offer some further development
of the theme, several times emphasized above, that all peoples
everywhere are today interdependent with respect to all major
values. It does not seem to be denied, even by observers who
question the existence of a world "community" or "society", that
in recent decades tremendous changeschanges in technology,
changes in population growth and movement, changes in per-
spectives, and changes in techniques of organization and institu-
tional practicehave combined to move the peoples of the world
from a state of relative independence to one of ever increasing
interdependence. This interdependence can be documented both
territorially, with respect to each value around the globe, or
functionally, as between all values. Thus, if security is conceived
as the opportunity to pursue all major values by peaceful, non-
coercive measures, free from violence and threats of violence, it
may be observed, territorially, that in the age of the hydrogen
bomb and bacteriological warfare no people anywhere can be
secure unless all people everywhere are secure, and functionally,
that the degree of security in the world depends upon such
variables as a distribution of wealth that promotes rising stan-
dards of living, the prevalence of respect for human dignity,
realism in enhghtenment, democracy in the sharing of power in
the component communities of the world, the maintenance of
appropriate skills, the rearing of people with less destructive
characters, the sharing of common standards of rectitude, and
the extension of world loyalties. Similarly, with respect to wealth,
it may be noted, territorially, that the greater the resources that
can be drawn upon, the larger the market, and the greater the
division and specialization of labor, the greater the potential
production and consumption of goods and services, and function-
ally, that the degree to which goods and services are produced
depends upon such variables as expectations with respect to
security or violence, degrees of enlightenment and skill, demo-
cracy in the sharing of power, the respect accorded productive
enterprise, congenial human relations, and so on. So also with
regard to enlightenment, it may be shown, territorially, that the
larger the fora for the exchange of information and the fewer the
iron curtains, the greater the diffusion of realistic knowledge, and
functionally, that the degree to which enlightenment can be
freely and effectively pursued depends upon such variables as
security measures, available wealth, absence of caste or class
barriers, the degree of skills and so on. For final example, with
regard to respect, it may be demonstrated, territorially, that
models of respect or disrespect for human dignity are contagious
like germs and, when appearing anywhere, tend to be copied
or emulated elsewhere, and functionally, that degrees of respect
depend upon such variables as expectations about security,
democracy in the sharing of power, realism of enlightenment,
health in character formation, and so on. Similar analyses could
be offered and documented for each other value and a systematic
and detailed survey would reveal, we suggest, that in our day
the dependence of man upon man has become inescapably
worldwide '.
II. THE CONTEXT OF THE WORLD POWER PROCESS
Though realistic inquiry into the events with which inter-
national law is concerned, and into the causes and effects of
decisions, requires orientation in and consideration of a total
world social process, the specific value process which most
immediately comprehends international law, however conceived,
is obviously the world power process. The task to which
we now turn is that of recommending a frame of reference
which will facilitate both the most comprehensive and the most
detailed description of this particular process.
To establish even initial communication requires that we
make as explicit as possible the conception of power that we
1. Further development of this theme is offered in McDougal and Leigh ton,
The Rights of Man in the World Community: Constitutional Illusions
Versus Rational Action, 59 Yale L.J. 60 (1949) and McDougal, The Role
of Law in World Politics, 20 Miss. L.J. 253 (1949).
The relevance of the total world community context has seldom been
better stated than in the famous quotation from Suarez:
"The human race, though divided into different nations and states,
still has a certain unity, not only as a species but, as it were, politically
and morally as is indicated by the precept of mutual love and charity
which extends to all, even to strangers of any nation whatsoever. There-
fore, though each perfect polity, republic, or kingdom is in itself a per-
fect community, consisting of its members, nevertheless each of these
communities, inasmuch as it is related to the human race, is in a sense
also a member of this universal society. Never, indeed, are these commu-
nities, singly, so self-sufficient unto themselves as not to need a certain
mutual aid and association and communications, sometimes for their
welfare and advantage, sometimes because of a moral necessity or
indigence, as experience shows. For this reason they need a law by which
they are guided and righy ordered in respect to communication and
association." [Quoted from Nussbaum, A Concise History of the Law
of Nations (1947) 67.]
recommend. We have already suggested that the pseudo-
realistic conception of simple naked force applied by nation-
state to nation-state is not enough and that, at highest level
abstraction, power may be most usefully defined as participa-
tion in the making of decisions that are attended by sanctions.
The expansion of this definition, by search for operational
indices for "decision" and "sanction", moves us to a concep-
tion of processto a conception of people interacting in situa-
tions in which some are able, by threats of severe deprivations
or promises of high indulgences, to make and enforce choices
t hat affect the distribution of values among those in the situa-
tion
1
. The more systematic mode of describing these interactions
t hat we recommend for outlining any power process includes
specifications of eacli of the following items :
(1) the interacting participants (described in terms of their
perspectives and the demands they make on each other) ;
(2) the situations or arenas of interaction ;
(3) the base values upon which participants premise threats
of severe deprivation or high indulgence ;
(4) the particular practices, tactics and strategies, by which
participants seek to exercise their influence; and, finally,
(5) the effects, particular and general, that are achieved upon
the values of the participants.
It is this set of inquiries, pursued in whatever detail an observer's
purposes may require, t hat we suggest s most fruitful for
investigation and exposition of the power process in any com-
munity, of whatever size, from local to global.
It may aid clarity in later inquiry especially to emphasize
here one important distinction we suggest in the forms of power,
a distinction between formal authority and effective control.
Every community may be observed, by examining the perspec-
tives of its members, both to present "official" decision-makers,
located in various "government al" structures, who are expected
to make important community decisions and to offer a set of
authoritative prescriptions, embodying community policies, by
1. For more detailed definition, see Lasswell and Kaplan, Power and
Society (1950) Ch. V.
which decisions are supposed to be made. Decision-makers who
operate with this sanction of community expectation may be
described as exercising formal authority and when they do in
fact make the important community decisions they may also
be said to exercise effective control. It may, however, be that
the important community decisions are not in fact made by
such authorized decision-makers but by others, who may be
denominated the real rulers of the community and who may
be located in one or several of the non-governmental structures
of the community, and the decisions such rulers make may not
be in accord with community prescriptions. Such decisions may
be described as the exercise of effective control, though without
the sanction of formal authority. The point we wish to underline
is that any description of the world power process which would
concern itself with effects in the real world, rather than with
illusion, must inquire not merely into the structure of formal
authority but also into that of effective control and, thus,
consider not only "governmental" participants but all other
participants who in fact perform the functions of government
1
.
It remains to indicate briefly how the specific inquiries we
have suggested above may be applied in systematic and detailed
description of the world power process. We will proceed from
inquiry to inquiry, as follows:
1. The Categories of Participants in the World Power
Process.
The quest here is for a convenient and realistic way of cate-
gorizing the participants who interact in the world arena.
Among the most relevant criteria for achieving such categoriza-
tion or identification would appear to be the following:
(a) influencein the sense of the number and importance of
the decisions that may be made or affected;
(b) stabilityin the sense that the pattern of influence is not
ephemeral or transitory, but remains integrated long
enough to enable fairly dependable expectations to be
constructed concerning it; and
1. Contrast the handling of the interrelations of "validity" and "efficacy"
in Kelsen, General Theory of Law and State (1946) 39, 118, 119.
(c) availability for sanction application, negative or positive,
in the enforcement of policy.
Applying these criteria to various possible participants in the
world arena, we may eliminate "classes" and "cultures", as
important as these may be in shaping the perspectives that affect
decision, and concentrate upon the individual human being
and his organized groups. The categorization that we, accord-
ingly, recommend as best adapted for policy-oriented study is
as follows:
(1) The territorially organized bodies politic known as
"nation-states" and their various dependencies.
(2) International Governmental Organizations.
(3) Transnational Political Parties.
(A political party is defined as an organized group that
presents platforms and candidates at elections.)
(4) Transnational Pressure Groups.
(Pressure groups are defined as bodies especially organized
to influence decisions by governmental organizations and
political parties.)
(5) Transnational Private Associations.
(A private association is defined as a group primarily
organized to seek values other than power but which in
fact also seeks power effects.)
(6) The Individual Human Being.
(The individual considered as a total personality and
making comprehensive choices that may transcend any
of his specialized roles in collective activities.)
The word "transnational" used in the description of political
parties, pressure groups, and private associations should not
be taken to imply concern only for such groups as seek trans-
national effects. Comprehensive description must include all
groups which in fact achieve such effects.
2. Arena Hierarchies in the World Power Process.
By arenas we refer to the situations in which interactions
occur in the world power process. These are as numerous as
(43)
FRAMEWORK OF. INQUIRY 175
there are decision-making outcomes envisaged and occurring
and may be categorized in many useful ways.
Each group participant in the world power process both has
its own internal arenas for its internal power processes and
interacts in external arenas with other participants, group and
individual.
Both internal and external arenas may be classified in terms
of the degrees of formal authority and effective control at the
disposal of participants. The arenas of formal authority are
those of government, international and national, and the
arenas of effective control include not only effective arenas in
government but also countless interactions in and between the
other group participants, and between the group participants
and individuals.
Arenas may also be usefully categorized in terms of degrees
in expectations of violence. In some situations there may be
few, if any, over-riding objectives common to the participants,
and the expectations of all participants may be that, though a
decision will be taken, it will be taken by violence or naked
force. In other situations, the expectations of the participants
are that decisions will be taken by peaceful procedures and
their expectations may include, further, varying degrees of
application of community prescription. The former arenas are
sometimes called military, and the latter civic.
It is obvious that arenas vary greatly in the degree of their
organization and stability and that both arenas and participants
are in a process of constant change. The complexity of inquiry
does not, however, reduce its importance.
The relevance of specific inquiry into arenas may perhaps be
best indicated by anticipation of some of the more important
questions of legal policy. We offer the following : What arenas
of formal authority does the world afford and what participants
are admitted to these by what prescriptions and procedures ? How
compatible are such prescriptions and procedures with the goal
values of a free world society ? What are the patterns by which
participants in fact gain access to arenas of effective control
and how do world prescriptionswith respect to admission to
arenas, agreements, violence, and so onaffect these patterns?
By what prescriptions and procedures may arenas of effective
control be moved in the direction of formal authority, and
military in the direction of civic? What new arenas and prescrip-
tions and procedures require invention?
3. Base Values.
By base values we refer to the particular values that are at
the disposal of participants for influencing decisions. The factual
inquiry with respect to each participant is : what claims to what
base values are made in what contexts? The more important
claims are those to more or less continuing control for long-
term general purposes.
With respect to nation-states, it will be indicated in some
detail, in the Chapter to follow, that any value may on occasion
serve as a base of power. In considerable measure this is true
also of other participants, though of course precise patterns in
control over values vary greatly among participants, from time
to time and context to context.
Important questions of legal policy with respect to base values
are : What are the formal prescriptions and procedures by which
participants seek to legitimize their claims, and stabilize their
expectations, with respect to continued control over base values ?
What have been the patterns in the actual application of pres-
criptions and how compatible are such prescriptions and applica-
tions with the goal values of a free world society?
4. The Practices of Participants.
By practices we refer to the details of the tactics and strategies
by which participants engage in the shaping and sharing of
power. In traditional studies of international law it has been
customary to group such activities between the two polar
extremes of agreement and coercion, or peace and war. In the
contemporary world, however, these two extremes are con-
sidered more and more to merge into each other and participants
are observed to employ a great variety of instruments of policy
in a continuous process of defense and attack. One convenient
categorization of these instruments of policy has been found
to be:
(45) FRAMEWORK OF INQUIRT 177
(1) Diplomatie
(distinctive means, symbols in inter-elite communica-
tions; objectives, agreements or disagreements).
(2) Ideological (Propaganda)
(distinctive means, symbols in elite-mass communica-
tion; objectives, group action or inaction).
(3) Economic
(distinctive means, goods and services for production or
consumption; objectives, raised or lowered production
or consumption).
(4) Military
(distinctive means, arms and specialists on violence;
objectives, destruction or protection) *.
Though this categorization is most obviously applicable to
the practices of nation-states, a comparable analysis can be
made of the practices of each other type of participant.
The most fundamental question of legal policy here is how
community coercion is organized and exercised in formulating
and applying policy with respect to these practices. Within
nation-states, the procedures for formulating and applying
policy are commonly referred to as legislative, executive,
administrative, and judicial. These words, however, refer more
to institutions than to procedures or functions, and an institution
described by any one of the names may in fact perform a great
variety of functions. In an effort to achieve a more precise
demarcation of functions, we recommend a categorization in
the following terms:
(1) The Intelligence Function.
(Practices by which decision-makers keep themselves
informed and clarify and project future plans of action).
(2) The Recommending Function.
(Practices by which initiative is taken and pressure
exerted to secure specific decisions.)
(3) The Prescribing Function.
1. Note various chapters in Strausz-Hupe and Possony, International
Relations (1950); Lasswell, Politics: Who Gets What, When, How (1935).
I. 1953. 12
(Practices by which policy is formally enacted into
authoritative community prescription. Commonly this
function is performed in some measure by all the conven-
tional institutions: legislative, executive, administrative,
judicial.)
(4) The Invoking Function.
(Practices by which community machinery is set in
motion for the application of prescriptions in concrete
instances.)
(5) The Applying Function.
(Practices by which authoritatively prescribed community
policy is administered in concrete instances.)
(6) The Appraising Function.
(Practices by which intelligence is applied to the detailed
examination of the consequences of prescriptions and
applications.)
(7) The Terminating Function.
(Practices by which obsolete prescriptions are put to end.)
5. The Effects Achieved by Participants.
The inquiry here is for the consequences of the interactions
outlined above upon the control that each participant achieves,
in relation to other participants, over value processes. The
effects with which we are concerned may be distinguished as
particular and structural. With respect to nation-states, effects
of the first type are commonly dealt with under the heading of
"jurisdiction" and of the second type under the heading of
"state succession".
With respect to the effects we characterize as particular, the
factual questions are: What claims, to what control, over what
particular value changes (what people, participating in what
events), do what participants make? The questions of legal
policy are: what are the relevant world prescriptions and how
in fact have such prescriptions been applied? How compatible
are such prescriptions and applications with our postulated goal
values?
With respect to the effects we characterize as structural, the
factual questions are: What changes have occurred, within what
participants in the world arena and what claims are made by
other participants because of these changes? The questions of
legal policy may be formulated as above.
This truncated and somewhat abstract exposition of the
major outlines of the world power process may perhaps be
clarified by reference to Chart II, labelled "World Power
Process" and set out below
1
.
1. Chart II
World Power Process
I. Nation-States
A. ArenasAdmission
1. Birth of effective power units.
2. Recognition as formal authority.
B. Bases of Power
1. Geographical Position and Resources.
Controls over wealth process.
2. People.
Controls over physical access to area and admissions to power and
other value processes.
3. Institutions
(a) External relations.
Degree of independence.
Alliances.
(b) Internal structure.
Efficiency.
Military Establishment.
C. Practices
Instruments of Policy
1. Diplomatic 1. Persuasion
2. Ideological (Peaceful Procedures)
3. Economic
4. Military 2. Coercion
(War)
Policy Functions
1. Intelligence
2. Recommending
3. Prescribing
4. Invoking
5. Applying
6. Appraising
7. Terminating
D. Effects.
1. Particular ("Jurisdiction")
2. Structural ("State Succession")
I I . International Governmental Organizations
A. Arenas
Membership
III. THE MAJOR CHARACTERISTICS OF A POLICY-ORIENTED
CONCEPTION OF INTERNATIONAL LAW.
It is sometimes suggested that, since there are no "proper"
or "intrinsic" meanings for words like "law", definitions of
international law are largely matters of taste or esthetic prefe-
rence
x
. This view we believe to be profoundly mistaken. Though
there may be no "proper" or "intrinsic" meanings for such
words as "law" or any other words, there are definitions and
conceptions which promote with varying degrees of effectiveness
the major purposes of their proponents and users. The reference
that is given to the word "law" may vitally affect the perspec-
tives of both decision-makers (expanding or limiting the con-
siderations taken into account in arriving at decision) and
scholars (expanding or limiting areas and techniques of investi-
gation). Thus, we have seen that both the observers who focus
too insistently upon technical rules and those who focus too
sharply upon naked power tend to conceal both from them-
B. Bases of Power
1. Grants of formal authority.
(legal capacity and powers)
2. Effective Control over other values.
C. Practices
1. Intelligence 1. General purpose
2. Recommending United Nations
3. Prescribing
4. Invoking
5. Applying
6. Terminating 2. Limited purpose
7. Appraising Specialized Agencies
D. Effects
III. Transnational Political Parties.
etc.
IV. Transnational Pressure Groups.
etc.
V. Transnational Private Associations.
etc.
VI. Individuals.
etc.
1. See, for example, Williams, International Law and the Controversy
Concerning the Word Law 22 B.Y.I.L. 146 (1945). Contrast Ross, A Textbook
of International Law (1947) 13, n. 2.
(49) FRAMEWORK OF INQJJIRr 181
selves and others how the decision-making process in the world
arena in fact operates and, hence, to preclude the most rational
consideration of alternatives in rules and organization better
designed for the promotion of fundamental values. There is
therefore, we suggest, a community interest in achieving a
conception of international law adequate to the crisis of our
time.
It may now be possible, building upon the preliminary
characterizations of the world social and power processes
offered above, to clarify the conception of international law
that we recommend.
