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The United Nations and the Rule of Law Author(s): G. G. Fitzmaurice Source: Transactions of the Grotius Society, Vol. 38, Problems of Public and Private

International Law, Transactions for the Year 1952 (1952), pp. 135-150Published by: on behalf of the Cambridge University Press British Institute of International

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THE UNITED NATIONS and THE RULE OF LAW

By G. G. FITZMAURICE, C.M.G., LL.B.

Paper read before the Society at its meeting in Downing College, Cambridge, ot July 25, 1952

(Sir Eric Beckett, President of the Society, in the Chair) I

The Meaning of the Rule of Law In Chapter XVIII of Book II of his great work, Hugo Grotius,

spiritual ancestor and patron of this learned Society, quotes with approval a passage from Livy which reads as follows: "Quanquam visi sunt comisisse, ut hostium loco essent, jus tamen gentium valuit." This might be rendered: "Although they had behaved so that their treatment as enemies would have been justified, yet the law of nations prevailed." This expresses very aptly the essential spirit of my subject, and it seemed to me appropriate that I should, for this occasion, choose a topic whose interest lay more in the field of public international legal relations than in the technical study of international law itself.

This subject is "The United Nations and the Rule of Law," and it may be well to begin by defining the term "Rule of Law" for present purposes. In the international sphere it denotes essentially the subordination of the will of individual States, in their dealings and transactions inter se, to the body of rules known and applied by international tribunals under the name of international law. For the purposes of this definition it is not necessary to go into such matters as the nature, scope and content of international law, or into such philosophical questions as the real source of the binding character of that law. International law, and the fact that States are bound by it, are things that can and must be taken for granted in this discussion. On the other hand (and without em- barking on the difficult question of the justiciability of international disputes), it need not for present purposes be postulated that all international disputes are necessarily capable of settlement on purely legal grounds, or that legal elements enter into every issue, though it would probably be true to say that some legal element figures in most international disputes or issues. The concept of the Rule ef Law may now be re-stated in more specific terms as denoting the consideration and settlement of all issues that arise between

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UNITED NATIONS AND RULE OF LAW

States, or in international organisations, by reference to the rules of general international law and to treaty obligations, wherever those rules or obligations are applicable or relevant, and-perhaps even more important-the practice of considering and settling these issues by the use of appropriate legal methods and procedures specifically adapted to that end.

II The provisions of the Charter and the Organs of the United

Nations specifically concerned with Lsw In an international organisation such as the United Nations,

the enquirer would certainly expect to find that the closest relationship, both in theory and in practice, existed between the organisation and the concept of the Rule of Law. He would expect to find that the establishment and maintenance of this rule was one of the primary aims of the organisation, that it was possessed of the necessary organs and techniques for the achievement of this aim, and that it made habitual use of these organs and techniques. How far can it be said that these expectations are realised in actual fact?

Undoubtedly the Charter contains very satisfactory provisions about law, and the settlement of disputes according to law; and the United Nations as an organisation is well equipped with legal organs of one sort and another. Respect for legal obligations is expressly mentioned in the Preamble to the Charter; Article 1 lists as one of the "Purposes" of the United Nations the settlement of disputes in conformity with international law; Chapter VI, on the "Pacific Settlement of Disputes," specifies judicial settlement and recourse to the International Court of Justice as approved methods of dealing with international differences; and there is a whole Chapter of the Charter on the Court itself, creating a much closer connection between the Court and the United Nations than ever existed between the former Permanent Court and the League of Nations. This Chapter also includes a provision which would in effect enable the Security Council to take action to enforce a judgment of the Court in the event of a failure to comply with it.

Besides the Court, there are other organs or bodies of the United Nations concerned with legal matters. There is the Inter- national Law Commission, consisting of fifteen eminent jurists, set up by the General Assembly to assist it in carrying out the duty placed on it by Article 13 of the Charter to "initiate studies and make recommendations for . . . encouraging the progressive development of international law and its codification."

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There is also the Secretariat of the United Nations, which has, as one of its main sections, a Legal Department under the direction of one of the Assistant Secretaries-General. 1 This Department, although it has had to function under considerable administrative handicaps, has maintained a consistently high standard of work.

