Universalising International Law (Developments in International Law, V. 48)

UNIVERSALISING INTERNATIONAL LAW

Developments in International Law VOLUME 48

C.G. WEERAMANTRY

Universalising International Law

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. Catalogue record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90-04-13838-2 © 2004 Koninklijke Brill NV, Leiden, The Netherlands http://www.brill.nl Brill Academic Publishers incorporates the imprint Martinus Nijhoff Publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming , recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

UNIVERSALISING INTERNATIONAL LAW

UNIVERSALISING INTERNATIONAL LAW

C.G. WEERAMANTRY

 C. G. Weeramantry 2003 All rights reserved. No part of the text of the original edition of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the Publisher.

ISBN

Printed by

Dedication To the young scholars of international law in the hope that they will universalise their discipline and thereby bring it closer to the hearts and minds of the people of the entire world community, without whose understanding and support international law will achieve only a fraction of its potential.

Works by the Same Author •

Armageddon or Brave New World? Reflections on the Hostilities in Iraq, Sarvodaya, 2003

•

The World Court, Its Conception, Constitution and Contribution, Sarvodaya, 2002

•

Justice Without Frontiers,Vol. II: Protection of Human Rights in the Age of Technology, Kluwer Law International, 1999

•

The Lord’s Prayer: Bridge to a Better World, Liguori Publications, 1998 (also published in Spanish and German)

•

Justice Without Frontiers, Vol.I: Furthering Human Rights, Kluwer Law International, 1997

•

Impact of Technology on Human Rights: Global Case Studies, United Nations University Press, 1993 – work edited for and commissioned by the United Nations Human Rights Commission and the United Nations University

•

Nauru: Environmental Damage under International Trusteeship, Oxford University Press, 1992

•

Human Rights and Scientific and Technological Development, United Nations University Press, 1990 – work edited for and commissioned by the United Nations Human Rights Commission and the United Nations University to commemorate the 40th Anniversary of the Universal Declaration of Human Rights

•

Islamic Jurisprudence: Some International Perspectives, Macmillan’s, London and St. Martin’s Press, New York, 1988 (Reprinted by Sarvodaya Vishva Lekha)

•

Nuclear Weapons and Scientific Responsibility, Longwood Academic, New Hampshire, 1987 (also in Japanese, published by Chuo University Press, Tokyo)

•

Law: The Threatened Peripheries, Lake House, Colombo, 1984

•

The Slumbering Sentinels: Law and Human Rights in the Wake of Technology, Butterworths, Melbourne, 1980

•

Apartheid: The Closing Phases? Lantana, Melbourne, 1980

•

Human Rights in Japan, Lantana, Melbourne, 1979

•

Equality and Freedom: Some Third World Perspectives, Hansa Publishers, Colombo 1976

•

The Law in Crisis: Bridges of Understanding, Capemoss, London, 1975

•

The Law of Contracts, (2 Volumes), H.W.Cave & Co., Colombo, 1965

Table of Contents Preface Part A: General Perspectives Chapter 1 : Cultural and Ideological Pluralism in Public International Law Chapter 2 : Making International Law Matter Chapter 3 : International Lawyers: A Vision for the New Century Chapter 4 : Emerging Dimensions of Sovereignty in International Law Chapter 5 : International Law and the Global Marketplace Chapter 6 : Private International Law and Public International Law: The Increasing Linkage Chapter 7 : Widening the Conceptual Framework

xi

1 32 75 103 151 169 185

Part B: Sources of International Law Chapter 8 : Custom: The Growing Role of Customary International Law Chapter 9 : General Principles of Law: Equity in a Global Context Chapter 10 : Treaties: Humanitarian Treaties and State Succession

310

Part C: International Law and Universal Peace Chapter 11 : Philosophical Perspectives on Peace Chapter 12 : Religious Perspectives on Peace Chapter 13 : Practical Steps towards Education for Peace Chapter 14 : International Law as an Instrument of Peace

329 368 390 408

Part D: Specific Fields Chapter 15 : Sustainable Development Law Chapter 16 : Environmental Law Chapter 17 : Nuclear Weapons Law a) Illegality of Use b) Illegality of Manufacture Index

219 240

431 448 464

523

Preface Universalising international law is one of the most urgent tasks awaiting those who wish to advance the discipline. Though all the world acknowledges its universal nature, it has long been confined in a largely monocultural mould. Indeed a tendency is sometimes discernible for international law to be compartmentalised and to function within a close cabinet of technical rules little known to those outside the ranks of specialists. The public at all levels tends to lose interest, viewing it as an ineffective discipline and as one to be left to the lawyers and the diplomats. It seems essential, therefore, that its value, effectiveness and relevance must be brought home to the general public. It urgently needs to be universalised in regard to its constituency, for it needs the active support of a far wider group than its immediate votaries. It requires a vision that takes in the vast panorama of global cultures, as a source of enrichment of its principal concepts and underlying philosophies. It needs to take in the wisdom of the past and attune itself to the problems of the future. It needs also to cross the barriers that separate academic disciplines, for the insights of sociology, history, philosophy, psychology, linguistics, economics and the physical sciences have much to offer it. The task of universalisation is not easily discharged for it has many facets and has been much neglected. Efforts in this direction are slowly gathering momentum and the present volume is designed as a modest contribution to this end. Another form of isolationism that affects international law is that domestic and international lawyers tend too often to work in isolation from each other. There needs to be more cross-fertilisation between these two important areas of legal activity. It is hoped that domestic lawyers, writing in such fields as equity, the judicial function, the law relating to obligations, environmental law, and other areas which have their counterparts in international law, will continue to interest themselves in the literature of international law. This will have the dual advantage of offering domestic lawyers new insights for the development of their legal systems, and of giving international lawyers the benefit of the practical perspectives gathered from applying the law to the myriad factual situations encountered in day-to-day litigation. If international law is to be made more meaningful and if the world is to live under the international rule of law, rather than under economic, military, ideological or other forms of domination, this is a task demanding attention. If international law can thus be universalised in space and time and across the disciplines, its message will spread through all ranks and sections of the global xi

community, thus greatly enhancing its power. The new world order of the future depends heavily on increasing the reach and acceptability of international law. Universalism will help also to anchor international law to the philosophical and ethical principles from which it sprang, and will free it from the incrustations of legalism and formalism which sometimes grow around it. This volume looks initially at some general aspects of universalisation (Part A). Thereafter it adopts a universalist approach to some of the sources of international law (Part B). Part C deals with peace, the bedrock of international law, which likewise requires a universalist approach. Indeed some of the essays in this part travel further afield than is traditional in international law studies, but, in view of the prime importance and urgency of the topic, such a many-faceted approach is essential. Part D examines the development of some particularly important areas of international law. This volume consists mainly of a collection of lectures delivered over the years to various audiences on themes relevant to the topic of universalism. Extracts from some judicial opinions are also included in this volume, as illustrations of the universalist approach which can be adopted judicially as well, to the problems confronting international law. It is hoped that these studies will highlight the imperative need that now exists for extending the conceptual framework of international law, thereby buttressing its moral authority and widening its appeal at a time when universal acceptance of international law is one of the most pressing demands of the international system. I wish to thank my wife for her patience and understanding during the arduous process of assembling this book, my secretary Sujatha Bulathsinhala and Anuruddha Perera, Sumangalie Atulugama, Sherine Daberera, Yuresha Fernando, Anoushka Goonewardena, Himalee Kularatne, Sonali Silva and Dilushi Wickremasinghe of the Weeramantry International Centre for Peace Education and Research for the help they rendered in numerous ways in finalising this manuscript for publication.

xii

PART A

GENERAL PERSPECTIVES

Introduction to Part A The universalisation of international law requires attention at several levels. Within the discipline itself perspectives need to be widened, so as to take in the full range of global traditions as sources of inspiration. It is against this composite network of world-wide experience and wisdom that its concepts need to be reexamined with regard to their adequacy for the vastly changed milieu in which they will need to function. This is essential to win for it the willing acceptance and allegiance of the vastly extended community of nations which now exists, as compared to the era in which the discipline first emerged. As in the field of concepts, so also in the field of procedure, world-wide tradition and experience need to be called in aid. International law needs also to draw more freely upon the knowledge and insights of all disciplines, some of which, such as psychology, sociology, linguistics and comparative religion, despite their deep relevance to the understanding of international law, have tended to be neglected. Within the ranks of international lawyers new visions need to be stimulated to meet the challenges of the new century, many of which are without precedent in the millennia of human history. Likewise the profession of international lawyers needs to overcome its traditional exclusiveness and develop more interaction both with other members of the legal profession and the general public. Within the ranks of its constituency, the global public whose service is its primary objective, there needs to be an increase of awareness of its efficacy and its potential for practical service not only at high governmental levels but also at the level of service to the individual citizen. Finally, international law needs to take note of the major institutional factors that shape the course of global affairs, commencing with the dominant concept of sovereignty and ranging all the way to the forces of globalism which, though lacking an official status, nevertheless wield as much influence as the sovereign state has wielded in the past. The discussions in this Part deal with some of these considerations.

Chapter 1

Cultural and Ideological Pluralism in Public International Law*

I.

Introduction

An important aspect of universalisation in the field of international law is the quest for universally acceptable principles and standards, which can provide a solid foundation for the discipline of international law. This is particularly important because in international law more than practically any other department of law one may choose to name, universality of appeal, acceptance and allegiance are prerequisites to the effectiveness of the system. It needs to transcend all the barriers imposed by race, nationality, culture, religion, wealth, power, privilege and position, for it has one world for its province and all humanity for its clientele. In the sphere of knowledge likewise it must cross the boundaries which have traditionally hemmed in the different departments of the human intellect. Considerations of law, history, economics, sociology, linguistics, philosophy, ethics, religion, tradition and morality overlap, intertwine and interact with insights derived from psychology, physics, chemistry, medical science, biology, information technology, climatology, geology and environmental science with a closeness and immediacy rarely seen in other disciplines. This kaleidoscope of interacting factors has tended in the past to receive less than its due share of attention and it can only be neglected in the future at the cost of the integrity and comprehensiveness of the discipline of international law. The task is difficult but by its very nature international law cannot afford to be compartmentalised. Its interface areas with every field of human activity require these many insights to inspire and fertilise it in its mission as the principal discipline *

Based on the author’s essay in Liber Amicorum Judge Shigeru Oda, ed. Ando et al 2002, Vol.2 p.1491.

1

2

Universalising International Law

entrusted with the worldwide preservation of law and order. If a strong multicultural and interdisciplinary effort needs to be mounted for this purpose, there must be a concerted effort to provide it so long as global peace and harmony remain the lodestar of the discipline. Though on a lesser scale, a similar commingling of diverse influences provided the backdrop to the emergence of the Universal Declaration of Human Rights, which, despite all predictions to the contrary, was able to evolve out of a medley of diverse traditions and attitudes and to prove that the global community could agree on certain fundamentals as commanding acceptance across all barriers of creed and colour and historical tradition. So it is with international law, except that the task here is even more complex because we are not merely searching for a set of irreducible minimum standards but seeking to maximize its potential as an active means of fulfilling global aspirations for a peaceful world order. International law has always been aspirational in the special sense that it has sought to transcend even such powerful considerations as national self-interest and to reach beyond them to the welfare of humanity as a whole and the higher ethical codes, which command universal acceptance. Operating as it necessarily must within the tangled thickets of competing national interests and the harsh world of realpolitik, it has the difficult task of steering a moral course through this accumulated undergrowth of centuries. It has a special mission in that it bears the responsibility not merely for global law and order but for the very survival of humanity. If it fails we may well be reduced to contemplating the fading embers of dying civilizations rather than the promise of a brand new world of unsurpassed achievement. Such is the special mission and responsibility of this discipline, which must thus remain anchored at all time to universally accepted ethical principles. It cannot afford to descend to a narrow monocultural approach, which may deprive it of that universality of support, which is essential to its work and authority. Just as the Universal Declaration confounded social scientists who argued with the deepest sense of conviction that it would be impossible to achieve a universally agreed document, so also the widespread cultural differences of the world will not prevent a progressive widening of the area of universal agreement on which international law is based. True, that document did not adequately reflect certain values on which universal agreement was possible – such as human duties, and economic, cultural and social rights. But the world has since moved far towards the acceptance of these concepts. The Universal Declaration was only a beginning. So also, what we have thus far achieved in international law must be regarded as but the beginning of a long road towards the shining goal of international peace and harmony. When international law commenced its modern career in the 16th and 17th centuries, it was cast largely in a Graeco-Judaeo-Christian mould. Since then it has moved towards greater universalization. Many more universal perspectives drawn

Cultural and Ideological Pluralism in Public International Law

3

from all the world’s cultural traditions can and must be fed into it as it develops to suit the needs of the 21st century. Its success in that century will depend heavily on the extent to which it can be further universalized by harnessing the strengths available in the world’s rich inheritance of cultural and ideological traditions. International law cannot afford to remain set in a narrowly monocultural mould and hope in that form to address problems which are truly global, multicultural and multi-traditional, which cry out for a universal solution. Another factor that emphasizes the importance of universalism in international law is its lack of enforcement mechanisms. Lacking sheriff or constable or soldier to enforce it, international law needs to rely upon its own moral strength and universality for it to command acceptance on a worldwide basis and to marshal the strength to prevail over the physical might of states. It must therefore be a set of concepts as universally supported and as deeply rooted in worldwide tradition as research can reveal. Shut out such universality and one cuts off the tap roots from which it derives its nourishment. Little wonder then that it will be weak in the allegiance it commands. There is an imperative need therefore for widening the intercultural base on which the structure of international law stands. International law at the time of its evolution in the seventeenth century served the interests of a small group of European states. Right through to the end of the nineteenth century it served the interests of that restricted group. Since the system it now administers is universal, the forces of philosophy and idealism out of which it was born must now be considered in their universalistic context rather than in the monocultural context prevailing in the seventeenth century. The task lies upon scholars of garnering together in a common storehouse the wisdom to be drawn from the entire human experience. This is a factor considerably reinforcing the need to search globally for the traditions embodying the wisdom of the whole of humanity rather than to confine this search within the limits of any one cultural tradition however rich. “One of the great tasks, perhaps the greatest task, weighing on modern international lawyers is to craft a universal law and legal process capable of ordering relations among diverse people with differing religions, histories, cultures, law and languages.”1 When Article 9 of the Statute of the International Court of Justice required that the body of Judges as a whole should assure the representation of “the main forms of civilization and the principal legal systems of the world” there was a clear expectation that the insights from all these systems would be fed into the developing body of international law. That has not happened thus far in any significant measure, and such input, if any, has been minuscule. Hence the need for the further studies envisioned in this volume. 1

Mark W. Janis and Carolyne Evans, Religion and International Law, Martinus Nijhoff Publishers, 1999, p. xi.

4

II.

Universalising International Law

Phases in the Interrelationship between International Law and Philosophy

For the purpose of this discussion, and at the risk of over-simplification, it is useful to view our topic against five phases in the evolution and development of international law. The first phase was mainly philosophical. In particular the natural law philosophy prevalent at the time of its modern formulation in the 16th and 17th centuries, was a primary stimulus that triggered off the emergence of the new discipline, amidst the collapse of the centuries-old authority of the Church and the Holy Roman Empire, and the emergence of a series of new nation states not subject to any overarching moral framework or authority. Grotius and the other founding fathers were philosophers attempting to translate their philosophical ideas into norms of morally acceptable conduct for states. They did what they could within the limited framework of the learning available to them to search for their sources of inspiration from knowledge ancient and modern, religious and secular. It was that philosophical inspiration which provided the general contours of international law and the framework for its emergence as a new discipline. A second phase through which international law passed was the phase in which it came to be structured as a framework for the enterprise of territorial expansion and colonialism. This was sought to be accommodated within the basic moral framework within which it was conceived, but a number of self-serving rules suitable to a club of expansionist nations came to be incorporated within it. International law as thus adapted from its original natural law contours served well the needs of world empires. It allowed for the acquisition under law of territories that had for centuries been under indigenous occupation and rule. It was able to cast a cloak of legality over the subjugation of conquered peoples, the appropriation of their wealth, the expropriation of their territories and even such practices as the slave trade. These were concepts which would have been anathema to the moral framework within which the discipline was conceived, but for a variety of reasons the moral contradictions received scant attention. International law in this second phase continued for some centuries till the age of traditional empires came to an end. There then commenced a third phase in which a large number of new members of the family of nations emerged from the state of non recognition to which international law had consigned them for centuries and began to claim equality of rights with all the prior members of the international club that had dominated the world, in the imperial era. It became necessary in this context to rethink many of the self-serving rules to which international law had given its sanction in the past, and to construct an ostensibly universalist body of norms. Theoretically at any rate it was necessary

Cultural and Ideological Pluralism in Public International Law

5

to jettison concepts of privilege, which the traditional members of the club had claimed for themselves in the past. This trend commenced after World War I but really moved into full swing after World War II, for the spirit of empire was still alive and well even after World War I. International law thus entered what may be described as a third phase. However, there was a pronounced limiting factor retarding the move towards universalism. The momentum towards full equality of the new members of the world community of states was impeded and overshadowed by the ideological confrontation that now emerged between capitalism and communism. These two ideologies tended to block out a vision of the numerous other traditions and ideologies which should in this new phase have made their impact upon the world of international law. In the world of realpolitik the influence wielded by these two ideologies was out of all proportion to the share of these ideologies in the totality of the world’s ideological and cultural inheritance. That share was minuscule but these ideologies bestrode the world stage like competing colossi. The obvious historical opportunity for other world cultures to make their impact on the content of international law was thus lost through the dominance of the two rival philosophies which overshadowed all else. We have now entered a fourth phase, with the cessation of the Cold War. We are not in a stage now of confrontation between two powerful ideologies nor are we dominated by their ideological conflict. One would think therefore that the time has at last emerged for all the rich cultural traditions of the world to make their impact upon the body of international law. However, the voice of these other cultural traditions is muted and the stage has been taken over by the capitalist ideology, which tends to dominate all departments of state activity in both theory and practice. It tends to assess all institutions, customs and values by the yardstick of profits and profitability, without which their worth tends to be denied and they face oblivion. Its mercantile ethic is fast tending to become the measure of all things and has been freed of the powerful challenge it faced during the Cold War. In a needy world it tends to drown out other perceptions, standards and values. The rich cultural inheritances which can contribute so many perspectives, values and norms to international law continue to remain largely untapped as they have been for the past four centuries. It is time the scholars of the world started delving into the rich veins of untapped experience and wisdom contained in these mines of tradition. The fifth phase, yet before us, will be the phase beyond globalisation. The inadequacies of globalisation, the paucity of its philosophical base, the inability of earth resources to sustain its requisite of continuous expansion, its monolithic nature and the tendency it breeds of accentuating economic divisions both domestically and globally will all combine to force upon the scholarly community a consideration of alternatives and out of this will emerge a new realization of the

6

Universalising International Law

importance of making international law a truly multicultural system drawing on the richness of the universal cultural inheritance. That phase may be closer than we tend to think, and with it will come a blossoming of international law to reflect its multicultural background. The present author sees signs of this around, especially in the reawakened vigour of the scholarship of the developing world. This phase is especially interesting and challenging because the revolutionary force that will bring about this fundamental change will come not from armed might or economic force but from the world of scholarship. It is scholars alone who will be able to illuminate the principles which lie at the foundation of international law and show how universal they are. It is scholars alone who can stimulate a wider popular perception of these truths. The responsibility lying upon the world of scholarship is therefore enormous. The challenge has not been taken up in many quarters but there are hopeful signs of that stirring of scholarly interest which will be the precursor of change. If the world of scholarship does not take up this challenge the adverse consequences to the prestige and authority of international law could well be momentous. 1.

The First Phase

Natural law has performed a number of functions in the course of its voyage down the centuries. They ranged from building the Roman Civil Law into a cosmopolitan system to enabling the American judges to interpret the constitution. Not the least of its many achievements has been the role it played in the evolution of international law by giving it a transcendental perspective reaching beyond the particular rules and self interests of individual states. In the expressive words of Julius Stone natural law was “the vessel in which various criteria of justice sailed on to western horizons.”2 Modern international law was one of the principal destinations to which the vessel sailed and to which it delivered its goods. The cargo came from many sources. There was from classical Greece the Aristotelian idea that “if the written law tells against our case, clearly we must appeal to the universal law and insist on its greater equity and justice.”3 That Aristotelian cargo, incidentally, was not picked up directly from Greece but from Arab ports of call whither it had found its way through the work of Islamic philosophers such as Avicenna (Ibn Sina, b.980 AD.) and Averroes (Ibn Rushid 1126-1198 A.D.) From ancient Rome came Cicero’s classic description which no doubt exercised a profound influence on the minds of the founding fathers: “There is in fact a true law, namely right reason, which is in accordance with nature, applies to all 2 3

See Julius Stone, Human Law and Human Justice, Stanford, 1965, p. 36 Rhetorics I, 15.

Cultural and Ideological Pluralism in Public International Law

7

men and is unchangeable and eternal … It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.”4 The horizontal spread of this universalism was complemented by the vertical penetration from the highest levels down to all subject classes through the Judaeo-Christian idea5 of a law coming directly down to every layer of society from God himself. This idea was further elaborated by St.Augustine 354-430 AD who arranged law in three tiers, lex temporalis, lex naturalis, and lex aeterna. Natural law thus obtained a position well above enacted or state law and somewhere close to the eternal law, which is the reason or will of God. The element of reason received further emphasis from Thomas Aquinas. Eternal law was the incorporation of divine wisdom and natural law that part of it which revealed itself in natural reason. All positive law enacted by human authority must keep within the divine limits.6 Nor must we lose sight of the effect of Islam’s philosophical thought upon the work of Aquinas and the Christian scholars of his age. Scholars such as Averroes and Avicenna in their work on the doctrine of double truth grappled with the problem of the place of human reason in the context of divine revelation – a problem faced by Islam and Christianity alike. They worked out a rapprochement between these two sources of knowledge and gave a liberal place to human reason, which was thus freed of the shackles which in the past had confined it within the rigid framework of divine revelation. The freedom of inquiry thus achieved passed on to the Christian world in one of the most interesting intellectual movements of history and stimulated the work of scholars such as Aquinas, thus giving freer rein to human inquiry than it had enjoyed in the past. These were some of the ideas which in the hands of Grotius and others provided the driving philosophical force behind the evolution of international law. The idea of an overarching law based upon higher principles standing above the specific laws of specific states dominated this first phase in the history of international law. This system was conceived as standing above the mundane economic, political and military considerations which shape the conduct of states. There were thus many builders of the edifice of the natural law, which Grotius took over as the foundation of his new system. Grotius selected from all these ideas those which could best build a bridge between the medieval world and the modern secular world. From the philosophies of the past a structure was erected under which states were to conduct their affairs 4 5 6

De Republica III, 22. Stone, op.cit. p. 43. ibid. p. 44.

8

Universalising International Law

with due regard to universally accepted standards of morality and reason. The whole edifice rested upon the bedrock of philosophy and idealism. 2.

The Second Phase

The second phase based itself on the proposition that it was not possible to work out a universal system in the sense that it represented a universal set of norms and aspirations. Rather in the manner in which Chinese and Roman civilizations saw themselves as the cultured section of the world population and all the others as being in an outside realm “without the law” or, more crudely, as “barbarians”, so also the international law of this era gave up any attempt to find a system based upon universal sentiments. An often quoted passage from Henry Wheaton reads as follows “Is there a uniform law of nations? There certainly is not the same one for all the nations and states of the world. The public law, with slight exceptions, has always been, and still is, limited to the civilized and Christian people of Europe or to those of European origin”.7 There is a subtle hint here of a world divided into two groups of “civilised” and “uncivilised” nations, which is also echoed unfortunately in Art.38(1)(c) of the Statute of the International Court of Justice which speaks of the principles “recognised by civilised nations”. Wheaton’s view, expressed as late as 1866, represented the accepted thinking of public international lawyers of his time and this, it must be remembered, was a period of critical importance in shaping the contours of the international system the world inherited in the 20th century. It shows how long the intellectual framework lingered which had made possible the division of the world into two groups and which by casting one group into a state of righteousness, had made colonialism possible. There could not therefore be a universal natural law of overarching authority but an imposed law, which governed “civilized” and “uncivilized” people alike, not because it was accepted by the latter but because those who thought they were in the former group considered it essential for all, especially as in their uninformed view the latter had none. Statements such as Wheaton’s tend in one form or another to be re-echoed even in modern writings. This is a strongly alienating factor taking away from the discipline of international law that unqualified universality of allegiance which it should command if it is to be an effective system in the 21st century. Such statements ignore the richness of traditional legal systems in regard to principles which can play a great role in enriching the international law of the future. A developing field such as international environmental law offers rich examples of this. Modern international law needs to acknowledge the wide range of world cultural traditions 7

See Henry Wheaton, Elements of International Law, George Grafton Wilson ed., the Carnegie Institute of Washington, 1866, rpt. 1964, p.15.

Cultural and Ideological Pluralism in Public International Law

9

which, in the field of environmental law have shown much more understanding of the environment than modern western law.8 The international legal thinking of this era exhibited many shortcomings. Among these were: (a) Excessive reliance on a positivistic as opposed to a natural law approach (b) Unawareness of other cultures (c) The sacrosanct status accorded to state sovereignty (d) Failure to appreciate the large number of basic international law principles on which there would be common agreement across the cultures (e) Insensitivity to the rights of non-Western peoples (f) Imposition upon other cultures of concepts and procedures of western law Much could be written on each of these, but considerations of space prevent this. 3.

Third Phase

As already observed, during the Cold War two ideologies each aiming at world domination commanded an influence out of all proportion to the share of these ideologies in the totality of the world’s ideological and cultural inheritance. The gentler ideologies – the pacifist love-thy-neighbour ideology of Christianity, the Buddhist ideologies of compassion for all beings, the Islamic ideology that all humans are as equal as the teeth of a comb irrespective of colour, race, caste or creed, the warm and sharing fellowship of the Pacific, the African ideology that the human family consists not only of those existing in the here and now but also those who went before us and those who are yet to come – all these and many more were submerged in the political reality that power rested with the two ideologies first mentioned. In the result the potentially rich contribution of these other ideologies to international law tended to be overshadowed and inhibited. The dampening effect of this ideological confrontation on the contribution of the traditional ideologies to international law was significant. The dominance of those two ideologies meant also a preoccupation with military considerations owing to the resultant power struggle. This obstructed the progress of public international law in the directions most needed for the betterment of humanity. The advancement of areas such as peace, the common heritage of mankind, the protection of the environment and the development of social, economic and cultural rights was retarded. This was especially so in view of the negative impact of arms expenditure upon the expenditure of resources in pursuit of 8

On this aspect see the author’s Separate Opinion in Case Concerning The GabcikovoNagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports, 1997, p. 7.

10

Universalising International Law

higher values such as education, culture, human rights and development. Development and all the human rights connected with it depend heavily on the international financial system. With that system heavily geared towards armaments, the material resources and human effort needed for the provision of basic human rights were diverted (as indeed they still are) to the tune of over a billion dollars a day. This wasteful channelling of resources tended to be taken as a fixed and immutable feature of the international landscape, thus diverting attention from the fundamental need to mould the principles of the international rule of law into an affirmative instrument for global peace. The ideologies of free enterprise placed the manufacture of weapons within the hands of private enterprise and indeed gave them a stake in international unrest and tension. The armaments industry was thus a factor constantly militating against global peace and exercising a strong inhibiting influence over the processes of tension resolution. The power of the military-industrial-bureaucratic complex over politicians and policies kept growing through the era of the cold war, with a vastly negative impact on the issues that were really important for the betterment of the human condition. A reflection of the effect of these attitudes on the world of international law is the fact that to this day a blind spot exists in international law and human rights in regard to the armaments trade, which flourishes despite its violation of every known canon of human rights.9 An even more extreme example is the global trade in instruments of torture by 150 firms which, according to a recent report of Amnesty International released in March 2001, are openly marketed by firms throughout the world and have become a global business. In the socialist system likewise, increasing millitarisation meant that so much the less resources were available for development. While it was true that private profit from the manufacture of weapons was not possible, military needs often took precedence over urgent requirements in such fields as health, education and overseas aid. Those areas of international law, which relate to development, thus received less attention than they would otherwise have attracted and it was inevitable that the universalist norms that should have been building up in this department of international law were compelled to yield, in case of conflict, to the exigencies of the power confrontation. Apart from the military confrontation there was a struggle between both systems to win the allegiance of various countries. Much of the world came under the protective umbrella of one or other of the two ideologies and those who received these benefits had naturally to lend their support to these ideologies even at the cost of their traditional value systems and cultural traditions. With the newly emergent countries thus drawn into one camp or the other, there was little oppor9

See C.G.Weeramantry Justice Without Frontiers: Vol. I, Ch 11 and Vol.II, Ch. 11.

Cultural and Ideological Pluralism in Public International Law

11

tunity for them to make a real cross-cultural input into the content of international law. Just as powerful pressures often impaired their independence, so also these pressures muted the forces of cultural independence which might otherwise have been more productive. Economic development and respect for human rights are combined together in Article 55 of the Charter of the UN as necessary for peaceful and friendly relations among nations. Economic development and human rights are thus interlinked and interdependent and they are both firmly wedded to the notion of peace. They were both special victims of the superpower confrontation. This conflict of two powerful ideologies was however not without its affirmative legal effects, for the interaction of each ideological tradition upon the other produced a composite result which took us further than either ideology on its own could have achieved. The ideology of the welfare state was probably one such result. Each competing world view achieved certain modifications in its doctrines and applications as far as could be accommodated without compromising its basic philosophical tenets. This mutual leavening influence was largely lost upon the termination of the Cold War. Also, despite the restraining factors of two preponderant ideological systems, the new membership of the family of nations was able to introduce certain basic new concepts into international law, which may not have received such recognition, but for their influence. This is an important index to the full contribution they could make if international law were freed of the inhibitions referred to. One of these areas in which the ideologies of the newly emergent nations made an important impact was in regard to the elevation of social, economic and cultural rights. Ideologies based upon the right of the individual against the State had tended to concentrate upon the civil and political rights of the individual. This was indeed the almost exclusive concentration of Western oriented systems until after World War II. The view that human rights reach into the social, economic and cultural areas at least as intensely as in the civil and political areas, was widely shared by the ideologies of many of the newly emergent nations. It is true socialist thinking played a very significant role in achieving a realization of the essentiality of these rights, but yet it needed the multicultural input of many newly independent states to achieve this breakthrough. The Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, both passed in 1966, embodied perhaps for the first time an international acceptance of their co-equal nature. Indeed the interval of 18 years between the Universal Declaration and these twin Covenants was an index to the difficulties encountered in bringing about a recognition of these rights.

12

4.

Universalising International Law

Fourth Phase

With the end of the Cold War the power confrontation eased, to leave only one super power in a situation of dominance in world affairs. The monopolistic power situation was matched by a monopolistic ideological situation for, with the demise of the Soviet Union, the philosophy of the open market place did not any longer need to compete with the philosophy of socialism for world dominance. It enjoyed a free run and with this came a trend towards globalisation in all departments of activity. The free trade principle began to take over in areas into which it might not otherwise have had entry. In association with global financial institutions it began to enter even such areas as education, health care and public utility services. The World Bank, the International Monetary Fund, the Asian Development Bank and the very powerful World Trade Organization began to lay down principles by which various countries were required to direct their governmental and economic activity, whatever their traditional philosophies might have indicated, in such fields as education and health care. Globalisation, driven by the economic imperative, submerged other inputs into international law. To take one example, if principles of environmental protection required one form of action and principles of free trade required another, the balance tended to tilt in favour of the latter and this trend manifested itself even in some decisions of World Trade Organization tribunals. The dice came to be heavily weighted against all other principles and philosophies than that of free trade.10 However, this is only a passing phase, for globalisation has served the important purpose of forcing people all over the world to look inwards into their own cultures to see what they contain, which globalisation and the commercial ethic lying behind it lack. They also see globalisation as a form of continuance of foreign domination which officially ended with the dismantling of the colonial empires. For that very reason they tend to counterpoise the pristine value of their philosophical systems against the mercenary ethic of globalism, thereby highlighting the limitations of the latter.. Spurred on by such considerations scholars throughout the world, especially in the developing countries, are now searching afresh for the enduring bases of international law, which lie beyond the confines of any one culture or any one approach to global problems. We are today witnessing the emergence of this multicultural approach. The potential of other cultures to reinforce the basic principles of public international law is enormous, as will be noted in the ensuing discussion.

10

See John H. Jackson : The Jurisprudence of GATT & The WTO, 2000, see especially Ch.21, World trade rules and environmental policies: Congruence or Conflict? pp. 414-448.

Cultural and Ideological Pluralism in Public International Law

5.

13

Fifth Phase

This is the phase that lies ahead, the commencement of which is long overdue and the flowering of which will give new life and vigour to international law. It is an area awaiting an input from cross-cultural and inter-disciplinary scholarship which, hopefully, will delve deep into these sources and uncover much international law-related material which has not hitherto been brought to the notice of the global international law community. In addition to specific principles, there will also be a revealing of philosophies and attitudes of entire cultures towards some of the fundamental postulates of the international legal system and a pointer to possible directions of development in the future. I shall here address the potential of various cultures to contribute to the development of public international law, drawing attention to past contributions and to elements which can be of service in the future. The different groups comprising the cultural inheritance of mankind have, in various ways, which are not sufficiently recognized, already made contributions to the current content and development of international law. The reason for this non-recognition is a belief still current among many jurists that the substance of public international law is almost in its entirety a creation of the Western Christian tradition. Eight hundred years before Grotius, treatises on public international law, as we would now describe it, appeared in the Islamic world.11 These contained discussions on the rights of captives, humanitarian rules of warfare, diplomatic protection, contracts with enemies, the honouring of treaties, the recognition of sovereign states and numerous other matters pre-eminently the province of public international law. Islam looks upon all humans as being “as equal as the teeth of a comb” and in the farewell sermon of the Prophet of Islam, one of the great human rights documents in world history, he stressed, “the Arab is not superior to the non-Arab, and the non-Arab is not superior to the Arab. Nor is the fair-skinned superior to the dark-skinned, nor the dark-skinned superior to the fair-skinned.”12 We also know that the Prophet as head of the Islamic state himself received foreign embassies with great honour in his personal mosque, wearing special robes for the occasion.13 All of these – Qu’ranic passages as well as the traditions of the Prophet - were the subject of elaborate commentaries by the jurists and were 11

12 13

See generally Majid Khadduri, Islam and the Modern Law of Nations, 1956, 50 AJIL 358-72: “The Islamic System: Its Competition and Co-existence with Western Systems”, Proceedings of the American Society of International Law, 1959,pp. 49-52. See also C.G.Weeramantry Islamic Jurisprudence: An International Perspective, Macmillan,1988. See this writer’s Invitation to the Law, Butterworths, 1982, p. 273, citing M.U. Akbar, The Orations of Mohamed, revised ed. Muhammad Ashrof, 1966. For these and other reference see H.R.Hussan, The Reconstruction of Legal Thought in Islam, Idara al Quaran, 1974, p.172.

14

Universalising International Law

assembled together in treatises such as that of Al-Shaybani. We also know that some of this material found its way into Western jurisprudence. For example, the monumental Siete Partidas of King Alfonso X of Castile has a section on international law which draws heavily on this Islamic material, thus making it more easily accessible to later European writers. The extent to which Islamic thinking fertilized the Western European tradition in international law has yet to be researched, though we do know that the Crusades acted as major vehicles for the movement of ideas between East and West. It is important to the global support of public international law norms that there be a better understanding of the cross-cultural traffic on which this discipline is based. Coming back, however, to more modern times, the development of notions underlying the human rights concept is another fascinating field of cultural interaction. The philosophers of individual liberty such as Locke did not produce their theories full blown and unaided. They drew heavily upon the past. Locke, for example, was part of a tradition which went back, as recounted earlier, to the elevation of the status of human reasoning at the hands of Aquinas. From Aquinas the thread can be traced further back to the Jewish philosopher, Maimonides and the Islamic philosopher Averroes and through them further back to Aristotle. The philosophy of individual liberty and the dignity of the individual thus contain within themselves the confluence of at least four major cultural streams – the Greek, the Islamic, the Jewish and the Christian. Modern human rights and the principle of the rule of law are a cross-cultural product and not the exclusive invention of any one cultural group. Moreover, with the development of the concept of human dignity, other cultural forces from the rich mosaic of world cultural traditions are joining together in reinforcing and entrenching human rights doctrine. The cultural traditions of other civilizations – Hindu, Buddhist, Chinese, African, Melanesian, Polynesian and others – can contribute new facets to public international law. Outstanding among these is the realization that the current generation of humanity is not the exclusive repository of all legal and human rights. Generations yet unborn also have rights which must be recognized in the present if those rights are not to be destroyed for the future. Such unborn generations have little, if any, legal status in the Western tradition and any legal system, municipal or international, which is built upon that supposition, is a legal system which is necessarily incomplete. We are seeing manifestations of this in the necessities for preservation of the environment and the conservation of the earth resources, both of which are being harmed by the current generation in a manner which negates the rights of posterity. Belatedly, public international law is taking note of this danger and is still evolving the concepts to deal with it. A rich body of cultural tradition ranging

Cultural and Ideological Pluralism in Public International Law

15

from Africa to Polynesia reminds jurists of today how far the formalistic concentration of rights in individuals alive today is a departure from global and futuristic perspectives which must be the lodestar of public international law. These cultural traditions also remind us that just as individuals have rights, so also have groups and that while the concept of human rights for the individual is admirable, the rights of groups must not be lost sight of. All too often the exclusive concentration on the individual tends to fragment and scatter the groupings, which in the past cushioned and protected the individual. In that portion of public international law which deals with human rights, we need a continual reminder of the dangers of depriving the individual of these group protections and of thereby dissolving the cement which held societies together in the past. The task of balancing individual and group rights is thus an area of public international law where the world’s cultural traditions can make a significant contribution.14 Given the strength in the modern world of religious traditions, such as the Buddhist, Christian, Hindu and Islamic, and that they command the allegiance of over three billion of the world’s population, there cannot be any doubt that future thinking on international law can benefit deeply from the teachings contained in these traditions. It may be said by the cynic that in a world of harsh practical realities such religious teachings can find no place, but it is a reality of the geo-political scene that these religions command deep allegiance on a massive scale. Their moral authority is immense. Consequently their impact upon the world of practical politics, whether domestic or international, cannot be gainsaid. It would indeed be unrealistic to look at the practical world scene without making due allowance for the power of these religions. This becomes especially important in public international law where the interaction between the moral principle and the legal precept becomes particularly compelling in such contexts as nuclear war, genocide, slavery, torture and fair contractual dealing in international trade. Such topics form an important part of the corpus of public international law. The fact that the world has many cultures and that each culture is many faceted does not preclude certain underlying norms from receiving universal recognition. Locke, who wrote in his “Essay Concerning Human Understanding” that scarcely any principle of morality or rule or virtue accepted as necessary by one society was not condemned at some time by other societies,15 himself formulated certain principles of human rights intended to be of universal applicability. The framers of the Universal Declaration of Human Rights, while conscious of cultural diversities, were fortunately not put off by them in their quest for universal norms. We must bear these in mind in the sphere of international law, which 14 15

On group rights in Third World society see C. G. Weeramantry, Equality of Freedom: Some Third World Perspectives, 1976, pp. 20-23. See Locke, An Essay concerning Human Understanding I.ii.10.

