Computers, Treaties and Theories

• Autore: Peter H. Rohn
• Carica: Associate professor in political science at University of Washington. 'His fields of teaching and research are: international law, international organization, international politics, foreign policy, quantitative methods, computer applications to research
• Pagine: 371-390

By written permission of ABC Clio Press of Santa Barbara, California, this article has been adapted from Chapter 3 of my Treaty Profiles, 1976. An earlier version'of the underlying ideas was presented in 1973 as a guest lecture at the University of Madrid and benefited from comments made by Professors Manuel Diez de Velasco and Mtnuel Medina Ortega, For other acknowledgements and technical specifications ' (treaty sources, data categories, computer retrievals, statistical caveats, etc.) see Treaty Profiles.

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@1. Purpose

Few quantitative studies have as yet been published in international law, and none has made a general claim to the effect that magnitudes are relevant to a comprehension of the field as a whole, To make and to substantiate that claim is the primary purpose of this article and of the book Treaty Profiles horn which the article has been excerpted,

A former Judge on the Permanent Court of International Justice and Professor at Harvard Law 'School, Manley Hudson, once said about quantification in international law (as related by Professor Julius Stone):

´ Count, by all means count, but count the things that count ª.

This study is an attempt to take that quip seriously, as it deserves, and to work it out in systematic detail. The purpose is to be achieved not by argument but by experiment. The study does not polemicize against traditional scholarship. It simply offers a new approach -to be blended with conventional approaches where appropriate and to be ignored where irrelevant.

Now in the mid-1970's it can safely be said that one of the great debates of the past decade is wet and that the legal profession has made itsPage 372 peace with the computer age. It is a cold peace, however, and a limited peace. The profession has accepted computers as efficient substitutes for clerks, typists, file cabinets, indexes, abstracts, keynotes and at most for some of the purely mechanical functions of human memory. The profession still tends to shy away from accepting any impact of computers on the human reasoning process itself. Here the profession still cherishes the illusion of a neat dichotomy between the sanctity of human reason and 'the profanity of computer technology.

It is the purpose of this article to show 1) that legal reasoning and quantitative' concepts do in fact Intertwine, 2) that the linkage is not even new but can be documented In orthodox legal writings from pre-computer days to the present, and 3) that the use of computers can go beyond file clerk functions and add new dimensions to our view of law. it should- therefore be normal and indeed necessary to treat quantitative notions as part of the phenomenology of law itself.

@2. Magnitudes in Law

Quantitative notions begin their long-range effect even before law can be created. Legislators cannot be elected without counting votes and computing the required majorities. Once elected, they cannot make laws without an analogous process of vote counting. Important legislative actions require special majorities. This Is a quantitative way of defining non-routine circumstances, e.g. overriding a presidential veto, impeaching a president or amending the constitution. It is obviously more difficult to achieve special majorities of 67% or 75% than to obtain the simple 50% plus one vote, and the increment in difficulty is a measure of how Important the matter appeared to the framers of the constitution'-whereby the, degree of Importance Itself Is again a quantitative concept.

Let us reverse the argument and imagine, hypothetically, that quantitative notions were suddenly removed from the body of law. It Is difficult to see how law could continue to operate without them. We would lose such basic concepts as ´compromiseª in the legislative history of statutes because compromise itself implies quantitative differences between negotiating positions. Other, equally fundamental concepts would disappear from the effect of law on society. Any discussion of how law distributes benefits and burdens throughout society cannot help but use quantitative notions. One law shifts benefits between coastal regions and Inland areas; another between capital and labor; a third between age groups; a fourth between private and public transportation; and any law, ultimately, makes some ´ measurableª difference in the lives of people--measurable in dollars and cents and negotiable among legislators.

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Statutory law, the result of legislation, is replete with quantitative notions', e.g. speed limits for vehicular traffic, purity standards for food and drugs, proportion of pollutants in industrial effluents, stress limits for bridges, occupancy limits for buildings, age limits for drinking and voting, minimum wages and maximum work hours, and on and on.