Finally there is the Sixth Committee of the Assembly. This is the main committee of the Assembly concerned with legal matters, in the same way that the other main committees are each concerned with a particular class of topic-political matters, economic matters, social matters, colonial and trusteeship, and administrative and budgetary.

III The use made by the United Nations of its legal Organs So far, enquiry shows that the Charter makes adequate provi-

sion for legal matters and for the legal treatment of issues and disputes, and that the United Nations is also well equipped with the necessary legal organs. But a study of the actual practice of the organisation, reveals an altogether less satisfactory situation. To begin with, how far does the organisation actually use the legal organs it possesess, and for what sort of purposes? Under certain provisions of the Charter, the organisation has the power to recom- mend parties to a dispute to have recourse to the International Court. How many times has this been done? This is particularly the function of the Security Council which, in the six years or so of its existence, has had perhaps twenty or thirty issues before it involving disputes or differences of opinion between States. Yet in only one of these has it recommended the parties to have recourse to the Court. This was in the Corfu case, involving the United Kingdom and Albania. Out of the eight or nine litigations between States referred to the Court since its inception in 1946 (several of them still before it), the Corfu case is thus the only one to come before the Court in consequence of a recommendation of the Council.

The Charter also enables the Security Council and the As- sembly to request Advisory Opinions from the Court on matters relating to the work of those bodies. The Security Council has, however, never once requested such an Opinion, although there has certainly been no lack of difficult legal and procedural problems

ISince this was written, the post of Legal Assistant-Secretary-General has-symptomatically-been abolished or at any rate left unfilled. The Department is now headed by an officer of lesser grade.

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arising on the Council's work. The Assembly has been more enterprising, but even so has only requested an Advisory Opinion on six occasions - an average of one per session; and actually since three of these requests were made at the same session, there have been several sessions at which none were made. When it is remembered that the former Permanent Court, in the first six years of its existence received no fewer than fourteen or fifteen requests for Advisory Opinions from the League; and when the much briefer sessions of League organs, and the far fewer number of items they handled, are borne in mind, it will be realised that the use which the United Nations has made of the Court up to date is very small indeed.

Greater use has been made of the International Law Commis- sion, but not always to good advantage. The main task of the Commission is and must be that of research into, and codification of, what might be called hard law-a task which the Commission shows every sign of carrying out well, but equally a task capable of absorbing (and which should absorb) most of its time. In practice, much of the time of the Commission has been taken up in doing special tasks referred to it by the Assembly, with the result that progress on codification has been delayed. This is the more to be regretted in that a number of the special tasks assigned to the Commission, which have taken up its time, have been of a political or semi-political or ideological character, not very important from a strictly legal point of view.

Nor has the Sixth (or Legal) Committee of the Assembly been treated much better. The other main Committees, regularly and as a matter of course, have had assigned to them those items on the Assembly's agenda that fell within their competence, but this has not been so with the Sixth Committee. Many of the items assigned to it, though legal, have been trivial or purely formal in character: on the other hand, many of the most important legal items, or items having important legal aspects, have not been assigned to it at all. The reason given for this is that these items also had important political or social aspects. However, while that might account for the item being assigned in principle to a political or social committee, it does not account for the failure to refer the legal aspects of the matter to the Sixth Committee, or to consult that Committee even where it was manitest that the eventual decision on the item must or should turn to a considerable extent on legal considerations. Alternatively, there was nothing to prevent the setting up of ad hoc committees of jurists

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to consider such aspects or matters, and advise the Assembly on them, but this has in fact never or hardly ever been done. It has been the same with drafting. The Assembly and the Security Council make practically no use of drafting committees. There is no pro- cedure or machinery by which, for instance, the hundred or more Resolutions adopted by the Assembly at each session can be passed through a central drafting or co-ordinating organ. Even requests to the Court for Advisory Opinions, which might have been thought eminently to require drafting by lawyers, have not been referred to the Sixth Committee for drafting, or even to any ad hoc legal committee. All this is in marked contrast to the practice of the former League of Nations which made full use of legal and drafting committees. The League Council, almost as of course, referred the legal aspects of matters before it to an ad hoc committee of jurists, even when it did not seek an Advisory Opinion from the Court. The League Assembly likewise made full use of its standing Legal Committee.