Universalising International Law

16

is feeling the impact of cultural traditions that had not directly affected it during the period between Grotius and the emergence of the United Nations. The magnitude of the change between that period and ours can be appreciated when we consider that it was not without difficulty and deep-seated reservations that Turkey came to be admitted into the “Club” of European powers which was laying down general principles of international law. The world scene today is so markedly different from that which prevailed at the end of the nineteenth century that accommodation must necessarily be made for cultural and ideological pluralism. International law needs to mount a special effort in this direction especially as the inheritance of nineteenth century modes of thinking still pervades some areas of international law. Unless there is a special awareness of the importance of maintaining the concept of cultural and ideological pluralism there is an ever present danger of its suffocation in the midst of inherited nineteenth century thought patterns. The cause of pluralism is not served by despairing reflections on the apparent irreconcilability of divergent traditions in different countries. III. Concepts of traditional law which would enrich modern international law There are numerous developing areas of international law which could profit greatly from some of the perspectives ingrained in traditional legal systems, which have been obscured by the superimposition upon them of the individuallyoriented and contemporaneously-focussed legal systems of the West. With no attempt at being comprehensive, the following are offered as a specimen sampling of concepts and areas of study where a knowledge of such legal systems could be specially rewarding. Intergenerational rights Obligations erga omnes The common heritage of humanity Sustainable development Trusteeship of land Sanctity of land Environmental protection Group rights The notion of group duties The subjection of state sovereignty to a higher law The notion of the oneness of humanity Friendly relations between states The inherent dignity of every human being The notion of peace Non-violence

• • • • • • • • • • • • • • •

Cultural and Ideological Pluralism in Public International Law

• • • • • • • • • • • • • •

17

Reconciliation World order Active cooperation as opposed to passive co existence Cross cultural understanding Industrial relations Humanitarian rules of warfare The sanctity of treaties (pacta sunt servanda) Diplomatic representation The problem of violence Non-aggression Peaceful co-existence The psychology of conflict The causes of conflict The resolution of conflict

Some observations follow about major global traditions which have not yet been sufficiently used to enrich and invigorate public international law. 1. Buddhism Buddhism is a profound source of support for many of the fundamental principles of international law. Unfortunately this body of learning has not yet been sufficiently researched from the standpoint of international law, with a few notable exceptions.16 The deeply philosophical approach of Buddhism not unsurprisingly gives us many psychological insights into the causes of war. The mental attitudes that lead to conflict are minutely analysed, ranging from righteous indignation to profound hatred. Righteous indignation, which is one of the principal causes of conflict, can very easily be debased and during the course of conflict does in fact become so debased. The importance of peaceful resolutions of disputes and the various ways in which peaceful resolution can be achieved are also discussed. The causes of world disorder are examined. The question posed to the Buddha, adopted by Buddhaghosha as the opening stanza of his Path of Purification (Visuddhi Magga) is as follows: “The inner tangle and the outer tangle This generation is entangled in a tangle And so I ask of Gotama 17 this question Who succeeds in disentangling this tangle.”18 16 17 18

Such as that of K.N. Jayatilleke “The Principles of International Law in Buddhist Doctrine”, Recueil des Cours, 1967-I, pp. 445-556. The Buddha. See C.G. Weeramantry, “Some Buddhist Perspectives on International Law’’, Boutros BoutrosGhali Amicorum Discipulorumque Liber, Peace, Development,Democracy, Bruylant,Bruxelles, 1998, p. 782.

18

Universalising International Law

One way of disentangling the tangle is to know its causes and Buddhism is unequivocal in pointing to what is probably the principal cause - the greed and craving which afflicts not only individuals but also nations. This blinds their perception of the fact that in seeking more possessions they are depriving others of their legitimate share. An answer to the problem of national greed is education of its citizenry at an individual level. According to Buddhist teaching one of the key contributions towards international peace is an equitable distribution of the world’s resources. An equitable world order cannot in other words be achieved without an equitable economic order. Buddhism was among the first major belief systems to elaborate the theme of the equality of all humans in considerable detail. The unity of the human species and the lack of any material distinction between its members thus goes back over 2,500 years in world tradition. Nor was this a teaching of equality in the limited Greek sense of equality among free citizens with the slave population left rightless. Buddhism drew no distinction of this sort between members of the human family. The concept of equality was expounded and explained on ethical,19 legal,20 moral,21 religious,22 sociological,23 anthropological,24 and biological25 grounds.26 Every individual member of the human family owed duties to every other. The advice of the Buddha was in fact sought by many rulers of his time. He was therefore called upon to apply his teachings to actual political facts and circumstances. The duties of kings, the welfare of subjects, the resolution of hostilities, equitable adjudication of the matter in contention – all of these received his attention. The absence of dualism in Buddhism is of great importance for international law. No law of any individual sovereign had validity if it offended the basic principles as taught in the Dhamma. There was a profound universalism that swept through his teaching and this affords enormous reinforcement to the fundamentals of human rights and international law. International law has almost totally ignored the wealth of insights available from Buddhism to strengthen its fundamental principles and increase their universal acceptance.

19 20 21 22 23 24 25 26

Digha Nik ya, Vol. III, p. 250, et seq. Majjhima Nik ya, Vol. II, p. 84, et seq. op.cit. p. 86, et seq. op.cit. p. 128 et seq.147 et seq. op.cit. p. 149 Digha Nik ya Vol.III, p. 93 et seq. ibid. For these and other references, see L.P.N. Perera, Buddhism and Human Rights, Karunaratne & Sons, Colombo,1991, pp. 35-36.

Cultural and Ideological Pluralism in Public International Law

19

One reason for this may be the enormous extent of the Buddhist scriptures ranging through multiple volumes of discourses - the Digha Nik ya (34 long discourses), the Majjhima Nik ya (152 middle length discourses), the Samyutta Nik ya (2889 short discourses), the Anguttara Nik ya (2308 short sayings, often in the form of maxims or aphorisms), and the Khuddaka Nik ya (over 1000 sa yings in the form of stanzas or aphorisms, covering the whole range of Buddhist philosophy).27 All of these discourses and sayings, though available in English, need to be researched by international lawyers as many principles pertinent to international law, though not directly stated, lie concealed within them. Buddhism would lend powerful support to natural law thinking and would discourage legalism. It would extol social and economic rights and offer us pointers to ways in which the emotional causes of war can be modified if not overcome. Buddhist analyses of violence are also relevant to our studies because they deal with institutional violence, ideological violence, defensive violence, political violence and others. Ideological violence, the cause of much conflict, and terroristic violence also come in for scrutiny. Peaceful co-existence and non-aggression, non-alignment, the tracking down of the roots of violence to their sources, the sanctity of promises, the arms trade, the futility of collective punishment, tolerance, the right of asylum, environmental protection, individual responsibility, social duties, industrial relations, the peaceful resolution of disputes, integrity in trade – all of these of deep relevance to the development of future international law, are intensely analyzed in Buddhism. It is surely not possible to describe modern international law as a universal system if it neglects this huge source of support and inspiration. 2.

Confucianism

As pointed out in a recent study, books upon international law and order do not include any meaningful discussion of Confucius or Confucianism. This is despite the fact that Confucian teaching did have much to say on such questions as world order,28 the world community, the principle of harmony, the importance of the moral order to legal order, the goals of the state, the goals of the world community and the principles of harmony. The notion of ping denoted peace, harmony, evenness, equality, fairness, and the like. The ultimate goal of the world order is ping. Every individual is urged to attempt eight virtuous accomplishments of which the last is the ping of the world. In other words it is the obligation of each individual to do what he or she can to achieve global harmony. The duty of every individual to attempt this eighth requirement is an integral part of Confucian 27 28

See supra note 18. See Mark W. Janis and Carolyn Evans, Religion and International Law, 1999, Martinus Nijhoff, p. 27.

20

Universalising International Law

teaching. The eight virtuous accomplishments, which every individual should attempt, are laid down in the Book of Great Learning. Confucian teaching envisaged the world community as all under heaven, and all under heaven are treated as one family. The term tien-hsia (literally all under heaven), although translated by some as referring to the kingdom of China, was extensive enough to comprehend the entire world. It was essential for a peaceful and happy China that the rest of the world under heaven also enjoyed peace and happiness. A cardinal principle that emerges from Confucian teaching, which in the author’s view is most relevant in international law, is the emphasis it places on the conduct of each individual. Modern international law tends to suffer because it confines the bulk of its attention to the conduct of states, ignoring the fact that the conduct of states is largely the impact upon those states of the individuals comprising it. There is hence a lack of emphasis on what each individual can do towards the goal of world harmony. That tends to be looked upon as the preserve of States and not the business of the individual. This personalized approach of Confucianism is fundamental to the future of international law, for unless education systems sensitize the thinking of each individual to his or her role and importance in the world order, an improvement in the world order will not be achieved. Each state would continue to play the selfish and self-interested role that has resulted in the world problems of today. Confucian teaching is thus of cardinal value in emphasising that it is the individual human being who is the ultimate actor in all community processes. It is possibly an idea of this sort that lay behind H.G. Wells’ often quoted observation that the future of humanity is “a race between education and catastrophe”. Western law has made the mistake – probably largely under the influence of positivism - of considering that Confucianism had no legal tradition as such. A well known text on Jurisprudence29 exhibits such a misapprehension under which generations of lawyers have been trained when it says: “the Chinese had never had a legal tradition at least as that term is understood in the West. Legality has no roots in Chinese civilization, law being regarded as a sign of an imperfect society.” It was the total law that Confucianism contemplated and not that part of it which falls under the rubric of positive law. It is surely the failure to distinguish the part from the whole that causes a large segment of the world’s wisdom to be discarded as irrelevant to international law. There is a great contrast between positivist law and a total legal system based upon ping. The error of elevating positive law to being the only law is an error into which international law, above all else, must not fall.

29

See Dennis Lloyd, Introduction to Jurisprudence (4th Ed), Stevens, 1979, p. 760-61.

Cultural and Ideological Pluralism in Public International Law

21

The rounded concept of Li in Chinese law contrasts strongly in this respect with the enacted or positivist law as understood in western systems. The Chinese concept covered not merely ethical or moral rules of conduct but also juridical norms and laws.30 Confucian teaching has insights to offer on such matters as humanitarian intervention, punitive expeditions, the “right” to revolution, economic, social, and cultural rights, freedom of opinion, and expression, and the honouring by rulers of what would today be described as human rights. The stress throughout is on duties but as Leon Duguit taught in the West, one’s rights fall into place when one’s duties are properly performed. It would strengthen the acceptability of the Universal Declaration of Human Rights if for example it were more widely realized that there is a substantial concurrence of view between the Confucians and the Universal Declaration, just as it would strengthen international law if there was a better understanding of the importance of the harmony of “all under Heaven as one family”. I conclude with a passage from the Analects: “When the Master went to the state of Wei, Zan Yu acted as driver to his carriage. The Master observed, “How numerous are the people!” Zan Yu asked, “Since they are thus numerous, what more shall be done for them?” “Attend to their economic well-being,” was the reply. “And when their economic well-being has been attended to, what more shall be done?” The Master said “Teach them.”31 Education of the citizenry towards global consciousness and duty towards all under heaven are perhaps the essence of the Confucian message for world order and international law. 3.

Hinduism

The ancient law books of Hinduism had a finely nuanced concept of justice. Righteous or fair or just conduct was the subject of elaborate commentaries. Dharma or righteousness stood supreme above the ruler and any law he may enact. This was so not only domestically but also on the international plane. It was theoretically possible for the whole world to be brought under the just rule of a universal monarch. But even such a person would not be the ultimate ruler of the world. The ultimate ruler of the world would be, not a physical person but “the kingless authority of the law”. There could scarcely be a better description of international law and of the international rule of law than this eloquent description handed down to us 3000 years ago. If we were researching the humanitarian laws of war, we would find a wealth of information in the ancient Hindu law which imposed fine limitations upon the 30 31

See supra note 28, p. 31-33. See supra note 28, p. 49.

22

Universalising International Law

extent to which combatants could go. There were limitations on the weapons they could use, the circumstances in which they could attack, and the person on whom an attack could be launched. The ancient books tell us that in warfare peasants working in the fields could not be attacked. Civilians had to be spared. On a personal note, I derived much inspiration, when writing my Dissenting Opinion in the International Court on the illegality of nuclear weapons, from the ancient Hindu texts, which categorically stated that hyper destructive weapons which went beyond the purposes of warfare could not be used lawfully32. In giving modern law an overall view and a sense of direction such wisdom can be a continuing source of inspiration. This is just one illustration but many more may be cited of ways in which the deeply philosophical background of Hinduism can offer insights in our day and age. Nor has Hinduism remained static in its legal development. Its volume of recorded legal literature rivals the Roman, and its modern exponents such as Sri Aurobindo and Mahatma Gandhi have gone far in developing concepts integrally related to law such as non-violence. Indeed the power of this concept in practical affairs was demonstrated by Mahatma Gandhi and played no little part in the eventual dismantling of the most widespread empire the world has seen. Hinduism like many other eastern philosophies stresses not merely external conduct but turns the searchlight of scrutiny on the internal mental state that leads to that conduct. In the words of Sri Aurobindo “It says strongly enough, almost too strongly, ‘Thou shouldst not kill,’ but insists more firmly on the injunction, ‘thou shalt not hate, thou shalt not yield to greed, anger or malice,’ for these are the roots of killing.”33 The Law of Dharma exempted no one, and in anticipation of the social contract theory, rulers were required to take an oath of obedience to the Laws of Dharma. Their right to rule was dependent on their observance of this promise.34 Consequently the theory of sovereignty did not give absolute power to the ruler who was subject to this overriding rule of conduct. Unlike Austinian theory, which required an enforcing arm to give authority to a law, the Hindu concept of international law based itself on the moral authority of that law and thus placed international law well above the level of state sovereignty. The Hobbesian idea that “covenants without the sword are vain” had no place in the Hindu legal system.35 Not only the Code of Manu but also the text of the Mahabharata and the Ramayana and also the work of other jurists such as Naradha and Sukra exhibit 32 33 34 35

Legality of the Threat or Use of Nuclear Weapons (Opinion Requested by the General Assembly) I.C.J. Reports, 1996, pp.429-555. Sri Aurobindo, The Foundation of Indian Culture, Sri Aurobindo Ashram Pondicherry, 1988, p. 91. op cit., p.18. op cit., p.107.

Cultural and Ideological Pluralism in Public International Law

23

an outstanding humanitarian approach in dealing with the laws of warfare. Acts prohibited include night attacks, strategies of deceit, booby tr aps, treachery, the molestation of non-combatants, the destruction of crops, the ill treatment of prisoners of war, and the destruction of an enemy’s land by fire. Indeed the Mahabharata states that “Enemies captured in war are not to be killed but to be treated as one’s own children”.36 There was also a principle that the prisoner had to be released after a certain period and to be sent back to his home with a proper escort. There is evidence that this was in fact followed, for Chandragupta Maurya set free prisoners captured in war. The wounded were to be well looked after and there is evidence that regular camps were established with medicine and surgical instruments to look after the wounded on the battlefield. At the hands of a galaxy of 20th century intellectuals the humanism and the universalism of ancient Indian philosophy have been expounded, and their relevance to the modern world demonstrated. Among these figures are Rabindranath Tagore, Mahatma Gandhi, S. Radhakishnan, and Sri Aurobindho. Their philosophies and writings have received scant attention in the world of formal international law. 4.

Islam

Reference has already been made to the Islamic contribution to the development of international law. This section deals in somewhat greater detail with the contents of Islamic international law. Verses xvi: 91,92 of the Qu’ran embody the rule of pacta sunt servanda, beautifully elaborated in terms that fine interpretations of a treaty, like unravelling a strong thread into fine filaments, can depart from the spirit of treaties by making weak what was strong before, and should in no circumstances be used as a means of defeating its intent and becoming a basis of deceit between nations. Islam’s philosophy of all power issuing from God makes rulers only trustees of power and not absolute wielders of power. Any dualism of national and international law is thereby rejected. Al-Shaybani 749-805 wrote an extensive treatise on international law and Shafi’i’s Kitab-al-um contains an exposition of numerous principles of international law. Islamic law saw all human beings as “alike as the teeth of a comb” and there is a hadith of the Prophet that the “whole universe is the family of Allah…” Humanitarian law was expounded in detail. Among acts expressly forbidden were the use of poisonous weapons, the killing of envoys, the killing of captive women, the cutting of forests and the killing of non-combatants and the destroying of harvests. Indeed concern for prisoners went so far as to ordain that their dignity was to be respected, near relatives were not to be separated and they were 36

Mahabaratha, Shanthi Parva 102.32.

24

Universalising International Law

to be permitted to draw up their last wills which were to be transmitted to the enemy through some appropriate means.37 Even modern conventions on humanitarian warfare could be improved from concepts and inspiration derived from a study of such ancient writings. On the battlefield itself honourable conduct was required. Practical examples of this are to be found in Islamic history as for example Calif Abu Bakr’s instruction to his commander “I enjoin upon you Ten Commandments. Remember them. Do not embezzle, do not cheat, and do not break trust….”38 European literature at the time of the Crusades records its surprise at the translation of some of these principles into actual practice on the field of battle. One writer, Oliverus Scholasticus, relates how the Sultan al-Malik-al-Kamil supplied a defeated Frankish army with food : “Who could doubt that such goodness, friendship and charity come from God? Men whose parents, sons, and daughters, brothers and sis ters had died in agony at our hands, whose lands we took, whom we drove naked from their homes, revived us with their own food when we were dying of hunger and showered us with kindness even when we were in their power.”39 In regard to the law of international trade it must not be forgotten that there was an enormous expansion of trade in the Islamic world and a growth of fresh principles of commercial law against the background of the fundamental principle of good faith. Among matters involved in such trade were international trading treaties between states, international trading agreements between individuals, and safe conduct of traders in foreign territory.40 The prevalence of a state of war did not necessarily mean the suspension of trade. And in this context there is the tradition of the Prophet that he once sent dates from Medina to Mecca and received hides in return at a time when hostilities prevailed between Medina and Mecca. Apart from the strict legal material, there is a vast amount of information regarding treaty practice in Islamic states. The treaties entered into between the Ottoman Empire and Christian powers (such as that between Suleiman the Magnificent and King Francis I of France in 1535), those between Islamic states inter se, trading agreements between Moghul emperors and non-Moghul Indian rulers are some examples. A well-known early example of a treaty in relation to

37 38 39 40

S.R. Hussan, The Reconstruction of Legal Thought in Islam, supra, p. 177. Ahmed Ibrahim, “Religious Belief and Humanitarian Law with Special Reference to Islam” Journal of Malaysian and Comparative Law, 1984, p. 133. F. Heer, The Medieval World: Europe 1100-1350, 1968, p. 144. C.G. Weeramantry, Islamic Jurisprudence: An International Perspective, Macmillan, 1988, p. 139.

Cultural and Ideological Pluralism in Public International Law

25

the large-scale exchange and ransoming of prisoners was the treaty of 804 between the Calif Haroun-al-Rashid of Baghdad and the Emperor Nicephorus.41 Other matters covered were the law of diplomatic protection and the law of asylum. In the human rights field some of the aspects covered were the notion of fair industrial relations, the notion of human dignity, the notion of trusteeship of property, the notion of sharing, the notion of assistance to those in need or distress, the notion of abuse of rights and the notion of privacy. There is no space here to elaborate on these, but an interesting reference to the last of these is a tradition of the Prophet, which would have enormous relevance to modern times. In relation to prying into the correspondence of others, he condemned it in terms that “he who reads a letter of his brother without his permission will read it again in hell.”42 This is as eloquent a description of the privacy of correspondence as one can find anywhere in world tradition. These few glimpses of Islamic law will it is hoped convey some idea of the wealth that can be gained from this system if modern international law would look into its vast literature with a view to reaping from it insights and concepts which will assist considerably in its development. 5.

Judaism

The Torah, or Pentateuch, the Prophets and the Writings together constitute an enormous corpus of sacred and juridical literature, the full depth of which has yet to be researched from the standpoint of their relevance to the principles of international law. The Talmuds (the Babylonian and Palestinian) were immense compilations of juristic expositions notable for their thoroughness and minuteness of detail. All this literature embodies not only a deep philosophical approach but also a very imaginative and sometimes futuristic view of the problem under discussion – as where, centuries ago, they discussed whether a robot with all the appearance of a human could be counted as a human for purposes of a prayer quorum. There can be little doubt that there are many nuggets of wisdom here which are yet to be quarried. There is no doubt regarding the substantial input of Judaic learning into international law in its formative age. Indeed if one looks at the sources cited by Grotius himself, he makes 65 references to the Old Testament as compared with 50 references to the New. Yet there is room for concern that all the rich literature of Judaic jurisprudence has not yet been sufficiently tapped by scholarly investigation. References are mainly to Old Testament sources, and the later literature is scantily referred to. For example, one looks in vain among many of these primary writers for references to the work of the master jurist Moses Maimonides (1135-1205). Even 41 42

See also A. Nussbaum, A Concise History of the Law of Nations, Macmillan, 1954, p. 47. M.C. Bassiouni (ed. and trans.) The Islamic Criminal Justice System, Oceana Publications, 1982, p. 69.

26

Universalising International Law

when such material is referred to, it is often at second hand - as writers like Shabtai Rosenne have pointed out. 43 This extensive body of philosophical and analytical literature must surely contain many insights that can strengthen modern international law as it steers its way through the many complexities confronting it. Grotius does indeed refer to post-Biblical writers such as Flavius Josephus and Philo Judaeus and so also does Gentili. Some later writers like John Selden (1584-1654) have shown a closer acquaintance with Jewish writings but much research has yet to be done on the influence of Jewish thought upon the modern founders of international law. In the words of Rosenne, “There is here a vast field for research.”44 As with the other religions discussed, the source material needs to be carefully perused by scholars with an eye to their international law significance. A rich harvest of concepts and discussions can be expected. Materials such as the Jewish Antiquities of Josephus are thought to contain a “wealth of source material awaiting critical analysis from this point of view.”45 Other material to be researched would include, importantly, Maimonides’ Law Concerning Kings and their Wars, not to speak of his Guide for the Perplexed. In the former we find references to the essential features of international law and in the latter illuminating discussions of such matters as equity and industrial relations, which have an intimate bearing on human rights. There is also much to be learnt from discussions of such topics as the pursuit of peace and the love of mankind from teachers such as Hillel (70 BC – 10 AD). His philosophy of gentleness occupies an important place in Judaic tradition, and would be an important aid to the interpretation and application of principles of international law. It was characteristic of Jewish law that it made no sharp distinction between law and morality, viewing the two as a common system, as did other religious systems we have referred to. Out of this fusion come important perspectives which can only do lasting good to international law. I refer finally to the teachings which placed all rulers under the authority of law and thus diminished the self-centredness of the sovereignty concept. This again would have lasting value for international law. As Maimonides taught, the king’s duty was to fill the world with righteousness and whatever he did must be done by him for the sake of Heaven – a remark which reminds one of the universalism of Confucian teaching. The words: “and they shall beat their swords into plowshares and their spears into pruning hooks; Nation shall not lift up sword against nation, neither shall they 43 44 45

op. cit., p.71. S. Rosenne, op cit., p. 68. op cit., p. 74.

Cultural and Ideological Pluralism in Public International Law

27

learn war any more”46 are given a prominent place at the United Nations Headquarters in New York. They may truly be said to embody the base line of international law. There are more than twenty centuries of juristic commentary upon passages such as these, for they go back to sacred scripture. They are well worthy of further examination from the standpoint of the basic principles which will bring this Biblical vision closer to attainment. 6.

Christianity

Christianity has been left to the last because both at the inception of the era of modern international law and until at least the close of the nineteenth century it was the dominant influence in international law. It is not possible to touch on its many facets of interaction with international law in the course of such a short discussion. We have already referred to some of the thoughts of Augustine and Aquinas and to the role they played in developing concepts of natural law. In the course of the development of international law through the later centuries Christianity played many roles in fashioning the attitudes of scholars to international law and the area of its applicability. The role played by writers such as the Dominican Francisco de Vitoria (1480-1546) and the Jesuit Francisco Suarez (1548-1617) constitutes another important chapter in merging international law with theology. When international law had broken free of theology another trend became apparent which damaged the universality of international law. This continued till well into the nineteenth century. It pertained to the circle of nations to whom international law applied. At the hands of the most respected scholars up to the end of the nineteenth century, Christianity was seen as virtually providing the admission ticket to the exclusive club of independent nations. For James Lorimer (1818-1890), for example, membership of this select group required a “reciprocating will”. There needed to be a mutual recognition of the existence of other states and a judgment that their right to existence corresponded to one’s own. This judgment became easier because governments influenced by Christianity were thought by the holders of this view to be superior to other religious or secular modes of government. “If Christianity be not the test of the presence of reciprocating will in religious creeds, what have we?” 47 For Robert Phillimore (1810-1885) as well, Christian nations deserved a privileged place in international law. “Unquestionably, however, the obligations of International Law attach with greater precision, distinctness, and accuracy to 46 47

Mark W. Janis and C. Evans, op. cit., p. 83. J. Lorimer, The Institutes of Law: A Treatise of the Principles of Jurisprudence as Determined by Nature, 1872.

Universalising International Law

28

Christian States in their commerce with each other.”48 Even Oppenheim 49 could write that “the civilized states are, with only a few exceptions, Christian states.” All this did not bode well for the universalism which is essential to the acceptance of international law. It constructed an attitudinal barrier which needed to be broken through, regarding the competence of other cultures to make a contribution to international law. What is more, all these interpretations misread the simplicity and universality of the basic Christian message. They made a rule of particular exclusion out of a message of universal inclusion. That message has tremendous relevance to modern international law and to its future development. The teaching “love thy neighbour as thyself” and the elevation of this principle to the level of a pre-eminent commandment gives us a prime index of the tenderness and the sweep of the Christian message. Who is my neighbour? The parable of the Good Samaritan places in position the basic answer to this question. The concept of neighbourhood transcends all boundaries of race and religion and privilege. All humans alike are neighbours to each other, even as all humans alike belong to the same family under God. What is my duty to my neighbour? The parable answers this in terms of affirmative duty rather than passive toleration. One must go that extra mile to help a neighbour in distress. A careful study of the Christian scriptures and juristic writings with a view to their international law and human rights content would certainly reveal vast funds of further inspiration, which are not often brought into modern legal discussions. Among the concepts that would receive support from such a systematic study are the following:

• • • • • • • • • • • • • 48 49

The sanctity of treaties Limitations on the absoluteness of state sovereignty The brotherhood and sisterhood of all humanity Peaceful and friendly relations between states The concept of universalism The concept of peace The duty of environmental protection The higher or universal law standing over the law of states The principle of intergenerational fairness Humanitarian conduct in peace and war The criminality of genocide in any shape or form or for whatever reason The duty of active cooperation of states The peaceful resolution of disputes

R. Phillimore, Commentaries upon International Law, 1855, pp. 23-24. International Law: A Treatise, 1905, p. 10.

Cultural and Ideological Pluralism in Public International Law

• • • • • • • • • • • •

29

The observance of good faith in all international dealings The rejection of colonialism and domination over other nations The need for the elimination of the hatreds which are the cause of disputes The rejection of legalism A duty-related rather than rights-related view of human rights Non discrimination among all human beings Equality of all human beings as members of a common family, irrespective of differences in race, nation, caste, creed, gender, or age The duty of affirmative action to assist those in distress The duty to observe non-violence in the settlement of disputes The prohibition of slavery The condemnation of torture in every shape or form The rejection of forced labour

In regard to the higher law, this has been expounded at great length by commentators down the ages. Reference has already been made to some aspects of this in the discussion of natural law. Another aspect of the Christian scriptures that needs to be emphasized in a study of international law is the condemnation of legalism. Christianity is particularly strong on the rejection of legalism in all its forms and this would apply to international law as well. An important message of the Christian scriptures is that the letter of the law should yield to the spirit. Harsh and literal interpretation is to yield to softer interpretations more consonant with the object and purposes of the text. This was the basis for the severe castigation of lawyers by Jesus in at least three places in the New Testament. Jesus was protesting against formal interpretations that belied the spirit or purpose of a law and it is for these reasons that commentators have observed “lawyers generally get a bad press in the New Testament.”50 While adhering to the letter and the ritual they “have neglected the more important matters of the law – justice, mercy and faithfulness.”51 Another aspect which needs attention is the concept of active assistance to others, as indicated in the Good Samaritan example. This duty of assistance must be taken to refer not merely to individuals but should apply to nations as well. It would be an enormous task beyond the scope of this chapter to examine the vast literature that needs to be surveyed for the purposes of such studies. It will suffice for present purposes to refer to the numerous insights that can be gained from a law-related study of even one small piece of scripture such as the

50 51

Keith Mason, Constancy & Change, Federation Press, 1990, p. 29. Matthew 23:24.

30

Universalising International Law

Lord’s Prayer. The author has attempted to do this52 and would refer the reader to this small study as an example of the wealth of material yet awaiting research conducted with an eye to its relevance to international law. IV. Article 38 (1)(c) of the Statute of the International Court of Justice This study has designedly been written in terms of an overview of major world cultures. The value of a more intimate acquaintance with their traditions and literature is not however confined to a macro vision of the cultures concerned. It also has value at the micro level of each individual principle, and this assumes special importance in view of Article 38 (1)(c) of the Statute of the International Court of Justice. Since international law specifically includes “the general principles of law recognized by civilized nations” a heavy burden is thrown upon international lawyers and judges to ascertain what these are and not to form their conclusions on a survey of only part of the field. The greater familiarity with other systems which is advocated in this chapter as a sine qua non to the work of the international lawyer of the future, will facilitate a search for those general principles – a search which is often only a partial search under prevailing conditions. There is not the space here to illustrate the many principles that have entered the corpus of public international law under this head, but they range all the way from principles such as estoppel to overarching principles such as pacta sunt ser vanda and abus de droit, not to speak of the seminally important rules relating to interpretation of treaties. The approach advocated in this article will enrich the development of international law through a more fruitful use of the comparatively neglected provisions of article 38 (1)(c). Indeed this is a fruitful area for the enlistment of the discipline of comparative law into the service of public international law. In the words of a leading treatise on comparative law “To do this would avoid reducing the valuable notion of ‘general principles of law’ to a mere minimum standard”. We have too long been satisfied with minimum standards of search into this vital repository of concepts and principles wherewith to enrich the developing body of international law. The broader perspectives pleaded for in this chapter can revitalize this search. V.

Conclusion

This chapter has attempted to depict a few areas of possible cross-cultural and interdisciplinary research. This can be universally valuable in strengthening the integrity of the fabric of international law which, while being so extensive as to form a canopy around the entire world, must at the same time be so strong as 52

See C.G.Weeramantry, The Lord’s Prayer: Bridge to a Better World, Liguori/Triumph, 1998.

Cultural and Ideological Pluralism in Public International Law

31

to resist wear and tear in areas where it comes under particular resistance and tension. The task is immense because of the extensive nature of the literature involved. This literature must be subjected to searching study and examination by minds attuned to the legal nuances embedded in these teachings and traditions. This largely unaddressed task gives the lawyers of the future an unrivalled opportunity to use their skills towards the construction of a more peaceful world order. The task is overdue. The work is intense. The reward will be rich. A world racked by conflict cannot afford to neglect it much longer.

Chapter 2

Making International Law Matter*

The universalisation of international law requires more interaction between international law and the global public. This cannot be achieved without a greater awareness among the global public of the relevance and efficacy of international law. To many a member of the public international law seems a remote and largely ineffective system which does not touch the citizen’s daily life in an immediate or meaningful way. This attitude leads to lack of support of the system and alienates from it those whose support is most vital to its existence. It needs to be countered by information regarding the practical efficacy and increasing relevance of international law. This relationship of a legal system with the public it serves is no different whether the system under consideration be national or international. Just as at the national level any republic depends, for its justice, peace, freedom and order, on the informed consent of the governed, so also is it at the international level. It was this aspect of a willing and informed consent that prompted Montesquieu to point out that the principle underlying a democracy is education,1 just as, by way of contrast, the principle underlying tyranny is fear. The *

An amalgamation of two public lectures on the growing importance of international law. The first lecture was the Inaugural Tun Hussein Onn Memorial Lecture delivered in Kuala Lumpur in honour of a former Prime Minister of Malaysia, on 23 August 1991, and graced by the presence of His Majesty the King (Yang di Pertuan Agong). The second was the Tenth Convocation Address of the Bandaranaike Centre for International Studies, Colombo, chaired by Prime Minister Sirimavo Bandaranaike, on 6 December 1991 and covering some of the issues foreshadowed at the Non-Aligned Summit of 1976 held in Colombo and presided over by Mrs. Bandaranaike. The first lecture was published in 1993 Malayan Law Journal, p.1 under the title "Does International Law Matter?"; and the second by the SWRD Bandaranaike National Memorial Foundation in 1991 under the title "International Law in a Changing World".

1

See Great Books of the Western World, Vol. I, The Great Conversation, Encyclopaedia Britannica, p. 64.

32

Making International Law Matter

33

members of that democracy need almost by definition to be informed about the rules and the principles which obtain in that democracy. The same considerations apply no less in regard to the global democracy of the future, which will be ruled by international law. Aristotle observed two millennia before Montesquieu that law itself is an educational force – a principle put into effect in some democracies like the United States where people are educated every day to believe in and support the Constitution. So also in regard to the global community and the global law which will order its affairs, it may truly be said that the global citizen needs to be educated to believe in and support international law. In the words of the opening volume of the Encyclopaedia Britannica’s notable series of Great Books of the Western World “What is required is that minimum understanding which is sufficient to allow world law to begin… if we aim at a world republic of law and justice we must… set up the devices of learning by which everybody can, perhaps for the first time, become a citizen of the world.”2 A republic of law and justice, and an informed public, mutually support each other. So it is, whether that republic, be domestic or international. It is in this sense that increased communication is necessary to the general public – the world citizens of the future – regarding the nature and essentials of international law. It is not a merely academic discipline the knowledge of which is to be confined to its specialist exponents. The true universalisation of international law cannot be achieved without this dialogue. This essay is structured as a part of that essential dialogue. It can do no more than paint a few broad brushstrokes, thus pointing the way to the vast amount of work that remains to be done – by international lawyers, by educationists, by governments and by all who are concerned to establish a more orderly and peaceful world. I.

The Changing Status of International Law

The seminal work of Grotius, following hard on the heels of his Spanish predecessors, had launched a new era of international law in 1625. In his De Jure Belli ac Pacis were the foundations of a new intellectual discipline that could bring peace to a disordered and violent world. Yet the centuries passed on and the reign of violence in human affairs continued unabated. International disputes continued to be determined not by the justice of a country’s cause, but by the strength of its armed forces. Since then, the discipline of international law has made great strides, but is yet far from achieving its desired objective of substituting law for war as the means

2

ibid., pp. 62-3, 65.

34

Universalising International Law

of settling international disputes. The progression of international law over the past centuries may well be depicted through the questions concerning it which successive generations have raised. (a) The 19th century question: “Does International Law Exist?” More than two centuries after Grotius, by the end of the 19th century, wellinformed observers of international affairs, both lawyers and laymen, could well have regarded the question we are now addressing as a purely academic notion. To the rational and scientific mindset of that age, a group of merely aspirational norms could not be given the false description of “law”. To many people in that century, the notion of international law was like a fairy ship upon a fairy sea: a beautiful construct of the legal imagination floating upon a sea of false assumptions. It vanished at once in the searing light of the harsh world of reality. The realistic question of the day seemed to be not whether the nations were ruled by international law, but whether indeed such a system existed at all. Some of the most eminent juristic minds of the nineteenth century took a negative view of the existence of such a body of law and offered apparently powerful intellectual reasons in support of this negative stance. In an immensely influential analysis, a leading jurist of the day, John Austin, took the view that international law was not law properly so called, and it was fashionable in high academic and professional circles to follow this line. Dreamers, Utopians, and idealists (and there were quite a few of them) might like to think such “law” existed, but the whole concept crumbled, it was said, under the searching scrutiny of the scientific legal mind. This “scientific”conclusion was heavily confirmed and reinforced by the realpolitik of the century of Napoleon, of Clausewitz, and of Bismarck. The visionaries might construct such a legal system in their fantasies, but men of practical affairs, though they might pay lip service to it, knew in every fibre of their being that international law was a myth. It might eventually arrive, at that unlikely future time when the world became a new Jerusalem, but as yet it belonged to the realm of the dreamer. The statesmen of the day were probably the most cynical in this regard, for they extracted from the doctrines of the Grotian system every ounce of power they could, to build their States majestic and their world empires, while the restraints it contained were trampled under foot whenever it suited them. Popular opinion in the Western world followed by and large in the wake of their rulers’ views, their inherent national sentiments galvanized by their rulers’ ambitions, revitalized by their propaganda, and continuously nourished by dreams and traditions of national glory. It was scarcely aware of the Grotian system. It was only dimly conscious of the implications of that demise of church authority and of a higher law which had stimulated the great work of Grotius. It received its vision of the outside world in distorted colours through the prism of the majesty and self-

Making International Law Matter

35

interest of the sovereigns of the day. So much for popular opinion in the West which, by and large, had brought the rest of the world under colonial subjection. In the rest of the world which was under that subjugation, all that public opinion perceived was the yoke and the grinding power of imperial might. What they could perceive from their point of observation was a world order tailored to serve the needs of the metropolitan ruling powers. It was a world order under which the people of the colonies had no rights against their conquerors, and the will of their rulers was supreme. They saw around them that such sparks of patriotic fervour as might have existed among subject peoples were ruthlessly suppressed from the Indian mutiny to the humblest peasant revolt in Africa. The international legal system they perceived permitted their leaders, if not already destroyed, to be found guilty of, and executed for, “high treason” to a power which they had never acknowledged and to which they owed no form of traditional allegiance. For such people to think of a world legal order based on justice and righteousness was to be blind to all the realities of which they were so harshly reminded every day. The thought that a law existed by which imperial power could be restrained was light years away. The whole spectrum of perceptions of the vital question of the existence of international law – whether viewed from marble palace or thatched hut, from imperial capital or colonial outpost – was thus largely negative. This structure of belief and perception was crowned by the work of the “scientific” positivists of the day, to which some reference was made earlier. Jurists of the highest eminence in their profession, commanding the highest recognition from the positivist minded State system of the day, exploded the myth of the “sloppy” reasoning on which “international law” was based. The jurists fortified this common belief with cold logic and hard experience, for the accepted thinking of the age was that law was not law if it was not accompanied by a sanction for its enforcement. International law lacked any sanctions, ergo international law did not exist. How could the scientific legal mind accept the concept of a “law” unless that law was based on a sanction or power of enforcement? Law worthy of the name in that scientific age, when this seemingly obvious truth was confirmed by the practice of unbridled State power, was law that was based on a power of enforcement, without which it disintegrated into nothingness. By this manner of reasoning, the whole structure of international law collapsed. Did international law exist? It was apparent to any discerning mind that it did not. Popular belief, the spirit of scientific inquiry, and official opinion all converged in reaching the conclusion that the notion of international law was a mirage. b)

The 20th century question: “Does International Law Matter?” A principle that runs through all human history is that power and privilege are

36

Universalising International Law

rarely, if ever, conceded, except under the compulsion of necessity. Wars, the like of which humanity had never known in thirty centuries of conflict, provided that compulsion in the twentieth century. They threw into focus the need for a more effective system governing the conduct of nations. The power of a concept that ranked above raw power, the force of a system that ranked above brute force, the majesty of a global order that stood above the majesty of the State – these were the thoughts that gripped even the minds of practical statesmen who, till then, had not been receptive to such ideas. This resulted, in the aftermath of World War I, in the birth of the League of Nations, the first global assembly in history of the recognized States of the whole world. But one major war was not enough to make States give up some of the privileges and autonomies which were preventing this assembly of nations from becoming an effective international instrument. Another more devastating war was required to achieve this and, out of the trauma of World War II, was born the United Nations. The Charter which bound it together achieved the status of being the supreme legal instrument effective among all the nation States of the world, thus producing the first example in human history of a universally recognized system of positive law which every member of the world community accepted as binding upon it with all the force of law. Two giant steps had thus been taken – one towards establishing a universal body of nation States, and the other towards establishing a universally binding body of legal principles. The international rule of law had descended from the realm of aspiration to the real world. The first step had been taken in the tortuous history of humanity’s quest for a legal order which was globally accepted. No longer could such ideas be dismissed as purely visionary. International law had made a quantum leap from non-law to law. The realists and the cynics then lowered the timbre of their questioning. No longer did they ask the question “Does international law exist?”, but they came down a notch and asked “Even if international law does exist, does it matter?” They pointed to the vast spectrum of arenas where power still continued to disport itself as though international law did not exist. It is an indication of how far we have travelled along the road towards the advancement of international law, that today scarcely anyone asks the question “Does international law exist?” Today its existence is largely assumed. It is a sobering thought that this giant leap forward was not the result of an ordered progression of human thought, but was forced upon the international community by the brutalities of two world wars. They had demonstrated to a disbelieving world the depths of barbarism to which civilized nations could descend when State sovereignty was free to function without the restraints of a superior legal system to which it owed allegiance. They had forced the world to come to its

Making International Law Matter

37

senses on this great issue. This is where we are now. c)

The 21st century question: “Does International Law Prevail?”

