диссертация (Англо-американские международно-правовые доктрины о современном статусе Арктики), страница 6

Tunkin pointed at the tendency of the decreasing role ofdoctrine among the sources of contemporary international law, writing that,“without doubt, doctrine as a source of international law used to play a bigger rolethan it does at present”.“The opinion of authoritative publicists in international law from differentcountries now serves as one of the tools to ascertain if particular rules ofinternational law do or do not exist, and how to interpret them.”14The ICJ Statute, which is “an integral part” of the UN Charter, provides that“the teachings of the most highly qualified publicists of the various nations” areapplied by the ICJ “as subsidiary means for the determination of rules of law” (Art.38(1)(d)).It is notable that the English text of the Article uses the word “teachings”,rather than “teaching” in the singular. The same approach is reflected in theRussian wording of this article: «доктрины» (plural), instead of «доктрина»(singular).That is, it was the coordinated intention of the state-parties to the UNCharter to use this subsidiary source of international law precisely in the meaningof plurality of the doctrines (rather than a single doctrine); and the ICJ may, at itsdiscretion, in analysing specific issues of fact relevant to the interstate dispute athand and the applicable rules of international law, rely on certain doctrines as asubsidiary means to determine such rules.13Kozhevnikov F.I.

Uchebnoe posobie po mezhdunarodnomu publichnomu pravu [Textbook on Public InternationalLaw]. Issue I. Istoriya i ponyatiya mezhdunarodnogo prava [History and Notions of International Law]. M.Yuridicheskoe izd-vo NKYu SSSR. 1945. P. 16 (46 P.).14Tunkin G.I. Teoriya mezhdunarodnogo prava [Theory of International Law]. M.

Mezhdunarodnye otnosheniya.1970. P. 211. (512 P.).26In English publications on international law, the term “teachings” was alsosubstituted for the term “doctrines”. A more challenging issue is to determine who“the most highly qualified publicists” in international law are.As Professor G. Schwarzenberger noted in his popular manual InternationalLaw (1st edition published in 1947; 4th edition, in 1960), “It is apparently easier tobe fair to the dead than to the living or to those who are “extraterritorial” than tothose who are in one’s own country.”The second important consideration in this English textbook on internationallaw is that “[t]o the extent that the views of writers have been expressly adopted bystates or courts, as is the case with Grotius and Vattel, their place is assured bysuch a process of reception.”15The influence of “academic writers” on the development of international lawis also noted in a recent English textbook on international law by M.

Shaw whowrites, “Writers such as Gentili, Grotius, Pufendorf, Bynkershoek and Vattel werethe supreme authorities of the sixteenth to eighteenth centuries and determined thescope, form and content of international law.”It is understandable that the author does not mention Russian scholars, F.Martens, at the very least.M. Shaw notes that there are “still some writers who have had a formativeimpact upon the evolution of particular laws, for example Gidel on the law of thesea, and others whose general works on international law tend to be referred tovirtually as classics, for example Oppenheim and Rousseau.” Again, no Russianpublicists are mentioned.According to M.

Shaw, “books are important as a way of arranging andputting into focus the structure and form of international law and of elucidating thenature, history and practice of the rules of law. Academic writings also have auseful role to play in stimulating thought about the values and aims of internationallaw as well as pointing out the defects that exist within the system, and making15G. Schwarzenberger. A Manual of International law. Fourth edition. London.

New York. Vol. 1. 1960. P. 35. (382P.).27suggestions as to the future.“Because of the lack of supreme authorities and institutions in theinternational legal order, the responsibility is all the greater upon the publicists ofthe various nations to inject an element of coherence and order into the subject aswell as to question the direction and purposes of the rules.”“The best textbook on international law”, as S. Talmon calls it on the coverpage of M.

Shaw’s book, also reads, “Of course, the claim can be made, and oftenis, that textbook writers merely reflect and reinforce national prejudices, but it is anallegation which has been exaggerated. It should not lead us to dismiss the value ofwriters, but rather to assess correctly the writer within his particularenvironment.”16It might be true today, but it was not so during the Cold War, when onecould often come across such book titles as International Law as Interpreted andApplied by the United States, or Soviet International Law.A recent English book on the philosophy of international law describes “theclassical place of doctrine in international law.” It is noted, in particular, that “it isnow widely accepted in the scholarship that modern figures who may compete forthe ‘fatherhood’ of international law, above all Vitoria and Grotius, belong firmlywithin this medieval world.

