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Thèse de doctorat/ PhD Thesis Citation APA:
Narayan Basak, S. (1991). The International Court of Justice and the new-born states (Unpublished doctoral dissertation). Université libre de Bruxelles, Faculté des sciences sociales, politiques et économiques, Bruxelles.
Disponible à / Available at permalink : https://dipot.ulb.ac.be/dspace/bitstream/2013/212987/1/a27977b2-ca86-4267-ad51-9eca7b2930e7.txt
(English version below)
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THE INTERNATIONAL COURT OF JUSTICE AND
THE NEW-BORN STATES.
Volume I
SACHINDRA NARAYAN BASAK
THE INTERNATIONAL COURT OF JUSTICE AND
THE NEW-BORN STATES.
Volume I
674.262 V.1
SACHINDRA NARAYAN BASAK
H 5 *5 5 V
Préfacé
The emergence of many "new" born States as a conséquence of the process of decolonization which star- ted in the period following the post-Second World War and their impact on the international legal order hâve engaged the attention of many distinguished scholars and international lawyers in recent times. The effects and conséquences of the emergence of numerous States as in
dépendant actors on the international scene are, no
doubt, many, extensive and profound. I hâve selected for my study only one aspect of this large issue, but one believed to be of fundamental importance for the future development of the international legal order, namely, the attitude of the "new-born" States towards adjudica
tion of international disputes by the International Court of Justice.
In the first part of this study, the conten- tious and advisorÿ jurisdictions of the Court and the varions sources o^ those jurisdictions hâve been analy- sed and discussed. The cases that hâve been brought be- fore the Court under its contentions and advisorÿ juris- diction, and the participation of States, old and "new- born", hâve been highlighted. The possible effects of the Court's verdicts in the contentions cases and opi
nions in the advisorÿ cases on the attitude of the "new- born" States vis-a-vis the Court hâve also been analy- sed. In the chapter on advisorÿ jurisdiction, in addi
tion to explaining the attitude of the "new-born” Sta
tes towards certain spécifie questions from the avail-
able sources, a study on the views of those States as to
the authority of the opinions rendered by the Court and
their execution has also been added. In order to pin- point the commitment of States towards international adjudication I hâve incorporated in ray study lengthy tables, both analytical and factual. In the second part of this study, the opinions of the ”new-born"
States on the institutional, structural and functio- nal aspects of the Court hâve been discussed and ana- lysed. In addition, a brief study on the current de
liberations and reflections on the probable reasons for the general réluctance of States to bring their disputes before the Court for adjudication and the limitations and possibilities of judicial fonction at the présent state of development of the interna
tional juridical Comraunity has been added.
Identifying the attitude of the ”new-born”
States in some areas has been attended with some dif- ficulties. These States do not belong to a single com
préhensive philosophical and political System. They are heterogenous; they differ in cultural background, levels of éducation, political orientation and spéci
fie interests. Moreover, many "new-born" States hâve not yet started expressing their views on many areas under study. Even where some expressions of opinions are noticeable in some areas, one finds that not ail or the majority of the "new-born" States hâve expres- sed views on them. However, at every aspect of the study, a conclusion has been attempted on the basis of the trend of opinion observed.
Except where otherwise indicated, ail trans
lations from French in this study hâve been done by
myself.
This dissertation has been prepared under the guidance of Professer Jean J.A. Salmon. He has been a philosopher, a frined and a guide to me ail through. But for his sustained guidance, this work would never hâve been completed. I am also indebted
to Professer Charles Chaumont of the University of Nancy for some of his useful suggestions at the
initial stage of my research. My other great debt is to Mr. A. Pillepich, former Deputy-Registrar of the International Court of Justice, The Hague, who has been generous in granting me several interviews and provided me with several relevant documents which I profitably used.
I wish to express ray gratitude to Mr. Der- nelle and Mme. Debar in the Library of the Ministry of External Affairs, Royal Government of Belgium, for their generous help which went well beyond the bounds of duty. Spécial thanks are due to my friend Mr. P.H.
Chandrasekharan, of the International Labour Organi- zation, Geneva, for his constant encouragement and supplying me with several documents during the course of my research.
I am bound by gratitude to Mr. A. Tripathi, of the Indian Foreign Service, for the pains he took to go through the raanuscript and suggesting many cor
rections. Spécial thanks are due to Mrs. Laurence Audy Mukharji, who despite her many préoccupations, took pains to t'ype out one Chapter of the manuscript. I am bound by gratitude to a host of friends for their con
stant encouragement in ray research work. I wish to
express my gratitude to Mme. Freund for typing out the
final manuscript with meticulous care.
