This document introduces the tasks facing a policy-oriented jurisprudence in international law. It notes that while interdependence between peoples has increased with modern technology, the existing legal order has not kept pace, threatening increased violence and catastrophe. It aims to develop a legal philosophy that takes social and political factors into account to enable international law to better organize an increasingly interconnected world and pursue common goals of freedom, peace, and shared prosperity. However, current trends toward hostile bipolarization and garrison states threaten these aims by prioritizing power over other values. The document argues policy-oriented jurisprudence must address this challenge.
This document introduces the tasks facing a policy-oriented jurisprudence in international law. It notes that while interdependence between peoples has increased with modern technology, the existing legal order has not kept pace, threatening increased violence and catastrophe. It aims to develop a legal philosophy that takes social and political factors into account to enable international law to better organize an increasingly interconnected world and pursue common goals of freedom, peace, and shared prosperity. However, current trends toward hostile bipolarization and garrison states threaten these aims by prioritizing power over other values. The document argues policy-oriented jurisprudence must address this challenge.
This document introduces the tasks facing a policy-oriented jurisprudence in international law. It notes that while interdependence between peoples has increased with modern technology, the existing legal order has not kept pace, threatening increased violence and catastrophe. It aims to develop a legal philosophy that takes social and political factors into account to enable international law to better organize an increasingly interconnected world and pursue common goals of freedom, peace, and shared prosperity. However, current trends toward hostile bipolarization and garrison states threaten these aims by prioritizing power over other values. The document argues policy-oriented jurisprudence must address this challenge.
A CONTEMPORARY CONCEPTION BY MYRES S. McDOUGAL G MYRES S. MCDOUGAL BIOGRAPHICAL NOTE Myres SMITH MCDOUGAL; William K. TOWNSEND Professor of Law, Yale University School of Law. Born November 23, 1906; B.A., M.A., L.L.B., University of Missis- sippi; B.A. in Jurisprudence, B.C.L., University of Oxford; J. S. D. , Yale University; Rhodes Scholar, University of Oxford 1927-1930. Assistant General Counsel, Lend-Lease Administration, 1942; General Counsel, The Office of Foreign Relief and Rehabilitation Operations, United States Department of State, 1943; Lecturer, Fulbright Confe- rence on American Studies, Cambridge University, Summer 1952. Member of Editorial Board, The American Journal of International Law; Member of Editorial Board, The American Journal of Compara- tive Law. PRINCIPAL PUBLICATIONS 1. Property, Wealth, Land : Allocation, Planning and Development; Selected Cases and Other Materials On the Law of Real Property, An Intro- duction. Charlottesville, Michie Casebook Corporation, 1948. viii, 1213 pp. (With David Haber. ) 2. The Case for Regional Planning with Special Reference to New England, by the Directive Committee on Regional Planning, Yale University. New Haven, Yale University Press, 1947, 94 pp. (Chairman of Committee, with Maurice E. H. Rotival.) 3. Legal Education and Public Policy: Professional Training in the Public Interest. Yale Law Journal, 52:203-295, March, 1943. (With Harold D. Lasswell.) 4. Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, Tale Law Journal, 54:181-351; 534-615, June, 1945. (With Asher Lans.) 5. The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action. Yale Law Journal, 59:60-115, 1949. (With Gertrude C. K. Leighton.) Also printed in Law and Contemporary Problems, 14:490-536. 1949. 6. The Genocide Convention and the Constitution. Vanderbilt Law Review, 3:683-710. 1950. (With Richard Arens.) 7. The Veto and the Charter: An Interpretation for Survival. Yale Law Journal, 60:268-292. 1951. (With Richard N. Gardner.) 8. The Comparative Study of Law for Policy Purposes : Value Clarification as an Instrument of Democratic World Order. Yale Law Journal, 61:915-946. 1952. (Also in American Journal of Comparatine Law, 1:24-57. 1952.) INTERNATIONAL LAW, POWER AND POLICY : A CONTEMPORARY CONCEPTION *) "We shall not ask him ["the jurist of the immediate future"] for a juristic romance built upon the cosmological romance of some closed metaphysical system. But we may demand of him a legal philosophy that shall take account of the social psychology, the economics, the sociology as well as the law and politics of today, that shall enable international law to take in what it requires from without, that shall give us a functional critique of international law in terms of social ends, not an analytical critique in terms of itself, and above all that shall conceive of the legal order as a process and not as a condition." POUND, Philosophical Theory and Inter- national Law, 1 Bibliotheca Visseriana 73, 89 (1932) INTRODUCTION THE TASKS OF A POLICY-ORIENTED JURISPRUDENCE (PHILOSOPHY-SCIENCE OF LAW) IN OUR TIME 1. The great discrepancy between the interdependences of peoples in fact throughout the world and the existing legal organization of the world confronts students of international law with unparalleled challenge and opportunity. Mankind today lives in a context of world social and power processes; without benefit of adequate legal organization these processes 1. Throughout these lectures the writer draws heavily upon collaborative studies with Professor Harold Lasswell in seminars on Law, Science, and Policy and World Community and Law. The writer is further gratefully indebted to the Wenner-Gren Foundation for Ahthropological Research for grants in support of such studies and to the Carnegie Endowment for Interna- tional Peace for making possible the delivery of these lectures. William K.'Townsend Professor of Law, Yale University. 138 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (6) are undergoing transformations of unprecedented magnitude, rapidity, and violence; the shadow of possible catastrophe hangs, with increasing common apprehension, over all our heads. (a) The advent of new weapons of destruction, with impact upon the security of every living human being, merely confirms a trend long evident in the progressive industrialization of the globe. Modern technology, which continues to expand at an ever accelerating rate, has established an inescapable inter- dependence in fact of all peoples everywhere, despite their inherited governmental institutions emphasizing independence in form, for controlling the conditions which determine the degree to which they can achieve any one of their values and all their values 1 . (b) The history of recent centuries documents a rising common demand of the peoples of the world, a demand which transcends the boundaries and competence of their inherited governmental forms, for all the values which we today sum- marize as the values of a free society or as fundamental respect for the dignity of the individual human being 2 . This rising common demand is explicit in varying degrees, and implicit to the fullest degree, in most of the new constitutions, territorial and functional, international and national, created since World War II, and it includes more specific, detailed demands for the greater production and sharing of all values and for security in the sense of opportunity to pursue and enhance all values by peaceful, non-coercive procedures, free from violence and threats of violence s . (c) The peoples of the world are becoming continuously more realistic in their consciousness of the conditions of inter- dependence under which they live and, hence, are ever widening 1. Wright, The World Community (1948); Ogburn, Technology and International Relations (1949); Linton (ed.) Most of the World (1949). 2. Lasswell, The Interrelations of World Organization and Society, 55 Yale L. J. 889 (1946) reprinted in Lerner and Lasswell, The Policy Sciences c. VI (1951). 3. McDougal and Leigh ton, The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action, 59 Yale L. J. 60 (1949). (7) INTRODUCTION 139 their identifications to include in their demands for values more and more of their fellow men whose fate they recognize they share. These more inclusive identifications are demonstrated and represented in continuously intensifying demands for wider and wider political cooperation, for the more effective use of conjoined community power for the securing of common goalsas witnessed by a general purpose world organization, multitudinous ancillary and subsidiary organizations and agencies, a growing number of regional pacts and understand- ings and of functional unifications, and almost countless multi- lateral and bilateral agreements 1 . (d) The eventual realization of a progressively freer, more peaceful, and abundant world society is, however, today threa- tened as never before in recent generations. The trend that perhaps most conspicuously dominates the contemporary world arena is not toward rational and peaceful cooperation in the pursuit of interdependent values but rather toward hostile bi- polarization, with ever increasing expectations of the most comprehensive violence 2 . These expectations of impending violence both vastly increase the ordinary difficulties of coopera- tion across nation-state boundaries and stimulate measures and processes within nation-states that are deeply destructive of freedom and other values. The writer, drawing heavily upon a colleague, has elsewhere summarized : "The whole global trans- formation has been aptly described as a movement toward 'garrison-police' states, in which demands for power are accen- tuated at the expense of every other value, with increasing militarization, governmentalization, centralization, concentra- tion, and regimentation, and in which all values other than power are 'politicised', in such practices as 'the compulsion to work' and the gradation and stabilization of income, the 'requisitioning of talent and skill', the 'administration of hate' and 'withdrawal of affection', the 'requisitioning of loyalty', 1. Sohn, Cases and Other Materials on World Law (1950); Levi, Funda- mentals of World Organization (1950); Bebr, Regional organizations: Their Functions and Potentialities in the World Community (1951 J.S.D. Thesis, Yale Law School Library). 2. Lasswell, The World Revolution of Our Time (1951). 140 M. S. McDOUGALINTERN. LAW, POWER AMD POLICY (8) the ' dogmatization and ritualization' of rectitude, and so on 1 . 2. The great challenge to students of international law today, in this context of world social and power processes and growing threat to freedom, is, therefore, to extend their aspirations beyond traditional exercises in technical formulae for deter-! mining what conduct is lawful and what unlawful to the much more urgent task of determining and recommending t hat inter- national law, of the many possible systems of international law, which is best designed to promote a free world society. The dilemma t hat confronts us in the world today offers alternatives not so much between non-law, or naked force, and law, as between different kinds of law, a law promoting human indig- nity or a law promoting human dignity. In this dilemma, it is the over-riding moral responsibility of legal scholars, as the appropriate skilled specialists of society, to identify or invent and to recommend the prescriptions, organizations, and deci- sions t hat favor a law of human dignity. To meet this challenge legal scholars will require a compre- hensive guiding theory and intellectual techniques adequate to perform certain specific functions. These functions the author and a colleague have elsewhere characterized as the elements of a "policy-oriented" approach to the study of law 2 . We emphasize policy purposes because we do not believe t hat a jurisprudence which purports to be "scientific" only is ade- quat e to the crisis of our time. Though it is imperative t hat a scholar should seek to minimize the degree to which his pre- ferences distort the accuracy of his observation of events, a creative jurisprudence requires not only the ways of thinking 1. McDougal and Bebr, Human Rights and the United Nations, Neumann, Nipperdey, and Scheuner (Eds.)> Die Grundrechte (publication in 1953- 1954). The colleague drawn upon is Lasswell, see note 2, p. 7. 2. Lasswell and McDougal, Legal Education and Public Policy: Profes- sional Training in the Public Interest, 52 Yale L.J. 203 (1943). For application of this approach to the study of comparative law see McDougal, The Comparative Study of' Law for Policy Purposes : Value Clarification as an Instrument of Democratic World Order, 61 Yale L. J. 915 (1952). (9) INTRODUCTION 141 and procedures of observation commonly called scientific but also other integrated and interrelated methods of thought and observation. In briefest summary, the various functions in- dispensable to a policy-oriented approach to the study of inter- national law and to the choice of an international law appro- priate to a free world society may be indicated as follows: ( 1 ) The clarification of goal values and the detailed relation of the flow of particular decisions that constitute the world power process to such goal values 1 . (2) The description of trends in decision, in terms of effects upon values, and the identification in the greatest degree possible of the variables, predispositional and environmental, that affect particular decisions. (3) The critical projection of trends into the future, on the basis of historical and scientific knowledge, in attempt to predict what future decisions are likely to be. (4) The appraisal of decisions in terms of their compatibility with goal values and the invention and evaluation of new alter- natives of policyprescriptions and institutionsdesigned for the better securing of such goal values. 3. Each of these multiple functions of a creative jurisprudence preferential, descriptive-scientific, predictive, and inventive has been a principal focus or objective of varying conceptions of law in the past and each function is today performed, by legal scholars and others, consciously and unconsciously, with varying degrees of effectiveness. The enduring significance of many of the great classical writers upon international law is due in measure to the effectiveness with which, by a judicious commingling of positivistic and natural law approaches, they 1. The clarification we recommend is of course in terms of the goal values of a free world society. It is sometimes objected that emphasis upon a policy-oriented approach places the same methods of thought and observation equally at the disposal of totalitarian. Such methods of thought and observation are, however, obviously already at the disposal of, and being employed by, totalitarians. What we urge is that those who cherish freedom cannot safely leave the use of such methods only to the enemies of freedom. 142 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (10) were able to perform all these functions for their time. It may be questioned, however, whether our contemporary theory about international law, taken in the large and without dispara- gement of the many brilliant individual contributions, is ade- quate to meet the challenge that confronts us \ 1. Cf. The dissenting opinion of Judge Alvarez in the Advisory Opinion upon Competence of the General Assembly for the Admission of a State to the United Nations, 1950 I.C.J. Reports I, 12. CHAPTER I THE INADEQUACIES OF CONTEMPORARY THEORY ABOUT INTERNATIONAL LAW I T is no new thought that contemporary theory about international law exhibits certain deep confusions about its appropriate subject-matter and the relationship of that subject-matter to the social and power processes by which men seek a free, peaceful, and abundant world society. For our immediate purposes these confusions may perhaps be most conveniently outlined in terms of over-emphasis on technical rules, unrelated to policies, as factors in guiding and shaping decisions, of over-emphasis on naked power as a factor in decision, of failure to achieve comprehensive description of the participants in the world power process, and of failure to achieve comprehensive description of the techniques of policy formula- tion and application employed by such participants. We may consider each of these types of confusion in turn. I . OVER-EMPHASIS ON TECHNICAL RULES, UNRELATED TO POLICIES, AS FACTORS IN GUIDING AND SHAPING DECISIONS. The most fundamental obscurity in contemporary theory about international law secretes itself in over-emphasis, by most writers and many decision-makers, upon the potentialities of technical "legal" rules, unrelated to policies, as factors and instruments in the guiding and shaping of decisions. This over- emphasis begins in the very definition of the subject-matter of international law as a system of rules. Despite many differences, and even internecine fights, as to justificationsin terms of natural law, consent of states, religion, metaphysics, and so onfor particular systems of rules and for particular rules within systems, most observers today agree upon this basic 144 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (12) type of definition 1 . Some representative modem formulations are as follows: Professor Hyde: "The term international law may be fairly employed to designate the principles and rules of conduct declaratory thereof which states feel themselves bound to observe, and, therefore, do commonly observe in their relations with each other." a . Professor Brierly: "The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another." 3 . Judge Moore: "By international law we mean the body of rules which regulate the intercourse of nations in war and peace." 4 . Professor Korovin: "International public law is the sum-total of legal norms governing rights and duties of the collectivities of the ruling classesparticipants in international intercourse." 5 . The principal difficulty in this initial emphasis in definition and orientation upon rules is that it causes too many people to make sharp and unreal distinctions between law and policy, between formulations de lege lata and formulations de lege ferenda, and to assume that technical rules alone can perform, at one and the same time and in one undifferentiated stroke, several of the functions t hat we have suggested above as indispensable to a policy-oriented approach to legal problems. Too often it is assumed that the technical rules which are said to constitute international law can in one formulation describe what decision- makers have done, predict what they will do, and prescribe what they ought to do. This multiplicity of functions, and ambiguity in reference, ascribed to legal rules is commonly concealed in an innocent-appearing insistence that the prime and unique 1. Historical justifications are briefly surveyed in Humphrey, On the Foundations of International Law, 39 Am. J.I.L. 231 (1945) and in Nuss- baum, A Concise History of the Law of Nations (1947). 2. I Hyde, International Law (2d Rev. ed., 1945) 1. 3. Brierly, Law of Nations (4th ed. 1949) 1. 4. Moore, Fifty Years of International Law, 50 Harv.L.Rev. 395 (1939). 5. Translated and quoted in Ghakste, The Soviet Concepts of the State, International Law, and Sovereignty, 43 Am. J.I.L. 21, 26 (1949). (13) INADEQUACIES OF CONTEMPORARY THEORY 145 task of legal scholarship is simply to ascertain and state "what the law is". In such a mode of discourse, the question "what the law is" is made, explicitly or implicitly, to include the questions "what the law was", "what the law will be" and "what the law ought to be". By ascribing an autonomous prescriptive force, independent of policy preferences and consequences, to tech- nical formulations, "what the law ought to be" is, for still further confusion, distinguished from "how the law ought to be changed". For a typical example of this commingling of functions, and attempted isolation of lex lata from lex ferenda, we may draw upon Sir John Fischer-Williams, who writes: " Our standpoint is thus to treat the study of law in the great inter- national society as a factual study. On this view the question to be asked is : ' What at the given time are the rules which the determining authority of a society ... considers proper for enforcement?' This is a question of fact. What is the existing law, the law sometimes called in Latin lex lata? We do not ask what rules might properly be derived from general principles and would if accepted be productive of peace, order, and good governmentthe general aims of law(what, to use a Latin expression again, is the lex f erenda?) but what in fact at any given time are the rules which are actually recognized as law. " *. The ambiguity inherent in this type of statement has been characterized by the writer and a colleague as "normative- ambiguity". Full quotation of this characterization may help to clarify our point: "Several frames of reference are often unwittingly invoked by those who purport to state the "law"; and until these differences are explored, confusion is compounded. Consider, for a moment, the following statement uttered by a law teacher who is expounding a case, a legal adviser who is arguing with a client, or an advocate who is addressing the court: "This is the law (followed by a statement of a ' doctrine' ). " This statement may be treated as a summary of past statements made by sources who are treated as qualified spokesmen (authorities). It may also be taken to refer to future events, predicting what certain authorities will say (even though there is doubt about what they have said in the past), or it may be construed as a declaration of preference by the professor, adviser, advocatea statement of what the speaker thinks the law should be even though the authorities (before or after) dissent. If this last construction is put upon the words, the speaker may affirm that he is misunderstood, since he 1. Williams, Aspects of Modern International Law (1939) 8, 9. Comparable statements may be found in Kelsen, General Theory of Law and State (1946) xiii, xiv, xv. See also Kunz, The 'Vienna School' and Inter- national Law, 11 New York U.L.Q,. Rev. 370 (1934). I. 1953. 10 146 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (14) did not use words that categorically convey preference; nevertheless, the listener may believe that the speaker lays himself open because so many talkers do in practice say "the law is so and so" when what they meanin the sense of what they say if challengedis a preference for the law to be so and so. Under some circumstances the statement goes beyond a simple preference and becomes a volition to do whatever is feasible to get the "should" accepted as an "is". Hence, if we take the statement of the "law" at face value we may find it ambiguous; and we can call it normative-ambiguous, because t he word "law" is used, and "law" is a word that refers to norms, even though it is unclear whether the norm in question pertains exclusively to t he speaker, whether it is shared by the speaker with others, or whether, though a norm of others it is not the norm of the speaker at all. Common sense experience emphasizes the enormous role of such normative-ambi- guous statements in the discourse that purports to expound "law" or "ethics" or "Divine Will". "That is right (morally)" is a sentence open to all the doubts raised about the "this is the law" sentence; and "this is God's Will" is no whit less ambiguous. By evoking such word sequences, a speaker may conceal his own preference or volition on contentious matters and increase the attention paid to what he says by enunciating norms whose sponsor appears to transcend the speaker." 1 . The confusing, and often harsh and impolitic, impact, this, normative-ambiguity in basic conception continues to exert upon the application of particular technical rules to specific cases can, unfortunately, be too easily demonstrated. Illustration 1. Lasswell and McDougal, Legal Education and Public Policy: Profes- sional Training in the Public Interest, 52 Yale L. J. 203, 266 (1943). Perhaps we may be permitted, in order to make certain that it is under- stood, to put our major point again. What we suggest is this: whenever the question is asked "what is the law", this question, if it is to be cast into operational terms into terms of decision-makers actually applying rules to concrete controversies between people must be expanded to include series of questions, such as : (1) What are the facts the events, the value changes between people to which it is expected that decision-makers will respond? (2) What have been the decisions on comparable facts in the past and what factors appear to have influenced the decisions? What rules were applied and what rejected ? Knowledge of the degree to which practice has conformed to rules is indispensable if experience is to be correctly evaluated. (3) Who are the probable decision-makers and what variables are likely to influence their decision? Many factors other than rules generalized from past practice may affect decision. Such rules may be so general that they admit of many specific applications. One cannot simply assume from the "efficaciousness" of a. system as a whole that any particular decision will in fact ensue. (4) What ought the decision to be? Rational choice may require a weighing of syntactical derivations from prior decisions in terms of the consequences of alternative derivations for the values of all people likely to be affected by decision. (15) INADEQUACIES OF CONTEMPORARY THEORY 147 abounds with respect to both customary rules and rules' created by agreement 1 . We offer in some detail one example from each of these traditional types of rules. For demonstration with respect to customary rules we offer in exhibit the case of Bernstein v. Van Heyghen Frres S.A. 2 . The facts in this important case were as follows: The plaintiff, Bernstein, a German national of Jewish faith, had been imprisoned in 1937 by "Nazi officials" and, by threats of bodily and other harm, had been compelled to transfer a ship he owned to a Nazi designee. This designee then transferred the ship to the defendant Belgian Corporation which took, it was alleged, with knowledge of the coercion practiced upon Bern- stein. During the war the ship was sunk and the proceeds of insurance, substantially in excess of what the defendant paid for the ship, were put upon deposit in a New York bank. Bern- stein, having escaped to the United States, brought suit in federal court for conversion and sought to attach the insurance proceeds. The United States Circuit Court of Appeals affirmed a district court in quashing the attachment and dismissing the complaint. Speaking for the majority of the Court, Judge Learned Hand, one of our greatest judges, referred to what he regarded as appropriate prior decisions and extracted a rule "that a court of the forum will not undertake to pass upon the validity under the municipal law of another state of the acts of officials of that state, purporting to act as such". Though he noted a certain inconsistency between his decision and the practices of our military government in occupied Germany, Judge Hand could find no clear executive view in our govern- 1. For a complete and classic demonstration in one important area of international law of the general point we make, see Dunn, The Protection of Nationals (1932). Professor Dunn builds explicitly, as we do, upon the work of the group of writers in the United States who have come te be called "legal realists". For brief, but influential statements of the point of view and methods of this group, see Cook, Scientific Method and the Law 13 A.B.A.J. 303 (1927); Oliphant, A Return to Stare Decisis, 14 A.B.A.J. 71, 159 (1928); and Oliphant and Hewitt, Introduction to Rueff, From the Physical to the Social Sciences (1929). A useful recent statement is Cohen, Field Theory and Judicial Logic, 59 Yale L.J. 238 (1950). 2. 163 F. (2d) 246 (1947). 148 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (16) ment which would permit him to reach another decision. Referring to the same prior decisions, Judge Clark dissented. He thought that the earlier precedents did "not deal with, or even appear to visualize, the situation where our executive acts later to repudiate the recognition which has been granted and to declare the acts of that nation as wrongful and void, to be wiped out by a tremendous war effort and by acts of retribution at the war's end". He added: "Many things have happened since the days when Nazi Germany was the recognized govern- ment of German territoryso many and so important that we have no precedent to govern the case. In short, a new one must be formulated." The researches of scholars since the Bernstein decision have made it clear that Judge Clark in his dissent was correct 1 . The facts of the prior cases upon which the court drew were quite different from the facts in the Bernstein case and nothing in the policies previously thought to underlie the rule of "acts of state"policies of reciprocal self-restraint designed to pro- mote harmonious relations between nation-statesrequired the extension of that rule to the new facts of the Bernstein case. Under the shelter of compulsion by technical rulesby the automatic translation of an irrelevant "law that was" into an imperative "law that ought to be"the court in fact made a policy choice, a choice that it may have concealed even from itself and that, if explicitly examined, would have been difficult to justify. One scholarly journal has offered pertinent criticism of the decision : " I n pursuing its primary task of attaining the just resolution of contro- versies, a court may well be led astray by blind adherence to so sweeping a rule as the act of state doctrine. A concept of this nature should be applied only with a view toward implementing the development of justice, giving the regard to the rational basis of the rule. No practical restriction on such judicial freedom exists other than the necessity of avoiding interference with the governmental departments responsible for foreign policy and for preventing the impairment of amicable rela- tions with other countries. Where such dangers are absentwhere the government involved has been removed and repudiatedlitigants should be assured full judicial inquiry into the legality of its measures." *. 1. The cases are collected in editorial comments and notes in 57 Yale L.J. 108 (1947); 15 U.Chi.L.Rev. 415 (1948) ; 47 Col.L.Rev. 1061 (1947). 2. Note, 47 Col.L.Rev. 1061, 1067 (1947). (17) INADEQUACIES OF COJfTEMPORART THEORY 149 For documentation of the perils of normative-ambiguity with respect to rules created by agreement, we may refer to the controversy about the application of Art. 27(3) of the United Nations Charter to the Security Council resolutions in June, 1950 condemning the invasion of Korea and recommending "that the members of the United Nations furnish such assistance to the Republic of South Korea as may be necessary to repel armed attack and to restore international peace and security in the area" l . The constitutionality, in terms of the requirements of the United Nations Charter, of these Security Council resolutions has been questioned by commentators who purport to invoke a "literal" or "objective" interpretation of Article 27, paragraph 3, of the Charter with respect to voting by the Security Council a . This paragraph provides that decisions of the Security Council on all matters other than procedural : "shall be made by an affirmative vote of seven members including the concurring votes of the permanent members." By rendering the final seven words of this paragraph, not exactly as written, but as if they read : "the concurring votes o all Jive permanent members, who must be present and voting," such commentators conclude that since the Soviet Union was absent during the passage of the Korean resolutions and did not cast a concurring vote, the Korean resolutions are invalid. With necessary consistency, it is further urged that the validity of all the substantive resolutions passed between January 13, 1950, when the Soviet delegate left the Council, and August 20, 1950 when that delegate returned cannot be explained and that the unavoidable import of Article 27(3) is to permit any one 1. U.N.Doc. S/1511. 