CHAPTER 2.Development of Law Among NationsYDEVELOPMENT OF INTERNATIONAL LA WPre-Greek Civilization International law as we know it today is a product of Western civilization. Its true existence covers only the past 300 to 500 years, but its roots extend into the distant past. Some have attempted to link the modern law with the customs and usages of pre-Greek civilizations, but it now appears that our present law cannot claim such an impressive genealogy. It is true that even the earliest documents describing relations between states contain evidence of rules and procedures found in modern international law. For instance, a treaty concluded in the very dawn of recorded history, about 3100 B.C., between the rulers of two Mesopotamian communities (Lagash and Umma) provided for the settlement of a boundary dispute through arbitration, with solemn oaths for the observance of the agreement. Any examination of Hebrew, Assyrian, Babylonian, Hindu, and early Chinese records in the fields of warfare and diplomacy reveals many customs and usages that are still part of the practices of modern states.2'See Henkin, 1.

24partI The Law of Nations

chapter 2 Development of the Law252 See Nussbaum, 1-5; Lauterpachts Oppenheim, I, 72, and the excellent study by Russell, Theories ofInternational Relations (1936), chaps.

23This should not lead one to assume, however, that the modern law can be traced directly to those early civilizations. In the world of antiquity, our own concept of a community of nations was utterly lacking. The interests of each unit were local, not international. Although it was true that relations with neighboring countries could not be avoided, the consciousness of a community of mankind fundamental to the creation of a true system of international lawwas absent, except among some of the Greek philosophers.Greek Civilization Even the Greek civilization, great though its achievements were in many spheres, did not contribute much to the development of modern international law. There were common bonds of race, culture, language, and religion, as well as a distinct feeling of enmity toward all non-Greeks (the barbarians), but on the other hand, the well-known passion of the Greeks for local independence appears to have outweighed the common links among the Greek city-states and their numerous colonies around the shores of the Mediterranean. Relations between the Greek states were based on a feeling of kinship and on convenience, rather than on the concept of a community of states.Development of Roman Law In contrast with the Greek civilization, ancient Rome contributed immensely to the development of Western law as such and, indirectly, to the subsequent appearance of international law.Roman legal writers defined two kinds of law in another manner: in philosophical discussions of the law, they characterized as jus civile the law that each country created for itself, whereasj.v gentium referred to a body of law established among all men by reason, based on ideas or ideals of justice and observed by all countries. It thus represented the common basis on which the laws of civilized societies were based.It was this second interpretation of tht jus gentium that was preserved among the legal thinkers of the Middle Ages, with increasing emphasis on the existence of a universal law applicable to all states. On the other hand, the medieval period lacked the conditions under which a system akin to modern international law could exist.Still later, in the seventeenth century, the term jus gentium became specialized in its meaning and referred to the principles assumed to prevail in the relations between independent states, was translated as law of nations (droit des gens) by Vattel in 1758, and became international law through its use in that form by the Englishman Jeremy Bentham in 1780. Bentham followed the Latin title of an earlier work by Richard Zouche (1650), who had written about juris inter gentes, law among nations.The development of modern international law and the derivation of its name were complicated further by the existence of the concept of the law of nature (jus naturale), adopted about 150 b.c. by Roman philosophers from Greek Stoic thinkers. The law of nature, later termed natural law, was believed to have been naturally implanted in men and to comprehend unchangeable and exact justice, universal in scope and self-evident to any individual exercising his right reason, or the moral faculty with which he was endowed.The fall of the Roman Empire was followed by a period of instability, an era in history singularly unfavorable to the observance of a presumed universal law.Contrary to a widespread belief, the medieval period did contain some of the seeds of the future international law as well as of our modern sovereign nations. First and foremost among integrating factors was the Catholic Church. At first, the important element was the existence of a single religion, increasingly centralized administratively and developing a common law (canon law) for its members, irrespective of race, nationality, or location. Ecclesiastical law, as it evolved during the medieval period, influenced