Finally, my thanks are due to my wife Rosette, who bas helped me in more ways than can be recounted here. In addition to helping me in translating French texts into English, she took upon herself the responsibility of typing out al- most the entire manuscript. How indispensable ba
ve been ber conscientiousness, dévotion, constant tolérance and encouragement, she alone knows.
Summer 1991 S.N.B.
Brussels.
Abbreviations.
ABA Journal AJIL
BYIL
The Court CYIL
EFTA GAOR lAEA IBRD
ICAO
I&CLO
IDA IFC ICJ ILM • ILO IMF IJIL
ICJ Yearbook
ICJ Pleadings
ICJ Reports
IMCO ITU lYIA
American Bar Association Journal.
American Journal of International Law.
British Yearbook of International Law.
The International Court of Justice.
Canadien Yearbook of International Law.
Européen Free Trade Association.
General Assembly Official Records.
International Atomic Energy Agency.
International Bank of Reconstruction and Development.
International Civil Aviation Organi- zation.
International and Comparative Law Quarterly.
International Development Agency.
International Finance Corporation.
The International Court of Justice.
International Legal Materiel.
International Labour Organization.
International Monetary Fund.
Indien Journal of International Law.
Yearbook of the International Court of Justice.
Pleadings, Oral Arguments, Documents published by the Registry of the Court.
Reports of Judgments, Advisory Opi
nions and Orders published by the Re
gistry of the Court.
Inter-Governmental Maritime Consulta
tive Organization.
International Télécommunication Union.
Indien Yearbook of International
Affaire.
JAIL - Japanese Annuaire of International Law.
LNTS - League of Nations Treaty Sériés.
NTIR - Nederlands Tijdschrift voor Interna
tional Recht.
NYIL - Netherlands Yearbook of International Law.
OECD - Organisation for Coopération and Eco
nomie Development.
OAS - Organization of American States.
OAU - Organization of African Unity.
peu - The Permanent Court of International Justice.
Proceedings - Proceedings of the American Society of International Law.
RCADI - Recueil des Cours de l'Academie de droit International.
RGDDIP - Revue General de Droit International
RFDDI
Publique.
- Revue Français de droit international RBDI - Revue belge de droit international.
RHDI - Revue hellénique de droit internatio
nal .
SCOR - Security Council Official Records.
UPU - Universal Postal Union.
UNTS - United Nations Treaty Sériés.
UNCIO - United Nations Conférence on Interna
tional Organization.
(San Francisco 19^5)
WHO - World Health Organization.
WMO - World Meteorological Organization.
CONTENTS
Introduction
1. Définition of "new-born" States.
2. The problems of the ”new-born" States.
3. Ideological perspective of the "new-born" States.
Part I
(A) Contentious Jurisdiction
Chapter I; Contentious jurisdiction under Article 36, ParaGraph I of the Statute
1. Jurisdiction of the Court under Article 36, para- graph I of the Statute.
2. Contentious cases under Article 36, paragraph I of the Statute and participation of the old and
"new-born" States.
(a) Compromis
(b) Compromissory Clause
(i) The practice of inserting compromissory clau
se in treaties and conventions during the League era.
(ii) Compromissory clause as provided for in trea
ties and conventions concluded in the U.N.
era.
(iii) Compromissory clause in bilateral treaties.
(iv) Cases brought before the Court under the compromissory clause of the bilateral trea
ties.
(v) Compromissory clause in multilatéral treaties and conventions.
(vi) Attitude of States as expressed in multila
téral treaty making conférences.
(vii) Cases brought before the Court under the compromissory clause of the multilatéral treaties and conventions.
(viii) Conclusion.
(c) Constitutions of public international organiza- tions and compulsory jurisdiction of the court.
(i) Public international organizations and inter
prétation of their constitutions.
(ii) Provision for compulsory jurisdiction of the Court in the constitutions of internatio
nal organizations.
(iii) Acceptance by States of the constitutions of international organizations for compulsory jurisdiction of the Court.
(iv) . Cases brought before the Court under the constitutions of international organizations.
(v) Inter-governmental organizations and the question of contentions jurisdiction of the Court.
(vi) Conclusion.
CHAPTER II; Contentious jurisdiction under Article 36, paragraph 2 of the Statute.
1. Contents of Article 36, paragraph 2 of the Statute.
2. Evolution of the déclarations of acceptance of the Compulsory jurisdiction of the Court.
3. Réservations made by States in their acceptance of the optional clause - a typological analysis.
4. Contentious cases brought under Article 36, para
graph 2 of the Statute and participation of
"new-born" States.
5. Conclusion.
(B) Chapter III; Advisory Jurisdiction of the Court
1. Provision for advisory opinion under the U.N. Char
ter and the Statute of the Court.
2. Attitude of the ”new-born” States towards certain spécifie questions in relation to the advisory ju
risdiction of the Court.