Adjudication, too, has quantitative aspects. The goddess of justice in ancient Rome was depicted as holding a scale to weigh the evidence, and the symbol has been adopted and endorsed by many later legal systems all ewer the world. But we need not resort to folklore for evidence of quantification. The structure of the judiciary itself reveals quantitative concepts. The importance of the court correlates with the number of judges on the bench-from the single-judge traffic court to the Bine members of the U.S. Supreme Court, with intermediate numbers for various appellate and special courts. In procedure, there are such quantitative concepts as majority or unanimity of jurors, preponderance of evidence, number of precedents and many more. As Chief Justice Marshall developed the basic idea of unconstitutionally in Marbury vs. Madison he used a quantitative distinction in a hypothetical example. It would be unconstitutional, he wrote, for a court to convict a person of treason on the testimony of one witness rather than two as required by the constitution. The substance of adjudication also shows a wide range of examples-comparative negligence, substantial performance, habitual domicile, irreparable damage-all turning on questions of degree, quantity, or relative weight in the Interplay of several factors.

Finally, the result of a court's decision may appear in yes/no form (guilty/innocent, win/lose), but the impact often depends heavily on quantitative notions. In civil cases, the amount of money awarded by a court is an obvious example; in criminal cases, the amount of the fine or the length of the prison term. Quantitative notions linger on even beyond the courthouse in the aftermath of the legal process. Prison discipline and probation rely on tests expressed in quantitative terms, and even clemency and pardon stem from an awareness of the ultimate relativity of crime and punishment,

@3. Quantification in International Law

If magnitudes are relevant to domestic law, we should expect the same also for international law, its primary sources are treaties and custom accepted as law. Evidence for custom requires that a practice be long and continuous as well as shared by an overwhelming majority of countries- both quantitative concepts. Substantive rules of customary international law, likewise, abound with quantitative notions in critical places, e.g. effective and continuous cxrcupation subsequent to discovery, the width ofPage 374 the territorial sea, compensation for expropriation, proportionality of reprisals, unreasonable delay as denial of justice, substantial territory controlled by insurgents claiming recognition and a revolutionary government's effective control of a country.

Treaties contain quantitative concepts as often as statutes. The 1969 Vienna Convention on the Law of Treaties includes a wide variety of quantitative and quasi-quantitative notions in the procedures for the making and applying of treaties, for instance: ´ two-thirds ª vote on a treaty text at an international conference (Article 9); conditions ´ similar ª to ratification (Art. 18); ´ number ª of parties in acceptance of reservations (Art. 20); ´ extent ª of application of earlier treaty (Art, 30); general rule and ´ supplementary ª means of interpretation (Art. 31 and 32); meaning which ´ best ª reconciles texts in different languages (Art. 33); ´ essential ª basis of consent (Art. 44 and 48); ´ manifest ª violation and ´ fundamental ª importance of a' rule of internal law (Art. 46); ´numberª of remaining parties falling below number necessary for entry into force (Art. 55); ´ materialª breach and ´ radicalª change in terminating a treaty (Art. 60); ´ number ª of condliatots and ´ length ª of time periods in settlement procedures (Art. 66 and Annex) and ´ extent ª of conflict with peremptory norm of general international law (Art. 71).

Quantitative concepts abound also in substantive provisions, e.g. most-favored nation clause, import and export quotas, expense sharing formulas, claims settlements, fair and reasonable avoidance of double taxation, military or civilian preponderance in use of atomic energy, definitions of dangerous goods, formulas for sharing multiple uses of international rivers and other resources, and innumerable lists of goods with quantitative limits in trade agreements and customs conventions.

International arbitration and adjudication also rely heavily on quantitative notions. Let us take some examples from one of the most often cited arbitrations, the Island of Palmas case (1928). Arbitrator Huber of the Permanent Court of Arbitration, who had just previously been President of the Permanent Court of International Justice (1925-1927) and was clearly one of the world's leading international lawyers in the inter-war period, used the following quantitative concepts in decisive parts of his award:

´ The acts of... display of Netherlands sovereignty... are not numerous, and there are considerable gaps in... continuous display ª.

´ ... manifestations of sovereignty over a small and distant island... cannot be expected to be frequent [or going] back to a very far distant period ª,

´... sovereignty...