The formulations we propose can perhaps be presented most
economically in a series of brief statements, as follows :
1. A policy-oriented conception of international law, pri-
marily concerned for effects upon values, must, we urge, avoid
both the principal over-emphases of traditional theory and
combine a rational emphasis upon rules with a rational emphasis
upon effective control. Though it must be concerned with rules,
as authoritative prescriptions of fundamental community policy,
it must extend its concern, if it would consider effects, beyond
rules to the decisions which in fact formulate and apply rules
and include within its compass all such decisions, whomsoever
the decision-maker, which importantly affect community
values. The suggestion we make is accordingly, that interna -
tional law, at highest level abstraction, is most relevantly
conceived as a combination of the two forms of power indicated
aboveas formal authority conjoined with effective control, as a
flow of decisions in which community prescriptions are formulated,
invoked, and in fact applied in the promotion of community
policies.
We include emphasis upon formal authority, upon commu-
nity prescribed rules and procedures, both because we observe
that many decisions in the world arena are in fact profoundly
influenced by the perspectives of formal authority, and because
we join with the traditional theorists in preferring decisions
that are related to community expectation and prescription to
decisions that are made by naked force. The possibility of
challenging decision in the name of "t he law" is not only a
feature of commonly held conceptions of law but would appear
indispensable to any conception of an international law better
designed to promote human dignity.
We include emphasis upon effective control because formal
authority without effective control is, as suggested above, not
law but illusion. Investigation which would be consequential
must look behind apparent decision-makers to real decision-
makers, in whatever institutions they may be located, and
comprehend in its inquiries all effective participants, non-
governmental as well as governmental, in the world power
process; and recommendation which would be consequential
must seek controls for the lawless behavior of elites in nation-
states and other groups not merely by the promulgation of
rules but also by the balancing and organization of power
among effective decision-makers. Within our particular nation-
states we do not rely alone upon the mere promulgation of
rules, constitutional or other, to secure our basic community
values but seek further to secure decisions in conformity with
rules by a balancing of power, such as between functions
(legislative, executive, judicial, administrative) or between
areas (central government, internal provincial governments) or
between government and private associations of all kinds.
Similarly, our conception of international law must be compre-
hensive enough to include not only the enshrinement of values
in authoritative prescription but also a process of balancing
power comparable to that found within nation-states which
cherish a free society.
2. A policy-oriented international law will reject, we suggest
further, any conception of the decision-making process which
is built upon the assumptions t hat decision-makers are mostly
located in courts and that they more or less automatically, or
tropistically, respond to timeless absolutes in "given" prescrip-
tions, but will rather emphasize that decision-making is a
dynamic process in which decision-makers, located in many
different institutional positions and contexts, are continually
creating, interpreting and reinterpreting rules and continually
(51) FRAMEWORK OF INQUIR 183
formulating and reformulating, applying and terminating, poli-
cies. Such an international law will be as concerned as is tradi-
tional theory with how rules are in fact applied in concrete
instances, but it will also extend its concern to how the other
functionsintelligence, recommending, prescribing, invoking,
appraising, and terminating are performed and consider the
interrelations of all functions.
Though we thus emphasize that "law" is a dynamic process
in which policies are constantly being made and applied, it
may require express caution that we do not recommend decision
in accordance with the arbitrary values of particular decision-
makers. The principal function of legal prescriptions is to
clarify community values and the decisions we recommend are
decisions in accord with such values. The belief that moves us
is that prescriptions which are clearly related in their formu-
lation to such values are more likely to influence decisions com-
patible with such values than prescriptions that are deliberately
left normatively-ambiguous. When policies are opened up for
explicit examination both decision-makers and their constituen-
cies better able to test the degree of conformity between decision
and values
1
.
3. A policy-oriented international law will not, we add in
further formulation, demand an impossible "universality" of
acceptance for the "validity" of its prescriptions. It will rather
make of any proposed prescriptions such inquiries as these:
What are the policies embodied in these prescriptions? What
has been the degree and area of acceptance of these policies in
the past and what are the probable degree and area of accep-
tance in the future? How relevant are these policies to the
particular problem in hand in its context? Policies that have
not been, or cannot be made, authoritative on a global scale
1. We do not deny that, as the neo-realists assert, some decisions that
are taken in the name of formal authority are in fact taken by naked force,
with rules serving as mere rationalizations, but we suggest that the extent
to which such arbitrary decisions occur is a matter for empirical investiga-
tion and not for dogmatic assumption. One major goal of a "legal" system is
of course to reduce the number of such "unlawful" decisions.
may yet serve useful purposes in the half world, the hemisphere,
the region or lesser areas.
4. A policy-oriented international law will explicitly recog-
nize, also, that the policy functions with which it is concerned
are performed at many different levels of formal authority and
effective control, in what may be described as a hierarchy of
interacting power processess. The world power process may, in
broadest conception, be thought of as a series of more and less
comprehensive processesfrom global through half-world,
hemispheric, and regional to national or municipal or lesser
with each of the more comprehensive processes affecting each
of its internal, lesser processes, and each of the lesser processes
in turn affecting all the larger processes which comprehend it.
Policy functions that have important effects across boundaries
may be performed at almost any point of interaction in this
complex hierarchy and, when they are so performed, a policy-
oriented international law will not futilely debate either whether
such prescriptions and applications are "really" international
law or "really" national or municipal law, or whether inter-
national law is "supreme" over national law or national law is
"supreme" over international law
1
. The important questions
are who formulates and applies what policies, with respect to
whom, by what practices, with what sanctions, across what
boundaries, and with what effects upon postulated goal values.
From this perspective, much of what is commonly called com-
parative constitutional law becomes of course integral with
international law.
5. Though it will inquire into sanctions as indispensable to
effective decision, a policy-oriented international law will
recognize that the decisions with which it is concerned may be
sanctioned by many different institutional practices, drawing
upon many different base values, and invoked at many different
levels of formal authority and effective control. The various
participants in the world power process may on varying occa-
1. References to this debate may be found in Briggs, The Law of Nations
(2nd. 1950) 60 et seq.
sions invoke in support of authoritative prescriptions any one
or all of the instruments of policydiplomatic, ideological,
economic, and militaryand may depend for making their
invocation effective upon any one or all of the base values that
we have categorized
1
. Sometimes this use of instruments of
policy and base values is unorganized, with each participant
reacting unilaterally to other participants in a process of recipro-
city and counter-reciprocity, including, with varying degrees of
explicitness, both offers of rewards and inducements and threats
of reprisals and retaliations. That this process of unorganized
sanctioning of decisions can be highly effective has been
demonstrated in various domains of international law,
such as, for examples, those relating to diplomatic immunities
and "jurisdiction" (a point to be developed in detail in
Chapter III below). On other occasions and in other
contexts, however, the application of sanctions may be
organized in varying degrees among a few or many participants.
Sometimes the organization may be more or less impromptu
for the handling of specific transgressions of authoritative
prescriptions. On other occasions, as in the League of
Nations or United Nations or North Atlantic Treaty Organiza-
tion, it may be continuous and designed for the handling of
general categories of violation. It would be most unreal to
attempt to over-emphasize the effectiveness of existing sanctions,
unorganized or organized, in the world arena to-day, but it is
equally unreal, from the perspective we have sketched, either
to insist that there are no existing sanctions or to argue that
existing sanctions cannot be improved.
It should require no great elaboration that a policy-oriented
international law will not seek in an infinite regress of verbalisms
to discover some mystical "binding force", independent of particu-
lar decision-makers in particular contexts, for its prescriptions
2
.
1. The great range of possible sanctions is well illustrated in Report
of the Collective Measures Committee, United Nations General Assembly,
6th Sess., Supp. No. 13 (A/1891), 1951. See also Wright, International Law
and Power Politics II Measure 123 (1951).
2. Note the vast literature indicated in Briggs, The Law of Nations
(2nd ed. 1952) 19 et seq.
186 M. S. McDOUGALWTERN. LAW, POWER AND POLICY (54)
Abjuring the metaphysical derivations and justifications of all
the schools, it will rather engage in empirical investigation of
what sanctions have in fact been available to what decision-
makers in what contexts and consider both how such sanctions
may be technically improved and how a community consensus
may be promoted which will demand the more effective employ-
ment of all available sanctions
1
.
6. A policy-oriented international law will, for final empha-
sis, seek to make as explicit as possible the goal values it postu-
lates. A brief indication will be made in Section IV, to follow,
of the goal values we recommend for an international law of
human dignity.
Our task now is, building upon these preliminary character-
izations of world power process, world social process, and inter-
national law, to achieve an organization of studies which will
both permit the refinement and development of these character-
izations, and, more importantly, facilitate the performance of
all the various intellectual functionsclarification of goal
values, description of trends and conditions, projection of trends,
and invention of alternativeswhich we have specified as
indispensable to a policy-oriented approach. For tentative
consideration we submit two complementary methods for such
organization, the one constructed in the first instance about
particular participants in the world power process and the other
about postulated goal values.
For the first mode of organization, which aspires to stimulate
a rather complete investigation and presentation of the role of
law in the world social and power processes, we suggest that
each of the major categories of participant in the world power
process, as outlined above, be considered in turn and that with
respect to each type of participant investigation be pursued in
1. Professor Brierly's much quoted statements in his The Law of Nations
(4th ed. 1949) 54 that "consent cannot of itself create an obligation" and that
to "say that the rule pacta sunt servanda is itself founded on consent is to argue
in a circle" appear to us to employ the word consent at two different levels
of abstraction. One can distinguish particular agreements from the general
community consensus which is necessary to any order not based on naked
force.
terms of all the specific inquiries we have indicated as necessary
for description of any power process, to wit: Just how is this
participant identified and what is its importance? To what
arenas of formal authority and effective control does this
participant seek and obtain access? To what base values does
it make and establish claims? By what practices does it exercise
its power? What effects upon values does it achieve? Within
each of these categories of inquiry, the most general inquiry of
legal policy that may be raised is: How are world or transna-
tional prescriptions formulated and applied with respect to this
problem? Pursuit of this legal policy inquiry in appropriate
detail, and in a way to avoid the perils of normative-ambiguity,
requires certain more specific inquiries, through inquiries appro-
priate to any flow of decisions about any of the major problems,
such as:
(1) What are the eventsthe facts, the changes in values
to which decision-makers are responding?
(2) What have been the decisions, by what decision-makers,
where located, with respect to such events?
(3) What conditions or variables, including policy prescrip-
tions, appear, to have influenced prior decisions?
(4) What have been the effects of prior decisions upon
postulated goal values?
(5) What are future decisions likely to be?
(6) What alternatives can be proposed for securing decisions
more in accord with postulated goal values?
Questions of this order can of course be expanded and refined
for the most systematic investigation of any particular decision
or truncated and telescoped, as resources and convenience may
require, for the impressionistic study and description of any flow
of decisions. In the two Chapters to follow we will attempt to
indicate in more detail how this method of organization can be
applied to the different types of participants in the world power
process, though we obviously cannot aspire even to asking many
of the relevant questions. Some initial orientation in the world
of events, as contrasted with the confusion of normative-ambi-
guity, is as much as we hope here to achieve.
For the second and complementary mode of organization we
propose the adoption of a more manipulative attitude and a
direct focus in turn upon each major value with three principal
inquiries: first, how can particular, concrete, contemporary
goals be clarified with respect to this value ; second, what are the
trends and conditions that may affect the degree to which these
goals can be achieved; and, third, by what alternatives (in
prescriptions and organization) have these goals been sought
in the past and how can new arid more effective alternatives
be invented and put into practice. Thus, with respect to wealth,
one might first clarify goals in terms of continually rising stan-
dards of living and ample opportunities for employment on
respected jobs ; then inquire into the distribution of resources and
values and the structure of institutions (for performing such
functions as allocation of resources, planning and development,
protection of claims, distribution of consumption goods, etc.)
that affect the production and distribution of goods and ser-
vices and other goals; and, finally, both appraise prior expe-
rience in national and international, governmental and non-
governmental, efforts to increase production and distribution
on a transnational scale and consider what alternatives to
recommend
l
.
IV. THE POSTULATED GOAL VALUES OF AN INTERNATIONAL LAW
OF HUMAN DIGNITY
The goal values of legal systems, national and international,
are sometimes stated simply in terms of promoting "justice" or
"public order". From the perspective of one who would promote
an international law of human dignity such formulations are
left ambiguous. "Justice" and "public order" are terms that
can be used, and in fact often are used, to refer to the consistent
application of any value system, even one of human indignity.
The question is how formulations can be achieved which will
1. A partial illustration of this mode of organization appears in McDougal
and Haber, Property, Wealth, Land: Allocation, Planning, and Develop-
ment (1948) Ch. XII.
permit the testing of policy applications, however consistent, in
terms of their relation to the values of human dignity.
The recommendation we make is that the criteria most
appropriate for appraising policies, explicit or implicit, in world
power process decisions may be found in acceptance and elabo-
ration of the values embraced in what we have described as
the rising demands of people everywhere for common values.
Though these demands, as they appear in the United Nations
Charter, the Universal Declaration of Human Rights, the
proposed covenants on human rights, and other existing and
proposed international charters and agreements or in national
constitutions, political party platforms, and pressure group and
voluntary association programs, are made at many different
levels of abstraction and with little systematic ordering, intel-
lectual tools are available for ordering and elaborating such
demands in all necessary degrees of generality and specificity.
The highest level systemization and description we have pro-
posed is in terms of the eight values : power, respect, enlighten-
ment, wealth, well-being, skill, affection, and rectitude, and we
have offered brief, initial definitions. By the giving of further
appropriate operational indices to these terms, they may be made
both completely comprehensive and sufficiently detailed for any
particular investigation.
It is not, however, this particular set of words or any particular
system of categorizations that we wish most to emphasize.
Systems for categorizing values, like definitions of law, are
matters of convenience and relevance, if the overriding goal of
human dignity in the sense of shared values (however described)
is accepted and applied. Any one system can, by the use of
appropriate operational indices be translated into any other.
What we wish most to emphasize is that decision-makers and
scholars must have some system, comparable at least to the one
we propose, for clarifying basic goal values for themselves and
others, if they are to test specific doctrines and practices for
compatibility with conceptions of human dignity
1
.
1. A belief in the relativity of values is scarcely sufficient reason for exclud-
ing them from study. Selznick, in The Organizational Weapon (1952) 308, ap-
propriately writes: "Under conditions of political combat, those who have
no firm values of their own become the instruments of the values of others."
It may be added that a convenient and relevant system for
clarifying goal values and testing specific decisions is not depen-
dent upon particular forms or modes in the justification of
values. People who share the basic goal of human dignity can
cooperate whether they justify their preferences by religion,
natural law, metaphysics, science or otherwise. The higher
level abstraction of justifications need not necessarily interfere
with the lower level testing of specific decisions for compatibility
with agreed goals.
It may require mention, further, that major goal values need
not be invariably identified with any particular institutional
practices by which they are sought. In different communities
and cultures very different institutional practices may contribute
to the same over-riding goal, that of the sharing of major values.
An international law of human dignity, designed for a free world
society, can tolerate or even encourage a great variety of institu-
tional practice in different communities and cultures when such
practice does in fact promote the sharing of major values
1
.
The kind of operational indices that we would, in appro-
priate context, seek to specify for each of the eight major value
categories we have recommended, may perhaps be indicated by
a summary, recently attempted elsewhere, of peoples' rising
demands for common values. Such demands, we have sug-
gested
2
, may be economically systematized and summarized as
demands for certain particular values, as follows:
"the wide sharing o power, both formal and effective, includ-
ing participation in the processes of government and of parties
and pressure groups and equality before the law;
the fundamental respect for human dignity which both pre-
1. This is in answer to writers like Northrop who emphasize differences
in cultural detail between the East and the West. See Northrop, Contem-
porary Jurisprudence and International Law, 61 Yale L. J. 623 (1952).
2. McDougal and Bebr, Human Rights and the United Nations,
Neumann, Nipperdey, and Scheuner (Eds.) Die Grundrechte (publication in
1953-54).
More detailed statements of possible operational indices for these values
may be found in Lasswell and Kaplan, Power and Society (1950) and Lasswell
and McDougal, The Jurisprudence of a Free Society (mimeographed mate-
rials, 1953).
eludes discriminations based on race, sex, color, religion, political
opinion or other ground irrelevant to capacity and provides a
positive recognition of common merit as a human being and
special merit as an individual;
the enlightenment by which rational decisions can be made,
including freedom of inquiry, opinion, and communication;
access to wealth processes, to the resources and technology
necessary to the production of goods and services for maintaining
rising standards of living and comfort;
health and well-being and inviolability of the person, with
freedom from cruel and inhuman punishments and positive
opportunity for the development and enrichment of personality ;
opportunity for the acquisition of the skill necessary to express
talent and to achieve individual and community values to the
fullest;
opportunity for affection, fraternity, and congenial personal
relationships in groups freely chosen;
freedom to choose standards of rectitude and responsibility, to
explain life, the universe, and values, and to worship as may
seem best;
and, in sum, a security which includes not merely freedom
from violence and threats of violence, but also full opportunity
to preserve and increase all values by peaceful, non-coercive
procedures."
CHAPTER III
THE NATION-STATE AS PARTICIPANT IN THE
WORLD POWER PROCESS
I
T is our purpose in this chapter to indicate briefly how the
method of analysis we have proposed for any participant
in the world power process can be applied to nation-
states. We will proceed, inquiry by inquiry, from the identification
of the participant through arenas, bases of power, and practices to
effects. The problems in "effects" raise the very difficult issue
of the interrelation of "public" and "private" international law
and, in an effort both to clarify certain misconceptions with
respect to this interrelation and to offer on a few problems a
more detailed illustration of the analysis we propose, we will
give what would otherwise be disproportionate attention to the
consideration of the "effects" problems.
I. THE IDENTIFICATION OF NATION-STATES AS PARTICIPANTS
The label "nation-state", which we adopt because of its
common usage, is not the happiest term for describing the
participants with which we are here concerned. From a factual
perspective, the participants we now seek to identify may
perhaps be better described as "territorially organized bodies
politic" (or as "politically organized communities with a terri-
torial base") in which active elites demand with respect to
other elites in other similar bodies politic freedom of decision
on both internal and external affairs and seek to preserve, or
even to enhance, their territorial base for maximising all values.