(a) Whether in view of the principle of sovereignty, the consent of States is necessary for advisory proceedings in cases where the legal interests of States are directly concerned.
(b) Interprétation of the Charter.
(c) Matters within domestic jurisdiction of States.
3. Recourse to the advisory process and participation of the old and "new-born" States.
(a) Non-acceptance of proposais by the organs and Specialized Agencies for advisory opinions.
(b) A critical study of the attitude of States to
wards advisory process.
4. Conclusion.
5. Acceptance and execution of the advisory opinions rendered by the Court.
(a) Réception of the advisory opinions by the re- questing bodies.
(b) Views of the Meraber States as to the authority of the opinions.
(c) Execution of the advisory opinions.
Part II
Chapter IV; Critical examination of the opinions expressed by the ”new-born” States in the international conférences on the varions aspects of the Court.
1. The place of the Court in the System of settlement of disputes established by the Charter of the United Na
tions.
2. The contents of international law and its applica
tion by the Court.
(a) The question of gaps and uncertainties in inter-
■ national law.
(b) Custom as a source of international law.
(c) Resolutions of the United Nations as a source of international law.
(d) General principles of law as a source of interna
tional law.
3. Practical attitude of the "new-born” States towards international law.
4. The composition of the Court.
(a) Reactions to the judgment on the South-West
Africa 1966 case and the question of composition of the Court.
(b) Procedures of the Court.
Chapter V.
Reasons for réluctance of States to refer their in
ternational disputes to the Court for adjudication and limits to international adjudication - A reprise.
1. Enumération of the limits to international adjudi
cation revisited.
2. An examination of the validity of the supposed limi
tations of international adjudication in the présent State of development of the international community.
3. Prospect of international adjudication.
Article 3^» paragraph 1 of the Statute of the Court provides that 'only States may be parties in cases before the Court'. Although there is no reference to in- dependent States, both a contextual reading of the instru
ment and State practice confirm that this is what was meant by the authors. (1) That the net resuit of the provisions of Article 3^ (1) of the Statute is that the capacity to
initiate legal proceedings and to be respondent and gene- rally to appear before the Court is reserved only to States is also clear from the jurisprudence of the Court. (2) Al
though the Court itself recognized in the Réparation for Injuries Suffered in the Service of the United Nations case that international organizations and above ail
(1) HIGGINS, R., The Development of International Law Through the Political Organs of the United Nations, 1963, 49.
(2) ROSENNE, S., The International Court of Justice, 1957, 235-236.
In a recent booklet entitled "The International Court of Justice" published and distributed by the Regi- stry of the Court the following passage appears at page 32:
Hardly a day passes without the Registry recei- ving written or oral applications from private persons.
However heartrending, however well founded such applica
tions may be, the ICJ is unable to entertain them and a standard reply is always sent: "Under .Article 34 of the Statute, only States may be parties in cases before the Court". A similar answer is given to the représentatives of nations that do not constitute States and to the re
présentatives of States, provinces or cantons forming
part of a Fédéral State.
the United Nations, can and do possess international personality, so as to be able of advancing international daims, that does not mean that these international
organizations possess full procédural capacity before the international tribunals including the Court. (3) It is to be mentioned here that the jurisdiction of the Court stands in contrast with the jurisdiction of the Court of Justice of the European Communities and the European Court of Human Rights which would be entitled to hear, within their respective fields of jurisdiction, disputes between a State on the one hand and an inter
national organization, a collectivity or an individual on the other. (4) Private interest can form the subject of proceedings before the Court, if a State relying on international law takes up the cases of its nationals daim to hâve suffered in the latters hands, the
disputes thus becoming between States. (5)
The provisions of Article 34 (1) of the Statute no doubt conforme to the classical viewthat
"international law is primarily concerned with the rights and duties of States and not those of other persons ... States only possess full procédural capacity before international tribunals". (6) These
(3) ROSENNE, S., The Law and Practice of the Interna
tional Court, vol. I, 1965, 268.
(4) JENKS, W., The Prospects of International Adjudica
tion,1964, 144-148.
(5) Examples of this type of proceedings before the Court are afforded by the Ambatielos, Anglo- Iranien Oil
Co., Nottebohm, Interhandel, and Barcelone Traction, Light and Power Co. Ltd cases.
(6) OPPENHEIM, International Law, vol. I, (Lauter-
pacht ed.) 8th édition, 1955, 20.
views are however coramonly regarded as the raost out of tune with the requirements of modem international life.