Haggenmacher emphasises the pre-modernity ofGrotius. That is, Grotius’s work, which is mainly about the doctrine of just war, isthe culmination of a medieval scholastic tradition, which depended upon amedieval and classical Greek concept of natural law. The main feature of hisdoctrine is that Man is embedded in a universal society and in the Cosmos.”17The foregoing warrants a number of generalizations regarding the legalsubstance of the term “teachings” as used in the ICJ Statute.First of all, since the Statute text is, as regards its terms and definitions,largely based on the text of the Statute of the Permanent Court of International16Shaw M.N. International Law. Eighth Edition. Cambridge University Press.

Cambridge, UK. New York. USA.2017. P. 84. (lxxxviii + 1033 P.).17Carty A. Philosophy of International law. Second edition. Edinburgh University Press. 2017. P. 5.28Justice (hereinafter, the PCIJ), it is the English authentic text of the latter thatshould serve as a starting point for construing the current legal meaning of the term“teachings”.Secondly, at present, it would be expedient to understand the term “AngloAmerican doctrines” broadly, without confining oneself to those treatises oninternational law that have been published in the UK, the US, and Canada; today,there are no international law doctrines that could be called properly Norwegian,Dutch, Portuguese, etc.

The Norwegian, Dutch, Portuguese, etc. internationallawyers articulate their theoretical approaches in the English language. This realityallows a conclusion that the notion of “Anglo-American doctrines” has expandedin terms of substance, that it absorbs the international law researchers fluentlywriting in English from any and all NATO and EU states.Thirdly, the Anglo-American literature on international law draws adistinction between the notion of “academic (scholarly) publication” (which can bepenned even by a young researcher) and the term “doctrine” that reflects theteaching of a venerable researcher of international law, whose authority isacknowledged by the legal community, and, usually, after such a scholar haspassed away. This distinction is not that clearly observed in the Russianinternational law scholarship.Fourthly, the influence of international legal doctrines on the evolution ofinternational law, the practice of its implementation, including by internationalcourts and arbitral tribunals, is recognized both in the Russian and AngloAmerican studies of international law, even though scholars note that this influencetends to decrease along with the growing role of other sources of international lawand its codification.

These propositions are thoroughly verified below in thecontext of analysis of specific international legal doctrines on the status of theArctic.29§ 2. A preliminary overview of the Anglo-American international lawdoctrines on the status of the Arctic OceanBy the sheer number of publications on the status of the Arctic, AngloAmerican scholars in international law are far ahead of their Russian peers. That,despite the fact that neither for the UK, nor for the US or any other member stateof NATO or the European Union (hereinafter, the EU), does the Arctic hold suchvast economic, defence, and geostrategic importance as it does for Russia.However, by their quality, the publications that represent the AngloAmerican international legal doctrine on the Arctic vary greatly from thorough (indepth, comprehensive, based on an impressive selection of applicable legalsources) to rather superficial works, at times containing inaccuracies and evenmistakes.

Surprisingly, the latter is true not only for the rushed publications by theyoung researchers of the status of the Arctic.For illustration, let us look at the very extensive study of the internationallaw by Professor I. Brownlie; new editions of this comprehensive treatise arepublished regularly since 1998, and scholars view it as one of the mostauthoritative studies in the English-language international legal literature; thelatest, 8th edition of I. Brownlie’s work was released in 2012, edited by Professor J.Crawford,18 former Director of the Lauterpacht Centre for International Law at theUniversity of Cambridge, and, at present, a Judge with the International Court ofJustice (ICJ). This fundamental international law book contains a separate sectionentitled “The Arctic”.Let us now analyse the first sentence of the section together with thefootnotes:“No overarching regime equivalent to the Antarctic Treaty system operatesin the Arctic, which is instead governed largely by the law of the sea,19 as well as18J.