We need to take another quantum leap in the twenty-first century. We need to move from a realization that international law does exist and does matter to an assurance that, in the world of international affairs, international law does in fact prevail – that it will truly be the highest principle and power to which the nations of the world, however powerful, bend their knee. Powerful reinforcement of this idea comes from the sacred books of the ancient world, and I refer here to a beautiful encapsulation of the concept contained in the sacred books of the East. Therein, the principle is enshrined that eventually the ruler of the world will not be a universal monarch, but the “kingless authority of the law”. Monarchs and regimes, however powerful, rise and fall, but the law is constant and provides the prescription for the governance of the world. The thought is not new, but a hard struggle lies ahead if we are to achieve it. We face an enigma here, for human experience has taught us that we need a full scale war to achieve such a major progression. Yet, if we have another fullscale war, the entire structure of civilization, with all its legal achievements, could well be thrown on the scrap heap. We need to read the lessons of history. We need to enthrone international law if civilization is not to perish. It is well to recall here the wisdom of such observations as those of the outstanding 19th century historian J.A.Froude who wrote that “History is a voice forever sounding across the centuries the laws of right and wrong.” Humankind has thus far been deaf to the voice of history which has been shouting to us from the rooftops that law, not force, should be the determining factors in human affairs. Do we really need to wait for World War III to drive this lesson home? We are at the crossroads, but self-interest and national sovereignty are notions that die hard. And it is sad also that many international lawyers lend their skills to the pursuit of these goals when they might be better engaged in giving firm counsel to the governments that engage them that their national interests are best served by allegiance to the global legal order. In the next century, we will need a global order in which it will be universally accepted not merely that such a system of law matters, but that it is in fact the ruling principle of world affairs. We will need to ensure that this international legal system is not a system that exists merely in the books, but that it actually operates out there in the field. In other words, the system must not only exist and matter, but must actually prevail. Then only will international law have achieved its real stature, translating itself from visionary idealism to a practical working system. We are at present in the intermediate stage between the dream and the reality. International law cannot take this further giant step towards becoming the

38

Universalising International Law

working system of the international legal order if it remains a mono-cultural construct. It must sink its roots deep into the universal cultural inheritance of the global community, drawing its nourishment and institutional strength from all available sources and neglecting no source of inspirational value that can reinforce the universality of the rule of law and the dignity of the human person. Nor can it reach this result if it loses sight of the idealisms out of which it was born, and tends to come a black-letter discipline before its time. More than any other legal discipline, international law has its entire being in a setting of idealism and must continuously draw nourishment from it. That umbilical cord can never be severed. II.

Three Levels of Relevance

International law impinges on our lives in many ways, some broad and general, some narrow and particular. At both levels, the general and the particular, the benefits to us are very real. At micro-level, it impinges on the daily lives of every one of us in nearly every little detail – health control, passport regulations, postal services, telecommunications, labour law, migrants, refugees, human rights, shipping, aviation, trade – one could go on mentioning a whole list of them. In fact, it is literally impossible to thumb through the pages of the statute book of any country without seeing on nearly every page the impact, or potential impact, of international law, for the principles enunciated in major international conventions that have been accepted by large numbers of nation States become absorbed slowly into the Statute law of every country. Working in nearly every field of national endeavour, international law constitutes a smoothly functioning system, which simultaneously improves the quality of life within a country and enables its citizens to travel and communicate across national barriers. We take all these for granted and should not lose sight of our dependence on international law for all these benefits. At macro level, it provides the foundations of the world order under which sovereign states exist. Whether we like it or not, the sovereign state system provides the basis of current international law. This is so despite the fact that in various arenas, the absoluteness of classical sovereignty doctrine has been diluted in several significant ways. International law, as we comprehend it at present, seeks to provide for the community of nation states the sort of ordering that domestic law provides for the community of individuals who are subjects of that state. Both systems function on the basis of the equality of the individual entities which are the subject of each. But, there is yet a third level, even more significant, for international law also touches the great cosmic issues of human and ecological survival. Whether we survive into a sunlit future of peace and plenty, or drag humankind down to dark ness and oblivion, will depend, to a large extent, on how we nurse this incipient

Making International Law Matter

39

discipline of international law. In that regard, our generation, more than any other in recorded history, has an awesome responsibility such as no previous generation has faced. We are the first generation to enjoy such a plenitude of power to influ ence the future of humanity. We have a responsibility before the bar of history to act justly both to our generation and to those who will come after us. To this responsibility we should bring all the resources at our command. Prominent among those resources is the discipline of international law. Clearly, we cannot afford to neglect it. It would thus be true to say that international law matters to us at three levels – the micro, the macro, and what I describe as the cosmic. At all these levels, international law should be more actively at work for the benefit of the individual, the nation and the global community. And I come here to another central theme. It is quite clear that international law cannot work at its best at any of these levels without the co-operation of the average citizen. There needs to be a process of education integrating the citizen into the ethos and the processes of international law. As H.G. Wells so rightly observed, future history will be a race between education and catastrophe. Nowhere is this more pointedly illustrated than in regard to international law. We need a partnership here between lawyer and layman, between the specialist and the citizen of the world. No result can be achieved without a growing rapport between the two. The lawyers must descend from their ivory towers and the public must shake off the attitude of apathy resulting from the false belief that international law is a discipline above their level of understanding and potential contribution. III. Impact of International Law on Domestic Statute Books There are some who will say that each country should first attend to its own affairs before thinking of internationalism. This is mistaken thinking, for the two go hand in hand. There is scarcely any department of national activity – be it health, agriculture, immigration, company law, labour law or currency to name but a few – which is not influenced by global affairs. In criminal law, the law of evidence, the law relating to the use and trusteeship of property, environmental law, and telecommunications, international standards constantly impact on the domestic statute book, reflecting the accepted canons of international law. We cannot attend to these meaningfully in a domestic context unless we first understand the great global forces in whose interplay the basic frameworks are laid down within which these different forms of national activity operate. Moreover, economic, social and cultural rights have, at least since 1966, attained a level of equal importance with civil and political rights which were for centuries the preoccupations of Western legal and political philosophers. In 1966 when the Civil and Political Rights Covenant and the Covenant on Economic, Social and Cultural Rights were simultaneously adopted, these rights came into

40

Universalising International Law

their own and have become the subject of major legal obligations undertaken by sovereign states. In all these areas there are great international congresses and conventions whose work and recommendations, in course of time, become reflected in the domestic statute books of every country. The student or practitioner of domestic law thus puts on self-imposed blinkers if he or she attempts to study the domestic law on almost any subject in isolation from the powerful international currents of thought that are so rich in ideas in these fields. Nor will he or she be able, without these insights, to contribute a due share to the improvement of the law, which every practising lawyer should strive to do. More and more areas of regulation, such as health, labour, investment, communications, immigration and environment will be the subject of international norms, standards, practices and rules. Every country will need to reflect in its internal orderings the universal values thus accepted by the international community. Domestic legislation will need to incorporate these values. In the human rights field, in particular, there has been a massive integration of international principles into domestic law. There has been much international co-operative action among lawyers and judges to study the problems involved, and achieve practical results. Numerous international conferences on the domestic application of international human rights norms, e.g. at Bangalore in 1988, at Harare in 1989, at Abuja in 1991, and at Oxford in 1992, to mention a few, have consistently underlined this theme. Important advances were made at these conferences, and new levels of general acceptance were reached. The trend in this direction is unstoppable. Hence, if we are to serve our own country better, we must devote the requisite amount of time and study to understanding these trends without which we will not be able to make adequate or viable plans within any nation. Possibly a major planning weakness in the past has been the rather insular attitude which has cramped domestic thinking on matters which are inextricably interlinked with the realities and standards of the global milieu in which we live. IV. Some Achievements of International Law An important proof that international law matters in a practical way is that it has very real achievements to its credit. Some of them may seem only too obvious when mentioned, but it is useful to recapitulate them. The list that follows is by no means exhaustive. (i)

The outlawing of war

War, prior to the Charter of the United Nations, was not necessarily an outlawed activity. True, there were pacts like the Kellogg-Briand Pact of 1925 which sought to outlaw war, but by and large war was not seen as being contrary to the

Making International Law Matter

41

tenets of international law. On the contrary, there was a general acceptance, especially prior to World War I, that if a dispute could not be resolved by peaceful means, the natural way for the States concerned to resolve it was by armed conflict. Of course, the concept of armed conflict always ran into difficulties especially with religious principles. The Church had great difficulties in reconciling the concept of war with Christ’s teachings of peace and it was only after a difficult intellectual struggle that the theologians worked out the concept of a just war. Under this doctrine there were certain limited circumstances in which a country could wage a “just war” against its opponents. However, in many situations, it could be argued that what was in reality a war of aggression was spuriously brought within the concept of a just war. Moreover there was no neutral arbiter of what constituted the “justness” of a war. Each nation was left to resolve this for itself, and each party could argue to its own satisfaction that its war was “just.” Thus the truth of the matter was that States went to war whenever it was in their interest to do so, for in general there was no morality which regulated the actions of States. There was no firm principle that international lawyers could rely on to show that a war of aggression was illegal. Consequently, after wars of pure aggrandizement, the victors would walk away triumphant with their booty, and often to the applause of an admiring world. The will of the stronger States prevailed over the weaker who, like the helpless creatures of the jungle, lay exposed to attack by predatory creatures of superior strength. No principle or institution of international law was available to them for support or appeal. Philosophers such as Machiavelli, who recognized only expediency in the conduct of political affairs, had prepared the groundwork for such attitudes. Today the position is dramatically different. Under the United Nations Charter, a country may not go to war for the sake of pure aggrandizement and the only circumstance in which the use of force is legal is in individual or collective defence. (ii) The equality of nations All States are equal in international law, however great or small, however powerful or weak. This may sound like a truism, but though international law had proclaimed the principle before, it had not worked out the institutional mechanisms for achieving this result, even in part. Indeed, there are exceptions to this general rule, as with the special privileges given to five nations to be permanent members of the Security Council, and to exercise a right of veto. Still, the exercise of these powers is hemmed in by a variety of checks and balances, not the least of which is the enormous influence of the General Assembly, where absolute equality is the rule.

42

Universalising International Law

It is also true that, under the present institutional framework of the United Nations, some countries wield far more influence than others, but in theory no one country has greater rights than another and they all meet on equal terms at the international negotiating table and before international tribunals. This fact is in itself a great achievement of international law, for in history we would not find, prior to the League of Nations, an international institution in which all nations could speak with an equal right to be heard. It is vital to the future of international law and to the future of humanity itself that this great structure which represents the quintessence of human efforts over thirty centuries of war and sacrifice should be preserved in all its integrity. It can very easily be negatived or undermined by even the appearance of an attempt by any of the major powers to claim special powers, privileges or authority for themselves in a manner which diminishes the authority of international law or of the United Nations. (iii) Arbitration Arbitration is a very old practice in international law. It was known in the Greek city states, in the mediaeval Papacy, in ancient India, in the Islamic world; and many disputes of major importance have from time to time been settled by the decisions of arbitrators. In the 19th century, the practice grew even more, and there were a number of disputes between the United States and the United Kingdom, especially arising from the War of Independence, that were settled in this fashion without resort to war. In 1794, the Jay Treaty of Amity, Commerce and Navigation brought a number of disputes between Britain and the United States before arbitrators, and in 1871 the Treaty of Washington also dealt with a number of disputes between the United Kingdom and the United States arising from alleged breaches of neutrality by the former during the American Civil War. All of these were settled by arbitration and might otherwise have been the subject of open hostilities. Arbitration as a recognized procedure of international law was institutionalized when the Permanent Court of Arbitration was set up after the Peace Conference of 1899. It soon had many achievements to its credit. Through it, important disputes were resolved. Among its early achievements were the North Atlantic Fisheries case of 1910 between the United States and Great Britain, and the Muscat Dhows case of 1905 between Great Britain and France. Both resolved conflicts which had much potential for embittering relations between the powers concerned. The United Nations Charter also takes forward the notion of pacific settlement of disputes. Chapter VI of the Charter requires parties to a dispute to seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies, or other peaceful means for settling such disputes.

Making International Law Matter

43

Any member of the United Nations may bring such a dispute before the Security Council and the Security Council may make appropriate recommendations for settlement. Under Article 51, the inherent right of individual or collective defence is preserved in the event of an armed attack upon any member of the United Nations, until such time as the Security Council can take measures to maintain international peace and security. International law thus offers many facilities and procedures to enable international disputes to be settled by arbitration. The institutionalization of arbitration is a very significant achievement of international law. It has averted many wars. By offering the possibility of such a settlement by peaceful means, international law renders a continuing service to the cause of peace, the value of which can scarcely be estimated. (iv) Adjudication The establishment of a permanent court as opposed to mechanisms for arbitration and conciliation was an even greater advance. This only saw the light of day with the establishment of the Permanent Court of International Justice at the end of World War I. This was despite the fact that it had been dreamed of over the centuries by great philosophers and advocated by peace movements the world over. Immanuel Kant, in his Perpetual Peace in 1795, had propounded the idea of such a court. Jeremy Bentham, in his plan for universal peace, had also proposed this idea. In fact, after the end of the Napoleonic Wars in 1815, Europe was thirsting for peace and by the end of the century there were, apart from outstanding writers who foreshadowed a court of all the nations, about four hundred peace societies in America, England, Europe, and Asia, many of which advocated the creation of an international court. The work and value of the International Court of Justice are a topic for detailed and separate examination, but it will suffice to mention here that the process of international adjudication is a valuable safety valve which has on many an occasion helped avert conflict and maintain international peace. Not infrequently, when a border dispute comes before the Court, it is clear that armed men have been readied on either side of the border to engage in hostilities and that the fact of institution of the case has bought time for both parties with no loss of dignity to either. After this cooling off period, there is a greater disposition to abide by the settlement the Court indicates. Likewise, where the dispute is not a border dispute, but involves some other major issue, the institution of the case relieves the high tensions prevalent between the parties. Yet again, seemingly complex and intractable disputes have often been resolved by the parties themselves on the basis of legal guidelines which the Court hands down, indicating a framework of legal principles within which the parties are to resolve their differences.

44

Universalising International Law

An impressive example of the avoidance of armed conflict through the work of the Court is offered by the boundary dispute between Libya and Chad,3 where both parties had armed men ready for conflict. The Libyan army was in fact in occupation of the disputed territory. A decision of the Court in favour of Chad resulted in both parties meeting on the disputed territory, the occupying army formally withdrawing, and the flag of Chad being ceremonially hoisted on the disputed territory. This was a victory for international law if ever there was one, and it was a pity it did not attract the media attention that would have been given to a violation of the Court’s order. Due to such an imbalance in media coverage such achievements of international law remain largely unknown. It is the failures that seem to attract the headlines. Many more such examples can be cited and it should be borne in mind that small conflicts breed bigger conflicts, and these can sometimes lead to conflicts within the entire region. The snuffing out of every conflict in those initial stages is a signal service rendered to the cause of global peace. An instance of a framework of guidelines offered by the Court becoming the basis for a solution worked out by the Parties is the case between Hungary and Slovakia relating to the waters of the Danube.4 Instances of a settlement being facilitated by the matter being brought to the Court are plentiful. Two illustrative examples are the Case Concerning Phosphate Lands in Nauru5 and the Case Concerning Passage through the Great Belt (Finland v Denmark).6 In the former case, a claim by the island of Nauru against Australia for compensation for damage caused by phosphate mining during the period of trusteeship, which had proved intractable for years, was settled during the pendency of the case before the Court. In the latter case, a dispute relating to the construction of a bridge by Denmark over the Great Belt, hitherto intractable, was settled in a manner acceptable to both Parties, after the Court made an interim order. (v) The work of specialist organizations International law has penetrated in such depth and detail into various areas of activity that a number of specialist organizations have arisen to administer and develop it. Out of a vast array of such organizations, it will suffice to mention two for illustrative purposes. The International Labour Organization (ILO) has spread the benefits of international law into areas it would never have reached otherwise. The original constitution of the ILO was embodied in the peace treaties that ended World War I. In the 3 4 5 6

I.C.J. Reports, 1994, p.6. Gabcikovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997, p.7. I.C.J. Reports 1992, p. 240. Finland/Denmark, I.C.J. Reports, 1991, p.12.

Making International Law Matter

45

inter-war years, a number of international conventions were worked out on such matters as working hours, female labour, unemployment, compensation, and industrial safety. International labour codes issued in 1939 and 1951 embody a number of basic principles relating to labour which are obligatory on all member States. The ILO represents a well accepted means by which the viewpoints of workers all over the world can be built into the norms of international law. No employers anywhere can afford to distance themselves from its processes. Labour everywhere has been benefited in microscopic detail in regard to its terms of service by the work of the ILO. Millions of workers the world over are thus the daily beneficiaries of the international legal system, though they may be little aware of it. The World Health Organization (WHO) likewise has formidable achievements to its credit, which would have been totally unattainable without it. These include the eradication and control of many diseases that were the scourges of mankind. Its organization is too well known to need recapitulation. No health workers anywhere in the world can afford to ignore the work and the standards laid down by WHO. The organization of such entities as ILO and WHO would not have been possible but for the overarching constitutional framework provided for them by modern international law. They foreshadow the ways in which the world community will organize itself in the future to face problems which are common to all nations, and can only be addressed by a universal co-operative effort. Such organizations will extend their work and will form a feature of the international constitutional landscape of the future. They are extremely significant for the governance of the world order of the future, for collectively and progressively they are taking over many of the functions formerly administered by departments of national governments. A world government is still far away, but faint outlines of it are discernible in these specialist structures functioning representatively and within an overarching framework of international law. (vi) The Law of the Sea The Law of the Sea is another field of achievement. From the Law of the Sea Convention in 1948, through to the Montego Bay Convention of 1982 down to this day, it has been a particularly active field of development in international law. The law of the sea deals also, of course, with the resources of the seabed which are now the common property of all humanity, and there are a number of legal principles worked out in relation to sub-oceanic minerals, pollution of the oceans, economic zones and fisheries zones. The riches of the seabed include sedentary fish, large amounts of living marine deposits, as well as the mineral deposits in the sea. All of these are now the subject of international law. Otherwise, they would, so to speak, be up for grabs by any nation that has the power and the

46

Universalising International Law

technology to take them away. International law has worked out a variety of principles applicable to them, to conserve them for the benefit of humanity. It is easy to take for granted the principle that the high seas belong to all nations, and are not the particular preserve of a few. International law has established that, but it places this principle in perspective if we remember that, at one time, there was an attempt to advance the concept of a closed sea – mare clausum – to preserve it for a few powerful nations. Writers like Grotius broke through that and established the principle that the sea belongs to everybody. We are still a long way from achieving a totally equitable distribution of these resources, but international law has travelled far along this road. A landmark development here was the acceptance of the principle of the common heritage of humankind, in relation to the riches of the sea. Just as it is useful to call to mind now the principle of the closed sea which some nations once sought to establish, it is useful also to note that, unless we are vigilant, we could again face a de facto principle of a closed sea in the sense that the immense riches of the seabed must not be the preserve of the few nations that have the technology to exploit it, and extract its riches before the less developed nations achieve the technology to share this common resource. The law of the sea has principles and mechanisms to meet this situation, but their implementation is a problem that needs concerted attention. Unless the public of the less developed countries is aware of this problem their rights to this vast resource will be lost by default. (vii) Space Law Space, likewise, is another field of achievement. Imagine what would have been the position if there had been no international law relating to space. In the old days, there was the principle of international law that whatever was not the subject of existing occupation could be taken over by the State that became its first occupier. It was res nullius – the property of nobody. If, for example, there was an abandoned island that nobody was in possession of, any of the great powers that came to it and found it abandoned could take it on the res nullius basis – that is, that it was ownerless land and therefore that the person or persons who appropriated it became the owner. A company of marines would land on an island, walk around it firing a few volleys, while the indigenous occupants ran away into the bush, and the captain would thereafter read a proclamation that the land was now the property of His Imperial Majesty the Kaiser or Her Majesty the Queen of the United Kingdom, and thereafter international law would recognize that territory as being the possession of that sovereign.7 If the res nullius principle had been appli7

For such an instance, see the author’s Nauru : Environmental Damage under International Trusteeship, 1992, Oxford University Press, p. 37.

Making International Law Matter

47

cable, in similar manner, in relation to celestial objects, the space age would have seen another race for colonies, having regard to the vast potential of celestial bodies for providing facilities, resources, raw materials and strategic locations for earth domination. One can well imagine what would have happened in relation to the moon, for example - or what might happen in the future in relation to Jupiter. But all these conflicts have been avoided in anticipation through the work of international lawyers. The forward-looking orientation of some international lawyers is not always quite understood by their down-to-earth colleagues. When in 1965, Wilfred Jenks, one of the outstanding lawyers of the time, submitted an article on International Law and the Moon to the editor of the International and Comparative Law Quarterly, some lawyers of the time were doubtful of the propriety of publishing on a topic so unrelated to reality as rights upon the moon. The suggestion was that a reputable journal should confine itself to the world of practical legal relations rather than indulge in fancy speculation. This article was nevertheless published and shortly thereafter the critics were silenced when the Sputnik was launched and the space age rocketed into the world of reality. That illustrates the way in which international law sometimes anticipates real problems although they may seem farfetched at the time and, by thinking of them in advance, prevents disruptive situations from arising. Just as such thoughtful anticipation by international law has avoided chaos in space exploration, so also there are many developing areas of international activity where conflicts have been avoided through forward-looking thinking in international law. In relation to the use of space, there is now such a great volume of international law that it is, in fact, a department of law in itself, with encyclopaedic texts upon the subject. Indeed imaginative writers on international law have even envisaged what is to happen if and when we encounter other forms of life in space. What should be our mode of approach to their laws and customs, should they have any, and what force do we accord to our own laws and customs in our dealings with them? The problem may sound academic now, but who can predict when fancy will turn into reality? (viii)Human Rights Human rights is another of the great achievements of international law and one of its fastest developing areas. Contrast the post-World War II situation with the pre-World War II situation. Earlier, the traditional attitude towards what we today call human rights was that what happens within a sovereign’s domain is that sovereign’s exclusive concern. If that sovereign wants to persecute his subjects, if torture is rampant in that society, well, what’s to be done, it’s too bad! That was a matter within the domestic jurisdiction of that sovereign. People outside may, of

48

Universalising International Law

course, express their concern and may not like what the sovereign was doing. The sovereign, however, was in no way obliged to take heed of such external protests. There was no enforcing mechanism available for those who were protesting because what happened within the sovereign’s domains was nobody’s business anywhere. Today the human rights of anybody anywhere would be everybody’s business everywhere. The walls of sovereignty have been penetrated as far as human rights are concerned. And, through the various human rights covenants that have now gained acceptability throughout the international community, there is a vast amount of investigation that is done in relation to denials of human rights in all jurisdictions. The penetrating reach of human rights principles is universally accepted. The Universal Declaration of Human Rights, 1948, was, at the time it was passed, only a tentative effort by the international community to lay down some norms in relation to human rights. Significantly the phraseology was in terms of a Universal Declaration. It was not a covenant, it was not a treaty. It was only a declaration of aspiration. But because it gained such wide acceptance and increased in stature through the years, there is today no jurisdiction in the world where the Universal Declaration would not be treated as authoritative. When I commenced practice at the bar in 1948, the year of the passing of the Universal Declaration of Human Rights, we young lawyers would attend the Supreme Court and listen to the great advocates of the day presenting their cases. I remember, shortly after the passing of the Universal Declaration, one of our foremost advocates citing the Universal Declaration to one of the Supreme Court justices in relation to his case. The Judge responded: “Are you seriously suggesting to this court that that is the law of the land?” That was a possible court reaction in 1948 or in 1949, which no doubt would have been duplicated in many other jurisdictions. Today there is possibly no judge in the world who would make such an observation. Human rights have progressed so far since 1948 that there is no country, no sovereign, no jurisdiction that can officially deny the applicability of the minimum standards of preservation of human rights that are enshrined in the Universal Declaration. What is more, the rather broad rules set out in the Universal Declaration have been made much more specific in two Covenants (not mere Declarations) that were passed 18 years thereafter – the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those two documents together form a comprehensive exposition of the two sets of human rights – the civil and political on the one hand, and the economic social and cultural on the other, which are not merely declarations but are, in fact, treaties because they are covenants or agreements between nations. Countries who are parties to those Covenants have accepted their obligation to introduce the provisions of those Covenants as far as possible within their domestic legal systems.

Making International Law Matter

49

In many nations, legislation has been enacted to ensure that domestic law follows the principles contained in these Covenants. To take an illustrative example from just one jurisdiction, Australia’s Law Reform Commission Act of 1973 requires the Commission “to review laws to which the Act applies, ensuring as far as practicable that such laws and proposals are consistent with the articles of the International Covenant on Civil and Political Rights” (section 7). Here is a concrete instance, which can be replicated in many areas and in many jurisdictions, of the predominant influence accorded to the norms of international law in formulating the specific rules of domestic law. (ix) Constitutional Law There is another important achievement growing from human rights. That is that a number of constitutions of the world, especially the former colonial countries, that acquired constitutions after 1948, model their constitutions to a large extent on the provisions of the Universal Declaration of Human Rights which had also influenced the European Convention for the Protection of Fundamental Rights and Freedoms. Many colonial constitutions thus took their provisions from the European Convention or from the Universal Declaration. Consequently, the constitutions of dozens of countries in the world today owe a great deal to international law developments in the human rights field, as contained in the Universal Declaration of Human Rights. We find to this day that there is in domestic law a principle of liberal interpretation of constitutions dealing with human rights. One of these principles is that a constitution containing human rights terms is to be given a “generous and purposive construction”. (x) The Abolition of Apartheid Apartheid was one of the most open and widespread denials of basic human rights which ever made its way into the statute books of any country. It was deeply entrenched at every level of the administrative, legislative and judicial structure of South Africa. Other denials of basic rights, even worse than apartheid, have of course existed, but rarely with such open effrontery as to have them enshrined in statute law and judicial decision. It needed a concerted global effort to bring down the system and that effort would have been impossible without the active assistance of international law. There was a telling demonstration of this when sanctions were imposed on South Africa, so powerful and effective as to bring the apartheid regime to its knees. The International Court of Justice declared the apartheid regime and its occupation of Namibia to be illegal. International law evolved norms for discouraging any activity involving apartheid and a machinery for handling it internationally. Without the active assistance of the international legal sys-

50

Universalising International Law

tem, the international community could not have worked out organizations for combating apartheid, or marshalled global public opinion to the cause in a manner which would have been inconceivable before. The seemingly impregnable structure of apartheid crumbled under these combined pressures, and an indispensable part of the apparatus that brought it down was the weaponry of international law. (xi) Humanitarian Law Cynics may raise the question whether war, being by very definition the negation of accepting the rule of law, can subject itself to law. This is an important question but, here again, what is remarkable is the fact that so many nations are prepared to accept that a whole array of rules should be followed by their officers and men in the field and have, in fact, incorporated these rules in their military manuals. The conduct of troops on the battlefield, the handling of the areas that are taken over by an army of occupation, and the handling of prisoners of war are all the subject of the great department of international law known as humanitarian law. Philosophers such as Immanuel Kant gave much thought to the cruelty of warfare and helped in creating a climate of opinion that would help to mitigate some at least of its cruelties. Indeed they poured scorn on the unconcern and cynicism of the rulers of the day who were the cause of these cruelties. For example, Kant observed that two sovereigns who wage war against each other are like two people playing a game of chess in the comfort of their homes. The sovereigns, each ensconced in the security of his palace, each with servants waiting on him hand and foot, each comfortable and well-fed, move their battalions as a player moves the men on a chess board. The sovereign does not feel the anguish of the poor soldiers fighting for him on the battlefield, far from home and loved ones. The soldiers may be shot and maimed and killed and their families pauperized, but, as far as the sovereigns are concerned, they proceed with their little game of chess and, if they lose this game, well, they’ll clear the board and start another game tomorrow. That was the picture Kant painted of how sovereigns handle their military affairs. The work of the philosophers was reinforced by the work of concerned humanitarians. An outstanding example of this was the work of Henry Dunant. The Battle of Solferino (1859) involved a terrible massacre on both sides, of the troops of Napoleon III and the Austrian Emperor Francis Joseph. There were several thousands killed on each side. It so happened – and here is another golden moment in history – that Henry Dunant, the founder of the International Red Cross, was in the neighbourhood and visited the battlefield of Solferino. He saw these thousands of dead and dying soldiers with nobody to help them, no medical services, no assistance whatever, just living out the remainder of their lives in agony. This is what led him to work on international humanitarian law. This led to

Making International Law Matter

51

the Red Cross Movement. It made notable progress and in 1864 there was the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field – the first great humanitarian law document, followed in 1899 by its adaptation to warfare at sea. It was improved in 1907 and 1929; and in 1949, there were four Geneva Conventions which are still in force relating to the treatment of the wounded and sick on the battlefield, the wounded and sick at sea, prisoners of war, and civilians. The work of Henry Dunant offers much inspiration in showing how far the work of one concerned individual can take us in the struggle to minimize human suffering. Without delving into the details of the treaties which embody these principles, I would draw attention, in particular, to the Hague Convention of 1907 respecting the laws and customs of war on land, one of the earliest major documents in this field. Picking up strands of thought that had been present in many cultural traditions, it imposed very clear limitations on the right of belligerents to attack and injure each other. It enunciated the cardinal general principle that the right of belligerents to adopt means of injuring the enemy is not unlimited (Art. 22), and proceeded to lay down numerous rules relating to treatment of prisoners-of-war and certain methods of killing and wounding such as the use of poisoned weapons. It forbade plunder of occupied territory and required the preservation of buildings dedicated to religion, art, science, charitable purposes, historic monuments, and hospitals. This Convention was an enormous advance on anything that had before been agreed upon by major States in human history. So also was the Protocol on the Prohibition of Asphyxiating, Poisonous or other Gases and of Bacteriological Methods of Warfare (the Geneva Convention of 1925). These are not matters of purely abstract doctrine, but have actually been built into the military manuals of the great powers. For example, the American military manual or the British military manual, build these rules of the Geneva Conventions into the instructions given to officers and make them part of their code of conduct even in the midst of hostilities. By any standards all of this represents tremendous legal achievement. Over 400 articles in these Covenants embody ways in which conduct on the battlefield and in time of war is heavily regulated by international law. (xii) The creation of war crimes tribunals A noteworthy recent advance has been the creation of war crimes tribunals, with jurisdiction to try and convict individuals guilty of war crimes. After World War II, the Nuremberg tribunals were set up to try some of the Nazi war leaders, and a similar tribunal was set up in relation to Japan. Yet, these tribunals were in a sense victors’ tribunals, for they were set up by the victorious powers to try the leaders of their defeated opponents.

52

Universalising International Law

An advance was needed upon such arrangements. Tribunals were required which were appointed by the entire international community, and were mandated to administer justice according to international law. That situation was reached when the Yugoslav and Rwanda War Crimes Tribunals were set up by the United Nations, with United Nations judges administering them. These tribunals were hopefully to be the precursors of a general International Criminal Court, and meaningful steps have now been taken by the international community to set up such a court. When that Court begins to function, with general jurisdiction to try war crimes as opposed to an ad hoc jurisdiction to try war crimes in some particular region or some particular war, the international judicial process would have moved far towards achieving a meaningful apparatus for implementing the international rule of law. These are just a few illustrations selected from a vast spectrum of achievements of international law in order to illustrate its progress on many fronts. True, these are not always observed, but they command universal recognition and thus tend often to be observed. Likewise their violation attracts universal condemnation. The fact that international law has addressed these major questions should help to still the criticism that international law is a purely academic exercise unrelated to the practical world in which we live. V.

Current Crisis Areas

While international law has chalked up many achievements to its credit, it is still struggling desperately in many crisis areas to achieve even a semblance of order and justice. This affords an important illustration of the theme that international law cannot function alone, in isolation from broad-based public understanding and support. The growing complexity of world affairs throws up crisis situations whose nature and magnitude are such that they are practically insoluble unless the principles of international law are immediately brought into application. But they cannot be brought into application without the active co-operation of people of goodwill worldwide. Those people need to know not only that such crises result from moral wrongdoing, but also that they are the result of the violation of rules of international law that are binding on governments and people everywhere. These illustrations show that international law cannot function effectively unless at least its existence and its binding nature are known to people everywhere, for then only will the people be able to invoke it actively and contribute their share to the growth of its effectiveness. From a formidable list of current crisis areas, attention may be drawn, very briefly, to a few illustrative examples.

Making International Law Matter

(i)

53

Refugees

Practically every day we read in the international news of the problems of refugees in many parts of the world. They go streaming in their thousands across national borders, leaving behind their lifetime’s memories, their possessions, and sometimes their loved ones who are too aged or infirm to travel. The problems of refugees are not their problems alone. They are the problems of the entire civilized world, for we cannot, with any claim to decency or civilization, leave them in the filth and squalor of the refugee camps and the cloud of uncertainty that hangs over their entire future, without some form of international assistance. If we have an international legal system, it should have some form of relief to offer to them, but in this regard, the relief it offers is extremely inadequate. The problem of refugees is as old as human history, but it is only in comparatively recent times that a body of international law has been developed in an effort to protect them. The 1951 Convention and the 1967 Protocol relating to the status of refugees prescribe required standards of treatment. We cannot enter into details here, but it will be sufficient to observe that the absolute discretion of States to control the entry of foreign nationals has been significantly limited by these developments in international law.8 The United Nations has set up the Office of the United Nations High Commissioner for Refugees to assist them. We all know the tragedies of Somalia, Vietnam and Yugoslavia. Though the absolute discretion of States to refuse entry of any foreigners into their countries has to a considerable extent been curtailed by international law in relation to refugees, this body of law is still far short of the level of achievement required of it and it is very much a crisis area. We also have a related problem foreshadowed for the future – very much as Jenks foreshadowed the law of the moon for the future – the problem of environmental refugees. It is said that with global warming and the rising of the levels of the sea, there might well be a number of low-lying islands that might be flooded out in another 50 years’time, when the occupants of those islands may have to be refugees seeking admittance into other States. The problem of environmental refugees may be with us even sooner than we expect. We must not be caught unprepared. (ii) Migrant Workers Migrant workers offer us another example of a crisis situation. This is of great interest to the average citizen, especially in the developing countries. There is a natural tendency for labour to seek markets in which it commands better wages and the more prosperous economies tend to require such migrant labour. The result has 8

See, generally, Guy S. Goodwin-Gill, The Refugee in International Law, OUP, 1990.

54

Universalising International Law

been a vast migration of labour to the more affluent countries. All of this was highlighted in the recent Gulf War. Hundreds of thousands of migrant workers were displaced and in terrible straits as a result of the hostilities. There would be scarcely a home in some of the smaller Asian countries which does not have a friend or relative who has been working in the Middle East. The rights of those people in their host countries are rights that concern us all. If they are illtreated or become the victims of war, it is our own problem as well. Hence the international law relating to workers, and migrant workers in particular, is an area of real interest and concern to us, however far away we may be. Even in the more settled conditions of Europe, various acts of discrimination are reportedly practised on migrant workers from Turkey, the Middle East and other countries. There is here the problem of the rights of migrant labour. Are they entitled to equal treatment with the indigenous labour of their host countries? Should they be permitted to be the subjects of social and economic discrimination? Is there a special duty on the host State to see to such matters as the adequacy of their housing and the education of their children? The humblest citizens of the poorest countries often have relatives who are workers in a more affluent country and remit money to their families to keep them above want. The position and rights of such workers are thus a matter of immediate concern well beyond their country of residence, and it is through the development of international law that these concerns can be met. (iii) Torture A third crisis area is the area of torture. We are sometimes inclined to feel smug and comfortable, deluding ourselves into the belief that we have left the era of Nero far behind us. But while I’m talking to you here, somebody somewhere in the world is facing his torturer and about to be subjected to the most excruciating tortures imaginable. And he may well be asking, “In this civilized world of the dawn of the 21st century, what is humanity doing to protect me?” As he is about to undergo the most gruesome tortures, can we take no notice of his plight, on the ground of our helplessness to prevent it? We have a tool in our hands, but we do not use it adequately if we keep silent in the face of these barbarities. That tool is international law, largely ineffective because it is not within the normal contemplation of the average world citizen who is shocked by these brutalities. Since tortures as cruel as any that were practiced in the time of Nero still flourish in many parts of the world, there is a duty on all citizens to press their governments to do what lies in the power of the international community to halt these negations of basic humanity. A recent report of Amnesty International draws attention to what it describes as a worldwide epidemic of torture practised in dozens of countries across the world. Yet, in many parts of the world which publicly abhor torture, there are commercial organizations which produce implements of torture

Making International Law Matter

55

of growing sophistication and even advertise and illustrate their wares in internationally circulated catalogues. The concerned citizen – and the concerned lawyers – remain largely silent regarding such iniquities. Similar considerations apply regarding the sale of arms to régimes which are known to indulge in torture practices to keep themselves in power. There is surely something lacking here if we, as concerned world citizens in this opening decade of the 21st century, can remain unconcerned with the fact that a fellow human being somewhere in the world is at this very moment confronting his torturer and wondering why and how this phenomenon is possible in this day and age. There are many to be blamed for this, but it should be noted that the average world citizen who does not concern himself with this phenomenon is also contributing to it through his complacency. Complacency and inertia are the greatest friends of iniquities of every description, and this may be particularly culpable when a weapon is available to combat those iniquities – namely international law. As observed earlier, we are at a stage in history never attained before, where human rights anywhere become the concern of world citizens everywhere. Through international law, we have broken through the barriers which prevented human rights violations in one country being scrutinized by those outside its borders. That excuse of inscrutability which was available under the international law of the pre-war years is no longer available. An important reason for citizen inaction is a lack of awareness of the applicable rules and principles. It is important that every citizen should be aware, not only of the provisions of the Universal Declaration of Human Rights, but also of the two important international covenants which followed 18 years later in 1966 – the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. The United Nations has on more than one occasion given its attention specifically to the question of torture. Article 7 of the International Covenant on Civil and Political Rights states that no one shall be subjected to torture or to cruel, inhuman and/or degrading treatment or punishment. In 1975 the General Assembly passed a declaration on torture and the next year opened for signature a convention against torture and other cruel, inhuman or degrading treatment or punishment. It is essential that such basic information be brought to the notice of children in schools so that when it comes to their turn to take their rightful places as citizens of the world they will know the minimum standards that have been agreed upon. It is important to realize that, but for the concern of the people who were not immediately affected by them, such objectionable practices as apartheid would still have continued unabated. We can achieve a similar result in relation to torture if there is a greater awareness of the widespread nature of the practice and of the well-entrenched principles

56

Universalising International Law

of international law which forbid such treatment and enable it to be brought before major world assemblies, committees and tribunals. The negative attitude that the torture of somebody else somewhere else in the world does not affect us will only enable torture to continue and flourish. The poet John Donne (1573-1613) writing in an age of openly recognised despotism and torture was referring to these mental attitudes when he described indifference to the suffering of others in terms that “No man is an Island entire of itself; every man is a piece of the Continent, a part of the main … any man’s death diminishes me, because I am involved in Mankind; and therefore ask not for whom the bell tolls; it tolls for thee.” This is not only a motif for the international law of the future. It also has deep relevance for the world public of our time and for the indifference often shown to others’suffering till it strikes one’s own home and family. The citizens of the world of the 21st century, will have no option but to think of their fellow human beings who may be in distress in this way and examine the ways in which the powerful instrument of international law can be used for the alleviation of that sort of suffering. Children in schools need also to be reminded that when a person is tortured, it is not only the tortured person who suffers – the torturer also loses some of his humanity and the result is a general debasement of standards as well as of people. A telling demonstration of the power of disinterested citizen action is provided by apartheid. In relation to apartheid, people could well have said, “Well, it doesn’t happen in my country, it happens in distant South Africa, so why worry?” But it was as a result of concerted action and the use of international law throughout the world that apartheid began to be curbed. Likewise, torture, and whatever other inhuman practices might exist, can be curbed if we take a greater interest. If we do not, we are contributors by default. In the days when slavery was a recognized institution, many nice and wellintentioned persons took up the position that they did not whip or punish slaves, that they did not force them to do unpleasant tasks and that they themselves were quite kind to their slaves. At the same time, there was no gainsaying the fact that they did tacitly approve of, and took the benefits of, the institution of slavery, without coming out into the open and condemning it. Now, if one is apportioning moral guilt, a person in that situation bears as much guilt for the oppression that takes place as he who wields the whip, because that person has seen something that is patently wrong and while doing nothing about it, accepts the benefit of the entire process. Indeed, the person who wields the whip is only the agent, whose principals are the genteel and gracious members of society who take the benefits of the system without protest. So, let us not be in that position in our time and age.9 9

For a fuller discussion of institutionalized cruelty, see C.G. Weeramantry, Justice Without Frontiers, Kluwer International, 1997, Vol. I, Ch. 9.