The need to redefine the scope, impact and purposes of international law has been articulated by several dis- tinguished writers. (7) To quote here only a few of the distinguished writers, Professer Jessup stressed the need to reassess the scope of international law in the following words:
"The use of transnational law would supply a larger storehouse of rules on which to draw, and it would be unnecessary to worry whether public or private law applies in certain cases. We may find that some of the problems that we hâve considered essentially interna
tional, inevitably productive of stress and conflict between Governments and peoples of two different coun- tries, are after ail merely human problems which might arise at any level of human society - individuel, cor- porate, interregional or international". (8)
The shift in the structure of international law has been vividly stated by Jenks;
"The emphasis of law is increasingly shifting from the formai structure of the relationship between States and the délimitation of their jurisdiction to the development of substantive rules on matters of com- mon concern vital to the growth of an international com- munity and to the individuel well-being of the citizens of its member States. We shall also find that as the resuit of this change of emphasis the subject-matter of the law increasingly includes cross-frontiers relation- ships of individuels, organisations and corporate bo- dies which call for appropriate legal régulation on an
(7) For a discussion and bibliography on the subject see
FRIEDMANN, W., The Changing Structure of International Law, 1964, 67-71, 213-245.
(8) JESSUP, P., Transnational Law, 1956, 15-16.
(9) JENKS,W., The Common Law of Mankind, 1958, 17.
internationl basis (9)
Although procédural capacity before the Court bas been preserved only for States, it is évident that statehood bas to be supplemented by tbe formai membersbip of tbe United Nations. (10) Tbe Court is also open to membersbip of tbe States not members of tbe United Na
tions on conditions to be determined in eacb case by tbe General Assembly upon tbe recommendation of tbe Se- curity Council in terms of Article 93, paragrapb 2, of tbe Cbarter. (11) Tbe conditions laid down bave bitberto
(10) Article 35, pragrapb 1, of tbe Statute provides tbat 'tbe Court sball be open to States parties to tbe présent Statuts', and Article 93, paragrapb 1, of tbe Cbarter of tbe United Nations provides tbat 'ail Mem
bers of tbe United Nations are ipso facto parties to tbe Statute of tbe International Court of Justice'.
(11) In tbis connection Professor Kelsen's commente are wortb noting;
"Tbat tbe Cbarter in distinguisbing between parties to tbe Cbarter and parties to tbe Statute, calls only tbe former 'Members of tbe United Nations' is not quite correct. Tbe statement tbat pbysical or juristic persons are members of an organization or Community is a figurative expression. Its meaning is tbat tbese persons are subjected to tbe legal order wbicb constitutes tbe organization or community by
regulating tbe mutual bebaviour of tbese persons. If tbe legal order bas tbe cbaracter of a treaty, tbe persons wbose bebaviour is regulated by it are - as a rule - tbe States wbicb are contracting parties to tbe treaty. Since tbe Statute according to Article 92 forms an intégral part of tbe Cbarter, (in tbe wider sense of tbe term) ail tbe States parties to tbe Statute are
'Members' of tbe United Nations, tbis term used in a wider sense designating tbe total community comprising tbe judicial community wbose organ is tbe Court".
(Tbe Law of tbe United Nations, London, 1950, 80)
»
been the same in each case. They were laid down for the first time as a resuit of a request by the Swiss Fédéral Council, on that occasion the General Assembly, on 11 December 19^6, adopted resolution 91 (1) which prescrites the following conditions:
"(a) Acceptance of the provisions of the Statute of the International Court of Justice;
(b) Acceptance of ail the obligations of a Meraber of the United Nations under Article 9^ of the Charter;
(c) An undertaking to contribute to the expenses of the Court such équitable amount as the General Assembly shall assess from time to time after consultation with the Swiss Government”. (12)
The date on which the State concerned becomes a party to the Statute is that ol the deposit with the Secretary-General of the United Nations of the instru
ment of acceptance of the conditions. So far four Sta
tes, namely Switzerland, Liechtenstein,San Marino and Nauru hâve become parties to the Statute in terms of pro
visions contained in Article 93 (2) of the Charter.(13) Before becoming a Member of the United Nations, Japan was also a party to the Statute of the Court as from 2 April 1954 under the same conditions. (14)
The Statute of the Court also provides that the Court 'shall be open' to States other than parties to the Statute on conditions to be laid down by the Security Council. (15)
(12) ICJ Yearbook, 1988-89, p. 46
(13) General Assembly Resolutions 91 (1) of 11 Decem
ber 1946, 363(IV) of 1 December 1949 and 806 (VIII) of 9 December 1953, and 42/21 of l8 November 1987.
Ibid, P. 47.
(14) General Assembly Resolution 805 (VIII) of Decem
ber 1953.
