Theory of International Law Theory of International Law G. I.Tunkin Translated, with an Introduction, by William E. Butler Harvard University Press Cambridge, Massachusetts 1974 © Copyright 1974 by William E. Butler All rights reserved Library of Congress Catalog Card Number 73-92258 ISBN 0-674-88001-3 Printed in the United States of America Acknowledgments The image of a translator working in seclusion with his typewriter and dictionary, warding off his family with diverse manifestations of ill humor, is only partially accurate in this case. In the course of consulting the extraordinary range of source materials utilized by the author, I have accumulated a very great debt to the staffs of a number of institutions that I would like to acknowledge: the Lenin Library, the Social Science Library of the USSR Academy of Sciences, the Gorky Library of Moscow State University, the various libraries of the University of London, the British Library, the Squire Law Library at Cambridge University, the University of Graz Library, the Harvard Law School Library, and the Library of Congress. For the opportunity to spend a semester as a guest senior scholar at the Department of International Law, Faculty of Law, Moscow State Univer- sity in 1971-1972, where a draft of this translation was discussed with its author, I am indebted to the International Research and Exchanges Board and to University College London. The Rockefeller Foundation, through the incomparable hospitality of the Villa Serbelloni, made it possible to review a number of important questions with colleagues at an extended conference on socialist legal systems in August 1972. Several typists have labored strenuously on various portions of the manuscript, but the major burden has been capably borne by Miss Sylvia New. I also should like to record my gratitude to Miss Gillian Hoxley who at the most impossible moments was able to provide additional typing assistance. London W.E.B. ν Contents Introduction xiii Translation Note xxiii PART I: THE DEVELOPMENT OF INTERNATIONAL LAW SINCE THE GREAT OCTOBER SOCIALIST REVOLUTION 1 Chapter 1. The International Legal Ideas of the October Revolution and the Making of Contemporary International Law 3 A. The Principles of Socialist Internationalism 4 B. The Principles of Equality and of Self-Determination of Nations 7 C. The Principles of Peaceful Coexistence 14 Chapter 2. Peaceful Coexistence and General International Law. The Influence of the Breakup of the Colonial System 21 A. The Unfoundedness of the Theory That the Developmental Base of Inter- national Law Is Contracting 22 B. Peaceful Coexistence of States with Different Social Systems and General International Law 35 Chapter 3. Modification of the Fundamental Principles of International Law During the Period of Coexistence of the Two Systems 49 A. The Emergence of New Principles of International Law 49 (1) The principle of nonaggression 49 (2) The principle of peaceful settlement of disputes 57 (3) The principle of self-determination of peoples 60 (4) The principle of peaceful coexistence 69 (5) The principle of disarmament 75 (6) The principle of respect for human rights 79 (7) The prohibition of war propaganda 83 B. The Development and Strengthening of the Old Democratic Principles of International Law 86 vii [vili] Contents PART II: THE PROCESS OF FORMING NORMS OF CONTEMPORARY GENERAL INTERNATIONAL LAW 89 Chapter 4. The Basic Processes of Forming Norms of International Law 91 A. International Treaties 91 (1) Treaties between states 91 (2) Treaties between states concluded within the framework of international organizations 102 (3) Regulations adopted by specialized international organizations 103 (4) Treaties of international organizations 106 B. International Custom 113 (1) Elements of a customary norm of international law 113 (2) A customary norm as the result and embodiment of tacit consent. The operative sphere of a customary norm 123 C. Treaty and Custom in Contemporary International Law 133 (1) The predominant role of the treaty in the development of international law 133 (2) The international treaty and general international law 137 (3) The interaction of treaty and custom 142 D. The Principles of Jus Cogens 147 Chapter 5. Subsidiary Processes of Forming Norms of International Law 161 A. Resolutions of the United Nations General Assembly 162 B. Recommendations of Specialized International Organizations 176 C. Decisions of the International Court and of International Arbitration Tri- bunals 179 D. National Legislation and Decisions of National Judicial Instances 184 Chapter 6. Doctrine and the Opinions of Social Organizations 186 A. International Legal Doctrine 186 B. Opinions and Resolutions of Social and Scientific Organizations 187 Chapter 7. The Problem of "General Principles of Law" 190 PART III: THE LEGAL NATURE AND ESSENCE OF CONTEMPO- RARY GENERAL INTERNATIONAL LAW 205 Chapter 8. The Legal Nature of Agreement as the Mode of Creating Norms of International Law 207 A. The Bourgeois Doctrine of "Agreement" 207 [ix] Contents Β. Agreement as the Result and the Embodiment of the Concordance of the Wills of States 211 C. The International Legal Positions of States and Concordant Wills Reflected in Norms of International Law 216 D. The Unfoundedness of the Concept of the "Fundamental Norm" 218 Chapter 9. The Character and Essence of Contemporary General Inter- national Law 225 A. Bourgeois Science on the Social Nature of International Law 225 B. The Societal Laws of the Development of International Law 232 (1) The laws of societal development and international law 232 (2) The unfoundedness of the bourgeois concept of ubi societas ibi jus 237 (3) International law and international organization 239 C. Modification of the Character and Essence of General International Law During the Past Half-Century 243 (1) Fundamental changes in general international law since the Great October Socialist Revolution 243 (2) The position of bourgeois practice and doctrine on the question of changes in international law 255 D. The Question of an "Intermediate Status" Between War and Peace 265 PART IV: INTERNATIONAL LAW, FOREIGN POLICY, AND DIPLO- MACY 271 Chapter 10. The Influence of Foreign Policy and Diplomacy Upon the Development of International Law 273 Chapter 11. The Influence of International Law on Foreign Policy and Diplomacy 279 Chapter 12. International Law as a Support for Foreign Policy 293 PART V: THE LEGAL NATURE OF CONTEMPORARY GENERAL INTERNATIONAL ORGANIZATIONS 303 Chapter 13. The Laws of Societal Development and International Organi- zations 305 A. The Internationalization of Economic Life and International Organizations 308 B. Coexistence of the Two Opposed Social Systems and International Organi- zations 311 C. The Breakup of the Colonial System and International Organizations 315 D. The Existence of Sovereign States and International Organizations 319