2. The paragraphs upon the Korean resolutions and principles of inter- pretation which immediately follow are taken in both paraphrase and direct quotation from McDougal and Gardner, The Veto and the Charter: An Interpretation for Survival; 60 Yale L. J. 258 (1951). I 150 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (18) of the five permanent members of the Security Council to render that body impotent by the simple expedient of staying away 1 . These conclusions are sought to be justified largely by reitera- ted emphasis that the words of Article 27 are "unambiguous" and "mandatory" and that there is "scarcely any room for doubt" that the concurring votes of all five permanent members are needed to pass a valid resolution". The numerous resolutions adopted by the Council throughout its history without the concurring votes of all five permanent members are discounted on the ground that "mere practice" cannot alter the "strict requirements" of the Charter's words. The practice of absten- tion is distinguished from absence on the ground that absten- tion, "although not in conformity with Article 27(3)", is "tacit agreement", "a manifestation of consent in disguise", and hence not in violation of "the principle of unanimity". Not even the "rule of effectiveness" (the principle which gives preference to that interpretation of a treaty which best promotes its major purposes) can justify a broader interpretation. Paralysis in the event of the absence of great power agreement was the "inten- ded" result of the Yalta voting formula. "The Council was infected," so we are told, "with the virus of paralysis at its birth." It makes no difference that the absence of the Soviet Union was voluntaryan attempt to intimidate the Council after the failure to oust the reresentative of Nationalist China. For the provision of Article 27(3) "embodies the principle of unanimity of the permanent members of the Security Council" and is "not concerned with the means or circumstances which prevent the fulfilment of this requirement". The framers of the Charter made the "error", this argument insists, of assuming unanimity among the great powers, and, when that unanimity is not forthcoming, the members of the United Nations should accept the fact that their organization "can not function as an 1. The views we here summarize and quote somewhat impressionisti- cally are taken from Professor Leo Gross' article Voting in the Security Council : Abstention from Voting and Absence from Meetings, 60 Yale L. J. 209 (1951). Comparable views were, however, expressed by others in both scholarly publications and public debate. See Schick, Videant Cnsules, 3 West.Pol.Q,. 311 (1950) and Note, 28 Can. Bar Rev. 902 (1950). (19) INADEQUACIES OF CONTEMPORARY THEORY 151 effective organ for the maintenance of international peace and security" *. The principal defect in this argument against the legality of the Korean resolutions resides most obviously in the assumption that the words of Article 27(3) have an "unambiguous" meaning which makes their interpretation unnecessary. In its most vulnerable form, this assumption appears to be the not uncom- mon faith that words have an "absolute" meaning, independent of their users and interpreters, and independent of objectives and contexts. This may be called the fallacy of univocalism, the fallacy that words speak for themselves, and with a single voice. It is no longer revolutionary, however, to point out that the effort to impose upon any language of a complicated multi- lateral treaty like the United Nations Charteran "absolute", "literal", "plain", or "natural" meaning puts an impossible burden on words. The main point was long ago generalized by Dean Wigmore: "There can be, in the nature of things, no absoluteness of standard in interpretation. ... The fallacy consists in assuming that there is or ever can be some one real or absolute meaning. In truth, there can be only some person's meaning. . . " 2 . To this succinct statement, Dean Wigmore might well have added: not only "some person's meaning", but some person's meaning in relevant context. It is the principal lesson of contem- porary semantics that all words, legal and otherwise, take their complete meaning from such a context 8 . For understanding any communication the relevant and indispensable questions are: Who, says What, to Whom, for what Objectives, How, under what Conditions, and with what Effects. Omission of any element of this inquiry leaves an observer in that degree 1. The quotations in this paragraph are, as indicated above, excerpted from Professor Gross' article. Perhaps, however, we should make it explicit that the remarks we make in the paragraphs that follow are not directed to any particular critic o'i the constitutionality of the Korean resolutions but rather to proponents in general of literal or strict interpretation. 2. 9 Wigmore, Evidence 191-2 (3d ed. 1940). 3. See Morris, Signs, Language and Behavior (1946); Sapir, Language, 9 Encyc.Soc.Sci. 169 (1933); Richards, The Philosophy of Rhetoric (1936); Lasswell, Power and Personality (1948) 217 et seq. 152 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (20) with inadequate or false orientation. It should need no further emphasis to-day that the words of an international agreement cannot be taken as timeless absolutes; apart from their uses in context, such words, like other words, are but "shapes on paper" or "agitations in the air " x . This common sense insight, long accepted with respect to national constitutions and authoritative doctrine, has been made fully explicit as applied to international agreements by many authoritative commentators 2 . An observer who seeks to cloak his interpretation in some fanciful deperson- alized, disembodied "literal" meaning which transcends context merely conceals from himself, and perhaps from others, his own active role, and the context he substitutes, in the choices he makes. A second form of the assumption of "unambiguous meaning", scarcely less vulnerable, is the belief that it is possible for contem- porary interpreters to derive in exact detail the "true" or "real" intention of agreement makers of an earlier day. This may be called the fallacy of "detailism", the fallacy that parties can project a minutely detailed intent into the future and that subsequent interpreters can, and should, make such detailed intent prevail over more general objectives. When, however, an agreement of any importance is effected among two or more nation-states the relevant events include, at the minimum: a great variety of actors (negotiators, drafters, approvers, rati- fiers), expressing agreement through verbal forms of all degrees of generality or precision, by all the methods known to inter- national law, for implementation of a great variety of both short- run and long-term objectives, under the peculiar conditions and perspectives of their day, and with certain designed and unde- signed effects upon the expectations of all the parties and the distribution of values among them. When at some later date decision-makers are confronted with the necessity of interpreting this agreement, the events relevant for understanding again include at a minimum: certain interpreters (located in value 1. The quoted words are borrowed from I. A. Richards. 2. Harvard Research in International Law, Law of Treaties (1935) 947 and authorities cited. With respect to national constitutions, see Llewellyn, The Constitution as an Institution, 34 Col.L.Rev. 1 (1934). (21) INADEQUACIES OF CONTEMPORARY THEORY 153 and institutional position), applying traditional criteria of inter- pretation, to the words and acts of the earlier day and to the subsequent practice of the parties under the agreement, for certain contemporary objectives, under the conditions and perspectives of their day, and with certain obvious effects upon the distribution of values among the parties. From this compre- hensive perspective of the relevant events, it is wholly fantastic to assume either, first, that the framers of the original agree- ment can project their vision and anticipate all the more specific details of the evolving future or agree upon a common purpose with respect to all these details or draft so precisely as to remove all ambiguity with respect to such common purpose, or, secondly, that the later interpreters of the agreement working in a new total context, with their own contemporary objectives and conscious of many changes in conditions since the making of the agreement, can resurrect in detail the subjectivities of the original framers of the agreement and ascertain what was their clear intent concerning the new events confronting the interpreter. The Harvard Research has appropriately insisted that the process of interpretation, "rightly conceived", is not a mere "mechani- cal" matter of "searching for and discovering some preexisting specific intention of the parties" with respect to situations which they did not foresee or at least did not provide for, but rather a task of "giving a meaning to a text" 1 . It is for this reason that each generation must, whatever its faith in words and rules, in considerable measure interpret its legacy of agreements, as well as of other authoritative doctrine, in terms of contemporary conditions and objectives. The rational alternative to the assumption of "unambiguous meaning" is, of course, interpretation in terms of the major purposes of parties to agreements. This may be called the prin- ciple of interpretation by basic goals, emphasizing the parties' major demands and expectations, as contrasted with the "detai- lism", referred to above, which seeks to emphasize lesser demands and more minute expectations. Though it is beyond the com- petence of framers of agreements to anticipate in utmost detail 1. Harvard Research in International Law, Law of Treaties (1935) 946. 154 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (22) the unfolding events of the future or to specify with exact precision the minute modalities of their projected cooperation with respect to events and conditions constantly changing, it is possible for them to project both a primary pattern of expectations with respect to their major, general objectives, and, with varying degrees of precision, even a secondary pattern of the institu- tional means by which their objectives are to be effected. When the march of events inevitably lays bare ambiguities and alter- natives of interpretation with respect to the secondary institu- tional means so prescribed, even the most modest deference to rationality must require that interpretation of such means which best promotes the major purposes for which they were esta- blished. Hence, the principle of interpretation which is most widely accepted to-day (and which, incidentally, is also of the most ancient lineage) * is that international agreements must be interpreted primarily in terms of the major, general purposes they are intended to serve. The Harvard Research summarizes concisely : "A treaty is to be interpreted in the light of the general purpose which it is intended to serve. The historical background of the treaty, travaux prparatoires, the circumstances of the parties at the time the treaty was entered into, the change in these circumstances sought to be effected, the subsequent conduct of the parties in applying the provisions of the treaty, and the conditions prevailing at the time interpretation is being made, are to be considered in connection with the general purpose which the treaty is intended to serve." 2 . So great is contemporary concern for the continuing validity of major, general purposes, the principle of "effectiveness" (res magis valeat quam pereat) has on occasion been presented as "a major principle, in the light of which the intention of the parties must always be interpreted, even to the extent of dis- regarding the letter of the instrument and of reading into it something which, on the face of it, it does not contain" 3 . 1. Scire leges non hoc est verba earum tenere, sed vim ac potestatem. Celsus, Digest I, 3,17. 2. Harvard Research in International Law, Law of Treaties (1935) 937. See also Pollux, Interpretation of the Charter, 23 B.Y.I.L. 54 (1946). 3. Lauterpacht, The Development of International Law 69-70 (1930). For definitive survey, see Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties, 26 B.Y.I.L. 48 (1949). (23) INADEQUACIES OF CONTEMPORARY THEORY 155 Considering the major purposes of the United Nations, given the ambiguities of Article 27(3) and other relevant provisions of the Charter, reviewing the confused "legislative" history of Article 27(3), and observing the prior practice of the Security Council with respect to abstention and absencean inter- preter may, we suggest, reasonably conclude that the Security Council, itself an authorized interpreter, did not abuse its powers in adopting the disputed Korean resolutions and that these resolutions were constitutional, within the prescriptions of the Charter, despite the absence of the Soviet Union. The detailed arguments to support this conclusiona conclusion which at the time of the Korean invasion seemed indispensable to the survival even of the United Nationsare elsewhere marshalled 1 . It is not, however, this conclusion that we wish here to emphasize or even to make persuasive. The point upon which we hope to persuade is that the language of Article 27(3) can dictate no particular interpretation and that any decision about the constitutionality of the Korean resolutions, whether for or against, must depend upon policy choicesand policy choices that may be made with varying degrees of consciousness and, hence, also with varying degrees of rational consideration of relevant factors. It is, fortunately, becoming increasingly recognized that "law" and "policy" are not distinct and that every application of general rules, customary or conventional or however derived, to specific cases in fact requires the making of policy choices 2 . From the perspective of a scientific observer, it is obvious that the behavior of decision-makers in the world power process is influenced by many variables, environmental and predisposi- tional, other than legal rules, and that technical legal rules, divorced from the content of the policy perspectives of decision- makers and the groups with which they identify, are not compe- tent to coerce or predict decisions or to prescribe what decisions 1. McDougal and Gardner, see note 2, p. 17. 2. This recognition is not parochial. Hazard in Law and Social Change in the U.S.S.R. (1953) 275 writes: "International law has always been defined by Soviet authors in similar terms to municipal law, namely as an instrument of policy". 156 M. S. McDOUGALINTERX. LAW, POWER AND POLICT (24) ought to be or even adequately to describe what decisions have been. This impotence of technical legal rules has seldom been better stated t han by Professor Kelsen: "The 'jurists' believe and would like to persuade others that they possess an objective or even a scientific method which permits them to designate the single 'just' meaning from among those which the interpre- tation reveals. In reality no such method exists. The choice between several meanings can only be dictated by a judgment of subjective, political value. From a purely juridical point of view all possible meanings have the same value. This so-called juridical method of interpretation is but the product of an ideology which the need of legal security of the public as well as the professional interest of the jurists preserves. But this ideology of the jurist, even if it serves the stubbornly held illusion of legal security is easily seen through by the politician who soon perceives that in most cases the jurist with his 'juridical' interpretation can easily prove the contrary to what he advances." 1 . It is, therefore, not merely formulations de lege f erendathe point may be emphasizedbut even applications allegedly lex lata t hat require policy choices. In the process of decision-making in the world arena, the technical rules t hat constitute the lex lata are continually being defined and redefined in the applica- tion of policy to ever-changing facts in ever-changing contexts. For understanding why this must be so, however much he may continue to wish for the illusory certainty and false security of normative-ambiguity, the student of international law has only to recall the imprecision of such important and recurring concepts as state, independence, intervention, jurisdiction, equality, recognition, representation, prescription, occupation, political offenses, denial of justice, reprisals, aggression, neu- trality, expropriation and confiscation, or to remember how many fundamental concepts and rulessuch as "domestic jurisdiction" and "international concern", "aggressive war" and "self-defence", pacta sunt servanda and rebus sic stantibus, "change of st at e" and "change of government", and so on travel in pairs of opposites. It should perhaps be added t hat we recognize that we draw from Professor Kelsen's observation a conclusion different from t hat drawn by Professor Kelsen himself. Professor Kelsen consi- 1. Kelsen, Legal Technique in International Law: A Textual Critique of the League Covenant, Geneva Studies, Vol. X, No. 6 (1939) 14. See also Kelsen, The Law of the United Nations (1950) xiv. (25) INADEQUACIES OF CONTEMPORARY THEORY 157 ders it a "veritable usurpation of competence" for "jurists" to attempt "to determine the social ends to be attained" because "no matter how profound may be one's understanding of what the law is, this cannot cast light on what, because it is 'just', socially good, must be the content of law". "This question," he insists, "is not juridical but specifically political. It is the domain par excellence of the politician" 1 . Where, with deference, we differ from Professor Kelsen is in this insistence that the task of the jurist, the peculiarly legal function, must stop when the jurist outlines for decision-makers the various alternatives that the legal forms afford. Our suggestion is that, if an international law of human dignity is to be achieved, the jurist, as a responsible interpreter of the policy commitments embodied in legal pre- scriptions and procedures and as a skilled specialist with pecu- liarly intimate opportunity to observe such prescriptions and procedures in action, must extend his role beyond mere inquiry into and advice about legal syntactics 2 , or the logical interrela- tions among legal propositions, to the further tasks of inquiry into and advice about the possible effects upon overall commu- nity values of the various alternatives that the legal forms afford. I I . OVER-EMPHASIS ON NAKED POWER AS A FACTOR IN DECISION At the opposite extreme from over-emphasis on technical rules, is an attitude increasingly common today which under- estimates the role of rules, and of legal processes in general, and over-emphasizes the importance of naked power. This attitude is sometimes referred to as the "pure theory of power" as 1. See note 1, p. 24. 2. This is not to suggest that legal syntactics are not important. It is to suggest only that legal syntactical systems, like other syntactical systems, become completely meaningful only when related to a semantic dimension. The point was once made by Walter Wheeler Cook as follows : "Suppose we say: All gostaks are doshes, All doshes are galloons: again we do not know what we are talking about, but if we assume that these mysterious terms stand for classes of things, we can by the strictest of logic draw the inference that All gostaks are galloons." Scientific Method and the law, 13 A. B. A. J. 303, 305 (1927). 158 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (26) contrasted with the "pure theory of law" 1 . In many of the manifestations of this attitude it seems to be assumed, though the assumption is not always made explicit, that the detailed application of legal rules is always a function of the immediate power interests, of a mere calculation of momentary expediencies without regard to long-term community interests of the decision- maker and that legal ruleshowever clearly related to com- munity policies, however sustained by balancing of power, and however sanctionedare in some unchangeable nature of things irretrievably powerless to restrain the lawless behavior of absolutely and permanently sovereign nation-states. For notable recent illustration of this attitude we may cite the writings of Ambassador George F. Kennan and Professor Hans J. Morgenthau, who attack what is characterized as a "legalistic-moralistic" approach to foreign policy and demand a freer use of "old-fashioned" diplomatic procedures. Ambas- sador Kennan puts the point most directly. After reviewing the failings of the United States in foreign policy for fifty years, he summarizes : "As you have no doubt surmised, I see the most serious fault of our past policy formulation to lie in something that I might call the legalistic- moralistic approach to international problems. This approach runs like a red skein through our foreign policy of the last fifty years. It has in it something of the old emphasis on arbitration treaties, something of the Hague Conferences and schemes for universal disarmament, someth- ing of the more ambitious American concepts of the role of international law, something of the League of Nations and the United Nations, something of the Kellogg Pact, something of the idea of a universal "Article 51" pact, something of the belief in World Law and World Government. But it is none of these, entirely. Let me try to describe it. It is the belief that it should be possible to suppress the chaotic and dangerous aspirations of governments in the international field by the acceptance of some system of legal rules and restraints. This belief undoubtedly represents in part an attempt to transpose the Anglo-Saxon concept of individual law into the international field and to make it applicable to governments as it is applicable here at home to individuals... It is the essence of this belief that, instead of taking the awkward conflicts of national interest and dealing with them on their merits with a view to finding the solutions least unsettling to the stability of inter- national life, it would be better to find some formal criteria of a juridical nature by which the permissible behavior of states could be defined." 2 . 1. Kunz, Review, 39 Mich.L.Rev. 1337, 1339 (1944). 2. Kennan, American Diplomacy 1900-1950 (1951) 95, 96. (27) INADEQUACIES OF CONTEMPORARY THEORY 159 The greatest deficiency in "the legalistic approach to inter- national affairs," he finds, "is the inevitable association of legalistic ideas with moralistic ones: the carrying over into the affairs of states of the concepts of right and wrong, the assump- tion that state behavior is a fit subject for moral judgment" 1 . The expressions of Professor Morgenthau are scarcely less emphatic. In his most comprehensive study he offers such state- ments as: "Law in general and, especially, international law is primarily a static social force. It defines a certain distribution of power and offers standards and processes to ascertain and maintain it in concrete situa- tions." a . "International law is a primitive type of law resembling the kind of law which prevails in certain preliterate societies, such as the Australian aborigines and the Yurok of Northern California." 3 . In later publication he classifies "legalism" along with utopia- nism, sentimentalism, and isolationism as major errors of Ameri- can post-war foreign policy. The "legalistic approach" is said to follow "logically from the assumption that international politics is not a continuous struggle for power in which all great nations are of necessity involved"; the United Nations is described as having become a forum for "legalistic exercises" that have "done nothing at all to bring closer to solution the great political issues outstanding between the contenders on the international scene"; and it is urged that from "that iron law of international politics, that legal obligations must yield to the national interest, no nation has ever been completely immune" 4 . It does not perhaps do complete justice to Dr. Schwarzen- berger to make reference to him in this context, since he is optimistic about the potentialities of certain forms of interna- tional law and organization. Some of Dr. Schwarzenberger's judgments of other forms, however, seem to us to involve grievous underestimation of their role. One may find in the latest edition of his Power Politics such statements as the following : 1. Kennan, American Diplomacy 1900-1950 (1951) 100. 2. Morgenthau, Politics among the Nations (1948) 64. 3. Id. 211. 4. Morgenthau, In Defense of the National Interest (1951) 101, 102, 144. 160 M. S. McDOUG-ALINTERN. LAW, POWER AND POLICY (28) "I n a society in which power is the overriding consideration it is the primary function of law to assist in maintaining the supremacy of force and the hierarchies established on the basis of power and to lend to such a system the respectability and sanctity of law. In a variety of ways, international law serves these purposes." 1 . "To the extent to which international law is a law of power, it fulfils the functions of an extreme society law. It gives the authority and sanctity of law to power and brute force; without seriously restraining the mighty, it serves them as a handy ideology with which to disguise some of the brutalities which are inherent in any system of power politics." a . "Both in the eras of the League of Nations and of the United Nations, the gap between the ideals of these collective systems and reality was bridged by processes of de facto revision of the covenant and the charter, t hat is to say, by the adaptation and subordination of these commitments to the requirements of world power politics. In both cases, the result was the same. What emerged was a system of power politics in disguise." 3 . It is submitted that all the contemporary manifestations of the "pure power" theory, of which the citations above give but the barest indications 4 , both profoundly misconceive law and power and greatly underestimate both the role that Jaw presently plays in the world power process and the role that, with a more effective balancing of power, it could be made to play in pro- moting and preserving the values of a free, peaceful, and abun- dant world society. Much of our exposition below will be rele- vant to the substantiation of this criticism 6 . III. FAILURE TO ACHIEVE COMPREHENSIVE DESCRIPTION OF THE PARTICIPANTS IN THE WORLD POWER PROCESS It is common knowledge that in recent years the participants in the world power process have undergone and are continuing 1. Schwarzenberger, Power Politics (2d rev. ed. 1951) 203. For higher appraisals of "the international law of reciprocity" and "the international law of coordination", see pages 207, 211. 2. Id. 206. 3. Id. 713. 4. Even Professor Corbett in his Law and Society in the Relations of States (1951) comes perilously close to this theory. Thus, he writes: "After many attempts to justify an original preference for the classi- fication of international usages as law, I have come to the conclusion that the effort involves wasteful self-deception and misdirection of energy, and leads to false expectations on the part of the public." (p. 11). See also pp. 75, 76, 77, 85. 5. See also McDougal, Law and Power, 46 Am. J. I. L. 102 (1952) and Dr. Schwarzenberger's Power Politics, 47 Am. J.I.L. 115 (1953); Oliver, Reflections on Two Recent Developments Affecting the Function of Law in the International Community, 30 Texas L.Rev. 815 (1952). (29) INADEQUACIES OF CONTEMPORARY THEORY 161 to undergo tremendous transformations. The traditional, terri- torially organized bodies politic, known as "nation-states", are, on the one hand, being dwarfed by the emergence of huge new bi-polarized and other regional groupings and, on the other hand, being challenged by the rise of a host of new and powerful functional organizationsincluding international governmental organizations, transnational political parties, transnational pres- sure groups, and transnational private associations. Contem- porary theory about international law, obsessed by a technical conception of the "subjects of international law", continues, however, greatly to over-estimate the role of the "nation-state" and to underestimate the role of all these other new participants. Evidence to support this indictment can be found in almost any standard treatise. Not only is the proper subject-matter of inter- national law defined, as we have seen, as rules "governing the relations of nation-states" and the great bulk of attention in dis- cussion confined to nation-states, but frequently explicit assertion is made that only nation-states can be regarded as appropriate subjects of international law. Since the decision of the Inter- national Court of Justice in the case on Reparation for Injuries Suffered in the Service of the United Nations l it has ceased to be breach of etiquette to refer to international governmental orga- nizations as at least partial subjects, but it is still common to question or castigate writers who are so bold as to suggest that the individual human being is himself a subject of international law 2 . Most of the other group participants are largely ignored. From the perspective of scientific description, the individual human being is the ultimate actor in all arenas and on the world scene acts not only as a total personality, including all his group identifications, demands, and expectations, but also as a spe- cialized member of each of the important groups that we have listed abovenation-states (including greater and lesser terri- torially organized bodies politic), international governmental 1. 1949 I.C.J. Reports 174. 2. See, for example, Briggs, The Law of Nations (2d ed. 1952) 93 et sec, with references. Contrast Jessup, A Modern Law of Nations (1947); Politis, The New Aspects of International Law (1928). I. 1953. 11 162 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (30) organizations, transnational political parties, transnational pres- sure groups, and transnational private associations. The world power process affords arenas for the individual both as an indivi- dual and in each specialized group capacity; individuals are pro- tected in control of bases of power both as individuals and in each group capacity; and policies are continually being formu- lated and applied by varying specialized techniques on behalf of individuals both as individuals and in their various group capacities. The governmental forms of territorial organization, so exalted in importance by traditional theory, are frequently but channels for the expression of decisions in fact made in some one or more of the many functional groupings we have indicated. International law can, in its prescriptive formulations, continue to blind itself to these facts only at the cost of becoming increas- ingly inconsequential 1 .