(15) Article 35, paragraph 2, of the Statute provides:
'The conditions under which the Court shall be
In virtue of the powers conferred upon it by Article 35, paragraph 2, of the Statute of the Interna
tional Court of Justice and subject to the provisions of that Article,
Résolves that:
1. The International Court of Justice shall be open to a State which is not a party to the Statute of the Inter national Court of Justice, upon the following conditions namely, that such State shall previously hâve deposited with the registrar of the Court a déclaration by which
it accepta the jurisdiction of the Court, in accordance with the Charter of the United Nations and with the terms and subject to the conditions of the Statute and Rules of the Court, and undertakes to coraply in good faith with the decision or decisions of the Court and to accept ail the obligations of a Member of the United Nations under Article 94 of the Charter;
2. Such déclaration may be either particular or general.
A particular déclaration is one accepting the jurisdic
tion of the Court in respect only of a particular dis
pute or disputes which hâve already arisen. A general déclaration is one accepting the jurisdiction generally in respect of ail disputes which hâve already arisen or which may arise in the future. A State, in making such a general déclaration, may, in accordance with Arti
cle, 36,
open to other States shall, subject to the spécial pro
visions contained in treaties in force, be laid down by the Security Council, but in no case shall such con
ditions place the parties in a position of inequality
before the Court'.
paragraph 2, of the Statute recognize as compulsory, ipso facto and without spécial agreement, the juris- diction of the Court, provided, however, that such ac
ceptance may not, without explicit agreement be relied upon vis-a-vis States parties to the Statute which hâve made the déclaration in conformity with Article 36, pa
ragraph 2, of the Statute of the International Court of Justice;
3. The original déclarations made under the terms of this resolution shall be kept in the custody of the Registrar of the Court, in accordance with the practice of the Court. Certified true copies thereof shall be transmit- ted, in accordance with the practice of the Court, to ail States parties to the Statute of the International Court of Justice, and to such other States as shall hâve deposited a déclaration under the terms of this resolution, and to the Secretary-General of the United Nations;
4. The Security Council reserves the right to rescind or amend this resolution by a resolution which shall be communicated to the Court, and on the receipt of such communication and to the extend determined by the new resolution, existing déclarations shall cease to be effective except in regard to disputes which are al- ready before the Court;
5. Ail questions as to the validity or the effect of a déclaration made under the terms of this resolution shall be decided by the Court". (16)
The Statute, however, in terms of Article 35 (2) make no différence of substance between States which are parties to the Statute by virtue of their membership in the United Nations and States which are parties to the Statute without being members of the United Nations. (17) In the past, particular
(16) SCOR, Ist Year, 76th mtg, 1946, p. 468.
(17) Slight différence of a purely procédural character
déclarations were filed by Albania (19^7) and by Italy (1953), and general déclarations by Cambodia (1952), Ceylon (1952), the Fédéral Republic of Germany (1955, 1956, 1961, 1965 and 1971). Finland (1953 and 1954), Italy (1955), Japan (1951), Laos (1952) and the Republic of Viet Nam (1952). (l8)
Members of the United Mations are of two kinds - original Members under Article 3 (19) and ad- mitted Members under Article 4 (20) of the Charter.
exist in that certain communications due to be sent to ail parties to the Statute are, in the case of the Mem
bers of the United Nations, transmitted through the Security Council of the United Nations, whereas in the case of the States parties to the Statute but not mem
bers of the United Nations such communications are trans
mitted directly by the Registrar, in accordance with arrangements made by him and the State in question.
See supra note 3 at 273.
(18) See supra note 12 at p. 49.
(19) 'The original Members of the United Nations shall be the States which, having participated in the United Nations Conférence on International Organisation at San Francisco, or having previously signed the Décla
ration by United Nations of January 1, 1942, sign the présent Charter and ratify it in accordance with Ar
ticle 110 ' .
(20) '(1) Membership in the United Nations is open to ail other peace-loving States which accept the obli
gations contained in the présent Charter, and in the judgment of the Organisation, are able and willing to carry out these obligations.
(2) The admission of any such State to member
ship in the United Nations will be effected by a deci
sion of the General Assembly upon the recommendation
of the Security Council'.
Among the original Members of the United Nations are several independent territories of the British Common- wealth of Nations and two of the Republics of the Union of Soviet Socialist Republics (the Byelorussian SSR and the Ukranian SSR). The question whether entities of these types are or are not States from the point of view of general international law is quite irrelevant for the purposes of Article 3 and Article 4 of the Char
ter, or Article 34, paragraph 1, of the Statute. No organ of the United Nations, including the Court may question that such political units are States from the point of view of the Statute, regardless of whether they will be so regarded by general international law.