The term "nation-state" is commonly reserved for the bodies
politic which achieve the greater degrees of freedom in decision
and these are described in terms of "independence" and "sover-
eignty"; other bodies politic are dichotomized as "non nation-
states", given various appellations such as "protectorates",
(61) NATION-STATE IN WORLD POWER PROCESS 193
"mandates", "trusteeships", and so on, and are described as
dependent and non-sovereign
l
.
It should require no great elaboration that the criteria put
forward in world prescriptions for distinguishing "nation-
states" from "non nation-states" are normatively-ambiguous in
high degree, referring both to the facts to which decision-
makers are responding and to responses they make to such
facts and embodying both descriptive and preferential judg-
ments. Thus, in the Montevideo Convention of 1933, Article 1
prescribes: "The State as a person of international law should
possess the following qualifications: (a) a permanent popula-
tion; (b) a defined territory; (c) government; and (d) capacity
to enter into relations with other States"
2
. When the question
is whether some new elite which has emerged in apparent
control of some area of the world has "capacity to enter into
relations with the other states", it does not clarify the grounds
of decision greatly to be told that if it is a nation-state it has
such capacity, and that if it has such capacity it is a nation-
state
3
. The vagaries that attend decision by such traditional
criteria are amply illustrated in any collection of cases.
In terms of fact it is easily observable both that the world
arena today presents a great profusion of territorially organized
bodies politic, of many varying degrees of formal authority and
effective control, in terms both of internal control over indivi-
duals and of external relations to other bodies politic, and,
further, that these numerous bodies politic are in a process of
continual change in relation to each other. Inquiry that would
be comprehensive and realistic must concern itself, not merely
with "nation-states", but with all these bodies politic and
achieve a mode of description, for clarifying policy issues in
concrete controversies about access to arenas, competency to
1. For some indication of the existing range in bodies politic, see Briggs,
New Dimensions in International Law 46 Am. Pol. Sci. Rev. 674 (1952).
2. Quoted in Briggs, The Law of Nations (2d ed. 1952) 69.
3. With Professor Briggs' insistence, id. at p. 114, that "[w]hether
or not a State exists is a question of fact, not of law" may be contrasted
Professor Kelsen's rejection of "sociological" definitions in favor of a defini-
tion in terms of centralized "legal order". General Theory of Law and State
(1946) 188.
I. 1953. 13
i94 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (62)
make agreements, succession to benefits and burdens of prior
bodies, and so on, t hat is more adequate t han the traditional,
simple dichotomy of "nation-state" and "non nation-state" and
its attendant normatively-ambiguous criteria.
The beginnings of a mode of analysis that may aid clarity in
describing complex interrelations of effective control and formal
authority among bodies politic have been suggested by others.
For describing effective control the principal terms suggested
are body politic, rulers, rule, and supremacy, and for formal autho-
rity, state, governors, government and sovereignty. A body politic is
defined, in the sense we have used the term above, as a terri-
torially organized group with effective control over an area;
its rulers, as those who actually make its important decisions;
rule, as the pattern of practices of the rulers ; and supremacy, as
the degree of effective power in relation to internal and external
participants in power processes. A state is defined as a terri-
torially organized group with the highest degree of formal
authority over an area; its governors, as the authorities who are
expected, by the fundamental charter and the perspectives of
its people, to make its important decisions; government as the
pattern of practices of the governors; and sovereignty as the
degree of formal authority exercised in relation to internal and
external participants in power processes
1
. It is by the elabora-
tion of some such constructs and by their careful application to
the constantly changing facts that appropriate orientation might
be achieved.
I I . THE ARENAS IN WHICH NATION-STATES INTERACT
It may bear emphasis anew, because of the tremendous
confusion in a voluminous literature, that the important inqui-
ries here are both factual and policy. What in fact are the arenas
in which the decision-makers of nation-states exercise their
influence? How in fact is access obtained to these arenas?
What are the value consequences in obtaining or being denied
access to particular arenas? What are the world prescriptions
1. Lasswell and Kaplan, Power and Society (1950) Ch. VIII.
about who should be admitted to what arenas and how in
detail are these prescriptions applied? How compatible are
such prescriptions and applications with the postulated goal
values of an international law of human dignity?
The most immediately relevant categorization of the arenas
in which nation-states interact is perhaps, we suggest, that
which distinguishes arenas of effective control and arenas of
formal authority. Arenas of effective control are those in which
the expectations of the parties are that decisions will in fact be
taken, whether by naked force or in accordance with commu-
nity prescription. Arenas of formal authority are those in which
the expectations of the parties are that decisions will be taken
by official decision-makers in accordance with community
prescription. Thus, an arena of effective control may, or may
not be, also an arena of formal authority; and an arena of
formal authority may, or may not be, also an arena of effective
control, depending upon the realism of the expectations of the
participants in the arena. The types of particular arenas with
which we might be concerned, accordingly emerge
>
as three :
arenas of effective control, but not formal authority ; arenas of
formal authority and effective control; and arenas of formal
authority, but not effective control. Comprehensive inquiry
may, however, proceed, we suggest, under two headings, dealing
first with arenas of effective control, but not formal authority,
and, secondly, with all arenas of formal authority, appropria-
tely leaving it a matter for empirical inquiry in each instance
whether such an arena is also one of effective control.
We now consider briefly what relevant inquiries may be
made under each of these headings.
A. The Arenas of Effective Control (but not of Formal Authority)
It needs no documentation that new bodies politic are
continually emerging in the world arena, as new elites replace
old elites in control over bases of power, and that these new
bodies politic are in processes of continuous interaction with
pre-existing bodies politic even before they are admitted to the
traditional arenas of formal authority. Consider, for example, the
emergence of Communist China and its interactions in 1950-52
with the United States.
The most general inquiry here is under what conditions and
by what methods do new bodies politic in fact emerge in the
world arena. In the convulsions of the contemporary world,
with its contradictory trends of bipolarisation and fractionaliza-
tion, the methods can be seen to range between the two polar
extremes of peaceful procedures and coercion, and varying
combinations of the two, in continuous unifications, dismember-
ments, emancipations, wars, and revolutions.
It is these factual changes in the identity and composition of
bodies politic t hat give rise to the legal policy problems of
admission to the arenas of formal authority "recognition",
"membership in international organization", and "representa-
t ion"and though in arenas of effective control, but not of
formal authority, expectations of violence are commonly high
and considerations of world prescriptions at a minimum, the
interactions t hat occur in these arenas raise the most fundamen-
tal problems of any international law, such as with respect to
the control and regulation of violence and the enforcement and
termination of agreements. Comprehensive inquiry might consi-
der the impact of the many relevant world prescriptions both
upon the frequency and methods by which new bodies politic
emerge and upon the goal values of an international law of
human dignity.
B. The Arenas of Formal Authority
The arenas of formal authority in which nation-states interact
include all those of governmental organization, whether national
or international. The arenas of national governmental organiza-
tion include both those established in the ordinary maintenance
of diplomatic relations and those provided in terms of access
to judicial, administrative, legislative or other institutional
structures. The arenas of international governmental organiza-
tion might be similarly described, but the consideration of such
arenas is conveniently reserved for the fuller inquiry into the
role in general of international governmental organizations.
The confusion in technical literature about the admission of
newly emerged territorially organized bodies politic to the
arenas of formal authority established between preexisting
nation-states knows few bounds. It is much debated by what
criteria a new body politic becomes a "nation-state" which can
be "recognized", whether pre-existing nation-states are under
a duty to recognize admittedly new nation-states, what policies
should govern the granting or with-holding of recognition,
whether recognition is constitutive or declaratory, whether
recognition can be conditional, what the consequences of recog-
nition are, and so on
1
.
Some of this confusion might, we suggest, be avoided by
cleansing the term "recognition" of its normative-ambiguity
and keeping clear the distinction between the facts to which
decision-makers are responding and the consequences that ensue
from their response. When the decision-makers of an established
nation-state engage in the ceremony of "recognition" with
decision-makers in a newly emerged body politic, it is clear
that they are responding to certain changes in fact in the
structure of effective control and formal authority within a
certain area and to certain changes in the structure of effective
power in the world arena. In this sense their ceremony is
"declaratory" of their interpretation of these factual changes.
After the ceremony has been performed, it is further clear,
however, that the new body politic is admitted to a much fuller
and more effective participation in the established arenas of
formal authority. In this sense the ceremony of recognition may,
accordingly, reasonably be said to be "constitutive" of certain
legal consequences.
A more comprehensive effort to achieve clarification would
investigate in detail, first, what access official decision-makers
and private citizens of newly emerged bodies politic have to
established arenas of formal authority prior to any ceremony of
recognition and what new access to such arenas and other
advantages they obtain after such ceremony, and, secondly,
1. The debates are surveyed in Lauterpacht, Recognition in International
Law (1947).
what policies in terms of legitimacy, constitutionalism, willing-
ness to perform international obligations, and so on, the deci-
sion-makers in established nation-states have in fact sought and
achieved in granting or withholding recognition in respect to
newly emerged bodies politic
1
. Consideration of whether the
policies so sought and achieved are compatible with contem-
porary community interests might suggest that the ceremony of
recognition is an outmoded survival of earlier power processes,
whose use frequently defeats the purposes of its users, and t hat
effort could rationally be devoted to the devising of new collec-
tive modes of recognition in whatever areas agreement upon
criteria compatible with an international law of human dignity
can be achieved.
I I I . THE BASES OF POWER OF NATION-STATES
It may be noted, in rejection of "geo-political" and other
single factor explanations of the power of nation-states, that any
value may on occasion serve as a base of power for decision-
makers in nation-states, either in relation to internal groups and
individuals or with respect to external participants in the world
power process
2
. Thus, effective power may be based upon many
varying combinations of formal power (stability and efficiency
in governmental structures, procedures for controlling parties,
pressure groups, private associations, and individuals, etc.),
affection (positive identifications of people with active decision-
makers and community, sentiments of loyalty and patriotism,
devotion to group goals), enlightenment (information adequate
for rational decision, recognition of group interdependences,
processes of inquiry and of invention), wealth (natural resources,
raw materials, technological development, equipment for pro-
duction, transport, and communication, and for application of
violence), skill (adaptability of manpower to modern technology,
training of elites in negotiation and management of peoples),
1. In the subsection on "effects", below, a more detailed mode of cate-
gorizing the facts in certain of the more important types of "recognition"
cases will be indicated.
2. Note the rich variety of materials presented in Sprout and Sprout,
Foundations of National Power (2nd ed. 1951).
well-being (capacity of people to work and endure, characters
integrated to group responsibilities), respect (willingness to
bear sacrifices in common interest because of group acceptance,
absence of resentments and dissidences caused by discrimina-
tions), and rectitude (sense of Tightness of cause and of respon-
sibility shared, integration of community purpose that trans-
cends all factionalism).
Our inquiry must, however, extend beyond questions of
what base values are at the disposal of particular decision-
makers in particular situations, to consideration of the total
potentialities, or aggregate bases of power, of particular nation-
states for general participation in the world power process. This
total potentiality, or aggregate base of power, of any particular
nation-state depends, not upon some static addition or com-
bination of values at rest, but rather upon a "going" community
process in which the nation-states' decision-makers control and
manage resources and people, by a great variety of institutional
practices, in the continuous production of all the values which
contribute to power. The demands which decision-makers
within particular nation-states make upon decision-makers in
other nation-states or upon other participants for control over
bases of power are, further, commonly cast in the form of
demands for control over resources, or for control over people,
or for freedom of decision in the shaping of institutional arran-
gements.
For investigating and appraising the prescriptions and prac-
tices by which bases of power are allocated among nation-
states, it is, accordingly, most convenient to subdivide inquiry,
not value by value, but rather under the three main headings
of Resources, People, and Institutions. Under each of these
headings an investigator may pursue, in any necessary or
possible detail, the usual general questions of fact and of legal
policy: What claims do decision-makers in nation-states in fact
here make against other participants (including of course other
nation-states) for control or freedom of decision and what are
the prescriptions and practices by which other participants
reject, honor, and stabilize such claims? The most comprehen-
sive inquiry might add consideration, sometimes relegated to the
field of comparative constitutional law, of the internal policy
prescriptions and applications by which nation-states actually
exercise the controls and freedom they achieve, within the
limits of world prescription and regulation, for enhancing their
bases of power vis-a-vis other participants.
A. The Control of Resources as a Base of Power
The demands of decision-makers within nation-states against
other participants for control over resources are usually expressed
in the form of demands for "territory". These demands are asserted
through employment of all the instruments of policydiplo-
matic, ideological, economic, and militaryand are made
effective through both agreement and coercion. The resources
demanded include both those that have hitherto been unappro-
priated and those that have been regarded as in the domain of
some other nation-state. One could organize inquiry in terms
of modes of demand and acquisition, ranging from peaceful or
consensual to coercive. Since, however, modes that are consen-
sual in form are often coercive in fact, it is perhaps most con-
venient to make initial categorization in terms of the type of
resources demanded, unappropriated resources and appro-
priated resources.
The importance of demands for the unappropriated resources
of the globe needs no special emphasis in this time of ever
increasing demands for control over the riches of the sea and
sea-bed, the polar regions, and air-space and perhaps, immi-
nently, outer space and celestial bodies
1
. The prescriptions we
have inherited for resolving controversies with respect to such
controversies derive from earlier and different controversies and
are formulated in terms of discovery, occupation, contiguity,
accretion, and long use
2
. They obviously offer but an initial
frame for discussion. Among the more relevant policies would
1. Schachter, Who Owns the Universe, Colliers Magazine (March 22,
1952) 36, 70.
2. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies
25 B.Y.I.L. 311 (1948) offers a careful analysis of some of the earlier
authorities.
appear to be the promotion of peaceful adjustment and minimi-
zation of violence, the promotion of the fullest use compatible
with wise conservation, and a rational appreciation of the
security interests of the different demandants ; and alternatives
have been suggested, beyond simple acquiescence in unilateral
nation-state demands, in terms of internationalization and regio-
nal organization and development. The opportunities of a
policy-oriented inquiry which would relate resources and
demandants to long-term community objectives and recommend
appropriate alternatives are enormous.
The modes by which "appropriated" resources are transferred
from one nation-state to another range, as indicated, through
varying combinations of consent and coercion. Our inherited
world prescriptions about such modescession and lease, con-
quest and annexationare but derivations from more general
prescriptions about the making and enforcement of interna-
tional agreements and the control and regulation of violence.
Inquiry into such particular derivations must be related to the
more general body of prescriptions and procedures, more
appropriately developed in comprehensive consideration of the
"practices" of nation-states.
Other problems requiring investigation, for a more complete
picture of the control of resources, would include the demands
by nation-states for special rights within the territory of others,
such as for so-called "servitudes" and leases, and the many
troublesome questions of boundaries. The recent Anglo-Norwegian
Fisheries Case
x
demonstrates both the continuing importance of
the latter questions and the capacity of international tribunals
on occasion for bold policy-making
2
.
B. The Control of People as a Base of Power
The demands of decision-makers within nation-states for
control over people as a base of power are expressed in many
varied forms. Some demands are externally directed against
decision-makers in other nation-states and other demands are
1. 1951 I.C.J. Reports 116.
2. Waldock, The Anglo-Norwegian Fisheries Case 28 B.Y.I.L. 114 (1951).
directed internally against people within the same nation-state.
The demands directed externally against decision-makers in
other nation-states vary in terms of the people with respect to
whom the demands are made: some demands are that certain
people are "nationals" of the decision-makers' nation-state and,
hence, both subject to the controls of the demanding decision-
makers and free from the controls of decision-makers of other
nation-states; other demands are to impose certain, at least
partial, controls over people who are concededly the nationals
of other nation-states. The demands directed internally against
people within the same nation-state are to subject them to
varying degrees of regimentation for the enhancing of national
power.
The specific practices by which decision-makers within nation-
states assert and seek to make effective such demands range from
control of admission to and movement within their territory
through selective administration of punishments and rewards
with respect to all major values. In highly abstract summary,
we may itemize such practices as follows:
(a) selective exclusions from and admissions to territory and
the control of movement within territory;
(b) the differential admission of people to the various value
processes within the community (e.g. by discriminations
against aliens, the disloyal, the suspected, or others) ;
(c) the application of negative sanctions either to prevent
attacks upon community values (punishment for treason
or espionage or sabotage) or to secure services and con-
forming behavior (conscription, compulsory labor, com-
pulsory indoctrination) ; and
(d) the offering of inducements or rewards, in terms of
increased access to specific values, for securing desired
conduct.
It is no secret that the world prescriptions we have inherited
for regulating such practices by decision-makers within nation-
states are incomplete, vague, contradictory, and primitive in
their relation to the goal values of an international law of human
dignity. Designed largely for the adjustment of minor conflicts
between decision-makers in different nation-states, such pres-
criptions purport to limit the discretion of such decision-
makers on but few matters and on these matters but little.
Broad construction of such concepts as "sovereignty", "indepen-
dence", and "domestic jurisdiction" commonly concedes to
national decision-makers a very wide competence to grant and
deny their "nationality" and to control both nations and aliens.
