Law, College of
Date of this Version
1985
Abstract
The interaction of the public legal orders of states upon each other, and upon the emerging public legal order in outer space, and in general, has long been recognized "by civilized nations." The perspectives of this civilizing process as the perspective of law are critical, because law has always been identified as the assurance of protections it affords to peoples--or to states. This is the correct meaning of "equality before the law." It is also the reason why the concern with human rights goes to the essence of the legitimacy of any legal order. Moreover, the peoples of states, as the United Nations Charter declares at the outset, are the true repositories of "sovereignty" among, within and between states.
In a true spirit of détente, disagreements among jurists like those that arise from the states from which they come, are relieved and moderated by open debate, by recourse to scientific and objective perspectives, by reasoned argument, and by the continuing and candid exchange of views. Jurists for this reason, as professional members of an internationally-oriented endeavor, extend their own efforts and analysis far beyond governments, primarily because they are not constrained in their communications with each other. It is under these conditions that the present inquiry examines the general principles of law, and seeks their constructive application in order to make public order-projecting recommendations for decision-makers.
The policy content is a critical indicia of law-projecting decisions, and shares with the authoritative element of such decisions and their controlling force, the three factors that characterize the law-oriented policy processes. Against these elements of policy, authority and control, this inquiry examines and compares the views of two distinguished jurists: Professor Grigori Tunkin of the Soviet Union and Professor Myres S. McDougal of the United States. This inquiry is preliminary in nature intended to consider the differences in perspectives of these jurists, and also intended to consider the policy implications arising from those differences.
Accordingly, the primary focus is upon clarification of policies relating to the global social processes. It is assumed that most jurists will agree that the law itself and the legal instruments of law are, like all strategies, aimed at strategic goals, and applied as strategic instruments of policy, among the major power blocs, and by smaller states and regional groupings of states as well. Because in their relations generally, these strategies determine in large measure the shaping of law, jurists are compelled to face strong tendencies, which, if unchecked under law, will degenerate into instruments of naked power. Such instruments can undermine the existing law, and deny the flourishing of law itself. Jurists engaged in justifying the use of naked power as advocates of the policies of states to control, without invoking valid and validated claims to authority, become part of a state's strategic policy apparatus.
Jurists, then, face the possibilities in the growing tolerances for naked power and its exercise that their common quest for serving global order, for accommodating and adjusting the differences of opposing social orders, and for helping to shape strategies and the global social order itself toward peace and security, will falter or fail. Such jurists will be diverted from an effective pursuit for the optimization of the value demands of peoples, projected in the civilizing and law-oriented claims for human dignity, and the quest to uncover and overcome the obstacles in achieving these goals. Like the Melians arguing before the Athenians in Thucydides' Peloponnesian War they will be tempted to acquiesce to naked power alone.
Comments
Published in Proceedings of the Twenty-Seventh Colloquium on the Law of Outer Space, International Institute of Space Law of the International Astronautical Federation, Lausanne, Switzerland, October 7–13, 1984.