Jus et Societas: Essays in Tribute to Wolfgang Friedmann

395 Pages·1979·9.681 MB·English

by  A. S. Abel (auth.), Philip C. Jessup (eds.)

JUS ET SOCIETAS
PROFESSOR WOLFGANG FRIEDMANN (1907-1972)
JUS ET SOCIETAS
ESSAYS IN TRIBUTE TO WOLFGANG FRIEDMANN
with an introduction by
PHILIP C. JESSUP
GABRIEL M. WILNER
Principal Editor
EDITORIAL COMMITTEE
PHILIP C. JESSUP, CHAIRMAN
A. A. FATOUROS
JOHN N. HAZARD
LOUIS HENKIN
OLIVER j. LISSITZYN
WILLIS L. M. REESE
HANS SMIT
GABRIEL M. WILNER
1979
MARTINUS NIJHOFF PUBLISHERS
THE HAGUE / BOSTON / LONDON
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Library of Congress Cataloging in Publication Data
Main entry under title:
Jus et societas.
'A bibliography of the writings of Wolfgang Friedmann': p.
1. International law - Addresses, essays, lectures. 2. International economic relations
- Addresses, essays, lectures. 3. Friedmann, Wolfgang Gaston, 1907-1972 - Addresses,
essays, lectures. I. Friedmann, Wolfgang Gaston, 1907-1972. II. Wilner, Gabriel
M.
JX3091.J87 341 79-11626
ISBN -13:978-94-009-9323-5 e-ISBN-13 :978-94-009-9321-1
DOl: 10.1007/978-94-009-9321-1
Copyright © 1979 by Martinus Nijholf Publishers bv, The Hague.
Softcover reprint of the hardcover 1st edition 1979
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or trans
mitted in any form or by any means, mechanical, photocopying, recording, or otherwise, without the prior
written permission of the publisher,
Martinus Nijholf Publishers bv, P. O. Box 566, 2501 CN The Hague, The Netherlands.
PREFACE
When Wolfgang Friedmann died there was a great outpouring of
grief, affection and admiration from his friends all over the world.
These deeply felt sentiments were soon channelled into a number of
projects to honor him.
The initiative towards the preparation of this volume in tribute to
Wolfgang Friedmann was taken by his colleague, Hans Smit, of
Columbia University, who also arranged for its publication. Judge
Philip C. Jessup was the chairman, and Professors John N. Hazard,
Louis Henkin, Oliver Lissitzyn, Willis L. M. Reese and Hans Smit of
Columbia University Law School, A. A. Fatouros of Indiana University
Law School (Bloomington), and Gabriel M. Wilner of the University of
Georgia Law School were members of the editorial committee.
The authors of the essays are a group of distinguished legal scholars
from many countries and who hold widely diverse views. All of them
had many ties with Professor Friedmann, including those of friendship
and shared interest in problems that were of the greatest concern to
him. The number of eminent jurists from countries around the world,
and particularly from the United States, who would have wished to
participate in this tribute to Wolfgang Friedmann is large; however,
several important considerations made it necessary to limit the number
of contributions. Thus, for example, the work of several members of the
editorial committee is not represented in the volume.
The essays are appropriately preceded by an introduction, written by
Judge Philip C. Jessup, which evokes the unique personality and ac
complishments of Wolfgang Friedmann. The diversity of the essays with
respect to subject matter is entirely consistent with the universality of
Friedmann's interests in the law. This is why it has not been possible to
place the articles in a few limited categories; the contributions appear
in alphabetical order by author.
The volume includes articles that are generally addressed to the
future of the international community, its structure and rules (Gregory
Tunkin, Richard Falk). There are essays on methods and institutions
v
vi ESSAYS IN TRIBUTE TO WOLFGANG FRIEDMANN
for the creation of conventional international law (R. Y. Jennings,
Louis B. Sohn) and an article on certain aspects of the practice of the
International Court of Justice (Rosalyn Higgins). The essay contributed
by the late C. Wilfred Jenks, whose imaginative perspectives on the
future of international law were very much appreciated by Professor
Friedmann, deals with the International Court of Justice's treatment of
the concept of actio popularis.
An analysis and critique of political change in the United Nations is
offered by Julius Stone in his article entitled, "Conscience, Law, Force
and the General Assembly."
Several essays focus on questions of international economic and social
justice for the developing countries (Oscar Schachter) and the struc
turing of regional political and economic organizations in Latin
America, Africa and the Middle East (B. Boutros-Ghali, F. V.
Garcia-Amador).
Professor Friedmann's innovative thinking on the subject of the
international law of cooperation is reflected in the article on the impact
of the World Bank on international law (A.A. Fatouros) and the essay
by Joseph Gold on the "International Monetary System and Change."
Two other contributions - one concerning force majeure and
international supply contracts (Philippe Kahn), and a second on
international and multinational enterprises (Roger Pinto)-deal with
subject areas that Friedmann considered to be among the new fields of
international law.
The strong and enduring interest Wolfgang Friedmann maintained
in legal philosophy is represented by an essay on the jurisprudence of
contracts (Harry W. Jones). Still other articles focus on comparative
aspects of areas of municipal law in which he had done much thinking
and writing. O. Kahn-Freund has contributed an essay on comparative
labor law entitled, "Strikes and the Law"; the relationship between
administrative tribunals and courts are explored in A. Abel's article. An
essay on Canadian constitutionaUaw as it relates to the treaty-making
power, by R. St. J. MacDonald, brings together a number of elements
which were of lively concern to Professor Friedmann.