For detailed inquiry into the relevant world prescriptions and
their application, we suggest an outline organized about "phy-
sical access to territory", "access to power", and "access to
other values". Under "physical access to territory", considera-
tion may be given to the power to exclude, the power to repel,
the prevention of voluntary exit, the power to reclaim, and
control of freedom of movement within territory. Access to
power may be conceived to include both access to citizenship
and access to nationality. The term "citizenship" may be appro-
priately reserved for describing the degree of access to power
internally within the nation-state (access to voting, office-
holding, etc.). The term "nationality" is most conveniently used
to refer to the protection given, and the obligation claimed, by
one nation-state with respect to an individual
1
. Under the
heading "nationality", consideration may be given to the power
of a nation-state to confer or impose nationality, the power of
a nation-state to withdraw nationality, the individual right of
voluntary expatriation, problems of multiple nationality, and
problems of statelessness. Under the heading "values other than
power", the high degree of control permitted over nationals
(limited only by humanitarian intervention, occasional agree-
ments, and the slowly expanding prescriptions about human
rights) may be contrasted with the lesser controls permitted
over "aliens", who receive a measure of protection from tradi-
tional doctrines about the responsibility of states.
Still more comprehensive inquiry would add a survey of
the internal prescriptions and practices by which the decision-
makers within nation states actually exercise the broad com-
1. Koessler, "Subject", "Citizen", "National" and "Permanent Aller
giance", 56 Yale L.J. 58 (1946).
petence conceded to them by world prescriptions. Such a
survey might be conducted in terms of substantially the same
outline we have indicated for the study of world prescriptions.
The policies here at stake for world prescription and regu-
lation obviously involve in deepest conflict peoples' long term
demands for individual human rights and freedom and their
immediate demands for security against external aggression.
So long as peoples' expectations were of an increasingly peaceful
world community, the dominant projection of demands was
for, and the long-term trend was toward, the utmost volun-
tarism in affiliation and the freest circulation of peoples, along
with the free circulation of capital, goods, and ideas. The
human rights program in the United Nations is but the most
recent expression of this long term trend in policy preference.
Today, however, when expectations of imminent and compre-
hensive violence have largely replaced the former expectations
of a peaceful world community, diametrically opposite demands
and policies have begun to emerge in all parts of the world and
decision-makers within nation-states have begun to impose more
and more restrictions upon freedom of affiliation and circulation
and to make increasing use of deprivations and negative
sanctions to secure acceptance of ideology and conforming
behavior. It is not to be suggested that the resolution of this
conflict in an international law of human dignity will be
easily attained.
C. Institutions as a Base of Power
The power of a nation-state obviously depends not only upon
the resources and raw man-power at its disposal, but also upon
the efficiency and morale (invulnerability to divisive outside
forces, flexibility, etc.) it achieves in its internal social order and
upon the external arrangements, for increasing both its freedom
of decision and its positive support from other participants, it
secures and maintains.
It is commonplace knowledge that decision-makers within
nation-states demand a very wide freedom of decision in esta-
blishing and managing their internal social order and that world
prescription, under such doctrines as "sovereignty", "indepen-
dence", "equality", "non-intervention", and so on, largely
concedes to them this wide freedom of decision. Relevant
inquiry might survey the more important of the internal prac-
tices of nation-states by which values are shaped and shared and
consider whether, in the contemporary, interdependent world,
the broad freedom that world prescription has traditionally
permitted nation-state decision-makers is in fact compatible
with the achievement of an international law of human dignity.
The external arrangements that nation-state decision-makers
seek for increasing their freedom of decision and their positive
support from other participants include both alliances among
formal equals and formally established relationships of varying
degrees of dependency. Here, once again, realistic description
requires the maintaining of a clear distinction between formal
authority, legal arrangements in terms of independence, alliance,
and dependence, and eifective control, the relationships
of independence, alliance, and dependence in fact. In today's
bi-polar world no nation-state can have complete freedom of
decision in fact; even principal contenders are caught in the
grip of the world-wide interdependences that condition their
every calculation and action and lesser contenders must group
themselves around principal contenders in varying degrees of
mutual dependency. Arrangements in terms of formal au hority
must be interpreted always with consciousness of these con-
stantly changing interrelationships in eifective power.
Comprehensive inquiry would cover both the process of
alliance, disalliance, and re-alliance, and the role that world
prescriptions play in such process, and the process of establishing
and maintaining dependent communities, including both
dependences created by arrangements between the dominating
nation-state and the dependent community and those created
through international agreement, as for neutralization or in the
mandate system of the League of Nations or in the trusteeship
system of the United Nations.
I V. T H E PRACTI CES OF NATI ON- STATES IN SHAPI NG AND
SHARING POWER
It is the cause of some confusion that nation-states are
not only the principal actors in the world arena whose acts
require regulation but also the principal agents of the world
community for achieving such regulation. Decision-makers
within nation-states are both continually engaging in various
strategies and tactics with reference to each other in arenas of
both formal authority and effective control, with varying degrees
of reliance upon persuasion and coercion, and also continually
formulating, prescribing, and applying legal policies for the
regulation of such strategies and tactics. When it is recalled that
reference to custom is one mode by which decision-makers
formulate policy prescriptions, these two sets of practices, or
roles, may be seen to merge or overlap. For purposes of analysis
and inquiry it may, however, aid clarity to consider each role
separately.
It has already been suggested that inquiry into the facts
about the strategies and tactics by which nation-states engage
each other in varying arenas may be conveniently organized
about the four-fold classification of practices as diplomatic,
ideological, economic, and military, and brief indication has
been made of the general directions that investigation might
take under each of these headings. The most comprehensive
inquiry would survey how decision-makers in nation-states
employ all these practices, relying now upon persuasion and now
upon coercion and again upon varying combinations of the two,
in a continual process of balancing power among themselves
for securing and maintaining all national objectives, and such
inquiry might be pursued in any detail necessary to the clarifi-
cation of issues of legal policy
1
.
The two principal modes by which nation-states prescribe and
apply policies for the regulation of their own conduct are com-
monly categorized in terms of custom and agreement. For
1. Strausz-Hupe and Possony, International Relations (1950) illustrates
the type of relevant inquiry.
detailed inquiry into each of these two modes we suggest an
appropriate telescoping of the seven policy functionsintelli-
gence, recommending, prescribing, invoking, applying, apprais-
ing and terminatingwhich were recommended above. As
between the decision-makers of nation-states, some of these
functions are performed not at all or at least most primitively
and others are performed so secretly that inquiry is fruitless.
Hence we suggest present emphasis only upon the prescribing,
the applying, and the terminating functions.
With respect to the mode of policy-making and application
by reference to custom, even the prescriptive, applying, and
terminating functions, may be observed to merge in a single
process in which decision-makers simultaneously appeal to past
usage for prescription, and apply the prescription they formulate,
and perhaps even terminate the authority of prescriptions
invoked from other usage. Comprehensive inquiry would-
embrace the usual questions of what nation-state decision
makers have invoked, are likely to invoke, and should invoke,
what past usages, by whom, over what period of time, and
attended by what subjectivities about "obligatory" character,
for justification of what decisions about what controversies and
as between what participants. It should perhaps be recalled
that authoritative prescriptions first projected by reference to
custom may later be incorporated in agreements, applied
through agreements, and terminated by agreements
1
.
With respect to the formulation and application of prescrip-
tion by the mode of nation-state agreements, emphasis upon
distinctions between the prescribing, applying, and terminating
functions is, however, indispensable to the clarification of rele-
vant policy issues. The organization of studies we here suggest
proceeds, accordingly, under the headings of The Prescription
of International Policies by Agreements between Nation-States,
The Application of the Policies in Agreements between Nation-
States, and The Termination of Policies in Agreements between
1. Kopelmanas, Custom as a Means of Creating International Law
18 B.Y.I.L. 127 (1937); Finch, The Sources of Modern International Law
(1937) Ch. IV.
Nation-States. Brief illustration may be offered of appropriate
inquiry under each of these headings.
A. The Prescription of International Policies in Agreements between
Nation-States.
It is sometimes rather futilely debated what agreements
between nation-states are "law-making" and what are not.
From our perspective all agreements between nation-states
project policies into the future and the number of participants
affected by such projections is a matter, not for dogmatic
conclusion from implicit assumptions about the nature of law
or the nature of agreement, but rather for empirical inquiry or
for rational decision, taking into account all values at stake.
Thus, agreements between nation-states may be observed to
perform in the world arena all the roles customarily performed
within nation-states by constitutional conventions, legislative
assemblies, and public and private contracts. Their constitutive
role may be observed in the establishment of fundamental
charters for international organizations, such as for the League
of Nations, the United Nations, and the great host of regional
and functional organizations; their legislative role, in the
projection into the future for varying numbers of nation-states
of broad policy prescriptions, such as with respect to the regula-
tion of the conduct of war or safety at sea; and their "contract"
role, in agreements between two or more nation-states for the
division of existing values, such as is involved in the transfer of
territory or the demarcation of a boundary line
1
. Even the
latter agreements, however, project a pattern of rights and
duties into the future.
Detailed investigation into the processes by which nation-
states prescribe policies by agreement might begin with con-
sideration of the facilities they make available for themselves for
diplomatic negotiation, including the doctrines and practices of
diplomatic immunities, and proceed under such headings
1: McNair, The Functions and Differing Legal Character of Treaties,
11 B.Y.I.L. 100 (1930) discusses some possible classifications of international
agreements.
as Competency to Make Agreements between Nation-States,
The Formalities of Consent, and Consistency with Basic Inter-
national Objectives. With respect to diplomatic immunities,
it might be queried whether the contemporary justification
in terms of insuring free channels of communication between
nation-states is adequate replacement of the older notions of
"exterritoriality" and "representative character"; rational
policy might be concerned not only for communication and
freedom of communications but also for efficiency in the use of
peaceful procedures for the promotion of all values. Under the
heading Competency to Make Agreements between Nation-
States, consideration might be given to both international
prescriptions and practices and internal, national prescriptions
and practices and some evaluation attempted of the opposing
views about whether international prescriptions or national
constitutions have been, are likely to be, or ought to be final
authority for determining competence. When such evaluation is
attempted it might be borne in mind that when promises from
one nation-state create reasonable expectations of performance,
in other parties, such other parties are likely to resort to all
sanctions available to them to secure performance, and that
international tribunals are not likely to ignore such expectations
and possible invocation of sanctions. Under The Formalities of
Consent, inquiry may be made into the forms in which agree-
ments may be embodied, the
0
authentication of documents, and
the expression of commitment, including under the latter:
without approval by higher authority, by reference to higher
authority, without having participated in negotiations (acces-
sion) , reservations to commitment, time when obligation becomes
effective, and registration
1
. Under Consistency with Basic
International Objectives, one might consider conflicting prior
commitments, the genuineness of consent (duress, mutual error,
fraud), and legitimacy of objectives.
1. Parry, Some Recent Developments in the Making of Multi-Partite
Treaties, 36 Tr. Grotius Soc. 149 (1952).
I. 1953. 14
B. The Application of the Policies in Agreements between Nation-
States
Detailed investigation into the practices by which nation-
states apply the policies prescribed in their agreements to them-
selves may be organized under such headings as The Scope of
Application of Agreements between Nation-States, The Inter-
pretation of International Agreements, The Adjudication of
Controversies about Agreements, and Enforcement of Inter-
national Agreements. The first heading, that of The Scope of
Application of Agreements between Nation-States, is designed
to raise the question of the parties against whom agreements
may be enforced. Appropriate sub-headings include The Obliga-
tion of Nation-State to Nation-State, The Application of Agreed
Policies within Nation-States, and the Effects of Agreements
upon Nation-States not Party to the Agreements. Under the
first of these sub-headings may be considered the obligation that
is asserted by authorized nation-state officials against their
opposite numbers in other nation-states and which is commonly
justified by the maxim pacta sunt servanda. Little attention need,
however, be given to the great debate about the "juridical
nature" of this justification; the important facts are that the
decision-makers of nation-states can achieve little stability in
their power and other arrangements if they do not in consider-
able measure honor the expectation^ they create by their agree-
ments and that the structure of effective controls in the world
arena is such that some considerable measure in the honoring
of such agreements is in fact secured. Under the second sub-
heading, consideration may be given to the obligations that
nation-state decision-makers may seek to impose, not simply
upon themselves and their opposite numbers, but also upon
individuals and groups within their nation-states to comply
with or fulfil the policies prescribed in agreements. In some
nation-states, internal constitutions explicitly provide that
agreements, concluded by appropriate officials, which are
designed to have this effect become immediately the "law of
the land" without further legislative provision, and in other
nation-states constitutional provision is made for further internal
legislative prescription for achieving the same effect. Under
the third sub-heading, attention may be given to the growing
trend in agreements between nation-states to seek effects upon
nation states not party to the agreement, both in the conferring
of benefits and the imposition of burdens. With respect to the
Interpretation of International Agreements, consideration may
be given both to appropriate authorities for interpretation,
including the parties themselves and international tribunals,
and to the relevant criteria for interpretation. The problems
involved in achieving relevant criteria have been extensively indi-
cated in Chapter 1. Inquiry into The Adjudication of Contro-
versies about agreements may raise all the problems tradition-
ally covered under the heading "peaceful procedures", from
negotiation through good offices, conciliation, mediation, and
arbitration to judicial settlement; and consideration of the
Enforcement of International agreements subsumes the whole
problem of sanctions, briefly commented upon in Chapter I I .
C. The Termination of Policies in Agreements between Nation-States
For systematic inquiry into the prescriptions and practices
by which the decision-makers of nation-states terminate the
policies embodied in agreements, we recommend an organiza-
tion that distinguishes between termination which is based on
mutual consent and termination which, without requiring the
consent of all parties, is based upon grounds of changed condi-
tions. Under the heading of Termination by Mut ual Consent,
consideration might be given to termination (i) in accordance
with the terms of the original agreement (provisions for denun-
ciation, resolutory conditions, the lapse of specified time, the
performance of specified purposes), (ii) by new agreement
(recission, substitution), and (iii) by renunciation of claims by
the party benefited. Under the heading of Termination upon
the Ground of Changed Conditions, consideration might be
extended further to the general theory of rebus sic stantibus and
to the relevance of certain specific changes in conditions, such
as the severance of diplomatic relations, changes in the extent
of territory, changes in the governmental institutions of one of
the parties, the extinction of a nation-state party to the agree-
ment, non-performance and violations by other parties, and
war. Relevant inquiry might also include termination by nation-
states not party to the agreement and collective procedures for
revision.
Some commentators have sought to confine methods of ter-
minating agreements entirely to those based on consent, and
many commentators have deplored too easy acceptance of
practices based on unilateral termination
1
. It is believed,
however, that there is an element of unrealism in these attitudes,
both in terms of description of the past practices of nation-state
decision-makers and in terms of the rational clarification of
policy preference. The over-riding policy problem is that of
maintaining an appropriate balance between the honoring of
the reasonable expectations of the parties to agreements (and
thus securing a reasonable stability in the relations between
participants in the world power process) and the permitting or
encouraging of a continual, progressive reformulation of policies
to keep them in accord with the changing perspective and
conditions of the parties. In the absence of appropriate specialized
institutions in the world arena for declaring new and terminat-
ing old policies, a cautious application of the clausula rebus sic
stantibus, restrained in its use by the ordinary sanctions of
reciprocity and retaliation, might seem to serve a useful purpose.
V. THE EFFECTS NATION-STATES ACHIEVE IN CONTROL OVER
VALUE CHANGES
We turn now to the promised disproportionate consideration
of "effects" and will give attention to both particular effects
("jurisdiction") and structural effects ("state succession"). In
the consideration of particular effects, our primary concern will
be to clarify the much confused interrelations of "public" and
"private" international law.
1. The differing views are collected in Harvard Research in International
Law, The Law of Treaties (1935); Hill, The Doctrine of Rebus Sic Stantibus
in International Law (1934).
A. Particular Effects: The Doctrines and Practices of Jurisdiction
In subdivision III, above, we considered how a nation-state
acquires the bases of formal and effective power and the world
prescriptions with respect to such acquisition. There we were
concerned with the methods by which nation-states obtain more
or less continuing control over people and resources for general
purposes and with the world prescriptionsdoctrines with
respect to "nationality", acquisition of territory, and so onby
which these methods are regulated and controls stabilized. Our
concern here is for the practices by which nation-states, operat-
ing within the context of such continuing arrangements with
respect to the bases of power, actually exercise their power to
obtain particular effects with respect to particular value changes
and for the world prescriptions by which their exercise of power
is regulated. In more technical language the problems are those
of the "jurisdiction" f nation-states, of "choice-of-law" in
controversies involving "foreign elements", and of th obliga-
tion of one government to honor the "acts of state" of another
government. In all these problems, however, the central issue
is one and the same: whose policy is to controlthat of the
nation-state of the decision-maker or that of some other nation-
state ?
1
In specific controversies some one nation-state has
effective control over persons or resources which it can use as a
base for power and the issue is whether it should exercise its
power to make its own policy for the events under review, or
whether, out of deference to its own long term interests or the
interests of other nation-states or to a regional or world com-
munity interest, it should dispose of the controversy either by
refusing to exercise its power or by applying policy formulated
by some other nation-state. The most general question may be
reformulated as that of "over what events (value changes) a
nation-state will exercise its power to effect its own policies and
with respect to what events will it limit its exercise of power in
1. One of the best statements of the issue is Neuner, Policy Considerations
in the Conflict of Laws 20 Canadian Bar Rev. 479 (1942). See also Harper,
Policy Bases of the Conflict of Laws, 56 Yale L.J. 1155 (1947); Cheatham
and Reese, Choice of the Applicable Law, 52 Col.L.Rev. 959 (1952).
expectation of a similar reciprocity in self-restraint by decision-
makers in other nation-states"
1
. (When the decision-maker is
an international authority, the question is of course what limita-
tions it may impose upon nation-states.)
Though our principal emphasis here must necessarily be upon
specific decisions about particular value changes in particular
contexts, it should not be forgotten that the aggregate flow of
these decisions continuously and vitally affects the distribution
of all values among all participants in the world power process.