many areas regarded today as lying within the sphere of international law: the conclusion of treaties and their observance, authority over territory, the right of conquest with the sanction of the Church, papal activity in arbitration and the general emphasis in canon law on arbitration as a desirable method for settling disputes, and, above all, regulations concerning many facets of warfare. Few chapters in Western intellectual history are more fascinating than the repeated attempts on the part of the Church to eliminate private war and to mitigate the evils of legitimate international conflict.Beginning of International Law The germination of the seeds of international law traditionally took place in the sixteenth century, even though the decentralization of the res publica christiana of Europe, the true beginning of the law, came somewhat earlier. The rise of Protestantism not only destroyed the traditional unity of Christendom but also made papal arbitration of secular disputes unacceptable to Protestant rulers. The outstanding event of the century was the emergence of the national state, first in England, France, and Spain. A growing number of writers began to debate national and international questions, and a goodly proportion of those questions related direcdy to the sphere of international law.The remainder of this chapter will briefly summarize a few of the outstanding writers of this and the succeeding centuries. Limitations of space prevent the inclusion of many authors famous in the history of international law, such as Pierino Belli and Balthasar Ayala on the laws of war; Samuel Rachel on positive law; Martin Huebner and the Abbe Galliani on the laws of neutrality; Christian Wolff, the great teacher of Vattel; and Georg von Martens on the natural rights of states and on certain aspects of positive law.3WRITERS OF THE LA WFrancisco De Vitoria (1480-1546) Vitoria was a well-known Dominican professor of theology at the Spanish University of Salamanca. Two of his works, De Indis and The Law of War Made by the Spaniards on the Barbarians (1532), relate particularly to international law. Vitoria emphasized the question of what made a war a just one and examined the bases of Spanish authority in the Americas, particularly in regard to relations between Indians and Spaniards.Contrary to a widespread belief, the medieval period did contain some of the seeds of the future international law as well as of our modern sovereign nations. First and foremost among integrating factors was the Catholic Church. At first, the important element was the existence of a single religion, increasingly centralized administratively and developing a common law (canon law) for its members, irrespective of race, nationality, or location. Ecclesiastical law, as it evolved during the medieval period, influenced many areas regarded today as lying within the sphere of international law: the conclusion of treaties and their observance, authority over territory, the right of conquest with the sanction of the Church, papal activity in arbitration and the general emphasis in canon law on arbitration as a desirable method for settling disputes, and, above all, regulations concerning many facets of warfare. Few chapters in Western intellectual history are more fascinating than the repeated attempts on the part of the Church to eliminate private war and to mitigate the evils of legitimate international conflict.Beginning of International Law The germination of the seeds of international law traditionally took place in the sixteenth century, even though the decentralization of the res publica christiana of Europe, the true beginning of the law, came somewhat earlier. The rise of Protestantism not only destroyed the traditional unity of Christendom but also made papal arbitration of secular disputes unacceptable to Protestant rulers. The outstanding event of the century was the emergence of the national state, first in England, France, and Spain. A growing number of writers began to debate national and international questions, and a goodly proportion of those questions related directly to the sphere of international law.The remainder of this chapter will briefly summarize a few of the outstanding writers of this and the succeeding centuries. Limitations of space prevent the inclusion of many authors famous in the history of international law, such as Pierino Belli and Balthasar Ayala on the laws of war; Samuel Rachel on positive law; Martin Huebner and the Abbe Galliani on the laws of neutrality; Christian Wolff, the great teacher of Vattel; and Georg von Martens on the natural rights of states and on certain aspects of positive law.[footnoteRef:2] [2: Fortunately for the serious student, virtually all the classics in international law are available in the famous Classics of International Law (Washington, D.C.:U.S. Government Printing Office, v.d.). Summaries of the most important writers are found in Nussbaum and in Lauterpachts Oppenheim, I, 85. Much material on selected writers, such as Vitoria and Grotius, may also be found in standard histories of Western political thought, particularly in the writings of Dunning.]