Making International Law Matter

57

(iv) Slavery We have dealt already with torture, an institution which many would think belongs only to the pages of history but which, as we have noted, is a very relevant phenomenon in the world of today. So, also, is the case with slavery. One of the greatest indignities to which a human being can be subjected is to be treated as an object of property rather than a person in his or her own right. Nevertheless that is the condition in which hundreds of thousands of fellow world citizens find themselves today. The Human Rights Commission’s Working Group on Contemporary Forms of Slavery reported extensively on this subject, on 23 August 199010 covering such topics as the slave trade, the sale of children, child prostitution, children in armed conflict, child labour, and debt bondage. The minute and heart - rending detail with which these topics were documented obviates any excuse for complacency on the part of the international community. Going back to basics, the Slavery Convention of 1926, defines a slave as a person in a position where“ rights of ownership are exercised over him”. The entire world is agreed that such a situation is not only intolerable but totally contrary to the basic human dignity which is the foundation of the entire structure of human rights. It has been the subject of concerted condemnation in a number of international documents going back as far as 1815 when reference was made at the Congress of Vienna to the need for its abolition. Later documents, such as the General Act of Berlin of 1885 and of Brussels in 1890, the Geneva Convention and Protocol of 1953, the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery in 1956, and the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 1950, are other examples. In the face of all of these no citizen of the world can remain complacent while this practice prevails. Yet it is precisely because of this complacency that international law is not moved into full gear to end it as undoubtedly it has the power to do. In the result men, women and children are still bought and sold in several countries, exposed to brutal treatment, physical punishment of a severe nature, torture and confinement. The interests of their “owner” are paramount and ride roughshod over every principle of human dignity. A very distinguished former member of the International Court, the late Judge Manfred Lachs, in an article entitled “Slavery: The Past and the Present”11, has drawn attention to the fact that bondage on tropical plantations, indentured labour and other kinds of servitude still exist in total violation of several international documents and that “very frequently governments and the public seem to forget or 10 11

E/CN4/Sub2/1190/44 Humanitarian Law of Armed Conflict: Challenges Ahead, Astrid J.M. Delissen and Gerard J. Tanja (eds.), Martinus Nijhoff Publishers, 1991, at p. 613.

58

Universalising International Law

ignore them, yet only recently they were rediscovered in some North African countries ...”. Judge Lachs observes that the greatest danger of the continuance of these prohibited practices lies in connivance.12 This being the case, concerned citizens in this age of internationalism need to make themselves aware that this phenomenon does exist and to invoke through all the instrumentalities available to their governments the international means of ending these practices and, if possible, of compensating those who have been the victims of such misfortune. We do not here have to enter into the long and sad history of human slavery, perhaps one of the foremost instances of man’s inhumanity to man. Slavery flourished in the past because many well-meaning and God-fearing people who had nothing to do with the cruelties of the slave trade were prepared to shut their eyes to it. It was abolished because concerned people began to bestir themselves and move actively towards its abolition. In the same way, unless we are prepared to be party to the perpetuation of this indignity, we must interest ourselves now in the activities of international agencies that concern themselves with contemporary forms of slavery. All these will remain ineffectual unless the world community interests itself in this phenomenon which concerns all human beings everywhere. (v) Child Exploitation Child abuse is practiced to such an extent that the Working Group on Contemporary Forms of Slavery has estimated that there are 300 million children in the world who are the subjects of bondage and hard labour which are tantamount to slavery. They are sold by their parents owing to dire poverty but, once they enter what is ostensibly service or employment, they become slaves in reality. And 300 million children across the world are being abused in that way – child prostitution, child pornography, children being conscripted into the armed forces under the age of 15. Indeed, the Working Group has estimated that there are 200,000 children who are conscripted into the armed services under the age of 15. Now these are all problems, human problems, crying out for attention, and without international law there is little we can do about it. Without international cooperation there is little international law can do about it. The 1989 Convention, establishing international rights for children, creates three new categories of war crimes affecting children which would be prosecutable before an international criminal court, but a vast amount of work needs to be done before such provisions become effective. In 1999, according to UNICEF statistics, 300,000 children under 18 were serving as regular soldiers ,g u e rrilla fighters,spies, porters, cooks and sexual slaves 12

See, further, ECOSOC Resolution 1982/20 of 4 May 1982; ECOSOC Resolution 1983/30 of 26 May 1983 on the suppression of traffic in persons.

Making International Law Matter

59

in conflicts underway in 50 nations. Moreover, the lightness of modern weapons makes them ideal for use by children. Over the last decade, these wars have claimed the lives of more than two million children, left six million maimed and permanently disabled, and left 10 million with serious psychological trauma.13 (vi) Indentured Labour Indentured labour, likewise is often akin to slavery. If an indentured labourer leaves his employment and tries to break away from his bond, he is subjected sometimes to criminal punishment. It is slavery masquerading under the guise of contractual employment. Yet hundreds of thousands of people around the world are subject to it. ILO and other organizations are doing the best they can to counter it, but it stubbornly persists. (vii) Environmental Law Environmental law is another crisis area. I need hardly elaborate upon it. We all know of the depletion of the ozone layer, global warming, extinction of species, and the pollution of the oceans, rivers and lakes of this world. We have used our inheritance of land and water spaces throughout the world as if they were our private preserve, the absolute property of this generation, when we are in fact trustees for hundreds of generations yet to come. Unless we look after our environment, it is possible that, through environmental degradation, we might damage our eco-system and we might drag even the future of humanity down to destruction – because there is, especially in such fields as nuclear waste, nuclear reactors, nuclear armaments, the destruction of the rainforests, the pollution of the seas, and the damage to the ozone layer, the possibility of irreparable and irreversible damage to the life support system which sustains us all. The dramatic way in which we are ruining our environment in the 20th century has been likened to people playing musical chairs on the decks of the Titanic. While we are all going down, we continue to jostle for positions on the decks of the ship. The Stockholm Declaration on the Environment, with its 26 principles which offer a foundation for international environmental law, ought to be the subject of better knowledge throughout the world. They could well be brought to the attention of children in schools as a reminder to them of their duties to the world. They also contain an important philosophy for our time as when Principle 1 stresses that man has a fundamental right to freedom, equality and adequate conditions of life, not in the abstract, but in an environment of quality that permits a life of dignity and well-being. All the other human rights we speak of become worthless if the environment is so damaged as to deny this quality of life.

13

Herald Tribune, August 9, 1999.

60

Universalising International Law

(viii) Unequal Contracts Foreign investment is another field where much work is required because there is throughout the world the problem of unfair contracts between investors or investor countries and debtor countries. There are numerous ways in which those contracts can affect human rights to the extent of even causing human rights deprivations in those countries and sometimes even revolutions. Those contracts are drafted by lawyers and it is only through a proper knowledge and use of international law that they can be countered. In an age of increasing economic power and of the global marketplace which is steadily increasing its grip on every aspect of the internal life of all countries, this imbalance causes severe problems of malnutrition, exploitation of labour, environmental damage, foreign debt, loss of national autonomy, and human rights deprivations of various kinds. They tend to pass unnoticed because they present the appearance of agreements made under firm contractual conditions. This is an area which needs the most careful attention. (ix) Terrorism All the world over the ugly spectre of terrorism is rising to new levels of sophistication and effectiveness. Weapons which were formerly the preserve of sovereign States are now becoming the regular tools of terrorist organizations which increasingly have the ability to purchase them, as well as the expertise necessary for their manufacture. In conjunction with drug running, the illicit arms trade has risen to serious proportions, and the day is not far distant when even weapons of mass destruction may fall into their hands. Moreover, terrorism, already a worldwide phenomenon, has worldwide linkages, with terrorist organizations in different global regions acting in unison with each other, and exchanging valuable data and even weapons.14 International law has traditionally turned a blind eye on the illegality and human rights violations that result from the weapons trade generally, and is now reaping the harvest of destruction which has resulted from its neglect of this area in the past. Powerful arms lobbies across the world play a major role in preventing public opinion from asserting itself to end this menace. International conventions on terrorism are long overdue, with the requisite international machinery to create the necessary international co-operation to stem the terrorist trade. This is a crisis area of international law which is in urgent need of concerted attention. Just as international law has great achievements to its credit, it thus has major problem areas as well in which its entire apparatus of principles and procedures is 14

Since these lectures were delivered, the events of September 11, 2001 in New York have focussed the attention of the world public on the importance of stamping out terrorism.

Making International Law Matter

61

proving helpless in the face of global forces which are fast running out of control. International law needs to be revamped if it is to be more effective in such areas, and this makes it necessary to survey some of the directions which international law needs to take in the future. VI. Important Future Trends International law is now in a most exciting phase of its development. Certain trends are clearly discernible and, as this century gets under way, they will provide some of the contours of the new international law which will rule in the next century. Without development along these lines international law will prove quite inadequate to the many tasks which await it. Here are some of them. (i)

Multiculturalism

As we progress into a new era more closely governed by international law, international law itself will need to be adapted to serve the needs of the changing global scene. International law will need to be made more truly an international body of principles and not the intellectual product of just one or two of the main streams of civilization. The need for this is reflected in the Statute of the International Court of Justice which stipulates that its judges shall be representative of the principal legal systems and the main forms of civilization in the world. The principal legal systems would include among others the great traditional legal systems based upon the principal world religions. Buddhism, Hinduism and Islam have each contributed a profound philosophical input towards the concept of universalism, and international law will need to tap into those rich reservoirs in the future to a greater extent than it has in the past. Similarly the cultural traditions of China, the cultural backgrounds of the Pacific, of Africa, and the Amerindian peoples all need to be explored. The seeds of many of the basic concepts which are the foundations of modern international law are to be found in nearly all the cultural traditions of the world, and we could dwell at length on Hindu, Buddhist, Chinese, Judaic, African, Amerindian, and Pacific traditions relating to some of the most basic concepts of international law (such as peace among nations, and the peaceful resolution of disputes), as well as some of the most advanced (such as principles of environmental law and sustainable development). It is important for world citizens of the future to know that international law is not a monocultural construct, but a universal inheritance, and this way its appeal to the global public of the future will be greatly enhanced. This is not merely an academic exercise, for all these great traditions have an important practical role to play. To cite just one example, these traditions have

62

Universalising International Law

much to offer on the problems of the environment, which are such an urgent and immediate threat to human survival. All of these traditions have something important to offer by way of legal concepts in relation to the attitude to property.15 Is the property our generation enjoys the property only of our generation, or does it belong also to posterity? The land, the forests, the fauna, the flora, the atmosphere, and the water of this planet belong as much to posterity as to ourselves. We are only their trustees but we tend to act as though we are absolute owners. We are encouraged to this form of behaviour by concepts of property that treat the owner as absolute owner and make no difference in this regard between land and other forms of property such as a box or a desk which the owner is free to neglect or destroy should he so choose. On the contrary, all of these traditions – Chinese, Melanesian, Polynesian, and African, to mention a few – attach a special sanctity to land and that which goes with it, placing the present possessor in the category of custodian rather than absolute owner. This idea of trusteeship of property is also formulated with great explicitness in Islamic law. The environmental law of the future will need to lean heavily upon such rich traditions. We will need to reshape existing legal concepts and evolve new ones in the light of this essential reorientation of attitudes to our living inheritance. We have begun to move in this direction, but have yet a great way to go. (ii) Concentration on Active Co-operation rather than Mere Co-existence International law has moved far indeed from the days when it functioned against the minimal requirement that nations should learn to co-exist with each other. Then it was sufficient if it provided the minimum rules for co-existence – for tolerating each other. If international law were to do only that today, we would not survive. It has to base itself on active co-operation rather than passive co-existence. All nations must pool their resources in such fields as international shipping, health, communications, the environment, imports and exports, and aerial traffic, and actively help each other. Numerous multilateral treaties are paving the way to this approach and numerous others in the future will strengthen it. This topic scarcely needs emphasis as it is self-evident that in a thousand areas of our daily lives we would not be able to function today without this concept of co-operation. But for international co-operation, such areas of activity as I have mentioned would come to a standstill. Moreover, problems of the environment, terrorism, oil pollution, chemical and nuclear weaponry, the deep sea, and the sea-bed, Antarctica, space exploration, and the control of celestial bodies – all of these demand cooperative international 15

For a fuller examination of these aspects see the author’s Separate Opinion in the International Court of Justice on the case concerning The Gabóíkova-Nagymaros Project (Hungary/Slovakia), 1997, I.C.J. Reports, p. 88.

Making International Law Matter

63

action, unless they are to be the cause of strife between nations which can lead to global conflagration or ecological collapse. Since international co-operation is the imperative of our time, international law devised merely for purposes of co-existence has long ceased to meet our needs. In every area, international law is being refashioned to meet this demand. If nations fail to co-operate actively with all others in these fields, and international law permits each nation to jostle for position and self-advantage, we would all suffer irreversibly for our failure to use our collective strength, although the danger signals were flashing all around us. (iii) Developing the Law of Development Barely a generation ago development was not even a known topic of international law. We realize today that it is vital to the survival of peace that countries urgently in need of development should not be neglected by the international community. In a village where a small minority live in ostentatious affluence, while the vast majority are either on the borderline of poverty or in a state of starvation, there will be hatred and unease. So also is it in the global village in which we live – a village constantly shrinking in size because of modern technology. Piecemeal approaches cannot solve the problem of underdevelopment and all disciplines must combine in addressing this problem. Among them is the discipline of international law. It must expand its human rights doctrine to broaden our current conceptions of economic, social and cultural rights. It must link problems of development with ecological problems. It must help in ensuring that rights to free advertisement of products, corporate development, and free trade do not exert a negative impact on development. The economic enterprises of affluent countries trading in the developing countries would like to enjoy these rights in an unfettered way, but the rights of the developing countries must also be considered, as became so evident when the World Health Organization examined the claim to unrestricted advertisement in the Third World of breast milk substitutes which were causing high rates of infant mortality in the poor countries. The producer’s right to advertise freely was quite obviously subordinate to the right to health and life of the numerous infants whose lives were imperiled thereby. Yet this right to unfettered advertisement was stubbornly insisted on by vested interests, in the face of all the scientific evidence of the dangers it was causing to infant health. This is but one instance of the many conflicting rights that surface when questions relating to the right to development are discussed. Another acute problem in the field of development law is the vicious cycle that exists between environmental degradation and underdevelopment, for as underdevelopment increases, the race for “development” increases the denudation of environmental resources, and, as these resources are further denuded, under-

64

Universalising International Law

development increases, with resulting further strain on environmental resources. One of the principal problems in this area is the difficulty confronting developing countries in giving high priority to environmental considerations in the context of urgent economic and social problems which seem much more immediate. The Earth Summit at Rio was the focus of much discussion of this topic on which the viewpoints of the developing and developed worlds diverged widely. An important task facing international lawyers will be to formulate the necessary principles for inclusion in new global treaties on such matters as climate change and biological diversity. To this end much spadework needs to be done on such matters as appropriate technology and technology transfer. International lawyers can join with others in suggesting ways in which this can be done – as, for example, through the Global Environment Facility of 1.5 billion dollars which has been set up to assist developing countries in tackling their environmental problems. International lawyers could also assist in structuring impact assessment procedures for new planning measures which will inevitably be proposed for the solution of the Third World’s problems of development. In all of these areas, the dominant role must not be abandoned to the international lawyers of the industrialized world, as so often happens to be the case. The international lawyers of the developing world must likewise make their contribution – a contribution which is often absent because international law tends to be a neglected discipline in many of these countries. The result is that the international arrangements by which these problems are addressed tend not to be sufficiently oriented to the actual needs and problems of developing countries. I shall have more to say on this specific aspect under another head. Another aspect of the law of development is the evolution and elaboration of the concept of sustainable development. This is an important topic in itself, and is examined elsewhere in this work.16 (iv) Devising Restraints on Economic Force Often economic factors can operate just as compulsively as physical force in compelling a country to a particular course of conduct. Economic power can be so great as to enable it to break through the walls of sovereignty. It can influence, even in the minutest detail, the lives of every citizen in another State. It can become an instrument of exploitation from afar, unrestrained by the usual principle that power must be accompanied by responsibility. As international law develops, it will pay more attention to this reality and recognize the need to develop new principles to handle the resulting problems. It will recognize the analogy between economic force and physical force. The prohibitions against the illegitimate use of physical force would, where appropriate, be attracted to the illegitimate use of economic force. 16

See Ch.19 below.

Making International Law Matter

65

This opens up a vast area in which international law will be a prime instrument of service to the global community. New principles and standards will be formulated. Much intellectual rigour is called for in this task, for such a concept presents another revolutionary departure from classical principles of international law. While one must move with great caution, economic pressure is at the same time so real a power on the international scene that it cannot be permitted to function without the restraints that accompany all forms of power. As with most legal principles which have evolved through balancing competing principles, so also will this task involve a fine sense of judgment between legal principle and practical reality. We have just alluded to the question of sovereignty. In the many strands that make up the concept of sovereignty, not the least important is the economic strand, for no State is truly sovereign unless it enjoys the autonomy to regulate its economic affairs free of the dictates of external authority. Moreover, there are many concentrations of economic might today that wield more power than many a sovereign State. This aspect of sovereignty is being gravely eroded today. While we must acknowledge that in today’s world no State can regulate its economic affairs in total freedom from external factors, it is also clear that dependence on external factors can at a certain stage reach such a level as to amount to a negation of sovereignty. (v) Restricting armaments and the armaments trade The international law of the future will need to turn its attention to the question of armaments and the arms trade. The arms trade has grown to hundreds of billions of dollars a year and consumes global resources that are needed for development. It is a truism that if a small fraction of the money spent on the arms trade could be diverted to purposes of development, there would be no problem of underdevelopment. Even a small fraction of that money would suffice to eradicate want from our planet. So much is this the case that a visitor from outer space viewing our planet could well wonder how it can be said that this is a planet of want when in fact all the resources needed to eliminate want are available, but are turned not to the constructive solution of human problems, but to the destructive escalation of human misery. A prime global need is the development of the restraints upon the use of force, and what discipline is more charged with this responsibility than international law? In a world of scarce resources, this degree of waste seems inconsistent with reason. Furthermore, the arms trade violates practically every canon of human rights doctrine. Writing on the arms trade in more than one journal, I have described it as a “blind spot” in human rights and international law.17 This is for 17

See Development Dialogue, a Journal of the Dag Hammarskjöld Foundation (Uppsala), Vol. 2, p. 68; and Justice without Frontiers, Vol. 1, Ch. 11.

66

Universalising International Law

the reason that, despite its obvious violation of the principles of both human rights and international law, it still continues to flourish, unimpeded by law and lawyers, domestic and international. International law will need to devote considerably more attention in the future to the study of this problem. Another factor making it imperative that the arms trade attract the attention of international lawyers is the fact of the intrinsic connection between development and the arms trade. The two are opposite sides of the same coin, for money devoted to arms is in a sense money taken away from development. Every dollar spent on a gun is a dollar taken away from scarce resources urgently needed to alleviate poverty and want. Our hypothetical visitor from outer space would compare the want of resources on the one hand with the waste of resources on the other, and he would stand bewildered. It would be a source of unending wonder to him how our priorities have become so inverted that we permit millions to perish from want while we lavish our scarce resources on causing the wilful death of millions more. Another aspect of the armaments trade, especially in the area of illict arms, is the close connection it has with drug running. The two operate in a kind of symbiotic relationship which is powerful and well organized enough to keep their opponents at bay. Associated with all of this is money laundering which enables the illicit money made on drug dealing to be salted away until such time as it is needed for such illicit purposes as arms purchases. All this is surely leading to the breakdown of the law and order system on the planet and, if this is so, the international law of the future cannot fail to address it. Indeed a characteristic of the armaments industry is that it constantly keeps growing - apart, that is, from some exceptions such as those caused by the cessation of the cold war. It has compelling power to attract to itself the funds it needs - far more compelling power than poverty has to attract funds for its solution. Consequently, the channelling of resources to service its needs is an ever increasing drain on the ever diminishing planetary resources needed for purposes of peace. Also of interest to international law in this regard is the concept of conversion - the conversion of swords into ploughshares. This has become an important discipline in its own right and many advances have been made in such ways as converting tanks into tractors. The ultimate would be the conversion of rockets and missiles into spacecraft for a joint exploration of space by groups of nations rather than by any one. International law could assist in the development of conversion and one looks forward to the day when an International Convention on Conversion will lay down some minimum standards for all nations to comply with for the gradual conversion of weapons and factories for purposes of war to weapons and factories for purposes of peace. The problem of unemployment resulting from the scaling down of the arms industry could thereby be solved and at the same time the resources available for relieving want would be considerably increased.

Making International Law Matter

67

Also of special interest in the field of armaments is the question of weapons of mass destruction - nuclear weapons and chemical weapons in particular. Their legality under international law is an important question and I myself have written extensively on this.18 There is no doubt that international law will need to devote considerable attention to this problem, but for some reason it escaped the attention of scholars, particularly during the period of the Cold War. The traditions of non-violence of the East have much to contribute to this area, and some of the old classics like the Ramayana contain eloquent passages concerning the impermissibility of the use of weapons of mass destruction – as when Rama was cautioned by the sages of his time not to use a hyper-destructive weapon, though it was available to him. Likewise Islamic Law prohibits the use of poisoned arrows as being impermissible in warfare. Indeed, had the perspectives from these two cultures been highlighted they could have had a restraining influence upon both India and Pakistan in their recent forays into the field of nuclear weapons testing. Such perspectives need to be built into the international law of the future. It is interesting also that, as long ago as the second Lateran Council of 1139, the growing power of weapons of war and the need to restrain them was recognized when that Council outlawed the crossbow and the siege machine on the basis that they were too wicked and destructive to be used in warfare. In an age when humanity has the capability of destroying itself and its environment several times over, the compassionate universalism of Buddhism, with its concern for all living things, likewise has much to contribute. A truly international body of international law must tap into such sources of wisdom. (vi) Controlling New Technology International law has naturally to adapt itself to the fact that we are living in an age dominated by technology and that the grip of technology upon every facet of domestic and international life is increasing exponentially. Consequently international law, a slow-moving discipline in the past, has to speed up its rate of change and adaptation. Where formerly international lawyers had two or three generations in which to cogitate upon a major social or technological change, they now have to do so sometimes in a matter of a year or two. Changes in communications technology, computerization, and bio medical engineering are a few examples. Some of these changes affect the very foundations on which certain legal principles have been built. For example, age-old conceptions of privacy built upon 18

See, the author’s Nuclear Weapons and Scientific Responsibility, Longwood Academic, 1987 reprinted by Vishva Lekha,1999. See also his Dissenting Opinion in I.C.J. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports,1996,p. 225; New Zealand v. France, I.C.J. Reports, 1995, p. 287; Advisory Opinion on the Legality of the Use of Nuclear Weapons in Armed Conflict, I.C.J. Reports, 1996, p. 66.

68

Universalising International Law

the supposition that one person must set foot on another’s territory before he or she can invade the other’s privacy no longer hold good in the age of the long distance scanner, and of the technology that can monitor the conversation within a room by beams bounced off the window panes. The same applies internationally where it is possible to spy upon another country’s territory by satellite or by breaking through its computer codes. International law’s response to the urgency of the need to respond to new technology is illustrated by its response to space law and the exploration of the celestial bodies. As pointed out earlier had international lawyers not thought as early as 1979 of a Treaty on the activities of States on the Moon and other Celestial Bodies (commonly known as the Moon Treaty), we may well have had a new race for colonization of the moon and other celestial bodies. So also in regard to computer privacy, data banks, trans-border data flow, recombinant DNA experimentation, global warming, new drugs and chemicals – the list is unending. International law has to keep abreast of science or else watch helplessly from the sidelines while unrestrained technology runs away from all controls.19 (vii) The Trend towards Deformalization It is important also that international law should move away from any tendency to formalize itself into a purely black-letter system. The term “black-letter law” is used by lawyers to refer to law which is crystallized in words, such as the law contained in statutes and cases. But this is not the entirety of the law. There is also the inspirational source from which all law stems – what lawyers call natural law or the moral and philosophical sources which constantly fertilize the law and drive it to new heights of relevance and accomplishment. We are poor lawyers if we are only black-letter men or women. Of course great value attaches to the law as codified or stated, but the law can never be confined and imprisoned within the words of a code or formula. Outside the code and formula is its inspirational source which gave rise in the first place to the code and formula wherein the law is stated for the time being, but from which the law must progress and evolve. In domestic legal systems, lawyers are becoming increasingly aware of this and so, also, should it be in international law. Indeed, the need to seek constant fertilization and inspiration from moral and philosophical perspective is even greater in international law, for, from the time of its foundation as a modern discipline by the Dutch lawyer Hugo Grotius in 1625, 19

For an early elaboration of this theme by the author, see The Slumbering Sentinels: Law and Human Rights in the Wake of Technology, Penguin Books, 1984. See also two studies conducted for the United Nations University: C.G. Weeramantry (ed.) Human Rights and Scientific and Technological Developments, UNU, 1990 and C.G. Weeramantry (ed.) Impact of Technology on Human Rights: Global Case Studies, UNU, 1993.

Making International Law Matter

69

international law has been the product of philosophical thinking. We cannot at this stage of its development cut it away from its philosophical base. The work of political and legal philosophers, of sociologists, economists, ecologists, and others must hence be looked upon as sources from which international law can derive perspective and evolve new concepts in keeping with the needs of our time. In legal philosophy, the work of the English legal philosopher John Austin in the nineteenth century was most influential in developing a positivist approach to law and, indeed, to international law. Law was that which the proper law-making authority such as Parliament pronounced to be the law. The black letter was paramount and, outside it, there might be moral aspirations or theological recommendations, but these were not the law. That view was reflected in the judicial thinking and pronouncements of the most authoritative courts. Today we are witnessing in domestic legal systems a movement away from Austinian positivist thought. In international law, likewise, there is such a movement, for international law in particular cannot be cramped in its development by such a formalistic approach. It has to be responsive to the needs of the age in which it functions – needs that develop so rapidly that we must have a philosophical or attitudinal base from which the new solutions emerge that are needed to settle new problems. A narrow black-letter approach shuts out the philosophical vision needed for such a task. (viii)Erosion of the Absoluteness of Sovereignty An important feature of the international law of the future will be the changing concept of national sovereignty. Where formerly nation States considered that everything that happened within their territorial boundaries was exclusively a matter within their jurisdiction, we have seen that in modern times a great number of formerly sovereign areas are becoming matters of global regulation. I have cited many illustrations in the areas in which old concepts are being eroded, and increasing segments of national sovereignty are surrendered to supranational control. There are many factors that contribute towards such a lessening of sovereignty. Regional groupings such as that of the European Community are an obvious illustration, for they demand imperatively that the sovereign State should surrender increasing areas of sovereignty to regional regulation.20 The statute book of the European Community is an amazing collection of literally hundreds of areas of national regulation surrendered to the Community. A common currency, over 20

The move to a more integrated African Union modelled on the European Union, as opposed to the rather loose grouping known as the Organisation of African Unity, is an example of the growing reach and power of the European example.

70

Universalising International Law

which there has long been a debate, shows how most European countries are prepared to surrender to the Community even their control over that most jealously guarded preserve of the sovereign State. Reference has already been made to human rights doctrine as another potent illustration of this trend. Formerly a sovereign’s treatment of his subjects was nobody else’s concern. Today it has become so institutionalized in international law that mechanisms have been created under which the citizen of a country can take his human rights grievance directly to the Human Rights Committee of the United Nations, by-passing the sovereign State completely. The Optional Protocol to the International Covenant on Civil and Political Rights enables such a direct complaint to be made. An increasing number of countries are submitting to the Optional Protocol. Where the citizen of a country can in this manner, take his or her human rights grievance direct to a world authority a potent cause of domestic strife and discontent is removed and such a course is to be strongly recommended. This represents a major breakthrough in international law, for classical international law did not accord recognition to the individual as a subject of international law, but recognized only States as having rights and obligations. Granting citizens the right of direct access to an international body is thus a revolutionary new advance. Thirdly, the intricacy of modern technology is making it impossible for purely national regulation to be effective. Technology does not stop at national boundaries and needs international regulation. Fourthly, environmental concerns are demonstrating beyond the shadow of a doubt that no nation is an island of itself, but that preservation of the global ecosystem is a matter for joint international action. A fifth factor curtailing sovereignty is the pressure placed on sovereign States by the stringent economic conditions of today’s global order, but globalization is important enough to be treated as a topic by itself.21 A further factor is the appearance on the international scene of a multitude of multinational actors – trading conglomerates, non-governmental organizations, and interest groups of various kinds which straddle national boundaries and have an independent power of action within national boundaries that defies traditional concepts of the nation State. Lastly, mention must be made of the communication revolution which straddles the whole globe, and binds it together in a unitary informational network. For all these reasons, the new international law will gradually reshape old concepts of sovereignty to suit them for the co-operative world of the future. International law, viewed in the context of the much longer history of domestic legal systems, is as yet in its infancy, and the main contours of its response to the new world situation will be laid down in the next few decades. Once it settles 21

See, Ch. 5 below.

Making International Law Matter

71

into the new moulds now being prepared for it, it will be very difficult to recast those main contours to meet the needs of particular countries. The present is therefore a vital time in which to provide our own input into international law at this formative stage of its development. I have referred in the preceding sections to many areas of significance for the future. In all of these, the concept of sovereignty will need to adapt itself to take stock of new situations and trends, and to make itself a more useful instrument of global service, where now it can operate as a hindrance. In all of these changes, every country must participate, or else, in an attempt to preserve its vital interests through the concept of sovereignty, it may damage those very interests. Much awareness is needed of this growth area of international law as the global interests tend to suffer, not so much through any bad faith on the part of States desiring to protect their sovereignty, but through sheer lack of appreciation of the issues involved. (ix) The Growth in such Concepts as Obligations erga omnes, the Common Heritage of Mankind, Intergenerational Rights and Sustainable Development A major trend of the future will be the tendency of international law to break through the barriers imposed upon it by narrow concepts of individual rights. This is a carry over into international law of the narrow concepts of individual rights which flourished in domestic systems under individualist and positivist theories of the nature and functions of law. Under the combined influence of planetary danger, environmental and ecological problems of global dimensions, a view of planet earth as a limited shared resource of all people and a growing vision of the shortsightedness of current economic planning, the focus of the law’s attention has broadened. It can no longer afford to concentrate on the individual and the individual State and the present generation. It needs to set its sights further and broaden the narrow aperture of the lens through which it views the world. The concept of sustainable development, which looks beyond the mere present into the distant future and mitigates the tendency towards the maximum exploitation of earth resources at the cost of poor countries and future generations is acquiring a central place in international law and the concept is being elevated from a mere aspiration to a principle of customary international law.22 Indeed this concept is becoming so central to the future world order that currently a summit of Heads of States (The WSSD – The World Summit on Sustainable Development) is being planned to be held in South Africa in September 2002 concentrating

22

See to this effect the author’s Separating Opinion in the International Court of Justice on the case concerning The Gabcíkova-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports, 1997, p.7.

72

Universalising International Law

primarily on this concept. In preparation for this event a world conference of Chief Justices is to be held in Johannesburg in August 2002.23 International law will reflect very strongly, the need to develop such concepts and elevate them to the level of international law. These will be some of the principal formative influences over the international law of the future. VII. The Speed of Change To all these areas of change must be added a note on the ever-accelerating rate of change in international relations. Not only is modern technology altering our global perspectives at a phenomenal speed. The international landscape is also altering at a breathtaking rate. Fundamental changes in the Soviet Union, peace conferences in the Middle East, the collapse of the old superpower systems, the need to reconsider the new bases of non-alignment, the prospect of a whole new group of States entering the international community as full fledged members, opened up vast new arenas for thoughtful contemplation. Major events in the Middle East or in Eastern Europe, in Latin America, Africa or China, produce their effects almost instantly upon every other member of the global community, bringing into play some principle or other of the international legal system. Gone are the days when the lawyers of any country could say to themselves or their rulers that they should mind their affairs on the basis of purely domestic law. Just as we are all part of the seamless web of international affairs, so also does all law form part of a seamless web, and there is scarcely a thread of domestic law which does not in some way draw strength and validity from the all-enhancing fabric of the international legal system. VIII. Opening International Law to the Lay Public I venture to think that one reason why international law has not performed as well as it might have is that international law has, whether by accident or design, been kept away from the knowledge and understanding of the lay public of the world. It is as much a part of general education as any subject one may care to name, but it is preserved as a sort of arcane mystery which only trained international lawyers and high ranking statesmen should dabble in. I believe this to be a profound mistake, for it only adds to the feeling of helplessness of the average citizen when he or she seeks to understand the ways in which international relationships work. IX. An Urgent Need - Education At secondary school level, I believe we should inject an element of internationalism through imparting to our schoolchildren a greater consciousness that the 23

See Ch.15 below.

Making International Law Matter

73

world of the twenty-first century in which they will live will be much more closely knit than the world is now. Furthermore, I am sure that an element of international law can be injected into school curricula through its introduction as a segment of civics or related subjects. At present, a proper course in civics would take in some element of constitutional law so that the citizens of the future would know something of their basic rights and of the rules of the community which they will join as adult citizens. So, also, it is equally important that they should know something of the basics of international law – the rules of the international society of which they will all be members as citizens of the world. There may be an impression in the minds of many that international law is an esoteric discipline whose arcane mysteries are only for the initiated – lawyers, judges, diplomats and the like. This is furthest from the truth. There is nothing mysterious about the basic principles of international law which a fifteen year old cannot understand. Indeed, I have spoken at schools in the United States, Australia and Sri Lanka about the elements of international law to schoolchildren of around the ages of 14 to 16, and have found them to be most receptive, even at that early age, and deeply interested. The idealism underlying the main principles of international law strikes an answering chord in the natural idealism of children of that age. They easily grasp the basic principles. I do hope that those who write books on civics and related subjects for schools will introduce into them some element of international law. International lawyers need, in my view, to mount a special effort to help the educational authorities in this regard. At tertiary level, I think again that we should be inculcating a greater international awareness. I would also submit that international relations should be brought more to the attention of the tertiary-level student and, in the course of that presentation, a small segment of international law should be introduced so as to make more meaningful and understandable the phenomena presented to the student. So many questions arise nowadays on the international scene which prompt the observation “Is there no law governing this matter?” and “If there is, why is it not used or invoked?”. “Why is it not effective?”. There are answers to these questions and, in the understanding of those answers by the average citizen, lies the hope of the further development of international law. If the average world citizen of the future knows nothing of international law, that discipline will remain stagnant. It is not only a matter for professors and diplomats, but for the concerned attention of the average citizen. If the general education system fails to inculcate in the future world citizen the interest necessary for this purpose, international law will continue to remain the preserve of specialists, keeping an unnecessary distance between itself and those who can best serve it and best be served by it.

74

Universalising International Law

X. Conclusion The areas I have referred to are representative of the vast field awaiting attention at the hands of international lawyers in the future. A greater interest in the growing discipline of international law is essential, for on its success are centred many of the hopes of humanity for the amelioration of its condition. If international law should fail us at this critical stage in human history, global law and order can well break down. Dozens of little wars, many with the potential to escalate, can well grow out of control and the use of weapons of mass destruction cannot be ruled out. Should this happen humanity can indeed descend to a condition which can outdo the barbarisms of the past. This is no fanciful scenario and if we neglect this discipline which represents the quintessence of the human effort over the centuries to evolve a more peaceful world, we are sowing the seeds of our own destruction. The public should be encouraged not to stand away from this area on the basis that it is only for scholars, for diplomats and for governments. It is an area of interest for all inhabitants of our planet who have concerns about the human future and who hasn’t? Unless we increase our attention to it, we will all surely be the losers if indeed we survive. And here I wish to stress that those who stand to lose most if they neglect the discipline of international law are the people of the poorer countries. Their very survival depends upon agreements of various sorts – strategic, political and economic – entered into with the more affluent countries. All these agreements are entered into in accordance with international law. If through their neglect, they face a situation where all the legal expertise is on the side of the lender or investor countries, they will necessarily suffer from bad bargains, for there will be no one to look after their interests. They would be very similar in their position to a litigant who has no lawyer to represent him while his rich adversary is represented by eminent counsel. There are of course international agencies that look after the interests of the poorer countries, but they can never give these countries the same protection they would have had if they had international lawyers of their own with the necessary degree of special expertise required for such work. Their traditional neglect of international law at all levels can thus cost them dearly as a nation, and it is from the legal profession itself that the impetus can best emerge to diffuse more information about international law and to ensure that more attention is paid to this aspect as well as to the training of more specialist international lawyers of the future. To students particularly, I address the message that it is from your ranks that there will emerge the international lawyers who will in the future guide your country to a position of true equality in the community of nations. If you should fail in this responsibility, you would indeed be failing your country in the area in which your talents can serve it to the greatest advantage.

