Moscow Summit Meeting and the Post Detente International Law, 6 IND

DATE DOWNLOADED: Sat Sep 25 03:27:50 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Edward McWhinney, The Moscow Summit Meeting and the Post Detente International Law, 6 IND. L. REV. 202 (1972). ALWD 6th ed. McWhinney, E. ., The moscow summit meeting and the post detente international law, 6(2) Ind. L. Rev. 202 (1972). APA 7th ed. McWhinney, E. (1972). The moscow summit meeting and the post detente international law. Indiana Law Review, 6(2), 202-219. Chicago 17th ed. Edward McWhinney, "The Moscow Summit Meeting and the Post Detente International Law," Indiana Law Review 6, no. 2 (December 1972): 202-219 McGill Guide 9th ed. Edward McWhinney, "The Moscow Summit Meeting and the Post Detente International Law" (1972) 6:2 Ind L Rev 202. AGLC 4th ed. Edward McWhinney, 'The Moscow Summit Meeting and the Post Detente International Law' (1972) 6(2) Indiana Law Review 202. MLA 8th ed. McWhinney, Edward. "The Moscow Summit Meeting and the Post Detente International Law." Indiana Law Review, vol. 6, no. 2, December 1972, p. 202-219. HeinOnline. OSCOLA 4th ed. Edward McWhinney, 'The Moscow Summit Meeting and the Post Detente International Law' (1972) 6 Ind L Rev 202 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information THE MOSCOW SUMMIT MEETING AND THE POST-DETENTE INTERNATIONAL LAW EDWARD MCWHINNEY* I. LEGITIMATION AND SANCTIFICATION OF THE CONCEPT OF "PEACEFUL COEXISTENCE" 1 The concept of "Peaceful Coexistence," the bate noire of some Western political leaders and their jurists in the early 1960's, figures prominently in the texts of the two recent great political accommodations that are now being widely heralded as marking the final ending of the Cold War, namely the Chinese-U.S. Joint Communiqu6 of February 27, 1972, and the Joint U.S.-Soviet Declaration of May 29, 1972. "Peaceful Coexistence" was ad- vanced by Soviet policy-makers and their jurists at the beginning of the 1960's as the leitmotiv of Soviet foreign policy in the then new,. Khrushchev era of political power in the Soviet Union that had emerged after the immediate, post-Stalin succession struggles. This particular Soviet campaign was, however, viewed by Western policy-makers, at first, with reserve and suspicion, perhaps in part because of the zealousness with which Soviet policy-makers, in their own politically understandable desire to demonstrate their own revolutionary continuity and faithful adherence to Marxist orthodoxy, dropped retrospective historical footnotes and established that "Peaceful Coexistence" had been originally devised by Lenin himself and that it had always been the guiding principle of Soviet conduct towards the outside World. The initial Western political reaction, therefore, was to conclude that the Khrushchev policy of "Peaceful Coexistence" was a purely verbal device for enabling the * Queen's Counsel; Professor of Law and Director of International and Comparative Legal Studies, Indiana University Indianapolis Law School; Associ6 de l'Institut de Droit International, LL.B., University of Sydney, 1949; LL.M., Yale University, 1951; J.S.D., Yale University, 1953. 1. In the ensuing discussion, the author has drawn, in various places, on the discussion in his previously published books. See E. MoWHINNEY, "PEACEFUL COEXISTENCE" AND SOVIE-I'WESTERN INTERNATIONAL LAW (1964); INTERNATIONAL LAW AND WORLD REVOLUTION (1967); CONFLIT IDEOLOGIQUE ET ORDmE PUBLIC MONDIAL (1970). Some of the arguments in the final section stem from an earlier article. See Pax Metternichea? International Law and Power in the Era of the Ddtente, in FESTSKRIFT TIL PROFESSOR ALF Ross 335, 349 (M. Blegvad, M. Sorensen, et al. eds. 1969). 19721 MOSCOW SUMMIT carrying out of traditional Cold War objectives under somewhat more sophisticated, or at least externally more reassuring, slogans than heretofore. On this view, which was generally held by Western leaders at the opening of the Khrushchev campaign in be- half of "Peaceful Coexistence," that concept itself was a Trojan Horse device for lulling the West into a false sense of security while the Soviet Union prepared, sub rosa, (to borrow one of Premier Khrushchev's colorful phrases) to "bury the West." With all the advantages of historical hindsight, these particular Western attitudes seem, now, to have been too absolute or at least overstated, having resulted in part from bad Western fact-finding in relation to basic political changes within the Soviet Union. Such Western attitudes represented a continuance, therefore, into the early 1960's and into the then new, post-Stalin era of political flux and transi- tion, of old Western attitudes and policies born of the earlier Cold War rigidities. Western policy-makers failed clearly to grasp the emerging new imperatives of Soviet policy-making, in the post- Stalin era: the Soviet Union's need for at