WRITERS OF THE LA WFrancisco De Vitoria (1480-1546) Vitoria was a well-known Dominican professor of theology at the Spanish University of Salamanca. Two of his works, De Indis and The Law of War Made by the Spaniards on the Barbarians (1532), relate particularly to international law. Vitoria emphasized the question of what made a war a just one and examined the bases of Spanish authority in the Americas, particularly in regard to relations between Indians and Spaniards.Starting with the premise that the Indians were the true owners of their lands and goods before the arrival of the Spaniards, Vitoria argued that imperial claims to world domination were invalid; that all men were free under the law of nature; that the pope was neither the civil nor the spiritual overlord of the world, nor could he claim to be the spiritual lord of nonbelievers; and that war could not be waged against the Indians simply because they refused to acknowledge papal claims to such lordship. And according to Vitoria, the mere discovery of Indian lands by Spain did not confer a valid title, inasmuch as only land without an owner (res nul- lius) could be claimed through discovery.Certain claims supporting warfare and conquest in the Americas were upheld by Vitoria with a wealth of theological reasoning, and it is in this section of his works that there are so many fascinating speculations. He held that the Spaniards enjoyed certain rights under natural law and the jus gentium, including the right to travel and to carry on trade with nativesprovided they did not injure the latter. If those rights were denied to visitors, then the latter had been injured, and a resulting war waged against the Indian populations in question represented a just war.Such speculations naturally led Vitoria to investigate the rules of war themselves. For the first time in Western literature (excluding limited hints in Machia- vellis writings), one encounters here the terms offensive war and defensive war, and although Vitoria did not spend much time on the subject, he did point out that offensive (aggressive) wars were not to be condemned out of hand, for they might be based on just causes.Vitorias discussion of the rules of warfare reflects, almost by necessity, the barbarism and cruelty of his own age; yet the general tone of his remarks is humane and well in advance of the thinking and the practices of his time.Francisco Suarez (1548-1617)4 Another early Spanish writer on the subject of international law was Francisco Suarez, a professor of theology at the university of Coimbra. In his famous Treatise on Laws and God as Legislator (1612), he held that thtjus gentium was different in kind from natural law, was in fact a body of law applying between independent states rather than one common to all states, and furthermore represented a body of rules voluntarily instituted by men. Although countries were independent, Suarez argued, they were never wholly relieved of some interrelationship among them, were in some measure dependent on one another, and therefore required a body of rules to govern their relations. It is thus with Suarez that one first encounters the modern concept of a society or community of sovereign states, tied together by a body of law applying to their mutual relations.Huigh Cornets De Groot (1583-1645) Better known as Hugo Grotius, de Groot is generally accepted as the father of international law.5 His interest in the subject developed through an unusual and important case. During the war against4Nussbaum, 80.sSee id., 102, and Lauterpachts Oppenheim, vol. I, 91. The two major works of Grotius are available in English: The Law of War and Peace, Kelsey et al., trans. (1925); and The Freedom of the Seas, Magoffin, trans. (1916).Spain, a fleet of the Dutch East India Company captured a Portuguese vessel in 1601. The ship was brought, with its cargo, to Holland and sold as a prize of war, Portugal then being under Spanish domination. Oddly enough, some stockholders in the company objected to the highly profitable transaction, claiming that Christians should not wage war, certainly not on one another. The company retained Grotius, requesting an opinion on the objections raised, and thd young lawyer fulfilled his assignment by writing an essay, Dejure Praedae Commentarius (Commentary on the Law of Prize and Booty), in 16041605. Most of this work remained in manuscript form and was discovered only in 1864; the twelfth chapter, how'ever, was revised and published in 1609 under the title Mare Liberum (The Freedom of the Seas), an illuminating study of the doctrine of the freedom of the seas.[footnoteRef:3] [3: The complete work was made available in English for the first time in 1950 as the final number of the Classics of International Law (2 vols., London). The Commentary is characterized by an unusual emphasis on the rights of the individual under natural law, an emphasis said to be unequaled again in the literature of international law until very recently. A good summary may be found in Current History, October 1951, 225-26.]

