Schwebel, Stephen M.

English

Yale Law School Legal Scholarship Repository

REVIEWS
sentiment when it gives birth to change in law. The agent of the change
is here, however, not the dictate of a court but the responsiveness of
the political branches to the claims of a minority that touched the con-
science of the country and thus marshaled general support. To be sure,
the Court played a large part in this awakening of moral sensitivity, a
fact that should forewarn us against too simplistic a conception of the
discrete roles of law and politics. It is, indeed, the fact that Mr. Bickel
sees the intricacy of their interplay that lends such great importance to
this subtle study of the most transforming legal movement of our time.
HERBERT WEcHsLERt
THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLrITcAL
ORGANS OF THE UNrIED NATIONS. By Rosalyn Higgins.* Oxford Uni-
versity Press, 1963. Pp. xxi, 402.
Mrs. Higgins' excellent book concerns precisely what its title de-
notes. It analyzes the development of international law through the
practice of the "political organs" of the United Nations: the General
Assembly, the Security Council, the Economic and Social Council, the
Trusteeship Council and the Secretariat. It does not deal with the
development of international law by the International Court of Justice,
the International Law Commission, or by law-making conferences held
under the auspices of the United Nations (such as those on the law of
the sea and diplomatic relations). The Sixth (Legal) Committee of the
General Assembly is treated more as a legal than a political organ, and
thus largely not dealt with, on the ground that: "The work of that
Committee has become more and more restricted and political problems
with important legal implications are debated in the First and Ad Hoc
Committees" (p. 3). While an accurate appraisal at one time, it is no
longer wholly so. Since 1961, the Sixth Committee has been increasingly
concerned with a spectrum of problems of important political as well as
legal content which are embraced by its continuing item of "Principles
of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations."
Mrs. Higgins maintains that:
The political organs of the United Nations ...are vitally con-
t Professor of Law, Columbia University School of Law.
* Member of the research staff of the Royal Institute of International Affars.
19%]
THE YALE LAW JOURNAL
cerned with the development of international law.... The United
Nations is a very appropriate body to look to for indications of
developments in international law, for international custom is to
be deduced from the practice of states, which includes their inter-
national dealings as manifested by their diplomatic actions and
public pronouncements. With the development of international
organizations, the votes and views of states have come to have legal
significance as evidence of customary law. Moreover, the practice
of states comprises their collective acts as well as the total of their
individual acts; and the number of occasions on which states see
fit to act collectively has been greatly increased by the activities of
international organizations. Collective acts of states, repeated by
and acquiesced in by sufficient numbers with sufficient frequency,
eventually attain the status of law (p. 2).
Mrs. Higgins acknowledges the difficulty of specifying at what point
the practice of states may harden into a rule of law. In this regard, she
notes (and understates) the fact of United Nations life that "voting pat-
terns to some extent conform to political pressures rather than to legal
beliefs.. ." (p. 6). She concludes that: "The only possible answer to the
problem of at what stage a usage becomes law must be at that point at
which states regard themselves as legally bound by the practice-a point
which can only be ascertained by the close examination of states' at-
titudes and public statements" (p. 6; Mrs. Higgins' emphasis).
Mrs. Higgins subjects five broad areas of United Nations practice
to such close examination: the concept of statehood; the concept of
domestic jurisdiction; recognition, representation and credentials; the
legal limits to the use of force; and the law of treaties. She does so by
the exposition and analysis of actual claims made before United Na-
tions organs and the response of those organs to those claims.
Her treatment is searching and incisive. Masses of material have been
expertly pruned and parsed. As Mrs. Higgins rightly points out, "there
is at present no repertory of United Nations practice in reference to
different aspects of international law" (Preface). Her text, fully an-
notated, justifies her hope of "at least partially" fulfilling this need-a
need to which the Secretariat of the United Nations should be en-
abled to address itself in an official and comprehensive manner. The
book contains a great deal of useful information which is subjected, by
and large, to thoughtful analysis. Mrs. Higgins succeeds in demonstrat-
ing that a considerable body of law has been developed through the
practice of the political organs of the United Nations.
The tenor of the work is optimistic. Mrs. Higgins typically weaves
the pattern of practice, extracts what threads of consistency it may yield,
[Vol. 75:672
REVIEWS
and ties those threads together in a fashion which, in her view, leaves
states legally bound. It is questionable, however, whether "states regard
themselves as legally bound by [their] practice[s]" to the extent sug-
gested by Mrs. Higgins. Take, for example, her conclusion that "self-
determination has developed into an international legal right, and is
not an essentially domestic matter" (p. 103). In support of this con-
clusion, Mrs. Higgins works persuasively through seventeen years of
United Nations practice whose high point is the Declaration on the
Granting of Independence to Colonial Countries and Peoples, a Gen-
eral Assembly resolution adopted in 1960 by a vote of 89 to none, with
9 abstentions. That resolution declares, among other things, that: "All
peoples have the right to self-determination .... Inadequacy of political,
economic, social or educational preparedness should never serve as a
pretext for delaying independence." Mrs. Higgins says of this resolu-
tion: "Even for a commentator favourably disposed towards a liberal
interpretation of the right of self-determination this resolution has
many undesirable aspects, and the total lack of opposition displayed
reflects sadly upon the failure of those governments (such as that of the
United Kingdom) who most loudly insist upon Big Power responsibility
to vote against resolutions which they do not support when public