As a result of an initiative taken by the Government of the United Kingdom at the 1951 Session of the Assembly, these particular defects, insofar as they affect the Assembly's own work, were given active consideration, and a Special Committee was set up to consider them. Some improvements may therefore be anticipated.2 Nevertheless all these things must be regarded as symptomatic of a certain tendency in the United Nations, involving an aversion to, or distrust of, the legal outlook, and of legal methods and procedures. Is this the fault of the lawyers, or is it due to something which is perhaps outside anyone's immediate control?

IV Some examples of defective handling of legal matters in the

United Nations Before discussing the reasons for the attitude towards law and

legal matters adopted in the United Nations, it will be desirable to consider a few concrete instances of failure in the organisation to afford law its proper place, or to allow legal considerations to predominate where they clearly ought to. These instances are only some amongst a considerable number, and they do not include any of the many cases where, for political reasons, or because all those

2At the ensuing (1952) Session of the Assembly, a Resolution was adopted recommending (thcugh in somewhat tentative terms) reference to a consultation of the Sixth Comm:ttee on certain legal matters [see Cmd. 8747 of 1953], but a recommendation for the establishment of procedures to improve the drafting of Assembly resolutions was rejected.

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concerned-though for different reasons-feared the possible outcome, clearly legal questions have not been referred to the Inter- national Court for an Opinion.

(1) The first case is a familiar one, namely the 1951 proceed- ings in the Security Council over the Anglo-Persian oil dispute. On the application of the United Kingdom, the Court had made an order indicating interim measures of conservation in respect of the oil industry, which the parties ought to take, or conform to, for the mutual preservation of their existing positions and eventual rights. The Court, without prejudice to the question of its eventual jurisdiction to go into the merits of the case, expressly held that it had jurisdiction to indicate these interim measures. When Persia not only rejected the order of the Court, but acted in a manner clearly contrary to it, in particular by expelling all the remaining British technicians from Abadan, thus bringing the refinery to a final standstill, the United Kingdom Government drew the attention of the Security Council to the serious situation created by the Persian action and asked it to call on Persia to conform to the order of the Court on interim measures. The Council, however, in effect, refused to deal with the matter one way or the other. The ground given was that the Court had not yet decided that it had substantive jurisdiction in the case. This was a clear evasion, because it was irrelevant to the particular issue (and the only issue) referred to the Council, namely, compliance with the interim measures, since the Court had found that at least it had jurisdiction to indicate such measures. Nevertheless, the Council adjourned the matter until the Court should have decided on the question of substantive jurisdiction. In effect, therefore, the Council for all practical purposes refused or failed to uphold the order of the Court on interim measures, since any further delay or deferment in the application of these measures, let alone for a period of a year or so, was bound irremediably to prejudice the United Kingdom position. 3

(2) The next case is the vexed question of Chinese representation in the United Nations. Here the difficulty-or rather one of the difficulties-is not only that China as a State is not represented by the Government which is in fact its effective Govern- ment, and has been such for nearly three years-however much we

3 The fact that the Court eventually found that it had no jurisdiction to decide the merits of the case is irrelevant to this issue, since the prejudice to the United Kingdom position would already have occurred, even if the Court's finding had been different.

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may deplore its character and actions; the difficulty is also that China is actually represented in the United Nations by an entity which exercises no sort of control whatever over the doings of the Chinese State, as a State, and is not therefore able, however much it might be willing, to carry out the international obligations of that State. There is a very authoritative school of thought which main- tains that in these circumstances, it is actually wrong to continue to allow the Nationalist Chinese Government to represent China, and that there is something amounting to a legal obligation to permit China, as a State and as a member of the United Nations, to be represented by its effectiye Government. Whether that view is correct or not, the point is that the issue is eminently a legal one, or at the least possesses major legal elements. Yet when an important item involving this issue came up at the Assembly Session of 1950, it was neither assigned to the Sixth Committee, nor was that Committee even asked to advise on the legal aspects of the matter. Instead, it was referred to one of the political Committees where it was treated chiefly as a matter of policy and expediency.