Chapter 3

International Lawyers: A Vision for the New Century*

The approach of a new century, if not a new millennium, causes every lawyer to give some thought to the shape of things to come in the world of the law. International lawyers feel this urge even more compellingly than others, for the shape of things to come approximates more closely in their discipline to the shape of the world itself. This imposes a special responsibility on those at the steering end of the vessel of international law – and by this I mean not only those in official positions, but all those who, by their thoughts and writings on international law, give this ship a sense of its course and direction – and young scholars particularly, because it is to them that the future belongs. I. A Century of Last Opportunity The century that is nearing its conclusion has been a century of lost opportunity, for the great hopes of peace with which the century dawned were shattered time and again as the century dragged its length through war after war and crisis after crisis. The century opening out before us now will be our century of last opportunity, for never before in history did a century begin in which humanity had the power to destroy itself and its environment. These awesome new powers, if uncontrolled, spell disaster for our species and all civilization and one of the keys to any apparatus of control is international law. The awesome nature of the responsibility lying upon the shoulders of international lawyers will be self evident from these considerations. *

Based on a presentation at Harvard Law School to the European Law Research Centre on 29 October 1998.

75

76

Universalising International Law

To those raising these concerns there will be a quick rejoinder from pragmatists who will assert that it is not lawyers but other power wielders in society who determine the human future. We will be told that daydreams are not our business. We will be told that we work within a world of realpolitik and that the great operative decisions are not in our hands. I take issue with this point of view. To be sure, those other power wielders are strong and influential, as indeed power wielders are in domestic society. But, as in domestic society, their potential for damage is curbed though the restraints imposed by law and lawyers, so also should they be in international society. True, this has been achieved to some extent, but the achievement thus far falls considerably short of the expectations entertained by the world community at the conferences at Versailles after World War I or at San Francisco after World War II. The challenge before us as this new century begins is to ensure that international law and lawyers rise to this responsibility. In saying this one must be conscious that unlike domestic law, where a legislature and a law enforcing mechanism lie behind the law to ensure its observance, international law depends for its observance largely on its own inherent moral strength. Yet this is all the more reason for our taking thought regarding the means by which that moral authority can be supplemented and reinforced. II. The Scope for Affirmative Action by International Lawyers I tend to feel that lawyers, and international lawyers in particular, enjoy a great deal more power and influence than they believe they have. There is great scope for lawyers to make their impact on the thinking of their time, and this potential must not be permitted to remain unused. Let me set out very briefly some of my reasons for reaching this conclusion, after which I will elaborate on a few of them. In the first place we are about to enter a century, for the first time in human history, which at least officially is ruled by international law. Secondly, international lawyers enjoy a position of marked influence in international affairs. Thirdly, this ability to mould the law of the future is magnified in the discipline of international law by the circumstance that much of its area of future development is as yet virgin territory. Fourthly, the collective strength of international lawyers who are bound together by a common discipline and who straddle the entire globe, is much greater in my view than that of the practitioners of any other legal discipline. A fifth factor which gives international lawyers a degree of influence ranging beyond that enjoyed by domestic lawyers arises from the very nature of the discipline – its idealistic base, its universalistic setting and its multidisciplinary content.

International Lawyers: A Vision for the New Century

77

There are other factors also to which I shall refer briefly in the course of the ensuing elaboration of these points. It goes without saying that even as there is enormous potential for good, so also is there enormous potential for harm if the idealism that lies at the root of this discipline is permitted to recede from view. The power of international lawyers as a collective body, practising their craft with due regard to its idealistic base, can thus make a tremendous contribution to the welfare of the world. I shall briefly elaborate on the five aspects I have mentioned. a)

A Global Society Committed to the Reign of International Law It is all too easy to lose sight of this feature which so significantly distinguishes the twentieth century from all the centuries preceding it. There have indeed been great international congresses in preceding centuries such as that which resulted in the Treaty of Westphalia in the seventeenth century or the Congress of Vienna in the nineteenth, at which the members of the community of nation states resolved to lay the groundwork for a more peaceful world order for the future. But none of these resulted in a blueprint of an all embracing international legal system based upon an equal partnership between all states of the world. The Charter of the United Nations is a world constitution such as no other document in world history has ever been. It commands universal acceptance, even by states who were not parties to its formulation. It binds the entire international community not only to an adherence to the structure of the United Nations, but also to the fundamental principles of international law. The structure of a world judiciary such as is contained in the Statute of the International Court of Justice and its predecessor the Permanent Court of International Justice again has no precedent in world history. A universally accepted declaration of human rights declaring an irreducible minimum of basic principles relating to human dignity is an achievement which again has no parallel. Add to these a system of rapidly growing international law which is fast multiculturalising its orientation and universalizing its principles, and we have a slate of advantages for the pursuit of world order which no other epoch can match. It is against this backdrop that international lawyers will function in the new century. b)

The Strategic Positioning of International Lawyers Every Foreign Office in the world depends very heavily on its international lawyers to advise it. Foreign Offices are in a position of power when it comes to the moulding of the international law of the future. These international lawyers in the Foreign Offices are respected figures. They wield an increasing measure of authority. They are not mere bureaucrats, submissively stating views their masters

78

Universalising International Law

would like to hear.They have a responsibility to advise on the law as it really is and their opinions do count. They are much more than mere black-letter craftsmen in the law. When decision-makers in foreign affairs turn to these lawyers for advice on the legality of some proposed course of action, one possible course of action, as in all legal matters, is to tender advice within the letter of the law, seeking to wring out the maximum advantage for one’s client. Such an opinion tends often to be expected. Yet, at the same time, I would submit that the true international lawyer does not take his or her eyes off the ideals underlying the discipline, and aims at being something more than a mere black-letter craftsman. Let me give you an example of how lawyers have in the past helped to lead the world astray, by tendering self serving advice in domestic affairs. Take the case of positivistic legal philosophy which, in the nineteenth century elevated black letter law and the sovereign’s authority to such an extent that the letter of the law prevailed over its spirit even to the extent of overriding those abiding principles of justice which lie at the foundation of all legal systems. By this view law was the command of the sovereign and it was this sovereign authority which was the hallmark of the validity of a law. In its first formulations, this was a theory which served a useful purpose, inter alia, in bringing about more precision in legal thought. Yet it was also music to the ears of sovereigns and dictators; and their legal advisers did not hold themselves back from offering such pleasing advice. Later developments of this idea, losing sight of the ethical perspectives which should also be held in view, enabled the lawyers of the day to present to the dictatorships that marred the first half of the twentieth century a ready made legal weapon for the imposition of the dictatorial will upon all law, however immoral. Extreme legal positivistic thought played no little role in producing the havoc that led particularly to World War II when, if the lawyers of the day had taken a less mechanistic view of the law, some incipient dictatorships could possibly have been halted in their tracks, as jurists like Lon Fuller have observed.1 As the new century dawns, it is most important that international lawyers do not fall victim to taking a mechanistic view of international law. There are occasional signs of this in some juristic writings and indeed in some judgments which tend to approach the deep abiding principles of international law with a degree of formalism which defeats their underlying purpose and rationale. c)

International Law is as yet in a Formative Stage Another reason which I would like to emphasise as indicative of the power of the international lawyer is that international law is still a comparatively young discipline, very much in a formative stage. It is at this stage of its evolution that the broad contours for the future are being laid out in a number of its sub-departments. 1

See to this effect Lon L. Fuller, The Morality of Law, Yale University Press, 1964.

International Lawyers: A Vision for the New Century

79

Moreover, entire new areas are opening up which will be of profound importance to the human future – environmental law, space law, air law, and the law of the sea, human rights, bioethics, media law, and many others which will become core disciplines within the corpus of international law. These new branches of law will govern an increasing segment of human affairs for the indefinite future and, as we lay down their contours now, we are in a sense acting as trustees for humanity.We are as much legal pioneers in these fields as the Roman jurists were when they charted out a new science of jurisprudence which was to influence human governance for two thousand years. Here, more than in almost any other legal discipline, we do well to bear in mind the sage words of Justice Cardozo that “the inn that shelters for the night is not the journey’s end.” In the world of international law, we have only begun our journey and we cannot permit temporary resting places to become permanent abodes. d)

The Special Influence of the “Invisible College” of International Lawyers Unlike any other body of lawyers, international lawyers speak the common language of a universally accepted discipline, share a common commitment to furthering the universal reign of law and the universal ideal of human dignity and keep functioning constantly across national borders. The trends towards insularity that mark other sub-disciplines of the law are effaced by the universalism which is the keynote of their discipline. There is, among international lawyers, a kind of collegiate spirit. Together they form what is sometimes described as an “invisible college” of international lawyers. That is a network of international lawyers around the world. Guided by the common ideals of their discipline, they acknowledge a set of universally binding principles and they exert a very strong influence on the formation and application of what you might call the grundnorms – the binding principles and basic rules -of international law. Members of this invisible college are those who create the climate of opinion in which those rules emerge – the climate of opinion in which those rules are, in fact, practised and enforced. If there is a high ethical sense among them and a sound welding of their discipline to the ideals to which international law is committed, there would be a tendency for the climate in which those rules are formed to grow in such a manner as to command respect in the corridors of power and in the Foreign Offices of the world. Since international lawyers move at these lofty levels, their power is quite considerable. Combine on a global scale the moral authority of individual international lawyers as a profession, and their cumulative authority is enormous. At international conclaves which they constantly attend they have the opportunity of building up a fellowship among themselves and a system of peer pres-

80

Universalising International Law

sures by which deviations from the basic principles of this discipline are discountenanced. They speak with authority in every Foreign Office of the world. In short, their position is unmatched for international and domestic influence. e)

The Special Nature of the Discipline of International Law

i) Its Idealistic Base When the notion of international law was first formulated at the hands of the founding fathers, whether they be Grotius, or the Spanish jurists before him, or the Arab jurists before them or for that matter the Asian jurists more than two thousand years ago, their ideas were born of idealism. The umbilical cord that bound international law to its parentage of idealism was never severed. Perhaps more than in any other branch of the law, it is idealism that inspires it every day of its working life. This idealism affords international lawyers both a special source of inspiration and a special ground of justification for injecting that idealism into the continuing development of their discipline.In our consideration of the problems we face in our discipline we must not descend into the role of merely black-letter lawyers. Black-letter lawyers have traditionally tended to miss the wood for the trees. Caught in the wilderness of the letter of the law, the grander vision which lies beyond has often been shut out of view. As with the domestic black-letter lawyer, the international black-letter lawyer can also find his or her vision “cabin’d, cribb’d, confin’d” within the letter of the law. Domestic lawyers have often been accused of having lost their way in the forest of words.International lawyers can also fall victim to this tendency. Of course the lawyer is also a craftsman and, like other lawyers, the material he or she works with is language. Yet my theme is that the international lawyer, who handles not merely the affairs of individual clients, but also the great issues of international relationships ranging all the way up to matters of war and peace, is under a special obligation to keep his or her sights firmly fixed on the ideals which throughout the ages have illuminated the writings of the seminal figures of their discipline. Just as a ploughman, since biblical times, was expected to keep his vision fixed on some distant feature of the landscape if he was to plough his furrow straight, so also could there be a deviation from the international lawyer’s proper mission if the ploughman’s eyes stray from the target of international justice which is the ultimate guiding star to their entire endeavour. When we plough the field of international law we cannot take our vision away from the distant goal of a justice which is truly universal. Unless the ploughman of international law has his or her eye always fixed upon the idealism out of which the entire discipline emerged, it would be a crooked furrow that he or she would produce.

International Lawyers: A Vision for the New Century

81

ii) Its Universalist Background There is here an enormous new area of action that international lawyers of the present generation enjoy which their predecessors did not have. Today more than ever before the world’s traditional systems are available as resource material for the international lawyers of the future. This advantage was not so easily available to their predecessors of even a generation ago and was largely unperceived by earlier generations who consequently constructed international law from largely monocultural sources. Now that all this inspirational wealth is available, there is an obligation to draw upon it, for international lawyers have an obligation to use this collective wisdom of humanity and not to approach it with exclusionary monocultural attitudes. This is especially important because when we venture into such uncharted territory we will find that the collective wisdom of humanity for thousands of years has much to offer us. There is here a unique resource available to the international lawyer of today for moulding international law in a truly universalistic sense. By way of illustration let us consider the newly emergent field of environmental law.We modern lawyers tend to be under the illusion that we are the pioneers of this new discipline. In fact, cultures and civilizations all over the globe have learnt the principles of harmonious co-existence with the environment over a backdrop of several millennia. They have evolved in their traditional systems some of the most forward-looking principles of environmental law which we tend to believe are the creations of our age. Among these principles are the principle of obligations erga omnes, the rights of future generations, the concept of collective responsibility for the environment, the principle of trusteeship for future generations, and the principle of sustainable development, to mention only a few. A dozen more such principles could be gathered from the customary laws of different cultures.2 The new international law will need to seek its inspiration from all world cultures and not approach these problems in the belief that they are being posed to humanity for the first time, and are being approached by our generation on a clean slate. In truth, these principles are thousands of years old, and have been integrated into traditional legal systems as far back as recorded history runs.3 iii) Its Multi-Disciplinary Nature Just as international law has tended to be monocultural in the past, so also has it tended to be mono-disciplinary. The ability of international lawyers to make a practical contribution to global welfare is enhanced now by the growing trend to introduce inter-disciplinary perspectives into their subject. 2 3

For a fuller account see Ch. 15 below. See the author’s Separate Opinion in the case concerning the Gabcikovo-Nagymaros Project (Hungary-Slovakia), Judgment, I.C.J. Reports, 1997, p. 88.

82

Universalising International Law

Judge Alvares, in his vision of the New International Law 70 years ago4, spotted this shortcoming in the context of his time when he observed that the “renovation” and “reconstruction” of international law required an interaction between international law and the neighbouring discipline of International Relations. He thought in terms of a bridge between the legal and political systems based upon morality, justice and equity5, and saw the establishment of a harmony between political and legal rules as the greatest step which can be accomplished in international law. Monodisciplinary approaches to international law have left broad vacant spaces of human activity in which international law is largely absent or is making its first tentative probes. Now more than ever before, the fusion and interrelatedness of all knowledge has become axiomatic. All the disciplines must combine to build bridges through which international law, can pass into the vacant areas. Here is a challenge for the new international law far more massive than Judge Alvarez could have seen in his time. All law has an interface area with nearly every other discipline – and much of this territory remains largely unexplored. The public impression of lawyers as a profession locked up in their ivory tower of legal expertise is rather impishly portrayed in the old verse: The law the lawyer knows about is property and land But why the winds disturb the seas Why honey is the food of bees Why winters come and rivers freeze They do not understand The international law of the future urgently needs to be multidisciplinary, just as it needs to be multicultural. Whether the discipline be economics, history, sociology, linguistics, cybernetics, physics, chemistry, medicine, biology, climatology or any of form of technology, its interface area with international law is rapidly increasing. The insights of various disciplines need to be harnessed in the service of international law which will not otherwise be able to cope with the international problems springing from their fields of activity. World economic trends and forces are in constant tension with principles of sovereignty and individual freedom. Perspectives from world history inform us how in the past vast structures of law and order which showed promise of durability sometimes collapsed with a rapidity which took contemporaries by surprise. Sociology gives the lawyer informed guidance on the ways in which groups of various sorts tend to behave in furtherance of their own interests. Linguistics gives us 4 5

A.Alvares, The New International Law, Transactions of the Grotius Society, Vol..XV (1929), p. 35. Ibid., at pp. 46-57.

International Lawyers: A Vision for the New Century

83

new insights on the way in which issues that should compel attention can be obscured by the use of language, as where the bombing of civilians is described as “collateral damage”. In particular, the various forms of technology tend to run away from legal control and to escape the restraints imposed by human rights and international law. Any meaningful attempt to harness them for the common good needs an understanding of the interface area of each such discipline with human rights and international law, as more fully detailed later in this presentation. III.

Areas Urgently Needing Attention

a) Scientific Empires of Power The law has lagged far behind, and has consequently suffered a heavy loss of territory and authority in the interface area between law and technology. I have in other works6 stressed the importance of protection of the citizen against the burgeoning power of science and technology. I have there drawn attention to the vast areas of technological dominance which have been virtually abandoned by the law. Genetic engineering with its latest achievements, cloning, and the mapping of the human genome opened up an area of frightening possibilities with huge international overtones, for the structuring of human beings raises human rights issues so fundamental as to affect the concept of humanness and human dignity which are the corner stones of the entire international legal order. The contamination of the atmosphere and the seas by nuclear waste, with its potential of damage to the human environment for over twenty thousand years, the networking of the globe by information systems which break through all concepts of individual and national privacy and electronic financial networks that straddle the globe and enable the instant transfer of billions of dollars across national boundaries are a few other instances of technology’s impact on the human body, the human habitat and human society in ways which must flash danger signals to the entire international legal system. Techniques such as xenotransplantation – the transplant of animal organs into human bodies – are thought to have the potential to unleash a plague like the black death through the entire global population. Where does international law stand on such momentous matters for which past precedent offers us no guidance? In international law, the legal no-man’s land is even greater than in the corresponding areas of domestic law.

6

See the author’s The Slumbering Sentinels: Law and Human Rights in the Wake of Technology, Penguin, 1984; Nuclear Weapons and Scientific Responsibility, Longwood Academic, 1987. See also Justice Without Frontiers, Vol. 2, The Protection of Human Rights in the Age of Technology, Kluwer International, 1998; Human Rights and Scientific and Techological Development, United Nations University Press, 1990; Impact of Technology on Human Rights: Global Case Studies, United Nations University Press, 1993.

84

Universalising International Law

All these dangers stem from the fact that the area of scientific activity constitutes a special domain apparently impenetrable to the layman owing to the walls of technicality that surround it. In this domain, hived off from popular view and indeed from the writ of the law, the scientist functions free of the constraints normally attached to the use of power. We thus have a result which is anathema to democratic principle – the principle of power without responsibility. Domestically this poses a grave threat to the fundamental protections on which legal systems are built. Internationally this can lead to explosive situations in which the very fabric of international law and order is threatened. In short there is a continuing tension between scientific power and democratic theory, between scientific power and law and between scientific power and human rights.7 International law cannot stand away from this problem and must address it urgently for in the next century human life will be further revolutionized by technology in ways which we cannot now visualise. To the extent that these will undermine the rule of law nationally and internationally, domestic and international law must stand watchful and ready to protect the ideals for which they stand. b) The New Colonialism The new international law must also take note of a phenomenon whose existence was no doubt known in the first half of the twentieth century, but the full magnitude of whose power we can only now appreciate. I refer to the forces of monetarism which bid fair to dictate to the entire planet how it should order its affairs, what should be its priorities and indeed what sort of conduct is permissible or not.8 I am referring here to the power of high capital and its ability to dominate nearly every social and political institution. Monetarism has always been a force in world history but, until the middle of the century, its dominance was not so openly seen in vast parts of the developing world because imperialism was seen as the main source of dominance. What caught the eye was the physical and armed force that enabled the major empires to hold sway over a vast segment of the globe. However, with the sunset of the age of empires and the emergence of over a hundred new States, this curtain was withdrawn. In large parts of the world those who formerly dominated a subject country’s affairs under the cloak of empire continued to do so, for the great trading empires retained their links and also knew these territories sufficiently to be able to know where fresh capital was needed and how it might be introduced. In a few instances the old trading concerns were banished but in many territories their influence continued and increased. Moreover these trading entities 7 8

Each of these is addressed in Chapters 1, 2 and 3 respectively of Justice Without Frontiers, Vol. 2. See further chapter 5 below.

International Lawyers: A Vision for the New Century

85

commanded capital and technology on a scale which enabled them to lay down their own terms to the host country. The banknote was thus succeeding the sword as an instrument of domination, and sometimes its dominance was more pervasive than the dominance of the sword. In its latest form, monetarism has entered almost every nook and cranny of the international system. It drives the media, the shapers of public opinion. It controls many national economies. It dominates the sphere of employment and shapes national policies. The support of the former imperial powers gives it an added dimension of strength. In short, the post-colonial world has witnessed the advent of an enormous new source of power, which moreover is power without responsibility – a concept which is anathema to democratic theory. International law needs to develop new mechanisms with which to restrain the unbridled exercise of financial power. It has a long way to go in this department, though in various ways it has indeed begun to address this problem. There is another aspect of modern day monetarism which has great significance for international law and in particular for modern environmental law. I refer to the belief that money can purchase anything – even things that are part of the common heritage of humanity and are not anybody’s to sell. In particular there is the belief that land is a commodity that can be bought like an article that one purchases over the counter. If value is paid for it one can become its owner and do with it what one pleases because the purchaser is its lord and master. The result has been the ruthless exploitation of land – whether by mining it, using it as a site for the dumping of deleterious waste or denuding it of all its fauna and flora. This is no less than the pillage of the inheritance of future generations. The international law of the future must surely have a great deal to say on this primordial issue. Another aspect of the activities of monetarism is its power and often its willingness to bribe decision makers in the host country to give it advantages that lift it far above the level of its competitors. The Lockheed scandals which attracted so much publicity are only one instance of a vast gamut of such activities, which international law must seriously address in the next century if it is to be a meaningful instrument of global justice. c) Handling Non-State Actors on the Global Scene A further reflection on this theme is that many of these fresh actors on the global scene now enjoy economic power far exceeding that of the majority of nation States. Many transnational corporations command resources exceeding the national revenues of even countries like Spain and Australia. With economic power come all the other kinds of power – political power, the power to shape opinion, the power to bend laws to suit their activities, the power to make or break governments.

86

Universalising International Law

International law, with its traditional concern only with States as subjects of international law, needs to adjust its concepts and procedures to enable it to cope with these new categories of “individuals”. International tribunals aimed at resolving State disputes do not have jurisdiction to resolve a dispute between a State and such an entity. International action by way of treaties and international regulations can control their activities to some extent, but obtaining the necessary consensus to restrain such powerful multinationals is no easy task. Some beginnings have been made in working out guidelines for their activities, as when since the 1950s, and increasingly since the 1970s, international federations of trade unions passed a variety of resolutions aimed at ensuring that the activities of these entities are pursued for the benefit of society.9 They are driven by the dictates of profit-making and their power carries no responsibilities. Hence the need for checks and balances which international law urgently needs to devise. Just as trade unions have expressed their concern over the decades, so have scholars who see the dangers to State sovereignty, especially in the poorer countries. This concern has produced a growing literature on the subject, dating all the way back to the early 1970’s. Other actors on the multinational scene, whom again the new international law must take note of, are the non-governmental organizations which have proliferated enormously in recent years. They represent important points of view and some of them wield very great influence. There is a fear, especially in some developing countries, that some of these NGOs may in fact be manipulated by interests and power groups of various descriptions. This is another problem for the new international law, for though their voice carries great weight in international councils, there is a lack of general standards of fairness and integrity applicable to them in the conduct of their investigations and the reaching of their conclusions. International public opinion is of great importance and the NGOs are a most important means for giving effect and expression to this public opinion. But this valuable system needs to be protected and one wonders whether enough study and research have gone into this question. It is to be remembered also that modern communications – internet and computer linkages of various sorts – give to these organizations and to interest groups 9

For example, the World Feder ation of Trade Unions (WFTU) resolution of October 1971 at Lausanne; the International Federation of Clerical and General Workers’Union (ICP) at the 14th Statutory Congress; Copenhagen, October 1971; the Oil Workers’ Anti-Monopolist World Conference, Leuna, Halle, May 1971. The International Confederation of Trade Unions, at its Executive Board Meeting in Brussels in December 1970, referred to the concern felt by Trade Unions, especially in the developing countries at the activities of multinational corporations. Arising from research done at Harvard by the Harvard Multinational Enterprise Project, which had been working on the problem since 1965, there was a publication on Sovereignty at Bay: The Multinational Spread of US Enterprises. Hugh Stevenson wrote on The Coming Clash – The Impact of Multinational Corporations on Nation States, as early as 1952.

International Lawyers: A Vision for the New Century

87

of various kinds an extent of inter-linkage which was inconceivable in the pre-computer age. There is great potential here for interest groups to join their forces, irrespective of national barriers and there is great potential for good in this. At the same time, the way in which computer based information can be controlled gives rise to some fears that need to be addressed. They have a vital bearing on international law and scholars of international law cannot afford to keep away from this problem. d) Neglect of Philosophy There tends to be a lack of resort to philosophical perspectives in the practical application of international law. Many a lawyer, once he or she starts practising law, tends to concentrate on the law as it is. Embedded as he or she becomes in the letter of the law, the philosophical ideas that lie behind the law tend often to recede from view. It is indeed an indictment of some law schools that a student can successfully negotiate the entire law course without any exposure to Plato or Aristotle, Hobbes or Locke, Austin or Bentham or Montesquieu, not to speak of the moderns. Some knowledge of these would certainly have illuminated the lawyer’s thinking on the matter in hand. Today, in fact, there are quite a few judges deciding cases involving conflicts of values who do not know that many of these same conflicts to which they are now addressing their minds have been the subject of elaborate discussion for hundreds of years among the greatest minds of the world. Should this happen in the world of international law it can certainly produce some tragic results.10 e) Neglect of Other World Cultures The Western legal world’s unawareness of the law-related traditions of Eastern cultures was nearly total for well nigh two centuries after Grotius wrote his seminal work. It was only in 1794 that Sir William Jones’translation from Sanskrit of the laws of Manu revealed to the Western world a vast new range of legal literature. It took at least two generations for this new learning to penetrate through to the Universities where several varieties of Oriental learning came to be slowly introduced. Still, little, if any, of this had penetrated into the departments of legal learning, where the vast literatures of the law-related corpus of writings of Hinduism and the cornucopia of philosophical wisdom of Buddhism remained largely unknown. Yet these were the years when the broad contours of modern international law were taking shape on the foundations laid by Grotius nearly two centuries earlier. In the words of a philosophical writer “the publication and diffusion of at least some driblets of this ancient Oriental learning brought into the consciousness of the Western World a realization, albeit feeble as yet, of the fact that 10

See generally C.G.Weeramantry, “The Importance of Philosophical Perspectives to the Judicial Process” 6 Connecticut Journal of International Law, 1991.

88

Universalising International Law

the great religious systems and philosophical schools of other parts of the world outside of Greece and Rome, contained a message of genuine and deep spiritual and intellectual worth and import, which could no longer be ignored or set aside …”11 Against such a background the responsibility devolving on the modern international lawyer is specially onerous and the opportunities for infusing international law with a universalism which will substantially enrich it are truly enormous. One of the principal challenges lying before international lawyers of the new century will be to delve into this mass of material for its international law content and to make a genuine effort to enable the corpus of international law to reflect more clearly the universalism which is its true foundation. It is well to remind ourselves in this context, that when Grotius charted out the contours of the new discipline of international law, he sought out the experience of humanity from every culture he could read about, and it was out of this conglomerate of human experience that he drew the first principles of his new model of international law. We are living at a Grotian moment in the sense that now, more than ever since the Westphalian age began, we face a series of unprecedented changes affecting the entire global community. The task hence devolves on us to chart out for the future the outlines of burgeoning new areas of international jurisprudence which will operate for centuries to come. We can do no less than Grotius did to meet the unprecedented situations facing his age and there is a heavy obligation lying upon us to do our research as Grotius did and seek inspiration for our new principles from the collective wisdom of humanity. I must confess that we have been rather lacking in this respect. In working out the new international law, we must take off these blinkers and thrust out tap roots into the other major cultures of the world which, to tell you the truth, many an international lawyer knows very little about. It has often struck me how strange it is that we call our discipline international law when we have introduced so little international learning into it. The vast literature of Buddhism, the Chinese classics, Islamic jurisprudence and the Vedas of Hinduism each of which rivalled the Roman in the volume of its commentaries – all these are unknown territory to the average international lawyer. It is true no one can be a master of all of these, but one needs at a minimum to be aware of their richness and of the fact that they are repositories of wisdom which need to be researched. The new international law will draw on these if it is to have any validity and to commend itself to the generality of the human community. The belief that the old international law is largely monocultural still prevails in vast segments of the world community, and is one of the causes for the lack of authority of international law. We must overcome the current roadblock of ignorance of other cultures and 11

G.de Purucker, The Esoteric Tradition, Theosophical University Press, 1973 reprint, p.372.

International Lawyers: A Vision for the New Century

89

the tacit assumption that it is only one reservoir of human experience that needs to be searched for enlightenment and guidance. f) Inadequate Use of Equity Allied to what I have observed in relation to positivism is the tendency we see all around us to decry the role of equity in international law. Derogatory remarks about equity abound in the literature of international law, and are to be found even in judgments, and I would plead for a more understanding and respectful attitude towards what has been a fertilizing and enriching source of all legal systems from the beginning of time. All legal systems have had experience of the injustices that can result from exclusive reliance on black-letter law. The balance between law and justice has to be redressed and equity has been the time honoured means of doing so. Of course, it will be said that equity is variable. Just as in domestic law, it has been criticized as being as variable as the Chancellor’s foot, it has been criticized in international law as being as variable as the weather of The Hague. This is precisely the reason why one needs to study equity in all its nuances and applications. It has been developed over the years into a finely honed tool and, unless you take the trouble to study its many facets and applications, you will tend to dismiss it as an unreliable working tool. I would ask all international lawyers not to toss it into the rubbish heap, as some of them tend to do, but to take the trouble to give it the studious attention it deserves.12 g) Neglect of The Inspirational Value of the Great Religions I come now to a most important part of my thesis – the studied insulation of law, and international law in particular, from the inspirational values of religion – and I here refer not to any one religion, but to all the principal religions of the world. Let me refer again to Hugo Grotius who, in shaping the new discipline of international law, consciously distanced himself from religion. He had very good reason to do so. He was writing in the midst of one of the bitterest conflicts Europe had yet seen, and that conflict was based very largely on differences of religion. How else could Grotius find general support for his new scheme for the law of nations, unless he made it clear that he was distancing his new discipline from religion as such, and basing it in pragmatic fashion on the collective experience of humanity? At that time, each version of religious belief was at daggers drawn with the others, and seeking to annihilate them. Today, the world situation is different – with 12

For a fuller discussion see the author’s Separate Opinion in the Case concerning Maritime Delimination in the Area between Greenland and Jan Mayen (Norway v. Denmark), I.C.J. Reports, 1993, pp. 211-279, parts of which are reproduced in Ch. 9 below.

90

Universalising International Law

upwards of four billions of the world’s population professing allegiance to one or other of the major religions, and accepting the fact that each of these major religions must, whether they like it or not, co-exist with all the others for all foreseeable time. We are still pursuing the Grotian model without paying attention to the fact that the circumstances surrounding the relationship of international law and religion have changed enormously. I am not here referring to religion in any of its doctrinaire formulations, but to religion as a source of moral inspiration and as a stimulus to thought about the human condition – the interlocking network of rights and duties which provides the setting for the individual’s relationship with society. No one will deny that law owes much of its inspiration to the moral sense of the community, nor will anyone deny that the moral sense of the community owes much of its inspiration to time-honoured teaching in the great religions. What I am attempting to say simply is that by severing its connection with religion, law, and international law in particular, are cutting themselves adrift from one of their main sources of inspiration. We are, in the words of Elton Trueblood, nursing a “cut flower civilization” which, like cut flowers exhibited in a vase radiate beauty for a while, but wither ever so quickly because they no longer draw upon their root system of morality. In these last two or three centuries we have tended often to lose sight of the fact that relationships between individual and individual, and between individual and society have been the subject of deep experience and inspirational teaching for millennia. There is much accumulated wisdom here. Are we, quite gratuitously, cutting ourselves adrift from this merely because it is considered unfashionable and anti-intellectual to do so? Are we throwing the baby out with the bath water? Specific illustrations of the further vision and reach of these moral systems than our present legal systems are not difficult to envision. In fact, these illustrations come from areas which are of the most crucial importance to the future development of law. Take the case of the rights of those who come after us to enjoy the planet and all that goes with it. All religions are eloquent on the principle that we must not concentrate exclusively on the advantage to ourselves of short-term gain, but that we must look far into the future to ensure that short-term gain does not damage long-term interests. They are particularly eloquent about the obligations to future generations and the rights of those who are to come after us. h) Pseudo-scientism There is a pseudo-scientism that often lurks behind both domestic and international law. Lawyers, certainly in the nineteenth century, began to imitate the scientists. Science, a discipline that claimed to be precise and definite, was yield-

International Lawyers: A Vision for the New Century

91

ing wondrous results, and law could perhaps do likewise if it emulated the precision and definiteness of science. Today even the scientists know that they cannot talk in terms of absolute propositions, but the law often continues to treat its rules and propositions as though they are precise and exact formulae to be read and applied with mathematical certitude. A major result is that the idealisms that lie behind the law are obscured by the letter of the law. This generates a frame of thought, noticeable among many practitioners, that law is a science and an exact one at that. Here is a powerful factor shifting legal attention away from idealism. The nineteenth century belief that crystallized propositions framed in precise scientific language can adequately do duty in the world of the law prompted Justice Holmes to observe that a legal system “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”13 The 21st century will need, while pursuing the quest for certainty, to work itself free of this constraining factor. i) Exclusive Concentration on the Present A further force destroying idealism is our concentration on the present. Modern law concentrates on the present, on the here and now. That is often the limit of our vision. We are not concerned with the past or the future, and in this respect modern law has departed significantly from the attitudes of most traditional systems of law. African traditional wisdom has always pointed out that the human community whose interests must be considered in relation to any rule is threefold – those who went before us, those who are with us here and now, and those who are to come after us. All three together form the human community. But modern law concentrates only on those who are alive here and now, and that is a weakness which traditional systems avoided. Many examples of the contrary view can be quoted from Hindu, Buddhist, Confucian, Islamic, Melanesian, Polynesian and Amerindian tradition. The American Indians, for example, used to think, before they did anything affecting land, of seven generations to come – what would be the impact of this action interfering with nature for seven generations to come before they commenced an act which interfered with nature.14 This concentration on the present gives a one-eyed view of the law to all of those who practise it under the present system. j) Concentration on Rights to the Exclusion of Duties The concentration on rights to the exclusion of the accompanying duties gives us a lop-sided legal picture of the network of rights and duties. This becomes particularly serious in a world dominated by monetarism and economic values. We 13 14

See O. W. Holmes Jr.,. The Common Law, 1881, p.1. See the author’s Separate Opinion of the case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports, 1997, p. 7.

92

Universalising International Law

tend to think exclusively in terms of rights, whereas traditional wisdom spoke in terms of both rights and duties. Indeed, there are many cultures that speak only in terms of duties and not rights. In the Western historical tradition rights were hard won by revolution and rebellion from a State and Church which jealously withheld them. There was a natural emphasis therefore on rights. The concurrent element of duty did not need in that context to be emphasized, especially because it was the traditional concept of duty, such as feudal duty, which had held together the mediaeval structure of society, which was now falling apart. In the absence of a history of violent revolution in assertion of rights, other societies did not have occasion to accentuate rights at the expense of duties and the traditional stress on duties continued. The philosophical basis for doing so was that if duties were duly performed rights automatically fell into place. Modern Western philosophers such as Leon Duguit have also emphasized this aspect and it is one to which international law would do well to pay attention in the new century. k) Neglect of Earth Resources During the 20th century unlike in preceding centuries we had available to us in fairly definite form the scientific data which indicated the finite nature of the earth resources we were exploiting. Yet we went on with the business of exploitation of resources as though this cornucopia was inexhaustible. International law, which should be the custodian of the planet and its resources both for ourselves and for future generations, has long been neglectful of the need to evolve principles protecting these resources. It has awakened to this responsibility only too late and has not yet evolved the range of principles required to handle this grave danger to the human future. We still have an international legal system which permits us to consume our energy resources, fell our rain-forests, extinguish planetary species and poison our atmosphere, land and water resources. Minor controls are being set in place and some legal principles are being evolved but not even to the extent of a fraction of what is required before irreversible damage is done. l) The World Information Order Information moulds opinion both nationally and internationally. These opinions eventually shape public policy, mould national attitudes and drive trade and commerce. If this information can be slanted, distorted or withheld major consequences can follow. In short those who have the power to purvey information wield a vast volume of power without responsibility. When this power is concentrated in a few hands the potential for abuse is great and when this power is concentrated in one sector of the world the potential for abuse needs checks and safeguards.

International Lawyers: A Vision for the New Century

93

This is a problem of global dimensions because the ability to purvey information on a global scale is concentrated in the hands of a comparatively small number of very powerful media operators who are centred mainly in the developed world. There is a resulting one-way flow of information which has been and continues to be a subject of deep concern to the developing world. As the technology controlling satellite and other means of international communication grows ever more complex, the grip on news by those who wield the financial resources to handle that technology grows even tighter. The developing countries sought without success to introduce some balance into this pattern of power when, way back in the 1970s they formulated the principle of the new world information order. This was summarily rejected by the western powers and the grip of those who controlled the media grows ever tighter. This grip leads not only to political power and advantage but also to economic power and advantage. It operates not only at macro level but at micro level as well, for all means of communication tend to be dominated in the same fashion. Here is an example at a micro level from the economic sphere. Take a citizen of a French speaking African country who wants to speak to a citizen of an English speaking African country. He needs, through a satellite, to establish contact with Paris which in turn makes contact with London which then beams the conversation via satellite to the English speaking country in Africa. The annual economic returns to Paris and London from this form of communication are thought to run to millions of dollars. Whatever the figure, this is a profit the economically rich Western world drains out of the economically poor African continent. International law has scarcely addressed this problem thus far although its human rights implications are profound.15 International law in the 21st century will need to be much more acutely concerned with this type of problem than it was in the 20th. m) Fairness in Contract Let me give you another blind spot and this is a very telling example. At the turn of the 20th century, contract lawyers in most jurisdictions would have said that if two people had entered into a contract, that contract is sacred ground. Let not the court interfere, because it is the product of two consenting minds. That’s fine, so long as you turn a blind eye to the fact that those two minds which are entering into the relationship may not be bargaining from a position of equal strength. If one of them is strong and the other is weak - a powerful mine owner, for example, contracting with a coal miner who doesn’t know where his next meal is coming from - he may sign away all his rights because he has no other means of even finding 15

For some of these human rights implications see Justice Without Frontiers, Vol. 1, Chs. 13 and 14.