IV. FAILURE TO ACHIEVE COMPREHENSIVE DESCRIPTION OF THE TECHNIQUES OF POLICY FORMULATION AND APPLICATION IN THE WORLD POWER PROCESS The most casual observation of the flow of decisions in the world arena today reveals that policies are being formulated, recommended, prescribed, and reformulated and represcribed in multiplied thousands of agreements, conferences, resolutions, declarations, codifications, and customary practices of foreign office and other officials as well as by judicial and arbitral deci- sion and that policies are being applied, appraised and termin- ated, in countless informal interactions in international and national arenas of all kinds 2 . In much of the technical literature on international law, however, one still finds an over-concentra- tion on "the court" as the principal instrument of law in world affairs and a supporting assumption that the principal function of a court, with its "given" rules, is the maintenance of opposi- tion to change. For reasonably explicit illustration we may again 1. Cogent criticism of traditional views appears in Lauterpacht, Inter- national Law and Human Rights (1950) Ch. 1-4. 2. Schachter, The Place of Law in the United Nations, Annual Review of United Nations Affairs (1950) 205. (31) INADEQUACIES OF CONTEMPORARY THEORY 163 call upon Professor Morgenthau. He both includes international law among "ideologies of the status quo" 1 and writes: "The legalistic approach, by its very nature, is concerned with isolated cases. The facts of life to be dealt with by the legal decision are artifi- cially separated from the facts that precede, accompany, and follow them and are thus transformed into a 'case' of which the law disposes 'on its merits'. Once a legal case has been decided or otherwise disposed of, the problem is solved, until a new legal case arises to be taken care of in similar fashion". a . The image here seems clearly to be the common image of the court. It is not to deny the importance of the judicial function to insist that other functions are equally important and require equally explicit attention if an international law promoting human dignity is to be furthered 3 . The task of "law" includes not only the applying of a "given" body of prescriptions in specific instances but also the creation of new prescriptions. The task of creating new prescriptions is presently being performed in a great variety of ways and perhaps new ways must be invented if the major objectives we specify are to be attained. A creative theory of international law must take all these ways into account and assist in the task of invention. The inadequacies of contemporary theory about international law add up, accordingly, to failure effectively to perform the various functions indicated above as indispensable to a policy- oriented approach to the study of international law. The question now is what framework of inquiry might permit the more effective performance of these functions and, in parti- cular, assist the legal scholar in his distinctive task of clarifying the policies implicit in past and proposed systems of international law. It is reasonably obvious t hat such a framework must offer a comprehensive way of talking about the world social and power processes in which decisions occur, rational criteria for identify- 1. Morgenthau, Politics Among the Nations (1948) 63. 2. Morgenthau, In Defense of the National Interest (1951) 101. 3. The classic study of the potentialities of international judicial institu- tions is of course Lauterpacht, The Function of Law in the International Community (1933). Similar studies are, however, needed of the potentialities of other institutions for the performance of various necessary policy functions. 164 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (32) ing the decisions regarded as law, and an organization of studies for examining the flow of specific decisions which will facilitate both the testing of specific decisions for compatibility with the goal values of a free society and scientific study of the variables which in fact affect decision. Many different systems of inquiry might of course be devised for achieving these purposes. The framework we propose seeks both a way of outlining the total context of world social and power processes and a way of keeping specific decisions constantly at the focus of attention, however various the participants, the arenas of interaction, the base values invoked, the instruments of policy applied, or outcomes achieved in any particular context. It must be recognized, how- ever, that no intellectual tools can be devised which will cut the "big, blooming, buzzing confusion" which is the world about us with final and dogmatic precision. What we are attempting to do is, almost literally, slowly to turn a globe or sphere (the context of the world social and power processes) for the purpose of spotlighting, investigating, and relating to total context now one set of decisions, with all their goals and conditioning varia- bles, and then another set. The performance of this task must inevitably be marked by over-laps, gaps, and imprcisions. CHAPTER II A PROPOSED FRAMEWORK OF INQUIRY: INTER- NATIONAL LAW LOCATED IN THE CONTEXTS OF WORLD SOCIAL AND POWER PROCESSES I N our effort to achieve comprehensive orientation we begin in this chapter by seeking to outline workable formulations of the world social process, of the world power process, of the major characteristics of a policy-oriented international law, and of the postulated goal values of an international law of human dignity. I . THE CONTEXT OF THE WORLD SOCIAL (COMMUNITY) PROCESS The degree to which the peoples of the world, with all their political and social organizations, today constitute a world community or a world society is a matter much disputed. Some observers point to vast divergences in detailed institutional prac- tices about the globe, to the basic conflicts between the free and totalitarian philosophies of life and government, and to the defective political organization of the world arena and, hence, deny the existence on a global scale of any community or society among peoples. Other observers point to peoples' rising demands for common values, to their increasing interdependences (in securing values) made inescapable by contemporary technology, to their increasing consciousness of these interdependences, and to the ever widening identifications that attend this consciousness and, hence, emphasize, as we have done above, what is des- cribed as an accelerating movement toward a world community or world society. The position that any particular observer takes in this controversy appears to depend in considerable measure upon how he defines "community" or "society" and upon the purposes of his immediate discourse. It is seldom contested, however, that the peoples of the world 166 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (34) today interact with and upon each other in a social process, what- ever the degree of community or society, that is global in its ramifications. Events occurring, choices that are made or deci- sions that are taken, in any one area of the world may have effects upon persons and their values in a few, several, many, most or all other areas of the world. Because of ever accelerating technological developments and increasing rates in population growth, it can confidently be assumed that, short of some over- whelming catastrophe resulting in the near obliteration of the human race, this process of global interaction or interdetermina- tion will in the future become more rather than less intensive x . It is with these events in the world social process, events that have effects in more than one national community, that the prescriptions and decisions of international law are and must be concerned. The sequence of events that gives rise to and includes an invocation and application of international law, even as con- ventionally conceived, may perhaps be relevantly generalized somewhat as follows: certain persons act to deprive other per- sons of values in ways that have effects across national bound- aries; the persons who have been deprived, or others who are authorized, invoke the prescriptions of international law and appeal to a decision-maker, who may be located at any one of many different levels of national and international govern- mental authority, to redress the injury to their values; the deci- sion-maker, responding to a variety of environmental and pre- dispositional variables and interpreting and applying the pres- criptions of international law, acts, with varying degrees of effective coercion at his disposal, to condemn or condone the injury and with varying effects upon the values of the parties disputant and others. It should need no argument that an inves- tigator who would study international prescriptions and proce- dures in action, and who would assist in perfecting prescriptions and procedures appropriate to a free world society, must work with a framework of theory adequate to comprehend this total process and to describe in any necessary detail all component parts of it. 1. Lasswell, The World Revolution of our Time (1951) 29. (35) FRAMEWORK OF INQUIRY 167 The comprehensive framework of theory that we propose for describing the world social process is indicated in skeletonized form in Chart I, which is set out below 1 . The most general formulation upon which this Chart is based is: people strive to maximize values by applying institutions to resources. 2 . With respect to people, we would emphasize that the most relevant description must include not merely their numbers, spatial distribution, physical characteristics, value and institu- tional positions and so on, but also their perspectives (subjectivi- ties, predispositions)their demands for values, their identifi- cations with others, and their factual expectations (beliefs) about past and future. Dple .vith perspectives identifications demands expectations th doctrine using formula (legal rules) miranda organizational hnique non wer pect ightenment alth 11-being ititude 11 ection Chart I Community Proces base values routines government party pressure groups private associations -organizational among people with power respect enlightenment through institutions wealth well-being rectitude skill affection on resources perspectives identifications demands expectations unprocessed land to shape and distribut processed scope values land facilities human energy 2. More detailed expositions of the general mode of analysis we recommend may be found in Lasswell and Kaplan, Power and Society (1950); Lasswell, Power and Personality (1948) and The World Revolution of our Time (1951) ; Lerner and Lasswell (eds.) The Policy Sciences (1951); Lasswell, Leites and Associates, Language of Politics (1949). 168 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (36) By the term values, we refer to major categories of desired events. For purposes of the present comprehensive analysis we recommend as convenient the following eight categories : power, respect, enlightenment, wealth, well-being, skill, affection, and rectitude. In brief, preliminary definition, power may be taken to refer to participation in the making of important decisions (decisions involving severe deprivations) ; respect, to access to other values on the basis of merit, without discrimination on grounds irrelevant to capacity; enlightenment, to access to the knowledge on which rational choice depends ; wealth, to control over econo- mic goods and services; well-being, to the enjoyment of physical and psychic health; skill, to proficiency in the exercise of latent talent; affection, to the enjoyment of congenial human relations; and rectitude, to the sharing of common standards of respon- sibility. The term institutions is used to refer to the pattern of practices by which values are shaped and shared. Such patterns include, as may be seen from the Chart, both myth and technique, or both rules and operations. Resources include the physical objects and materials and human energy that are employed in the shaping and sharing of values and their significance obviously varies greatly from value t o value and context to context. The postulate t hat people strive to maximize their values is introduced as a dynamic principle to account for individual and group choices. It is a postulate that has proved most fruitful in many branches of psychological and social science investigation. Keeping in mind this brief explanation of terms and major postulate, we may now read Chart I as formulating a description of community or social process in terms of people, with varying perspectives, in varying situations, employing base values, by practices (myth and technique), to effect a redistribution among people of certain demanded or "scope" values. In any particular study of specific value processes, the people and their perspec- tives, the situations in which they demand values, the base values they employ, the practices by which they shape and share values, and the effects they obtain upon the distribution of values may (37) FRAMEWORK OF INQUIRY 169 be described in as much detail as the materials permit or as the particular problem of the investigator requires. It may be emphasized that any particular value may be either employed as a means or sought as an end, may be either a base value or a scope value. The total world social process may, indeed, be usefully conceived as a series of interrelated value processes: a power process, a respect process, an enlightenment process, a wealth process, a well-being process, a skill process, an affection process, and a rectitude process. Any given interac- tion may be identified by examining in detail the demands and expectations of the people in the situation. It is because of the interrelation of value processes, the point may bear further emphasis, that rational inquiry by jurists can- not be confined exclusively to power processes. Though we will presently recommend a conception of law in terms of a form of power (including both myth and technique, rules and opera- tions), any realistic study of power processes requires the relation of such processes to the other value processes. The events which give rise to controversies and result in the invocation of power decisions occur, as already indicated, in every value process; power decisions may be in fact affected by considerations of any or all the other values; and, finally, such decisions may in turn affect any one or all of the values. In more abstract statement, the world process affects each of the other value processes and the other value processes in turn affect the world power process and each other. The jurist who would concern himself with causes and effects, conditions and consequences, must be pre- pared to extend his inquiries to the totality of value processes. A more complete presentation of the relevance of the world social process context might here offer some further development of the theme, several times emphasized above, that all peoples everywhere are today interdependent with respect to all major values. It does not seem to be denied, even by observers who question the existence of a world "community" or "society", that in recent decades tremendous changeschanges in technology, changes in population growth and movement, changes in per- spectives, and changes in techniques of organization and institu- 170 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (38) tional practicehave combined to move the peoples of the world from a state of relative independence to one of ever increasing interdependence. This interdependence can be documented both territorially, with respect to each value around the globe, or functionally, as between all values. Thus, if security is conceived as the opportunity to pursue all major values by peaceful, non- coercive measures, free from violence and threats of violence, it may be observed, territorially, that in the age of the hydrogen bomb and bacteriological warfare no people anywhere can be secure unless all people everywhere are secure, and functionally, that the degree of security in the world depends upon such variables as a distribution of wealth that promotes rising stan- dards of living, the prevalence of respect for human dignity, realism in enhghtenment, democracy in the sharing of power in the component communities of the world, the maintenance of appropriate skills, the rearing of people with less destructive characters, the sharing of common standards of rectitude, and the extension of world loyalties. Similarly, with respect to wealth, it may be noted, territorially, that the greater the resources that can be drawn upon, the larger the market, and the greater the division and specialization of labor, the greater the potential production and consumption of goods and services, and function- ally, that the degree to which goods and services are produced depends upon such variables as expectations with respect to security or violence, degrees of enlightenment and skill, demo- cracy in the sharing of power, the respect accorded productive enterprise, congenial human relations, and so on. So also with regard to enlightenment, it may be shown, territorially, that the larger the fora for the exchange of information and the fewer the iron curtains, the greater the diffusion of realistic knowledge, and functionally, that the degree to which enlightenment can be freely and effectively pursued depends upon such variables as security measures, available wealth, absence of caste or class barriers, the degree of skills and so on. For final example, with regard to respect, it may be demonstrated, territorially, that models of respect or disrespect for human dignity are contagious like germs and, when appearing anywhere, tend to be copied (39) FRAMEWORK OF INQUIRY 171 or emulated elsewhere, and functionally, that degrees of respect depend upon such variables as expectations about security, democracy in the sharing of power, realism of enlightenment, health in character formation, and so on. Similar analyses could be offered and documented for each other value and a systematic and detailed survey would reveal, we suggest, that in our day the dependence of man upon man has become inescapably worldwide '. II. THE CONTEXT OF THE WORLD POWER PROCESS Though realistic inquiry into the events with which inter- national law is concerned, and into the causes and effects of decisions, requires orientation in and consideration of a total world social process, the specific value process which most immediately comprehends international law, however conceived, is obviously the world power process. The task to which we now turn is that of recommending a frame of reference which will facilitate both the most comprehensive and the most detailed description of this particular process. To establish even initial communication requires that we make as explicit as possible the conception of power that we 1. Further development of this theme is offered in McDougal and Leigh ton, The Rights of Man in the World Community: Constitutional Illusions Versus Rational Action, 59 Yale L.J. 60 (1949) and McDougal, The Role of Law in World Politics, 20 Miss. L.J. 253 (1949). The relevance of the total world community context has seldom been better stated than in the famous quotation from Suarez: "The human race, though divided into different nations and states, still has a certain unity, not only as a species but, as it were, politically and morally as is indicated by the precept of mutual love and charity which extends to all, even to strangers of any nation whatsoever. There- fore, though each perfect polity, republic, or kingdom is in itself a per- fect community, consisting of its members, nevertheless each of these communities, inasmuch as it is related to the human race, is in a sense also a member of this universal society. Never, indeed, are these commu- nities, singly, so self-sufficient unto themselves as not to need a certain mutual aid and association and communications, sometimes for their welfare and advantage, sometimes because of a moral necessity or indigence, as experience shows. For this reason they need a law by which they are guided and righy ordered in respect to communication and association." [Quoted from Nussbaum, A Concise History of the Law of Nations (1947) 67.] 172 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (40) recommend. We have already suggested that the pseudo- realistic conception of simple naked force applied by nation- state to nation-state is not enough and that, at highest level abstraction, power may be most usefully defined as participa- tion in the making of decisions that are attended by sanctions. The expansion of this definition, by search for operational indices for "decision" and "sanction", moves us to a concep- tion of processto a conception of people interacting in situa- tions in which some are able, by threats of severe deprivations or promises of high indulgences, to make and enforce choices t hat affect the distribution of values among those in the situa- tion 1 . The more systematic mode of describing these interactions t hat we recommend for outlining any power process includes specifications of eacli of the following items : (1) the interacting participants (described in terms of their perspectives and the demands they make on each other) ; (2) the situations or arenas of interaction ; (3) the base values upon which participants premise threats of severe deprivation or high indulgence ; (4) the particular practices, tactics and strategies, by which participants seek to exercise their influence; and, finally, (5) the effects, particular and general, that are achieved upon the values of the participants. It is this set of inquiries, pursued in whatever detail an observer's purposes may require, t hat we suggest s most fruitful for investigation and exposition of the power process in any com- munity, of whatever size, from local to global. It may aid clarity in later inquiry especially to emphasize here one important distinction we suggest in the forms of power, a distinction between formal authority and effective control. Every community may be observed, by examining the perspec- tives of its members, both to present "official" decision-makers, located in various "government al" structures, who are expected to make important community decisions and to offer a set of authoritative prescriptions, embodying community policies, by 1. For more detailed definition, see Lasswell and Kaplan, Power and Society (1950) Ch. V. (41) FRAMEWORK OF INQUIRY 173 which decisions are supposed to be made. Decision-makers who operate with this sanction of community expectation may be described as exercising formal authority and when they do in fact make the important community decisions they may also be said to exercise effective control. It may, however, be that the important community decisions are not in fact made by such authorized decision-makers but by others, who may be denominated the real rulers of the community and who may be located in one or several of the non-governmental structures of the community, and the decisions such rulers make may not be in accord with community prescriptions. Such decisions may be described as the exercise of effective control, though without the sanction of formal authority. The point we wish to underline is that any description of the world power process which would concern itself with effects in the real world, rather than with illusion, must inquire not merely into the structure of formal authority but also into that of effective control and, thus, consider not only "governmental" participants but all other participants who in fact perform the functions of government 1 . It remains to indicate briefly how the specific inquiries we have suggested above may be applied in systematic and detailed description of the world power process. We will proceed from inquiry to inquiry, as follows: 1. The Categories of Participants in the World Power Process. The quest here is for a convenient and realistic way of cate- gorizing the participants who interact in the world arena. Among the most relevant criteria for achieving such categoriza- tion or identification would appear to be the following: (a) influencein the sense of the number and importance of the decisions that may be made or affected; (b) stabilityin the sense that the pattern of influence is not ephemeral or transitory, but remains integrated long enough to enable fairly dependable expectations to be constructed concerning it; and 1. Contrast the handling of the interrelations of "validity" and "efficacy" in Kelsen, General Theory of Law and State (1946) 39, 118, 119. 174 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (42) (c) availability for sanction application, negative or positive, in the enforcement of policy. Applying these criteria to various possible participants in the world arena, we may eliminate "classes" and "cultures", as important as these may be in shaping the perspectives that affect decision, and concentrate upon the individual human being and his organized groups. The categorization that we, accord- ingly, recommend as best adapted for policy-oriented study is as follows: (1) The territorially organized bodies politic known as "nation-states" and their various dependencies. (2) International Governmental Organizations. (3) Transnational Political Parties. (A political party is defined as an organized group that presents platforms and candidates at elections.) (4) Transnational Pressure Groups. (Pressure groups are defined as bodies especially organized to influence decisions by governmental organizations and political parties.) (5) Transnational Private Associations. (A private association is defined as a group primarily organized to seek values other than power but which in fact also seeks power effects.) (6) The Individual Human Being. (The individual considered as a total personality and making comprehensive choices that may transcend any of his specialized roles in collective activities.) The word "transnational" used in the description of political parties, pressure groups, and private associations should not be taken to imply concern only for such groups as seek trans- national effects. Comprehensive description must include all groups which in fact achieve such effects. 2. Arena Hierarchies in the World Power Process. By arenas we refer to the situations in which interactions occur in the world power process. These are as numerous as (43) FRAMEWORK OF. INQUIRY 175 there are decision-making outcomes envisaged and occurring and may be categorized in many useful ways. Each group participant in the world power process both has its own internal arenas for its internal power processes and interacts in external arenas with other participants, group and individual. Both internal and external arenas may be classified in terms of the degrees of formal authority and effective control at the disposal of participants. The arenas of formal authority are those of government, international and national, and the arenas of effective control include not only effective arenas in government but also countless interactions in and between the other group participants, and between the group participants and individuals. Arenas may also be usefully categorized in terms of degrees in expectations of violence. In some situations there may be few, if any, over-riding objectives common to the participants, and the expectations of all participants may be that, though a decision will be taken, it will be taken by violence or naked force. In other situations, the expectations of the participants are that decisions will be taken by peaceful procedures and their expectations may include, further, varying degrees of application of community prescription. The former arenas are sometimes called military, and the latter civic. It is obvious that arenas vary greatly in the degree of their organization and stability and that both arenas and participants are in a process of constant change. The complexity of inquiry does not, however, reduce its importance. The relevance of specific inquiry into arenas may perhaps be best indicated by anticipation of some of the more important questions of legal policy. We offer the following : What arenas of formal authority does the world afford and what participants are admitted to these by what prescriptions and procedures ? How compatible are such prescriptions and procedures with the goal values of a free world society ? What are the patterns by which participants in fact gain access to arenas of effective control and how do world prescriptionswith respect to admission to 176 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (44) arenas, agreements, violence, and so onaffect these patterns? By what prescriptions and procedures may arenas of effective control be moved in the direction of formal authority, and military in the direction of civic? What new arenas and prescrip- tions and procedures require invention? 3. Base Values. By base values we refer to the particular values that are at the disposal of participants for influencing decisions. The factual inquiry with respect to each participant is : what claims to what base values are made in what contexts? The more important claims are those to more or less continuing control for long- term general purposes. With respect to nation-states, it will be indicated in some detail, in the Chapter to follow, that any value may on occasion serve as a base of power. In considerable measure this is true also of other participants, though of course precise patterns in control over values vary greatly among participants, from time to time and context to context. Important questions of legal policy with respect to base values are : What are the formal prescriptions and procedures by which participants seek to legitimize their claims, and stabilize their expectations, with respect to continued control over base values ? What have been the patterns in the actual application of pres- criptions and how compatible are such prescriptions and applica- tions with the goal values of a free world society? 4. The Practices of Participants. By practices we refer to the details of the tactics and strategies by which participants engage in the shaping and sharing of power. In traditional studies of international law it has been customary to group such activities between the two polar extremes of agreement and coercion, or peace and war. In the contemporary world, however, these two extremes are con- sidered more and more to merge into each other and participants are observed to employ a great variety of instruments of policy in a continuous process of defense and attack. One convenient categorization of these instruments of policy has been found to be: (45) FRAMEWORK OF INQUIRT 177 (1) Diplomatie (distinctive means, symbols in inter-elite communica- tions; objectives, agreements or disagreements). (2) Ideological (Propaganda) (distinctive means, symbols in elite-mass communica- tion; objectives, group action or inaction). (3) Economic (distinctive means, goods and services for production or consumption; objectives, raised or lowered production or consumption). (4) Military (distinctive means, arms and specialists on violence; objectives, destruction or protection) *. Though this categorization is most obviously applicable to the practices of nation-states, a comparable analysis can be made of the practices of each other type of participant. The most fundamental question of legal policy here is how community coercion is organized and exercised in formulating and applying policy with respect to these practices. Within nation-states, the procedures for formulating and applying policy are commonly referred to as legislative, executive, administrative, and judicial. These words, however, refer more to institutions than to procedures or functions, and an institution described by any one of the names may in fact perform a great variety of functions. In an effort to achieve a more precise demarcation of functions, we recommend a categorization in the following terms: (1) The Intelligence Function. (Practices by which decision-makers keep themselves informed and clarify and project future plans of action). (2) The Recommending Function. (Practices by which initiative is taken and pressure exerted to secure specific decisions.) (3) The Prescribing Function. 1. Note various chapters in Strausz-Hupe and Possony, International Relations (1950); Lasswell, Politics: Who Gets What, When, How (1935). I. 1953. 12 178 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (46) (Practices by which policy is formally enacted into authoritative community prescription. Commonly this function is performed in some measure by all the conven- tional institutions: legislative, executive, administrative, judicial.) (4) The Invoking Function. (Practices by which community machinery is set in motion for the application of prescriptions in concrete instances.) (5) The Applying Function. (Practices by which authoritatively prescribed community policy is administered in concrete instances.) (6) The Appraising Function. (Practices by which intelligence is applied to the detailed examination of the consequences of prescriptions and applications.) (7) The Terminating Function. (Practices by which obsolete prescriptions are put to end.) 5. The Effects Achieved by Participants. The inquiry here is for the consequences of the interactions outlined above upon the control that each participant achieves, in relation to other participants, over value processes. The effects with which we are concerned may be distinguished as particular and structural. With respect to nation-states, effects of the first type are commonly dealt with under the heading of "jurisdiction" and of the second type under the heading of "state succession". With respect to the effects we characterize as particular, the factual questions are: What claims, to what control, over what particular value changes (what people, participating in what events), do what participants make? The questions of legal policy are: what are the relevant world prescriptions and how in fact have such prescriptions been applied? How compatible are such prescriptions and applications with our postulated goal values? With respect to the effects we characterize as structural, the factual questions are: What changes have occurred, within what (47) FRAMEWORK OF INQUIRY 179 participants in the world arena and what claims are made by other participants because of these changes? The questions of legal policy may be formulated as above. This truncated and somewhat abstract exposition of the major outlines of the world power process may perhaps be clarified by reference to Chart II, labelled "World Power Process" and set out below 1 . 1. Chart II World Power Process I. Nation-States A. ArenasAdmission 1. Birth of effective power units. 2. Recognition as formal authority. B. Bases of Power 1. Geographical Position and Resources. Controls over wealth process. 2. People. Controls over physical access to area and admissions to power and other value processes. 3. Institutions (a) External relations. Degree of independence. Alliances. (b) Internal structure. Efficiency. Military Establishment. C. Practices Instruments of Policy 1. Diplomatic 1. Persuasion 2. Ideological (Peaceful Procedures) 3. Economic 4. Military 2. Coercion (War) Policy Functions 1. Intelligence 2. Recommending 3. Prescribing 4. Invoking 5. Applying 6. Appraising 7. Terminating D. Effects. 