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Published online by Cambridge University Press: 28 March 2017
This work forms a companion volume to Legal Advisers and Foreign Affairs published three years ago in a similar format, under the same editorship and auspices, and reviewed by the present writer in this Journal for January, 1965. Like its predecessor it is the outcome of a symposium sponsored by the American Society of International Law under the Chairmanship of its President, Professor Brunson MacChesney, which took place at Bellagio in August, 1965, the participants being members not of government legal services but of the analogous services of representative international organizations. In sponsoring the Bellagio Conference the Society was following up and extending its exploration of the rôle played by the “service” legal adviser in the international field—a rôle which, as the present reviewer previously had occasion to point out in connection with the functions of legal advisers to governments and government departments, has certainly been neglected and, because neglected, to some extent misunderstood.
1 Legal Advisers and International Organizations. Edited by Merillat, H. C. L. and published for the American Society of International Law by Oceana Publications Inc., Dobbs Perry, New York, 1966. pp. xx, 124.Google Scholar Index. $3.75.
2 Vol. 59, No. 1, at p. 72, as a review article.
3 See reference in note 2 above, Sec. I, at pp. 72-75.
4 The preface alone is signed by Mr. Merillat, but the ensuing report is clearly his work also.
5 The present reviewer gladly avails himself of the opportunity here afforded of repairing the most regrettable, but quite inadvertent, omission of the name of Dean Vicente Abad Santos (University of the Philippines) from the list given in note 9 on p. 76 of the review of Legal Advisers and Foreign Affairs (see note 2 above), stating those attending the Princeton Conference who contributed background papers on that occasion.
6 Those attending the Bellagio meeting (as listed on pp. xv and xvi of the volume) were: Gaetano Arangio-Ruiz (University of Padua); Elting Arnold (Inter-American Development Bank); A. Broches (International Bank for Reconstruction and Development) ; Richard W. Edwards, Jr. (American Society of International Law); Alexander Elkin (United Nations Economic Commission for Africa; formerly of the Organisation for European Economic Co-operation); J. E. S. Fawcett (European Commission of Human Eights; formerly of the International Monetary Fund); F. V. Garcia-Amador (Organization of American States); M. Gaudet (European Economic Community); Joseph Gold (International Monetary Fund); Edvard Hambro (Norwegian School of Economics and Business Administration; formerly Registrar, International Court of Justice); John B. Howard (Ford Foundation); Brunson MacChesney (Northwestern University; President, American Society of International Law, 1964-66; Chairman of the Conference); Jacques Megret (European Communities); H. C. L. Merillat (Executive “Vice President, American Society of International Law); A. H. Robertson (Council of Europe); Oscar Schachter (United Nations); Finn Seyersted (International Atomic Energy Agency); Louis B. Sohn (Harvard University); Eric Stein (University of Michigan); Th. W. Vogelaar (Euratom); Francis Wolf (International Labour Office). Nearly all of these contributed either background or discussion papers and some both.
7 A prominent instance is the special power given to the Secretary General by Art 99 of the Charter to “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.“
8 Briefly according to American practice, the lawyers sit in on policy-making from the start; whereas in England they would normally be brought in or separately consulted at a later stage. But it is doubtful whether the difference amounts to much more than a question of method.
9 From “Craftsmanship in International Law,” 50 A.J.I.L. 32 at 51 (1956). This citation here emended and truncated and separated from its context, is set out in extensor below.
10 Presumably because, if it is not followed on a like future occasion, it may be difficult to explain just why; and there will consequently be a risk of commitment to a settled practice over something originally intended to be of a merely ad hoc character.
11 The actual word used here, having regard to the context, is “economic“; but the point remains pertinent, whether the factors involved are political, social or anything else.
12 In this connection an interesting point is made (top of p. 5), which has its parallel in governmental legal services, namely, that the legal advisers, being consulted, as rethey are, on a large number of different topics, tend to be the repositories of a more complete range of information, and to acquire a broader perspective, than is possible for any purely technical or geographic section or division.
13 Naturally no worth-while legal advice can ever be given in vacuo and without reference to the facts or policy considerations involved. There is nevertheless a great difference between advising on the basis of certain facts or considerations, and allowing these to have repercussions on the advice given. It can be assumed therefore that the intended meaning here was that, on the contrary, the advice given might have repercussions, if not on the facts, on the policy considerations involved.
14 “ its “ : presumably the organization's.
15 See footnote 9 above.
16 See the present reviewer's remarks on the correct approach where a legitimate choice of legal conclusions presents itself, made when commenting on the late Judge Sir Hersch Lauterpacht's views on the place to be accorded to such factors as “legal policy” and “international public interest.” These remarks will be found in the British Tear Book of International Law for 1962, in particular on p. 11, and under rubric (iii) and the ensuing “Comment” on pp. 23-24.
17 It should be mentioned that, as Mr. Elkin himself pointed out (volume, p. 1), his paper, in order to stimulate discussion, “deliberately included a number of somewhat controversial propositions.”
18 [1962] I.C.J. Rep. 151.
19 For some of the present writer's observations on this subject see British Tear Book of International Law for 1952, at pp. 5-6; and, indirectly, when commenting on the views of Judge Sir Hersch Lauterpacht on voting rules (as given in his separate opinion in the South West Africa Voting Procedure case), in ibid, for 1962, in rubric (4) on pp. 20-21, and in rubric (9) on pp. 29-30.
20 The relevant ones are listed in note 10, on p. 47 of the volume.
21 As stated in note 11 on p. 47 of the volume under review, Mr. Seyersted also relies considerably on the Advisory Opinion of the International Court in the Expenses of the United Nations case (note 18 above). But, as indicated in some of the separate opinions in that case, the Court did not deal with all the difficulties involved.
22 [1948] I.C.J. Rep. 68.
23 There is of course a latent ambiguity here, which if resolved in one way would support Mr. Seyersted's interpretation; and if the passage had read “are conferred upon it by law as being essential … “ etc., omitting the words “by necessary implication,“ there would be little doubt about its intended meaning.
24 See British Year Book of International Law for 1951, pp. 9 and 20-22; and ibid. for 1957, pp. 211-212 and 223-225.
25 To ‘which the writer added his contribution in a set of Hague Academy Lectures (Recueil des Course, 1957, II , $$57-68).
26 See the writer's discussion of this under the rubric of “In case (ii) “ in British Year Book for 1957, at p. 230.
27 The somewhat controversial finding of the Permanent Court of International Justice in that sense concerning the so-called “Ihlen Declaration” in the Eastern Greeland case (P.C.I.J. Reports, Series A/B, No. 53, at pp. 70-71) is the subject of an interesting discussion by Professor D. P. O'Connell in one of the latest general treatises on international law (Vol. I, pp. 219-221). The International Law Commission of the United Nations, in its final Report on the Law of Treaties (1966, General Assembly Doc. Supp. No. 9—A/6309/Rev. 1, par. (7) on p. 22), recognized “legal force” for oral agreements but not the character of “ treaties .“
28 See again the reference gjven in note 26 above.
29 General Assembly Res. 1884 (XVIII) of Oct. 17, 1963.
30 The present writer, during his period as Special Rapporteur to the International Law Commission on the Law of Treaties, was opposed to codifying the law on that subject in what would itself constitute a member of the class being treated of. As the eternal conundrum of the Cretan and his affirmation that all Cretans were liars shows, a cvrculus inextricabilis is liable to be set up whenever the authority for a statement or rule about a class of things consists of, or emanates from, something that is itself a member of that class.