It is the aggregate flow of these decisions which both marks out
the competence (for prescribing and applying certain policies)
of the different nation-states of the world as among themselves
and determines in large measure the interrelations of nation-
states and other participants, such as individuals and private
associations of all kinds. The cumulative impact of all these
decisions is in fact continuously working changes in the com-
position and roles of various participants and, hence, in the
structuring of the whole world arena. For this reason, one may
question the assumption, common among writers on Private
International Law, that doctrines about "applicable law" either
are being prescribed, or can rationally be prescribed, without
regard to how specific cases will be decided.
The events (value changes) with respect to which nation-
states seek to prescribe and apply policy may include inter-
actions of the greatest variety. The participants in the events,
as well as the parties to subsequent controversies, may include
government officials, private individuals, nationals of different
nation-states, corporate and non-corporate bodies, and military
and civilian personnel. The values at stake for the participants
may be any of the basic values : power, respect, enlightenment,
wealth, well-being, skill, rectitude, and affection. The value
changes contested may have taken place by agreement or
deprivation, volition or coercion (by "cont ract " or by "t ort ",
"crime", "expropriation", etc.). The loci of significant events
1. McDougal, The Comparative Study of Law for Policy Purposes:
Value Clarification as an Instrument of Democratic World Order, 1 Am.
J.Comp. L. 24, 41 (1952) and 61 Yale L.J. 915, 931 (1952).
in the value changes contested may have been within the
territory of the decision-maker, within the territory of other
nation-states or on the high seas. The territorial range of the
effects of the significant events may extend to one or several
states and may or may not include the state of the decision-
maker. Resources affected may vary from land to ships or other
movables and be variously located. Nation-states other than
that of the decision-maker may or may not have been engaged
in "acts of state" with respect to the contested value change,
and where such acts of state are asserted, they may be legislative,
executive, or judicial. The nation-state whose prior "acts of
state" are asserted may or may not have been recognized by
the nation-state of the decision-maker.
The prescriptions which decision-makers in the world com-
munity have developed for resolving controversies about these
complex events include many of the doctrines of public inter-
national law and the whole of the doctrines of what is com-
monly called private international law or conflict of laws. The
doctrines by tradition assigned to public international lawsuch
as with respect to territorial jurisdictions and jurisdiction over
nationals, jurisdiction over marginal seas, vessels, air-space and
the high seas ; the immunities of foreign states and their instru-
mentalities; the honoring of "acts of states" of other govern-
ments; jurisdiction over war crimes and piracy; extradition,
and so onare widely accepted among the nation-states of the
world and for remedying any departures from these doctrines
by the decision-makers of any one nation-state the other
nation-states may have recourse to all the ordinary sanctions
of international law. The really effective sanctions for these
doctrines are not difficult to discern: they reside in certain
reciprocities in self-restraint among the decision-makers in
nation-statesin their common expectations that an aggregate
flow of cases will be handled in certain "agreed" ways and that
the coercion applied in certain cases will be limited. The indu-
cement to these reciprocities is a certain stability for all elites
in making power and other value calculations. The penalty for
any violation of the reciprocities is swift reprisal.
It has unfortunately become the fashion among writers on
private international law to deny any connection between this
subject-matter and world prescriptions and to decry the name
"international"
1
. They achieve this anachronistic, nationalist
attitude both by adopting limited conceptions of law in general,
of international law in particular, and of the sanctions for law
and by focussing their attention principally upon the problems
with respect to which there is least agreement about appro-
priate prescriptions. Thus, even in the latest edition of Dicey's
treatise it is insisted that private international law is purely
municipal in origin and sanction and explanation is offered as
follows :
"The obvious objection to this use of the term ' international' is that it
is a very different employment of the word from its normal meaning
in the regular phrase ' international law' , which denotes the species of
law governing the relations between nations. Many attempts have been
made to link up these two departments of law, either by establishing
an international division of competences based upon territoriality or
upon the division of sovereignty over land at home and nationals at
home or abroad, but all these attempts have failed.
The English courts, with whose action we are alone concerned, do
not adopt this mode of considering questions regarding the choice of
law and competence of tribunals. They consider laws not from the point
of view of the sovereign authority whence they emanate, but rather in
their relation to the people to whom and the matters to which they
apply, and so far as any definite theory can be said to guide their action,
it is based on the desire to apply to any given set of circumstances that
legal system which will afford results most in agreement with their
views of convenience, equity, and public policy. For English courts,
therefore, our subject is without any vital connection with international
law as ordinarily understood, and accordingly it is better not give it
a name which inevitably suggests such a connection"
2
.
Similarly, Professor Beale wrote :
"I t is sometimes urged that the doctrines of the Conflict of Laws have
an international sanction, binding to some extent upon the various
states. This view is not today seriously held and cannot be sustained.
It has never been adopted by any common law authority"
3
.
So also Judge Goodrich in his latest edition :
"No law exists as such except the law of the land. Principles of conflict
of laws are ' laws' in the true sense and involve no departure from the
1 Excellent statement of an earlier "international" perspective may be
found in Savigny, Conflict of Laws (2nd ed. Guthrie Tr. 1880) S. 348.
2. Dicey, Conflict of Laws (6th ed. Morris, 1949) 7, 8.
3. Beale, Conflict of Laws (1935) S. 5. 1.
theory that the territorial law is supreme. But it is a principle of civilized
law that a court will not resolve a dispute before it which involves foreign
elements as if it were deciding a case all of the facts of which occurred
in its own state"
1
.
The common assumptions about the nature of law and the
assignment of a very limited role to world prescription were
made explicit by Professor Cook:
"We begin with the assumption that an alleged rule of 'international
law' can be said to 'exist' as 'law' only if there is a general consensus
among civilized nations as to the supposed rule. It is also assumed that
whether such a consensus exists can be determined only by observation.
The present writer's observation has convinced him that many, if not
all, of the assertions made by Anglo-American writers concerning limita-
tion on the legislative jurisdiction of sovereign states imposed by interna-
tional law are quite unwarranted"
a
.
Professor Nussbaum summarizes:
"Today, the 'nationalist' conception of Private International Law can
be considered dominant. It is the only hypothesis conforming to the
facts. There are just as many 'Private International Laws' as there are
legal systems. There is not even a supplementary universal Private
International Law in the limited sense in which there is an ascertainable
Law of Nations; consonance of the various conflicts rules is too bare
and too uncertain. Hence, references to 'Private International Law,'
if something other than conflict norms are meant, are of no avail in
legal transactions"
3
.
It needs no special emphasis here that these attitudes ignore
that decision-makers upon problems of private international
law act within the context of a world power process and, hence,
t hat their decisions are affected by all the variables t hat affect
other decisions within this context. These variables include
not only precise descriptive formulations about how previous
decision-makers have responded to similar or allegedly similar
controversies but also broad formulations of policies which
project alternatives into the future and which take into account,
in varying degree with respect to varying problems, perspectives
and interests which transcend the boundaries of any particular
nation-state. The attempt arbitrarily to separate considerations
of the formal power and competence of nation-states from
considerations of justice and equity for individuals in prescribing
1. Goodrich, Handbook of the Conflict of Laws (3d ed. 1949) 14.
2. Cook, The Logical and Legal Bases of the Conflict of Laws (1949) 72.
3. Nussbaum, Principles of Private International Law (1943) 42.
and applying policy in situations in which both sets of considera-
tions are hopelessly commingled cannot succeed in the world of
fact and can only express Utopian preference; it is but another
tragic consequence of the outmoded conception of public inter-
national law as a body of rules applying only to nation-states.
The suggestion that there are no effective sanctions for departure
from international policies on problems of "private" interna-
tional law fails to recognize that the important sanctions even
for "public" international law reside in the reciprocities and
counter-reciprocities and possible reprisals and counter-reprisals,
indicated above, and that these sanctions are as available for
one policy as for another when interest is sufficiently great.
When controversies involve events and effects transcending the
boundaries of any single nation-state and considerations of the
respective power of different nation-states as well as of the rights
or interests of individuals or other participants, and when
decision-makers resolving these controversies prescribe and
apply policies which take into account perspectives and interests
transcending any particular nation-state, it can serve little
rational purpose either to label as "merely municipal" the "law"
which such decision-makers create and apply or even to dispute
seriously whether it is "public" or "private" international law.
All the decisions and all the prescriptions are relevant to one
who seeks understanding of the world power process in which
he lives
1
.
It may, however, be agreed that, whatever the name one may
apply to them, the prescriptions by which the nation-states of
the world mark out their competence over particular value
changes are most obscurely formulated. The authoritative books
and opinions of decision-makers present a veritable labyrinth
of doctrines formulated in terms of highest level abstractions
such as "jurisdiction", "territoriality", "nationality", "domi-
cile", "act of state", "public order", and the like, and of reified
derivations from "contract", "tort", "crime", and so on. These
1. A more technical and detailed documentation of the same general
point is offered by Stevenson, The Relationship of Private International
Law to Public International Law, 52 Col. L. Rev. 561 (1952).
are all terms of pre-eminent normative-ambiguitymaking at
one and the same time a confused reference to the facts to which
decision-makers are responding, to relevant policies, and to the
responses which they are supposed to predict or justifyand
frequently enable a decision-maker to conceal both from him-
self and others, in a maze of vague and contradictory verbaliza-
tions, the important policies that are in fact at stake and perhaps
even the variables that in fact affect his decision.
The measures t hat are needed to bring order into this intel-
lectual chaos can be briefly indicated. They are the same whether
one's objective is to obtain careful scientific description of prior
decisions and the variables that have affected t hem, or to clarify
the policies that are at stake for the different parties to the
controversies and to invent more rational doctrines and prac-
tices. What is needed first is a careful categorization of the events
to which decision-makers are responding in terms of all the
variables indicated above: who the parties are, what values are
primarily and secondarily involved in the changes, whether the
contested changes were by agreement or deprivation, the loci
of the significant events and the range of effects, the "acts of
st at e" that have already occurred in various nation-states, the
presence or absence of "recognition", and so on. It is obvious
t hat minute variations in these events may affect both relevant
policies for all interested participants and the actual responses
of decision-makers. With the events so carefully categorized,
an investigator could clarify in some detail the policies at stake
for the parties, for the nation-state of the decision-maker, for
other nation-states, and for the world community. He could
then observe what responses different decision-makers have in
fact made through time to the events so categorized and what
variablesincluding not only technical doctrines but also policy
formulations and other presdispositional and environmental
factors in so far as accessibleappear to have affected the
responses. Finally, the investigator might compare the responses
observed with his clarified policies, note the degree of correspon-
dence, and, if discrepancies appear, make recommendation of
alternatives.
It does not escape us that study and measures so comprehen-
sive would require complete merger of the present domains of
public and private international law. Since both tradition and
available resources may dictate continued emphasis upon the
alleged distinctions between the two domains, a less ambitious
and compromise alternative for organizing studies may be
proposed and directed primarily to specialists in public inter-
national law.
This alternative requires isolation from the comprehensive
flow of events indicated above, of certain of the more important
problems with respect to which there has been the widest degree
of acceptance of international prescription. For inquiry into
doctrines and practices about such problems, we suggest an
organization of studies in terms of, first, effects obtainable within
the territory of the nation-state of the decision-maker and,
secondly, effects obtainable outside the territory of the nation-
state of the decision-maker. Within this over-all organization,
emphasis in subcategorization may be placed upon both the
loci where events take place and the possible range of effects of
such events. It is recognized both that the characterization of
what constitutes an "event" is somewhat arbitrary (since there
is in fact a continuous sequence of events transcending nation-
state boundaries) and that estimations of the probable range of
the impacts of events are often hazardous, sometimes involving
preferential as well as factual judgment. The events to which
decision-makers must respond are, however, just as fuzzy and
imprecise in their boundaries and nothing is to be gained by
ovr-simplification. Some of the deepest predispositions of con-
temporary decision-makers are, furthermore, organized about
concepts of "territoriality" and an organization in these terms
may help to highlight the more significant variables that affect
decision. Though the most rational considerations for a decision-
maker, and the groups with which he identifies, include not
merely the place where an event occurs and the particular
people affected but also the total effects of the events upon all
the values of the groups represented, in a world largely domin-
ated by territorially organized bodies politic emphasis upon a
territorial allocation of competence may even embody a certain
practical wisdom in policy. It has been suggested that com-
promises in terms of territorial factors require the least sacrifices
by those who must compromise and restrain their effective
power
1
.
The details of the organization of inquiry we propose may
be indicated most economically in outline form, as follows:
I. Effects obtainable by a nation-state within its own territory.
A. Events Occurring Principally Within the Nation-State
of the Decision-Maker
1. The General Principle of Territoriality
2. Internal Waters
3. The Territorial Sea
4. Airspace
B. Events Occurring outside But Having Important Effects
Inside the State of the Decision-Maker
C. Events Occurring Within and Having Effects Within
Two or More States
D. Events Occurring and Having Important Effects Princi-
pally Within a State Other than That of Decision-
Maker
1. The General Theory of Acts of State
2. Legislative Acts of State
3. Judicial Acts of State
4. Executive Acts of State
5. Policy Limits on the Acts of State Doctrine
E. The Traditional Immunities of Other Nation-States and
Their Instrumentalities
1. Immunities of Foreign States
2. Immunities of Head of Foreign State
3. Public Vessels
(a) Vessels not Engaging in Trade
(b) Vessels Engaging in Trade
4. Immunity of Other Property of Foreign States
5. State-Controlled Corporations
1. Niboyet, Territory and Universal Recognition of Rules of Conflict of
Laws, 65 Harv.L.Rev. 582(1952).
222, M. S. McDOUGALINTERN. LAW, POWER AND POLICY (90)
I I . Effects Obt ainable by a Nation-State Outside its own
Territory
A. Effects Obtainable with respect to Nationals
1. Individuals
2. Vessels Having National Character
(a) Criteria for Determining the Nationality of
Vessels
(b) Jurisdiction over National Vessels
3. Aircraft Having National Character
(a) Criteria for Determining the Nationality of
Aircraft
(b) Jurisdiction over National Aircraft
4. Corporations Having National Character
(a) Criteria for Determining the National Character
of Corporations
(b) Jurisdiction over Corporations of National
Character
B. Effects Obtainable Upon the High Seas
1. The General Principle of Freedom of the Seas
2. Jurisdiction in Contiguous Areas
3. The Right of Hot Pursuit
4. The Regulation of Traffic on the High Seas
C. Effects Obt ainable by a Nation-State within the Terri-
tory of Another Nation-State
1. Access to Courts of Another State
2. The Practice of Extradition
3. Jurisdiction over Armed Forces in Friendly Country
4. Territory Leased from other Nation-States
5. Territory under Military Occupation
D. Claims to Universal Jurisdiction over Certain Crimes
1. Offences against the Security of the State
2. Piracy
3. War Crimes
4. Ot her Claims to Universality of Jurisdiction
E. Effects Obtainable by Governments in Exile
B. Structural Effects: The Doctrines of Governmental and State
Succession
It has already been observed that the identity and composi-
tion of the territorially organized bodies politic interacting in the
world arena are in process of continuous change and that such
change is effected by methods which range over the whole
continuum between the two polar extremes of consent and
coercion. Sometimes in minimum degree this change may
involve merely a succession of authoritative decision-makers, in
accordance with constitutional processes, within the confines of
a single body politic, but at other times in maximum degree it
may extend to the radical restructuring of both formal authority
and effective control across the boundaries of several or many
preexisting bodies politic. A more complete itemization of the
types of relevant change might include:
(1) changes in constitutional and governmental structures;
(2) changes in the identity of governors (officials) and of
rulers (controllers in fact);
(3) changes in control over population;
(4) changes in control over territory and other resources ; and
(5) changes in relationships of dependence and independence
with respect to external decision-makers.
Among the consequences of these continuous changes in the
identity and composition of bodies politic are the scarcely less
continuous demands asserted by the decision-makers of the
various bodies politic, both new and old, for the reassessment of
commitments made prior to changes which they regard as
important. Decision-makers newly come to power, whether in
a new or old body politic, may, on the one hand, deny responsi-
bility for the burdens of arrangements made by their predeces-
sors, but, on the other hand, claim the benefits of such arrange-
ments. Conversely, decision-makers in other bodies politic may
seek both to impose upon such new decision-makers responsi-
bility for the obligations of their predecessors and to deprive
them of the benefits of prior arrangements. The possible permu-
tations in conflicting demands are obvious and occur all too
often in fact.
The policies at stake in these controversies may, from a world
community perspective, be seen to range between two extremes.
The one extreme is embodied in the common demand of peo-
ples for stability in their affairs, for a stability which will permit
economic calculation of power and other value effects and
which will encourage the flow of people, capital, and skill across
nation-state boundaries in the expectation that commitments
will be honored in reasonable measure without too much
disruption from power conflicts internal to bodies politic. The
other extreme is embodied in the equally common demand of
peoples for the change and progressive development of policy
to correspond with changed conditions and is premised upon
the assumption t hat major changes in the structures and pro-
cesses of-formal authority and effective control within bodies
politic are such changes in condition as to require reformulation
of external commitment. The important problem is how world
prescriptions can be formulated and applied which will permit
the rational balancing in particular contexts of these two,
apparently opposed but on different occasions in different degree
equally meritorious, policies.
This difficult problem in legal policy traditional international
law doctrine has sought to solve by a simple dichotomous
distinction between "succession of governments" and "succes-
sion of states". When changes in a body politic are found to be
changes of "government " only, obligations with respect to other
bodies politic are commonly declared to remain unchanged.
When, however, changes are found to amount, beyond mere
change in government, to a change in "t he state", though there
is a great variety of decision on specific problems, obligations of
various kinds are frequently declared to be terminated or
terminable
1
.