(21)
(1) Définition of 'new-born' States
The Word "new” conveys a meaning which is relative by définition. Different writers hâve not been in agreement as to what entities they consider "new States", though it is generally held that in interna
tional law "new States" are such States that hâve not traditionally been subject of international law and hâve therefore had little or no say in its making. Yet this définition can be accepted as accurate if we raean by international law that set of established customary rules which find their origins in the "droit public européen" or perhaps in the earlier res publica Christiana. "New States" may then cover ail présent day States except the European States. (22)
(21) ROSENNE, S., Récognition of States by the United Nations. BYIL,1949. p. 440.
(22) SHIHATA,F.I., The Attitude of New States towards the International Court of Justice, International Or-
»
ganization, 1965, vol.XIX, No 2, p. 204
The l8th and 19th centuries brought forth the full or partial participation in the custom making process of States outside Europe, such as the United States of America, Turkey, Japan and the Latin American States.
Therefore, if one is speaking of international law as understood at the time of the Treaty of Versailles,
"new States” will practically be a descriptive term of States which are mainly in Asia and Africa. (23) Keeping in view the provisions of Article 3^ paragraph 1, of the Statute and Article 93, paragraph I of the Charter, two criteria of what constitutes a 'new born' State among the existing 159 Members (24) of the United Nations, are adopted here and seem to be fairly com
préhensive. The first is that the country has achieved the status of an indépendant State since 1945; the second, that the country was, upon its admission to the United Nations, a politisai new-comer upon the in
ternational scene. (25)
It must be emphasized here that the notion of 'newness' in itself is liable to provoke a raislead-
ing impression as many of the States classified as
"new-born" because of their recent re-emergence as in
dépendant participants in international life, hâve en- joyed a distinguished record of existence and indépen
dance antedating the colonial period. Most of the Asian States hâve had some form of particular identity for several centuries and many of African States had an indépendant tradition of politisai organization in the precolonial period. The notion of "newness” is then used only to refer to the rather recent acquisition or reacquisition of the attribute of national sovereignty enabling the State to enjoy the full privilèges of
(23) Ibid, p. 205
(24) See supra note 12 at pp. 42-46
(25) FAWCETT, J.E.S., The New States and the United
Nations, The Yearbook of World Polity,vol. III, 1966,
pp. 230-231.
membership in the Family of Nations. (26) Some of the Asian and African States not only had indépendant
existence antedating the colonial period, but were also members of the League of Nations and as such original Members of the United Nations. These States such as, Ethiopia, India, Egypt, Iran, Iraq, Liberia and Thai- land hâve been included in the category of ”new-born”
States, because of their common political and social outlook with the other Asian-African States which at- tained indépendance only after 19^5.
Taking into considération the above mentioned criteria and the explanations thereunder, the following 102 States-Members of the United Nations hâve been put under the category of "new-born” States for the purpose of our study:
Afghanistan, Algeria, Angola. Antigua and
Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belize, Bénin, Bhutan, Botswana, Brunei Darussalam, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo, Cote d'ivoire, Cyprus, Démocratie Kampuchea, Démocratie Yemen, Djibouti, Dominica, Egypt, Equatorial Guinea, Ethiopia, Fiji, Gabon, Gambia, Ghana, Grenada, Guinea, Guinea-Bissau, Guyana, India, Indonesia, Iran, Iraq, Israël, Jamaica, Jordan, Kenya, Kuwait, Lao People's Démocratie Republic, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Madagascar, Malawi, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Morocco, Mozambique, Myanmar, Népal, Niger, Nigeria, Oman, Paki
stan, Papua New Guinea, Philippines, Qatar,' Rwanda, St.
Kitts and Nevis, St. Lucia, St. Vincent and the Grena- dines, Samoa, Sao Tome and Principe, Saudi Arabia, Sénégal, Seychelles, Sierra Leone, Singapore, Solomon Islande, Somalia, Sri Lanka, Sudan, Suriname, Swazi
land, Syrian Arab Republic, Thailand, Togo, Trinidad and Tobago, Tunisia, Uganda, United Arab Emirates, United Republic of Tanzanie, Vanuatu, Vietnam, Yemen, Zaire, Zambie and Zimbabwe.
(26) FALK, R.A., The New States and International Legal
Order, 118 RCADI, 1966, p.lO.
(II) The problems of the ’new-born' States
It has been rightly pointed out that in understanding the rôle of the ”new-born" States in in
ternational legal order, it is essential to grasp that the requirements for domestic political life normally takes precedence and shape the participation of these States in foreign affairs. " Appreciating the proble- matics of nation-building in the Afro-Asian world is an essential ingrédient of our understanding of the behaviour of the New States and provides a distinctive basis for interprétation". (27) The problems of the
"new-born" States arise from the fact that for over a long period which witnessed revolutionary changes in the économie, political and scientific life of the
Western world, these countries were under foreign rule.
