International law, Sixth edition
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International Law MALCOLM N. SHAW
Oppenheim’s International Law, p. 339, and Nguyen Quoc Dinh et al., Droit International
Public, p. 428. 88 See also Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1975, Cmnd 6198, pp. 2–3. See also O’Connell, International Law, pp. 322–4; P. Kooijmans, t h e s u b j e c t s o f i n t e r nat i o na l l aw 215 In many respects this doctrine owes its origins to Natural Law thinking. Just as equality was regarded as the essence of man and thus contributed philosophically to the foundation of the state, so naturalist scholars treated equality as the natural condition of states. With the rise in positivism, the emphasis altered and, rather than postulating a general rule applicable to all and from which a series of rights and duties may be deduced, interna- tional lawyers concentrated upon the sovereignty of each and every state, and the necessity that international law be founded upon the consent of states. The notion of equality before the law is accepted by states in the sense of equality of legal personality and capacity. However, it would not be strictly accurate to talk in terms of the equality of states in creating law. The major states will always have an influence commensurate with their status, if only because their concerns are much wider, their interests much deeper and their power more effective. 89 Within the General Assembly of the United Nations, the doctrine of equality is maintained by the rule of one state, one vote. 90 However, one should not overlook the existence of the veto possessed by the USA, Russia, China, France and the United Kingdom in the Security Council. 91 Peaceful co-existence This concept has been formulated in different ways and with different views as to its legal nature by the USSR, China and the Third World. It was elaborated in 1954 as the Five Principles of Peaceful Co-existence by India and China, which concerned mutual respect for each other’s territorial integrity and sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality. 92 The idea was expanded in a number of international documents such as the final communiqu´e of the Bandung Conference in 1955 and in various resolutions of the United Nations. 93 Its recognised constituents also appear The Doctrine of the Legal Equality of States, Leiden, 1964, and Marshall CJ, The Antelope, 10 Wheat., 1825, pp. 66, 122. 89 See Nguyen Quoc Dinh et al., Droit International Public, pp. 1062–3. 90 See e.g. L. Sohn, Cases on UN Law, 2nd edn, Brooklyn, 1967, pp. 232–90, and G. Clark and L. Sohn, World Peace Through World Law, 3rd edn, New York, 1966, pp. 399–402. 91 The doctrine of equality of states is also influential in areas of international law such as jurisdictional immunities, below, chapter 13, and act of state, above, chapter 4, p. 179. 92 See e.g. Tunkin, Theory, pp. 69–75. See also B. Ramondo, Peaceful Co-existence, Baltimore, 1967, and R. Higgins, Conflict of Interests, London, 1965, pp. 99–170. 93 See e.g. General Assembly resolutions 1236 (XII) and 1301 (XIII). See also Yearbook of the UN, 1957, pp. 105–9; ibid., 1961, p. 524 and ibid., 1962, p. 488. 216 i n t e r nat i o na l l aw in the list of Principles of the Charter of the Organisation of African Unity. Among the points enumerated are the concepts of sovereign equality, non- interference in the internal affairs of states, respect for the sovereignty and territorial integrity of states, as well as a condemnation of subversive activities carried out from one state and aimed against another. Other concepts that have been included in this category comprise such principles as non-aggression and the execution of international obligations in good faith. The Soviet Union had also expressed the view that peaceful co- existence constituted the guiding principle in contemporary international law. 94 Protectorates and protected states 95 A distinction is sometimes made between a protectorate and a protected state. In the former case, in general, the entity concerned enters into an arrangement with a state under which, while separate legal personality may be involved, separate statehood is not. In the case of a protected state, the entity concerned retains its status as a separate state but enters into a valid treaty relationship with another state affording the latter certain extensive functions possibly internally and externally. However, precisely which type of arrangement is made and the nature of the status, rights and duties in question will depend upon the circumstances and, in Download 7.77 Mb. Do'stlaringiz bilan baham: |
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