It should need no elaborate demonstration that this alle-
gedly factual distinction between changes in "government " and
1. For illustrating cases and references to the literature, see Briggs,
The Law of Nations (2nd ed. 1952) Ch. III.
changes in "the state" is a disguised preferential statement which
assumes the very issue it is supposed to justify. Most traditional
definitions of "state" include "government", and when there
have been substantial changes in the structures and processes of
government, it is only by grace of preference that one may
continue to speak of the "same" state. Conversely, though there
may have been very considerable changes in the interrelation
of decision-makers and bases of power across national-bound-
aries, the rational promotion of the objectives of a free, peaceful
and abundant world community might still demand from new
decision-makers that they honor the expectations created by
their predecessors.
For the simple dichotomy between changes in government
and changes in state, comprehensive and rational inquiry would
substitute detailed investigation of the types and degree of
change that have in fact occurred, of the types of claimants, of
types of obligations and benefits claimed, of the methods by
which change was effected, and of the consequences for the
values of all concerned in honoring or dishonoring the expec-
tations of claimants in contexts so particularly identified.
For investigation of traditional doctrines and practices we
suggest, accordingly, a principal categorization in terms of types
of claims and cross-categorizations in terms of each of the
other relevant variables. Types of claims might be organized
under such headings as:
(A) Claims to People
(Conflicting claims to people as "nationals" of the
claimants)
(B) Succession to Benefits
(State property, agreements, claims for prior depriva-
tions, etc.)
(C) Succession to Burdens
(1) Agreements
(a) Agreements with Nation-States
(b) Agreements with Parties other than Nation-
States
I. 1953. 15
(2) Deprivations.
(Torts, crimes)
(3) Prior Policy Prescriptions
(Demands for the protection of private rights
that prior laws be regarded as continued until
explicitly changed.)
The variables for cross-categorization have perhaps been
sufficiently indicated.
CHAPTER IV
OTHER THAN NATION-STATES
I
T is our purpose in this Chapter to suggest, in a series of
brief outlines, how the general method of analysis we have
proposed may be applied to participants in the world
power process other than nation-states. Without purporting to
attempt more than to pose some of the relevant questions, we
will consider in turn international governmental organizations,
transnational political parties, transnational pressure groups,
transnational private associations, and the individual human
being.
I. INTERNATIONAL GOVERNMENTAL ORGANIZATIONS AS
A. The Identification of the Participant
By international governmental organizations we refer to such
organizations as nation-states establish by agreement among
themselves for the promotion of common purposes. Sometimes
these organizations are general-purpose and are granted a
competence, as in the League of Nations and the United Nations,
which may in measure affect all values. More commonly, of
course, the organization is created for certain very specialized
purposes with respect to certain specific values and its compe-
tence is strictly limited to its purposes. Well-known examples of
such specialized and limited organizations are the Interna-
tional Labor Organization, The Food and Agriculture Organiza-
tion, The International Bank for Reconstruction and
Development, The International Monetary Fund, The World
Health Organization, U. N. E. S. C. O., The Universal
Postal Union, and The International Telecommunications
Union. Sometimes an organization may be created under the
guise of eternity and for more or less permanent purposes,
as in the case of the United Nations, but other organizations are
created for purposes of limited duration and their prompt
expiry is anticipated, as in the cases of the United Nations
Relief and Rehabilitation and the International Refugee
Organization
1
.
It is still seriously debated, even today, whether these
international governmental organizationswith all their varying
purposes, competences, memberships, territorial ranges, and
durationsare themselves sources of independent influence in
the world power process or are rather mere registering devices
for their participant nation-state members
2
. Such organizations
with their internationally responsible bureaucracies and wide
range of interrelated activities would appear, however, to play
a role increasingly distinctive from that of other participants,
and, from the perspective of the analysis we propose, it is easily
observable that they establish and interact in certain specialized
arenas, that they have their own distinctive bases of power, that
they employ their own distinctive practices, and that they
achieve certain specialized effects with respect to other partici-
pants. The precise degree and character of the influence exer-
cised in any given context by any particular organization is, we
suggest, a matter again for empirical investigation and not for
dogmatic assumption
3
.
1. The range of relevant organizations may be noted in Sohn, Cases
and Materials on World Law (1950); Jenks, Coordination in International
Organization: An Introductory Survey, 28 B.Y.I.L. 29 (1951); Hill, Interna-
tional Organization (1952); Leonard, International Organization (1951);
Eagleton, International Government (Rev. ed. 1948); Potter, An Intro-
duction to the Study of International Organization (5th ed. 1948).
2. The varying attitudes may be observed in Sohn, The Impact of the
United Nations on International Law, 46, Proc. Am. Soc. I.L. 104 (1952);
Rothwell, International Organization and Politics, 3 Int. Org. 612 (1949);
Emerson and Claude, The Soviet Union and the United Nations, 6 Int.
Org. 1 (1952).
3. Briggs, New Dimensions in International Law, 46 Am. Pol. Sci. Rev.
677, 681 (1952) writes: "The United Nations may be said to have established
the Republic of Korea as an independent state in 1951, to have assisted as
midwife at the birth of Israel in 1948 and of Indonesia in 1949, and to have
certified the existence as states of Ceylon, Jordan, and Nepal."
(97) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 229
The most comprehensive inquiry would obviously extend to
all international governmental organizations and would consider
both the separate impact of each particular organization and
the aggregate impact of all organizations on other participants.
Many approximations to such comprehensiveness might, how-
ever, yield information of great value in clarification of the basic
policy issues and procedures of an international law of human
dignity *.
B. The Arenas of Interaction of International Governmental Organiza-
tions
The arenas of our special concern with respect to interna-
tional governmental organizations include both the arenas
internal to such organizations, in which their own decision-
making processes occur and their own policies are formulated,
and the arenas external to such organizations in which they
interact with other participants in pursuit of their established
policies. With respect to internal arenas, the most general
question is who gets admitted to participation in the decision-
making processes of the organization. With respect to external
arenas, the corresponding question is to what decision-making
processes outside the organization do representatives of the
organization get admitted.
Under the heading of internal arenas, inquiry might appro-
priately be directed to policy prescriptions and applications
about such problems as membership, representation, with-
drawal, suspension, expulsion, limited participation by non-
members, participation by individuals and organized groups
other than nation-states, the details of access to functional
subdivisions of the organization, and so on. The most meaning-
ful inquiry would of course locate these problems in the context
of the struggle of nation-states for effective control and consider
the varying factors which in varying particular contexts in
fact influence such policy prescriptions and applications. The
1. A superb demonstration of the potentialities of comparative study of
international organizations appears in Jenks, Some Constitutional Problems
of International Organizations, 22 B.Y.I.L. 11 (1945).
230 M. S. McDOUGALINTERN. LAW, POWER AND POLICY 98)
appraisal of prescriptions and procedures might extend beyond
criticism of illusory technicalities about "state", "government",
"representation", "peace-loving", "acceptance of obligation",
and so on, to evaluation of the traditional practice by which
people are represented in organizations by "equal" states in
fact unequal in terms of the people they represent and consider
the feasibility of universal and perhaps even compulsory mem-
bership in appropriate types of organization
1
.
Under the heading external arenas, inquiry may be directed
with respect to any particular international governmental
organization both to the access it obtains to arenas of formal
authority of other such organizations and of nation states and
to its interactions with other participants in arenas of effective
control, which latter may, as in "police actions", include
violence and expectations of violence.
C. The Bases of Power of International Governmental Organizations
The bases of power of an international governmental organiza-
tion include both values which are continuously at the disposal
of the organization itself and values which member nation-
states may on occasion be willing to put at the disposal of the
organization for the achievement of certain specified purposes.
The values at the more or less continuing disposal of an inter-
national governmental organization as bases of power may, in
principle and in fact, include any one or all of the eight major
values we have categorized: power, respect, enlightenment,
wealth, well-being, skill, rectitude, and loyalties.
For most international governmental organizations the most
important base of power is obviously formal power itself, the
competence in terms of formal authority granted by the member
nation-states to the organization. The formal authority so
granted varies greatly of course from organization to organiza-
tions in terms of the range of values that may be affected by
decisions of the organization, of the degree of authority that
may be exercised in making decision, and of the domain of
1. Note the proposals in Clark and Sohn, Peace Through Disarmament
and Charter Revision (Preliminary Print, July 1953).
people who may be affected by decision. With the broad com-
petence granted to the United Nations which may be exercised
to affect all values, which embraces a very high degree of autho-
rity in meeting threats to the peace, breaches of the peace and
acts of aggression, and which is authorized to extend even to
non-member nation-states, may be contrasted the lesser com-
petences granted to such organizations as the International
Monetary Fund and other specialized agencies. Whatever the
measure and degree of competence granted by member nation-
states to any particular organization, however, that measure
and degree, with attendant sanctions, become a part of the
expectations of all participants in the world power process and
such expectations may be invoked by the organizations so
established as a base of power.
Certain particular grants of formal authority from member
nation-states to international governmental organizations re-
quire special emphasis because of their unique importance as
bases of power. These are the grants of legal capacity, designed
to give the organization access to and protection within the
arenas of formal authority of the member and other nation-
states, and of certain privileges and immunities to specified
personnel, designed to secure the independent and uncoerced
performance of their official duties. These grants of capacity
and of privileges and immunities vary greatly from organiza-
tion to organization and are extended by many different
methods in fundamental charters, in agreements between orga-
nizations and member states, and in national legislation. The
opportunity for comparative study of prescriptions and prac-
tices, conditions and effects, is correspondingly great
1
.
Several values other than formal power are, further, commonly
at the disposal of most international governmental organiza-
tions. Perhaps the most important of these is enlightenment.
International governmental organizations may build upon
enlightenment as a base of power both by serving as fora for
1. See Crosswell, Protection of International Personnel Abroad (1952);
Brandon, The Legal Status of the Premises of the United Nations,
28 B.Y.I.L. 90 (1951).
their members to inform themselves and others and by special
investigation and publication with respect to demands, condi-
tions, and alternatives in the area of their general or specialized
concern. Similarly, international governmental organizations
may, as "the open conscience of the world"
1
, seek to base power
upon rectitude by appeals to moral indignation through public
determinations and reports of unlawful behavior, suspensions of
memberships and expulsions, and even invocation of economic
and military sanctions. For the promotion of specific programs,
such as with regard to human rights, genocide, or the abolition
of slavery, international governmental organizations may, once
again, base efforts to secure appropriate prescription in part
upon appeal to people's respect for fundamental human dig-
nity. Growing sentiments of loyalty to communities larger than
the nation-state may, finally, on occasion serve as a base of
power for many international governmental organizations.
Other values may on occasion serve as bases of power for
certain particular organizations. Thus, organizations engaged
in the promotion of economic development, such as the
International Bank for Reconstruction and Development,
may have at their disposal both wealth and skill; and an
organization, such as the United Nations, which is charged
with responsibility for security measures must certainly base
its power in part upon the well-being of the forces at its
disposal.
The values which member nation-states may in particular
instances place at the disposal of an international governmental
organization depend, of course, upon who the member nation-
states are, what their resources are, and the degree of willing-
ness they may have to support the organization for its particular
purposes in the particular context.
It is suggested that an inquiry in these terms into the prescrip-
tions and procedures by which the bases of power of interna-
tional governmental organizations are established and secured
might serve both to correct certain contemporary underestima-
1. Goodrich and Hambro, Charter of the United Nations (2nd rev.
ed. 1949).
(101) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 233
tion of the extent of existing bases of power and to stimulate
inventiveness in the design of new prescriptions and procedures
for the appropriate enhancing of such bases of power.
D. The Practices of International Governmental Organizations
The practices by which international governmental organiza-
tions, as instruments of the common purposes of their member
nation-states, engage in the world power process are, it may
easily be observed, largely confined to the formulation and
application of policy for the regulation of other participants.
Hence, the most convenient mode of organizing inquiry into
such practices would appear to be, not in terms of the traditional
categorizations of executive, legislative, judicial, and adminis-
trative, but rather again in terms of policy functions. Of the
seven policy functions suggested above only fivethe intel-
ligence, the recommending, the prescribing, the invoking and
the applying functionsappear to be performed by or in
international governmental organizations in sufficient measure
or with sufficient explicitness to require investigation. What
type of practices we refer to by each of these five functions may
perhaps be most economically illustrated by indication of cer-
tain of the provisions for their performance in the United
Nations Charter
1
.
The intelligence function, for initial illustration, achieves the
most ample provision in Article 13 which stipulates that the
General Assembly "shall initiate studies" with respect to all the
major purposes of the organization, in Article 34 which autho-
rizes the Security Council to "investigate any dispute or situa-
tion which might lead to international friction or give rise to
a dispute", in Article 62 which authorizes the Economic and
Social Council to "make or initiate studies and reports with
1. More detailed illustration may of course be found by careful perusal
of such standard works as Goodrich and Hambro, Charter of the United
Nations (2nd rev. ed. 1949) ; and Kelsen, The Law of the United Nations
(1950). See also Haviland, The Political Role of the General Assembly
(1951); Arechaga, Voting and the Handling of Disputes in the Security
Council (1950); Lissitzyn, The International Court of Justice (1951);
Schwebel, The Secretary-General of the United Nations (1952).
respect to international economic, social, cultural, educational,
health and related matters", and in Article 99 which empowers
the Secretary General "to bring to the attention of the Security
Council any matter which in his opinion may threaten the
maintenance of international peace and security".
The recommending function is similarly richly illustrated in
Articles 10, 11, 13, 14, and 60 which, taken together, authorize
the General Assembly to make recommendations with respect
to all the major purposes of the organization and in Articles 26,
36, 38, 39, and 40 which confer upon the Security Council the
broadest powers of recommendation both for the general pro-
motion of international peace and security and for dealing with
particular threats to the peace, breaches of the peace and acts
of aggression.
In a document which is of itself the most comprehensive
prescription of world policy in history, the prescribing function
finds much less ample explicit provision. Examples may perhaps
be found in Articles 108 and 109 providing for amendment of
the Charter, in article 39 which grants the Security Council a
broad discretion to decide what "measures" to take "to main-
tain or restore international peace and security", and in Arti-
cle 94 which stipulates that members undertake to comply with
the decisions of the International Court of Justice. In terms of
effective control, the recommendations of either the General
Assembly or the Security Council may of course on occasion,
despite the absence of appropriate provisions in the Charter,
achieve a degree of persuasiveness, or even coerciveness, which
is the substantial equivalent of authoritative prescription
1
.
The invoking function is illustrated in Article 11(2) which
authorizes members, non-member states, and the Security
Council to bring "questions relating to the maintenance of
international peace and security" before the General Assembly,
in Article 35 which provides that both members and non-
member states may bring "disputes" and "situations" to the
attention of either the General Assembly or the Security Coun-
1. Compare Sloan, The Binding Force of a "Recommendation" of the
General Assembly of the U.N., 25 B.Y.I.L. 1 (1948).
cil, and in Article 96 which authorizes the General Assembly,
the Security Council, and other organs and specialized agencies,
which have permission from the General Assembly, to request
advisory opinions from the International Court of Justice.
The applying function appears in most conspicuous provision
in Articles 24, 33 (2), 37 (2), 39, 40, 41, and 42 which impose
upon the Security Council "primary responsibility for the main-
tenance of international peace and security" and outline the
measures it may take in "prompt and effective action" to meet
threats to the peace, breaches of the peace, and acts of aggression.
Other examples may be found in Article 66 which empowers
the Economic and Social Council to perform certain functions
at the request of the General Assembly and, with the approval
of the General Assembly, at the request of members and speciali-
zed agencies, and in Article 87 which outlines the responsibilities
of the General Assembly .and the Trusteeship Council with
respect to trust territories. To the provisions of the Charter may
be added, for further illustration, the resolutions on "Uniting
for Peace" adopted by the General Assembly for the purpose
of organizing itself to make "recommendations", in cases of
breaches of the peace and acts of aggression and subsequent
failure of the Security Council to take action, which may in
their context be tantamount to "applications"
1
.
It is suggested that comprehensive and detailed inquiry into
the practices of international governmental organizations in
terms of such functions, with appropriate consideration of the
prescriptions, institutional structures and procedures by which
such functions are performed, might serve both to clarify and
emphasize the important role that such organizations presently
play in the formulation and application of world prescriptions and,
again, to stimulate inventiveness in the shaping of new and more
effective prescriptions, institutional structures and procedures.
E. The Effects Achieved by International Governmental Organizations
The most comprehensive inquiry here would extend to the
impacts of international governmental organizations upon all
1. For text and discussion see Report of the Collective Measures Committee,
General Assembly, Off. Ree. 7th Sess. Supplement No. 17 (A/2215) (1952).
other categories of participant in the world power process,
including not only nation-states but also transnational political
parties, transnational pressure groups, transnational private
associations, and the individual human being. With respect to
most of these organized group participants other than the
nation-state, however, the impacts of international governmental
organizations are either merely at their inception or have been
little explored.
For illustration of the type of relevant inquiry we may refer
briefly to the impacts achieved upon nation-states. The general
question here posed is over what types of value processes and
in what degree have international governmental organizations
obtained formal authority and effective control, and over what
types of value processes and in what degree have nation-states
retained formal authority and effective control. The world
prescriptions about this division of power are cast in terms, on
the one hand, of "international concern", and on the other, of
"sovereignty", "domestic jurisdiction", and "independence".
None of these terms are, however, possessed of any intrinsic or
absolute meaning or are self-defining. The prohibition in Arti-
cle 2(7) against United Nations intervention in "matters which
are essentially within the domestic jurisdiction of any state" was
deliberately left vague to permit future evolution. Particular
decisions with respect to whether matters are of "international
concern" or within the reserved domain of nation-states merely
reflect, with varying degrees of rationality, the consciousness of
the specific decision-makers of varying degrees of interdepen-
dence in fact across nation-state boundaries and their appraisal
of the potentialities and risks of international cooperation
1
.