(3) Another example of the attitude involved is afforded by the conduct of the elections of judges of the Court held in 1951. According to the present system, the terms of office of five of the judges expire every three years, and there are consequently trien- nial elections to five seats. Those of 1951 gave evidence of a com- plete lack of realisation on the part of rather more than a majority of the members of the United Nations that elections to the Court are quite different in kind from elections to political and technical organs such as the Security Council, the Economic and Social Council, the Trusteeship Council, etc. In the case of the latter bodies, it is the country which is elected, not the individual. The individual representative is chosen and appointed by his Govern- ment and may be changed by it at will. In the case of the Court, countries as such are neither elected to nor, strictly speaking, represented on the Court. It is the individual judge who is elected on the basis of his personal qualifications for the post. The primary aim is to secure the best Court, and not a mere geographical dis- tribution of seats. Therefore, while no doubt due regard should be paid to the representation on the Court of the main forms of civilisation and the principal legal systems of the world, as the Statute provides, it is quite wrong that the elections to the Court should be the subject of the bargaining between groups of countries, the lobbying and the log rolling that goes on over elections to political and technical organs, or that the Court elections should become mixed up with the current politics of the Assembly. This

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is in fact what occurred in 1951, although this is not the place to go into the details of it. It is sufficient to say that the general im- pression made by these events was so unfavourable as to attract the notice of the Judges themselves, with the result that one of the most experienced and respected of them, the Vice-President, Judge Guerrero, raised the subject personally at the Siena meeting of the Institute of International Law this April, as being a matter of concern to all international lawyers. The Institute appointed a Committee to investigate it, and on its recommendation drew up a voeu, which was transmitted in the name of the Institute to the Secretary-General of the United Nations. The Committee's studies are continuing.

V. Analysis of the attitude of the United Nations towards law

and legal matters These examples are evidence of an attitude to law and legal

matters in the United Nations which obviously leaves much to be desired. It would of course be easy to suggest reforms which would prevent or render unlikely such occurrences. But that is not the real problem, for so long as the present attitude persists, there would be little chance of any such reforms being adopted. To what then is this attitude due? There are several causes for it, but one notion to be avoided is that the attitude in question is due to any conscious or active dislike of law and lawyers. There may well be a certain feeling that lawyers are inclined to be too rigid and the law insufficiently flexible. It would be well to take account of this feeling; but the real fault of the lawyers-that is of the legal elements in the United Nations other than in the Secretariat-probably is that they have not, as lawyers, been single-minded enough, and have not resisted the temptation to stray into other fields. How- ever that may be, the prevailing attitude in the United Nations towards legal matters certainly need not be ascribed to any deliber- ately sinister motive. To some extent it is due to inexperience- and here it must be remembered that of the States which belong to the United Nations, perhaps nearly one-half, have either attained statehood or independence in very recent times, or else, though they have been sovereign independent States for some time, have not previously taken much active part in organised international life.

Another factor which should be mentioned, but which can for present purposes be ignored, consists of the equivocal or opportunist attitude to legal considerations induced for some Govern- ments by the existence of internal juridical or political difficulties

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which they have to meet or deal with in their territory, or on account of their constitutional systems. While this element is not without its importance as a contributory factor in the attitude of the United Nations on legal questions, it is not a determining one.

The elements which are determining, and are not the result either of inexperience or force of circumstances, are of four main kinds. One element consists of all those in the United Nations who, for one reason or another conduct their affairs on a basis of frank opportunism and expediency, and who do not therefore profess to have any regard to fixed principles, still less to legal considerations except insofar as it may serve their immediate ends to do so-or who, insofar as they do profess it, are quite prepared to throw their professions overboard should policy demand. Most of those concerned are resident behind the Iron Curtain, and their outlook is wellJ known to everyone and probably incorrigible.

The remaining three elements have this in common, that so far from taking up any consciously lawless, amoral, or opportunist attitude, they are sincerely convinced that their views and methods are the best in the interests of the international community, and best calculated to serve it. Those making up these elements might respectively be called the Conciliators, the Nationalists and the Idealists-not that they are always distinct: in fact they overlap. but they represent three distinct outlooks, each of which is, in its way, inimical to the Rule of Law.

As to the Conciliators-there are many people in the United Nations who are sincerely convinced that the only settlement worth' having is an agreed or negotiated settlement, brought about by a process of conciliation or persuasion exercised in respect of the parties, if necessary without much regard to the rights and wrongs of the matter. Since a legal settlement usually involves, in one form or another, a finding for onel party and against the other, or else a finding that one of the parties is right and the other wrong, it does not suit the conciliator. His aim is to bring the parties together, not to find out which of them is in the right.