94

Universalising International Law

food for his family. So, as the century progressed, lawyers in every jurisdiction realized that contract law based upon the fiction of two freely consenting minds was inadequate. The court or the legislature was entitled to intervene on the side of the weaker bargaining party. There is no contract lawyer today who would dispute that this is necessary. But what happens internationally? Internationally, the marketplace is still one of fierce tooth and claw competition, where the rich drive the poor to the wall. The rich make their bargains on the terms that they lay down and all these rules which every domestic legal system would have seen as inseparable from the concept of fairness of contract do not operate in the international marketplace. In the international marketplace, especially when it comes to the purchase of commodities, the bargains that are struck do not have any of these restraining elements that domestic contract law has been able to infuse into the operation of the principle of free bargaining. The international marketplace thus remains a place of ruthlessness and fierce competition, and international law has not been able to address that question with any semblance of adequacy. The vast commodity markets, on which so many countries of the poor world depend for their basic existence, are governed by the iron laws of the competitive marketplace, with the industrialized product steadily widening the lead in prices it enjoys over primary commodities. Where x bags of a product such as rice or maize were wanted to buy a car or a jeep ten years ago, today 2x bags or 3x bags would be required to buy the same car or jeep. The checks and balances taken as axiomatic in domestic law are totally absent from the international marketplace. The new international law will surely have to give its attention to this far-reaching problem. The seriousness of this problem and its implications for global peace can be appreciated when we consider that the contracts concerned are often those on which the poorer countries rely for their very subsistence, for not infrequently they have little to offer the international market place except the commodities they produce. n) Attitudes Towards Land Ownership Another blind spot is the fact that in most legal systems land can be treated as merchandise, like chattels. Land can be bought and sold, like any other commodity, with virtually unrestricted powers being conveyed to the buyer to deal with it as he wills – to parcel it up into smaller portions or to exploit it in a manner which renders it useless to future generations. Such an attitude is anathema to traditional ways of looking at land, as something to be looked upon with reverence. If the land prospers, the people prosper; if the land withers and dies, the people wither and die. Many traditional systems have that idea, but today it is possible because of modern land law which looks on land as merchandise to give its owner all sorts of rights over it, even to the extent of denuding it and rendering it unusable, some-

International Lawyers: A Vision for the New Century

95

times for generations. International law has had a blind spot on this till very recently and as yet has made no serious inroads on the resulting problems. o) Nuclear Weapons16 Nuclear weapons have been produced by the thousands in the days of the cold war and although serious efforts have been made to reduce the stockpiles, they are with us still. International law did not involve itself till comparatively late in the day in coping with this danger to the human race and its planetary habitat, and when the law began to realize that it had a problem on its hands, science had marched several steps ahead. Thereafter the problem began to be addressed in treaties such as the Nuclear Non Proliferation Treaty, but there have been continuing violations of this treaty both by the nuclear powers who gave the non-nuclears a series of assurances and by the non-nuclears who entered into certain undertakings on the strength of those assurances. International law has taken its sights off this basic treaty and permitted itself to be sidetracked on a series of other issues such as a selective targeting of certain violations without a concentration on the violations of their basic obligations by both nuclear and non-nuclear powers. A major problem facing international law in the next century will be the total outlawing of nuclear weapons, but one reason or another tends to be found to keep open a window of opportunity for the use of these weapons in extreme circumstances.17 These loopholes need to be closed. International law has the principles wherewith to do this. They need to be called into operation. Both judicially and extra judicially I have examined the relevant issues in considerable detail, and do not need to recapitulate them here. p) Biotechnology An area fraught with as much danger to humanity as the nuclear bomb is biotechnology. Yet it tends to be ignored by international lawyers as being outside the province of their discipline. On the contrary it has implications which reach far beyond the laboratory where it is conducted – far beyond the physician and the patient and far beyond the subject of the experiment – to the national community and the global community. It operates on an intergenerational scale and has implications for all food crops and life forms on the planet. It runs very close to the bedrock of principles on which international law is built. 16

17

See generally Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons 1996, I.C.J. Reports , p.476-513; Advisory Opinion on the Legality of the Use of Nuclear Weapons in Armed Conflict, 1996, I.C.J. Reports, p.53-65; C.G. Weeramantry, Nuclear Weapons and Scientific Responsibility, Longwood Academic, 1987, reprinted 1999. See the author’s Dissenting Opinion : Legality of the Use by a State of Nuclear Weapons in Armed Conflict, I.C.J. Reports, 1996, p. 101.

96

Universalising International Law

From a vast range of possible examples the following three may be selected to illustrate this point. The mapping of the human genome and cloning open up limitless possibilities for the structuring of human beings in a manner that negates all traditional concepts of humanness and human dignity, which are the bedrock of human rights and international law. Genetic manipulation and the patenting of living organisms have the potential for generating future international conflicts through, among other things, the patenting of seed varieties which constitute the essential food supplies of vast sections of the global population. New procedures such as xenotransplantation with its unknown potential for unleashing on the human population massive plagues and epidemics that can spread across national boundaries, raise vast questions of state responsibility, international environmental problems and intergenerational problems which are of prime importance to international law. This is only a small cross section of a vast range of possibilities. q) The Armaments Industry A major area of concern is international law’s blind spot in relation to the armaments industry. The trade that dispenses death on a massive scale is permitted to flourish and to become a power centre in its own right, while the petty perpetrators of violent crime are hauled before the local magistrate and imprisoned. Highly publicized arms fairs are held in prominent places in capital cities and attract the powerful and the privileged as honoured guests from across the world. The manufacturers’ glossy catalogues detail the efficiency with which their weapons can cause the death of one’s adversaries. A visitor from outer space might well wonder how this is possible in a world dedicated to the peaceful resolution of disputes. Also to be considered is that this industry is often in alliance with the bureaucracy and high finance. The military industrial complex whose influence was so famously highlighted by General Eisenhower carries on its operations undeterred by international law. r) The North South Divide An eighth area needing attention from international lawyers is the problem of the division of the world, de facto though not de jure, into two compartments – the rich world and the poor world. We euphemistically refer to these two major segments into which the world is dividing as North and South. The North-South divide is the basis of a great deal of human misery for the solution of which all the resources of international law must be brought into play.

International Lawyers: A Vision for the New Century

97

One method already visualized, is through greater concern with international economic law and the introduction of principles of fair contract into the international marketplace. There is a tough assignment here for international lawyers, for the pressures of the marketplace are relentless. Yet a beginning could be made by examining all the principles and devices that have been introduced in domestic law for the purpose of redressing bargaining inequality. Once we have a catalogue of these, each one of them could be examined to see to what extent they are translatable into the international marketplace. If they are not translatable why are they not translatable? If an institutional mechanism cannot be worked out can at least a code of principles be agreed, so that eventually the code would begin to bear fruit in practical attitudes. Scientific power and information technology are other areas needing attention, to which also we have referred. I realize the struggle is a hard one, but so was the struggle against slavery and the struggle against unfair domestic contract. The idealists got to work and by slow degrees their thinking infiltrated into the community and the seemingly impossible was achieved. International lawyers have by and large avoided these areas and relegated them to the too hard basket. Yet they need their attention and all the more so because global inequality and economic domination are high on the list of the causes of tension and indeed of wars themselves. In the 21st century we cannot afford to neglect this problem, and conferences of international lawyers will need to address it squarely. s) The Freezing of the UN Charter We achieved a notable advance in the middle of this century with the United Nations Charter. That was a tremendous progression beyond anything that humanity had ever seen before. Yet it was achieved at the price of certain inequalities in the international order. The thinking at the time was that this was only the beginning and that it would develop with time and experience to become progressively an increasingly useful instrument for the just world order of the future. But what happened? The Charter became frozen and now it is supremely difficult to change even a line of the Charter. Likewise, take the Statute of the International Court. When it was formulated in 1920, the idea was that this was only the beginning and was to improve with experience. That was the underlying assumption of the entirety of the discussions at Versailles, out of which the Statute emerged. But what happened? The Statute of the Permanent Court of International Justice became frozen as it was cast in 1920, with some very minor modifications when the Statute was redrafted after World War II. We need to find a way of rendering these great international documents responsive to the needs of changing times. No doubt, the 21st century will find a

98

Universalising International Law

way to do so because this is imperative. But time does not stand still and rights and progress do not become frozen as they were in the middle of the 20th century. They have to develop, and in your time, you will probably see some development. But you will find a vast amount of resistance to it, because any reform is resisted by those whose interests are likely to be affected by the reform. As Winston Churchill once observed, “great reforms are opposed by great interests”. The greater the reform, the greater the interest, and the more opposition there will be to improvement. And there are powerful vested interests and special interests that are protected under current documents. Those interested would try to resist change and preserve their privileges, but, as has been the case throughout the human story, even the most entrenched privileges have been dislodged by the forces of change and reform. So also will it be with the UN Charter. IV. Conclusion I conclude with some general observations which may set the foregoing comments in perspective. 1. The Ebb and Flow of Waves of Idealism Viewed overall the 20th Century has, despite a high potential to the contrary, assigned a comparatively humble role to international law. True, it is the first century in which international law has come into its own, with an official status, so to speak, as embodied in the UN Charter. Yet the role assigned to it has been humble. As each fresh advance, however small, resulted from the three waves of idealism of 1899, 1919 and 1945, there was a firm belief among those taking these initiatives that the new steps thus taken would be expanded with increasing experience of their operation. Every great step must have small beginnings, and these were thought to be the small beginnings. But as each wave of idealism slowly petered out, the small beginnings remained small beginnings. The expected expansions never materialized. For example the Statute of the Permanent Court of International Justice, which was meant to be only the beginning of a much ampler jurisdiction, remained frozen within the confines of an optional jurisdiction. The latter was only a compromise formula on the way to a jurisdiction of a more compulsory nature, which has not materialized for over three quarters of a century. All international lawyers know how these expectations were belied. Even after the sufferings of World War II, that Statute, which was one of freedom’s most eloquent answers to the sufferings of World War I, could not be changed. This is one of the greatest challenges we face in the 21st century. Our progress towards world order cannot be congealed into the forms in which they were set in the middle of the 20th century. The problem is great but I believe it is not insurmountable if the international lawyers of the world pool their expertise and give the requisite advice to their governments to this end.

International Lawyers: A Vision for the New Century

99

This is typical of other advances made, the ultimate example of this being the UN Charter which, as already observed, has itself congealed without becoming the springboard for further development. The wave of idealism that produces the change seems always to peter out, leaving in its wake only the unresolved problems it threw up. The 21st Century will need to do better than this. 2. The Stifling of Idealism Associated with this is the stifling of idealism. Whenever it surfaces it is quickly put down as visionary thinking appropriate for poets and philosophers but not for hard headed international lawyers. Many extra-legal factors combine to produce this result, not the least of which is the lack of political will, especially on the part of the political leaders of the great powers, who do not wish to risk unpopularity with their electorates by becoming embroiled in foreign conflicts. Consequently even where situations arise which cry aloud for action by the world community in assertion of international legal principles, those opportunities pass unused. National interest has been continuously pursued even when it means the entrenchment of dictatorships, so long as those dictatorships provide a safe and conducive atmosphere for foreign investment. Such dictatorships have gathered arms and strength on such waves of support after which they present a global problem which has become increasingly difficult to resolve. The power of monetarism likewise ensures that it is often the decision that is good for commerce rather than the principled decision that will be taken by the political authorities. The media likewise often propagate a version of events which suits the needs of high capital, of which they are a part, and consequently public opinion tends to receive a lopsided picture of international events. All of these factors have been powerful enough to stifle many sparks of idealism in the twentieth century and international lawyers of the twenty first century need to be specially on their guard against the ground being cut under their feet by such factors. The forces referred to are sometimes helped significantly in their negative impact by an academic climate which emphasizes logic and practicality and discourages visionary thinking. This is an additional factor based upon 20th century experience which the lawyers of the 21st century would need to keep in mind. 3. A Meeting Point Between Individualism and Universalism We are now at a stage where we have obtained officially at least an international rule of law. We are hopefully moving towards a Grotian world order. We are probably at a resting place, if we may so describe it, between Hobbesian individualism, where each nation State tries to claw its way to greater power and authority

100

Universalising International Law

against the other nation States and the universalism that people like Kant and Gandhi envisaged. As the great Justice Cardozo said, “The inn that shelters for the night is not the journey’s end.” So, the United Nations Charter is only the inn that shelters for the night, and is not the journey’s end. We have to move forward towards greater progress as the new century gets into its stride. It took us twenty centuries to reach the United Nations Charter, but we have to move forward from there. We cannot move forward meaningfully unless we give some serious attention to the points I have outlined above. The forces negating idealism operate on a global scale in many justice-destroying ways, and we need a conceptual and institutional framework strong enough to hold them in check. 4. The Fertilisation of National Law by International Law It is a hopeful sign of the growing authority of international law that while in the old days the movement of legal principles was from domestic law to international law, today there is a process of cross fertilization. International law is now a considerable source of inspiration to domestic law. Formerly you would look at the various domestic systems and see what principles you could extract from them and say, “Here is a principle of international law”. Now you find the process of fertilization the other way. We look at international law and see in what way it can fertilise the domestic legal system. Witness the human rights area. So many standards and concepts of international human rights in both the procedural and conceptual areas have now become part of domestic legal systems. This is proof if any be required of the growing strength and authority of international law. As we progress, we will find that international law will increasingly fertilise domestic law – whether in industrial law, labour relations, family law, patent law, environmental law or whatever other branch we may care to name. We have come to a stage where it would be impossible to study domestic law without also having a basic understanding of international law. In many areas we will move forward towards a kind of identification or fusion of the general standards and principles applicable in the two systems. 5. The Growth of Centres of International Power without Responsibility As seen already, international law in the 20th century has permitted the growth in numerous areas of centres of international power without responsibility. Media power, scientific power, the armaments industry, economic power – all these have blown up to the level that they have produced major actors on the international stage. The enormous power they wield does not carry with it the principle of responsibility. In national contexts this would be seen as contrary to basic democ-

International Lawyers: A Vision for the New Century

101

ratic principles. Internationally it cannot be otherwise. Yet we are concerned largely with States and we continue to focus on them as though they are all that matters on the scene of international power. 6. The Role of Students International law can be likened to a vessel which sometimes is rudderless and sometimes without pilots, and it is floating on unknown waters. I think everybody who is in this vessel has to do the best they can to guide it right, and the steerers of this vessel are not only the judges and the professors, but also the students, because it is to them that the next century will belong. And in this next century, the ideas that are now fermenting and forming in the minds of students may become the guiding principles of international law. Therefore, there is a heavy responsibility on all of you, who will occupy positions of great responsibility in the world of international law, to do what you can. Placed as you are at the steering end of this vessel of international law on which the global future depends, you cannot be complacent. Just as international law has chalked up great successes, it has also notched up many failures. One of its great enemies is the feeling of impotence that often overcomes international lawyers. They say to themselves, “After all, what can we do?” We only think in terms of laws and regulations, of theories and principles, but real power lies elsewhere. I have dealt with this aspect at the commencement of this discussion. Students, the international lawyers of the future, who will be advising governments in their time, need a more confident attitude regarding the power of their discipline and a determination to raise it to its full stature as a prime instrument for the betterment of the human condition – not merely domestically – but globally. 7. Monetarism We need to be on our guard against the growing power of monetarism. It is not only a vast economic and political power but also spreads a value system which makes economic progress the measure of everything. The rights of future generations, the integrity of the environment, and social and cultural rights of all kinds tend to be overridden by this value system. International law should, while recognizing the value of economic advancement, at the same time be protective of those higher values which monetarism tends to submerge. 8. The Doctrine of Sovereignty I have left to the last one of the most important factors – the concentration on the nation State and the doctrine of state sovereignty. The concentration on the nation State which was worked out from the time of Westphalia, was probably seen as the way to avoid a breakdown of international order. However, the nation state

102

Universalising International Law

concept in the context of modern international law has become an obstacle in many areas vital to global harmony. The nation State concept can be too rigidly employed, especially by some of the more powerful states who are loath to abandon any part of this sovereignty to supranational entities. Even in regard to so important a matter as an International Criminal Court this has been one of the foremost barriers in the way of its creation. The walls of sovereignty are still largely impenetrable though significant breaches have been made in human rights, environmental and other fields. The concept of the nation State will need to become more soft at the borders in the next century. The way to true internationalism will be difficult without a softening of the rigid boundaries that currently surround the concept of the nation State. The view that a state is free to act as it pleases – unless there is some rule of law or treaty provision rendering such conduct impermissible – can lead to dangerous results. This view (known as the Lotus doctrine from its use in the Lotus case)18 tends to linger on in many nooks and crannies of international law and needs to be drastically modified in the light of the new universalism which will be the guiding principle of international law. Its lack of correspondence with the needs of the modern world can most dramatically be illustrated in the case of the use of nuclear weapons. There may be no specific rule prohibiting their use but there is a wealth of general principles that clearly leads to the result of total prohibition. To recapitulate briefly some of the main shortcomings of international law, it tends to be monocultural, monogenerational, monodisciplinary, anthropocentric, rights-centred, individually-oriented, and monetaristically dominated. While it has achieved much, it could have achieved considerably more, and if it has failed to do so international lawyers must take some of the blame for that shortfall. We have to broaden our focus from the individual state to the global community. We must infuse more universal learning and cross disciplinary knowledge into its content, because all knowledge is the province of international law. If it is to be true to the ideals which gave it birth and sustained this vision over the millennia, that is our true course of action and we must set our compass accordingly. We should broaden our focus beyond our nation, our culture, our discipline, our generation, our species, into the true universalism wherein alone international law has its conceptual home. We need to show more concern with duties that reach beyond the customary confines of the purely legal, and to reach much further into the moral and planetary planes, for we are only temporary beneficiaries and trustees of the resources of a limited planet which must serve all species and all generations. 18

The Lotus, 1927, PCIJ Ser. A, no.10, p. 23.

Chapter 4

Emerging Dimensions of Sovereignty in International Law*

Something there is that doesn’t love a wall That sends the frozen ground-swell under it And spills the upper boulders in the sun And makes gaps even two can pass abreast. …Something there is that doesn’t love a wall That wants it down. - Robert Frost In an illuminated city square a hushed and expectant crowd awaits the stroke of midnight. As midnight strikes, jubilation breaks out. The people of Afrasia have achieved independence after many generations of colonial rule. Text books on international law would tell them that they have received their sovereignty as complete and entire as that enjoyed by Imperial Germany at the height of Bismarck’s stewardship. The reality, which becomes apparent to Afrasia’s rulers the next morning, is that their sovereignty is not the shining orb of power they thought they had received but a corroded and attenuated version which the textbooks had not described. Afrasia has a serious minority problem and the prying eyes of non-governmental organizations will pierce Afrasia’s sovereignty and lecture its leaders on how this problem should be solved. Afrasia would like to take its first halting steps towards commencing some minor industries but would be asked to comply with environmental standards which did not apply to its departing rulers. It does not *

Presentation at Joint Conference of World Order Models Project,New York and Soviet Academy of Sciences, 10-16 October 1988, Moscow.

103

104

Universalising International Law

know whether it should continue to use or dismantle the belching smelter that has been kindly left to it by its departing rulers. The World Bank, whose assistance will soon be needed to get the economy moving, will impose a series of conditions relating to the handling of the economy. Neighbouring countries, satellites of one or other of the two power blocs that dominate the world, will try to draw Afrasia into their orbit of influence. There will be pressures from foreign interests for a surrender of some measure of Afrasia’s fiscal autonomy. Great transnational corporations whose technology is vital if Afrasia is to make its way in the world, will lay down the terms on which they will do business, and Afrasia will have no choice but to agree. The sovereignty Afrasia has received seems already heavily eroded when compared with the high expectations instilled by a doctrine of international law that has grown unrelated to reality. Serious questions arise as to whether the doctrine needs to be refashioned in light of the true global situation. Can it then become a more meaningful instrument towards the creation of a better global future for all? How textbook concepts of sovereignty may need to be trimmed to achieve that better global future it will be the purpose of this chapter to explore. The problems of Afrasia are not peculiar to herself nor indeed to developing countries. In one form or another they affect all nation states. If the concept of sovereignty has already been eroded to such an extent that we need to rewrite our definitions, what will its shape be when the twenty-first century gets underway? How will it stand in the stocktaking that will occur when the next century is itself a quarter-century old? On the other hand, are there forces counterbalancing those which erode sovereignty, on the basis of which it may be argued that the concept as a whole is fundamentally unimpaired? This chapter will be in two principal parts. Part A will examine various attitudinal barriers to global authority which kept the concept at bay over a long historical period. These have been melting away in the post war years. Part B sets out a number of perspectives regarding emerging dimensions of sovereignty in this new world order. A.

ATTITUDINAL BARRIERS TO THE CONCEPT OF A WORLD AUTHORITY

Certain attitudes of the past have long impeded movements towards the evolution of global order. There has in recent years been a confluence of several trends which, by wearing down attitudinal barriers to the concept of a world authority, make the prospect of a world authority less worrisome or objectionable than it seemed in the immediate post-war years. The attitudinal barriers which once stood in the way but are being progressively worn down include the following. They are of course a small selection from a much larger list that can be compiled:

Emerging Dimensions of Sovereignty in International Law

105

1. 2. 3. 4. 5. 6. 7. 8.

Belief in the self sufficiency of the omni-competent state; Fear of loss of sovereign power Fear of loss of sovereign dignity Pessimism regarding viability of an overarching world organi-zation; Negative views of the League of Nations; Resistance to regional groupings; Desire of new states for untrammelled sovereignty; Belief that sovereignty being a concept which helped the powerful states to expand their power, will be unconditionally protected by them; 9. Fear of a global super sovereign; 10. Belief in the impenetrability of the walls of sovereignty; 11. Apparent impossibility of permanent commitments to international norms; 12. Earth bound vision; The purpose of this analysis is to show how, one by one, the barriers to global administrative patterns are being weakened and the stage is being set for the emergence of a new world order which will administer a growing number of areas on a global rather than a self-serving national basis. 1.

Belief in the Self Sufficiency of the Omni-competent State

One of the principal barriers to the surrender of any portion of state power to a supra-national organization is the belief, held from time immemorial, in the selfsufficiency of the well-organised state. When doctrines of sovereignty were evolved especially during the Westphalian era there was a belief that the sovereign state, true to earlier sovereignty models going all the way back to Bodin (1530-1596), was omni-competent within its borders. There was no lack of self-confidence in regard to its ability to manage all its internal problems. Today the wheel has turned full circle. Most if not all of its internal problems have become international. Whether it be regulation of narcotics or health or the economy or education or technology or ecology or human rights or labour or trade or industry the individual state now finds that purely internal regulation is futile. Problems that were classically internal problems have turned international and any state would be stultifying itself if not exposing itself to ridicule if it assumed the attitudes of omni-competence of the past. Technology in particular is proving how anachronistic is our current system of seeking the regulation of global affairs within the limited framework of national state power. Its dazzling progress is rendering our legal and political concepts outmoded at an exponentially increasing rate. Acid rain, the greenhouse effect, recombinant DNA experimentation, nuclear pollution, in vitro fertilization, satellite communication, organ transplantation and space exploration are a few illustra-

106

Universalising International Law

tions of the impossibility of confining knowledge, activity or regulation within national boundaries. Under these combined pressures the necessity for international regulation is becoming self-evident and the concept of the omni competent state is beating a heavy retreat. As a shrinking, technologically dominated globe causes all these problems of any one nation to spill over into every other nation’s backyard, the stage is being set for internationalism in a manner never paralleled before in human history. The question is not whether but in what form that new internationalism will present itself. 2.

Fear of Loss of Sovereign Power

A related barrier was the traditional belief that any surrender of the powers associated with sovereignty is an acknowledgement of national weakness and will indeed lead to a progressive diminution of state power. The belief was prevalent that foreign influences were waiting to step in and annex the areas of state power so surrendered. Although in theory any surrender of state sovereignty would be to international organizations, those organizations were seen by many as possible fronts for extensions of influence by the big powers. This belief has resulted in the unwillingness of many sovereign states in any event to contemplate the surrender of any part of their national sovereignty. This barrier, like the last, is fast weakening. Already, without any damage to national sovereignty, this has been achieved in numerous disparate fields – health, labour, human rights, aviation, maritime traffic and narcotics, to mention just a few. Some of these are particularly non-contentious areas – as for example, health and narcotics – but in others, such as maritime traffic, competing international interests have had to be resolved. It is well accepted internationally that there is no loss of national dignity nor any attempt at usurpation of sovereign authority through the international regulation of these areas. There are occasional fears expressed that the governing authorities can themselves be governed by the more powerful states, but there is by and large an acceptance of their neutrality and of the view that the protection of global welfare is their prime concern. 3.

Fear of Loss of Sovereign Dignity

A third attitudinal barrier for which there is now little justification is the doubt many nations felt regarding the ability of international regulatory agencies to function without damaging the dignity or self-respect of nations over whom they are given authority. Sovereignty concepts of the mediaeval world found it inconceivable that an external authority should have power to dictate how a state should

Emerging Dimensions of Sovereignty in International Law

107

regulate any aspect of its affairs. No self-respecting sovereign power could accept such ignominy. The fact that a multitude of such agencies have for decades been functioning acceptably brings global regulation nearer by showing that there is no loss of national dignity from such concessions of sovereign power. In fact a gracious concession of such authority in essential areas enhances the dignity of the state in question by showing that it is a law-abiding and conscientious member of the global community. It is the state which stands aloof from such organization that loses its dignity. The value and acceptability of international regulation has thus been practically demonstrated in many areas. 4.

Pessimism Regarding Viability of an Overarching World Organisation

Owing to the absence throughout recorded history of any attempt at setting up a world organization and as a legacy of the collapse of the League of Nations when one such was in fact constituted, there was a deep-seated pessimism regarding the viability of a world organization. An effective world organization seemed unrealistic. Despite its weaknesses and failures, the UN has now survived far longer than the lifespan of the League of Nations. Far from being moribund it is throwing out new shoots and branches and proving its usefulness in ways too numerous to mention. It has belied the cynicism displayed in some quarters when it was established and has at least is some respects exceeded the expectations of the most sanguine observers at the time of the Dumbarton Oaks Conference. It has managed to embrace within its fold the disparate interests of West and East and North and South, and to provide for them all a continuing forum for discussion and a powerful catalyst for change in international law. It is true the structure of the organization leaves much to be desired in some areas, as for example in the entrenchment in the Security Council of five great powers who will not necessarily continue for all time in the role of dominance they enjoyed in 1945. Yet the organization has not only functioned but done so actively and creatively.1 In short, the UN has legitimized and entrenched the concept of an international authority for the pronouncement of standards acceptable to the world community. It has provided a forum and debating ground; it has provided procedures for the resolution of crisis situations; it has provided an umbrella organization under which a number of separate mechanisms can flourish, and a focal point for consideration of the world order of the future. We stand, therefore, in an enormously more promising situation than our pre1

The recent hostilities in Iraq, while being a major set-back to these hopes, also highlight the indispensability of the UN. See the author’s Armageddon or Brave New World? Reflections on the Hostilities in Iraq, Vishva Lekha, 2003.

108

Universalising International Law

decessors stood in 1945 in their contemplation of the future world order. We have the achievement – uneven though it may be – of several decades of global thinking, debate and action. It is true there have been mistakes and lost opportunities, but the continuing viability and usefulness of the organization have been tellingly demonstrated in numerous fields. Attempts to denigrate it, whittle down its authority and even, at times, to override it have always proved to be counter-productive. 5.

Unduly Negative Views of the League of Nations

There was a tendency to write off the League of Nations as a total failure. There were indeed powerful factors that inevitably dragged it down and impeded its effectiveness. Among these were the rather exclusive and Eurocentric nature of its membership, the fact that the United States and the Soviet Union (apart from a brief period of membership of the latter) were not members, that withdrawal was easy, and that the League was not entrenched in global thinking as the United Nations now is. Yet in numerous areas – in communications, health, commerce, refugees, drug traffic – the League had sterling achievements to its credit. Often on shoestring budgets the Committees functioning under the League, staffed by dedicated bureaucrats, achieved great and significant results. For the first time in world history sanctions were applied on a Great Power, Italy, which came very near at one stage to success. The International Labour Organization (ILO) and the Permanent Court of International Justice were among its lasting achievements. Especially in the years 1924-1931 the League provoked a flood of conferences and consultations, many of which have led to lasting results. This, too, is part of our inheritance and we should take confidence from it. Unfortunately a non-perception of these led to great cynicism regarding the utility of a world organization. 6.

Resistance to Regional Groupings

Another barrier to world organization was the resistance even to regional organization of states. There had indeed been regional groupings of nations in the past, going as far back in history as the Delian League in ancient Greece, but with a few notable exceptions these were generally under the dominance of one particular member. The notion of regional groupings on the footing of the complete equality of all members was impaired by this fear of domination. If regional organizations could not work on a basis of complete equality, far less could equality be expected in a world organization. However, the concept of regional organizations received a new impetus in modern times in Latin America and gathered strength with its recognition in the post World War II world order.

Emerging Dimensions of Sovereignty in International Law

109

Under the impetus of the specific recognition of the regional concept in the UN Charter, the post-war years have seen a multitude of regional groupings – military, economic, and regional. Each of them has involved a surrender in some measure of the sovereignty of the subscribing countries, in consequence of the recognition that protection of national interests receives more strength through united action. Such united action means necessarily that when such action is agreed upon, the dissentient minority must conform. It toeing the line they must accept unpalatable decisions for their greater and long-term good. They set up secretariats with executive powers. They may pass regulations with regional applicability. They may have internal dispute resolution mechanisms. In short, we have seen in action various groupings of nations whose practical experience in various fields of joint activity will be of great value to the universal community of nations as well. In particular there is the experience of the European Economic Community. This involves such far-reaching surrenders of sovereignty as a common currency and a common court of human rights. Such significant surrenders of seemingly inextricable components of sovereign power remove many attitudinal barriers in the way of the eventual acceptance of global authority in a wide spectrum of areas. These groupings can theoretically go two ways. The countries binding themselves together can acquire a fortress mentality towards the rest of the world. On the other hand, the very fact of their unity could cause them to be more easy and confident in their dealings with the rest of the world. If such organizations meet extremely difficult situations they could clam up, but it is to be hoped that their increased strength will give them the self-assurance which will make for more relaxed attitudes. 7.

Influx into the World Order of New States desiring Untrammelled Sovereignty

When a multitude of new states, long deprived of their sovereignty, were released from the bondage of colonialism to become full-fledged members of the community of nations, they naturally desired full and unlimited sovereignty – the goal they had been struggling for many years to achieve. They naturally had great reservations about accepting any diminution of that hard-won sovereignty. They desired to savour the sweetness of full sovereign power. Having now enjoyed it for varying periods and experienced its necessary limitations, they realize the impossibility of the full-fledged sovereignty they had desired. The necessity to sacrifice some of this autonomy in the larger national interest has dawned upon them. Roseate concepts of sovereignty are no longer an ideal for the attainment of which they are prepared to put all other goals aside. Their goal, now that sovereignty is theirs, is rather the increase of material benefits to their own people, and when they see that some relinquishment of their sovereign power to a supra-national entity could produce benefits without loss of

110

Universalising International Law

national dignity, the chances are that they would be less reluctant to opt for such a course than they would have been in the first flush of independence. At the same time the power of globalisation often requires an unwilling surrender of some of their decision making power and this breeds resentments which need to be taken note of. 8.

Belief that sovereignty will be unconditionally protected by the powerful states

This aspect is the converse of that which has just been discussed. An important psychological barrier to reconsideration of sovereignty has been the belief that powerful states will use their influence to resist erosions of a concept that has helped them so significantly in building up their power. This belief has been strongly eroded by the fact of the European Union and the examples it offers of some of the world’s most powerful states willingly surrendering significant parts of their sovereignty. Enthusiasts for the European union are thinking, in terms inconceivable before, of a central bank for Europe, a shift to a common currency and standardization. They see customs control and immigration as operating at the borders of Europe and not at national borders. As the President of the Commission Jacques Delors has observed, ‘In 10 years 80 per cent of economic legislation – and perhaps tax and social legislation – will be directed from the Community’.(Since 1988 much of this has come to pass) This brief recital of some of the implications of economic union show how some of the most vital features of national sovereignty will be affected. The danger to the concept of sovereignty is so great that Mrs. Thatcher is reported to have said that full British entry into the European system would be tantamount to a ‘dissolution of the House of Commons’ – for the implications could be not merely a new European currency but a new European defence system. She prefers the concept of a ‘Europe of several countries working together’. This is the other side of the coin, but the inexorable tide of history seems to be moving towards a progressive surrender of an increasing number of areas previously considered to be integral to the concept of sovereignty. The economic union of the European states means that sovereign prerogatives in relation to all important questions of economic policy must yield to the collective will. For example the German belief that money management is too vital a matter to be left to politicians or that the maintenance of price stability verges on the sacrosanct has deep historical roots. To give up autonomy on such policy matters is to cut at the roots of the sovereignty concept. Yet European countries are committed to such manifest erosions of old concepts of sovereignty. And they were the originators of the concept in its present form, and its principal beneficiaries.

Emerging Dimensions of Sovereignty in International Law

111

If the very originators of the concept have thus announced their preparedness to live with truncated versions of it, there is clearly nothing immutable or everlasting in it. There is certainly hope for its attrition, if not by quantum leaps as in the EEC example, at least by gradual dilution. The need of the future is to plan an expansion of international socio-political space which is free of the gravitational pulls of national sovereignty or of competing ideologies. That expansion is already in progress and it is much to be hoped that there will be a slow acceleration of the process and a steady widening of its area of operation. 9.

Fear of a Global Super Sovereign

There has been a traditional fear that a weakening of state sovereignty through regional or other groupings will lead to the emergence of a super-sovereign that will dominate the rest. That sovereign could dominate the organization and make it an instrument of its own wishes. This fear will weaken as it is realized that we are moving not towards an omnipotent world sovereign (as visualized by the tradition of the Chakravarti in the East and the writings of Dante in the West) but towards a situation where an increasing number of international instrumentalities regulate a variety of activities which were formerly considered to fall within the prerogative of the sovereign state. We are talking of a new world order to be built not upon an omnipotent international sovereign but rather upon a co-ordination by world authorities of the interests of sovereign governments. Through gradual relinquishments of authority, numerous rights that form the bundle of rights we call sovereignty will be voluntarily passed on to the relevant international agencies or authorities. The areas of relinquishment will increase. The international authorities will gain in prestige and efficiency. The process, spread over many years, will be gradual. Indeed the experience of the European Community will provide a very strong precedent. Just as in Europe the many years of preparation for 1992 have made the transition to the conditions of 1992 acceptable, so also larger and more dramatic changes will ensue as the world is knit closer together by a successful track record on the part of the international agencies already in operation – of which an example that readily comes to mind is the World Health Organization. 10. Impenetrability of the Walls of Sovereignty One of the most significant encroachments on the old belief in the impenetrability of the walls of state sovereignty has been made by the post war development of human rights. The fact that there are certain international norms of conduct that prevail even against the internal laws of a sovereign state is now well recognized and is continuing to gather strength. There is a constant appeal both nationally and internationally to these norms in a manner suggestive of their being

112

Universalising International Law

binding to an extent that would have been impossible to contemplate in 1945. The old view of sovereignty held that the manner in which a sovereign dealt with his own subjects was that sovereign’s exclusive concern. No longer can any sovereign state plausibly take up such a position, and no longer is world public opinion prepared to accept such an attitude. This breach of the walls of sovereignty which human rights doctrine has thus effected is a major factor conditioning both states and peoples into the frame of mind that sovereignty is not absolute but must yield to certain universally accepted norms and standards. 11. Apparent Impossibility of Genuine Commitments to International Institutions or Norms The dominance of considerations of realpolitick in the past resulted in an attitude of cynicism regarding the durability of international norms and the commitment of nations to observe them. It was true there had from time to time been the most solemn commitments by groups of nations to a set of higher principles or a new international order. After the Thirty Years War in 1648 or after the defeat of Napoleon in 1815 there had been an attempt, within the perspectives of those times, to set up an international order which would reduce the possibility of the sort of destruction and carnage which the nations concerned had experienced during those traumatic periods. But those commitments and structures were short-lived. The great Peace Conference called at The Hague by Czar Nicholas of Russia in 1899 was aimed at “The Parliament of Man, the Federation of the World” and was full of high resolve, but ended with achievements which were only a pale shadow of the expectations of its authors. What then was the prospect of a lasting world order after World War I? Cynicism ran high at the discussions at Versailles but there were the idealists, of whom President Wilson of the United States was a notable example, who pinned their faith on the possibility of a lasting international organization committed to a higher body of principles. The world set out on its most momentous experiments ever in global governance when it created the League of Nations, but the League was in disarray within a brief period of less than twenty years. It seemed almost a proven proposition that global institutions and principles were destined to be short-lived. There was a deep distrust of international commitments and structures. It is against this background that the magnitude of the UN achievement is to be assessed. We have as a working basis not merely half a century of the continuous functioning of this institution, as referred to earlier. We have something very much more, for we have a commitment of the world community to the Charter of the UN

Emerging Dimensions of Sovereignty in International Law

113

and the Universal Declaration of Human Rights. These commitments are for practical purposes irrevocable. Though the Universal Declaration was only a declaration, it has been transformed over the years into nothing less than a minimum universal commitment. These commitments were entered into at a time when there was a strong swing of the pendulum towards natural law theories in the aftermath of the atrocities of World War II. Legal history records alternate swings between natural law and positivism, and there was indeed a swing towards positivism on the international scene after the idealism of the heady days of the Charter and the Universal Declaration. Yet these swings occurred against a background of commitment to the Charter and the Declaration, in the same way as later swings towards positivism could not alter the commitment to natural law principles enshrined in the US Constitution – a commitment entered into at the height of the flowering of natural law principles in the eighteenth century. There will indeed be tendencies to read the UN charter narrowly and legalistically as there are tendencies from time to time to read the US Constitution narrowly and legalistically but the UN Charter is here to stay and constitutes a seminal watershed in international legal history. Sovereign states have now lived for several decades within the limitations of sovereignty inherent in the UN Charter and in the Universal Declaration. That was a teething period which has proved that these two infants on the international stage are viable. We have in a sense weathered the storm of the first major intrusions upon the sovereignty concept. If that storm has been survived, there is no reason for pessimism regarding later developments which, however extensive, will by no means be as novel. Indeed far from being Utopian it seems to the present writer that world organization, whatever form it may take, is inevitable, having regard to the proved incapacity of the nation state to handle by itself the many matters of commerce, industry, education, health, environment, communications or any other which were formerly thought to be within its sovereign domain. In setting out the importance of the UN, it is not suggested that the UN Charter whether in its present or in an altered form is to be entrenched. It is the principle of commitment to the Charter and to the Universal Declaration that is entrenched – a commitment from which the participants cannot walk away as they were able to do in regard to the Covenant of the League. 12. Earth Bound Vision If an earth-bound vision prevented us in the past from seeing beyond the interests of our own nation state, the perspectives of the space age have made for another giant attitudinal leap. As the World Commission on Environment and Development observed:1 1

Our Common Future, Oxford University Press, 1987, p.1.

114

Universalising International Law

In the middle of the 20th century, we saw our planet from space for the first time. Historians may eventually find that this vision had a greater impact on thought than did the Copernican revolution of the 16th century, which upset the human self-image by revealing that the Earth is not the center of the universe. From space, we see a small and fragile ball dominated not by human activity and edifices but by a pattern of clouds, oceans, greenery, and soils. Humanity’s inability to fit its doings into that pattern is changing planetary systems, fundamentally. Many such changes are accompanied by life-threatening hazards. This new reality, from which there is no escape, must be recognized – and managed. The feelings of surprise of the generation which first witnessed this phenomenon will not be shared by their children. To them it will be humdrum reality – part of their education and their thinking. Their children’s children will probably consider it surprising that their forbears could ever have thought in terms of national regulation of global forces. They may see it somewhat as Milton saw press censorship, when he likened it in Areopagitica to ‘that gallant man who thought to pound up the crows by shutting his park gate’. For all the reasons set out we have a firm foundation on which to build. We already have an irreducible minimum of structures and experience which will not diminish but which we can only improve. Our direction is set, and some of the instruments we need are already in our hands. We only need a favourable climate of opinion, a favourable tide, so to speak, in which to set sail towards the global civilization of the future. It gives great hope for the future that the stage for further improvements in the world order is thus being set for our generation against a background which even the visionaries of the past may not have thought possible. B.