Primarily it had two results; it changed the course of their évolution, leaving them at the time of their in- dependence in a State of political and social uncer- tainty with their own traditions undermined if not al- together destroyed and with the new ideas imported from the West only imperfectly understood and parti- ally assimilated. Secondly, it had deflected the course of their économie development, subjecting them in
effect to a colonial System of economy. They stepped out of their dependence in a State of économie back- wardness, insufficiently equipped to deal with the
tremendous problems which faced them. (2-8) It must also be noted that colonial rule helped to foster in each country a tiny class of entrepreneurs, the so- called "elite", to whom, considérations of économie development of the country was either irrelevent or
incidental.
(27) Ibid, p. 14.
(28) PANNIKAR,K.M., The Afro-Asian States and their
Problems, p.95.
The World into which the new political en- tities emerged as independet nations was itself under- going revolutionary changes in every sphere. "It was dorainated by the fear and coraplex and no less than by the hopes and expectations which the new and startling scientific discoveries created for the world. The old World relationship had broker down as a resuit of ato- mic power. Industrial organization and production were undergoing a revolutionary change. In fact, it was altogether a new world to share in which most of them were not adequately prepared. Naturally, the problems
they had to struggle against became infinitely more difficult”. (29)
The 'new-born' States hâve generally begun their existence as independet States in the position of debtors under the traditional legal order. Their authority or their territory or both were burdened with debts, concessions, commercial angagements of va
rions kinds, the preserve of foreign owned property or other obligations continuing on from the earlier colonial régime. They face the prospect of vast future indebtedness arising from their urgent needs for great quantities of investment capital. It is, therefore, natural that these States would desire to maintain the utmost freedom of future action in relation to their legal obligations. (30) This is not only the common reaction of a debtor, it is also an expression of pride in their new-born sovereignty and of their sense of responsibility for the économie develop
ment (31) of their countries and the improvement of the standard of life of their people.
(29) Ibid; p.96.
(30) STONE, J., Quest for Survival : The Rule of Law
and Foreign Policy, Harvard University Press, 1961,
pp. 13-14.
The great majority of the "new-born” States are characteristically under-developed. (32) These coun- tries are also referred to as "developing countries".
In these countries there is a serious gap between their stated aspirations:
(31) The conception of 'économie development' involves noneconomic factor of an économie process. It has a po- litical motivation and is decriptive of the process of social and cultural change which produces results that cannot be measured in économie terms. HYDE, J.N., Econo
mie Development Agreements, 105 RCADI, 1962, 221-224.
(32) Countries with average per capita income of
U$ 564 in Africa and U$ 711 in Asia are included in the category of developing countries. By this description ail "new-born" States except oil-rich Arab countries, of Middle East, Asia and Africa, and Botswana, Brunei Darussalam, Cameroon, Congo, Gabon, Israël, Ivory Coast, Liberia, Malaysia, Mauritius, Seychelles,
Singapore, Thailand and Tunisia, can be considered de
veloping countries. Among the developing countries there are 29 least developed countries with less than U$ 217 average per capita income. The basic charac- teristic of the least developed countries include
"extremely low levels of labour productivity, scar- city of skilled manpower, inadéquate knowledge about the nature and extent of their naturel resources, low level of physical and institutional infrastructure, the prédominance of subsistence production, dépendance on a very narrow range of primary commodities in their production and export structure, and lack of integra- ted and coordinated industrialization". U. N. Confé
rence on Trade and Development: Statistical Pocket
Book: UN. 1989.
a reasonable standard of living for their rapidly in- creasing population, a degree of économie development and diversification which reduce excessive dependence on staple commodities and increase employment, a growth in the literary, the scientific, technical and admini
strative potential of their population to a point where they can effectively guide and administer a modem
State; and the actual position of their population
which is one of sub-standards of living, (for the great majority) of inadéquate levels of éducation and train-
ing and of excessive dependence on the production and export of raw matériels and staple commodities. (33)
(III) Ideological Perspective of the
"new-born" States
A brief survey of the idéologies of the
"new-born” States is made here, because of the fact that ideological commitments of these States lead them to acts which hâve conséquences in international law.
Ideology has connotations of commitment, both emotional and intellectual, of action-orientation, and of con- scious or unconscious distortion of facts to fit a pre-established doctrine. (3^) Ideology is a pattern of ideas which simultaneously provides for its
adhérents a self-definition, a description of the current situation; its background, and the prospects and the varions impératives which are deduced from these. (35)
(33) loc . cit, p.317.
(3^) SIGMUND(Jr),P.E., Idéologies of the Developing Nations, 1963,3.
(35) MATOSSIAN,M., Idiologies of Delayed Industrial- ization: Some Tensions and Ambiguities, in
J.H. Kautsky (ed), Political Change in Underdeveloped
Countries ; Nationalism and Communism. 1962, 252-253.