Grotius wrote his greatest work, Dejure Belli ac Pads Libri Tres (Three Books on the Law of War and Peace), the first systematic treatment of positive international law, in 1625, in France. Despite its title, the work dealt only incidentally with the law of peace, and most of it was concentrated, as in the case of most of his predecessors, on war. Nevertheless the portions of the book dealing with peace (Bk. II, chaps. 1-19)filled with elaborate rules of national conduct based on the Scriptures, ancient history, and the classicsrepresented a unique contribution to the law and, in addition, a decided innovation in the works on the subject.With respect to the laws of warfare, Grotius leaned heavily toward the Scholastic writers, with frequent citations, particularly from the works of Vitoria. In discussing the nature of the traditional jus gentium, however, Grotius went to considerable lengths to explain that it represented, in his opinion, law both human (that is, not divine in origin) and volitional, a body of rules deliberately created by human beings to serve human needs.It was Grotiuss distinction between a natural law of nations, as developed by him, and the customary or voluntary law, expounded by Zouche, that was the direct cause of the rise of three separate schools of legal philosophy in the seventeenth and eighteenth centuries: the Naturalists, the Positivists, and the Grotians. The Naturalists, led by Samuel Pufendorf, denied that any positive law of nations originated from custom or treaties; they maintained, with Thomas Hobbes, that international law was merely a part of the law of nature.The Positivists, in turn, opposed the followers of Pufendorf in believing that a positive law of nations had its true origin in custom and treaties, hence in the consent of states, and that this law was far more important than any natural law of nations. Some of the writers of this school went so far as to deny the very existence of a law of nature. The leading positivist was the famous Dutch jurist Cornelius van Bynkershoek.The Grotians held to a middle position in the controversy, asserting that Grotius himself had drawn tenable distinctions between natural and voluntary law.But they differed from the founder in insisting that both kinds of law were equally important.It should be pointed out that since the seventeenth century there has developed a strong shift from an emphasis on natural law to the concepts of positive law.Virtually all forerunners of Grotius had limited their learned discussions of war, both just and unjust, to the beginning of a conflict. Thus Grotius opened a vast new area for speculation and debate when he included in his work a detailed discussion of the conduct of military operations and their legal consequences and considerations. With insight, tolerance, and an eloquent use of examples borrowed from the past, he urged moderation in warfare and discussed the status and fate of hostages, the destruction of property, the problem of the defeated peoples religious beliefs, and a host of other questions ignored or evaded by his predecessors. He did not believe that this particular portion of the Law of War and Peace represented a collection of legally binding principles; rather, he saw his discussion of the conduct of hostilities as a form of personal advice to statesmen and military commanders. It is a tribute to the essential goodness of human nature that even his early readers and critics regarded this section of the work as one of the most admirable contributions made by Grotius. But the basic doctrine of a just war has now been discredited by the inclusion of Article 2(4) in the Charter of the United Nations.The writings of Grotius also contributed much new and original thought on a great number of specific topics, particularly those of neutrality, freedom of the seas, treaties, and diplomatic practice. Neutrality did exist in fact, though much hampered, in his own time, but his was the first analysis of the legal status, rights, privileges, and duties of a neutral state. Considering the time in which his contribution was composed, it is not strange that belligerents received far more favorable treatment at his hands than did neutral nations. In regard to the high seas, Grotius was the first writer to proclaim the concept of the freedom of the worlds oceans and to attack with energy and learning the monopolistic claims of his own era to navigation and fishing privileges.Treaties appeared in his books as distinct from normal contracts and, furthermore, as binding, in general, on the successors of a ruler who had been an original party to the agreement in question. Grotius, as could be expected, upheld good faith and the sanctity of international pacts but apparently could not bring himself to deny the old claim that a treaty was null and void when the conditions prevailing at the time of its conclusion had changed substantially. So he compromised, accepted the voidance of a treaty specifically made in contemplation of a continuation of existing conditions, and finally went so far as to admit that if a state found further observance of an agreement too grave and unbearable, it would be freed of its obligation.One rather novel aspect of the concept of lawful or just war of Grotius is the question of war as a punitive measure. Earlier writers had maintained that only superiors were entitled to inflict punishment. Grotius, on the other hand, believed that equals could also inflict penalties or sanctions. He regarded war as a punitive action aimed against state crimes, analogous to the domestic punishment of crimes committed by individuals (see Law of War and Peace, Bk. II, chap 20). Sovereigns were thus held to be able lawfully to exact punishment, not only for injuries sustained by them or their subjects, but also in respect to acts that constituted, with regard to any person whatsoever, a violation of the law of nature or international law. This right of punishment originated in the law of nature, according to Grotius. The modern reader will find in the relevant pages of Grotius strong echoes of the demands voiced during World War II for the punishment of war criminals. In fact, the following chapter (Bk. 11, chap. 21) contains a striking passage to the effect that subjects made themselves responsible for crime of their sovereign if they consented to it or acted illegally under his persuasion or command. Thus Grotius would have denied that one could escape just punishment for war crimes by pleading the defense of superior orders.Samuel Pufendorf (1632-1694) Pufendorf was the worlds first professor of international law. However, scholars still disagree, in a surprisingly voluminous literature, as to whether he contributed much or little to the growth of the law, beyond being the founder of the so-called naturalist school of legal philosophy.Pufendorf developed a new system of jurisprudence of his own, which he eventually published in 1660 under the tide Two Books on the Elements of Universal Jurisprudence. The work attracted considerable attention, and in consequence of his new fame, Pufendorf was appointed to a newly created professorship of natural and international law at the University of Heidelberg. In 1670 he went to Sweden to teach at the University of Lund; there he wrote and published a second major work, Eight Books on the Law of Nature and of Nations (1672).[footnoteRef:4] The rest of his life was devoted to historical studies, first at Stockholm and later at Berlin. [4: Both works are available in English; the Elements, Moore, trans. (1927); the Eight Books, C. H. and W. A. Oldfather, trans. (1931).]

