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The Law of International Organizations (1945-1964)

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The Law of International Organizations (1945-1964) UNIVERSITY OF BRASILIA FACULTY OF LAW DOCTORAL STUDIES The Law of International Organizations (1945-1964) A study of the development and the autonomization of the discipline in France, the United Kingdom and the United States A thesis submitted to the University of Brasilia for the Degree of Doutor em Direito (Doctor of Laws) by GUILHERME DEL NEGRO BARROSO FREITAS March, 2020 THE LAW OF INTERNATIONAL ORGANIZATIONS (1945-1964) By Guilherme Del Negro Barroso Freitas (16/0076463) Thesis – Doutor em Direito (Doctor of Laws) – University of Brasilia Examination board: _________________________ Prof. Dr. George Rodrigo Bandeira Galindo (Advisor) _________________________ Profa. Dra. Paula Wojcikiewicz Almeida (FGV-Rio) _________________________ Prof. Dr. João Henrique Ribeiro Roriz (UFG) _________________________ Prof. Dr. Marcus Faro de Castro (UnB) _________________________ Prof. Dra. Inez Lopes Matos Carneiro de Farias (UnB) 2 Acknowledgments I would like to thank my advisor, Professor George Galindo, whose trust on me is constantly tested by my tendency to procrastinate and by my unfortunate indecisiveness, two characteristics that must certainly put his patience to the test. In spite of my shortcomings, he has always been a calm, gentle and wise guide, incentivizing me to pursue my interests, to keep my curiosity alive and to enjoy life. I also express my gratitude to all of the members of the examination board, Professors Marcus Faro, Inez Lopes, João Roriz and Paula Almeida, who have promptly answered my invitation and who have, on very short notice, examined my writing. I would like to thank my work colleagues, who have helped me during the final months of writing. Whenever I needed some time to concentrate or to put my thoughts in order, never did I hear a complaint, but always words of encouragement. I would also like to thank Barbara for many years of genuine affection. I am very lucky to have benefited from the unwavering support of my family to pursue my doctoral studies. Gilberto, Cristina, Ricardo, Elza and Laura, thank you for your patience and love, even during the days where my fretfulness and impatience are especially difficult to tolerate. For as much as sometimes I do take everything for granted, I am deeply and sincerely indebted for your support. Last but not least, I would also like to dedicate this thesis my late grandmother Alcinia, unforgettable example of fortitude, correctness and dedication. I hope someday to be like you. 3 ABSTRACT. The thesis purports to explain the emergence of the law of international organizations as a specialized field of research in the context of the first two decades of the postwar period, ranging from 1945 to 1964. The process of emergence is divided in two different components: development and autonomization. Development stands for the substantive element of the process, meaning the multiplication of writings on topics pertaining to the discipline and an enhanced academic interest on these topics. Autonomization stands for the formal element of the process, meaning the gradual consolidation of the discipline as a specialized field, furnished with its own perspective and topics and separate from other disciplines. A comparative study of journals, curricula and textbooks in France, the United States and the United Kingdom provides the background on how different university environments and specialized communities influenced the configuration of the discipline and helps to explain the current features and biases of the law of international organizations. Unlike other international legal disciplines, the law of international organizations does not emerge out of a process of differentiation from general international law. Instead, it gains its own identity from a gradual approximation to general international law, when topics pertaining to the multidisciplinary study of international organization (or the organization of the world) are examined under a strictly legal perspective. KEYWORDS. International Law, History of International Law, International Organizations, Law of International Organizations, Postwar, United States, France, United Kingdom. RESUMO. A tese propõe explicar a emergência do direito das organizações internacionais como um campo independente de estudo durante as duas primeiras décadas do pós-guerra, entre os anos de 1945 e 1964. O processo de emergência é dividido em dois eixos: desenvolvimento e autonomização. O desenvolvimento se refere ao eixo material, pelo qual há a multiplicação de escritos sobre temas relevantes para a disciplina e o aumento de interesse nessa produção acadêmica. A autonomização se refere ao eixo formal, pelo qual a disciplina gradualmente adquire identidade própria, definindo-se as fronteiras com outras disciplinas e os temas e perspectivas relevantes para seu estudo. O estudo comparado de periódicos, currículos e manuais na França, nos Estados Unidos e no Reino Unido permite-nos identificar as influências provenientes dos diferentes ambientes universitários e círculos de especialistas, de modo a explicar as compreensões e os vieses que marcam o estudo do direito das organizações internacionais. Ao contrário de outras disciplinas de direito internacional, o direito das organizações internacionais não surge de uma ramificação do direito internacional geral. Em vez disso, ele ganha identidade ao se aproximar do direito internacional geral, a partir do momento em que estudos multidisciplinares sobre organização internacional (ou organização do mundo) passam a ser tratados sob um olhar exclusivamente jurídico. PALAVRAS-CHAVE. Direito Internacional, História do Direito Internacional, Organizações Internacionais, Direito das Organizações Internacionais, Pós-Guerra, Estados Unidos, França, Reino Unido. 4 Summary Introduction .................................................................................................................................. 8 The history of the law of international organizations .............................................................. 9 The object of the thesis and its delimitation .......................................................................... 17 The types of sources examined in the thesis and a note on methodology ............................ 21 The structure of the thesis ...................................................................................................... 27 An important denominational concern: distinguishing international organization (without an ‘s’) and international organizations (with an ‘s’) .................................................................... 30 Chapter One. “Legalizing” the field: the role of the Reparations Case in consolidating some of the basic concepts of the discipline and providing an authoritative precedent ......................... 35 1.1. The evolving practice in national courts and public international unions during the interwar years ......................................................................................................................... 36 1.1.1. The 1929 Opinion on Cape Spartel Lighthouse ........................................................ 37 1.1.2. The 1931 Profili Case ................................................................................................ 43 1.1.3. The 1935 Avenol Case .............................................................................................. 47 1.1.4. The 1946 Ranallo Case .............................................................................................. 49 1.1.5. An array of different and competing discourses among practitioners .................... 57 1.2. The Reparations Case and the discourse adopted by the International Court of Justice 58 1.2.1. A summary of the case: oral and written submissions and reasoning of the court . 60 1.2.2. The basic legal notions consolidated by the advisory opinion ................................. 73 1.3. The Reparations Case as a trigger to the development of the law of international organizations ........................................................................................................................... 75 Chapter Two. On teaching the law of international organizations: an examination of the first courses, coursebooks and textbooks in universities in the United States, the United Kingdom and France ................................................................................................................................... 82 2.1. Institutional autonomy in the United Kingdom and the United States, the first courses on the law of international organizations and the first specialized textbook ........................ 82 2.2. International law, international politics, administrative law: hybridism in French courses and coursebooks on international institutions ..................................................................... 109 2.3. On courses and textbooks: an uneven transition from international organization (without an ‘s’) to international organizations (with an ‘s’) in university teaching .............. 144 Chapter Three. A community of specialists? An examination of the main international law journals in the United States, the United Kingdom and France ............................................... 150 3.1. Who is writing: the configuration of the academic and professional journals.............. 151 3.1.1. The American Journal of International Law and the predominance of the academic element............................................................................................................................
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