EMERGING DIMENSIONS OF SOVEREIGNTY IN THE NEW WORLD ORDER

Having noted how some of the roadblocks in the way of the erosion of sovereignty have themselves been eroded, this paper will now proceed to consider some important dimensions of the concept of sovereignty in the world order of the future. 1. 2. 3. 4. 5. 6.

Economic dimensions of global security Some jurisprudential perspectives; Broadening the cultural base of the international legal order; The development of the Nuremberg principles; The armaments industry and sovereignty; The enlargement of the jus cogens concept so as to accommodate

Emerging Dimensions of Sovereignty in International Law

7.

8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

115

species survival imperatives. A concomitant set of species survival desiderata should provide a set of emerging norms; The formulation of significant interdependence situations as the basis for a set of emerging norms on their way to becoming jus cogens; A new global resources regime; Creating a constituency for unborn generations; Co-operation in outer space as a catalyst to revised concepts of sovereignty; Enlargement of positive obligations attendant on sovereignty; The trading corporation as penetrator of the walls of sovereignty; Impact on the nation state of the communications revolution; Increasing international consensus through increased knowledge; The closing of past chapters; The protection of minority cultures; The views of peoples as constituting opinio juris; Alternative problem solving frameworks; The conflict between sovereignty and humanitarian intervention Strengthening the ‘invisible college’ of international lawyers

Quite obviously these matters cannot be considered in detail in this paper. Its aim is only to provide a catalyst for discussion as every one of these aspects has an important bearing upon the shape and direction of concepts of sovereignty in the period immediately ahead. 1.

Economic Dimensions of Sovereignty and Security

Economic considerations must necessarily play an important role in any discussions of the shape of sovereignty in the world order of the future. This is especially so because global security and the economic order are intimately interlinked in a world where instant communication, global television coverage and the like bring every country in close proximity to every other. There can be no stability in a world with a widening gap between the prosperity of a minority of nations and the poverty, impotence and dependence of the majority. Extremisms of all sorts will surface and terrorism of the most virulent kind can occur in the most unexpected places to disrupt global peace. All the world hopes for global stability in the next century but economic disparities of the current order undermine such hopes. These same disparities cut the ground also under the reality of state sovereignty for the nations affected by extreme poverty. Some aspects of these disparities have the practical effect not only of diminishing the sovereignty of the nation affected but of enhancing the sovereignty of other nations that control those limiting factors.

116

Universalising International Law

Any planning of a future world order must come to grips with these realities, not merely by acknowledging their existence – for few will now deny them – but by formulating coherent and viable schemes for their minimization. A few aspects of these economic considerations will now be examined. i)

The Global Village The new world order will see a widening of concepts of global security to include other dimensions than the merely military. The economic considerations set out under this head go to the heart of global security perhaps in a sense more vital than even military security for, with the shrinking of the globe, they undermine the peace of our global village. Mass communications bring the world ever closer to the analogy of the village where everyone sees everyone else at close quarters and rubs shoulders with them. In such a limited environment certain attitudes and conduct would not be tolerated which would pass unnoticed in a larger community whose constituent members live at a distance from each other. Imagine a village of say a thousand people, where the affluent 200 pursue lives of ostentatious luxury, flaunting their wealth before the eyes of a malnourished 800. Peace would not last in that village. Nor will it last in a shrinking globe where the technology of modern communications makes every country the close neighbour of every other and brings every lifestyle within the direct visibility of every other.

ii)

The bondage of international debt The borrowing of foreign loans is theoretically the free act of a freely consenting state, just as the borrowing of money by a needy individual in a domestic situation is theoretically the free act of a freely consenting individual. For centuries legal systems have functioned on the basis of this fiction of free consent, with the result that legal systems did not interfere with the terms of these transactions. Sociological legal theory however demonstrated the total unreality of this supposition, and came to the aid of the borrower through a series of statutory and common law protections. This averted a situation that could result in a total surrender of an individual’s autonomy of action in the name of the theoretical and fictional concept of presumed bargaining equality. International law has not yet reflected this reorientation of approach which domestic law has registered. In the result, autonomy, one of the essential attributes of sovereignty, is surrendered in many vital spheres through the terms of international loan transactions. Thus, what every contract lawyer would admit within a national jurisdiction to be a situation unquestioningly demanding assistance to the weaker party, passes without question. A hand-

Emerging Dimensions of Sovereignty in International Law

117

ful of countries controls the lending processes, and the autonomy of the borrowing nations often passes to the lenders. Since tensions of various sorts are often the precursors to conflicts, this area needs to be watched from the standpoint of global security. The involvement of factors such as these with the political process is demonstrated from time to time in such situations as where the terms of a loan from the IMF or the World Bank require a freezing of salaries at current levels, or a privatization of industries which national policy would like to retain in the public sector, or imposes a mandatory price rise on the cost of essential goods including food, or a devaluation of currency, which has a devastating effect on the cost of living. These can become explosive issues, generating political forces in those countries to an extent sufficient to shift the political complexion of their governments, and to affect regional and global security. (iii) International Trade So it is with international trade. Here likewise an analogy may be made with domestic law, which till the beginning of the 20th century regarded the terms of a contract as sacrosanct and would not interfere in the interest of the weaker contracting party. The restraints now applied by domestic law to control exploitation of the weak by the strong thus redress at least in some measure the iniquities resulting from bargaining inequality. In the international marketplace the free-forall of the fierce Hobbesian state of nature is the order of the day. In the result, once again through the legal fiction of bargaining equality which everyone knows does not exist, basic individual rights are denigrated, and autonomy destroyed. Translated into the international scene, state sovereignty is impaired, and this breeds dangerous resentments. The balance of trade, partly in consequence of this entrenchment in the international marketplace of principles discarded in the domestic marketplace, keeps moving adversely to such an extent that the commodities which the developing world sells to the developed world have to be surrendered in increasing quantities to buy the same manufactured article. For example, double the quantity of the same product which was adequate to buy a jeep five years ago might be required to buy that same jeep today. President Nyerere, interviewed on the UNDP film ‘Five Minutes To Midnight’, said that if two tons of sisal were then needed to buy what one ton of sisal bought before, that extra ton of sisal must have gone into the pockets of someone, somewhere. Some at least of that has gone into the coffers of the developed world at the expense of the developing world. Along with money there has also been a passing of power, for to the extent that the autonomy of the country in question has been weakened, to that extent has power passed

118

Universalising International Law

to an entity overseas. That piece of a country’s autonomy which disappears with crippling national debt or crippling adverse conditions of trade, has found its way into another repository of sovereign power. The principle of sovereign equality, thus constantly under erosion, can well be attenuated by these processes to the extent that it ceases to exist. The concept of sovereignty cannot receive meaningful attention unless it receives concerned attention at this economic baseline. (iv) The Widening North-South Cleavage Very little was done in the UN system on these matters until on the initiative of the Non-Aligned Movement, UNCTAD, the Conference on Trade and Development was set up in 1964. That Conference put its finger upon many vital areas such as trade practices, trade restrictions, stabilizing the prices of agricultural produce and compensatory financing. However it did not receive from the developed countries the co-operation it merited and if any stable world order is to emerge in the future these subjects must receive a greater input of co-operation. Perhaps the area of unfair trade practices in domestic law, which has recently been deeply researched in many jurisdictions can offer some guidelines. International lawyers will need to research these to devise ways in which they can be translated into the discourse of international law. It may be that some principles ingrained in current human rights learning can be called in aid, as for example the right to a fair standard of living and the right to free and fair contract. These could be developed so as to provide a basis of binding principles on which principles of fairness could be introduced into the international marketplace. The work of UNCTAD can offer us some guidelines in this connection. Its policy from the commencement has been one of compromise and co-operation rather than confrontation and conflict. Without standing for or canvassing any particular economic system it strives to restructure the existing international economic system in such a way as to facilitate the full and effective participation of all states.2 Seven items in the integrated programme for commodities (IPC) adopted by UNCTAD IV as early as 1979 are still relevant and remain unfulfilled: (a) The establishment of internationally owned stocks covering a wide range of commodities; (b) The establishment of a common financing fund that would make resources available for the acquisition of stocks; (c) The institution of a system of commitments to purchase and sell commodities at agreed prices; 2

The History of UNCTAD 1964-84,UN, 1985, pp.10-11, 18.

Emerging Dimensions of Sovereignty in International Law

119

(d) The institution of more adequate measures to provide compensatory financing to producers; (e) The initiation of an extensive programme of measures to further the processing of commodities by the producing countries themselves.3 The essentiality to sovereign equality of these or other restructurings of the international economic system means that the more developed states would need to take active steps towards the realization of these and related measures, even if it may mean giving up some of their traditional sovereign autonomy to trade freely and upon their own terms in the international marketplace. (v)

The Weakening of the thrust towards a New World Economic Order The matters referred to thus far are only some aspects of a more deep-seated security problem. The 4th Non-Aligned Summit at Algiers in 1973, through its studies of the world economic system, resulted in the Declaration for the Establishment of a New International Economic Order. The 1974 General Assembly Declaration on the Establishment of a New International Economic Order (GA Res.3201 of May 1, 1974 13 ILM 715(1974) and the 1974 General Assembly Resolution on the Charter of Economic Rights and Duties of States adopted by a vote of 120 in favour, 6 against and 10 abstentions (GA Res.3281 (XXIX) of 12 Dec.1974 14 ILM 251(1975) gave expression to several of these sentiments and embodied a set of principles to which the international community needs to give more attention. The Colombo Summit in 1976 pursued these issues further in its Economic Declaration and Action Programme. The thrust towards a New International Economic Order seems however to have run out of steam in the early 1980s and it is urgently necessary for it to regain some of its lost momentum. The forces of globalisation have submerged some of its basic precepts, and other preoccupations on the international scene have robbed it of its immediacy. Its essentiality to the world order of the future necessitates more attention being directed towards it, and conferences such as the present can play a valuable role in bringing it back on the world agenda. Looking back at these events at the dawn of the 21st century one sees them as so many opportunities missed on the path towards the creation of a just world order.

3

Op. cit., p.64.

120

Universalising International Law

2.

Jurisprudential Perspectives

(i)

Sovereignty in the Books and Sovereignty in the Field The problem of divergences between sovereignty in the books and sovereignty in the field must receive from international lawyers no less attention than has been devoted by domestic lawyers to the problem of divergences in domestic jurisdictions between the law in the books and the law in the field. The realization of this divergence in domestic law was largely the result of the work of the realist and sociological schools of jurisprudence commencing in the early decades of the 20th century. They were prepared to examine the harsh realities of law as it really operated in society, whatever the law in the books may have said. International law is sorely in need of such a realist examination of how it truly operates. Too often we are content to see the fine formulations of principles in treaties and treatises but neglect to observe the operation of these principles in the real world. Especially in the less developed countries, the way in which economic pressures shrink their sovereignty to a fraction of that enjoyed by the more powerful is a reality of the international scene deeply felt by the former. The realization that peace in a political sense is dependent on basic economic justice will help in overcoming this discrepancy. This chapter later examines a series of precepts for species survival which the developing international law of the future will be compelled to build into emerging norms of international law. It may be that through some such means it will be possible to persuade richer nations to surrender some part of their autonomy in the interests of world order through a better system of economic regulation which draws some inspiration from the manner in which these imbalances are redressed domestically.

(ii)

Inconsistencies Between Doctrines of State Equality and Sovereignty The equality of states and the sovereignty of states, both concepts of great importance in international law, have always been uneasy bedfellows. The more one emphasizes the sovereign power of all states the more one whittles down the real equality of some. The more one emphasizes the equality of all states, the more the limitations of sovereign autonomy that will attach to some. The clash resembles the clash between freedom of contract and individual freedom. As we enlarge the domain of freedom of contract, the freedom of the individual tends to shrink, for overwhelming contractual power in the hands of the powerful progressively takes away the options of free action available to the weaker. The more powerful proceeds on a career of expansion that

Emerging Dimensions of Sovereignty in International Law

121

drives into the ground the freedom of the individual to make his choices of products, of employment, and of trade. If, on the other hand, one seeks to protect individual freedom, freedom of contract needs to be curtailed. How then can these uneasy partner concepts be held in equilibrium? To grant untrammelled freedom of sovereign action means that the greater strength of the more powerful state encroaches upon and cripples the like freedom of the less powerful. As the strong flex their industrial muscles, expand their military or naval potential or extend their industrial empires, the freedom of the weak to do likewise is progressively impaired. To grant the equality principle full rein is to impose curbs on the stronger powers who must hold themselves in check lest they encroach on the equality of their weaker colleagues in the world community. As with all concepts, especially those in the human rights field, we have learned that there is no such thing as the absolute and unfettered use of a right, just as there is no such notion as an absolute concept. Every concept has its limitations, especially when the expansion of the one can only be effected at the expense of the other. One of the tasks of international law and one of the preludes to moving into an era of global civilization is to abstract progressively the areas of clash between the two concepts, and to entrust those areas to an international or supranational entity. The European Community has been able to do this with great success in several areas of trade, agriculture, and industry. Globally we have already achieved this in health regulation, labour, and aviation. No doubt the areas of such supranational regulation will continue. (iii) Lack of precision in concept of sovereignty There is much need for theoretical work by international lawyers in importing jurisprudential perspectives into the analysis of the concepts of sovereignty and equality. In the discourse of international law, sovereignty has been given a central importance which tends to conceal many aspects concerning its origin which are essential to our appreciation of its true significance. Among these are that the term has a wide range of connotations, and that in the form in which we currently allude to it, it is the product of a particular historical period and of a particular political milieu. The Peace of Westphalia, suitable and necessary for a Europe ravaged by its most disastrous war thus far – the Thirty Years War – launched the notion of the sovereign nation state in a peculiarly European and peculiarly seventeenth century context. A concept circumscribed in time and place and never precisely defined is thus given the appear-

122

Universalising International Law

ances of precision and permanence, and used as standard currency in the world of international law.4 There have been other concepts of sovereignty the world over which have not been based on the territorial model but have, for example, been based on personal allegiance, tribal loyalties, religious authority and the like. Indeed a presentation on this basis was made to the International Court of Justice by Morocco in the Western Sahara case where the Court noted the special character of the Sherifan State at the time of the Spanish colonization of the Western Sahara. The Court also noted the allegiance of various Western Sahara tribes to the Sultan of Morocco.5 A comprehensive consideration of the concept of sovereignty requires a consideration of such perspectives as well. (iv) Internal sovereignty and international sovereignty We must also be on our guard against the confusion of the doctrine of internal sovereignty within a nation with the doctrine of state sovereignty as understood in international law. The former doctrine proclaimed that in relation to its subjects the state possessed a certain plenitude of power vested in it, which varied with different theories of sovereignty. The latter gave all states a uniform status in relation to other states which meant that each was recognized as an entity with the sole right to represent its people internationally and with a fictional equality with all other sovereign states. It was common to both doctrines that no external authority stood superior to the state in the matters entrusted to it. The perspectives of the sovereignty of a state held by its subjects and by its fellow states thus differed. To the former the state was the repository of those powers which had been entrusted to it under whatever was the prevailing theory. For example the theory of Hobbes would vest it with nearly all powers the individual enjoyed in a state of nature while the theory of Locke would entrust it with only limited powers. The subject in a Lockean state could thus contend that the state never enjoyed sovereignty over his inalienable rights of life, liberty and property – a perspective which through human rights discourse has gained nearly universal acceptance. The internal sovereignty of a state over its people and territory could likewise by restricted by a series of principles, practices or arrangements within the state. However, as far as fellow states are concerned they see that state as the sole sovereign over its people and territory and hold it accountable as such.

4 5

See R.B.J.Walker, State Sovereignty, Global Civilisation and the Rearticulation of Political Space, 1988. Western Sahara, Advisory Opinion, I.C.J. Reports, 1975, p.44.

Emerging Dimensions of Sovereignty in International Law

123

(v) Penetrating the veil of sovereignty The traditional doctrine of sovereignty in international law thus meant that to the other states of the international community, this perspective of limited sovereignty was not available. All that foreign states could perceive was the sovereign state itself and they could not penetrate the veil of its sovereignty. The doctrine of the powerlessness of the international community to penetrate the screen of sovereignty is proving manifestly inadequate to a world full of concepts and phenomena never foreseen at the time the concept evolved. These render it imperative that we cast aside our presuppositions and seek to evolve for the twenty-first century a concept that is flexible and shorn of its false appearances of definiteness and immutability. Urgently needed is a theory of sovereignty which present a less crystalised and a less monolithic view of the sovereign state. New doctrines of sovereignty for international law must also jettison the idea that only sovereign states are recognized personalities in international law and must find a place for people and vast trading entities such as multi-national corporations as subjects of international law, or else we would be steering international law against the strong universal current of global recognition of individual rights. This would involve, inter alia, an increasing surrender of part of a state’s autonomy over its subjects, as for example, for major human rights violations and war crimes, subjection of its territory to international standards and regulations, as for example, in regard to environmental hazards, and opening up its commerce and industry to international scrutiny where human rights, labour and fair trading practices are involved. In short it will in the long term be in a considerably attenuated form that state sovereignty will survive. (vi) The wide variety of possible jurisprudential approaches Numerous other jurisprudential approaches are possible. Among these are (i) Hohfeldian analyses of the nature of sovereignty and equality, in the light of the rights, duties, powers, liabilities, immunities and disabilities of the nation state; (ii) Kantian philosophical analyses of the ways in which the extension of a concept can enter the area of operation of another concept and at that point lose its validity; (iii) a dissection after the fashion of analytical jurisprudence of each concept into its component elements, separating the core elements from those which are peripheral or expendable; (iv) realist analyses drawing attention to the divergences between theory and reality in the manner of the realists’ examination of legal concepts and procedures; (v) an examination of the psychological or internalized elements involved in the acceptance of these concepts as in the fashion of the Scandinavian realists. These

124

Universalising International Law

will centre on the core question “Why is international law obeyed?” – a question of particular importance to international law because of its lack of an enforcement mechanism; (vi) linguistic analyses of the meanings of sovereignty and equality; (vii) Kelsen’s grundnorm theory in relation to the source of the authority of the state and of its sovereignty; (viii) Teleological theories that force us to look at the ends and purposes of a concept rather than at the arid logic of its terminology; (ix) Jellinek’s theory that the individual existences of states can remain unimpaired even though they have formally surrendered their sovereignty to a federation; (x) Duguit’s social solidarity theory, according to which the sovereign is only a figurative manner of reference to the people temporarily in charge of a community, who are in fact directed by powerful social forces. In short, there are many insights from the field of jurisprudence which will be imported into the analysis of these concepts of international law. Hitherto these insights have been used mainly for the analysis and dissection of concepts within municipal systems. To expand just a few of these, Immanuel Kant postulated for the conduct of individuals his categorical imperative which dictates that each individual should adopt a rule of conduct such that every other can simultaneously govern himself by a like rule. So also, a categorical imperative can grow up in relation to the conduct of states. Kant was confident that logic dictated this rule of conduct for any individuals living in any society anywhere. The same irresistible logic dictates a similar rule for states cohabiting environmental space, and in a rapidly contracting world the logic of this rule may well prove irresistible and indeed a precondition for human survival. Kelsen’s analysis could also prove particularly helpful, for to Kelsen the state is not a legal personality at all but simply the entirety of the legal order. In Kelsen’s theory, unlike Austin’s there is no element of all-powerful physical force vested in the state. The obligation to obey the law is not derived from the force it commands but from the logic implicit in the hierarchical theory of norms. It follows from such a theory that the subjects of international law are not states but individuals. As state authority declines and internationalism grows, it may well be that a Kelsenian approach which affords a place to the state but fits it within a system of norms will give more room for both universalism and individual rights. It may thus offer perspectives of value for the new international order. Nor are Kelsen’s insights the only jurisprudential bases for a heightened recognition of individual rights. Krabbe was also strongly of the view that the subject of international law are not states but individuals. Krabbe, like Kelsen, equates the state with the law and this thinking may well have appeal

Emerging Dimensions of Sovereignty in International Law

125

to the more mature sentiments that are likely to prevail in the twenty-first century. If on the other hand one looks at Duguit there are insights here into the way in which the sovereign will move. Where Austin would have spoken in terms of the isolation of the sovereign, for Duguit inexorable social forces provide the engine or motor force which activates the will of the so-called sovereign. The sovereign does not thus have independent volition but is the creature of forces beyond its control. In an age of internationalism the sovereign may wish to cling to an archaic fiction of form but in reality it would be moved by those international social forces which are today gaining ascendancy in so many areas of state activity. In these jurisprudential reflections there are no doubt many ideas and principles that can be seized upon to give a valid juridical basis to the world order of the future. Indeed we can through such perspectives greatly enrich the monism/dualism debate which for long has divided international lawyers into two camps. Dualistic approaches, with their emphasis on the autonomy of the nation state may well need profound reconsideration as the many factors and forces pressing for universalism extend their grip on the global system. Such analyses will assist greatly in preparing international law and international lawyers for accepting curtailments in sovereignty, as it is now understood, for the purpose of meeting the demands of co-existence and co-operation which tomorrow’s world will require. The view that fulfilment of international obligation is a dimension of political independence will also result from such analyses. Political independence carries responsibilities to the international community which accord privileges to the state entity which it endows with political independence. Fulfilment of international obligations is the quid pro quo for this privilege. It is part and parcel of it and will be so recognized. Jellinek argued that the state by creating law binds itself to fulfill it. Translated to an international plane this could give us the principle that the international community, by creating international law, binds itself to fulfill it. (vii) The Development of a set of jural postulates for a new world order Roscoe Pound, in an analysis of the framework within which legal systems work, formulated his celebrated concept of jural postulates. Every civilization, every legal order, has its own framework of postulates on which it is structured. Those postulates may not be directly formulated in those terms, but it is a tacit and underlying assumption that the system’s rules of law or legal principles will not run counter to those postulates. The international legal system likewise needs a formulation of those concepts in terms which are relevant to the needs of today and tomorrow. Among the

126

Universalising International Law

jural postulates there needs to be a postulate that international law and all its rules are directed to the survival of the human species and of the life support systems of the planet, and that no contrary action or principle of action would receive recognition from the system of international law. The value framework of peace, economic well-being, social justice and ecological balance can well provide the guiding ideas for these jural postulates. Other jural postulates can no doubt be formulated, embodying, inter alia, some of the principles outlined in this article. What authority will the jural postulates possess? Will they be a parallel system to the jus cogens principles, or a supplementary body of principles reinforcing and explaining them? The author envisages that they will start as a set of guidelines representing a consensus among international lawyers and will gradually work themselves up the scale of acceptance until they enter the categories of jus cogens. Some of them are already principles included in the select jus cogens group. Others are nearly there, while others still have some way to go before they enter the charmed circle. Jural postulates will serve the additional purpose of stimulating the emergence of new jus cogens principles. The group of jus cogens principles is too narrow and the enlargement of the group has traditionally been a process so slow as to be unable to keep pace with the accelerated rated of change in the contemporary world. The formulation of jural postulates could accelerate this process. 3.

Broadening the Cultural Base of International Law6

The international law of the future must be able to draw upon a ready and willing acceptance of it by the vast global population without whose support it will tend to be ineffective. It scarcely needs to be emphasized that the stress on culture is not impractical idealism unrelated to hard realities but that culture conditions perceptions of reality in terms of principles, values and beliefs. It is those perceptions that translate into political realities. As Emery Reves observed in The Anatomy of Peace7 the self same international event is seen differently in Moscow, London, Paris, Berlin or New York. An event is perceived as such through the eyes and mind of the beholder and these are not impersonal computers but have been conditioned by centuries of culture and tradition. The current tendency of the overwhelming majority of international law scholars is to present international law either directly or inferentially as a European construct, first put together by the inventive Spanish and Dutch lawyers of the sixteenth and seventeenth centuries. According to this view these were the minds that 6 7

See generally Ch.1 of this volume. Emery Reves, The Anatomy of Peace, Harper Bros., NY, 1945.

Emerging Dimensions of Sovereignty in International Law

127

formulated the first coherent and systematic set of rules weaving together into a new discipline the isolated strands that they collected from a global survey of history, philosophy, theology and law. Many leading publicists say this directly. Most others work on the basis of such a tacit assumption. It is important to the future regime of international law that these assumptions, together with the cultural superiority they imply, be re-examined. Coherent multi-volume treatises on international law were, in fact, compiled eight centuries before Grotius by Islamic jurists such as Al-Shaibany, who wrote of the law of treaties, international contracts, diplomatic protection, the jus ad bellum, the jus in bello, and the other topics of international law. This, and the group of writings of that age, were perhaps the first systematic compilations, so modern in many respects as to be an anticipation of the Geneva and Hague Conventions.8 Many traditional legal systems (Buddhist, Hindu, Confucian, Taoist) developed a host of concepts based on human dignity with remarkable anticipation not only of the principles contained in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights but also of the principles contained in the International Covenant on Economic, Social and Cultural Rights. The family of rights contained in the latter Covenant were a long time in receiving recognition in the Western world. They went beyond modern formulations in that they stressed the concept of duties, thus giving a greater social orientation and utility to these concepts. They also dealt at some length with such concepts as the sanctity of treaties, the duty to achieve universal peace and harmony, the peaceful resolution of disputes and the like. More acknowledgement that international law is not a purely European / Christian construct will help in making the rules of international law more universally acceptable as an emanation from the spirit of universalism rather than the product of one particular culture. International law scholars have other work to do as well. Chinese, Hindu and Buddhist thinking regarding universalism and obligations towards other countries offer a large and untapped resource. The kaleidoscope of customary law systems in Asia, Africa, the Pacific and the Americas contains rich traditions regarding duties of individuals, groups, tribes and nations to the greater community of humanity and to the primordial order of the universe, viewed as a composite of man and nature. It is important that the teaching of international law be geared to these perspectives and that research projects be set up to co-ordinate this vital information and integrate it into the corpus of international law. 8

See C.G.Weeramantry, Islamic Jurisprudence: An International Perspective, Macmillans, London, 1998, pp. 135-6.

128

4.

Universalising International Law

Developing the Nuremberg Principles

The international law of the future needs to develop the concepts of individual duties and responsibilities, discarding its almost exclusive concentration in the past on the rights and obligations of states. The Nuremberg principles are an important beginning in this regard for they embodied considerable departures from traditional international law attitudes. Not all of these have been adequately built upon by international lawyers, and there needs to be considerable further development of the role of the individual in international law. This will not be without important repercussions on sovereignty concepts as currently understood. A significant result of Nuremberg was the clear formulation of the principle that there lies upon every individual a duty towards humanity which transcends loyalty to his or her state. Nuremberg was unambiguous in its condemnation of obedience to express orders emanating from legitimate state authority, if those orders required the perpetration of crimes against humanity. The principle that there is a loyalty to humanity which transcends one’s national loyalties needs to be considerably developed, and it seems most likely that the international law of the future will devote to this problem considerably more attention than it has in the past. The yardstick may not necessarily be whether the conduct constitutes a crime against humanity. We may need to work downwards from that level of direct objectionability, to conduct which endangers the human future – from direct commission of crimes against humanity to the laying of the foundations for the commission of such crimes or for the creation of damage commensurate with that caused by such crimes. Thus there could be crimes against the environment (ecocide), economic crimes resulting from the predatory activities of multinationals in developing countries and crimes in relation to the manufacture of nuclear, biological or chemical weapons. There is much work here for international lawyers in analyzing and broadening the scope of this duty. It will be a most important and useful preparation for the task of laying the groundwork of the international legal order of the future. 5.

International Regulations of the Armaments Trade

The armaments trade is a major roadblock on the way to any global regulation of human affairs. Domestic and international lawyers need to give their earnest attention to this anomaly.9 This matter has been mentioned in other contexts elsewhere in this volume. There is a certain obscenity about the current international order which while banning the sale of narcotics on the side streets of a city permits 9

See C.G.Weeramantry, “The Arms Trade:A Blind Spot in Human Rights and International Law” Development Dialogue, Dag Hammarskjold Centre, pp.68-90, 1987. See also Justice Without Frontiers, Vol. 2, Ch.11.

Emerging Dimensions of Sovereignty in International Law

129

the sale of weapons of slaughter at weapons fairs in its public places, with all the panoply of a carnival. This blind spot in international law needs to be explored. At least five areas need detailed study if these carnivals of death are to be prevented – human rights, scientific ethics, international law, possible UN initiatives and alternatives to weapons production. This last is particularly important as millions of jobs depend on the arms trade, and alternative peaceful uses must be found for the plants and establishments which service the arms industry. Turning swords into ploughshares is today a precondition not merely to peace but to human survival, and was hence never more important in human history. The arms trade is linked inextricably with the development problem, for in a world of scarcity every dollar spent on armaments is a dollar taken away from ameliorating the conditions of the poor. It is not to be forgotten also that the arms trade is closely associated with other trades which are total negations of human rights and dignity but which are often the sources of the funds that purchase arms. Among these are the narcotics trade, trafficking in women and children and the rapidly growing trade in instruments of torture. 6.

Species Survival Imperatives

Modern jurisprudence has stressed the fact that the power dimension emphasized by nineteenth century positivism addresses only one aspect of the network of controls, regulations and restraints by which the life of the individual is governed. Within a national legal system the power of the policeman or the court official accounts for only a small segment of the individual’s conduct. While being subject to the power structure of the state, the individual is also subject to other parallel regimes of authority which simultaneously claim his allegiance. His trade union, his church, the mores of his neighbourhood, his club, his fellow employees and the in-house rules of his workplace, all provide a complex matrix of regulation that shapes his life and inhibits his tendencies to do as he pleases. An early and comparatively simplified view of state power, such as the Austinian, tends to ignore the realities of all constraints except those backed by state power, and to relegate the rest to a level where they are not the concerns of the law. They are not ‘law properly so called’, however powerful they may be as factors influencing the individual’s conduct. Such theories suited the power structure of the centralized nation states of the nineteenth century and tended to be readily accepted in an age which stressed formalism and formal logic. In the result, legal systems could stray far indeed from reality and not see the denials of basic justice that flourished under their umbrella, such as gross contractual inequality unredressed by legal regulation to protect the weak against exploitation or lack of legal aid even in cases of capital crime. The legal structure was formal and powerful, and there was insufficient social pressure

130

Universalising International Law

to compel attention to these anomalies. But the theory and the reality cannot diverge to such an extent without danger to the entire theoretical structure. Sociological and realist jurisprudence stimulated by such landmark events as Roscoe Pound’s famous address to the American Bar Association in 1903 on ‘Causes of Popular Dissatisfaction with the Administration of Justice’, pointed out the inadequacies of old theories and the need to revamp them. The discrepancies for developing societies were even greater, and research such as that of Malinowski10 showed that other versions of regulation existed which indeed deserved the name of law, though far removed from the Austinian model. Such versions were in a sense more effective than the most sophisticated legal systems in delivering prompt, efficient and accessible justice to the members of a community. The current theory of sovereignty in international law is akin to the Austinian model of sovereignty within the state. It is a neat, formalistic and logical doctrine, convenient for the rulers of states and not unduly disturbed by the need for the adjustment of its theoretical structure to conform to practical realities or imperatives for human progress or, indeed, survival. Yet as conditions in the modern world are showing us, it strays far from reality and humanity’s real needs. It fails to take note of the fact that there is more than mere physical authority that makes up the binding force of a law. As McDougal and Reisman have shown11 there are three strands of expectation regarding a norm if it is to be considered as a legal prescription – namely a policy content, an authority signal and a control intention. These operate together like the coaxial cables of modern telephone communication. If each of the three is satisfied, international law exists, although there is no physical power of enforcement or central repository of such power. Indeed this threefold list can be expanded considerably in the light of some of the factors mentioned earlier in this section. As the international community of peoples of the world coheres closer together, tied by common sentiments and desires regarding the need for peace, the policy content and control intention in relation to matters affecting human survival will express themselves more clearly in the global community, making their message felt irrespective and independent of the nation states. The global population does not have to await a signal from the nation state that human survival is an imperative. It is already so without the imprimatur of the nation states. Indeed, it would be illogical to bring such a matter within the exclusive purview of the nation state under any doctrine of international law or sovereignty. 10 11

Crime and Custom in Savage Society, Kegan Paul,1926. Myres S. McDougal and W. Michael Reisman,“The Prescribing Function in World Constitutive Process: How International Law is Made”, 6, Yale Studies in World Public Order, 1980, pp.249256, 268-284.

Emerging Dimensions of Sovereignty in International Law

131

It is one of those basic essentials that rises above the province of the nation state and indeed compels its obedience in the manner of jus cogens. Just as sovereignty does not denote an ability to override jus cogens, so also it cannot override the necessities for basic human survival. It would be irresponsible and impractical for nation states to arrogate to themselves such matters, for they concern humanity, and in the light of the compelling evidence now emerging of numerous issues touching human survival – nuclear pollution and ozone depletion, to mention two – the category of matters affecting human survival must necessarily be withdrawn from the exclusive operation of sovereignty doctrine. The concept of sovereignty which is adequate for the future seems then to be one which recognises a category analogous to jus cogens out of matters of human and planetary survival. Such areas cannot in the nature of things belong to the exclusive jurisdiction of the nation state. A new jus cogens of species preservation must evolve. It will derive its justification from its essentiality, its authority from the will of the world’s peoples, its juristic basis from principles analogous to those which subject sovereign authority to jus cogens. We are living in the midst of the emergence of such threats as have not manifested themselves before. No legal system, national or international, is adequate if it fails to respond to imperatives when they appear. National legal systems have responded to the extent possible when new imperatives surface, as for example under the threat of sudden epidemic, warfare, famine and earthquake. The international system has not responded adequately either in concepts or in structures, largely owing to the sovereignty concept. If the suggested alteration in the theory of sovereignty should be accepted, both the concepts and the structures necessary for this will evolve. We already have precedents. The World Health Organization has sufficient structures and authority to handle health problems – e.g. plague, smallpox, cholera – which are a hazard to humanity. AIDS will inevitably result in an increasing delegation (or surrender) to it of national authority. Nobody has suggested that such delegation or surrender of authority violates sovereign integrity because the need for it is so manifest that the transition of regulatory authority from the state to WHO scarcely attracts comment. Matters of species survival are no different. It may be argued that health matters are not intermingled with considerations of war and peace and are therefore easy to relinquish. Many matters of species survival are linked with considerations of military strategy, power and authority, thus rendering them unlikely candidates for surrender of state authority. This may be so, and the struggle to bring such matters under international control may be difficult. Yet there are many other matters, e.g. the ozone layer, injection of heat and carbon dioxide into the atmosphere, acid rain – that can well be the subject of international regulation in a manner similar to health regulation,

132

Universalising International Law

without overtones of surrender of state authority. They may well be the bridge to the establishment of the species survival imperative which is here advocated. Once the category is established and recognized, the inclusion within it of other items may be less problematic than if nuclear matters are approached in a category of their own. Indeed as this paper was being prepared in August 1988 the press carried a report of the latest research on the impact on the oceans of the ‘green house effect’, conducted at the Universities of New South Wales and Sydney. As reported to the 26th Congress of the International Geographical Union, this research suggested that more than 300,000 people from islands in the Indian and Pacific oceans could become ‘environmental refugees’ in countries like Australia by the year 2030, when sea levels are expected to rise by between 0.2 and 1.4 metres. Countries like Kiribati, Tuvalu and the Maldives could be affected and the cost of engineering works to prevent marine incursions would be high. This is an illustration of a matter of species survival, where all the world must take note and co-operate. 7.

Species Survival Desiderata

Let us move now from the negative to the positive. The imperative of species survival concerns the prevention of activities damaging to human survival. On the other hand, there is a series of activities which aim at the betterment of the human condition. Outstanding among recent examples is the exploration of space and its preservation without contamination, for the benefit of future generations. Population and resource pressures on the planet may force humanity to look outwards towards space, as indeed is already the case. A false step here can gravely endanger the global future, e.g., the creation of national zones in space, space pollution whether through biological contamination or through indiscriminate launching of space objects, weapons in space, etc. On the other hand, there can be an enormous betterment of the human condition if the first steps in the direction of space are wisely ordered. The concept of the species survival imperative will need to be expanded into the area of species survival desiderata. The transition is difficult but not impossible, and here again we are providentially furnished with an excellent bridge in the form of space exploration. Other categories that can be brought within this rubric, for which there is already a precedent in international regulation, are the world heritage including the forests, the oceans and the atmosphere. 8.

The Formulation of Significant Interdependence Situations

It is true there is no action of any significance that takes place today within a country which does not produce a ripple effect on all others, whether the

Emerging Dimensions of Sovereignty in International Law

133

original action be economic, political, environmental, or other. Yet there are certain areas where this interdependence is so substantial and important that there is danger in unilateral national action. Categories of interdependence need to be formulated by international lawyers, scientists, economists and others. The register needs to be most cautiously formulated, with enormous care given to the initial entries. If there is a consensus of major scholars that a matter is so significant in its interdependence aspects that it warrants entry in the register, an international climate of opinion can build up that purely national regulation is not only unwise but irresponsible. Such an interdependence committee may well make no immediate impact upon international law but it will be laying the foundation for the emergence of future norms when the global society is more ready for them. Criteria for inclusion in the register of significant interdependent activities will rigorously lay down indicia representing an international consensus of interdisciplinary opinion. The interdependence situations will conceivably fall into categories similar to those of the World Order Models Project’s four-fold value framework of peace, economic well-being, social justice, and ecological balance. Each one of them involves interdependence, and in each of them the dangers of unilateral action can gravely endanger world order, if not human survival. Some areas to be developed are: (i)

Environmental Law as a New Branch of International Law

The law governing the environment opens up a new chapter of international law. This is so in more senses than one, not the least of which is the impact it will have on the traditional doctrine of state sovereignty. We have already dealt with imperatives for species survival and the impact these will have on state sovereignty. But environmental law deals not merely with the survival of the species or with the improvement of its condition. It provides one of the prime vehicles for the development of international co-operation in the future and it also provides an essential setting for the enjoyment of all human rights. It is only within basic environmental standards that any specified human rights can be truly enjoyed. Environmental law perhaps more than any other has the potential for breeding the spirit of international co-operation. The numerous environmental treaties produced thus far represent each in its own way a surrender by the subscribing states of an area of their traditional sovereign jurisdiction. As these treaties demonstrate their usefulness and their strength such areas will increase both in scope and in number. This assumes particular significance as the activities which are thus curbed are traditionally among the most difficult to curb – commercial activities and military activities. When environmental considerations place a fetter on these activi-

134

Universalising International Law

ties they demonstrate real power. For example, the 1979 Convention on Long Range Transborder Air Pollution does not restrict its prohibitions to any one kind of activity or any one class of actor. Multinational corporations and governments themselves (together with their military establishments) are bound. (ii) Potential Catastrophic Disasters Bhopal type chemical mishaps and Chernobyl type nuclear mishaps, or mishaps of somewhat lesser dimensions, will keep occurring and reinforce the pressure on governments to yield to an international agency the right to monitor such installations and to international law the right to stipulate standards. Whereas in the past a variety of conceptual justifications might have been available as arguments against permitting such external intrusion in internal affairs, these justifications cannot prevail in the face of the massive potential for damage such incidents have revealed. States will be compelled by force of international opinion to yield their sovereignty in these matters. Indeed, it is not only international opinion that will compel this but self-interest too, for every state would want to protect its citizens against such disasters but will not be able to do so except on conditions of reciprocity. It is not rash prophecy to predict that the supervision of such activities will come to be shared with an international agency. Moreover, once this habit becomes ingrained internationally it will spread from the ultra-hazardous to the merely hazardous and from the hazardous to the environmentally damaging. The wall of sovereign impenetrability having once been breached, it will be difficult to resist further intrusions – nor will conceptual justifications based on the sovereignty concept seem reasonable or proper to an environmentally conscious world. Inexorably the world will move towards a common set of ecological standards promulgated by the appropriate international bodies, each acting with growing assurance and authority. (iii) Technology Assessment Committees The range of bodies that will thus grow up is difficult to predict. An international technology assessment committee will probably be one of the more important. On the model of national technology assessment bodies, it will have the authority to assess potentially harmful technology before it is actually put into operation. It will probably be interdisciplinary in character with an appropriate mix of scientists, representatives of commerce, lawyers and state representatives. Its authority to declare a particular application of technology potentially harmful will carry with it a variety of sanctions, and states would have to conform to its rulings. If, as in the environmental sphere, these rulings cover military technology as well, we would have progressed far along the way to world government and the weak-

Emerging Dimensions of Sovereignty in International Law

135

ening of the traditionally rigid internal authority of the nation state. (iv) Principles of Disclosure In order that such committees should function efficiently there would need to be a principle of disclosure in advance to such a body, of potentially harmful technology which is sought to be put into operation. Here again there would be a considerable intrusion into the authority of the sovereign state. 9.