The Elements summarized Pufendorfs essential contributions to international law. As did the majority of thinkers of his age, Pufendorf implicitly believed in the existence of a state of nature antedating the historical state and held that in this prepolitical situation a law of nature was binding on all men. Only this law, rather than the consent of states, could establish legally binding principles and hence had to be regarded as the sole source of international law. His concept of the law of nature embraced those standards of behavior that experience and reason (the latter growing out of both experience and instruction) showed men, as they grew in knowledge, to be essential for their own good and for the good of human society of which they formed a part in accordance with the design of nature.

32partI The Law of Nations

chapter 2 Development of the Law33Cornelius Van Bynkershoek (1673-1743) A celebrated Dutch jurist and member (and, from 1724 to his death, president) of the Supreme Court of Holland, Zeeland, and West Friesland, Bynkershoek was the leading exponent of the positivist school. Although he never wrote a comprehensive treatise on the law of nations, he dealt with specific parts of the subject in a number of well-known works, notably the early Dominion of the Seas (1702), Jurisdiction over Ambassadors (1721), and his major work, Questions of Public Law (1737).[footnoteRef:5] [5: English versions of the three works are available: the Dominion, Magoffin, trans. (1923); the risdiction over Ambassadors, Laing, trans. (1939); the Questions, Frank, trans. (1930).]

Most of Bynkershoeks contributions to the development of the law were in the rules governing neutrality, with emphasis on a neutral duty to abstain from showing any preference to a belligerent, on blockade, on prize law, and on the subject of treaties in general. One famous tenet of the Dutch jurist has become beloved by all historians of international law: he held that control of territorial waters off a national coast extended only as far as cannon could carry. This principle, almost universally accepted shortly after its formulation, became the basis of the three-mile limit of territorial waters when the range of coastal artillery remained fixed, for an appreciable period of time during the late eighteenth century, at about three nautical miles. (One such mile equals approximately 1.15 common or statute miles.)C. von Wolff. This German philosopher published in 1749 a work entitled Jus Gentium as the ninth and last part of a major study on natural law. He promoted the concept of a world state (civitas gentium maxima) possessing considerable authority over its component member units. This idea was later rejected by Vattel, even though the latter supported many other ideas promoted by von Wolff.Emmerich De Vattel (1714-1767) A leading early proponent of the Grotian school of legal philosophy, Vattel was a native of Switzerland. During most of his adult life he served in a diplomatic capacity, later as a privy councilor in charge of foreign affairs, under the Elector of Saxony. His major work, International Law: Or, Principles of Natural Law Applied to the Conduct and Affairs of Nations and of Sovereigns (1758), designed as a practical manual for statesmen, became the standard European reference work in international law and is cited on rare occasions even today.[footnoteRef:6] Despite vital contributions of Grotius, no single writer has exercised as much direct and lasting influence on those conducting international affairs in the legal sphere, at least until very modern times, as did Vattel. [6: The work was translated into English by Fenwick (1916).]