That the scope of what may be regarded as of "international
concern" is expanding is indicated by many developments,
such as in the human rights program, the proposals for an inter-
national criminal court, the proposals for the control of atomic
energy, and the provisions in many post-war constitutions
1. This theme is developed in McDougal and Leighton, The Rights of
Man in the World Community: Constitutional Illusions versus Rational
Action 59 Yale L.J. 60, 77-82 (1949).
admitting limitations of "sovereignty" in favor of international
organizations. To the necessary survey of past decisions and
projection of future trends, policy-oriented inquiry would add
recommendation with respect to a vast range of urgent contem-
porary problems.
With respect to the impacts of international governmental
organizations upon the individual human being, we may note
the Universal Declaration of Human Rights, the Genocide
Convention, the Nuremberg Verdict, and the increasing access
being offered and proposed for individuals to the arenas of inter-
national organizations.
II. TRANSNATIONAL POLITICAL PARTIES AS PARTICIPANTS IN THE
WORLD POWER PROCESS
For purposes of this analysis, we identify political parties as
organized groups which present comprehensive programs of
policy and put forward candidates at elections
1
. Such groups
may be distinguished from "pressure groups" both by the
comprehensiveness of the demands they make for values and
by the degree of participation and support they seek from other
groups and individuals. Ordinarily the expectations of political
party elites include competition from other political parties, but
for purposes of analysis, the political party as such may be
distinguished from the nation-state over which the elite of a
single party may exercise both formal and effective control.
Our present concern extends to all political parties, whether
nationally or internationally organized, and whether legally
recognized or outlawed within particular nation-states, which
in fact seek or achieve effects across nation-state boundaries.
It needs little emphasis that the political party today stands
in the foremost ranks of effective participants in the world
power process
2
. As has been illustrated more than once in
1. The writer is indebted to J. P. Jefferies, Esquire, Graduate Fellow
in the Yale Law School, for suggestions with respect to both transnational
political parties and transnational pressure groups.
2. The Judgment of the International Military Tribunal, Nuremberg,
October 1, 1946, reprinted in Sohn, Cases and' Materials on World Law
recent decades, the political party may serve as a means not
only for achieving formal and effective control over single
nation-states but also for furthering such control over combina-
tions of nation-states and for influencing in varying measure
international governmental organizations, transnational pres-
sure groups and private associations, and even the entire peoples
of the world community. Modern techniques of mass communi-
cation and transportation have made it possible for political
parties to effect a high degree of organization, to centralize
their command, to coordinate their national and international
forces and to participate with striking effectiveness in power
processes, both in and out of government and within and beyond
the boundaries of any particular nation-state. When it is recalled
further, that nation-statesboth democratic and totalitarian
are still constantly increasing the degree of their control over all
the value processes of their people, the problem of what political
parties are competing, and how, for control of a nation state's
government may be seen to have importance not only to those
primarily affected within the particular nation-state but also
to the entire, interrelated, interdependent world community,
which may suffer from the convulsions and repercussions in any
of its integral units.
Inquiry might appropriately begin with factual survey of the
political parties whose operations and effects have transcended
the boundaries of single nation-states. Some of the relevant
questions are: What parties? Organized by whom, when, and
in what context? What have been the trends in expansion and
dissolution, in uniting and splintering, and so on? To the extent
they can be identified what have been the causal factors behind
survival or disappearance, success or failure?
B. The Arenas of Interaction of Transnational Political Parties
The arenas in which transnational political parties interact
(1950) 983, contains relevant documentation. See further Selznick, The
Organizational Weapon : A Study of Bolshevik Strategy and Tactics (1952);
Possony, A Century of Conflict : Communist Techniques of World Revolution
(1953) ; Key, Politics, Parties and Pressure Groups (3rd ed. 1952).
in the world power process may, as with respect to other partici-
pants, be conveniently divided into internal and external.
With respect to internal arenas, the most general question is :
who gets admitted to what decision-making processes within
the party. This general inquiry raises subordinate questions
with respect to both membership and the structures of formal
authority and effective control within the party.
The membership questions may be most briefly posed in
terms of who gets admitted or recruited (what persons, from
what value and institutional positions, of what character type,
with what class, professional, or religious affiliations, and so on),
by what methods (through cells or from pressure groups, by
what persuasion or coercion), subject to what conditions and
obligations (subordinating self to decisions, belonging to related
pressure groups, supporting policies of foreign nation-state, etc.),
and with what training (general indoctrination or highly spe-
cialized training for leadership, parliamentary tactics, propa-
ganda, infiltration, sabotage, military activity, etc.). Compar-
able inquiries might be made, further, about participations, less
than membership, extended to or achieved by individuals from
other political parties or factions, from pressure groups, and
from private associations.
The important questions about the structure of formal autho-
rity within the party include inquiry about its territorial organi-
zation (whether organized on a national or international, regio-
nal or global basis), about its functional organization (how it is
departmentalized with respect to propaganda, agitation, foreign
affairs, labor, etc.), and about the degree of centralization
of authority (how monolithic or democratic ; what authority is
given to what decision-makers at what levels in the organization
with respect to what values, and in relation to what persons; in
what degree are national parties and individual members
subordinated to international control).
The effective control inquiry about internal structures and
processes is the familiar one of who actually makes the deci-
sionsthe "ward bosses" or the apparent national or inter-
national leaders; someone located in the party structure or
someone from outside, in government or a pressure group or a
private association.
With respect to external arenas, the most important question
is: to what decision-making processes outside the party do
representatives of the party obtain admission. It is obvious that
political party representatives may achieve access to the public
organs of the nation-state, not only by election, but also by
patronage and infiltration into executive, legislative, judicial and
administrative institutions at all levels of government. Though
international governmental organizations may make no pro-
vision for access by political parties as such, it is equally obvious
that representatives of such parties do in fact obtain access in
the role of representatives of nation-states. To all this may be
added not only infiltrations into pressure groups and private
associations but also the specific establishment of such groups
and associations for the purpose of obtaining access to the
arenas of national and international governmental organization.
C. The Bases of Power of Transnational Political Parties
The values at the disposal of representatives of political
parties as bases of power in their interactions with other partici-
pants may, again, include in varying measure all major values.
We may illustrate value by value:
1. Power. Political party representatives may build influence
upon both formal and effective power. In terms of formal
power, they commonly have the authorization and protection of
their nation-state and may even be granted a monopoly posi-
tion. In terms of effective power, they have a certain numerical
strength in members, an ability to command votes, and perhaps
aid from members in possession of important posts in government
or in pressure groups and private associations (trade unions,
industrial concerns, newspapers etc.).
2. Enlightenment. Parties may make use of investigating
commissions, conferences of experts (even on propaganda tech-
niques) and individual expert opinion to insure precise and
effective policy formulation. All the techniques of modern mass
communication are available to bring their comprehensive and
plausible programs to the attention of electorates.
3. Skill. Political parties have developed in the highest degree
skills in the techniques of organization and they may train their
members in the skills necessary for propaganda, for infiltration
into public and private arenas of power, and even for espionage
and sabotage.
4. Wealth. Political parties may have at their disposal
operating funds whose sources may include party fees; special
member assessments; contributions of affiliated groups (espe-
cially "front" organizations), of private associations, and of
wealthy patrons; "kickbacks" from party members placed in
governmental positions; benefits from spoils systems and graft;
counterfeiting; and support from foreign nation-states or related
international political parties.
5. Affection. By the careful use of symbols, both verbal and
non-verbal (party badges, uniforms, salutes, greetings, colors
and designs of party emblems), political parties may succeed in
establishing the most intense identifications and loyalties among
their members.
6. Rectitude. By invocation of symbols of "universal justice"
a political party may succeed in establishing a reputation for
rectitude that it can exploit for power purposes.
7. Respect. By both real and apparent espousal of the inte-
rests of others party representatives may achieve respect posi-
tions which in turn enhance their power.
8. Well-being. It is not uncommon for parties to provide
medical care, other forms of social security, and bodily protec-
tion for their members.
D. The Practices of Transnational Political Parties
The practices of transnational political parties with which we
are concerned include both those by which they formulate and
apply policies internally within themselves and those by which
I. 1953. 16
they seek effects externally with respect to other participants in
the world power process.
For investigating how political parties formulate and apply
policies internally, an organization in terms of policy functions
would seem most convenient. Thus, with respect to the intelli-
gence function one might inquire what hearings are given to
members, affiliated pressure groups, private associations, and
non-member individuals and what planning bodies, investiga-
ting committees, and expert conferences are established or held ;
with respect to the recommending function, how recommenda-
tions are made by executive committees, intermediate councils,
and congresses, international and national, to national parties,
local groups, members, and affiliated groups and how arbitra-
tion procedures are established; with respect to the prescribing
function, how more or less general rules or decisions are made
by executive committees, intermediate councils, congresses, and
party courts for party organs, national or local groups, indivi-
dual party members, party-sponsored pressure groups, and other
affiliated groups; and with respect to the applying function,
how the various decision-makers indicated above manage
sanctions to secure conforming conduct.
For investigation of the strategies and tactics by which
political parties engage other participants in the world arena,
an organization in terms of the four-fold instruments of policy
diplomatic, ideological, economic, and militarywould appear
most convenient. It is all too obvious that party practices com-
monly embrace all these instruments in varying combinations
and in varying emphases, from subtle persuasion to complete
coercion. Under the heading of diplomatic instruments, inquiry
might be made into political deals with other parties, pressure
groups, private associations, and even nation-states, into the
infiltration tactics t hat are employed in gaining access to all
these other groups, into agitational tactics, and into the boy-
cotts that are sometimes imposed on other groups; under the
heading of ideological instruments, into their propaganda and
educational techniques; undei the heading of economic instru-
ments, into their use of spoils, graft, bribery, tax-fixing, boy-
(Ill) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 243
cotts of economic enterprises, and so on, and into the employ-
ment of party resources for the arming of military groups ; and
under the heading of military instruments, into their use of
espionage and sabotage and perhaps even of open violence,
through "political armies" and the aid of the military forces of
foreign nation-states.
E. The Effects Achieved by Transnational Political Parties
The effects achieved in the world arena by transnational
political parties may be described as including both certain
particular impacts upon each of the other categories of partici-
pant and certain aggregate impacts upon world patterns in the
shaping and sharing of power. For impressionistic illustration of
particular impacts upon other participants, we may note, with
respect to nation-states, that, since the seizure of power by one
party in one of the major centers of the globe after World War I,
transnational political parties have been most effective instru-
ments in transforming the structures and processes of power
within nation-states in totalitarian directions, with increased
emphasis upon the monopolization of power and upon methods
of coercion rather than of persuasion; with respect to interna-
tional governmental organizations, that transnational political
parties have tended to weaken the influence of such organiza-
tions by consolidating regional blocs with common ideologies
and by carrying their larger struggle for power over into a
struggle for control of such organizations' bureaucracies and
activities; with respect to. pressure groups and private associa-
tions, that such parties commonly seek, and often achieve,
either their complete subordination and politicization or else
their extinction; and with respect to the individual human
being, that such parties demand and enforce complete Subordina-
tion of personality and private interests to party interests. For
indication of the aggregate impacts of such parties, we may note
both their promotion and facilitation of a bipolar, rather than
a multipolar, confrontation of nation-states in the world arena
and their general emphasis upon monopoly, rather than com-
petitive power, and upon methods of coercion, rather than of
persuasion.
Though world prescriptions for regulating the interactions of
political parties with other participants in the world process
are still at a minimum, it may be observed that individual
nation-states are increasingly adopting protective measures.
Appropriate study of comparative constitutional law might,
again, yield information of value for clarifying an international
law of human dignity. Among the goals of such an international
law might be the formulation of prescriptions and establishment
of procedures designed to safeguard both a multiparty system
and the free use of methods of persuasion
1
.
I I I . TRANSNATIONAL PRESSURE GROUPS AS PARTICIPANTS IN THE
WORLD POWER PROCESS
By pressure groups we refer to unofficial bodies or groups
which are organized by private associations or private indivi-
duals for controlling or influencing decision-makers with respect
to particular value demands. Though such groups, like political
parties, are organized for power purposes and for influencing
other participants in power processes, they do not, as political
parties do, present comprehensive programs of varied value
demands or put forward candidates, as group representatives, at
elections. They may be distinguished from other private associa-
tions by their specialization upon power purposes and practices.
The general expectations within pressure groups include con-
tinuing competition with other groups seeking to influence
decision-makers, and especially with groups presenting directly
conflicting value demands. Our present concern, though focussed
primarily
O
upon groups whose organization and activities are
international, extends again to all groups which in fact seek or
achieve effects across nation-state boundaries.
1. The relevance of many of the provisions in the proposed covenants
on human rights is obvious. See Report of the Ninth Session of the Commis-
sion on Human Rights United Nations Economic and Social Council E/2447
(June 6, 1953).
(113) OTHER PATTICIPANTS IN THE WORLD POWER PROCESS 245
It has recently been estimated that transnational pressure
groups have within the twentieth century increased a hundred-
fold, until they today number above a thousand and embrace
within their membership tens of millions of persons of all natio-
nalities, races, colors, and creeds
1
. Considering the freedom
that such groups enjoy from many restraints upon official action,
as well as the growing unity of demands for common values
about the globe and the continuous improvement in the tech-
nology of communication and transportation, it is scarcely likely
that these developments will cease. The potentialities of trans-
national pressure groups as forerunners of governmental action
in taking into account world-wide interdependences and in
shaping and moulding world opinion to the necessity for new
prescriptions and procedures are obviously enormous.
Inquiry analogous to that suggested with regard to transna-
tional political parties would begin with factual survey of the
pressure groups whose operation and effects transcend the
boundaries of nation-states. What are these pressure groups?
When and by whom were they organized, in what context,
for the obtainment of what specific value demands? What have
been the trends in expansion and dissolution, in uniting, in
splitting up, and in evolving into more comprehensive organiza-
tions, such as political parties or international governmental
organizations? What causal factors can be identified behind
survival, expansion, reidentification of members with other
groups, disappearance, success or failure?
1. See White, International Non-Governmental Organizations (1951);
Democratic Processes : The Non-Governmental Organizations, in Eagleton
and Swift (ed.), 1951 Annual Review ofUnited Nations Affairs (1952) 165;and
Peace by PiecesThe Role of Non-Governmental Organizations, 264
Annals of Am. Acad, of Pol. & Soc. Sci. 87 (1949).
In the last cited article, at page 88, White writes: "A large proportion of
the people of the world are connected with one or more of these organiza-
tions, for they include in their membership nearly all the large churches,
trade unions, businessmen's associations, cooperative societies, farmers'
groups and women's organizations, as well as numerous professional, scien-
tific, humanitarian, and social reform organizations. They deal with almost
every possible subject from theology to the Olympic games, from child welfare
to astronomy, from cancer to the problems of labor, from aviation to women's
rights."
B. The Arenas of Interaction of Transnational Pressure Groups
With respect to the internal arenas of transnational pressure
groups, relevant inquiries include the standard questions about
membership (who gets admitted or recruited, by whose deci-
sion, by what criteria and methods, subject to what condi-
tions, at what levels of international, national, or local organiza-
tion, and so on), about internal structures of formal authority
(territorial organization, departmentalization with respect to
functions, degree of centralization of authority, degree of subor-
dination of national groups and individuals to international
controls, and so on), and about the structures of effective con-
trols (who located where in the group or in some other group
government, political party, private association, or other pres-
sure groupin fact makes what decisions).
With respect to external arenas, it may be noted t hat trans-
national pressure groups have achieved a very wide range of
access, both formal and informal and at all levels of govern-
mental and private activity, to other participants. On the level
of international governmental organization, they have obtained
consultative status with the Economic and Social Council,
through Article 71 of the United Nations Charter, and upon
request may submit written statements to the General Assembly
and the Security Council, and petitions as well as statements
to the Trusteeship Council. On the same level, they have
achieved, in addition, either formal consultative status or
working arrangements with most of the specialized agencies and
many of the regional organizations and a measure of access to
t he International Court of Justice, through Article 66 of the
Court' s Charter. The possibilities and actualities of informal
access to all these international governmental organizations are
obvious. On the level of national government, provision is com-
monly made for the formal consultative access of pressure
groups to executive, legislative, judicial, and administrative
institutions, and there are of course the countless interactions
in informal arenas of effective control. Pressure groups may,
finally, enlarge their already generous access to arenas by
infiltration into political parties, private associations and other
pressure groups.
C. The Bases of Power of Transnational Pressure Groups
Like international governmental organizations, transnational
pressure groups may base their power both upon values made
available to them on occasion by their members and upon other
values more or less at their continuous disposal.
The bases of power that the members of pressuie groups may
make available are as diverse as types of membership. Thus, a
group composed of representatives of labor or the professions
may make available, skill; of representatives of industry or
banking, wealth; of representatives of churches, rectitude; of
representatives of welfare groups or service organizations, well-
being; of representatives of minority groups, respect; of
representatives of communication or educational groups, en-
lightenment; of representatives of fraternal groups, affection;
and of representatives drawn from official groups, power.
The bases of power at the more or less continuous disposal of
different pressure groups similarly cover the whole range of
values. As in the case of other participants, pressure groups may
build in the first instance upon power itself, including both the
formal authorization and protection of the nation-state and
effective controls over individuals and groups. In the use of
enlightenment they may draw upon the knowledge of a multi-
national membership and employ all contemporary techniques
of investigation, communication, and censorship. Skills in organi-
zational technique, propaganda, the tactics of coercion, and so
on, are no less available to pressure groups than to political
parties. For brief indication with respect to other values, we
may note that wealth may be obtained from many sources;
that intense cooperation for common purpose may cement the
identifications and loyalties; that symbols and practices of
respect may be utilized both within and without the organiza-
tion; that reputations for rectitude may be exploited; and that
well-being may on occasion be the subject of both promise and
fulfilment.