Painfully aware of the unpleasant contrast of poverty, illiteracy and disease of their own States with the affluence of the industrialized States, the leaders of the "new-born" States hâve one compelling task to perform, that of économie development of their countries They are intensely aware of huge international économie
inequalities and also of the danger that these ine- qualities will continue to grow unless arrested. The contemporary desire in these countries towards économie development has emerged as a major political issue.
Their leaders are pledged to press it forward at ail costs and nationalism has in this context an important rôle in articulating and welding to their long slumber- ing masses and inspiring them to their common purpose.
(36) In their effort for économie development most of these States do not either find it necessary or com
patible with the social and économie objectives to cast their lot entirely with either the ideology of liberal capitalism or that of communism. Drawing from both Western liberalisra and Soviet communism, they forge
their own ideological pattern fqr action and give it characteristics of its own. (37) But it must also be pointed out that there is a willingness on the part of some States in Asia and Africa to borrow from the experi ence of the Communiât States which hâve dealt with their économie and Social problems following the Marxist-
Leninist ideology. ( 38) Recent developments in some
(36) DARJAjK.H., The Rule of Law and Economie Inequali
ties among Nations, IJIL, 196I, pp. 226-227.
(37) SINHA,S.P., New Nations and the Law of Nations, Leyden, 1965, 28-29.
(38) WATNICK,M., The appeal of Communism to the Under-
developed Peoples, in J.H. Kautsky (ed), Political
Change in Underdeveloped Countries, Nationalism and
Communism, 1962, pp. 316, 318.
countries in Africa and Asia, point to the unmistak- able fact that Communiât ideology is not without its influence in the solution of économie and social pro- blems and that some countries hâve shown willingness to adopt it. But there is no indication as yet that this influence is widespread among the developing
States of Asia and Africa. It must also be pointed out that many of the developing countries of Asia and Africa, though desparate for some form of development, hâve
become increasingly hésitant in seeking their salva- tion in the achievement of Western type of society. (39)
Most developing African States hâve attempted to define their future course by combining prévalent Western idéologies with their own unique, often single
party, polltical organizations. (40) More egalitarian distribution of income (through progressive taxation, land reform, increased social services and minimum wage laws) is emphasized everywhere along with a major
économie rôle for Government, often defined in terms of a specially adapted concept of socialism, such as,
"African Socialism" of Kenya, "Compétitive Socialism"
of Uganda, "Scientific Socialism" of Congo, the "Ujamaa (familyhood) Socialism" of Tanzania, "Humanistic Social
ism" of Zambia, "Neo-destourian Socialism" of Tunisia,
"Islamic Socialism" of Algeria and Lybia, "Bathist Socialism" of Syria and Iraq. This egalitarianism is interpreted to include only broader public sector and careful limitation of the rôle of private enterprise
(39) SYATAUW, J . J .' g . , Old and New States: A Misleading distinction for Future International Law and Inter
national Relations; IJIL, 1975, p. 153*
(40) One specialist in African affaire has commented
that one-party System of Government in African States
does not corne anywhere near to establishing a totali-
tarian régime. For a totalitarian régime to succeed
it is necessary to hâve either a highly developed
but also equality between geographical régions. (4l) In fact Asian-African developing countries span the entire spectrum of Communist, non-Coramunist and capitalist poli- cy towards ownership of enterprises. Among the countries which hâve adopted the Communist ideology, namely, the labolition of private property and nationalization of the means of production as steps toward achieving the ultimate goal of a classless society, are Laos, Démo
cratie Kampuchea, and perhaps, Angola and Mozambique.
But indications are there that the latter two countries are prepared to concédé limited rôle to the private en- terprise for the économie development in these two coun
tries. On the other hand, there are countries, such as, Sierra Leone, Liberia, Gabon, Ivory Coast, Philippines and Thailand which hâve pinned their faith in the capi
talist ideology of économie development of their coun
tries. These countries rely more on private capital, foreign and indigenous, for the overall économie de
velopment of their countries. The next group of coun
tries in order of numerical strength, such as, Algeria, Libya, Mali, Nigeria, Guinea, Guinea-Bissau, Bénin, Egypt, Iraq, Syria, Congo, Ethiopia, Tanzania, Madagas
car, Zambia, Somalia and Burma, call themselves "social- ists", perhaps, because their beliefs may be rooted
less in Marxism than in nationalism. Largely, because of their expérience with colonialism, they reject capi- talism as identifiable with imperialism and exploitation.
administrative apparatus for coercive purposes or a strong party organized on a monolithic basis. Both these conditions are absent in Africa. See GUPTA, A., Government and Politics in Africa, Delhi, 1975, 70.
(41) Pattern of Development; Report of the Commission on International Development, Baeger Publishers, New York, 1969, 264.
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