opinion is mounted against them" (pp. 100-101). Her analysis proceeds
to state quite clearly that the abstaining Members did not favor the
resolution. Nevertheless, she concludes immediately thereafter that:
"The resolution must be taken to represent the wishes and beliefs of
the full membership of the United Nations" (p. 101).
It may be wondered whether the resolution (at the time of its adop-
tion, at any rate) can reasonably be taken as representative of the wishes
and beliefs of all of the abstaining states, which included Great Powers
whose participation in the development of international practice ac-
cepted as law would seem to be of special importance. It might other-
wise be contended that certain of these states meant their abstention to
indicate reserve rather than acquiescence. At the same time, Mrs. Hig-
gins makes a fair point: states which wish to foreclose the contention
that abstention equals acquiescence should vote negatively.
Still other cases might be cited where Members of the United Na-
tions have not merely abstained but even voted in favor of resolutions
on legal questions of great importance--and yet clearly did not mean
thereby to indicate movement toward "that point at which states regard
themselves as legally bound by the practice." Two instances more recent
than Mrs. Higgins' book may be cited. The more notorious is the Gen-
eral Assembly's treatment, by resolution and otherwise, of the question
1966]
THE YALE LAW JOURNAL
of the application of Article 19 of the Charter to those Members which
fell within its terms by reason of their failure to pay peacekeeping
assessments. The vast majority of the General Assembly, by accepting
the advisory opinion of the International Court of Justice on the matter,
agreed that the delinquents were incontestably delinquent in their as-
sessed contributions. It recognized that, if the law were to be applied,
the terms of Article 19 required that the delinquents "shall have no vote
in the General Assembly." Nevertheless, the delinquents retained their
vote by consensus of the General Assembly which the Assembly itself
knew to be a practice not in development but in derogation of the
Charter. Another example of the ambiguity of votes in the United Na-
tions was provided by the General Assembly's unanimous adoption (save
for a British abstention) at its twentieth session of a Declaration on the
Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Independence and Sovereignty. The Declaration
deals with subjects of paramount legal and political importance. It
declares, among other things, that "the practice of any form of inter-
vention ... violates the spirit and letter of the Charter of the United
Nations ....." The Representative of the United States, in explanation
of his favorable vote, stated:
[W]e view this Declaration as a statement of attitude and policy,
as a political Declaration with a vital political message, not as a
declaration or elaboration of the law governing non-intervention.
... [Moreover] the Special Committee of the Assembly on the
Principles of International Law concerning Friendly Relations and
Cooperation among States has been given the precise job of enun-
ciating that law. Thus, we leave the precise definitions of the law
to the lawyers, and our vote on this resolution is without prejudice
to the definition of the law that we shall make in the Special
Committee.'
Apart from this major question of whether states at times mean to
invest their United Nations actions with the legal import which Mrs.
Higgins tends to attribute to them-and of the weight to be given to
their intentions-minor interpretative reservations may be entered.
Thus Mrs. Higgins suggests (p. 170) that the fact that the Security
Council "took note" of the OAS action in respect of the'-bominican
Republic in 1960 "laid the ground for" later Soviet support of a Cuban
complaint to the Security Council "that the expulsion of Cuba from the
OAS in January 1962 was unlawful enforcement action, lacking the ap-
1. United Nations General Assembly, Twentieth Session, First Committee, Verbatim
Record of the 143rd Meeting, A/C. I/PV. 1423, p. 12.
[Vol. 75:672
REVIEWS
proval of the Security Council required by Article 53." The 1960
episode, however, cut the ground out from under the Soviet position
since, in 1960, the Council declined to accede to the Soviet claim that
Council approval was needed for what the U.S.S.R. contended was en-
forcement action against the Dominican Republic. By merely taking
note of that action, the Council indicated that it did not regard it as
enforcement action. Again, Mrs. Higgins states that the Cuban missile
quarantine raised the issue "upon which the United States rested its
case before the Security Council... whether this action was permissible
under the terms of Article 51" (p. 202). Actually, the United States did
not rest its case on Article 51. It deliberately avoided resort to Article
51 and doctrines of self-defense and rather relied on the authority of
the OAS. Questionable renderings such as these are few. The book is
characterized by careful interpretation and a high level of scholarship.
A more minor point still: the book also is characterized by footnotes
containing singularly unappealing abbreviations. "Especially" is ren-
dered as "espec." (as at p. 214); "meeting" as "mtg" (as at p. 233);
"resolution" as "res." (as at p. 185); "Committee on Foreign Relations"
is "Cttee on For. Rels." (p. 77); "Secretary-General" as "S-G" (as at
p. 184); and "General Assembly" is "GA" (as at p. 116). The reader
gets the impression that Mrs. Higgins wrote her footnotes in longhand
and carried over the consequent student shorthand to the printed text
unchanged. While this would be understandable, the printing by the
Oxford University Press of such abbreviations is less so.
Mrs. Higgins wrote her book at the suggestion of Mr. Elihu Lauter-
pacht of Cambridge University and under the guidance of Professor
Myres McDougal of Yale and Mr. Oscar Schachter of the United Na-
tions Secretariat and Yale. The work is of a quality associated with those
three leaders of international legal thought and action. It would be
hard to give it higher praise.
STEPHEN M. SCHWBEL-
t Assistant Legal Adviser, US. Department of State. (Nr. Schwebe's views are per-
sonal and do not engage the responsibility of the Department.)
1966]


Higgins: The Development of International Law Through the Political Organs of the United Nations

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Higgins: The Development of International Law Through the Political Organs of the United Nations

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