Myres S. McDougal

Some basic theoretical concepts about international law: a policy-oriented framework of inquiry

ion. The overriding goals of human dignity are not subject to change, but the specific choices most compatible with overriding goals may change from particular 843 This content downloaded from 207.46.13.129 on Mon, 18 Apr 2016 09:00:49 UTC All use subject to http://about.jstor.org/terms

Human Rights and World Public Order: A Framework for Policy-Oriented Inquiry

From the Universal Declaration of Human Rights in 1948, through the adoption of the International Covenants on Human Rights in 1966, and to the Proclamation of Teheran in 1968, the human rights program under the auspices of the United Nations has represented a tremendous collective effort and symbolized the common aspirations of mankind for increasing the protection of all basic human values. This program, as greatly agitated and accelerated by the process of postwar decolonization and the rapid emergence and multiplication of newly independent states, has burgeoned far beyond the contemplation of the founding fathers of the United Nations. Yet, few tasks confronting the world community today remain more vital to its future than the defense and fulfillment of the basic values of the individual human being. Despite recurrent syndromes of national and ethnic parochialism, the vast majority of the peoples of the world continue to demand for themselves, and to acknowledge for others, certain fundamental rights to the minimnum conditions of a dignified human existence. Deprivations of human rights visited upon one individual or group are increasingly perceived to be a personal deprivation for any observer and a potential threat to all freedom. Indeed, the knowledge is now pervasive that no people can really be secure in basic rights unless all peoples are secure. Despite the rapid proliferation of international agreements, documents, and literature concerning human rights, the difficulties inherent in the program are, however, many and substantial. The successive efforts in formulating new community aspiration, though impressive in number, have failed to obtain wide acceptance as authoritative prescription. Even when the formal ratification of agreements has been achieved, the profound incongruence in the expectations of authority and control is of commonplace knowledge. Nation-states continue to engage in immense value deprivations of the individual and show little readiness to accommodate themselves to more inclusive authority. The predispositions of the effective elites in the different communities around the globe have not been sufficiently mobilized to establish and maintain the necessary processes and procedures for enforcement and, in the absence of a workable enforcement system, the authority and control made available to international governmental organizations have been most limited. From the perspective

Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights

The deprivations with which we are here concerned are those imposed upon individuals on the ground that they do not possess the “nationality” of the imposing state. By nationality we refer to the “characterizations” states make of individuals for the purpose of controlling and protecting them for the many comprehensive concerns of states. Since the larger transnational community honors states in the conferment and withdrawal of “nationality” upon many different grounds—including place of birth, blood relation, subjective identification of individuals, and various activities—these characterizations may bear little relation to the actual facts of particular community membership and, hence, to reasonable differentiations in terms of common interest in the larger community of mankind. It is our thesis that most deprivations imposed through these characterizations are made unlawful, not merely by the historic law of the responsibility of states, but also by a newly emerged general norm of nondiscrimination which seeks to forbid all generic differentiations among people in access to value shaping and sharing for reasons irrelevant to individual capabilities and contribution.

Nationality and Human Rights: The Protection of the Individual in External Arenas

* This article is excerpted from a book which the authors have in progress. The authors are indebted to their colleagues, W. Michael Reisman and Arie David, for suggestions and critical assistance in the preparation of this article. The Ralph E. Ogden Foundation has been generous in its support of the studies from which this article is drawn. Sterling Professor of Law, Yale Law School. *** Ford Foundation Professor of Law and Social Sciences, Emeritus, Yale Law School. *.** Senior Research Associate, Yale Law School.

Crisis in the Law of the Sea: Community Perspectives Versus National Egoism

THE historic function of the international law of the sea has long been recognized as that of achieving an appropriate balance between the special exclusive demands of coastal states, and other special claimants, and the general inclusive demands of all other states in the world arena.1 Historically, the record is familiar: the oceans of the world were at one time claimed for the exclusive use of a limited number of states, but concern for the more general interest of the whole community of states ultimately succeeded in freeing the larger expanses of the oceans for relatively unhampered use by all. The knowledge is equally familiar, however, that coastal states never surrendered their claim to exclusive and comprehensive authority over certain adjacent areas of the sea 3 and that,

Human Rights for Women and World Public Order: The Outlawing of Sex-Based Discrimination

As the United Nations commemorates 1975 as “International Womens Year,” in a concerted effort to “promote equality between men and women“ and to “ensure the full integration of women in the total development effort,” the concern of the larger global community for outlawing sex-based discrimination is being articulated with increasing vigor. This concern both builds upon and expresses a more general norm of nondiscrimination which seeks to ban all generic differentiations among people in access to value shaping and sharing for reasons irrelevant to individual capabilities and contribution. The particular norm against sex-based discrimination finds expression in many authoritative communications, at both international and national levels, and is rapidly being defined in a way to condemn all the great historic deprivations imposed upon women as a group.