Vattels writings, almost forgotten now except in France, have been criticized severely by modern legal historians. Most of the adverse comments center on his deliberate diminishment of the importance attributed to natural law, compared with that accorded to voluntary law, while at the same time lacking any convincing explanation of the pertinent question, Why should states feel obliged to observe a voluntary law of nations? This failure to supply an adequate basis for obedience trapped Vattel into unfortunate contradictions and exceptions to dogmatic statements.[footnoteRef:7] [7: Corbett, 29, supplied some illuminating examples of such flaws in Vattels reasoning.]

Nevertheless, despite theoretical weaknesses, Vattels work went through edition after edition and was a best-seller among legal commentaries for many decades. It was a particular favorite in the United States and as late as 1887 was cited in decisions of the Supreme Court of the United States.PROGRESS OF INTERNATIONAL LAW SINCE 1800International law has progressed far since the days of the classical writers. As Oppenheim pointed out,[footnoteRef:8] three factors proved to be of particular importance: the [8: 'Tauterpachts Oppenheim, I, 106.]

willingness of most states, after the Congress of Vienna, to submit to the rules of the law; the conclusion of numerous law-making treaties during the past 150 years; and the rise of the positivist school to a position of predominance in legal thought.1 ~ By the end of the nineteenth century, most authorities on international law conceded only the will of nations to be the source of the law, a view typical of a period in which the absolute sovereignty of states was affirmed with conviction by virtually every statesman and publicist.The growth of positivist thought had taken place concurrently with the decline of natural law doctrines. As nationalism prompted state after state to engage in power politics of the crassest sort, the concept of an international law based primarily on moral foundations, on principle, retreated and in its place was substituted the criterion of effectiveness, of is over ought. Many positivists did not deny the existence of an order superior to man-made law but denied emphatically that such an order bore any kind of relationship to legal rules prevailing in relations among states.Since the end of World War I, a change in outlook has been in evidence, and the trend of juristic thinking has veered away to some extent from a rigid adherence to the traditional positivist philosophy. Many leading publicists admit today that when no rule based on actual state practice exists, reference can and should be made to principles of justice and general principles of law.It can scarcely be doubted that moral principles and ethics play only a relatively minor part in the bulk of modern international relations and that such parts of international law as are observed in the regular practices rest essentially on custom and treaties. Hence the basic element of positivism, the exclusion of everything not directly traceable to explicit or implied agreements among states, appears to have considerable validity, provided that it is related to actual observance and not expanded into an all-inclusive and static system.When viewed from this position, international law can be analyzed and explained in realistic terms and can be shown to grow and expand in scope even in this age of power politics. At the same time, a modified positivist approach along the preceding lines may show the weakness of approaches such as that taken by the neopositivist school founded by Hans Kelsen. The latter tried to separate completely the world of actuality and a world of legal norms. Such a divorce of principles supposedly establishing the conduct of starts from the political aspirations and political methods utilized in their individualistic struggle for survival and power must be condemned as an extremely unrealistic and scarcely fruitful enterprise, except when viewed as a contribution to pure legal philosophy.[footnoteRef:9] [9: See Kelsen, General Theory of Law and State (1945), and his Principles of International Law (1952), especially the latter work on 403-47 (a second edition, revised and edited by Tucker, appeared in 1966).]