No one of course would deny that an agreed settlement of any issue,be it a dispute between States, or a controversy in a Committee as to the correct solution of a general problem, is the best settlement of all, if it can fairly or reasonably be brought about. But there are several things that must be said to the habitual conciliator. The first is that there are many differences of opinion that cannot in fact be settled by this method: the points of view involved are too far apart. Secondly, even if a settlement by agreement, or

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apparent agreement, is possible, a satisfactory and above all a lasting settlement is seldom achieved if important underlying issues of a legal character are left unresolved. If such issues are left unsettled, it is only a question of time until the dispute breaks out again. Countries will often accept a juridical settlement that goes against them, even if they think it wrong, just because it is a juridical settlement. This is not the case with a negotiated settlement which one of the parties may feel it has been over persuaded or manoeuvred into accepting, particularly if that party thinks it was legally in the right. Thirdly, there are many cases in which it is not in fact possible to say what form a negotiated settlement could take until the legal issues have been investigated and determined, and where it is only on the basis of first ascertaining and defining the legal rights of the parties that a final settlement in fact becomes possible. It would seem therefore that conciliation is not an adequate method per se of dealing with international issues, if coupled with a neglect of the legal elements involved in those issues.

Next, there are the Nationalists. As already indicated, a sub- stantial proportion of the members of the United Nations consists of States which have only lately attained separate sovereign independent statehood, having previously been under some form of international tutelage, or not in existence as States at all, or having been part of some other international unit. Others, though they have now for many decades been independent States, yet retain memories of former colonial rule. It is not surprising that such States are sensitive on questions touching, or appearing to touch, their independence or the principle of sovereign independence. But this should not be carried (as it often is) to such a point that things like submission to the forms of law, the determination of issues by reference to legal considerations, the utilisation of legal methods of settlement-or even conformity to accepted legal rules where these involve (as most rules do) certain restraints and limitations- are represented or made to appear, as involving an infringement of national sovereignty. The nationalist point of view to-day is essentially a revolt against the domination of one State by another State. This phase will pass, and the States concerned will come to recognise that conformity to law, and the acceptance of legal processes, is not only a duty incumbent on all States by reason of their statehood and their membership of the United Nations, but also involves no infringement of national sovereignty. The Permanent Court in the case of the Wimbledon, in a dictum which has become celebrated, said that the right of entering into international en-

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gagements, so far from involving any derogation from sovereignty, was itself "an attribute of State sovereignty." In exactly the same way, it is by reason of their very sovereign statehood that States are subject to international law and the Rule of Law. If they were not independent, they would not, as such, be thus subject. The principle involved has never been better or more aptly stated than it was by the International Law Commission of the United Nations in Article 14 of its Draft Declaration on the Rights and Duties of States:-

"Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of, each State is subject to the supremacy of international law."

VI The Relationship of Law to Justice

Finally, there are the Idealists-the most interesting case of all. The idealist is the most dangerous of all the enemies of the Rule of Law, and that for a simple but paradoxical reason, namely that his aim is to achieve "justice," that is to say what he believes to be justice in relation to the particular issue confronting him. It may be at once asked what is wrong with that-is it not the aim of law to achieve justice? The answer is yes, in the ultimate and overall sense, it is certainly the aim of law to achieve the greatest general measure of justice over the whole field of the relations it has to deal with. But its immediate aim, or perhaps its method, is something rather different, namely order, system, regularity, certainty, precision; and last but not least, ascertainability. It is by achieving these things that law achieves justice in practice. On the other hand, it may well happen that in particular cases, the application of strict law works some injustice, or may fail to achieve ideal justice, or not produce the maximum of justice. It is precisely for this reason that the idealist does not care for legal processes and settle- ments. "Let us look at the facts of each particular case," he says, "and do what seems just and right in the light of those facts, and let us not bother about the application of legal rules and principles." Such an attitude is tempting in an organisation like the United Nations, where idealists and' ideological considerations play a large part-and where also a great many of the issues and problems involved present special features. Nevertheless it is profoundly mistaken, and in the long run self defeating.