1. Particular ("Jurisdiction") 2. Structural ("State Succession") I I . International Governmental Organizations A. Arenas Membership 180 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (48) III. THE MAJOR CHARACTERISTICS OF A POLICY-ORIENTED CONCEPTION OF INTERNATIONAL LAW. It is sometimes suggested that, since there are no "proper" or "intrinsic" meanings for words like "law", definitions of international law are largely matters of taste or esthetic prefe- rence x . This view we believe to be profoundly mistaken. Though there may be no "proper" or "intrinsic" meanings for such words as "law" or any other words, there are definitions and conceptions which promote with varying degrees of effectiveness the major purposes of their proponents and users. The reference that is given to the word "law" may vitally affect the perspec- tives of both decision-makers (expanding or limiting the con- siderations taken into account in arriving at decision) and scholars (expanding or limiting areas and techniques of investi- gation). Thus, we have seen that both the observers who focus too insistently upon technical rules and those who focus too sharply upon naked power tend to conceal both from them- B. Bases of Power 1. Grants of formal authority. (legal capacity and powers) 2. Effective Control over other values. C. Practices 1. Intelligence 1. General purpose 2. Recommending United Nations 3. Prescribing 4. Invoking 5. Applying 6. Terminating 2. Limited purpose 7. Appraising Specialized Agencies D. Effects III. Transnational Political Parties. etc. IV. Transnational Pressure Groups. etc. V. Transnational Private Associations. etc. VI. Individuals. etc. 1. See, for example, Williams, International Law and the Controversy Concerning the Word Law 22 B.Y.I.L. 146 (1945). Contrast Ross, A Textbook of International Law (1947) 13, n. 2. (49) FRAMEWORK OF INQJJIRr 181 selves and others how the decision-making process in the world arena in fact operates and, hence, to preclude the most rational consideration of alternatives in rules and organization better designed for the promotion of fundamental values. There is therefore, we suggest, a community interest in achieving a conception of international law adequate to the crisis of our time. It may now be possible, building upon the preliminary characterizations of the world social and power processes offered above, to clarify the conception of international law that we recommend. The formulations we propose can perhaps be presented most economically in a series of brief statements, as follows : 1. A policy-oriented conception of international law, pri- marily concerned for effects upon values, must, we urge, avoid both the principal over-emphases of traditional theory and combine a rational emphasis upon rules with a rational emphasis upon effective control. Though it must be concerned with rules, as authoritative prescriptions of fundamental community policy, it must extend its concern, if it would consider effects, beyond rules to the decisions which in fact formulate and apply rules and include within its compass all such decisions, whomsoever the decision-maker, which importantly affect community values. The suggestion we make is accordingly, that interna - tional law, at highest level abstraction, is most relevantly conceived as a combination of the two forms of power indicated aboveas formal authority conjoined with effective control, as a flow of decisions in which community prescriptions are formulated, invoked, and in fact applied in the promotion of community policies. We include emphasis upon formal authority, upon commu- nity prescribed rules and procedures, both because we observe that many decisions in the world arena are in fact profoundly influenced by the perspectives of formal authority, and because we join with the traditional theorists in preferring decisions that are related to community expectation and prescription to decisions that are made by naked force. The possibility of 182 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (50) challenging decision in the name of "t he law" is not only a feature of commonly held conceptions of law but would appear indispensable to any conception of an international law better designed to promote human dignity. We include emphasis upon effective control because formal authority without effective control is, as suggested above, not law but illusion. Investigation which would be consequential must look behind apparent decision-makers to real decision- makers, in whatever institutions they may be located, and comprehend in its inquiries all effective participants, non- governmental as well as governmental, in the world power process; and recommendation which would be consequential must seek controls for the lawless behavior of elites in nation- states and other groups not merely by the promulgation of rules but also by the balancing and organization of power among effective decision-makers. Within our particular nation- states we do not rely alone upon the mere promulgation of rules, constitutional or other, to secure our basic community values but seek further to secure decisions in conformity with rules by a balancing of power, such as between functions (legislative, executive, judicial, administrative) or between areas (central government, internal provincial governments) or between government and private associations of all kinds. Similarly, our conception of international law must be compre- hensive enough to include not only the enshrinement of values in authoritative prescription but also a process of balancing power comparable to that found within nation-states which cherish a free society. 2. A policy-oriented international law will reject, we suggest further, any conception of the decision-making process which is built upon the assumptions t hat decision-makers are mostly located in courts and that they more or less automatically, or tropistically, respond to timeless absolutes in "given" prescrip- tions, but will rather emphasize that decision-making is a dynamic process in which decision-makers, located in many different institutional positions and contexts, are continually creating, interpreting and reinterpreting rules and continually (51) FRAMEWORK OF INQUIR 183 formulating and reformulating, applying and terminating, poli- cies. Such an international law will be as concerned as is tradi- tional theory with how rules are in fact applied in concrete instances, but it will also extend its concern to how the other functionsintelligence, recommending, prescribing, invoking, appraising, and terminating are performed and consider the interrelations of all functions. Though we thus emphasize that "law" is a dynamic process in which policies are constantly being made and applied, it may require express caution that we do not recommend decision in accordance with the arbitrary values of particular decision- makers. The principal function of legal prescriptions is to clarify community values and the decisions we recommend are decisions in accord with such values. The belief that moves us is that prescriptions which are clearly related in their formu- lation to such values are more likely to influence decisions com- patible with such values than prescriptions that are deliberately left normatively-ambiguous. When policies are opened up for explicit examination both decision-makers and their constituen- cies better able to test the degree of conformity between decision and values 1 . 3. A policy-oriented international law will not, we add in further formulation, demand an impossible "universality" of acceptance for the "validity" of its prescriptions. It will rather make of any proposed prescriptions such inquiries as these: What are the policies embodied in these prescriptions? What has been the degree and area of acceptance of these policies in the past and what are the probable degree and area of accep- tance in the future? How relevant are these policies to the particular problem in hand in its context? Policies that have not been, or cannot be made, authoritative on a global scale 1. We do not deny that, as the neo-realists assert, some decisions that are taken in the name of formal authority are in fact taken by naked force, with rules serving as mere rationalizations, but we suggest that the extent to which such arbitrary decisions occur is a matter for empirical investiga- tion and not for dogmatic assumption. One major goal of a "legal" system is of course to reduce the number of such "unlawful" decisions. 184 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (52) may yet serve useful purposes in the half world, the hemisphere, the region or lesser areas. 4. A policy-oriented international law will explicitly recog- nize, also, that the policy functions with which it is concerned are performed at many different levels of formal authority and effective control, in what may be described as a hierarchy of interacting power processess. The world power process may, in broadest conception, be thought of as a series of more and less comprehensive processesfrom global through half-world, hemispheric, and regional to national or municipal or lesser with each of the more comprehensive processes affecting each of its internal, lesser processes, and each of the lesser processes in turn affecting all the larger processes which comprehend it. Policy functions that have important effects across boundaries may be performed at almost any point of interaction in this complex hierarchy and, when they are so performed, a policy- oriented international law will not futilely debate either whether such prescriptions and applications are "really" international law or "really" national or municipal law, or whether inter- national law is "supreme" over national law or national law is "supreme" over international law 1 . The important questions are who formulates and applies what policies, with respect to whom, by what practices, with what sanctions, across what boundaries, and with what effects upon postulated goal values. From this perspective, much of what is commonly called com- parative constitutional law becomes of course integral with international law. 5. Though it will inquire into sanctions as indispensable to effective decision, a policy-oriented international law will recognize that the decisions with which it is concerned may be sanctioned by many different institutional practices, drawing upon many different base values, and invoked at many different levels of formal authority and effective control. The various participants in the world power process may on varying occa- 1. References to this debate may be found in Briggs, The Law of Nations (2nd. 1950) 60 et seq. (53) FRAMEWORK OF INQUIRY 185 sions invoke in support of authoritative prescriptions any one or all of the instruments of policydiplomatic, ideological, economic, and militaryand may depend for making their invocation effective upon any one or all of the base values that we have categorized 1 . Sometimes this use of instruments of policy and base values is unorganized, with each participant reacting unilaterally to other participants in a process of recipro- city and counter-reciprocity, including, with varying degrees of explicitness, both offers of rewards and inducements and threats of reprisals and retaliations. That this process of unorganized sanctioning of decisions can be highly effective has been demonstrated in various domains of international law, such as, for examples, those relating to diplomatic immunities and "jurisdiction" (a point to be developed in detail in Chapter III below). On other occasions and in other contexts, however, the application of sanctions may be organized in varying degrees among a few or many participants. Sometimes the organization may be more or less impromptu for the handling of specific transgressions of authoritative prescriptions. On other occasions, as in the League of Nations or United Nations or North Atlantic Treaty Organiza- tion, it may be continuous and designed for the handling of general categories of violation. It would be most unreal to attempt to over-emphasize the effectiveness of existing sanctions, unorganized or organized, in the world arena to-day, but it is equally unreal, from the perspective we have sketched, either to insist that there are no existing sanctions or to argue that existing sanctions cannot be improved. It should require no great elaboration that a policy-oriented international law will not seek in an infinite regress of verbalisms to discover some mystical "binding force", independent of particu- lar decision-makers in particular contexts, for its prescriptions 2 . 1. The great range of possible sanctions is well illustrated in Report of the Collective Measures Committee, United Nations General Assembly, 6th Sess., Supp. No. 13 (A/1891), 1951. See also Wright, International Law and Power Politics II Measure 123 (1951). 2. Note the vast literature indicated in Briggs, The Law of Nations (2nd ed. 1952) 19 et seq. 186 M. S. McDOUGALWTERN. LAW, POWER AND POLICY (54) Abjuring the metaphysical derivations and justifications of all the schools, it will rather engage in empirical investigation of what sanctions have in fact been available to what decision- makers in what contexts and consider both how such sanctions may be technically improved and how a community consensus may be promoted which will demand the more effective employ- ment of all available sanctions 1 . 6. A policy-oriented international law will, for final empha- sis, seek to make as explicit as possible the goal values it postu- lates. A brief indication will be made in Section IV, to follow, of the goal values we recommend for an international law of human dignity. Our task now is, building upon these preliminary character- izations of world power process, world social process, and inter- national law, to achieve an organization of studies which will both permit the refinement and development of these character- izations, and, more importantly, facilitate the performance of all the various intellectual functionsclarification of goal values, description of trends and conditions, projection of trends, and invention of alternativeswhich we have specified as indispensable to a policy-oriented approach. For tentative consideration we submit two complementary methods for such organization, the one constructed in the first instance about particular participants in the world power process and the other about postulated goal values. For the first mode of organization, which aspires to stimulate a rather complete investigation and presentation of the role of law in the world social and power processes, we suggest that each of the major categories of participant in the world power process, as outlined above, be considered in turn and that with respect to each type of participant investigation be pursued in 1. Professor Brierly's much quoted statements in his The Law of Nations (4th ed. 1949) 54 that "consent cannot of itself create an obligation" and that to "say that the rule pacta sunt servanda is itself founded on consent is to argue in a circle" appear to us to employ the word consent at two different levels of abstraction. One can distinguish particular agreements from the general community consensus which is necessary to any order not based on naked force. (55) FRAMEWORK OF INQUIRY 187 terms of all the specific inquiries we have indicated as necessary for description of any power process, to wit: Just how is this participant identified and what is its importance? To what arenas of formal authority and effective control does this participant seek and obtain access? To what base values does it make and establish claims? By what practices does it exercise its power? What effects upon values does it achieve? Within each of these categories of inquiry, the most general inquiry of legal policy that may be raised is: How are world or transna- tional prescriptions formulated and applied with respect to this problem? Pursuit of this legal policy inquiry in appropriate detail, and in a way to avoid the perils of normative-ambiguity, requires certain more specific inquiries, through inquiries appro- priate to any flow of decisions about any of the major problems, such as: (1) What are the eventsthe facts, the changes in values to which decision-makers are responding? (2) What have been the decisions, by what decision-makers, where located, with respect to such events? (3) What conditions or variables, including policy prescrip- tions, appear, to have influenced prior decisions? (4) What have been the effects of prior decisions upon postulated goal values? (5) What are future decisions likely to be? (6) What alternatives can be proposed for securing decisions more in accord with postulated goal values? Questions of this order can of course be expanded and refined for the most systematic investigation of any particular decision or truncated and telescoped, as resources and convenience may require, for the impressionistic study and description of any flow of decisions. In the two Chapters to follow we will attempt to indicate in more detail how this method of organization can be applied to the different types of participants in the world power process, though we obviously cannot aspire even to asking many of the relevant questions. Some initial orientation in the world of events, as contrasted with the confusion of normative-ambi- guity, is as much as we hope here to achieve. 188 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (56) For the second and complementary mode of organization we propose the adoption of a more manipulative attitude and a direct focus in turn upon each major value with three principal inquiries: first, how can particular, concrete, contemporary goals be clarified with respect to this value ; second, what are the trends and conditions that may affect the degree to which these goals can be achieved; and, third, by what alternatives (in prescriptions and organization) have these goals been sought in the past and how can new arid more effective alternatives be invented and put into practice. Thus, with respect to wealth, one might first clarify goals in terms of continually rising stan- dards of living and ample opportunities for employment on respected jobs ; then inquire into the distribution of resources and values and the structure of institutions (for performing such functions as allocation of resources, planning and development, protection of claims, distribution of consumption goods, etc.) that affect the production and distribution of goods and ser- vices and other goals; and, finally, both appraise prior expe- rience in national and international, governmental and non- governmental, efforts to increase production and distribution on a transnational scale and consider what alternatives to recommend l . IV. THE POSTULATED GOAL VALUES OF AN INTERNATIONAL LAW OF HUMAN DIGNITY The goal values of legal systems, national and international, are sometimes stated simply in terms of promoting "justice" or "public order". From the perspective of one who would promote an international law of human dignity such formulations are left ambiguous. "Justice" and "public order" are terms that can be used, and in fact often are used, to refer to the consistent application of any value system, even one of human indignity. The question is how formulations can be achieved which will 1. A partial illustration of this mode of organization appears in McDougal and Haber, Property, Wealth, Land: Allocation, Planning, and Develop- ment (1948) Ch. XII. (57) FRAMEWORK OF INQUIRY 189 permit the testing of policy applications, however consistent, in terms of their relation to the values of human dignity. The recommendation we make is that the criteria most appropriate for appraising policies, explicit or implicit, in world power process decisions may be found in acceptance and elabo- ration of the values embraced in what we have described as the rising demands of people everywhere for common values. Though these demands, as they appear in the United Nations Charter, the Universal Declaration of Human Rights, the proposed covenants on human rights, and other existing and proposed international charters and agreements or in national constitutions, political party platforms, and pressure group and voluntary association programs, are made at many different levels of abstraction and with little systematic ordering, intel- lectual tools are available for ordering and elaborating such demands in all necessary degrees of generality and specificity. The highest level systemization and description we have pro- posed is in terms of the eight values : power, respect, enlighten- ment, wealth, well-being, skill, affection, and rectitude, and we have offered brief, initial definitions. By the giving of further appropriate operational indices to these terms, they may be made both completely comprehensive and sufficiently detailed for any particular investigation. It is not, however, this particular set of words or any particular system of categorizations that we wish most to emphasize. Systems for categorizing values, like definitions of law, are matters of convenience and relevance, if the overriding goal of human dignity in the sense of shared values (however described) is accepted and applied. Any one system can, by the use of appropriate operational indices be translated into any other. What we wish most to emphasize is that decision-makers and scholars must have some system, comparable at least to the one we propose, for clarifying basic goal values for themselves and others, if they are to test specific doctrines and practices for compatibility with conceptions of human dignity 1 . 1. A belief in the relativity of values is scarcely sufficient reason for exclud- ing them from study. Selznick, in The Organizational Weapon (1952) 308, ap- propriately writes: "Under conditions of political combat, those who have no firm values of their own become the instruments of the values of others." 190 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (58) It may be added that a convenient and relevant system for clarifying goal values and testing specific decisions is not depen- dent upon particular forms or modes in the justification of values. People who share the basic goal of human dignity can cooperate whether they justify their preferences by religion, natural law, metaphysics, science or otherwise. The higher level abstraction of justifications need not necessarily interfere with the lower level testing of specific decisions for compatibility with agreed goals. It may require mention, further, that major goal values need not be invariably identified with any particular institutional practices by which they are sought. In different communities and cultures very different institutional practices may contribute to the same over-riding goal, that of the sharing of major values. An international law of human dignity, designed for a free world society, can tolerate or even encourage a great variety of institu- tional practice in different communities and cultures when such practice does in fact promote the sharing of major values 1 . The kind of operational indices that we would, in appro- priate context, seek to specify for each of the eight major value categories we have recommended, may perhaps be indicated by a summary, recently attempted elsewhere, of peoples' rising demands for common values. Such demands, we have sug- gested 2 , may be economically systematized and summarized as demands for certain particular values, as follows: "the wide sharing o power, both formal and effective, includ- ing participation in the processes of government and of parties and pressure groups and equality before the law; the fundamental respect for human dignity which both pre- 1. This is in answer to writers like Northrop who emphasize differences in cultural detail between the East and the West. See Northrop, Contem- porary Jurisprudence and International Law, 61 Yale L. J. 623 (1952). 2. McDougal and Bebr, Human Rights and the United Nations, Neumann, Nipperdey, and Scheuner (Eds.) Die Grundrechte (publication in 1953-54). More detailed statements of possible operational indices for these values may be found in Lasswell and Kaplan, Power and Society (1950) and Lasswell and McDougal, The Jurisprudence of a Free Society (mimeographed mate- rials, 1953). (59) FRAMEWORK OF INQUIRY 191 eludes discriminations based on race, sex, color, religion, political opinion or other ground irrelevant to capacity and provides a positive recognition of common merit as a human being and special merit as an individual; the enlightenment by which rational decisions can be made, including freedom of inquiry, opinion, and communication; access to wealth processes, to the resources and technology necessary to the production of goods and services for maintaining rising standards of living and comfort; health and well-being and inviolability of the person, with freedom from cruel and inhuman punishments and positive opportunity for the development and enrichment of personality ; opportunity for the acquisition of the skill necessary to express talent and to achieve individual and community values to the fullest; opportunity for affection, fraternity, and congenial personal relationships in groups freely chosen; freedom to choose standards of rectitude and responsibility, to explain life, the universe, and values, and to worship as may seem best; and, in sum, a security which includes not merely freedom from violence and threats of violence, but also full opportunity to preserve and increase all values by peaceful, non-coercive procedures." CHAPTER III THE NATION-STATE AS PARTICIPANT IN THE WORLD POWER PROCESS I T is our purpose in this chapter to indicate briefly how the method of analysis we have proposed for any participant in the world power process can be applied to nation- states. We will proceed, inquiry by inquiry, from the identification of the participant through arenas, bases of power, and practices to effects. The problems in "effects" raise the very difficult issue of the interrelation of "public" and "private" international law and, in an effort both to clarify certain misconceptions with respect to this interrelation and to offer on a few problems a more detailed illustration of the analysis we propose, we will give what would otherwise be disproportionate attention to the consideration of the "effects" problems. I. THE IDENTIFICATION OF NATION-STATES AS PARTICIPANTS The label "nation-state", which we adopt because of its common usage, is not the happiest term for describing the participants with which we are here concerned. From a factual perspective, the participants we now seek to identify may perhaps be better described as "territorially organized bodies politic" (or as "politically organized communities with a terri- torial base") in which active elites demand with respect to other elites in other similar bodies politic freedom of decision on both internal and external affairs and seek to preserve, or even to enhance, their territorial base for maximising all values. The term "nation-state" is commonly reserved for the bodies politic which achieve the greater degrees of freedom in decision and these are described in terms of "independence" and "sover- eignty"; other bodies politic are dichotomized as "non nation- states", given various appellations such as "protectorates", (61) NATION-STATE IN WORLD POWER PROCESS 193 "mandates", "trusteeships", and so on, and are described as dependent and non-sovereign l . It should require no great elaboration that the criteria put forward in world prescriptions for distinguishing "nation- states" from "non nation-states" are normatively-ambiguous in high degree, referring both to the facts to which decision- makers are responding and to responses they make to such facts and embodying both descriptive and preferential judg- ments. Thus, in the Montevideo Convention of 1933, Article 1 prescribes: "The State as a person of international law should possess the following qualifications: (a) a permanent popula- tion; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States" 2 . When the question is whether some new elite which has emerged in apparent control of some area of the world has "capacity to enter into relations with the other states", it does not clarify the grounds of decision greatly to be told that if it is a nation-state it has such capacity, and that if it has such capacity it is a nation- state 3 . The vagaries that attend decision by such traditional criteria are amply illustrated in any collection of cases. In terms of fact it is easily observable both that the world arena today presents a great profusion of territorially organized bodies politic, of many varying degrees of formal authority and effective control, in terms both of internal control over indivi- duals and of external relations to other bodies politic, and, further, that these numerous bodies politic are in a process of continual change in relation to each other. Inquiry that would be comprehensive and realistic must concern itself, not merely with "nation-states", but with all these bodies politic and achieve a mode of description, for clarifying policy issues in concrete controversies about access to arenas, competency to 1. For some indication of the existing range in bodies politic, see Briggs, New Dimensions in International Law 46 Am. Pol. Sci. Rev. 674 (1952). 2. Quoted in Briggs, The Law of Nations (2d ed. 1952) 69. 3. With Professor Briggs' insistence, id. at p. 114, that "[w]hether or not a State exists is a question of fact, not of law" may be contrasted Professor Kelsen's rejection of "sociological" definitions in favor of a defini- tion in terms of centralized "legal order". General Theory of Law and State (1946) 188. I. 1953. 13 i94 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (62) make agreements, succession to benefits and burdens of prior bodies, and so on, t hat is more adequate t han the traditional, simple dichotomy of "nation-state" and "non nation-state" and its attendant normatively-ambiguous criteria. The beginnings of a mode of analysis that may aid clarity in describing complex interrelations of effective control and formal authority among bodies politic have been suggested by others. For describing effective control the principal terms suggested are body politic, rulers, rule, and supremacy, and for formal autho- rity, state, governors, government and sovereignty. A body politic is defined, in the sense we have used the term above, as a terri- torially organized group with effective control over an area; its rulers, as those who actually make its important decisions; rule, as the pattern of practices of the rulers ; and supremacy, as the degree of effective power in relation to internal and external participants in power processes. A state is defined as a terri- torially organized group with the highest degree of formal authority over an area; its governors, as the authorities who are expected, by the fundamental charter and the perspectives of its people, to make its important decisions; government as the pattern of practices of the governors; and sovereignty as the degree of formal authority exercised in relation to internal and external participants in power processes 1 . It is by the elabora- tion of some such constructs and by their careful application to the constantly changing facts that appropriate orientation might be achieved. I I . THE ARENAS IN WHICH NATION-STATES INTERACT It may bear emphasis anew, because of the tremendous confusion in a voluminous literature, that the important inqui- ries here are both factual and policy. What in fact are the arenas in which the decision-makers of nation-states exercise their influence? How in fact is access obtained to these arenas? What are the value consequences in obtaining or being denied access to particular arenas? What are the world prescriptions 1. Lasswell and Kaplan, Power and Society (1950) Ch. VIII. (63) NATION-STATE IN WORLD POWER PROCESS 195 about who should be admitted to what arenas and how in detail are these prescriptions applied? How compatible are such prescriptions and applications with the postulated goal values of an international law of human dignity? The most immediately relevant categorization of the arenas in which nation-states interact is perhaps, we suggest, that which distinguishes arenas of effective control and arenas of formal authority. Arenas of effective control are those in which the expectations of the parties are that decisions will in fact be taken, whether by naked force or in accordance with commu- nity prescription. Arenas of formal authority are those in which the expectations of the parties are that decisions will be taken by official decision-makers in accordance with community prescription. Thus, an arena of effective control may, or may not be, also an arena of formal authority; and an arena of formal authority may, or may not be, also an arena of effective control, depending upon the realism of the expectations of the participants in the arena. The types of particular arenas with which we might be concerned, accordingly emerge > as three : arenas of effective control, but not formal authority ; arenas of formal authority and effective control; and arenas of formal authority, but not effective control. Comprehensive inquiry may, however, proceed, we suggest, under two headings, dealing first with arenas of effective control, but not formal authority, and, secondly, with all arenas of formal authority, appropria- tely leaving it a matter for empirical inquiry in each instance whether such an arena is also one of effective control. We now consider briefly what relevant inquiries may be made under each of these headings. A. The Arenas of Effective Control (but not of Formal Authority) It needs no documentation that new bodies politic are continually emerging in the world arena, as new elites replace old elites in control over bases of power, and that these new bodies politic are in processes of continuous interaction with pre-existing bodies politic even before they are admitted to the traditional arenas of formal authority. Consider, for example, the 196 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (64) emergence of Communist China and its interactions in 1950-52 with the United States. The most general inquiry here is under what conditions and by what methods do new bodies politic in fact emerge in the world arena. In the convulsions of the contemporary world, with its contradictory trends of bipolarisation and fractionaliza- tion, the methods can be seen to range between the two polar extremes of peaceful procedures and coercion, and varying combinations of the two, in continuous unifications, dismember- ments, emancipations, wars, and revolutions. It is these factual changes in the identity and composition of bodies politic t hat give rise to the legal policy problems of admission to the arenas of formal authority "recognition", "membership in international organization", and "representa- t ion"and though in arenas of effective control, but not of formal authority, expectations of violence are commonly high and considerations of world prescriptions at a minimum, the interactions t hat occur in these arenas raise the most fundamen- tal problems of any international law, such as with respect to the control and regulation of violence and the enforcement and termination of agreements. Comprehensive inquiry might consi- der the impact of the many relevant world prescriptions both upon the frequency and methods by which new bodies politic emerge and upon the goal values of an international law of human dignity. B. The Arenas of Formal Authority The arenas of formal authority in which nation-states interact include all those of governmental organization, whether national or international. The arenas of national governmental organiza- tion include both those established in the ordinary maintenance of diplomatic relations and those provided in terms of access to judicial, administrative, legislative or other institutional structures. The arenas of international governmental organiza- tion might be similarly described, but the consideration of such arenas is conveniently reserved for the fuller inquiry into the role in general of international governmental organizations. (65) NATION-STATE IN WORLD POWER PROCESS 197 The confusion in technical literature about the admission of newly emerged territorially organized bodies politic to the arenas of formal authority established between preexisting nation-states knows few bounds. It is much debated by what criteria a new body politic becomes a "nation-state" which can be "recognized", whether pre-existing nation-states are under a duty to recognize admittedly new nation-states, what policies should govern the granting or with-holding of recognition, whether recognition is constitutive or declaratory, whether recognition can be conditional, what the consequences of recog- nition are, and so on 1 . Some of this confusion might, we suggest, be avoided by cleansing the term "recognition" of its normative-ambiguity and keeping clear the distinction between the facts to which decision-makers are responding and the consequences that ensue from their response. When the decision-makers of an established nation-state engage in the ceremony of "recognition" with decision-makers in a newly emerged body politic, it is clear that they are responding to certain changes in fact in the structure of effective control and formal authority within a certain area and to certain changes in the structure of effective power in the world arena. In this sense their ceremony is "declaratory" of their interpretation of these factual changes. After the ceremony has been performed, it is further clear, however, that the new body politic is admitted to a much fuller and more effective participation in the established arenas of formal authority. In this sense the ceremony of recognition may, accordingly, reasonably be said to be "constitutive" of certain legal consequences. A more comprehensive effort to achieve clarification would investigate in detail, first, what access official decision-makers and private citizens of newly emerged bodies politic have to established arenas of formal authority prior to any ceremony of recognition and what new access to such arenas and other advantages they obtain after such ceremony, and, secondly, 1. The debates are surveyed in Lauterpacht, Recognition in International Law (1947). 