Perspectives for an International Law of Human Dignity

glad to say I am on the side of my colleague, Wilfred Jenks. I have no diffi culty with a partial acceptance of the general thesis put forward by Profes sors McDougal and Lasswell that better criteria are needed to determine what rules truly will unify this diverse and diverted world, nor with their wish to encourage research in the ascertainment of these criteria and in the formulation, accordingly, of the rules that follow. But, while supporting aspects of these views, I cannot accept the position that the traditional materials provide as little opportunity for further creative development as Professor McDougal and his colleague seem to imply. It is better to suffer the doctrines and terminology we know than to fly to regions, if not entirely mysterious and unexplored, that may be professionally unmanageable. I am bound to say that I have the lawyers prejudice in favor of tools and criteria already established, even though I realize how vital it is to view the law from that higher ground where all the social disciplines meet to pool their common wisdom. In the end the legal theorist, the traditional doctrinalist, the seeker after values and the sociologist of the law must find a common road if they wish to make common cause for reformulation. I venture to suggest that their common road, in part, is the search for new areas of reciprocity in law where the two great camps of our passing day are united by a common func tional need, where diverse systems of order are likely to yield to a common hope for the avoidance of disorder, when disorder is costly or threatens the national interest. For even the idea of the national interest itself is chang ing under the twin drives of fear of the atom and the hope of taming nature to relieve the ancient burdens of men, a hope now more widely shared than ever before.

THE PROTECTION OF THE ENVIRONMENT AND WORLD PUBLIC ORDER

Man is both creature and moulder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man’s environment, the natural and the manmade, are essential to his well-being and to the enjoyment of basic human rights-even the right to life itself. Declaration of the United Nations Conference on the Human Environment, preamble.

LEGAL BASES FOR SECURING THE INTEGRITY OF THE EARTH‐SPACE ENVIRONMENT

Like Wordsworth’s world, the facts about man’s contemporary damageand threats of even more perilous future damage-to his environment are almost too much with us. They scream in horrifying detail, not merely from the face of nature but from every medium of communication. In urgent summary, United Nations Secretary-General U Thant finds a mounting ‘‘crisis of worldwide proportions,” with portents long apparent “in the explosive growth of human populations, in the poor integration of powerful and efficient technology with environmental requirements, in the deterioration of agricultural lands, in the unplanned extension of urban areas, in the decrease of available space and the growing danger of extinction of many forms of plant and animal life.”a When one recalls also the accelerating damage to the oceans, it is not surprising that the Secretary-General should conclude that “if current trends continue, the future of life on earth could be endangered.” Similarly, although our need for new and more precise information is enormous, our knowledge about the causes of all this damage, both actual and potential, appears to be increasing. Ecologists have come to emphasize what community planners have long known, that there is a maze of complex and intimate interdependences-an “indivisible web” of interrelationships-both among the features of the natural environment such as air, climate, topography, soil, geologic structure, minerals, water resources and access to waters, natural vegetation, and animal life and between such features and the institutions and practices by which man seeks to satisfy all his many social and psychological needs and demands, as well as basic bodily needs for nutrition, procreation, shelter, safety, movement, and so 0n.e These interdependences extend through many different interpenetrating communities, from local or minute to global or earth-space in range. It is in the violation of these interdependences-in the transgression of many different resources, technological, and utilization unities -that the root causes of damage to the environment are beginning to be revealed. There would appear, further, to be a growing consensus among the peoples of the world about the appropriate overriding goals for general community action in lessening the near-disastrous damage with which we all threaten each other. The emerging aspiration of mankind is not so much for some simple conservation of resources or environment in a pristine, untouched state of nature as for an appropriately conserving, economic, and constructive employment of resources in the greater production and wider distribution of all basic human dignity values. In many contemporary conceptions, the resources of the globe are increasingly regarded as the common patrimony of the whole of mankind; practices in the exploitation of resources are being assayed in terms of their aggregate consequences for all who are affected, and costs-benefits analyses are being extended beyond mere quantitative calculations about wealth to qualitative assessment of impacts on the shaping and sharing of other representative values, such as power, enlightenment, respect, health, skill, rectitude,

Jurisprudence for a Free Society: Studies in Law, Science and Policy

Preface. Part I: Law as Fundamental Policy: Jurisprudence in Policy-Oriented Perspective. 1. Criteria for a Theory about Law. 2. Trends in Theories about Law: Establishing and Maintaining Observational Standpoint. 3. Trends in Theories about Law: Delimitation of the Focus of Inquiry. 4. Trends in Theories about Law: The Relation of Law to its Larger Community Context. 5. Trends in Theories about Law: The Conception of Relevant Intellectual Tasks. 6. The Need for a Special Theory for Inquiry about Law: How to Make Decisions in the Common Interest. Part II: The Social Process Context. 1. The Social Process as a Whole. 2. Particular Value-Institution Processes. A. Power. B. Enlightenment. C. Wealth. D. Well-Being. E. Skill. F. Affection. G. Respect. H. Rectitude. 3. Personality: The Dynamics of Personality. 4. Political Personality. 5. Political Culture. Part III: Policy Thinking. 1. The Clarification of Values. 2. The Description of Trend. 3. The Scientific Examination of Conditions. 4. The Projection of Future Developments. 5. The Consideration of Policy Alternatives. Part IV: The Structure of Decision in a Free Society. 1. The Overriding Principles of the Constitutive Process. 2. The Prescribing Function. 3. The Intelligence Function. 4. The Promoting (Recommending) Function. 5. The Invoking Function. 6. The Applying Function. 7. The Terminating Function. 8. The Appraising Function. Appendices. Index.