The final section of the volume contains a bibliography of the
published writings of Wolfgang Friedmann. In addition to books,
articles and reviews it was considered appropriate to include letters and
articles published in the New York Times in which he came to grips
courageously and lucidly with the immediate problems of the day.
The editor has been inspired by the support that Mrs. May Fried
mann has given to the preparation of this volume. Mrs. Friedmann,
whose close collaboration with her husband is exemplified by her work
as editor of an abridged edition of the Changing Structure of In
ternational Law, provided many insights and much practical assistance
PREFACE VII
for which the editor is most grateful. The editor also wishes to recognize
the able assistance rendered to him by Mr. Kenneth Klein,J.D.
A final note of appreciation is due to the Parker School of Foreign
and Comparative Law, Columbia University School of Law (Professor
Willis L. M. Reese, Director) for the financial SUppOTt given toward the
publication of this volume.
GABRIEL M. WILNER
Principal Editor
CONTENTS
PREFACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. v
INTRODUCTION ABOUT WOLFGANG FRIEDMANN
Philip C . .fessup ............................................. xi
COURTS AND TRIBUNALS: PARTNERS IN JUSTICE
A.S. Abel................................................. 1
Two INTERNATIONAL ORGANIZATIONS OF THE THIRD WORLD
Boutros Boutros-Ghali ....................................... 21
THE FUTURE OF WORLD ORDER
Richard A. Falk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 38
THE WORLD BANK's IMPACT ON INTERNATIONAL LAw'-A CASE STUDY
IN THE INTERNATIONAL LAW OF COOPE~ATlON
A. A. Fatouros ..••..•.•. . . • • • . • . • . . . . . . . . . • • . • . . • . . . 62
SOME LEGAL AsPECTS OF THE ANDEAN ECONOMIC INTEGRATION
F. V. Garcia-Amador •.•.•..•.....•.•..•.•.•.•....•.•.. 96
THE INTERNATIONAL MONETARY SYSTEM AND CHANGE: RELATIONS
BETWEEN THE MODE OF NEGOTIATiON AND LEGAL TECHNIQ.UE
Joseph Gold ............................................... 116
NON-IDENTIFICATION OF THE MAJORITY AND MINORITY IN THE PRACTICE
OF THE INTERNATIONAL COURT OF JUSTICE
RosalynHiggins ............................................ 134
THE GENERAL WELFARE As A LEGAL INTEREST
C. WilfredJenks ............................................ 151
ix
x
ESSAYS IN TRIBUTE TO WOLFGANG FRIEDMANN
TREATIES As "LEGISLATION"
J(obert Y.jennz"ngs ............ ; ............................ 159
THE JURISPRUDENCE OF CONTRACTS
Harry ·W.jones ............................................. 169
FORCE MAJEURE ET CONTRATS INTERNATIONAUX DE LONGUE DUREE
Philippe Kahn ............................................. 181
STRIKES AND THE LAW-iSOME RECENT DEVELOPMENTS IN
WESTERN EUROPE
Otto Kahn-Freund .......................................... 201
CONVENTIONAL INTERNATIONAL LAW AND THE DOMESTIC LAW OF
CANADA
Ronald St.John MacDonald . .••.....••.•..•••••••.•.•..•2 20
SOME LEGAL ASPECTS OF INTERNATIONAL AND MULTINATIONAL
ENTERPRISES
Roger Pinto ............................................... 241
PRINCIPLES OF INTERNATIONAL SOCIAL JUSTICE
Oscar Schachter ............................................. 249
VOTING PROCEDURE IN INTERNATIONAL CONFERENCES FOR THE
CODIFICATION OF INTERNATIONAL LAW, 1864-1930
Louis B. Sohn .............................................. 278
CONSCIENCE, LAW, FORCE AND THE GENERAL AssEMBLY
julius Stone ................................................ 297
THE NEW SYSTEM OF INTERNATIONAL LAW
Gregory I. Tunkin ........................................... 338
A BIBLIOGRAPHY OF THE WRITINGS OF WOLFGANG FRIEDMANN .......... 350
INTRODUCTION -ABOUT WOLFGANG FRIEDMANN
PHILIP C. JESSUP
The passage of five years-or of decades more to come-can not
cushion the shock -or begin to fill the gap created when Wolfgang
Friedmann was slain on the street near the campus of the University
which he served so well. The sorrowful memorials have long since been
eloquently spoken and it is not the purpose of this volume to repeat
them. Nor can even the distinguished contributions to this one book
compete with his voluminous writings which remain as a living
monument to his memory. The contributors whose valued thoughts are
to be found herein, on behalf of a multitude of others, bear witness to
the enduring forward reach of Wolfgang Friedmann's keen and
sympathetic understanding of the ever-changing pattern of the
problems of mankind.
Wolfgang Friedmann's versatility was untainted by superficiality.
Perhaps the quality of his contributions to an understanding of man
and the society in which man exists, is best exemplified by the
posthumous award of the Phillips Prize by the American Philosophical
Society. It was a particularly appropriate award since the founder of the
Philosophical Society, Benjamin Franklin, would have recognized
Friedmann, in Europe or America, as a worthy and worthwhile
correspondent or conversationalist, whether in philosophy, in
ternational affairs or many other topics.
Let me quote from the Report of the Society's Committee which
recommended the award of the Phillips Prize:
I
The major works to which the Phillips Prize would accord the
Society's recognition are Legal Theory (5th ed., 1967) and Law
in a Changing Socz'ely (2d ed., 1972). In these as in his other
writings Professor Friedmann brilliantly surmounted the walls
within which legal scholars (like others) seek to confine their
1. The report was written by the chairman of the Committee. Professor Walter Gelhorn
of the Columbia University School of Law.
PHILIP C. JESSUP has been judge of the International Court of justice (1961·1970);
Hamilton Fish Professor of International Law and Diplomacy. Columbia University
1946.1961; and is a member of the Institut de Droit International.
xi