198 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (66) what policies in terms of legitimacy, constitutionalism, willing- ness to perform international obligations, and so on, the deci- sion-makers in established nation-states have in fact sought and achieved in granting or withholding recognition in respect to newly emerged bodies politic 1 . Consideration of whether the policies so sought and achieved are compatible with contem- porary community interests might suggest that the ceremony of recognition is an outmoded survival of earlier power processes, whose use frequently defeats the purposes of its users, and t hat effort could rationally be devoted to the devising of new collec- tive modes of recognition in whatever areas agreement upon criteria compatible with an international law of human dignity can be achieved. I I I . THE BASES OF POWER OF NATION-STATES It may be noted, in rejection of "geo-political" and other single factor explanations of the power of nation-states, that any value may on occasion serve as a base of power for decision- makers in nation-states, either in relation to internal groups and individuals or with respect to external participants in the world power process 2 . Thus, effective power may be based upon many varying combinations of formal power (stability and efficiency in governmental structures, procedures for controlling parties, pressure groups, private associations, and individuals, etc.), affection (positive identifications of people with active decision- makers and community, sentiments of loyalty and patriotism, devotion to group goals), enlightenment (information adequate for rational decision, recognition of group interdependences, processes of inquiry and of invention), wealth (natural resources, raw materials, technological development, equipment for pro- duction, transport, and communication, and for application of violence), skill (adaptability of manpower to modern technology, training of elites in negotiation and management of peoples), 1. In the subsection on "effects", below, a more detailed mode of cate- gorizing the facts in certain of the more important types of "recognition" cases will be indicated. 2. Note the rich variety of materials presented in Sprout and Sprout, Foundations of National Power (2nd ed. 1951). (67) NATION-STATE IN WORLD POWER PROCESS 199 well-being (capacity of people to work and endure, characters integrated to group responsibilities), respect (willingness to bear sacrifices in common interest because of group acceptance, absence of resentments and dissidences caused by discrimina- tions), and rectitude (sense of Tightness of cause and of respon- sibility shared, integration of community purpose that trans- cends all factionalism). Our inquiry must, however, extend beyond questions of what base values are at the disposal of particular decision- makers in particular situations, to consideration of the total potentialities, or aggregate bases of power, of particular nation- states for general participation in the world power process. This total potentiality, or aggregate base of power, of any particular nation-state depends, not upon some static addition or com- bination of values at rest, but rather upon a "going" community process in which the nation-states' decision-makers control and manage resources and people, by a great variety of institutional practices, in the continuous production of all the values which contribute to power. The demands which decision-makers within particular nation-states make upon decision-makers in other nation-states or upon other participants for control over bases of power are, further, commonly cast in the form of demands for control over resources, or for control over people, or for freedom of decision in the shaping of institutional arran- gements. For investigating and appraising the prescriptions and prac- tices by which bases of power are allocated among nation- states, it is, accordingly, most convenient to subdivide inquiry, not value by value, but rather under the three main headings of Resources, People, and Institutions. Under each of these headings an investigator may pursue, in any necessary or possible detail, the usual general questions of fact and of legal policy: What claims do decision-makers in nation-states in fact here make against other participants (including of course other nation-states) for control or freedom of decision and what are the prescriptions and practices by which other participants reject, honor, and stabilize such claims? The most comprehen- 200 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (68) sive inquiry might add consideration, sometimes relegated to the field of comparative constitutional law, of the internal policy prescriptions and applications by which nation-states actually exercise the controls and freedom they achieve, within the limits of world prescription and regulation, for enhancing their bases of power vis-a-vis other participants. A. The Control of Resources as a Base of Power The demands of decision-makers within nation-states against other participants for control over resources are usually expressed in the form of demands for "territory". These demands are asserted through employment of all the instruments of policydiplo- matic, ideological, economic, and militaryand are made effective through both agreement and coercion. The resources demanded include both those that have hitherto been unappro- priated and those that have been regarded as in the domain of some other nation-state. One could organize inquiry in terms of modes of demand and acquisition, ranging from peaceful or consensual to coercive. Since, however, modes that are consen- sual in form are often coercive in fact, it is perhaps most con- venient to make initial categorization in terms of the type of resources demanded, unappropriated resources and appro- priated resources. The importance of demands for the unappropriated resources of the globe needs no special emphasis in this time of ever increasing demands for control over the riches of the sea and sea-bed, the polar regions, and air-space and perhaps, immi- nently, outer space and celestial bodies 1 . The prescriptions we have inherited for resolving controversies with respect to such controversies derive from earlier and different controversies and are formulated in terms of discovery, occupation, contiguity, accretion, and long use 2 . They obviously offer but an initial frame for discussion. Among the more relevant policies would 1. Schachter, Who Owns the Universe, Colliers Magazine (March 22, 1952) 36, 70. 2. Waldock, Disputed Sovereignty in the Falkland Islands Dependencies 25 B.Y.I.L. 311 (1948) offers a careful analysis of some of the earlier authorities. (69) NATION-STATE IN WORLD POWER PROCESS 201 appear to be the promotion of peaceful adjustment and minimi- zation of violence, the promotion of the fullest use compatible with wise conservation, and a rational appreciation of the security interests of the different demandants ; and alternatives have been suggested, beyond simple acquiescence in unilateral nation-state demands, in terms of internationalization and regio- nal organization and development. The opportunities of a policy-oriented inquiry which would relate resources and demandants to long-term community objectives and recommend appropriate alternatives are enormous. The modes by which "appropriated" resources are transferred from one nation-state to another range, as indicated, through varying combinations of consent and coercion. Our inherited world prescriptions about such modescession and lease, con- quest and annexationare but derivations from more general prescriptions about the making and enforcement of interna- tional agreements and the control and regulation of violence. Inquiry into such particular derivations must be related to the more general body of prescriptions and procedures, more appropriately developed in comprehensive consideration of the "practices" of nation-states. Other problems requiring investigation, for a more complete picture of the control of resources, would include the demands by nation-states for special rights within the territory of others, such as for so-called "servitudes" and leases, and the many troublesome questions of boundaries. The recent Anglo-Norwegian Fisheries Case x demonstrates both the continuing importance of the latter questions and the capacity of international tribunals on occasion for bold policy-making 2 . B. The Control of People as a Base of Power The demands of decision-makers within nation-states for control over people as a base of power are expressed in many varied forms. Some demands are externally directed against decision-makers in other nation-states and other demands are 1. 1951 I.C.J. Reports 116. 2. Waldock, The Anglo-Norwegian Fisheries Case 28 B.Y.I.L. 114 (1951). 202 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (70) directed internally against people within the same nation-state. The demands directed externally against decision-makers in other nation-states vary in terms of the people with respect to whom the demands are made: some demands are that certain people are "nationals" of the decision-makers' nation-state and, hence, both subject to the controls of the demanding decision- makers and free from the controls of decision-makers of other nation-states; other demands are to impose certain, at least partial, controls over people who are concededly the nationals of other nation-states. The demands directed internally against people within the same nation-state are to subject them to varying degrees of regimentation for the enhancing of national power. The specific practices by which decision-makers within nation- states assert and seek to make effective such demands range from control of admission to and movement within their territory through selective administration of punishments and rewards with respect to all major values. In highly abstract summary, we may itemize such practices as follows: (a) selective exclusions from and admissions to territory and the control of movement within territory; (b) the differential admission of people to the various value processes within the community (e.g. by discriminations against aliens, the disloyal, the suspected, or others) ; (c) the application of negative sanctions either to prevent attacks upon community values (punishment for treason or espionage or sabotage) or to secure services and con- forming behavior (conscription, compulsory labor, com- pulsory indoctrination) ; and (d) the offering of inducements or rewards, in terms of increased access to specific values, for securing desired conduct. It is no secret that the world prescriptions we have inherited for regulating such practices by decision-makers within nation- states are incomplete, vague, contradictory, and primitive in their relation to the goal values of an international law of human dignity. Designed largely for the adjustment of minor conflicts (71) NATION-STATE IN WORLD POWER PROCESS 203 between decision-makers in different nation-states, such pres- criptions purport to limit the discretion of such decision- makers on but few matters and on these matters but little. Broad construction of such concepts as "sovereignty", "indepen- dence", and "domestic jurisdiction" commonly concedes to national decision-makers a very wide competence to grant and deny their "nationality" and to control both nations and aliens. For detailed inquiry into the relevant world prescriptions and their application, we suggest an outline organized about "phy- sical access to territory", "access to power", and "access to other values". Under "physical access to territory", considera- tion may be given to the power to exclude, the power to repel, the prevention of voluntary exit, the power to reclaim, and control of freedom of movement within territory. Access to power may be conceived to include both access to citizenship and access to nationality. The term "citizenship" may be appro- priately reserved for describing the degree of access to power internally within the nation-state (access to voting, office- holding, etc.). The term "nationality" is most conveniently used to refer to the protection given, and the obligation claimed, by one nation-state with respect to an individual 1 . Under the heading "nationality", consideration may be given to the power of a nation-state to confer or impose nationality, the power of a nation-state to withdraw nationality, the individual right of voluntary expatriation, problems of multiple nationality, and problems of statelessness. Under the heading "values other than power", the high degree of control permitted over nationals (limited only by humanitarian intervention, occasional agree- ments, and the slowly expanding prescriptions about human rights) may be contrasted with the lesser controls permitted over "aliens", who receive a measure of protection from tradi- tional doctrines about the responsibility of states. Still more comprehensive inquiry would add a survey of the internal prescriptions and practices by which the decision- makers within nation states actually exercise the broad com- 1. Koessler, "Subject", "Citizen", "National" and "Permanent Aller giance", 56 Yale L.J. 58 (1946). 204 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (72) petence conceded to them by world prescriptions. Such a survey might be conducted in terms of substantially the same outline we have indicated for the study of world prescriptions. The policies here at stake for world prescription and regu- lation obviously involve in deepest conflict peoples' long term demands for individual human rights and freedom and their immediate demands for security against external aggression. So long as peoples' expectations were of an increasingly peaceful world community, the dominant projection of demands was for, and the long-term trend was toward, the utmost volun- tarism in affiliation and the freest circulation of peoples, along with the free circulation of capital, goods, and ideas. The human rights program in the United Nations is but the most recent expression of this long term trend in policy preference. Today, however, when expectations of imminent and compre- hensive violence have largely replaced the former expectations of a peaceful world community, diametrically opposite demands and policies have begun to emerge in all parts of the world and decision-makers within nation-states have begun to impose more and more restrictions upon freedom of affiliation and circulation and to make increasing use of deprivations and negative sanctions to secure acceptance of ideology and conforming behavior. It is not to be suggested that the resolution of this conflict in an international law of human dignity will be easily attained. C. Institutions as a Base of Power The power of a nation-state obviously depends not only upon the resources and raw man-power at its disposal, but also upon the efficiency and morale (invulnerability to divisive outside forces, flexibility, etc.) it achieves in its internal social order and upon the external arrangements, for increasing both its freedom of decision and its positive support from other participants, it secures and maintains. It is commonplace knowledge that decision-makers within nation-states demand a very wide freedom of decision in esta- blishing and managing their internal social order and that world (73) NATION-STATE IN WORLD POWER PROCESS 205 prescription, under such doctrines as "sovereignty", "indepen- dence", "equality", "non-intervention", and so on, largely concedes to them this wide freedom of decision. Relevant inquiry might survey the more important of the internal prac- tices of nation-states by which values are shaped and shared and consider whether, in the contemporary, interdependent world, the broad freedom that world prescription has traditionally permitted nation-state decision-makers is in fact compatible with the achievement of an international law of human dignity. The external arrangements that nation-state decision-makers seek for increasing their freedom of decision and their positive support from other participants include both alliances among formal equals and formally established relationships of varying degrees of dependency. Here, once again, realistic description requires the maintaining of a clear distinction between formal authority, legal arrangements in terms of independence, alliance, and dependence, and eifective control, the relationships of independence, alliance, and dependence in fact. In today's bi-polar world no nation-state can have complete freedom of decision in fact; even principal contenders are caught in the grip of the world-wide interdependences that condition their every calculation and action and lesser contenders must group themselves around principal contenders in varying degrees of mutual dependency. Arrangements in terms of formal au hority must be interpreted always with consciousness of these con- stantly changing interrelationships in eifective power. Comprehensive inquiry would cover both the process of alliance, disalliance, and re-alliance, and the role that world prescriptions play in such process, and the process of establishing and maintaining dependent communities, including both dependences created by arrangements between the dominating nation-state and the dependent community and those created through international agreement, as for neutralization or in the mandate system of the League of Nations or in the trusteeship system of the United Nations. 206 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (74) I V. T H E PRACTI CES OF NATI ON- STATES IN SHAPI NG AND SHARING POWER It is the cause of some confusion that nation-states are not only the principal actors in the world arena whose acts require regulation but also the principal agents of the world community for achieving such regulation. Decision-makers within nation-states are both continually engaging in various strategies and tactics with reference to each other in arenas of both formal authority and effective control, with varying degrees of reliance upon persuasion and coercion, and also continually formulating, prescribing, and applying legal policies for the regulation of such strategies and tactics. When it is recalled that reference to custom is one mode by which decision-makers formulate policy prescriptions, these two sets of practices, or roles, may be seen to merge or overlap. For purposes of analysis and inquiry it may, however, aid clarity to consider each role separately. It has already been suggested that inquiry into the facts about the strategies and tactics by which nation-states engage each other in varying arenas may be conveniently organized about the four-fold classification of practices as diplomatic, ideological, economic, and military, and brief indication has been made of the general directions that investigation might take under each of these headings. The most comprehensive inquiry would survey how decision-makers in nation-states employ all these practices, relying now upon persuasion and now upon coercion and again upon varying combinations of the two, in a continual process of balancing power among themselves for securing and maintaining all national objectives, and such inquiry might be pursued in any detail necessary to the clarifi- cation of issues of legal policy 1 . The two principal modes by which nation-states prescribe and apply policies for the regulation of their own conduct are com- monly categorized in terms of custom and agreement. For 1. Strausz-Hupe and Possony, International Relations (1950) illustrates the type of relevant inquiry. (75) NATION-STATE IN WORLD POWER PROCESS 207 detailed inquiry into each of these two modes we suggest an appropriate telescoping of the seven policy functionsintelli- gence, recommending, prescribing, invoking, applying, apprais- ing and terminatingwhich were recommended above. As between the decision-makers of nation-states, some of these functions are performed not at all or at least most primitively and others are performed so secretly that inquiry is fruitless. Hence we suggest present emphasis only upon the prescribing, the applying, and the terminating functions. With respect to the mode of policy-making and application by reference to custom, even the prescriptive, applying, and terminating functions, may be observed to merge in a single process in which decision-makers simultaneously appeal to past usage for prescription, and apply the prescription they formulate, and perhaps even terminate the authority of prescriptions invoked from other usage. Comprehensive inquiry would- embrace the usual questions of what nation-state decision makers have invoked, are likely to invoke, and should invoke, what past usages, by whom, over what period of time, and attended by what subjectivities about "obligatory" character, for justification of what decisions about what controversies and as between what participants. It should perhaps be recalled that authoritative prescriptions first projected by reference to custom may later be incorporated in agreements, applied through agreements, and terminated by agreements 1 . With respect to the formulation and application of prescrip- tion by the mode of nation-state agreements, emphasis upon distinctions between the prescribing, applying, and terminating functions is, however, indispensable to the clarification of rele- vant policy issues. The organization of studies we here suggest proceeds, accordingly, under the headings of The Prescription of International Policies by Agreements between Nation-States, The Application of the Policies in Agreements between Nation- States, and The Termination of Policies in Agreements between 1. Kopelmanas, Custom as a Means of Creating International Law 18 B.Y.I.L. 127 (1937); Finch, The Sources of Modern International Law (1937) Ch. IV. 208 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (76) Nation-States. Brief illustration may be offered of appropriate inquiry under each of these headings. A. The Prescription of International Policies in Agreements between Nation-States. It is sometimes rather futilely debated what agreements between nation-states are "law-making" and what are not. From our perspective all agreements between nation-states project policies into the future and the number of participants affected by such projections is a matter, not for dogmatic conclusion from implicit assumptions about the nature of law or the nature of agreement, but rather for empirical inquiry or for rational decision, taking into account all values at stake. Thus, agreements between nation-states may be observed to perform in the world arena all the roles customarily performed within nation-states by constitutional conventions, legislative assemblies, and public and private contracts. Their constitutive role may be observed in the establishment of fundamental charters for international organizations, such as for the League of Nations, the United Nations, and the great host of regional and functional organizations; their legislative role, in the projection into the future for varying numbers of nation-states of broad policy prescriptions, such as with respect to the regula- tion of the conduct of war or safety at sea; and their "contract" role, in agreements between two or more nation-states for the division of existing values, such as is involved in the transfer of territory or the demarcation of a boundary line 1 . Even the latter agreements, however, project a pattern of rights and duties into the future. Detailed investigation into the processes by which nation- states prescribe policies by agreement might begin with con- sideration of the facilities they make available for themselves for diplomatic negotiation, including the doctrines and practices of diplomatic immunities, and proceed under such headings 1: McNair, The Functions and Differing Legal Character of Treaties, 11 B.Y.I.L. 100 (1930) discusses some possible classifications of international agreements. (77) NATION-STATE IN WORLD POWER PROCESS 209 as Competency to Make Agreements between Nation-States, The Formalities of Consent, and Consistency with Basic Inter- national Objectives. With respect to diplomatic immunities, it might be queried whether the contemporary justification in terms of insuring free channels of communication between nation-states is adequate replacement of the older notions of "exterritoriality" and "representative character"; rational policy might be concerned not only for communication and freedom of communications but also for efficiency in the use of peaceful procedures for the promotion of all values. Under the heading Competency to Make Agreements between Nation- States, consideration might be given to both international prescriptions and practices and internal, national prescriptions and practices and some evaluation attempted of the opposing views about whether international prescriptions or national constitutions have been, are likely to be, or ought to be final authority for determining competence. When such evaluation is attempted it might be borne in mind that when promises from one nation-state create reasonable expectations of performance, in other parties, such other parties are likely to resort to all sanctions available to them to secure performance, and that international tribunals are not likely to ignore such expectations and possible invocation of sanctions. Under The Formalities of Consent, inquiry may be made into the forms in which agree- ments may be embodied, the 0 authentication of documents, and the expression of commitment, including under the latter: without approval by higher authority, by reference to higher authority, without having participated in negotiations (acces- sion) , reservations to commitment, time when obligation becomes effective, and registration 1 . Under Consistency with Basic International Objectives, one might consider conflicting prior commitments, the genuineness of consent (duress, mutual error, fraud), and legitimacy of objectives. 1. Parry, Some Recent Developments in the Making of Multi-Partite Treaties, 36 Tr. Grotius Soc. 149 (1952). I. 1953. 14 210 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (78) B. The Application of the Policies in Agreements between Nation- States Detailed investigation into the practices by which nation- states apply the policies prescribed in their agreements to them- selves may be organized under such headings as The Scope of Application of Agreements between Nation-States, The Inter- pretation of International Agreements, The Adjudication of Controversies about Agreements, and Enforcement of Inter- national Agreements. The first heading, that of The Scope of Application of Agreements between Nation-States, is designed to raise the question of the parties against whom agreements may be enforced. Appropriate sub-headings include The Obliga- tion of Nation-State to Nation-State, The Application of Agreed Policies within Nation-States, and the Effects of Agreements upon Nation-States not Party to the Agreements. Under the first of these sub-headings may be considered the obligation that is asserted by authorized nation-state officials against their opposite numbers in other nation-states and which is commonly justified by the maxim pacta sunt servanda. Little attention need, however, be given to the great debate about the "juridical nature" of this justification; the important facts are that the decision-makers of nation-states can achieve little stability in their power and other arrangements if they do not in consider- able measure honor the expectation^ they create by their agree- ments and that the structure of effective controls in the world arena is such that some considerable measure in the honoring of such agreements is in fact secured. Under the second sub- heading, consideration may be given to the obligations that nation-state decision-makers may seek to impose, not simply upon themselves and their opposite numbers, but also upon individuals and groups within their nation-states to comply with or fulfil the policies prescribed in agreements. In some nation-states, internal constitutions explicitly provide that agreements, concluded by appropriate officials, which are designed to have this effect become immediately the "law of the land" without further legislative provision, and in other (79) NATION-STATE IN WORLD POWER PROCESS 211 nation-states constitutional provision is made for further internal legislative prescription for achieving the same effect. Under the third sub-heading, attention may be given to the growing trend in agreements between nation-states to seek effects upon nation states not party to the agreement, both in the conferring of benefits and the imposition of burdens. With respect to the Interpretation of International Agreements, consideration may be given both to appropriate authorities for interpretation, including the parties themselves and international tribunals, and to the relevant criteria for interpretation. The problems involved in achieving relevant criteria have been extensively indi- cated in Chapter 1. Inquiry into The Adjudication of Contro- versies about agreements may raise all the problems tradition- ally covered under the heading "peaceful procedures", from negotiation through good offices, conciliation, mediation, and arbitration to judicial settlement; and consideration of the Enforcement of International agreements subsumes the whole problem of sanctions, briefly commented upon in Chapter I I . C. The Termination of Policies in Agreements between Nation-States For systematic inquiry into the prescriptions and practices by which the decision-makers of nation-states terminate the policies embodied in agreements, we recommend an organiza- tion that distinguishes between termination which is based on mutual consent and termination which, without requiring the consent of all parties, is based upon grounds of changed condi- tions. Under the heading of Termination by Mut ual Consent, consideration might be given to termination (i) in accordance with the terms of the original agreement (provisions for denun- ciation, resolutory conditions, the lapse of specified time, the performance of specified purposes), (ii) by new agreement (recission, substitution), and (iii) by renunciation of claims by the party benefited. Under the heading of Termination upon the Ground of Changed Conditions, consideration might be extended further to the general theory of rebus sic stantibus and to the relevance of certain specific changes in conditions, such as the severance of diplomatic relations, changes in the extent 212 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (80) of territory, changes in the governmental institutions of one of the parties, the extinction of a nation-state party to the agree- ment, non-performance and violations by other parties, and war. Relevant inquiry might also include termination by nation- states not party to the agreement and collective procedures for revision. Some commentators have sought to confine methods of ter- minating agreements entirely to those based on consent, and many commentators have deplored too easy acceptance of practices based on unilateral termination 1 . It is believed, however, that there is an element of unrealism in these attitudes, both in terms of description of the past practices of nation-state decision-makers and in terms of the rational clarification of policy preference. The over-riding policy problem is that of maintaining an appropriate balance between the honoring of the reasonable expectations of the parties to agreements (and thus securing a reasonable stability in the relations between participants in the world power process) and the permitting or encouraging of a continual, progressive reformulation of policies to keep them in accord with the changing perspective and conditions of the parties. In the absence of appropriate specialized institutions in the world arena for declaring new and terminat- ing old policies, a cautious application of the clausula rebus sic stantibus, restrained in its use by the ordinary sanctions of reciprocity and retaliation, might seem to serve a useful purpose. V. THE EFFECTS NATION-STATES ACHIEVE IN CONTROL OVER VALUE CHANGES We turn now to the promised disproportionate consideration of "effects" and will give attention to both particular effects ("jurisdiction") and structural effects ("state succession"). In the consideration of particular effects, our primary concern will be to clarify the much confused interrelations of "public" and "private" international law. 1. The differing views are collected in Harvard Research in International Law, The Law of Treaties (1935); Hill, The Doctrine of Rebus Sic Stantibus in International Law (1934). (81) NATION-STATE IN WORLD POWER PROCESS 213 A. Particular Effects: The Doctrines and Practices of Jurisdiction In subdivision III, above, we considered how a nation-state acquires the bases of formal and effective power and the world prescriptions with respect to such acquisition. There we were concerned with the methods by which nation-states obtain more or less continuing control over people and resources for general purposes and with the world prescriptionsdoctrines with respect to "nationality", acquisition of territory, and so onby which these methods are regulated and controls stabilized. Our concern here is for the practices by which nation-states, operat- ing within the context of such continuing arrangements with respect to the bases of power, actually exercise their power to obtain particular effects with respect to particular value changes and for the world prescriptions by which their exercise of power is regulated. In more technical language the problems are those of the "jurisdiction" f nation-states, of "choice-of-law" in controversies involving "foreign elements", and of th obliga- tion of one government to honor the "acts of state" of another government. In all these problems, however, the central issue is one and the same: whose policy is to controlthat of the nation-state of the decision-maker or that of some other nation- state ? 