D. The Practices of Transnational Pressure Groups
The practices by which pressure groups formulate and apply
policies internally raise again the standard questions about how
certain functionsintelligence, recommending, prescribing, and
so onare performed. The relevant inquiries are who performs
what functions, with respect to whom, in accordance with what
prescriptions, and by what methods and procedures. It may be
noted that pressure groups may establish arbitration procedures
and even regular "courts" of arbitration.
Though any particular pressure group may employ only
certain specialized practices in external arenas, the practices by
which pressure groups, taken as a whole, seek effects in such
arenas range again, as with other participants, over all the four
fold instruments of policydiplomatic, ideological, economic,
and militaryand their employment in varying combinations
and with varying emphases upon persuasion and coercion.
Impressionistic mention may be made, with regard to diplo-
matic instruments, of deals and agreements with other partici-
pants and infiltrations into all levels and areas of governmental
and private activity; with regard to ideological instruments, of
propaganda activities, educational programs and lobbying
activities; with regard to economic instruments, of the distri-
bution of funds in appropriate places and the employment of
boycotts and blacklists ; and, with regard to military instruments,
of the use of outright force in the employment of gangsters,
assassins and revolutionary military groups.
E. The Effects Achieved by Transnational Pressure Groups
Transnational pressure groups are commonly credited as
important factors in moving nation-states toward a more
genuine and effective internationalism. Such groups have in
fact been the precursors and great supporters of particular
international governmental organizations and have stimulated
the international formulation and the national ratification of a
tremendous amount of important new world prescriptions.
Reference may be made to the influence exerted by such groups
upon the establishment of such international governmental
organizations as the International Labor Organization, the
Permanent Court of International Arbitration, the League of
Nations, the Permanent Court of International Justice, the
United Nations, and the Council of Europe, and to the important
roles that such groups have played in the formulation and pro-
motion of such international agreements, draft agreements and
policy statements as the Genocide Convention, the Geneva
Conventions, the Universal Declaration of Human Rights and
the proposed covenants on human rights, the European Human
Rights Convention, the Convention on Political Rights for
Women, and so on
x
.
It is obvious that transnational pressure groups may be both
on some occasions tremendously effective instruments in pro-
moting the objectives of a free, peaceful, and abundant world
society, and on other occasions, when subordinated to the spe-
cial interests of private associations, political parties, or nation-
states, equally effective instruments in opposition to such
objectives.
The task of framing appropriate world prescriptions for the
regulation of transnational pressure groups will require a nice
balance between stimulating the greatest freedom in their
establishment and operation and precluding them from access
to and use of instruments of coercion.
IV. TRANSNATIONAL PRIVATE ASSOCIATIONS AS PARTICIPANTS IN
THE WORLD POWER PROCESS.
By private associations we refer to groups which are organized
primarily to seek values other than power but which may in
fact, incidentally to their other purposes, seek power effects.
Such groups may be distinguished from governmental groups
by their unofficial character, and from political parties and
pressure groups by their lack of specialization to power. They
constitute in effect a sort of residual category of organized group
1. For useful general exposition of these effects, see the writings by
Lyman C. White, cited note 1, p. 113.
participants in the world power process. With the growth of
world population, the development of modern technology, and
increasing recognition of world-wide interdependences, these
groups have multiplied, in a vast over-flow of human activities
across nation-state lines, in uncounted number in pursuit of all
major values, and their future potential, where permitted, is
infinite. Such groups are the forerunners of pressure groups,
political parties, and international governmental organizations
in preparing the way for more effective international coopera-
tion and, taken in the large, their effects are probably to increase
freedom and the plurahzation of power in the world social
process, in opposition to the monopolistic claims of nation states
and political parties, as well as of course, greatly to augment or
enhance the values which peoples can create by application, in
an appropriate division of labor, of modern science and techno-
logy to the resources of the world.
It should require no lengthy demonstration that the same
systematic and standard questions we have suggested with
respect to other participants in the world power process can
be equally applied in investigation of the power effects sought
and achieved by transnational private associations, whatever
t he major value or values for which any particular association
may be primarily organized. For the briefest illustration we may
indicate possible broad outlines of inquiry into certain of the
most important of transnational private associations, those which
are organized primarily for the pursuit of wealth or, in other
words, transnational business associations.
Within the compass of transnational business associations,
may be included, for comprehensive inquiry, not merely the
combinations of enterprises known as "cartels" or "combines",
but all enterprises whether "single" or "combined", and what-
ever their legal forms, which in fact seek and secure transna-
tional effects
1
. The more detailed identification of particular
1. Note the range of business groups regarded as relevant in Economic
and Social Council, Restrictive Business Practices: Analysis of Governmental
Measures Relating to Restrictive Business Practices, Official Records:
16th Sess., Supplement No. IIA (1953).
The literature in this area is of course vast. For introduction, see Hexner,
enterprises would inquire into their charters, or other authority
from nation-states, into their "constitutional" structure (whether
a single enterprise or an association of enterprises, effected by
what formalities or informalities in agreement or understanding),
into the identity (including nationality) of the individuals who
control them and the roles that such individuals play in other
enterprises and world power participants, into the resources or
goods or services they control or' affect, into the territorial area
of their operations, into the distinctive effects they seek, and
into the distinctive methods they employ.
The arenas in which transnational business associations
interact may, again, be described as internal and external.
Internal arenas raise all the questions of membership (volun-
tary or involuntary, decided by whom, how and so on) and of
the internal structure of formal authority (concentration or
dconcentration of decision-making, departmentalization of
functions, dispute-settling systems, and so on). External arenas
include all access to the institutions of international govern-
mental organizations and nation-states and the countless inter-
actions with political parties and pressure groups in situations
of effective decision-making.
The base values at the disposal of transnational business
associations for power purposes may again, as with other partici-
pants, include all values. Perhaps their most important base
value is, as we found also in the case of international govern-
mental organizations, in formal power itselfthat is, in the
privileges and protections granted to such associations by
nation-states, which may include the privilege of incorporation
(with legal capacity, limited liability, powers to draw funds
from the public, power to own interests in other enterprises,
and so on), the protection of claims to wealth by "propert y"
law, the special privileges embraced in patents, licenses, and
trade marks, the protection accorded through tariff laws, the
International Cartels (1945); Stocking and Watkins, Cartels in Action (1946)
and Cartels or Competition? (1948); Edwards, Economic and Political
Aspects of International Cartels, prepared for Subcommittee on War Mobiliza-
tion of the Committee on Military Affairs, U.S. Senate 78th Cong., 2nd Sess.,
Monograph 1 ; and Brady, Business as a System of Power (1943).
diplomatie protection of nationals abroad, exemption from
anti-monopoly laws and even positive grants of monopolistic
privilege, and so on. The importance of wealth as a base of
power for associations which may control resources valued in
multiplied billions of dollars scarcely needs emphasis ; also, as is
well-known, wealth is agglutinative, attaching to itself all other
values. Mention may be made in summary form, of the extraor-
dinary access which such associations have to enlightenment and
skill and of their capacity, comparable to that of other partici-
pants, to exploit reputations for rectitude and respect, loyalties,
and promises of well-being.
The practices by which transnational business associations
engage other participants in the world arena may, once more,
be usefully described in terms of varying combinations of the
four-fold instruments of policydiplomatic, ideological, eco-
nomic, and militaryand of varying emphases upon persua-
sion and coercion. Consider, for casual illustration, under
diplomatic instruments, their agreements and deals with govern-
ments and other participants and their infiltrations into the
institutions of government; under ideological instruments, their
propaganda and educational techniques and their lobbying
activities; under economic instruments, their employment of
fines, taxes, blacklists, expulsions, and boycotts and their prac-
tices with respect to price-fixing, division of markets, sales
quotas, restriction of output, impairment of quality, and restric-
tion of invention and technological development; and under
military instruments, their use of private police and their prac-
tices in withholding or obtaining critical materials, in securing
foreign exchange, in gaining "know-how" from other countries,
in precluding development of foreign concerns, in restricting
production abroad, in ascertaining the location of foreign
industrial plants, and in espionage and sabotage.
Inquiry into the power effects which transnational business
associations achieve in the world arena leads ultimately of
course to consideration of their aggregate effects upon the flow
of goods and services about the globe. Much investigation has
been devoted to these problems, and effects have been summa-
rized in terms of the promotion or thwarting of the security
policies of particular nation-states and in terms of the raising
and lowering of standards of living for the peoples of the world
generally
1
.
The task of formulating appropriate world prescriptions and
procedures for regulating the activities of transnational business
associations has been before international organizations and
conferences for several decades and is again before the United
Nations
2
. Most relevantly conceived, this task extends beyond
the invention of appropriate prescriptions and procedures for
policing monopoly and "restrictive business practices", as impor-
tant as such policing may be, to the radical revision of most of
the prescriptions of traditional "private" international law
about transnational business enterprise
3
.
V. THE INDIVIDUAL HUMAN BEING AS PARTICIPANT IN THE
WORLD POWER PROCESS
Our last, but not least important, participant is the indivi-
dual human being, considered as a total personality, including
all his demands, identifications and expectations. The group
participants which we have considered above are in fact but
specialized roles which the individual human being creates for
himself and, as a total personality, the individual is constantly
making comprehensive personal choices which may transcend
any particular specialized role. No one specialized role in the
group participants exhausts all his demands, identifications,
and expectations, and he is constantly entering new or different
group arenas, developing new claims for base values in different
1. Stocking and Watkins, Cartels or Competition? (1948) offers useful
summaries and leads into the literature. See also Berge, Cartels, A Challenge
to the Free World (1944); DuBois, The Devils' Chemists (1952).
2. Wilcox, A Charter for World Trade (1949); Economic and Social
Council, Restrictive Business Practices, Report of the Ad Hoc Committee on
Restrictive Business Practices, Official Records: 16th Sess. Supplement
No. 11 (1953) and Analysis of Governmental Measures Relating to Restrictive
Business Practices, Official Records: 16th Sess., Supplement No. IIA (1953).
3. An insightful survey of needed revisions is offered by Timberg, Inter-
national Combines and National Sovereigns, 95 U. Pa. L. Rev. 575 (1947).
See also Kronstein, The Nationality of International Enterprises, 52 Col.
L. Rev. 983 (1952).
groups, employing different practices of persuasion and coercion
in different groups, and achieving varying effects through vary-
ing groups. It would, therefore, appear indispensable to make
special inquiry both into how the individual makes these effec-
tive power choices and into how world prescriptions are formul-
ated and applied for governing such choices
1
.
For making these inquiries we suggest an analysis parallel to
that which we have recommended above for group participants.
The arenas to which individuals obtain access, in one role or
another, obviously include all the arenas of both non-govern-
mental and governmental group participants. With respect to
the effective control arenas of political parties, pressure groups,
and private associations, systematic survey might reveal how
the individual is constantly multiplying and changing his
memberships for the enhancement of his comprehensive, per-
sonal power. With respect to the formal authority arenas of
international governmental organizations, such survey might
demonstrate that the world community acts increasingly upon
individuals, not merely as the representatives of different groups,
but qua individuals, both admitting and subjecting them to
arenas, both for protecting their interests and for imposing
necessary duties upon them
2
. The degree to which nation-
states afford arenas to individuals in different capacities re-
quires of course again an examination of comparative constitu-
tional prescriptions.
The bases of power at the disposal of individuals include all
the values, all the interests and protections, that they can claim
and secure through any of their group memberships. Such
values, though conveniently organizable under the eight major
headings we have proposed, will of course vary infinitely in
detail and in combination from individual to individual, from
mass to elite.
The practices employed by individuals include both all the
1. Compare Jessup, A Modern Law of Nations (1947).
The literature of academic dispute about the role of the individual is
collected in Manner, The Object Theory of the Individual in International
Law, 46 Am. J.I.L. 428 (1952).
2. Lauterpacht, International Law and Human Rights (1950) Ch. 3.
(123) 0 THER PARTICIPANTS IN THE WORLD PO WER PROCESS 255
group practices outlined above and all their unorganized use,
through the four instruments of policy, of persuasion and
coercion.
The effects achieved by the individual in his power practices
may be measured in terms both of the other values he is able
to secure and control and of his impacts upon the power and
other values of other participants in the world power process.
It is a matter of common observation that in recent decades the
individual has been able to achieve a greater degree of freedom
from the nation-state, making it more difficult for the nation-
state to control him as a base of power, by multiplying and
augmenting his roles in international governmental organiza-
tions, political parties, pressure groups, and private associations
and, hence, enhancing the power of such groups in relation to
the nation-state.
The world community has long boasted prescriptions and
procedures designed both to confer benefits (doctrines about the
responsibility of states, humanitarian intervention, minorities
treaties, private international law, public international law,
incorporated as the law of the land within nation-states
1
, and
so on) and to impose duties (customary doctrines with respect
to the laws of war, neutrality, and piracy; agreements with
respect to slave trading, counterfeiting, fisheries, arms smug-
gling, and so on) upon the individual human being. It is becoming
increasingly recognized, however, that the promotion of an
international law of human dignity in the contemporary inter-
dependent world must require both the conferring of new direct
access by the individual, qua individual, to arenas of formal
authority in international governmental organizations for vindi-
cating and securing his interests and the imposing of new duties
and sanctions directly upon individuals, unshielded by "acts of
state" and superior orders, to make them responsible partici-
pants in the world power process. The trend so evident in the
1. It is sometimes insisted that this is protection merely by "national" law.
Briggs, The Law of Nations (2d ed. 1952) 94, 95. The policies are, however,
formulated on an international level and there may be international sanc-
tions, in the denial of reciprocities or in reprisals, for national failures in
application.
human rights programs of the United Nations and the Council
of Europe, in the continued refinement of the Nuremberg
principles, and in various proposals for the international regula-
tion of the production and use of atomic energy is perhaps but
symptomatic of the kind of concern which will more and more
confront both students of international law and the peoples of
the world.
CONCLUSION
I
T has been our purpose in these lectures to suggest a
framework of inquiry which might both locate the problems
of international law and organization in the context of world
social and power processes and stimulate and facilitate employ-
ment of the various modes of thought and observation indispen-
sable to the policy-oriented study of any legal system. For lack
of such a framework, scholars in the field have not been able,
as we pointed out in our introduction, to make their maximum
potential contribution to the over-riding challenge of our epoch,
namely, the formulation and the implementation of an inter-
national law of human dignity. The findings of many specialized
branches of scholarly and scientific inquiry which have impor-
tant bearing upon the problems of international authority and
control are not at the present time being explicitly evaluated
from the synthesizing perspectives of international law
1
. This
applies both to important fields of legal study, including what
is commonly called private international law and comparative
constitutional law, and to the many descriptive and analytic
investigations by historians and social scientists which deal with
transnational political parties, pressure groups, and private
associations, and with the individual. Without the guidance
from international law of comprehensive theory about the
interrelations of world power and social processes, many of these
inquiries are still in regrettably piecemeal state. Such inquiries
might, however, be stimulated to more effective contribution
by the systematic asking of the distinctive questions appropriate
to the study of the world decision-making process. Our principal
concern" in these lectures has been, therefore, with adapting the
sound core of traditional international jurisprudence to the
systematic assessment of findings and guidance of appropriate
1. The most significant published effort to make use of these findings
is perhaps Dr. Schwarzenberger's Power Politics (2nd. rev. ed. 1951).
I. 1953. * 17
inquiries in other contributory fields. The application of such a
framework as we propose will require continuous interstimula-
tion and cooperation among scholars whose primary context is
international-law and specialists on other dimensions of the
world processes t hat influence the degree in which the dignity
of man is realized in form and fact. Advancing within the highest
traditions of international law as we have known it in modern
times, our opportunity is measured by the urgency of the
posture of world affairs in the present epoch in history.
CONTENTS
INTRODUCTION : The Tasks of a Policy-Oriented Jurispru-
dence (Philosophy-Science of Law) in Our Ti me 13 7-142
CHAPTER I. The Inadequacies of Contemporary Theory
about International Law 143-164
I. Over-Emphasis on Technical Rules, Unrelated to Poli-
cies, as Factors in Guiding and Shaping Decisions.
II. Over-Emphasis on Naked Power as a Factor in Decision.
III. Failure to Achieve Comprehensive Description of the
Participants in the World Power Process.
IV. Failure to Achieve Comprehensive Description of the
Techniques of Policy Formulation and Application in the World
Power Process.
CHAPTER II. A Proposed Framework of Inquiry : Inter-
national Law Located in the Contexts of World Social and
Power Processes 165-191
I. The Context of the World Social (Community) Process.
II. The Context of the World Power Process.
III. The Major Characteristics of a Policy-Oriented Concep-
tion of International Law.
IV. The Postulated Goal Values of an International Law of
Human Dignity.
CHAPTER III. The Nation-State as Participant in the
World Power Process 192-226
I. The Identification of Nation-States as Participants.
II. The Arenas in Which Nation-States Interact.
III. The Bases of Power of Nation-States.
IV. The Practices of Nation-States in Shaping and Sharing
Power.
V. The Effects Nation-States Achieve in Control over Value
Changes.
CHAPTER IV. Participants in the World Power Process
Other than Nation-States 227-256
I. International Governmental Organizations as Partici-
pants in the World Power Process.
II. Transnational Political Parties as Participants in the
World Power Process.
III. Transnational Pressure Groups as Participants in the
IV. Transnational Private Associations as Participants in the
V. The Individual Human Being as Participant in the World
Power Process.
CONCLUSION 257-258

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