The approach adopted in this volume reflects a modified positivist point of view, emphasizing the rules of law accepted in the actual conduct of international relations and based on customs and treaties as the laws basic sources. It must not be forgotten, however, that just as the theories underlying the nature of the law change, so do the principles and rules that comprise that law. International law is, and has been for some decades, in a state of transition.It should be noted that the keystone of Soviet legal thought was the doctrine of national sovereignty, with particular emphasis on nonintervention in the internal affairs of other states, in this case, of course, in the affairs of the Soviet Union. This emphasis may strike observers as incongruous, in view of the Soviet Unions actual foreign policies, but it was typical of a society claiming to be revolutionary. Nonintervention would obviously be based on a double standard as long as the missionary zeal for world improvement dominated the Soviet outlook on foreign affairs. Mutuality would then depend entirely on the revolutionary societys current foreign policy, which, at all times, would insist that no intervention should be applied to it.After World War II, Soviet writers tended to emphasize a tripartite division in international law: one body of rules was said to apply to relations between socialist (Communist) states; another body of rules was held to apply between non- Communist (bourgeois) states; and a third group of principles and rules was held to govern relationships between socialist and bourgeois nations. The last of these groupings was the one that appeared to be heavily influenced by the twin concepts of consent and absolute sovereignty.[footnoteRef:10] In the late 1950s, Professor G. I. Tunkin, head of the Department of International Law at the Moscow State University and probably the foremost exponent of relevant Soviet legal opinion, differed sharply with the views of the Soviet legal scholars who believed in the concurrent existence of three sets of rules of international law. Tunkin furthermore anticipated that peaceful coexistence between socialist and nonsocialist states would lead to an effort to agree on certain specific rules of conduct for states (law-making treaties, continued development of customary law, the UN General Assemblys resolutions, decisions of international judicial agencies, and so on). In connection with the foregoing, Tunkin stressed the absolute acceptance of the existence of state sovereignty.[footnoteRef:11] [10: Kulski, The Soviet Interpretation of International Law, 49 AJIL 518, 518 (1955).] [11: For an abstract of other aspects of Tunkins teachings, see Slywotzskys review of Tunkins major work in 16 Harvard Int'l Lawjl. 767 (1975); or, preferably, consult the book itself: Tunkin, Theory of International Law, Butler, trans. (1974); Mullerson, Sources of International Law: New Tendencies in Soviet Thinking, 83 AJIL 494 (1989).]

The key concept developed in the 1960s by Soviet legal experts is a sort of natural law based on the Marxist-Leninist laws of societal development. According to this new interpretation, those laws governed the base, which, in turn, played a determinative role in forming the elements of the superstructure. The laws thus represented the basis on which international legal norms were created and established the boundaries within which the formation of such norms took place. International legal norms (principles) contradicting or violating the laws of societal development would, so the theory asserted, yield to the force of those laws.[footnoteRef:12] [12: See the lucid and authoritative analysis in Ramundo, Peaceful Coexistence: International Law in the Building of Communism (1967); as well as the brief but heavily documented study by Quigley, The New Soviet Approach to International Law, 7 Harvard Intl Law Club J. 1 (Winter 1965); and consult Whiteman, vol. I, 29.]

Contrary to popular belief, the Soviet Union observed routinely most of the rules of customary international law as well as the non-political (technical) agreements concluded with other states and public international organizations. Russian acceptance and observance of international law found their obvious basis in expediency dictated by the need for coexistence with non-Communist states as well as by the obvious fact that selected interests of Communist and non-Communist states did coincide. On the other hand, international law was also utilized extensively and frequently for the promotion of the political and ideological aims of the Soviet state. Propaganda campaigns in Third World nations as well as in Latin America have centered repeatedly on slogans based on ideas culled from the principles of international law, primarily on component parts of sovereignty, such as self-determination, nonintervention, and equality.ESTED READINGSpment of the Law, GeneralBull, Kingsbury, and Roberts (eds.), Hugo Grotius and International Relations (1990); Carr (ed.), The Political Writings of Samuel Pufendorf (1994); Janis, The Influence of Religion on the Development of International Law (1991); Whiteman, I, 131-220; Murphy, The Grotian Vision of World Order, 76 AJIL 477 (1982).5Fortunately for the serious student, virtually all the classics in international law are available in the famous Classics of International Law (Washington, D.C.:U.S. Government Printing Office, v.d.). Summaries of the most important writers are found in Nussbaum and in Lauterpachts Oppenheim, I, 85. Much material on selected writers, such as Vitoria and Grotius, may also be found in standard histories of Western political thought, particularly in the writings of Dunning.12See the valuable study by Humphrey, On the Foundations of International Law, 19AJIL 231 (1945); Ago, Positive Law and International Law, 51 AJ1L 691 (1957); as well as Whiteman, I, 9.