In the first place, since justice is necessarily concrete, something done in, and in relation to, the facts of a particular case, how J

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does the idealist know that he is going to achieve justice by his empirical and ad hoc methods? What is his yard-stick? Are the particular ideals or views he stands for the right ones? Will their application necessarily work justice? Now the whole object of law is to eliminate this kind of question, by substituting for the subjective workings of the mind of the adjudicators a body of systematic rules and principles known and ascertainable in advance, by reference to which the issue can be determined, independently, as far as may be, of the particular idiosyncracies of the adjudicator. That is the purpose of law, and that is the public and social function which law performs.

Next, does the idealist know what even he himself understands by justice? Does anyone? There is more than one kind of justice. There is ideal justice, if that could be defined: there is also what might be called practical or rough justice. There is abstract justice, and there is justice in relation to the concrete facts of each case. There is the justice of one period or system of thought, and the justice of another. There is justice and there is mercy. Some- times they coincide, sometimes they do not. The judgment of Solomon was strictly "just," but clearly neither was, nor was it intended to be, "justice." The criminals who were responsible for Dachau, Belsen, Buchenwald and elsewhere, instead of merely being hung, ought probably to have been put to some lingering form of death, if strict justice was to be done. The advocates of justice, as opposed to law, should remember that justice is not always the pleasanter of the two in its workings,,and that law is often more truly discerning and fair. Well has justice been called blind. But it is not always blind justice that works the most equitable outcome. In the story of the Prodigal Son, the elder brother thought it very unjust that the fatted calf should be killed to celebrate the return of the prodigal-and many people would agree with him. But when he reproached his father ("Lo, these many years do I serve thee . . . and yet thou never gavest me a kid . . . "), his, father took a different view and said to him, "Son, thou art always with me, and all that I have is thine. It was meet that we should make merry and be glad for this thy brother ..."

It is therefore legitimate to require the idealist to convince us that he really does know what justice is.

The next point is that the idealist who puts justice above law in matters where legal elements are involved, will usually automa- tically fail to do justice, because in fact the parties will normally have taken up their stand, or will have come to their existing

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position, on the basis that the law exists, that it is applicable, and that it will be applied. They may not take an identical view of what the effect of the law is, but they will each have had some view, in the light of which they will have acted, and which they will regard as determining their respective rights. To say to the parties at that stage that all this is irrelevant, and the matter must be determined by the light of nature, so to speak, is itself to work injustice.

Finally, there is a constant sense in which, though justice is of the greatest importance to the individual parties to a dispute, in relation to the particular facts of the case, law, and the steady, regular, and unfailing application of it, is of still greater importance to the community as a whole, and in the end works a higher justice than can result from any piecemeal or ad hoc process. This may be very simply illustrated by going back to the quotation from Livy, cited by Grotius, with which this paper began. It said that though certain persons had behaved so that it would have been justifiable to treat them as enemies, yet the Law of Nations prevailed. The persons whom Livy and Grotius were referring to, were ambassadors who had made use of their special position of privilege in order to engage in activities against the countries to which they had been sent as envoys. According to strict justice, as it was then understood, these persons might legitimately have been put to death, but in fact they were allowed to return to their own countries. Why? Because in the long run it was, even in those days, deemed to be of greater benefit to the community as a whole that ambassadors should be inviolate, even at the risk that they might misuse their privilege, than that particular cases of misbehaviour should be punished, however deservedly. That is essentially law, and law is a discipline. It involves the long view. Regarded in this light, it can provide a truer idealism and a more fruitful and certain source of justice, than any that can be got by the use of empirical methods, however attractive the results may seem in particular cases or on particular occasions.

These remarks may fittingly be concluded with a little philo- sophy, embedded in which will be found the central thought which this paper aims to convey. It is simply this, that justice is very seldom achieved by directly aiming at it: rather is it a by-product of the application of legal rules and principles, a consequence of the general order, certainty and stability introduced into human and international relationships through the regular and systematic application of known legal rules and principles, even if these rules and principles are not always perfect and do not always achieve

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ideal results in every case. As Dr. Kerno, the Assistant-Secretary- General in charge of the Legal Department of the Secretariat of the United Nations,4 said in a recent address to the American Society of International Law:

"Legal techniques are the best means which mankind has yet devised for arriving at justice, and decisions must be taken on a basis of general principles rather than expediency." It could even be maintained that justice is essentially a more

primitive and less developed concept than law. Justice is what every tribal chief endeavours to dispense. But it is something a community only achieves as a regular process by the evolution, development and application of law, because it is law alone which can provide the abstract principles which, applied in concrete to particular cases, or categories of cases, will produce general justice. However, law itself is, for that very reason, not directly concerned with justice, which is essentially a matter of the particular. Justice, for its part, results from the correct application of legal principles in given cases, but does not itself consist of those principles, which are the province of law. Certainly the Romans would never have evolved the magnificent system that culminated in the codes and digests of Justinian, if they had been primarily concerned with justice as such. What the Romans were concerned with was system, principle, certainty, regularity, good sense, practical possi- bilities. In achieving these things, they achieved justice, so far as in a fallible world it can be achieved. The reverse side of this process (and indeed the proof of its validity) may be seen in those systems which, like the English system of Equity, began as deliber- ate and conscious attempts to do abstract justice in cases where the ordinary law was held to be harsh or defective, but yet whichl ended as bodies of rules and principles not less elaborate and systematic than the law they were supposed to supplement or supplant -ended in fact as law themselves.

The operation of law in its relation to justice has never been better illustrated than in the parable of the labourers in the vineyard to which was likened the kingdom of heaven. The lord of the vineyard engaged workers to work all day and contracted to pay them a certain sum. But later in the day he took on additional workers and contracted to pay them an identical sum. Thereupon the earlier workers grumbled that they had borne the heat and burden of the day, and they thought they should be paid more, or the others less. But the lord of the vineyard rebuked them, and

4 Dr. Kero is now (1953) reitired and this post is unoccupied.

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pointed out that they were getting their strict due according to their contract, and that they were not concerned with the arrange- mens he saw fit to make with others. The more the implications of this parable are considered, the more clearly it will be seen that the attitude taken up by the lord of the vineyard was not only right in the particular case, but also represented the view most calculated to produce justice generally, if regularly and systematically applied in human affairs.

Such then are the considerations that can be invoked in reply to all those elements in the United Nations-the Conciliators, the Nationalists and the Idealists-who believe, for however worthy a motive, that legal factors can safely be ignored, or relegated to a secondary position. Such is also the answer to those specifically legal elements in the United Nations who consider that because law has a social function to perform, the task of lawyers is to adapt or employ the law to subserve some political, social or humani- tarian end. Law has indeed a social function to perform, but not that one: and in this connection I would like to terminate by quoting some remarks which you, Mr. President, made recently when concluding a speech before the International Court of Justice. In reply to a suggestion from the other side that because the Court had a social function to perform, it ought to give a finding calculated to reduce international tension, you said, Mr. President, that the task of the Court, and its sole task, was to decide according to law, and you added this-

" . . the Court's, social function is the very function prescribed in its Statute, namely, deciding international disputes according to law. That is the purpose for which the Court was created. That is the basis of its existence as the principal judicial organ of the United Nations. That is the foundation of the confidence which the nations of the world have in this Court. Destroy that confidence, and there will vanish with it all hope and prospect for the rule of law."

As with the Court, so in the United Nations: hope and prospect for the Rule of Law in its councils depends on the lawyers connected with the United Nations being lawyers first and foremost, and not politicians, humanitarians or social reformers, however tempting those roles may be. The attitude of the United Kingdom Judge, Sir Arnold D. McNair, in the Anglo-Persian Oil Case affords a shining example of this, in the highest traditions of the law. The social function which law has to perform is precisely that of supplying the legal element so necessary in international, as in human affairs, and so indispensable to a full and satisfactory consideration and settlement of the problems that arise. But the value of the legal element depends on its being free of other elements, or it ceases to

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be legal. This can only be achieved if politics and similar matters are left to those whose primary function they are. and if the lawyer applies himself with single-minded devotion to his legal task. It is not a spectacular task, it does not attract the limelight or gain the headlines; but properly done, it is infinitely worth while and infinitely rewarding. By practising this discipline and these restraints, the lawyer may have to renounce, if he has ever pretended to it, the dominance or rule of lawyers in international affairs, but he will establish something of far greater importance to himself and to the world-the Rule of Law.



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