FOREIGN TRADE IN THE PRESENT AND A NEW INTERNATIONAL ECONOMIC ORDER
Progress and Undercurrents in Public International Law
PUPIL
Edited by Detlev Chr. Dicke
Volume 4
PUPIL PROGRESS AND UNDERCURRENTS IN PUBLIC INTERNATIONAL LAW 4
Foreign Trade in the Present and a New International Economic Order
Edited by
Detlev CHR. Dicke
and
Ernst-Ulrich Petersmann
University of Fribourg Switzerland
in cooperation with the INTERNATIONAL LAW ASSOCIATION'S COMMITTEE ON LEGAL ASPECTS OF A NEW INTERNATIONAL ECONOMIC ORDER
First published 1988 by Westview Press
Published 2018 by Routledge
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Copyright 1988 by University Press Fribourg Switzerland
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ISBN 13: 978-0-367-00353-1 (hbk)
Licet Hispanis negotiari apud illos, sine patriae tamen damno...... Nec principes illorum possunt impedire subditos suos ne exerceant commercia cum Hispanis; nec e contrario principes Hispanorum possunt commercia cum illis prohibere.... lex, quae hoc prohiberet, sine dubio non esset rationabilis.... videntur facere contra illud proverbium, Non fades alteri, quod tibi fieri non vis.
Francisco de Vitoria, De Indis III 3
The Spanish have a right to trade with those people as far as there is no mage done to their own country... The princes of the barbarians can neither forbid their subjects to trade with the Spanish, nor can, on the other hand, the princes of Spain forbid trade with those people.... a law forbidding this would be unreasonable without any doubt.... it would seem to violate the proverb, Do unto others as you would have them do unto you.
Contents
Jos Dez Clavero
Miguel Angel Diaz Mier
Kamal Hossain
Heinz Hauser
Rudolf Bosshard
Pieter VerLoren van Themaat
Wolfgang Benedek
Detlev Chr. Dicke
Abdulqawi A. Yusuf
Patrick A. Messerlin
Sokan Chang
Hasan Moinuddin
Ernst-Ulrich Petersmann
Nstor E. Stancanelli
Werner Meng
Felipe Jaramillo
Gary P. Sampson
Jorge A. Vigan
Milan Bulajic
Abdulqawi A. Yusuf
Lutz Hoffmann
Ernst-Ulrich Petersmann
The "siglo de oro", the Golden Age of Spain, was a period of economic protectionism. Nevertheless in Francisco de Vitoria's "De Indis recenter inventis et de iure belli Hispanorum in barbaros" (1539) we find the first modest defence of free-trade. Vitoria, often censured on the basis of the writings of his followers, did not justify the Spanish colonial wars in the newly discovered Americas by the aim of christianization. He only admitted a right to preach the gospel. For him the barbarians were no criminals and owned their country - hence no justification of an occupation. War was only legitimate under certain conditions which everybody could read between the lines - were never fulfilled. Even if the Spanish were justified, the barbarians had a legitimate right to defend their territory, because in their ignorance they would not know about the Spanish rights. The book ends with Horatius' "Quid-quid delirant reges, plectantur Achivi" - "Whatever crimes the kings commit in their folly, the ordinary people pay for" - the utmost of daring in the times of the Spanish inquisition.
The interesting feature in the writings of this great founder of modern Public International Law is not only his fairness towards people in a still backward phase of development - at that time America. But his support for international trade on the basis of mutual benefit and reciprocity is no less striking. Certainly Vitoria would have accepted much more protectionism than today's GATT Secretariat, but we find in his writings already the nucleus of the idea to be re-inforced in the Uruguay Round of GATT.
The acknowledgements this time must start with the heart-felt gratitude to my friend Ernst-Ulrich Petersmann, the co-editor of this volume, without whose great experience I could not have assured the high standard of our Madrid Symposium on Foreign Trade (February 15th and 16th, 1988) and its publication. He and other members of the International Law Association's (ILA) Committee on Legal Aspects of a New International Economic Order were again the back-bone on which I could rely. For this reason the reports and discussions frequently refer to the ILA's Seoul Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order, this resolution is annexed to the present volume together with a new resolution on International Trade Law adopted by our Committee at the Madrid Meeting and submitted to the general ILA Conference at Warsaw (August 1988) for approval.
At Madrid we were generously hosted by the Cmara Oficial de Comercio e Industria de Madrid in their magnificent ancient palace. Nearly all of the local organization was cared for by its SecretaryGeneral Mr. Josi Diez Clavero and Mr. Fernando Sanchez del Carapo. Additional help was granted by the Ilustre Colegio de Abogados de Madrid, the Secretary-General of which Mr. Luis Marti-Mingarro chaired the inaugural session. The other chairmen were Proff. Jos Antonio TomSs Ortiz de la Torre, representative of the Spanish ILA-Branch, and Antonio Ortiz-Arce de la Fuente, both from the Universidad Complutense. We received a lot of unseen, but inestimable help from my friends Bernardo Cremades, Lawyer at Madrid, and Walter Frunz from the Swiss Embassy.
To all of them, to the sponsors having enabled the symposium to take place and to be published and to all the participants our thanks are due.
Special thanks go to my colleague Anthony Mortimer who had already given his support through the invention of the title of the series, always helps us with the recruiting of native speakers and again finalized the cover text.
The endless tasks fulfilled at my institute can not be attributed to special persons, but for several reasons work was done in the form of some kind of jig-saw puzzle. Thus I address thanks to my collaborators in alphabetical order Mrs. Patricia Bongard-Ragonesi, Mr. Alexandre Fasel taking over the function of pivot, Mr. Kurt Jger, Mr. Arthur Mattli and Dr. Hasan Moinuddin.
Fribourg, June 1988 Detlev Dicke
Jos Diez Clavero
Ladies and Gentlemen,
As General Secretary of the Official Chamber of Commerce and Industry of Madrid, and on behalf of our President, Mr. Adrin Piera, I am very pleased to welcome you to this Chamber, which is the headquarters of all traders and industrialists in Madrid, and also of those persons like you, who deal with mercantile activities.
On this occasion, we are most honoured to host in our Chamber the International Symposium on "Foreign Trade in the Present and a New International Economic Order", a subject of utmost importance in the present business world.