1 In specific controversies some one nation-state has effective control over persons or resources which it can use as a base for power and the issue is whether it should exercise its power to make its own policy for the events under review, or whether, out of deference to its own long term interests or the interests of other nation-states or to a regional or world com- munity interest, it should dispose of the controversy either by refusing to exercise its power or by applying policy formulated by some other nation-state. The most general question may be reformulated as that of "over what events (value changes) a nation-state will exercise its power to effect its own policies and with respect to what events will it limit its exercise of power in 1. One of the best statements of the issue is Neuner, Policy Considerations in the Conflict of Laws 20 Canadian Bar Rev. 479 (1942). See also Harper, Policy Bases of the Conflict of Laws, 56 Yale L.J. 1155 (1947); Cheatham and Reese, Choice of the Applicable Law, 52 Col.L.Rev. 959 (1952). 214 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (82) expectation of a similar reciprocity in self-restraint by decision- makers in other nation-states" 1 . (When the decision-maker is an international authority, the question is of course what limita- tions it may impose upon nation-states.) Though our principal emphasis here must necessarily be upon specific decisions about particular value changes in particular contexts, it should not be forgotten that the aggregate flow of these decisions continuously and vitally affects the distribution of all values among all participants in the world power process. It is the aggregate flow of these decisions which both marks out the competence (for prescribing and applying certain policies) of the different nation-states of the world as among themselves and determines in large measure the interrelations of nation- states and other participants, such as individuals and private associations of all kinds. The cumulative impact of all these decisions is in fact continuously working changes in the com- position and roles of various participants and, hence, in the structuring of the whole world arena. For this reason, one may question the assumption, common among writers on Private International Law, that doctrines about "applicable law" either are being prescribed, or can rationally be prescribed, without regard to how specific cases will be decided. The events (value changes) with respect to which nation- states seek to prescribe and apply policy may include inter- actions of the greatest variety. The participants in the events, as well as the parties to subsequent controversies, may include government officials, private individuals, nationals of different nation-states, corporate and non-corporate bodies, and military and civilian personnel. The values at stake for the participants may be any of the basic values : power, respect, enlightenment, wealth, well-being, skill, rectitude, and affection. The value changes contested may have taken place by agreement or deprivation, volition or coercion (by "cont ract " or by "t ort ", "crime", "expropriation", etc.). The loci of significant events 1. McDougal, The Comparative Study of Law for Policy Purposes: Value Clarification as an Instrument of Democratic World Order, 1 Am. J.Comp. L. 24, 41 (1952) and 61 Yale L.J. 915, 931 (1952). (83) NATION-STATE IN WORLD POWER PROCESS 215 in the value changes contested may have been within the territory of the decision-maker, within the territory of other nation-states or on the high seas. The territorial range of the effects of the significant events may extend to one or several states and may or may not include the state of the decision- maker. Resources affected may vary from land to ships or other movables and be variously located. Nation-states other than that of the decision-maker may or may not have been engaged in "acts of state" with respect to the contested value change, and where such acts of state are asserted, they may be legislative, executive, or judicial. The nation-state whose prior "acts of state" are asserted may or may not have been recognized by the nation-state of the decision-maker. The prescriptions which decision-makers in the world com- munity have developed for resolving controversies about these complex events include many of the doctrines of public inter- national law and the whole of the doctrines of what is com- monly called private international law or conflict of laws. The doctrines by tradition assigned to public international lawsuch as with respect to territorial jurisdictions and jurisdiction over nationals, jurisdiction over marginal seas, vessels, air-space and the high seas ; the immunities of foreign states and their instru- mentalities; the honoring of "acts of states" of other govern- ments; jurisdiction over war crimes and piracy; extradition, and so onare widely accepted among the nation-states of the world and for remedying any departures from these doctrines by the decision-makers of any one nation-state the other nation-states may have recourse to all the ordinary sanctions of international law. The really effective sanctions for these doctrines are not difficult to discern: they reside in certain reciprocities in self-restraint among the decision-makers in nation-statesin their common expectations that an aggregate flow of cases will be handled in certain "agreed" ways and that the coercion applied in certain cases will be limited. The indu- cement to these reciprocities is a certain stability for all elites in making power and other value calculations. The penalty for any violation of the reciprocities is swift reprisal. 216 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (84) It has unfortunately become the fashion among writers on private international law to deny any connection between this subject-matter and world prescriptions and to decry the name "international" 1 . They achieve this anachronistic, nationalist attitude both by adopting limited conceptions of law in general, of international law in particular, and of the sanctions for law and by focussing their attention principally upon the problems with respect to which there is least agreement about appro- priate prescriptions. Thus, even in the latest edition of Dicey's treatise it is insisted that private international law is purely municipal in origin and sanction and explanation is offered as follows : "The obvious objection to this use of the term ' international' is that it is a very different employment of the word from its normal meaning in the regular phrase ' international law' , which denotes the species of law governing the relations between nations. Many attempts have been made to link up these two departments of law, either by establishing an international division of competences based upon territoriality or upon the division of sovereignty over land at home and nationals at home or abroad, but all these attempts have failed. The English courts, with whose action we are alone concerned, do not adopt this mode of considering questions regarding the choice of law and competence of tribunals. They consider laws not from the point of view of the sovereign authority whence they emanate, but rather in their relation to the people to whom and the matters to which they apply, and so far as any definite theory can be said to guide their action, it is based on the desire to apply to any given set of circumstances that legal system which will afford results most in agreement with their views of convenience, equity, and public policy. For English courts, therefore, our subject is without any vital connection with international law as ordinarily understood, and accordingly it is better not give it a name which inevitably suggests such a connection" 2 . Similarly, Professor Beale wrote : "I t is sometimes urged that the doctrines of the Conflict of Laws have an international sanction, binding to some extent upon the various states. This view is not today seriously held and cannot be sustained. It has never been adopted by any common law authority" 3 . So also Judge Goodrich in his latest edition : "No law exists as such except the law of the land. Principles of conflict of laws are ' laws' in the true sense and involve no departure from the 1 Excellent statement of an earlier "international" perspective may be found in Savigny, Conflict of Laws (2nd ed. Guthrie Tr. 1880) S. 348. 2. Dicey, Conflict of Laws (6th ed. Morris, 1949) 7, 8. 3. Beale, Conflict of Laws (1935) S. 5. 1. (85) NATION-STATE IN WORLD POWER PROCESS 217 theory that the territorial law is supreme. But it is a principle of civilized law that a court will not resolve a dispute before it which involves foreign elements as if it were deciding a case all of the facts of which occurred in its own state" 1 . The common assumptions about the nature of law and the assignment of a very limited role to world prescription were made explicit by Professor Cook: "We begin with the assumption that an alleged rule of 'international law' can be said to 'exist' as 'law' only if there is a general consensus among civilized nations as to the supposed rule. It is also assumed that whether such a consensus exists can be determined only by observation. The present writer's observation has convinced him that many, if not all, of the assertions made by Anglo-American writers concerning limita- tion on the legislative jurisdiction of sovereign states imposed by interna- tional law are quite unwarranted" a . Professor Nussbaum summarizes: "Today, the 'nationalist' conception of Private International Law can be considered dominant. It is the only hypothesis conforming to the facts. There are just as many 'Private International Laws' as there are legal systems. There is not even a supplementary universal Private International Law in the limited sense in which there is an ascertainable Law of Nations; consonance of the various conflicts rules is too bare and too uncertain. Hence, references to 'Private International Law,' if something other than conflict norms are meant, are of no avail in legal transactions" 3 . It needs no special emphasis here that these attitudes ignore that decision-makers upon problems of private international law act within the context of a world power process and, hence, t hat their decisions are affected by all the variables t hat affect other decisions within this context. These variables include not only precise descriptive formulations about how previous decision-makers have responded to similar or allegedly similar controversies but also broad formulations of policies which project alternatives into the future and which take into account, in varying degree with respect to varying problems, perspectives and interests which transcend the boundaries of any particular nation-state. The attempt arbitrarily to separate considerations of the formal power and competence of nation-states from considerations of justice and equity for individuals in prescribing 1. Goodrich, Handbook of the Conflict of Laws (3d ed. 1949) 14. 2. Cook, The Logical and Legal Bases of the Conflict of Laws (1949) 72. 3. Nussbaum, Principles of Private International Law (1943) 42. 218 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (86) and applying policy in situations in which both sets of considera- tions are hopelessly commingled cannot succeed in the world of fact and can only express Utopian preference; it is but another tragic consequence of the outmoded conception of public inter- national law as a body of rules applying only to nation-states. The suggestion that there are no effective sanctions for departure from international policies on problems of "private" interna- tional law fails to recognize that the important sanctions even for "public" international law reside in the reciprocities and counter-reciprocities and possible reprisals and counter-reprisals, indicated above, and that these sanctions are as available for one policy as for another when interest is sufficiently great. When controversies involve events and effects transcending the boundaries of any single nation-state and considerations of the respective power of different nation-states as well as of the rights or interests of individuals or other participants, and when decision-makers resolving these controversies prescribe and apply policies which take into account perspectives and interests transcending any particular nation-state, it can serve little rational purpose either to label as "merely municipal" the "law" which such decision-makers create and apply or even to dispute seriously whether it is "public" or "private" international law. All the decisions and all the prescriptions are relevant to one who seeks understanding of the world power process in which he lives 1 . It may, however, be agreed that, whatever the name one may apply to them, the prescriptions by which the nation-states of the world mark out their competence over particular value changes are most obscurely formulated. The authoritative books and opinions of decision-makers present a veritable labyrinth of doctrines formulated in terms of highest level abstractions such as "jurisdiction", "territoriality", "nationality", "domi- cile", "act of state", "public order", and the like, and of reified derivations from "contract", "tort", "crime", and so on. These 1. A more technical and detailed documentation of the same general point is offered by Stevenson, The Relationship of Private International Law to Public International Law, 52 Col. L. Rev. 561 (1952). (87) NATION-STATE IN WORLD POWER PROCESS 219 are all terms of pre-eminent normative-ambiguitymaking at one and the same time a confused reference to the facts to which decision-makers are responding, to relevant policies, and to the responses which they are supposed to predict or justifyand frequently enable a decision-maker to conceal both from him- self and others, in a maze of vague and contradictory verbaliza- tions, the important policies that are in fact at stake and perhaps even the variables that in fact affect his decision. The measures t hat are needed to bring order into this intel- lectual chaos can be briefly indicated. They are the same whether one's objective is to obtain careful scientific description of prior decisions and the variables that have affected t hem, or to clarify the policies that are at stake for the different parties to the controversies and to invent more rational doctrines and prac- tices. What is needed first is a careful categorization of the events to which decision-makers are responding in terms of all the variables indicated above: who the parties are, what values are primarily and secondarily involved in the changes, whether the contested changes were by agreement or deprivation, the loci of the significant events and the range of effects, the "acts of st at e" that have already occurred in various nation-states, the presence or absence of "recognition", and so on. It is obvious t hat minute variations in these events may affect both relevant policies for all interested participants and the actual responses of decision-makers. With the events so carefully categorized, an investigator could clarify in some detail the policies at stake for the parties, for the nation-state of the decision-maker, for other nation-states, and for the world community. He could then observe what responses different decision-makers have in fact made through time to the events so categorized and what variablesincluding not only technical doctrines but also policy formulations and other presdispositional and environmental factors in so far as accessibleappear to have affected the responses. Finally, the investigator might compare the responses observed with his clarified policies, note the degree of correspon- dence, and, if discrepancies appear, make recommendation of alternatives. 220 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (88) It does not escape us that study and measures so comprehen- sive would require complete merger of the present domains of public and private international law. Since both tradition and available resources may dictate continued emphasis upon the alleged distinctions between the two domains, a less ambitious and compromise alternative for organizing studies may be proposed and directed primarily to specialists in public inter- national law. This alternative requires isolation from the comprehensive flow of events indicated above, of certain of the more important problems with respect to which there has been the widest degree of acceptance of international prescription. For inquiry into doctrines and practices about such problems, we suggest an organization of studies in terms of, first, effects obtainable within the territory of the nation-state of the decision-maker and, secondly, effects obtainable outside the territory of the nation- state of the decision-maker. Within this over-all organization, emphasis in subcategorization may be placed upon both the loci where events take place and the possible range of effects of such events. It is recognized both that the characterization of what constitutes an "event" is somewhat arbitrary (since there is in fact a continuous sequence of events transcending nation- state boundaries) and that estimations of the probable range of the impacts of events are often hazardous, sometimes involving preferential as well as factual judgment. The events to which decision-makers must respond are, however, just as fuzzy and imprecise in their boundaries and nothing is to be gained by ovr-simplification. Some of the deepest predispositions of con- temporary decision-makers are, furthermore, organized about concepts of "territoriality" and an organization in these terms may help to highlight the more significant variables that affect decision. Though the most rational considerations for a decision- maker, and the groups with which he identifies, include not merely the place where an event occurs and the particular people affected but also the total effects of the events upon all the values of the groups represented, in a world largely domin- ated by territorially organized bodies politic emphasis upon a (89) NATION-STATE IN WORLD POWER PROCESS 221 territorial allocation of competence may even embody a certain practical wisdom in policy. It has been suggested that com- promises in terms of territorial factors require the least sacrifices by those who must compromise and restrain their effective power 1 . The details of the organization of inquiry we propose may be indicated most economically in outline form, as follows: I. Effects obtainable by a nation-state within its own territory. A. Events Occurring Principally Within the Nation-State of the Decision-Maker 1. The General Principle of Territoriality 2. Internal Waters 3. The Territorial Sea 4. Airspace B. Events Occurring outside But Having Important Effects Inside the State of the Decision-Maker C. Events Occurring Within and Having Effects Within Two or More States D. Events Occurring and Having Important Effects Princi- pally Within a State Other than That of Decision- Maker 1. The General Theory of Acts of State 2. Legislative Acts of State 3. Judicial Acts of State 4. Executive Acts of State 5. Policy Limits on the Acts of State Doctrine E. The Traditional Immunities of Other Nation-States and Their Instrumentalities 1. Immunities of Foreign States 2. Immunities of Head of Foreign State 3. Public Vessels (a) Vessels not Engaging in Trade (b) Vessels Engaging in Trade 4. Immunity of Other Property of Foreign States 5. State-Controlled Corporations 1. Niboyet, Territory and Universal Recognition of Rules of Conflict of Laws, 65 Harv.L.Rev. 582(1952). 222, M. S. McDOUGALINTERN. LAW, POWER AND POLICY (90) I I . Effects Obt ainable by a Nation-State Outside its own Territory A. Effects Obtainable with respect to Nationals 1. Individuals 2. Vessels Having National Character (a) Criteria for Determining the Nationality of Vessels (b) Jurisdiction over National Vessels 3. Aircraft Having National Character (a) Criteria for Determining the Nationality of Aircraft (b) Jurisdiction over National Aircraft 4. Corporations Having National Character (a) Criteria for Determining the National Character of Corporations (b) Jurisdiction over Corporations of National Character B. Effects Obtainable Upon the High Seas 1. The General Principle of Freedom of the Seas 2. Jurisdiction in Contiguous Areas 3. The Right of Hot Pursuit 4. The Regulation of Traffic on the High Seas C. Effects Obt ainable by a Nation-State within the Terri- tory of Another Nation-State 1. Access to Courts of Another State 2. The Practice of Extradition 3. Jurisdiction over Armed Forces in Friendly Country 4. Territory Leased from other Nation-States 5. Territory under Military Occupation D. Claims to Universal Jurisdiction over Certain Crimes 1. Offences against the Security of the State 2. Piracy 3. War Crimes 4. Ot her Claims to Universality of Jurisdiction E. Effects Obtainable by Governments in Exile (91) NATION-STATE IN WORLD POWER PROCESS 223 B. Structural Effects: The Doctrines of Governmental and State Succession It has already been observed that the identity and composi- tion of the territorially organized bodies politic interacting in the world arena are in process of continuous change and that such change is effected by methods which range over the whole continuum between the two polar extremes of consent and coercion. Sometimes in minimum degree this change may involve merely a succession of authoritative decision-makers, in accordance with constitutional processes, within the confines of a single body politic, but at other times in maximum degree it may extend to the radical restructuring of both formal authority and effective control across the boundaries of several or many preexisting bodies politic. A more complete itemization of the types of relevant change might include: (1) changes in constitutional and governmental structures; (2) changes in the identity of governors (officials) and of rulers (controllers in fact); (3) changes in control over population; (4) changes in control over territory and other resources ; and (5) changes in relationships of dependence and independence with respect to external decision-makers. Among the consequences of these continuous changes in the identity and composition of bodies politic are the scarcely less continuous demands asserted by the decision-makers of the various bodies politic, both new and old, for the reassessment of commitments made prior to changes which they regard as important. Decision-makers newly come to power, whether in a new or old body politic, may, on the one hand, deny responsi- bility for the burdens of arrangements made by their predeces- sors, but, on the other hand, claim the benefits of such arrange- ments. Conversely, decision-makers in other bodies politic may seek both to impose upon such new decision-makers responsi- bility for the obligations of their predecessors and to deprive them of the benefits of prior arrangements. The possible permu- 224 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (92) tations in conflicting demands are obvious and occur all too often in fact. The policies at stake in these controversies may, from a world community perspective, be seen to range between two extremes. The one extreme is embodied in the common demand of peo- ples for stability in their affairs, for a stability which will permit economic calculation of power and other value effects and which will encourage the flow of people, capital, and skill across nation-state boundaries in the expectation that commitments will be honored in reasonable measure without too much disruption from power conflicts internal to bodies politic. The other extreme is embodied in the equally common demand of peoples for the change and progressive development of policy to correspond with changed conditions and is premised upon the assumption t hat major changes in the structures and pro- cesses of-formal authority and effective control within bodies politic are such changes in condition as to require reformulation of external commitment. The important problem is how world prescriptions can be formulated and applied which will permit the rational balancing in particular contexts of these two, apparently opposed but on different occasions in different degree equally meritorious, policies. This difficult problem in legal policy traditional international law doctrine has sought to solve by a simple dichotomous distinction between "succession of governments" and "succes- sion of states". When changes in a body politic are found to be changes of "government " only, obligations with respect to other bodies politic are commonly declared to remain unchanged. When, however, changes are found to amount, beyond mere change in government, to a change in "t he state", though there is a great variety of decision on specific problems, obligations of various kinds are frequently declared to be terminated or terminable 1 . It should need no elaborate demonstration that this alle- gedly factual distinction between changes in "government " and 1. For illustrating cases and references to the literature, see Briggs, The Law of Nations (2nd ed. 1952) Ch. III. (93) NATION-STATE IN WORLD POWER PROCESS 225 changes in "the state" is a disguised preferential statement which assumes the very issue it is supposed to justify. Most traditional definitions of "state" include "government", and when there have been substantial changes in the structures and processes of government, it is only by grace of preference that one may continue to speak of the "same" state. Conversely, though there may have been very considerable changes in the interrelation of decision-makers and bases of power across national-bound- aries, the rational promotion of the objectives of a free, peaceful and abundant world community might still demand from new decision-makers that they honor the expectations created by their predecessors. For the simple dichotomy between changes in government and changes in state, comprehensive and rational inquiry would substitute detailed investigation of the types and degree of change that have in fact occurred, of the types of claimants, of types of obligations and benefits claimed, of the methods by which change was effected, and of the consequences for the values of all concerned in honoring or dishonoring the expec- tations of claimants in contexts so particularly identified. For investigation of traditional doctrines and practices we suggest, accordingly, a principal categorization in terms of types of claims and cross-categorizations in terms of each of the other relevant variables. Types of claims might be organized under such headings as: (A) Claims to People (Conflicting claims to people as "nationals" of the claimants) (B) Succession to Benefits (State property, agreements, claims for prior depriva- tions, etc.) (C) Succession to Burdens (1) Agreements (a) Agreements with Nation-States (b) Agreements with Parties other than Nation- States I. 1953. 15 226 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (94) (2) Deprivations. (Torts, crimes) (3) Prior Policy Prescriptions (Demands for the protection of private rights that prior laws be regarded as continued until explicitly changed.) The variables for cross-categorization have perhaps been sufficiently indicated. CHAPTER IV PARTICIPANTS IN THE WORLD POWER PROCESS OTHER THAN NATION-STATES I T is our purpose in this Chapter to suggest, in a series of brief outlines, how the general method of analysis we have proposed may be applied to participants in the world power process other than nation-states. Without purporting to attempt more than to pose some of the relevant questions, we will consider in turn international governmental organizations, transnational political parties, transnational pressure groups, transnational private associations, and the individual human being. I. INTERNATIONAL GOVERNMENTAL ORGANIZATIONS AS PARTICIPANTS IN THE WORLD POWER PROCESS A. The Identification of the Participant By international governmental organizations we refer to such organizations as nation-states establish by agreement among themselves for the promotion of common purposes. Sometimes these organizations are general-purpose and are granted a competence, as in the League of Nations and the United Nations, which may in measure affect all values. More commonly, of course, the organization is created for certain very specialized purposes with respect to certain specific values and its compe- tence is strictly limited to its purposes. Well-known examples of such specialized and limited organizations are the Interna- tional Labor Organization, The Food and Agriculture Organiza- tion, The International Bank for Reconstruction and Development, The International Monetary Fund, The World Health Organization, U. N. E. S. C. O., The Universal Postal Union, and The International Telecommunications 228 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (96) Union. Sometimes an organization may be created under the guise of eternity and for more or less permanent purposes, as in the case of the United Nations, but other organizations are created for purposes of limited duration and their prompt expiry is anticipated, as in the cases of the United Nations Relief and Rehabilitation and the International Refugee Organization 1 . It is still seriously debated, even today, whether these international governmental organizationswith all their varying purposes, competences, memberships, territorial ranges, and durationsare themselves sources of independent influence in the world power process or are rather mere registering devices for their participant nation-state members 2 . Such organizations with their internationally responsible bureaucracies and wide range of interrelated activities would appear, however, to play a role increasingly distinctive from that of other participants, and, from the perspective of the analysis we propose, it is easily observable that they establish and interact in certain specialized arenas, that they have their own distinctive bases of power, that they employ their own distinctive practices, and that they achieve certain specialized effects with respect to other partici- pants. The precise degree and character of the influence exer- cised in any given context by any particular organization is, we suggest, a matter again for empirical investigation and not for dogmatic assumption 3 . 