least partial relief from the crushing burden of competitive (Soviet versus United States) armament costs, so as to allow for some diversion of Soviet produc- tion and planning energies to the satisfaction of internal economic needs and also the demands of the Soviet Union's own rising new bourgeois class; and the Soviet Union's need for at least partial political accommodation or ddtente with the West, especially in Western Europe, so as to allow for some diversion of Soviet military strength and planning to meet potential Chinese "revisionist" claims along the Soviet Union's Asian frontiers, following on the, then still secret, Russian break with China in 1959 over the Chinese demand for nuclear armaments, and on the rapidly ensuing Soviet- Chinese ideological conflict. Like most new Soviet policies, "Peaceful Coexistence" had, at the outset and in the period of its first political testing, a Janus- like quality - looking forward and looking back at the same time: forward, if, on balance, the results yielded by it should seem to vali- date it in action; backward, in case of political rebuff, to enable a speedy retreat by its Soviet sponsors to the convenient safety of conventional Marxist political orthodoxy. This ambivalence in basic Soviet governmental attitudes as to "Peaceful Coexistence" was paralleled by the political fate of various Soviet foreign policy initiatives in the early Coexistence era. As an example, the initial Soviet nuclear missile investment in Cuba, an operation that was clandestine and hostile (in Soviet-U.S. bipolar terms) in the best of the old, Cold War traditions, was followed up immediately by INDIANA LAW REVIEW [Vol. 6: 202 the Kennedy-Khrushchev ddente of October 1962, when a Soviet- U.S. highly pragmatic accommodation was achieved on a basis of mutual give-and-take and reciprocal self-interest. Again, Premier Khrushchev's New Year's Eve message (of December 31, 1963) on the security of territorial frontiers was misconstrued by Western leaders, at the time, as being designed primarily to legitmate the Soviet Union and its allies' de facto territorial acquisitions, after World War II, in Central Europe; whereas in fact, as we now know (and as the particular orientation and direction of the then current Soviet literary-scientific campaigns should have informed us) it was designed, rather, as a preventive legal measure to buttress ex- isting Soviet territorial interests in Central Asia and the Far East against mounting Chinese "irridentist" pretensions. Whatever the various political origins of "Peaceful Coexis- tence" may have been in the Kremlin political leaders' own think- ing, there is no doubt that, as a theoretical juridical concept, it was attractively and persuasively developed by its original legal spokesmen, particularly Dr. Gregory Tunkin, who was, at the time, the Principal Legal Adviser to the Soviet Foreign Ministry. On this particular Soviet scientific legal thesis, Coexistence, far from being an abnormal, and hence purely artificial, legal con- struct, no more than reflected the basic societal facts of the na- tional and international political communities. Here we have, of course, a legal truism that has been developed in depth by the members of the North American Pragmatist-Realist legal school. All law, on this view, is a process of reconciliation and accommodation of conflicting social forces, through the balancing and ultimate maximization of the competing interests presented by those particular forces. Further, it is not necessary, for the existence of an organized political community - the starting point of any legal system - that a total societal consensus should exist as to the basic values and even as to the basic procedures of that community, or that any one group or combination of groups should possess a complete monopoly of power. The mediaeval political community, from which analogies are sometimes drawn for the present-day World Community, was characterized, after all, by widespread dissent and dissonance within its territorial frontiers, with the King's writ and the Common Law often running no further than the reach of the King's armies. Yet the mediaeval political community was for all practical purposes, a viable political community in a difficult and dangerous age. The conclusion, for purposes of present-day International Law, was clear. Identity of outlook as to a priori principles - that is, as to ultimate ideological 1972] MOSCOW SUMMIT premises or goal values, and identity even as to methods and instru- ments for achieving those principles - was neither a prerequisite, nor even necessarily a desideratum, for the achievement and main- tenance of a viable system of World public order in a post-World War II era characterized by Soviet and Western political-military bipolarity and ideological debate in general.

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