Discussion

Paul De Waart*

*Corresponding author for this work

Research output: Chapter in Book / Report / Conference proceedingChapterAcademicpeer-review

Abstract

I would like to make a few comments on what has been said so far. If I remember well, I quote by heart, the former Ambassador and member of the International Law Commission and present Judge at the International Court of Justice Mohammed Bejaoui has written in his book “Towards a New International Economic Order” that it is not international law which is in crisis, but that it is the international world system which itself is presently in crisis. Having heard what has been said so far, I wonder whether there is not a confusion between the international system and international law. I would like to illustrate this. Mr. Belaunde had said this morning (see also his report ante) that the promotors of the NIEO go too far in insisting on the caducity of the old schemes of international law and the novelty which the invocation of equity brings with it. I share his opinion that equity is not against the tradition of international law. As a matter of fact, at the Fribourg Session of the ILA-working group on legal aspects of a NIEO during previous days, we succeeded in reaching a preliminary agreement on including solidarity and equity among the established principles of international law, which should be developed progressively. That means, that according to the members of this group, solidarity and equity are among the principles which already characterise the existing body of international law. I am not afraid that this approach will provoke some comments in Seoul. Anyhow, the fact that the participating lawyers from developed and developing countries were able to reach a consensus is quite remarkable and worthy of mention here. Mr. Bulajic's paper seems to reflect the opinion of a number of developing countries that the structure of the economic system is unjust and that international law counters the needs and interests of the developing countries. Thus, the distinction between international economic system and international law seems to be mixed up. I wonder what role lawyers could play in breaching the gap between the world political system and the world legal order. Mr. Smits has underlined this afternoon that the lawyer could only play a modest role. I agree with him, but probably he is too modest, because according to him, the contribution of lawyers could be to study the legal possibilities, problems and requirements of solutions to the debt crisis and the views and legal rules for a new mechanism. In my opinion, this approach overlooks in a way that international law should be, and already is, a legal framework for international negotiations. It is not so that international law allows states to negotiate with each other at random. They should take into account the principles of international law, including principles of solidarity, equity, preferential treatment, right to 108development assistance, right to development, and so forth. What I like to know is what role these principles could play in the solution of the debt crisis, and now I raise a question to Ambassador Belaunde. He stated in his paper that the Peruvian Government preferred to deal directly with creditors, opposing the mediation of the IMF. What I would like to know is whether this Peruvian approach could set an example to other developing countries in that it may induce them to proclaim also as a principle that they will allot only a fixed percentage of their hard currency export earnings to their debt. I think there is something reasonable in this, but how could this approach be brought into harmony with the IMF Articles of Agreement? Art. 4 of the IMF Articles states that there is an International monetary system and that the IMF shall ensure the effective operation of the international monetary system. How can a state bypass the IMF in trying to solve this kind of problem without encroaching on your own approach that international law is not in contradiction with equity, and that international law and equity brought together should play their role in solving the debt problems of developing countries?

Original languageEnglish
Title of host publicationForeign Debts in the Present and a New International Economic Order
EditorsDetlev Chr. Dicke
PublisherTaylor and Francis AS
Pages107-116
Number of pages10
ISBN (Electronic)9780429689772, 9780429036705
ISBN (Print)9780367006846, 9780367156718
DOIs
Publication statusPublished - Sep 2019

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