1. The range of relevant organizations may be noted in Sohn, Cases and Materials on World Law (1950); Jenks, Coordination in International Organization: An Introductory Survey, 28 B.Y.I.L. 29 (1951); Hill, Interna- tional Organization (1952); Leonard, International Organization (1951); Eagleton, International Government (Rev. ed. 1948); Potter, An Intro- duction to the Study of International Organization (5th ed. 1948). 2. The varying attitudes may be observed in Sohn, The Impact of the United Nations on International Law, 46, Proc. Am. Soc. I.L. 104 (1952); Rothwell, International Organization and Politics, 3 Int. Org. 612 (1949); Emerson and Claude, The Soviet Union and the United Nations, 6 Int. Org. 1 (1952). 3. Briggs, New Dimensions in International Law, 46 Am. Pol. Sci. Rev. 677, 681 (1952) writes: "The United Nations may be said to have established the Republic of Korea as an independent state in 1951, to have assisted as midwife at the birth of Israel in 1948 and of Indonesia in 1949, and to have certified the existence as states of Ceylon, Jordan, and Nepal." (97) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 229 The most comprehensive inquiry would obviously extend to all international governmental organizations and would consider both the separate impact of each particular organization and the aggregate impact of all organizations on other participants. Many approximations to such comprehensiveness might, how- ever, yield information of great value in clarification of the basic policy issues and procedures of an international law of human dignity *. B. The Arenas of Interaction of International Governmental Organiza- tions The arenas of our special concern with respect to interna- tional governmental organizations include both the arenas internal to such organizations, in which their own decision- making processes occur and their own policies are formulated, and the arenas external to such organizations in which they interact with other participants in pursuit of their established policies. With respect to internal arenas, the most general question is who gets admitted to participation in the decision- making processes of the organization. With respect to external arenas, the corresponding question is to what decision-making processes outside the organization do representatives of the organization get admitted. Under the heading of internal arenas, inquiry might appro- priately be directed to policy prescriptions and applications about such problems as membership, representation, with- drawal, suspension, expulsion, limited participation by non- members, participation by individuals and organized groups other than nation-states, the details of access to functional subdivisions of the organization, and so on. The most meaning- ful inquiry would of course locate these problems in the context of the struggle of nation-states for effective control and consider the varying factors which in varying particular contexts in fact influence such policy prescriptions and applications. The 1. A superb demonstration of the potentialities of comparative study of international organizations appears in Jenks, Some Constitutional Problems of International Organizations, 22 B.Y.I.L. 11 (1945). 230 M. S. McDOUGALINTERN. LAW, POWER AND POLICY 98) appraisal of prescriptions and procedures might extend beyond criticism of illusory technicalities about "state", "government", "representation", "peace-loving", "acceptance of obligation", and so on, to evaluation of the traditional practice by which people are represented in organizations by "equal" states in fact unequal in terms of the people they represent and consider the feasibility of universal and perhaps even compulsory mem- bership in appropriate types of organization 1 . Under the heading external arenas, inquiry may be directed with respect to any particular international governmental organization both to the access it obtains to arenas of formal authority of other such organizations and of nation states and to its interactions with other participants in arenas of effective control, which latter may, as in "police actions", include violence and expectations of violence. C. The Bases of Power of International Governmental Organizations The bases of power of an international governmental organiza- tion include both values which are continuously at the disposal of the organization itself and values which member nation- states may on occasion be willing to put at the disposal of the organization for the achievement of certain specified purposes. The values at the more or less continuing disposal of an inter- national governmental organization as bases of power may, in principle and in fact, include any one or all of the eight major values we have categorized: power, respect, enlightenment, wealth, well-being, skill, rectitude, and loyalties. For most international governmental organizations the most important base of power is obviously formal power itself, the competence in terms of formal authority granted by the member nation-states to the organization. The formal authority so granted varies greatly of course from organization to organiza- tions in terms of the range of values that may be affected by decisions of the organization, of the degree of authority that may be exercised in making decision, and of the domain of 1. Note the proposals in Clark and Sohn, Peace Through Disarmament and Charter Revision (Preliminary Print, July 1953). (99) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 231 people who may be affected by decision. With the broad com- petence granted to the United Nations which may be exercised to affect all values, which embraces a very high degree of autho- rity in meeting threats to the peace, breaches of the peace and acts of aggression, and which is authorized to extend even to non-member nation-states, may be contrasted the lesser com- petences granted to such organizations as the International Monetary Fund and other specialized agencies. Whatever the measure and degree of competence granted by member nation- states to any particular organization, however, that measure and degree, with attendant sanctions, become a part of the expectations of all participants in the world power process and such expectations may be invoked by the organizations so established as a base of power. Certain particular grants of formal authority from member nation-states to international governmental organizations re- quire special emphasis because of their unique importance as bases of power. These are the grants of legal capacity, designed to give the organization access to and protection within the arenas of formal authority of the member and other nation- states, and of certain privileges and immunities to specified personnel, designed to secure the independent and uncoerced performance of their official duties. These grants of capacity and of privileges and immunities vary greatly from organiza- tion to organization and are extended by many different methods in fundamental charters, in agreements between orga- nizations and member states, and in national legislation. The opportunity for comparative study of prescriptions and prac- tices, conditions and effects, is correspondingly great 1 . Several values other than formal power are, further, commonly at the disposal of most international governmental organiza- tions. Perhaps the most important of these is enlightenment. International governmental organizations may build upon enlightenment as a base of power both by serving as fora for 1. See Crosswell, Protection of International Personnel Abroad (1952); Brandon, The Legal Status of the Premises of the United Nations, 28 B.Y.I.L. 90 (1951). 232 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (100) their members to inform themselves and others and by special investigation and publication with respect to demands, condi- tions, and alternatives in the area of their general or specialized concern. Similarly, international governmental organizations may, as "the open conscience of the world" 1 , seek to base power upon rectitude by appeals to moral indignation through public determinations and reports of unlawful behavior, suspensions of memberships and expulsions, and even invocation of economic and military sanctions. For the promotion of specific programs, such as with regard to human rights, genocide, or the abolition of slavery, international governmental organizations may, once again, base efforts to secure appropriate prescription in part upon appeal to people's respect for fundamental human dig- nity. Growing sentiments of loyalty to communities larger than the nation-state may, finally, on occasion serve as a base of power for many international governmental organizations. Other values may on occasion serve as bases of power for certain particular organizations. Thus, organizations engaged in the promotion of economic development, such as the International Bank for Reconstruction and Development, may have at their disposal both wealth and skill; and an organization, such as the United Nations, which is charged with responsibility for security measures must certainly base its power in part upon the well-being of the forces at its disposal. The values which member nation-states may in particular instances place at the disposal of an international governmental organization depend, of course, upon who the member nation- states are, what their resources are, and the degree of willing- ness they may have to support the organization for its particular purposes in the particular context. It is suggested that an inquiry in these terms into the prescrip- tions and procedures by which the bases of power of interna- tional governmental organizations are established and secured might serve both to correct certain contemporary underestima- 1. Goodrich and Hambro, Charter of the United Nations (2nd rev. ed. 1949). (101) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 233 tion of the extent of existing bases of power and to stimulate inventiveness in the design of new prescriptions and procedures for the appropriate enhancing of such bases of power. D. The Practices of International Governmental Organizations The practices by which international governmental organiza- tions, as instruments of the common purposes of their member nation-states, engage in the world power process are, it may easily be observed, largely confined to the formulation and application of policy for the regulation of other participants. Hence, the most convenient mode of organizing inquiry into such practices would appear to be, not in terms of the traditional categorizations of executive, legislative, judicial, and adminis- trative, but rather again in terms of policy functions. Of the seven policy functions suggested above only fivethe intel- ligence, the recommending, the prescribing, the invoking and the applying functionsappear to be performed by or in international governmental organizations in sufficient measure or with sufficient explicitness to require investigation. What type of practices we refer to by each of these five functions may perhaps be most economically illustrated by indication of cer- tain of the provisions for their performance in the United Nations Charter 1 . The intelligence function, for initial illustration, achieves the most ample provision in Article 13 which stipulates that the General Assembly "shall initiate studies" with respect to all the major purposes of the organization, in Article 34 which autho- rizes the Security Council to "investigate any dispute or situa- tion which might lead to international friction or give rise to a dispute", in Article 62 which authorizes the Economic and Social Council to "make or initiate studies and reports with 1. More detailed illustration may of course be found by careful perusal of such standard works as Goodrich and Hambro, Charter of the United Nations (2nd rev. ed. 1949) ; and Kelsen, The Law of the United Nations (1950). See also Haviland, The Political Role of the General Assembly (1951); Arechaga, Voting and the Handling of Disputes in the Security Council (1950); Lissitzyn, The International Court of Justice (1951); Schwebel, The Secretary-General of the United Nations (1952). 234 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (102) respect to international economic, social, cultural, educational, health and related matters", and in Article 99 which empowers the Secretary General "to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security". The recommending function is similarly richly illustrated in Articles 10, 11, 13, 14, and 60 which, taken together, authorize the General Assembly to make recommendations with respect to all the major purposes of the organization and in Articles 26, 36, 38, 39, and 40 which confer upon the Security Council the broadest powers of recommendation both for the general pro- motion of international peace and security and for dealing with particular threats to the peace, breaches of the peace and acts of aggression. In a document which is of itself the most comprehensive prescription of world policy in history, the prescribing function finds much less ample explicit provision. Examples may perhaps be found in Articles 108 and 109 providing for amendment of the Charter, in article 39 which grants the Security Council a broad discretion to decide what "measures" to take "to main- tain or restore international peace and security", and in Arti- cle 94 which stipulates that members undertake to comply with the decisions of the International Court of Justice. In terms of effective control, the recommendations of either the General Assembly or the Security Council may of course on occasion, despite the absence of appropriate provisions in the Charter, achieve a degree of persuasiveness, or even coerciveness, which is the substantial equivalent of authoritative prescription 1 . The invoking function is illustrated in Article 11(2) which authorizes members, non-member states, and the Security Council to bring "questions relating to the maintenance of international peace and security" before the General Assembly, in Article 35 which provides that both members and non- member states may bring "disputes" and "situations" to the attention of either the General Assembly or the Security Coun- 1. Compare Sloan, The Binding Force of a "Recommendation" of the General Assembly of the U.N., 25 B.Y.I.L. 1 (1948). (103) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 235 cil, and in Article 96 which authorizes the General Assembly, the Security Council, and other organs and specialized agencies, which have permission from the General Assembly, to request advisory opinions from the International Court of Justice. The applying function appears in most conspicuous provision in Articles 24, 33 (2), 37 (2), 39, 40, 41, and 42 which impose upon the Security Council "primary responsibility for the main- tenance of international peace and security" and outline the measures it may take in "prompt and effective action" to meet threats to the peace, breaches of the peace, and acts of aggression. Other examples may be found in Article 66 which empowers the Economic and Social Council to perform certain functions at the request of the General Assembly and, with the approval of the General Assembly, at the request of members and speciali- zed agencies, and in Article 87 which outlines the responsibilities of the General Assembly .and the Trusteeship Council with respect to trust territories. To the provisions of the Charter may be added, for further illustration, the resolutions on "Uniting for Peace" adopted by the General Assembly for the purpose of organizing itself to make "recommendations", in cases of breaches of the peace and acts of aggression and subsequent failure of the Security Council to take action, which may in their context be tantamount to "applications" 1 . It is suggested that comprehensive and detailed inquiry into the practices of international governmental organizations in terms of such functions, with appropriate consideration of the prescriptions, institutional structures and procedures by which such functions are performed, might serve both to clarify and emphasize the important role that such organizations presently play in the formulation and application of world prescriptions and, again, to stimulate inventiveness in the shaping of new and more effective prescriptions, institutional structures and procedures. E. The Effects Achieved by International Governmental Organizations The most comprehensive inquiry here would extend to the impacts of international governmental organizations upon all 1. For text and discussion see Report of the Collective Measures Committee, General Assembly, Off. Ree. 7th Sess. Supplement No. 17 (A/2215) (1952). 236 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (104) other categories of participant in the world power process, including not only nation-states but also transnational political parties, transnational pressure groups, transnational private associations, and the individual human being. With respect to most of these organized group participants other than the nation-state, however, the impacts of international governmental organizations are either merely at their inception or have been little explored. For illustration of the type of relevant inquiry we may refer briefly to the impacts achieved upon nation-states. The general question here posed is over what types of value processes and in what degree have international governmental organizations obtained formal authority and effective control, and over what types of value processes and in what degree have nation-states retained formal authority and effective control. The world prescriptions about this division of power are cast in terms, on the one hand, of "international concern", and on the other, of "sovereignty", "domestic jurisdiction", and "independence". None of these terms are, however, possessed of any intrinsic or absolute meaning or are self-defining. The prohibition in Arti- cle 2(7) against United Nations intervention in "matters which are essentially within the domestic jurisdiction of any state" was deliberately left vague to permit future evolution. Particular decisions with respect to whether matters are of "international concern" or within the reserved domain of nation-states merely reflect, with varying degrees of rationality, the consciousness of the specific decision-makers of varying degrees of interdepen- dence in fact across nation-state boundaries and their appraisal of the potentialities and risks of international cooperation 1 . That the scope of what may be regarded as of "international concern" is expanding is indicated by many developments, such as in the human rights program, the proposals for an inter- national criminal court, the proposals for the control of atomic energy, and the provisions in many post-war constitutions 1. This theme is developed in McDougal and Leighton, The Rights of Man in the World Community: Constitutional Illusions versus Rational Action 59 Yale L.J. 60, 77-82 (1949). (105) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 237 admitting limitations of "sovereignty" in favor of international organizations. To the necessary survey of past decisions and projection of future trends, policy-oriented inquiry would add recommendation with respect to a vast range of urgent contem- porary problems. With respect to the impacts of international governmental organizations upon the individual human being, we may note the Universal Declaration of Human Rights, the Genocide Convention, the Nuremberg Verdict, and the increasing access being offered and proposed for individuals to the arenas of inter- national organizations. II. TRANSNATIONAL POLITICAL PARTIES AS PARTICIPANTS IN THE WORLD POWER PROCESS A. The Identification of the Participant For purposes of this analysis, we identify political parties as organized groups which present comprehensive programs of policy and put forward candidates at elections 1 . Such groups may be distinguished from "pressure groups" both by the comprehensiveness of the demands they make for values and by the degree of participation and support they seek from other groups and individuals. Ordinarily the expectations of political party elites include competition from other political parties, but for purposes of analysis, the political party as such may be distinguished from the nation-state over which the elite of a single party may exercise both formal and effective control. Our present concern extends to all political parties, whether nationally or internationally organized, and whether legally recognized or outlawed within particular nation-states, which in fact seek or achieve effects across nation-state boundaries. It needs little emphasis that the political party today stands in the foremost ranks of effective participants in the world power process 2 . As has been illustrated more than once in 1. The writer is indebted to J. P. Jefferies, Esquire, Graduate Fellow in the Yale Law School, for suggestions with respect to both transnational political parties and transnational pressure groups. 2. The Judgment of the International Military Tribunal, Nuremberg, October 1, 1946, reprinted in Sohn, Cases and' Materials on World Law 238 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (106) recent decades, the political party may serve as a means not only for achieving formal and effective control over single nation-states but also for furthering such control over combina- tions of nation-states and for influencing in varying measure international governmental organizations, transnational pres- sure groups and private associations, and even the entire peoples of the world community. Modern techniques of mass communi- cation and transportation have made it possible for political parties to effect a high degree of organization, to centralize their command, to coordinate their national and international forces and to participate with striking effectiveness in power processes, both in and out of government and within and beyond the boundaries of any particular nation-state. When it is recalled further, that nation-statesboth democratic and totalitarian are still constantly increasing the degree of their control over all the value processes of their people, the problem of what political parties are competing, and how, for control of a nation state's government may be seen to have importance not only to those primarily affected within the particular nation-state but also to the entire, interrelated, interdependent world community, which may suffer from the convulsions and repercussions in any of its integral units. Inquiry might appropriately begin with factual survey of the political parties whose operations and effects have transcended the boundaries of single nation-states. Some of the relevant questions are: What parties? Organized by whom, when, and in what context? What have been the trends in expansion and dissolution, in uniting and splintering, and so on? To the extent they can be identified what have been the causal factors behind survival or disappearance, success or failure? B. The Arenas of Interaction of Transnational Political Parties The arenas in which transnational political parties interact (1950) 983, contains relevant documentation. See further Selznick, The Organizational Weapon : A Study of Bolshevik Strategy and Tactics (1952); Possony, A Century of Conflict : Communist Techniques of World Revolution (1953) ; Key, Politics, Parties and Pressure Groups (3rd ed. 1952). (107) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 239 in the world power process may, as with respect to other partici- pants, be conveniently divided into internal and external. With respect to internal arenas, the most general question is : who gets admitted to what decision-making processes within the party. This general inquiry raises subordinate questions with respect to both membership and the structures of formal authority and effective control within the party. The membership questions may be most briefly posed in terms of who gets admitted or recruited (what persons, from what value and institutional positions, of what character type, with what class, professional, or religious affiliations, and so on), by what methods (through cells or from pressure groups, by what persuasion or coercion), subject to what conditions and obligations (subordinating self to decisions, belonging to related pressure groups, supporting policies of foreign nation-state, etc.), and with what training (general indoctrination or highly spe- cialized training for leadership, parliamentary tactics, propa- ganda, infiltration, sabotage, military activity, etc.). Compar- able inquiries might be made, further, about participations, less than membership, extended to or achieved by individuals from other political parties or factions, from pressure groups, and from private associations. The important questions about the structure of formal autho- rity within the party include inquiry about its territorial organi- zation (whether organized on a national or international, regio- nal or global basis), about its functional organization (how it is departmentalized with respect to propaganda, agitation, foreign affairs, labor, etc.), and about the degree of centralization of authority (how monolithic or democratic ; what authority is given to what decision-makers at what levels in the organization with respect to what values, and in relation to what persons; in what degree are national parties and individual members subordinated to international control). The effective control inquiry about internal structures and processes is the familiar one of who actually makes the deci- sionsthe "ward bosses" or the apparent national or inter- national leaders; someone located in the party structure or 240 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (108) someone from outside, in government or a pressure group or a private association. With respect to external arenas, the most important question is: to what decision-making processes outside the party do representatives of the party obtain admission. It is obvious that political party representatives may achieve access to the public organs of the nation-state, not only by election, but also by patronage and infiltration into executive, legislative, judicial and administrative institutions at all levels of government. Though international governmental organizations may make no pro- vision for access by political parties as such, it is equally obvious that representatives of such parties do in fact obtain access in the role of representatives of nation-states. To all this may be added not only infiltrations into pressure groups and private associations but also the specific establishment of such groups and associations for the purpose of obtaining access to the arenas of national and international governmental organization. C. The Bases of Power of Transnational Political Parties The values at the disposal of representatives of political parties as bases of power in their interactions with other partici- pants may, again, include in varying measure all major values. We may illustrate value by value: 1. Power. Political party representatives may build influence upon both formal and effective power. In terms of formal power, they commonly have the authorization and protection of their nation-state and may even be granted a monopoly posi- tion. In terms of effective power, they have a certain numerical strength in members, an ability to command votes, and perhaps aid from members in possession of important posts in government or in pressure groups and private associations (trade unions, industrial concerns, newspapers etc.). 2. Enlightenment. Parties may make use of investigating commissions, conferences of experts (even on propaganda tech- niques) and individual expert opinion to insure precise and effective policy formulation. All the techniques of modern mass (109) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 241 communication are available to bring their comprehensive and plausible programs to the attention of electorates. 3. Skill. Political parties have developed in the highest degree skills in the techniques of organization and they may train their members in the skills necessary for propaganda, for infiltration into public and private arenas of power, and even for espionage and sabotage. 4. Wealth. Political parties may have at their disposal operating funds whose sources may include party fees; special member assessments; contributions of affiliated groups (espe- cially "front" organizations), of private associations, and of wealthy patrons; "kickbacks" from party members placed in governmental positions; benefits from spoils systems and graft; counterfeiting; and support from foreign nation-states or related international political parties. 5. Affection. By the careful use of symbols, both verbal and non-verbal (party badges, uniforms, salutes, greetings, colors and designs of party emblems), political parties may succeed in establishing the most intense identifications and loyalties among their members. 6. Rectitude. By invocation of symbols of "universal justice" a political party may succeed in establishing a reputation for rectitude that it can exploit for power purposes. 7. Respect. By both real and apparent espousal of the inte- rests of others party representatives may achieve respect posi- tions which in turn enhance their power. 8. Well-being. It is not uncommon for parties to provide medical care, other forms of social security, and bodily protec- tion for their members. D. The Practices of Transnational Political Parties The practices of transnational political parties with which we are concerned include both those by which they formulate and apply policies internally within themselves and those by which I. 1953. 