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395 Pages·1979·9.681 MB·English
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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 The distribution of this book is handled by the following team of publishers: for the United States and Canada Kluwer Boston, Inc. 160 Old Derby Street Hingham, MA 02043 USA for all other countries Kluwer Academic Publishers Group Distribution Center P.O. Box 322 3300 AH Dordrecht The Netherlands 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

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