The New States and International Law

See: The New Nations in International Law and Diplomacy, cd. W. V. O'Brien (London, 1965).

" The Theory of Recognition in Fieri " by the author, BYIL 1958.

Sec General Assembly Resolutions 637/A (VII); 742 (VIII); 1514 (XV): 1654 (XVI); 1810 (XVII); 1904 (XVIII); 2131 (XX); 2189 (XXI). Between 1957 and 1960 nine communities under the Trusteeship system gained independence leaving only two Trusteeship territories in existence (New Guinea and the Pacific Islands). See also reference of the General Assembly Resolution of December 1973 to the inalienable right of self-determination.

See: " New and Original States " by the author, in International Affairs, Vol. 45, No. 3, 1969, p. 465.

Ibid.

For a correct appreciation of the subject, see R.P. Anand , The New States and International Law, (Delhi, 1972).

See D.P. O'Connell , The Law of State Succession (Cambridge, 1956). See also Ingrid Delupis , International Law and the Independent State (Epping. 1974). The author denies automatic devolution and considers the possibility of withdrawal of New States from devolution agreements on the basis of rebus sic srantibus or the theory of continuous consent.

It may be interesting to recall that a classic writer, E. Vattel, in his Droit des Gens (I, XXIII, 287) anticipated the progress of the law by referring to the pearl fisheries of some of the East Indian Rulers which were in fact rights on the continental shelf far exceeding the customary limits of territorial waters.

H. Bokor-Szego New States and International Law (Budapest, 1970), p. 66.

International Affairs, supra.

Soviet legal theory tends to define jus cogens as imperative voluntary law, a contradictum in adjecto, resulting from the rejection by Soviet writers of natural law (see H. Bokor-Szego, op. cit.).

See Bokor-Szego, op. cit.

UNCTAD, T.D./B/AC 12/3, Mar. 18, 1974.

See J. Fawcett in BYIL 1950, p. 355.

The acceptance of the Charter is now being considered by the UNCTAD Conference which started in Mexico in June 1974.

The question whether the New States are bound to accept the General Principles of Law (the third main source of international law) has not been discussed above. Sir Hersch Lauterpacht's weighty dictum that the General Principles " sound the death knell of positivism " may be recalled. International lawyers in the New States can hardly be enthusiastic about the type of positivism which was running on parallel lines with colonialism in the nineteenth century. Moreover, the influence of certain fundamental principles of Hindu and Islamic law on the General Principles of Law at present may be considered. They played also a significant role in the past when many Afro-Asian countries maintained diplomatic relations with European Powers and made treaties with them. These countries contributed no doubt to the secularisation of the law of nations prior to the nineteenth century and to the strengthening of certain General Principles, to mention only the principle pacta sunt servanda. They can confidently defy the Eurocentric classification of nations into those which made history and those which lack history (Anand, op. cit.).