16 242 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (110) they seek effects externally with respect to other participants in the world power process. For investigating how political parties formulate and apply policies internally, an organization in terms of policy functions would seem most convenient. Thus, with respect to the intelli- gence function one might inquire what hearings are given to members, affiliated pressure groups, private associations, and non-member individuals and what planning bodies, investiga- ting committees, and expert conferences are established or held ; with respect to the recommending function, how recommenda- tions are made by executive committees, intermediate councils, and congresses, international and national, to national parties, local groups, members, and affiliated groups and how arbitra- tion procedures are established; with respect to the prescribing function, how more or less general rules or decisions are made by executive committees, intermediate councils, congresses, and party courts for party organs, national or local groups, indivi- dual party members, party-sponsored pressure groups, and other affiliated groups; and with respect to the applying function, how the various decision-makers indicated above manage sanctions to secure conforming conduct. For investigation of the strategies and tactics by which political parties engage other participants in the world arena, an organization in terms of the four-fold instruments of policy diplomatic, ideological, economic, and militarywould appear most convenient. It is all too obvious that party practices com- monly embrace all these instruments in varying combinations and in varying emphases, from subtle persuasion to complete coercion. Under the heading of diplomatic instruments, inquiry might be made into political deals with other parties, pressure groups, private associations, and even nation-states, into the infiltration tactics t hat are employed in gaining access to all these other groups, into agitational tactics, and into the boy- cotts that are sometimes imposed on other groups; under the heading of ideological instruments, into their propaganda and educational techniques; undei the heading of economic instru- ments, into their use of spoils, graft, bribery, tax-fixing, boy- (Ill) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 243 cotts of economic enterprises, and so on, and into the employ- ment of party resources for the arming of military groups ; and under the heading of military instruments, into their use of espionage and sabotage and perhaps even of open violence, through "political armies" and the aid of the military forces of foreign nation-states. E. The Effects Achieved by Transnational Political Parties The effects achieved in the world arena by transnational political parties may be described as including both certain particular impacts upon each of the other categories of partici- pant and certain aggregate impacts upon world patterns in the shaping and sharing of power. For impressionistic illustration of particular impacts upon other participants, we may note, with respect to nation-states, that, since the seizure of power by one party in one of the major centers of the globe after World War I, transnational political parties have been most effective instru- ments in transforming the structures and processes of power within nation-states in totalitarian directions, with increased emphasis upon the monopolization of power and upon methods of coercion rather than of persuasion; with respect to interna- tional governmental organizations, that transnational political parties have tended to weaken the influence of such organiza- tions by consolidating regional blocs with common ideologies and by carrying their larger struggle for power over into a struggle for control of such organizations' bureaucracies and activities; with respect to. pressure groups and private associa- tions, that such parties commonly seek, and often achieve, either their complete subordination and politicization or else their extinction; and with respect to the individual human being, that such parties demand and enforce complete Subordina- tion of personality and private interests to party interests. For indication of the aggregate impacts of such parties, we may note both their promotion and facilitation of a bipolar, rather than a multipolar, confrontation of nation-states in the world arena and their general emphasis upon monopoly, rather than com- 244 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (112) petitive power, and upon methods of coercion, rather than of persuasion. Though world prescriptions for regulating the interactions of political parties with other participants in the world process are still at a minimum, it may be observed that individual nation-states are increasingly adopting protective measures. Appropriate study of comparative constitutional law might, again, yield information of value for clarifying an international law of human dignity. Among the goals of such an international law might be the formulation of prescriptions and establishment of procedures designed to safeguard both a multiparty system and the free use of methods of persuasion 1 . I I I . TRANSNATIONAL PRESSURE GROUPS AS PARTICIPANTS IN THE WORLD POWER PROCESS A. The Identification of the Participant By pressure groups we refer to unofficial bodies or groups which are organized by private associations or private indivi- duals for controlling or influencing decision-makers with respect to particular value demands. Though such groups, like political parties, are organized for power purposes and for influencing other participants in power processes, they do not, as political parties do, present comprehensive programs of varied value demands or put forward candidates, as group representatives, at elections. They may be distinguished from other private associa- tions by their specialization upon power purposes and practices. The general expectations within pressure groups include con- tinuing competition with other groups seeking to influence decision-makers, and especially with groups presenting directly conflicting value demands. Our present concern, though focussed primarily O upon groups whose organization and activities are international, extends again to all groups which in fact seek or achieve effects across nation-state boundaries. 1. The relevance of many of the provisions in the proposed covenants on human rights is obvious. See Report of the Ninth Session of the Commis- sion on Human Rights United Nations Economic and Social Council E/2447 (June 6, 1953). (113) OTHER PATTICIPANTS IN THE WORLD POWER PROCESS 245 It has recently been estimated that transnational pressure groups have within the twentieth century increased a hundred- fold, until they today number above a thousand and embrace within their membership tens of millions of persons of all natio- nalities, races, colors, and creeds 1 . Considering the freedom that such groups enjoy from many restraints upon official action, as well as the growing unity of demands for common values about the globe and the continuous improvement in the tech- nology of communication and transportation, it is scarcely likely that these developments will cease. The potentialities of trans- national pressure groups as forerunners of governmental action in taking into account world-wide interdependences and in shaping and moulding world opinion to the necessity for new prescriptions and procedures are obviously enormous. Inquiry analogous to that suggested with regard to transna- tional political parties would begin with factual survey of the pressure groups whose operation and effects transcend the boundaries of nation-states. What are these pressure groups? When and by whom were they organized, in what context, for the obtainment of what specific value demands? What have been the trends in expansion and dissolution, in uniting, in splitting up, and in evolving into more comprehensive organiza- tions, such as political parties or international governmental organizations? What causal factors can be identified behind survival, expansion, reidentification of members with other groups, disappearance, success or failure? 1. See White, International Non-Governmental Organizations (1951); Democratic Processes : The Non-Governmental Organizations, in Eagleton and Swift (ed.), 1951 Annual Review ofUnited Nations Affairs (1952) 165;and Peace by PiecesThe Role of Non-Governmental Organizations, 264 Annals of Am. Acad, of Pol. & Soc. Sci. 87 (1949). In the last cited article, at page 88, White writes: "A large proportion of the people of the world are connected with one or more of these organiza- tions, for they include in their membership nearly all the large churches, trade unions, businessmen's associations, cooperative societies, farmers' groups and women's organizations, as well as numerous professional, scien- tific, humanitarian, and social reform organizations. They deal with almost every possible subject from theology to the Olympic games, from child welfare to astronomy, from cancer to the problems of labor, from aviation to women's rights." 246 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (114) B. The Arenas of Interaction of Transnational Pressure Groups With respect to the internal arenas of transnational pressure groups, relevant inquiries include the standard questions about membership (who gets admitted or recruited, by whose deci- sion, by what criteria and methods, subject to what condi- tions, at what levels of international, national, or local organiza- tion, and so on), about internal structures of formal authority (territorial organization, departmentalization with respect to functions, degree of centralization of authority, degree of subor- dination of national groups and individuals to international controls, and so on), and about the structures of effective con- trols (who located where in the group or in some other group government, political party, private association, or other pres- sure groupin fact makes what decisions). With respect to external arenas, it may be noted t hat trans- national pressure groups have achieved a very wide range of access, both formal and informal and at all levels of govern- mental and private activity, to other participants. On the level of international governmental organization, they have obtained consultative status with the Economic and Social Council, through Article 71 of the United Nations Charter, and upon request may submit written statements to the General Assembly and the Security Council, and petitions as well as statements to the Trusteeship Council. On the same level, they have achieved, in addition, either formal consultative status or working arrangements with most of the specialized agencies and many of the regional organizations and a measure of access to t he International Court of Justice, through Article 66 of the Court' s Charter. The possibilities and actualities of informal access to all these international governmental organizations are obvious. On the level of national government, provision is com- monly made for the formal consultative access of pressure groups to executive, legislative, judicial, and administrative institutions, and there are of course the countless interactions in informal arenas of effective control. Pressure groups may, finally, enlarge their already generous access to arenas by (115) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 247 infiltration into political parties, private associations and other pressure groups. C. The Bases of Power of Transnational Pressure Groups Like international governmental organizations, transnational pressure groups may base their power both upon values made available to them on occasion by their members and upon other values more or less at their continuous disposal. The bases of power that the members of pressuie groups may make available are as diverse as types of membership. Thus, a group composed of representatives of labor or the professions may make available, skill; of representatives of industry or banking, wealth; of representatives of churches, rectitude; of representatives of welfare groups or service organizations, well- being; of representatives of minority groups, respect; of representatives of communication or educational groups, en- lightenment; of representatives of fraternal groups, affection; and of representatives drawn from official groups, power. The bases of power at the more or less continuous disposal of different pressure groups similarly cover the whole range of values. As in the case of other participants, pressure groups may build in the first instance upon power itself, including both the formal authorization and protection of the nation-state and effective controls over individuals and groups. In the use of enlightenment they may draw upon the knowledge of a multi- national membership and employ all contemporary techniques of investigation, communication, and censorship. Skills in organi- zational technique, propaganda, the tactics of coercion, and so on, are no less available to pressure groups than to political parties. For brief indication with respect to other values, we may note that wealth may be obtained from many sources; that intense cooperation for common purpose may cement the identifications and loyalties; that symbols and practices of respect may be utilized both within and without the organiza- tion; that reputations for rectitude may be exploited; and that well-being may on occasion be the subject of both promise and fulfilment. 248 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (116) D. The Practices of Transnational Pressure Groups The practices by which pressure groups formulate and apply policies internally raise again the standard questions about how certain functionsintelligence, recommending, prescribing, and so onare performed. The relevant inquiries are who performs what functions, with respect to whom, in accordance with what prescriptions, and by what methods and procedures. It may be noted that pressure groups may establish arbitration procedures and even regular "courts" of arbitration. Though any particular pressure group may employ only certain specialized practices in external arenas, the practices by which pressure groups, taken as a whole, seek effects in such arenas range again, as with other participants, over all the four fold instruments of policydiplomatic, ideological, economic, and militaryand their employment in varying combinations and with varying emphases upon persuasion and coercion. Impressionistic mention may be made, with regard to diplo- matic instruments, of deals and agreements with other partici- pants and infiltrations into all levels and areas of governmental and private activity; with regard to ideological instruments, of propaganda activities, educational programs and lobbying activities; with regard to economic instruments, of the distri- bution of funds in appropriate places and the employment of boycotts and blacklists ; and, with regard to military instruments, of the use of outright force in the employment of gangsters, assassins and revolutionary military groups. E. The Effects Achieved by Transnational Pressure Groups Transnational pressure groups are commonly credited as important factors in moving nation-states toward a more genuine and effective internationalism. Such groups have in fact been the precursors and great supporters of particular international governmental organizations and have stimulated the international formulation and the national ratification of a tremendous amount of important new world prescriptions. Reference may be made to the influence exerted by such groups (117) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 249 upon the establishment of such international governmental organizations as the International Labor Organization, the Permanent Court of International Arbitration, the League of Nations, the Permanent Court of International Justice, the United Nations, and the Council of Europe, and to the important roles that such groups have played in the formulation and pro- motion of such international agreements, draft agreements and policy statements as the Genocide Convention, the Geneva Conventions, the Universal Declaration of Human Rights and the proposed covenants on human rights, the European Human Rights Convention, the Convention on Political Rights for Women, and so on x . It is obvious that transnational pressure groups may be both on some occasions tremendously effective instruments in pro- moting the objectives of a free, peaceful, and abundant world society, and on other occasions, when subordinated to the spe- cial interests of private associations, political parties, or nation- states, equally effective instruments in opposition to such objectives. The task of framing appropriate world prescriptions for the regulation of transnational pressure groups will require a nice balance between stimulating the greatest freedom in their establishment and operation and precluding them from access to and use of instruments of coercion. IV. TRANSNATIONAL PRIVATE ASSOCIATIONS AS PARTICIPANTS IN THE WORLD POWER PROCESS. By private associations we refer to groups which are organized primarily to seek values other than power but which may in fact, incidentally to their other purposes, seek power effects. Such groups may be distinguished from governmental groups by their unofficial character, and from political parties and pressure groups by their lack of specialization to power. They constitute in effect a sort of residual category of organized group 1. For useful general exposition of these effects, see the writings by Lyman C. White, cited note 1, p. 113. 250 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (118) participants in the world power process. With the growth of world population, the development of modern technology, and increasing recognition of world-wide interdependences, these groups have multiplied, in a vast over-flow of human activities across nation-state lines, in uncounted number in pursuit of all major values, and their future potential, where permitted, is infinite. Such groups are the forerunners of pressure groups, political parties, and international governmental organizations in preparing the way for more effective international coopera- tion and, taken in the large, their effects are probably to increase freedom and the plurahzation of power in the world social process, in opposition to the monopolistic claims of nation states and political parties, as well as of course, greatly to augment or enhance the values which peoples can create by application, in an appropriate division of labor, of modern science and techno- logy to the resources of the world. It should require no lengthy demonstration that the same systematic and standard questions we have suggested with respect to other participants in the world power process can be equally applied in investigation of the power effects sought and achieved by transnational private associations, whatever t he major value or values for which any particular association may be primarily organized. For the briefest illustration we may indicate possible broad outlines of inquiry into certain of the most important of transnational private associations, those which are organized primarily for the pursuit of wealth or, in other words, transnational business associations. Within the compass of transnational business associations, may be included, for comprehensive inquiry, not merely the combinations of enterprises known as "cartels" or "combines", but all enterprises whether "single" or "combined", and what- ever their legal forms, which in fact seek and secure transna- tional effects 1 . The more detailed identification of particular 1. Note the range of business groups regarded as relevant in Economic and Social Council, Restrictive Business Practices: Analysis of Governmental Measures Relating to Restrictive Business Practices, Official Records: 16th Sess., Supplement No. IIA (1953). The literature in this area is of course vast. For introduction, see Hexner, (119) OTHER PARTICIPANTS IN THE WORLD POWER PROCESS 251 enterprises would inquire into their charters, or other authority from nation-states, into their "constitutional" structure (whether a single enterprise or an association of enterprises, effected by what formalities or informalities in agreement or understanding), into the identity (including nationality) of the individuals who control them and the roles that such individuals play in other enterprises and world power participants, into the resources or goods or services they control or' affect, into the territorial area of their operations, into the distinctive effects they seek, and into the distinctive methods they employ. The arenas in which transnational business associations interact may, again, be described as internal and external. Internal arenas raise all the questions of membership (volun- tary or involuntary, decided by whom, how and so on) and of the internal structure of formal authority (concentration or dconcentration of decision-making, departmentalization of functions, dispute-settling systems, and so on). External arenas include all access to the institutions of international govern- mental organizations and nation-states and the countless inter- actions with political parties and pressure groups in situations of effective decision-making. The base values at the disposal of transnational business associations for power purposes may again, as with other partici- pants, include all values. Perhaps their most important base value is, as we found also in the case of international govern- mental organizations, in formal power itselfthat is, in the privileges and protections granted to such associations by nation-states, which may include the privilege of incorporation (with legal capacity, limited liability, powers to draw funds from the public, power to own interests in other enterprises, and so on), the protection of claims to wealth by "propert y" law, the special privileges embraced in patents, licenses, and trade marks, the protection accorded through tariff laws, the International Cartels (1945); Stocking and Watkins, Cartels in Action (1946) and Cartels or Competition? (1948); Edwards, Economic and Political Aspects of International Cartels, prepared for Subcommittee on War Mobiliza- tion of the Committee on Military Affairs, U.S. Senate 78th Cong., 2nd Sess., Monograph 1 ; and Brady, Business as a System of Power (1943). 252 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (120) diplomatie protection of nationals abroad, exemption from anti-monopoly laws and even positive grants of monopolistic privilege, and so on. The importance of wealth as a base of power for associations which may control resources valued in multiplied billions of dollars scarcely needs emphasis ; also, as is well-known, wealth is agglutinative, attaching to itself all other values. Mention may be made in summary form, of the extraor- dinary access which such associations have to enlightenment and skill and of their capacity, comparable to that of other partici- pants, to exploit reputations for rectitude and respect, loyalties, and promises of well-being. The practices by which transnational business associations engage other participants in the world arena may, once more, be usefully described in terms of varying combinations of the four-fold instruments of policydiplomatic, ideological, eco- nomic, and militaryand of varying emphases upon persua- sion and coercion. Consider, for casual illustration, under diplomatic instruments, their agreements and deals with govern- ments and other participants and their infiltrations into the institutions of government; under ideological instruments, their propaganda and educational techniques and their lobbying activities; under economic instruments, their employment of fines, taxes, blacklists, expulsions, and boycotts and their prac- tices with respect to price-fixing, division of markets, sales quotas, restriction of output, impairment of quality, and restric- tion of invention and technological development; and under military instruments, their use of private police and their prac- tices in withholding or obtaining critical materials, in securing foreign exchange, in gaining "know-how" from other countries, in precluding development of foreign concerns, in restricting production abroad, in ascertaining the location of foreign industrial plants, and in espionage and sabotage. Inquiry into the power effects which transnational business associations achieve in the world arena leads ultimately of course to consideration of their aggregate effects upon the flow of goods and services about the globe. Much investigation has been devoted to these problems, and effects have been summa- (121) OTHER PARTICIPANTS IN THE WORLD PO WER PROCESS 253 rized in terms of the promotion or thwarting of the security policies of particular nation-states and in terms of the raising and lowering of standards of living for the peoples of the world generally 1 . The task of formulating appropriate world prescriptions and procedures for regulating the activities of transnational business associations has been before international organizations and conferences for several decades and is again before the United Nations 2 . Most relevantly conceived, this task extends beyond the invention of appropriate prescriptions and procedures for policing monopoly and "restrictive business practices", as impor- tant as such policing may be, to the radical revision of most of the prescriptions of traditional "private" international law about transnational business enterprise 3 . V. THE INDIVIDUAL HUMAN BEING AS PARTICIPANT IN THE WORLD POWER PROCESS Our last, but not least important, participant is the indivi- dual human being, considered as a total personality, including all his demands, identifications and expectations. The group participants which we have considered above are in fact but specialized roles which the individual human being creates for himself and, as a total personality, the individual is constantly making comprehensive personal choices which may transcend any particular specialized role. No one specialized role in the group participants exhausts all his demands, identifications, and expectations, and he is constantly entering new or different group arenas, developing new claims for base values in different 1. Stocking and Watkins, Cartels or Competition? (1948) offers useful summaries and leads into the literature. See also Berge, Cartels, A Challenge to the Free World (1944); DuBois, The Devils' Chemists (1952). 2. Wilcox, A Charter for World Trade (1949); Economic and Social Council, Restrictive Business Practices, Report of the Ad Hoc Committee on Restrictive Business Practices, Official Records: 16th Sess. Supplement No. 11 (1953) and Analysis of Governmental Measures Relating to Restrictive Business Practices, Official Records: 16th Sess., Supplement No. IIA (1953). 3. An insightful survey of needed revisions is offered by Timberg, Inter- national Combines and National Sovereigns, 95 U. Pa. L. Rev. 575 (1947). See also Kronstein, The Nationality of International Enterprises, 52 Col. L. Rev. 983 (1952). 254 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (122) groups, employing different practices of persuasion and coercion in different groups, and achieving varying effects through vary- ing groups. It would, therefore, appear indispensable to make special inquiry both into how the individual makes these effec- tive power choices and into how world prescriptions are formul- ated and applied for governing such choices 1 . For making these inquiries we suggest an analysis parallel to that which we have recommended above for group participants. The arenas to which individuals obtain access, in one role or another, obviously include all the arenas of both non-govern- mental and governmental group participants. With respect to the effective control arenas of political parties, pressure groups, and private associations, systematic survey might reveal how the individual is constantly multiplying and changing his memberships for the enhancement of his comprehensive, per- sonal power. With respect to the formal authority arenas of international governmental organizations, such survey might demonstrate that the world community acts increasingly upon individuals, not merely as the representatives of different groups, but qua individuals, both admitting and subjecting them to arenas, both for protecting their interests and for imposing necessary duties upon them 2 . The degree to which nation- states afford arenas to individuals in different capacities re- quires of course again an examination of comparative constitu- tional prescriptions. The bases of power at the disposal of individuals include all the values, all the interests and protections, that they can claim and secure through any of their group memberships. Such values, though conveniently organizable under the eight major headings we have proposed, will of course vary infinitely in detail and in combination from individual to individual, from mass to elite. The practices employed by individuals include both all the 1. Compare Jessup, A Modern Law of Nations (1947). The literature of academic dispute about the role of the individual is collected in Manner, The Object Theory of the Individual in International Law, 46 Am. J.I.L. 428 (1952). 2. Lauterpacht, International Law and Human Rights (1950) Ch. 3. (123) 0 THER PARTICIPANTS IN THE WORLD PO WER PROCESS 255 group practices outlined above and all their unorganized use, through the four instruments of policy, of persuasion and coercion. The effects achieved by the individual in his power practices may be measured in terms both of the other values he is able to secure and control and of his impacts upon the power and other values of other participants in the world power process. It is a matter of common observation that in recent decades the individual has been able to achieve a greater degree of freedom from the nation-state, making it more difficult for the nation- state to control him as a base of power, by multiplying and augmenting his roles in international governmental organiza- tions, political parties, pressure groups, and private associations and, hence, enhancing the power of such groups in relation to the nation-state. The world community has long boasted prescriptions and procedures designed both to confer benefits (doctrines about the responsibility of states, humanitarian intervention, minorities treaties, private international law, public international law, incorporated as the law of the land within nation-states 1 , and so on) and to impose duties (customary doctrines with respect to the laws of war, neutrality, and piracy; agreements with respect to slave trading, counterfeiting, fisheries, arms smug- gling, and so on) upon the individual human being. It is becoming increasingly recognized, however, that the promotion of an international law of human dignity in the contemporary inter- dependent world must require both the conferring of new direct access by the individual, qua individual, to arenas of formal authority in international governmental organizations for vindi- cating and securing his interests and the imposing of new duties and sanctions directly upon individuals, unshielded by "acts of state" and superior orders, to make them responsible partici- pants in the world power process. The trend so evident in the 1. It is sometimes insisted that this is protection merely by "national" law. Briggs, The Law of Nations (2d ed. 1952) 94, 95. The policies are, however, formulated on an international level and there may be international sanc- tions, in the denial of reciprocities or in reprisals, for national failures in application. 256 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (124) human rights programs of the United Nations and the Council of Europe, in the continued refinement of the Nuremberg principles, and in various proposals for the international regula- tion of the production and use of atomic energy is perhaps but symptomatic of the kind of concern which will more and more confront both students of international law and the peoples of the world. CONCLUSION I T has been our purpose in these lectures to suggest a framework of inquiry which might both locate the problems of international law and organization in the context of world social and power processes and stimulate and facilitate employ- ment of the various modes of thought and observation indispen- sable to the policy-oriented study of any legal system. For lack of such a framework, scholars in the field have not been able, as we pointed out in our introduction, to make their maximum potential contribution to the over-riding challenge of our epoch, namely, the formulation and the implementation of an inter- national law of human dignity. The findings of many specialized branches of scholarly and scientific inquiry which have impor- tant bearing upon the problems of international authority and control are not at the present time being explicitly evaluated from the synthesizing perspectives of international law 1 . This applies both to important fields of legal study, including what is commonly called private international law and comparative constitutional law, and to the many descriptive and analytic investigations by historians and social scientists which deal with transnational political parties, pressure groups, and private associations, and with the individual. Without the guidance from international law of comprehensive theory about the interrelations of world power and social processes, many of these inquiries are still in regrettably piecemeal state. Such inquiries might, however, be stimulated to more effective contribution by the systematic asking of the distinctive questions appropriate to the study of the world decision-making process. Our principal concern" in these lectures has been, therefore, with adapting the sound core of traditional international jurisprudence to the systematic assessment of findings and guidance of appropriate 1. The most significant published effort to make use of these findings is perhaps Dr. Schwarzenberger's Power Politics (2nd. rev. ed. 1951). I. 1953. * 17 258 M. S. McDOUGALINTERN. LAW, POWER AND POLICY (126) inquiries in other contributory fields. The application of such a framework as we propose will require continuous interstimula- tion and cooperation among scholars whose primary context is international-law and specialists on other dimensions of the world processes t hat influence the degree in which the dignity of man is realized in form and fact. Advancing within the highest traditions of international law as we have known it in modern times, our opportunity is measured by the urgency of the posture of world affairs in the present epoch in history. CONTENTS INTRODUCTION : The Tasks of a Policy-Oriented Jurispru- dence (Philosophy-Science of Law) in Our Ti me 13 7-142 CHAPTER I. The Inadequacies of Contemporary Theory about International Law 143-164 I. Over-Emphasis on Technical Rules, Unrelated to Poli- cies, as Factors in Guiding and Shaping Decisions. II. Over-Emphasis on Naked Power as a Factor in Decision. III. Failure to Achieve Comprehensive Description of the Participants in the World Power Process. IV. Failure to Achieve Comprehensive Description of the Techniques of Policy Formulation and Application in the World Power Process. CHAPTER II. A Proposed Framework of Inquiry : Inter- national Law Located in the Contexts of World Social and Power Processes 165-191 I. The Context of the World Social (Community) Process. II. The Context of the World Power Process. III. The Major Characteristics of a Policy-Oriented Concep- tion of International Law. IV. The Postulated Goal Values of an International Law of Human Dignity. CHAPTER III. The Nation-State as Participant in the World Power Process 192-226 I. The Identification of Nation-States as Participants. II. The Arenas in Which Nation-States Interact. III. The Bases of Power of Nation-States. IV. The Practices of Nation-States in Shaping and Sharing Power. V. The Effects Nation-States Achieve in Control over Value Changes. CHAPTER IV. Participants in the World Power Process Other than Nation-States 227-256 I. International Governmental Organizations as Partici- pants in the World Power Process. II. Transnational Political Parties as Participants in the World Power Process. III. Transnational Pressure Groups as Participants in the World Power Process. IV. Transnational Private Associations as Participants in the World Power Process. V. The Individual Human Being as Participant in the World Power Process. CONCLUSION 257-258