A New Global Resources Regime

Resource shortages will be a prime concern of the next generation. Nonrenewable resources as well as renewable resources will all be in short supply as population increases, standards of living rise, and expectations grow. Yet the planet’s resources are finite, and the bulk of them in vital areas have already been drawn upon. Not merely fossil fuels but minerals of all sorts will be increasingly needed at a time when available quantities are rapidly diminishing. The Australian scientist Professor Charles Birch in his book Confronting the Future12 depicts the average citizen of the developed world as a creature wrapped up in tonnes of steel, copper, aluminium, lead, zinc, tin and plastics, gobbling up 30 kilograms of raw steel each day and consuming more than a barrel of oil a week. Citizens of the developing world impose perhaps one two-hundredth part of the strain per capita on the environment imposed by such a level of consumption. When resources are unlimited this may be no problem. But when increasing populations compete for diminishing resources, such waste and such discrepancies are an international problem demanding international attention. New concepts are also required to handle such situations and even doctrines such as that of permanent sovereignty over natural resources may need to be revised in the global interest, for they give too state-centred a control over natural resources vital to the global community. Such concerns cannot be the concerns of any one state. We are living in the twilight of the era in which these could be handled on a national scale. At the same time other imperatives are emerging – including environmental concerns and species survival imperatives, as discussed earlier. 10. The Constituency of the Unborn In the milieu of domestic politics the unborn have no voice. Our narrow view of democracy gives a place only to those who are present here and now. Other traditions of government give a place to those who have gone before us and those who are yet to come – as, for example, the cultures of Africa or the Pacific, in many of which the notion of ‘the community’embraces the past, the present and the future.

12

Penguin, 1975, p. 130.

136

Universalising International Law

Unborn generations have no representation, and though they constitute the majority of the human race as it exists in time, we can proceed to enrich ourselves at their expense with total impunity. We begin to think of them only when we ourselves are hurt. The proper governance of the affairs of the planet necessitates representation of this vast constituency whom Western juristic tradition leaves out in the cold. How this is to be done is a matter to be worked out, but the wisdom of many world traditions, including the African, Melanesian and Chinese, can be brought in aid. Some entity within the various authorities charged with the regulation of global affairs needs to be charged with this responsibility. Correspondingly, a set of principles or guidelines for the conservation of their interests needs to be evolved. Just as, in two-party adversarial litigation, the needs of society would tend to be overlooked unless a third lawyer represents the interests of society, so also in all global institutions some official or department should be charged with responsibility for overseeing the interests of the constituency of the unborn. 11. Space Exploration This is another area where technology will make a profound impact upon the concept of the sovereign state. The sovereign state concept evolved against the background of the belief that governmental authority on the face of the planet could be carved up into distinct pieces based on territorial authority. Each of those pieces of power was an entity complete within itself, theoretically capable of being insulated and sealed away from others. The fact of interdependence in trade and commerce was, of course, recognized, but other interdependencies were few. This was an ant’s eye view, possible only very much at surface level. Today, with our satellite’s eye view of our planet, we have realized that the interdependencies are many, and in fact that areas of total independence scarcely exist at all. Environmental concerns, transport and telecommunications have shown us that old concepts of sovereignty have to give at many points. We cannot lose sight of the fact, even when we contemplate the next quartercentury, that we are living, to quote Arthur Clarke13 ‘in the closing years of man’s earth-bound era’. Man has already moved out into space, set foot on another celestial body, and made preparations for assembling habitable space stations. We are adding another dimension to our vision. The walls of separation between those who share a common planet – walls erected by the doctrine of sovereignty – take on an appearance of absurdity when viewed through the eyes of a cosmonaut. Increasingly and imperceptibly, under the impact of the space age, we are taking on the eyes of cosmonauts, and we speak of spaceship earth in common parlance. 13

Op.cit., Preface.

Emerging Dimensions of Sovereignty in International Law

137

The next quarter-century will in all probability see a dramatic escalation of humanity’s ventures into space. Not only will we begin to see our global problems through the eyes of space-age man, but we will be devising through international law the necessary structures for the governance of space. This will be entirely a matter for global regulation, for which the Moon Treaty affords an important stereotype. Once the spectre of space weapons is put out of the way – present trends indicate this to be a distinct possibility – it is most unlikely that there will be a contest for new domains or national regimes in space. Space activity will grow expotentially, and it is likely to be a co-operative effort. Not only will governments cooperate with each other, but commerce and governments will also co-operate. All this has much potential for lessening the importance of the sovereign state. Our perspective vision of the importance of global government will greatly increase and the importance of national sovereignty correspondingly diminish. “And there is another factor that will accelerate the unification of the world. Within another lifetime this will not be the only world, and that fact will have a profound psychological impact upon all humanity.”14 If, as the scientists predict, the real colonization of space gets underway in the next century, there will soon be people who do not look upon the Old World as home. ‘When there are men who do not look upon Earth as home, then the men of Earth will find themselves drawing closer together’.15 We have been speaking thus far of the vision of ordinary citizens, not particularly concerned with matters legal or with doctrines of national sovereignty. The psychological considerations we have mentioned will not pass the lawyers by. I would expect that in common with all other inhabitants of the planet they themselves will undergo ‘profound changes of attitude’ and that the anachronisms in the doctrine of state sovereignty will present themselves in more glaring fashion than ever before to the community of international lawyers as well. Dramatic alterations of the concept are likely to result, weakening the wall of sovereignty even more considerably than human rights and environmental concerns have done already. 12. Enlargement of Obligations Attendant on Sovereignty Sovereignty is, in jural terms, a status conferring rights and powers. It is a benefit accorded to each state by the international community. But there is a quid pro quo for such recognition – the other side of the coin. With those rights and powers come duties to the international community. The world of the future will increasingly demand that the concept of sovereignty be turned to affirmative use. The very privileges which attach to the states 14 15

Arthur C.Clarke, op.cit., p. 171. Clarke, op.cit., p. 172.

138

Universalising International Law

will mean, in a world hypersensitive to survival, that there will be a demand for the use of that concept in the services of human survival. For example, the exclusive right to grant permission for the construction of a nuclear reactor or for the licensing of recombinant DNA experimentation lies presently with the nation state. But this principle carries responsibilities of active cooperation with the international community in ensuring that harm is not caused to the world community in general. That co-operation needs to be forthcoming if state sovereignty doctrines are to continue. Without such co-operation it is not inconceivable that a call may arise for the forcible surrender of these areas of authority. If state sovereignty is to continue into the indefinite future it can only be on the basis of a progressive enlargement of the obligations attendant on sovereignty. 13. Trading Corporations as Penetrators of the Wall of Sovereignty Among the most powerful forces penetrating the walls of state sovereignty today are the multinational corporations. They cross and recross national boundaries with the greatest of ease, carrying with them their own rules of business conduct. Anthony Sampson, in The Sovereign State: The Secret History of ITT,16 gives us a picture of a business tycoon every bit as powerful as a medieval sovereign who controls a vast empire from his boardrooms in America and Europe, rarely setting foot on territory of which he is not in sovereign command – be it an aeroplane, a limousine, or a sumptuous banqueting hall. Such men and the entities they control wield more power than many a nation state today. Yet there is comparatively little that international law does to control them. Numerous attempts to devise controls and limitations on transnational trading activities have been attempted by ILO and other international organizations. Yet the task is immense, for some multinationals trade under up to a thousand different corporate names in dozens of countries. Without the most detailed research it is impossible to trace a given action of such a corporation to its source through the numerous ramifications of its multiple registrations. Multinationals have served a useful purpose in breaking through the walls of national sovereignty and giving us a glimpse of the universalism of the future. Yet they pose dangers to the international system, for they can defy even the attempts of a world organization to keep them within bounds. They pose dangers also in that they know no codes or loyalties save those based on profit to themselves. They are thus a challenge to the world order of the future. If in some way their resources can be harnessed to the service of a higher set of ideals they are a powerful tool for achieving a better world order for the future. Much study needs to be conducted on 16

Coronet Books, 1974.

Emerging Dimensions of Sovereignty in International Law

139

the ways in which these powerful entities can be held to their human rights obligations and to their obligations under international law. 14. The Communications Revolution (i)

Knitting the World Together

New communication technologies have in history exercised an important influence on the creation and the continuance of states. Arthur Clarke, the prophet of the space age, to whose vision of the future we have already made reference, has this to say on the topic:17 It is perfectly obvious that the communications revolution will have the most profound influence on that fairly recent invention, the nation state. I am fond of reminding American audiences that their country was created only a cen tury ago by two inventions. Before these inventions it was impossible to have a United States of America. Afterwards it was impossible not to have it… These inventions, of course, were the railroad and the electric telegraph. Clarke was referring to the United States as the coast to coast leviathan which it now is, rather than the comparatively diminutive collection of States that existed at the time of the founding fathers. Clarke ventures the opinion that we are now seeing the next step in this process. “History is repeating itself one turn higher on the spiral. What the railroad and the telegraph did in continental areas a hundred years ago, the jet plane and the communications satellite will soon be doing to the whole world’’. This is strongly reminiscent of Wells’ prediction in The Shape of Things to Come, of communications and transport authorities becoming an international power center so strong as to constitute an important arm of world government in themselves. (ii)

Expanding the Reach of International Law

From the standpoint of international law, the communications revolution is expanding its reach in whatever department the world of the future wishes to regulate itself. The physical impossibility of global regulation, which must have daunted earlier thinkers on this topic, is no longer an obstacle. Societies and industrial enterprises that were on the verge of de-escalation for sheer lack of clerical manpower to handle them, were saved from such a necessity by the arrival of the computer which, far from being daunted by the workload involved, is calling for more. We no longer need to be circumscribed in our thinking about world governments by any fear of inability to process any type of information on a global scale. 17

Arthur C. Clarke, Report on Planet Earth and Other Speculations, Victor Gollancz, Corgi Edn.1971, p.170.

140

Universalising International Law

To that extent world government has been brought one step nearer. (iii) Creating a Global Society The communications revolution is also moving us forward to the global society – a society made up of people who look upon themselves as global citizens, seeing planet earth as one closely knit unit with common problems and common aspirations. The intellectual precursors of the global community – authors who over the ages have given the lead in global thinking – are numerous. There is considerable room for the hope that thanks to the communications revolution a considerable constituency of truly global citizens is building up in every country. We shall also see the evolution of a transnational culture linking together in strong bonds of mutual interest persons who are able to communicate instantly with each other across national boundaries. With the rapidly diminishing cost of computer information and appliances, the day is not far distant when any citizens of the planet would be able to tap these central repositories of information in their own language. We would be so much closer to the concept of being global citizens when that occurs. The barrier of language, so long an impediment to global communication and so long one of the main buttresses of national sovereignty, will have been substantially broken down. (iv) Creating New International Institutions In the sphere of international institutions, all those detailed regulations which attend a global regulation of any aspect of our affairs can now be satisfactorily marshalled, analysed and policed by the central authorities to whom they are entrusted, with less trouble than even the small nation state encountered in the first quarter of this century in handling its own departments such as health, transport, trade or telecommunications. In view of the central repository of expertise available to these global authorities there will be a greater tendency to leave to them, subject to overall policy control by the nation states, the handling of these affairs. As they grow in size, power and expertise, they will become very significant entities in their own right in the world of the future, whether or not they reach the level of importance predicted by Wells. Futurists such as Arthur Clarke predict that without deliberate planning, world meteorological and earth resources satellite systems, and the world communications satellite system (of which Intelsat is the precursor) will eventually transcend their individual components, becoming power centers in themselves and running the world at least in the area of communication which will form such a vital area in the global future. To what extent they will incorporate within themselves the commercial entities which handle these affairs, such as ITT, AT & T, and the like, has yet to be

Emerging Dimensions of Sovereignty in International Law

141

determined. The shape of evolution of the COMSAT authority with these commercial entities providing much of the expertise and a share of the capital is not entirely clear. They could each in its own way be a microcosm of the dominant forces of today’s global policy and could work forward from those beginnings to more complex forms of organization for handling the increasing power that will come to them. International law will need to gear itself for handling these new centers of power. A world satellite communication authority would need not only a structural blueprint providing for an adequate mix of governmental, technological and commercial elements, but also an ethical code. Existing prototypes such as WHO or ILO, though useful, will not be adequate, for information is power and power needs to be controlled. Such power cannot be permitted to rest in the affluent section of the global economy which alone has the resources to service them, but needs to be shared with all sectors. A pressing problem of the future will be the devising of ways and means of achieving such a sharing of information power. Any global entity devised for this purpose will handle information in the fields of health, education, trade, resource allocation, transport, telecommunication, or any other – which today are important areas of authority of the nation state. To the extent that these are handled by this international authority there will be a derogation from traditional sovereign authority. As the system gathers momentum and processes ever increasing quantities of global information, there will imperceptibly be a shift to the international arena of an ever increasing segment of information and therefore of power currently assumed to be the preserve of the sovereign state. (v)

A New International Information Order

We must not overlook the fact that these entities will also be processing and handling those items of information which we call news. This is a highly sensitive area, just as it is one of great power. For this reason, strict standards and regulations will no doubt be evolved by international law for ensuring objectivity and impartiality. There will be an urgent need for a New International Information Order capable of righting the current imbalance in news presentation resulting from Western ownership of the main media networks. 15. Increasing Consensus Through Increased Knowledge The path to international regulation in any area is obstructed by alternative theories and helped forward by consensus. In a study from the Brookings Institute18 Richard Cooper, a former economics officer of the State Department under President Carter, compares the current contradictions in international economic theory with the debates which used to take place about principles of public health. 18

Empirical Macroeconomics, ed. Ralph C. Bryant et al, The Brookings Institute, Washington, 1988.

142

Universalising International Law

Thus, while in principle everyone was agreed at one stage that international co-operation could play a significant role in stopping the spread of contagious diseases, the existence of rival epidemiological theories prevented the emergence of a consensus on effective policy measures. When further knowledge enabled a consensus to emerge, the policy measures followed, building upon the consensus. With consensus, the acceptance of common structural measures could also follow more easily. So, also, in regard to economics. Today we are all agreed that it makes sense to take co-operative measures, having regard to the fact that economic steps taken by one government affect others almost immediately. However, there is not as yet a consensus as to how such measures will impact on other economies and how the overseas economic policy of one country will affect others. The phenomenal growth of information in the post-war period has led to some clarification of the issues. For example, we know better today than every before that domestic economies are immensely sensitive to foreign policy actions both at home and abroad. We know that increased government spending will boost national income and thereby stimulate imports, and thereby increase the current account deficit, and thereby increase the supply of domestic currency in the hands of foreigners who will apply pressure to obtain it at a lower rate as a precondition to holding it. It can also produce the contrary effect of increasing the demand for credit, thereby pushing up the interest rates, thereby making the country’s currency more attractive, thereby increasing the flow of foreign capital. Such contrary factors need to be balanced, and the Brookings study shows how eleven complex computer models working on US currency expansion have produced four models which say that US monetary expansion will cut the current account deficit after one year, and seven which say the opposite. However, such work is still in its infancy. As more sophisticated computer models are devised, and as more hard information is available and is fed into them, the areas of consensus in regard to cause and effect are likely to enlarge. No doubt the areas of disagreement will always be present, giving economists ample room for debate. Yet the areas of basic agreement are likely to increase – not dramatically, but by slow accretion. Having regard to current rates of increase of knowledge and current rates of increase in the ability to process them such areas of consensus could well grow into an agreed base of principles which will support international action. Economics is so important to international harmony and foreign relations that considerable effort must be spent by the international lawyers of the future in examining its impact upon international relations and the need for its being handled at an international level of co-operation, as with the European Monetary System. A global system may still be some distance in the future but if and when it can be devised, it will have a dramatic effect on global government.

Emerging Dimensions of Sovereignty in International Law

143

The looming international debt crisis is a warning signal that the financial structures we take for granted can well collapse. H.G.Wells, in The Shape of Things to Come, premised his portrayed collapse of the world order on the inadequacies of the world financial system. It came to disaster ‘because of the disproportionate development of industrial production, the unsoundness and vulnerability of its monetary nexus and its political inadaptability. It had no inherent power of recovery and there was no idea of a new order, sufficiently developed to replace it’.19 16. The Closing of Past Historical Chapters The history of the world is full of iniquities. Iniquity has often fattened upon itself and triumphed. In its hour of triumph it has often shed its cloak of iniquity and donned the shining vestments of moral authority. If one were to keep probing the past there can be no solution to the world’s ills. An outstanding example of global iniquity is colonialism. On the eve of World War I Western states controlled 85 per cent of the earth’s land surface containing 70 per cent of the world’s population. All subject countries were made to serve the interests of their colonial masters, their material resources were at the latter’s disposal and their historical and cultural treasures vandalized. There may well have been some minimal advantages to some of the colonized, but for them history stood still and development was stifled during those very periods ranging from fifty to four hundred years when the West was fast developing. The balance sheet of colonization was thus heavily loaded on the debit side and it would take generations for the West to repay that debt if indeed it were possible. There is however no place for bitter recriminations in the future global civilization. If claims for colonial exploitation could be agitated in world forums as conceivably they could legally be, we shall have for generations a crop of such claims. Indeed there are signs that claims for the return of cultural treasures are only just beginning to surface. If the claims should extend to economic exploitation of colonial territories in breach of the higher trust principle on which alone the sovereignty over colonial peoples could be justified, there can be no end to them. World peace and order thus demand that in consideration of stability and cooperation bygones be treated as bygones. In the context of the concept of sovereignty, there is however another side to this coin - the wracking problem of Third World debt which is also interrelated to the colonial past. We are today in a situation where the effect of the debt crisis on the world’s poor is devastating. Africa owed around 150 billion or 70% of its gross domestic product to overseas lenders in 1987 and Latin America’s foreign debt absorbed around 61 per cent of its GNP. In the words of Mr. Ketema Yifru an advocate to the 19

H.G.Wells, The Shape of Things to Come, Corgi Books, 1984 Reprint, p.12.

144

Universalising International Law

UN World Food Program (Melbourne Age, 15 August 1988) the foreign debt of Third World countries is worse than famine in the long term because it leads to more famine. Money now goes to service the debt at the expense of education standards, disease control, food production and long term development. The poor countries pay back more in servicing debts than they receive in aid. Here as in the case of colonialism there is perhaps no purpose in apportioning blame. If one were to analyse the reasons why these countries had to seek these loans and why they have been unable to repay them there will be a heavy burden of responsibility both on people in those countries and on people outside who influenced their destinies. In fact one would not travel very far without having to rake up the colonial past. If it is right that we should forget the colonial past and wipe out those scores, would it be asking too much of the world community to go easy on the foreign debt and treat a substantial part of it if not the entirety in some cases, as also a case of bygones? It is convenient for the former colonial powers to assert that the wrongs of the colonial era should be forgotten. Such an act of conscious oblivion on the part of the colonized means a sinking of innumerable morally righteous and sometimes legally righteous claims. Would it be too much of a price, a quid pro quo so to speak, for the Western world to waive this crippling debt which now obstructs Third World development? The author is conscious of the implications of this proposal. The Western monetary system depends heavily on the repayment of this debt. The money represents the investments of many small investors in those countries. Yet the resolution of the Third World debt must figure high on the agenda of world order studies and some means must be found which will lead to a viable world rather than one in which two-thirds of its members are economically crippled. Phasing out the debt through the collective wealth and goodwill of the affluent nations is not an insurmountable task. There are no panaceas but this problem must be seriously addressed. It lies too near the core of world order for it to be lightly brushed aside. 17. The Protection of Minority Cultures We have stressed already that the future world order is not likely to take the form of a super state. Yet even looser forms of international organizations have inherent in them the risk of a smothering of cultures. This is well illustrated in the European Community where the long domination of the nine EC languages – English, French, German, Italian, Spanish, Greek, Danish, Dutch, Portuguese (and the limited use of Irish) – has now provoked the users of 33 ‘lesser-used language cultures’ to organize themselves. The European

Emerging Dimensions of Sovereignty in International Law

145

Bureau for Lesser Used Languages – such as Alsatian, Calabrian, Friesian, Welsh, Gaelic – is actively organizing measures for the preservation of these languages and the cultures they embody. This is not to speak of second and third generation speakers of such languages as Kurdish, Turkish, Arabic and Urdu who, unlike speakers of the former languages, do not occupy a distinctive and contiguous territory. The EC exhibits in microcosm some of the cultural concerns of minorities when any process is under way to put together a larger grouping of peoples or states. They have already suffered even in the context of the single nation state actions which they see as discriminatory and damaging to their cultural inheritance. In the major global grouping or groupings of the future this can prove to be a cause of considerable discontent unless the planners of that future world order show adequate consciousness of this danger, for cultural inroads are always sensitive ground. Perhaps as a prelude to such organization a more specific declaration may need to be considered regarding the right to the preservation of their minority language and culture. 18. The Views of Peoples as Constituting Opinio Juris The current sources of international law are rather narrowly defined. They give effect to a state of legal development appropriate to the days when international law was in its formative stage and when the formalities of municipal law dictated the methodologies of international law. The world order of the future will be broader based than was visualized when international law began its career. It will require a broader concept of international law than the pioneers envisaged for it. International law is primarily a system for the benefit of humanity, and we cannot leave the voice of humanity away from the list of its sources. Juristic and judicial opinions, valuable though they be, are inadequate to reflect this. There are certain sentiments which are widely shared by all humanity. They may or may not be the subject of juristic formulation or judicial pronouncements. Vox populi has special sanctity in the language of politics. Vox humanitatis should have that sanctity in the discourse of international law. How it is to be determined is a question for research, but the need for broadening of the sources of law, consonant with the broadening of global authority, is clear. Examples readily come to mind when the voice of humanity speaks loud and clear but yet international law takes no note of it. An outstanding example is nuclear weaponry. There could be little rashness in assuming that the overwhelming majority of the world’s people, as well as of the world’s peoples, is opposed to nuclear weapons and views them as crimes against humanity. We have not yet had

146

Universalising International Law

a judicial opinion on this question. The voice of the jurists is divided. May not opinio humanitatis – reflected indeed in numerous declarations of the General Assembly – be considered a source from which it can draw its principles? Moreover states alone ought not to be those who can for purposes of international law express the sentiments of a people. After all, on the best democratic theories, as for example the Lockean, on which so much of the Western political order is based, the people have not surrendered all their authority to the state. The individual’s right to life and liberty remain intact and inalienable. On matters concerning life in particular where the state has not succeeded to the rights of the individual, the true repositories of the right are the world’s citizens. Is it right that international law should remain insensitive to their voices? Yet the sovereign state alone is heard as their representative when the state is their representative only within certain limitations. On matters concerning human life and dignity – areas which were never surrendered to the state – may not the people’s voice be heard in some way, especially in this age of instant global communication? States derive what sovereignty they have from the will of their people. In an age in which international law is increasingly recognising the rights of individuals it is appropriate that thought be given to their importance as potential sources of international law. 19. Alternative Problem Solving Frameworks I am prompted to offer this suggestion through my conduct of a Commission of Inquiry appointed by the Government of Nauru to investigate the question of responsibility for the rehabilitation of its phosphate lands which were mined out during periods of German colonization, League of Nations mandatory rule and UN trusteeship. The powers concerned – Germany, and the three partner governments who held the mandate and trust (the UK, Australia and New Zealand) – were invited to participate in the inquiry but declined to do so. Nevertheless the inquiry went ahead and a vast amount of research was done. The 10-volume report of the Commission, which was in the form of a judicial finding after 20 months of inquiry, traversed the entire history of the mining operation which, over a period of 80 years, had left large portions of the island a desolate vista of arid coral pinnacles.20 It will often happen that when a country has an international grievance the countries against whom it seeks to assert its claims will neither accept the jurisdiction of an international tribunal nor reveal to it any of the information in their possession. The international judicial and arbitral systems as at present constituted 20

After the publication of this Report the Government of Nauru instituted proceedings against Australia before the International Court of Justice for compensation and the case was settled with a payment by Australia.

Emerging Dimensions of Sovereignty in International Law

147

seem to be inadequate to meet the need that will often arise for an independent fact finding inquiry. Yet in a world order that will be increasingly depending on equities, such inquiries and their conclusions can have a considerable impact. The Nauru type inquiry suggests itself as a possible solution. Independent jurists can be charged with the responsibility of conducting a thorough inquiry into the matter in question, assisted by counsel who will be appointed to represent both adversaries. The ‘defendant’ nation would have every opportunity of entering an appearance or present evidence, but in any event the inquiry will go ahead with such material as can be obtained by both counsel using the utmost diligence. The ‘defendant’ nation would soon see the disadvantage of keeping away from such inquiries, for the report of the inquiry could well reveal to the world community many aspects of its conduct which, in the absence of an explanation, may not redound to its credit. On the other hand such inquiries have the advantage that they can clear the air if the charges are unfounded. Also it often happens that nations in the position of ‘defendants’ do not quite see the strength of their opponent’s claim until it is researched and probed in this fashion. Richard Falk in his Lisbon paper on ‘Solving the Puzzles of Global Reform’ adverts to the need for creating alternative problem-solving or even problem-stating frameworks, citing in illustration the report of the World Watch Institute and the ‘Permanent People’s Tribunal’. A Nauru-type inquiry can probe in depth an international problem of this sort and perhaps the precedent of Nauru could lead to more such detailed investigations which the formal machinery of international justice resolution is unable presently to undertake. There could also be similar inquiries into crimes against humanity or economic crimes as when a West German television network carried some years ago a mock trial of company directors accused of international economic crimes through their exploitation of a third world country. Apart from their problem solving or problem stating functions, such institutions would also perform an invaluable service of information and education of the global community. 20. The Conflict between Sovereignty and Humanitarian Intervention As the world becomes more closely knit there will be increasing demands for humanitarian intervention on behalf of the world community in situations where it is alleged that basic human rights are being violated by a sovereign government. This has always been a delicate question for international law because on the one hand State sovereignty must be respected and on the other hand the common law of mankind needs to be complied with. In holding the balance between these competing considerations international law will need to steer its course very carefully. A cardinal principle would appear

148

Universalising International Law

to be that such intervention should not give the appearance of being used as a cover for external interferences. It needs to have the support of international law and must be worked through international organizations in terms of the United Nations Charter. There is no doubt that problems of this sort will surface increasingly in the years ahead. But it is also likely that the concept of intervention will gain more acceptability from the world community. International lawyers have an important role to play in ensuring that the concepts and procedures of international law are complied with, if and when such interventions take place. 21. Avoiding a negation of achievements thus far Although strong pressures of common interest and closer interdependence will bring the nations closer together and closer to world government, it is necessary to bear in mind the possibility, in extreme circumstances, of a sudden reversion to considerations of overriding self interest which may negate decades of progress towards the international rule of law. Such situations could arise in a variety of ways. There could be a sudden flare up of violence at some flashpoint of international tension which could draw powerful countries into the turmoil on one side or another. In an age of proliferation of nuclear weapons this could be a disaster of the first magnitude. All the peace building efforts of the global community need to be concentrated on the ways of avoiding such possibilities. It is much to be doubted that there is the necessary concentration of effort in this regard. Another possibility is the escalation of an independence movement in some country, which for self interested reasons attracts the support of another state, thus raising the conflict from an internal to an international level. Yet again the sudden emergence of a dictatorial regime in some part of the world may unleash forces which totally disregard accepted rules of international law, terrorise their own populations and resent all forms of external interference. Yet another situation is the sudden shortage of some vital resource. If, for example, the oil route from the Middle East were to be endangered there have been pronouncements at the highest levels that US interests would need to be conserved even by the use of force. When vital economic interests are at stake it is difficult to predict where the forces protecting those interests will stop, especially having regard to the enormous power they wield. There could conceivably be pre-emptive strikes and forcible occupations of such valuable resource areas.21 Desperate situations sometimes drive countries to desperate actions and a challenge posed to the world community of the future will be to develop insurance mechanisms against such possibilities. As Professor Charles Birch points out in his 21

Since these words were written this has indeed occurred in the form of the pre-emptive strike and forcible occupation of oil-rich Iraq.

Emerging Dimensions of Sovereignty in International Law

149

seminal work Confronting the Future22 even such extreme doctrines as the doctrine of triage, the battlefield doctrine of abandoning the hopelessly injured so that at least those who can be rescued are saved, are sometimes seriously discussed in the modern political context. Adapted to the third world situation, this would mean that debt-ridden, economically non-viable countries which are in such a hopeless condition that they cannot be saved should be abandoned so that others may be saved. One sometimes hears very disparaging comments about countries that are unable to help themselves and suggestions that “failed nation states” may even have to be taken over by the world community. The consequent loss of sovereignty is a danger that needs to be closely watched as conditions in some developing countries continue to decline to catastrophic levels. Debt-ridden and economically non-viable third world countries that are the source of valuable raw materials would have no defences against such moves except international law and the support of the international community. The more affluent and powerful nations sometimes display strongly insular and self-centred tendencies, harking back to the days of former imperial greatness. This is a latent tendency which extreme or unusual situations can draw out. Shades of this were noticeable, for example, in the United Kingdom as the battle fleet sailed for the Malvinas in the Argentine crisis, evoking recollections of the days when Britannia ruled the waves. A more extreme situation could bring out more extreme manifestations of such a sentiment. It is at such times that the strength and resolve of world organizations are put to the test and those who plan for the future must always keep in mind the possibility of an extreme crisis situation which can still bring out the strongest streaks of self interest which override all global considerations. 22. Strengthening The Invisible College of International Lawyers A most powerful force that can contribute immensely to the furtherance of the international rule of law is what may be described as the invisible college of international lawyers. Operating across all national boundaries and administering a system which is common to all nations, they are a body whose power as a collegiate group is not sufficiently appreciated. It is they who are now laying down the conceptual framework for the world order of the future, and each step towards global togetherness which is soundly based conceptually, makes the retrogression towards the international law of the jungle more difficult. Already we see an ethos developing among international lawyers who view themselves as linked together by their dedication to a common intellectual enterprise. They are in continuous communication with each other through professional journals, they move transnationally and meet each other frequently at conferences and seminars and they value each other’s opinions. 22

Penguin, 1975, pp. 66-70.

150

Universalising International Law

They are in a sense the keepers of the international juridical conscience and they are committed to such principles as reciprocity, good faith, non-retroactivity, proportionality and natural justice. They also wield great influence in their respective countries, for legislators, bureaucrats, ministers, army officers and even heads of state are in continuous consultation with them. As they see the classical concept of sovereignty dying and a new world order struggling to be born they will not remain disinterested spectators. A scene as momentous as that which saw the first emergence of organized governance of human society is being enacted before our eyes on a global scale and unless they participate now, institutions and procedures inimical to world order can entrench themselves. In order to make this participation as complete and universally oriented as possible it is necessary that this body of lawyers should enlarge its multicultural perspectives. Its thinking is still set largely in the monocultural world in which modern international law was born. By and large, it would be true to say that the multicultural background of knowledge which should truly be the base of any universal legal system is not as widespread among them as it needs to be in an age of such rapid movement towards a universal legal order. It is to be hoped that a concerted effort will be mounted to fill this lacuna. This college of international lawyers needs to be prepared conceptually and structurally with its blueprints ready for weaning nations away from recipes for disaster which may be contemplated. Nations, statesmen and people need to be shown convincingly what disaster scenarios are possible and that such scenarios are preventable if international law is worked and practised in accordance with its ideals. There is much work here for international lawyers. Indeed, a greater responsibility devolves on them now than ever before, of being bridge builders between nations and heralds of the new world order – a world order wherein, to use the celebrated words of Rabindranath Tagore, the global community has “not been broken up into fragments by narrow domestic walls.”23 * *

*

Sovereignty is thus a vast and complex concept lying at the heart of the international legal order, and needs to be probed in all its facets. It has great strengths and weaknesses. Its potential for the betterment of the human condition is enormous, just as its potential for obstruction is great. It must not be regarded as set in pre-cast and unalterable moulds but must be rendered more flexible and sensitive to the needs of changing times. Much scholarly effort and understanding will be needed to achieve this but the task is worthy of the effort and will yield rich rewards in the service of global peace. 23

Gitanjali, stanza 35, tr. W.B. Yeats.

Chapter 5

International Law and the Global Marketplace*

I.

The Economic Substratum of Human Rights

I commence with the observation that every human right has an economic substratum. There is an economic infrastructure to whatever human right you may name, whether it be the right to life, equality, dignity, even the right to found a family, the right to a pure environment, the right to motherhood, and so on. All of these are integrally linked to an economic substratum, for without that economic substratum, the right cannot possibly exist in practical terms, whatever be the theory surrounding it. Thus it is not only when we talk of economic rights that we are talking of a concept which has a relationship to economics. The linkage exists through the whole spectrum of human rights, including every species of civil and political rights as well. It is therefore most important to turn the spotlight on the economic infrastructure which sustains the whole edifice of human rights. The thought that every human right has an economic background which lies behind it prompts the thought that in recent times high commerce, the free market place, and free trade seem to have become values in themselves. We have become accustomed to speaking of these as given preconditions to modern life, which stand apart from and independent of their moral basis. By becoming ends in themselves, they have obscured the fact that they are only the means to an end, and that one of those ends is to provide that supporting structure which is a sine qua non for the enjoyment of human rights. *

Based on the author’s address at the conference held on 5th November 1998 at Brooklyn Law School on "The Universal Declaration of Human Rights at 50 and the Challenge of Global Markets" published in XXV Brooklyn Journal of International Law (1999) p. 27.

151

152

Universalising International Law

Economic interests and ethical concerns seem, moreover, to have become locked up in separate compartments. They are two parallel worlds which exist side by side with no necessary interrelationship between them. The whole economic enterprise of the modern world seems thus to be on the way to escaping from societal control, and sometimes even from the grip of the law. And, worst of all, these economic enterprises are progressively divorcing themselves from the humanistic attitudes which should be the basis of all regulatory systems. This gives much cause for concern, and scholars have indeed been at work upon it,1 but much still remains to be done. II.

The Analogy of Technological Power

There is a related area where the escape from societal and legal control is becoming equally evident. This is the power of science and technology. Economic power and the power of science and technology are two great juggernauts that are careering almost uncontrolled in the modern world. Moreover, the two often function in association with each other. The first of these juggernauts – economic power – has escaped from the control of legal systems in many areas where it seems to function as a power entity in its own right. This has caused great concern to all of us who are interested in, and concerned with, human rights. The second, the power of science and technology, has grown largely out of social control, out of control of legal systems, out of control of human rights. This is one of the major problems confronting all legal systems, domestic and international, at the present time.2 It is useful to devote a few moments to understand how we have come to the point of a divorce of market mechanisms from their moral base. III. A Comparative Overview All traditional systems have had a great deal to say about the fairness of commercial dealing. Trade and enterprise were indeed proper activities, but only so long as they were kept within the moral framework – the mores – of each society. This could be illustrated from various cultures, and one could refer to the attitude of Hinduism, Buddhism, and Islam towards all economic transactions. Their prohibition of the unconscionable advantage, the unequal bargain, the unjust price and 1 2

See e.g. International Law with a Human Face (Friedl Weiss et al. eds., 1998). See generally C.G.Weeramantry, Justice Without Frontiers:Protecting Human Rights in the Age of Technology, Vol.2 (1998). For an earlier study foreshadowing this problem, see C.G.Weeramantry, The Slumbering Sentinels: Law and Human Rights in the Wake of Technology, Penguin Books, 1983, See also Human Rights and Scientific and Technological Development, Vol.1 (1990) and The Impact of Technology on Human Rights, Vol.2 (1993) edited by the author for the United Nations University in a study conducted at the request of the UN Commission on Human Rights.

International Law and the Global Marketplace

153

usury and their emphasis on good faith and fair dealing were woven into their legal systems and social attitudes. Righteous conduct, as understood in Buddhism and Hinduism, extended through the whole gamut of human conduct, and the trader was not for one moment exempted from the reach of this principle. The strictures of Islamic law in relation to the notion of interest are well known. These moral restraints were legal restraints as well, and there was no notion of freedom of trade, which could cut itself adrift from these moral moorings. Early Christian Attitudes Let us now look at the Western tradition. If you look at the initial attitude of Christianity towards commercial enterprise, the early church fathers were strongly of the view that economic activity must always be subject to the principles of morality. How much can one sell a commodity for? One must sell it for a fair price. What is that fair price? It is a price, which you pay to get the raw materials plus a reasonable addition for your labour. Gratian, in his Decretals3 for example, distinguishes between the craftsman who buys wares and transforms them by his efforts, and is thus entitled to the increase resulting from his labours, and “the man who buys it in order that he may gain by selling it again unchanged and as he bought it. That man is of the buyers and sellers who are cast forth from God’s Temple.” Thus the conduct of those who made profits by buying an article for x shillings and selling it for x plus y, without having added anything to it, was stigmatized by the earlier writers as un-Christian and immoral. The profits made were described by the church fathers as turpe lucrum – disgraceful or odious profit. This was reprehensible conduct and fell into the category of the sin of avarice, along with usury. Those were two of the prohibited areas of activity which have a relevance to what we are looking at. The two doctrines of the just price and the prohibition of usury prevailed right up to the time of Aquinas. Indeed, Aquinas formulated the principle of the just price and refined it in very elaborate terms. A.

B.

The Shift to the Notion of the Just Price

Now, as we travel along from the time of Aquinas and we reach the 14th century, we find a slight shift, and the schoolmen were beginning to say that while there is of course the principle of just price, there was some room for variation when one considered the method by which one fixed the just price.4 The just price was attainable through freedom of contract, which resulted in a bargain between two people, one of whom is a willing seller, and the other a willing buyer. The fact 3 4

See Gratian, Decretum, Pt. I, dist. XXXVII, art. IV; See R. H. Tawney, Religion and the Rise of Capitalism: A Historical Study Transaction Publications, (1926) p. 35. See Tawney, supra note 3, at 36.

154

Universalising International Law

of the bargain shows that both parties were satisfied and this is an indication that the price is fair. So, you get that slight shift coming into evidence in the 14th century. C.

The Personal Relationship between Buyer and Seller

But trade, of course, was marching ahead and it was moving towards the mass production of goods through mechanization. The idea of a fair price fixed through free bargaining evolved in the context of a very personal relationship between producer and purchaser. At that stage, there was not the phenomenon of mass mechanization, and of the massive industrialization accompanying it, which separate the two parties to the contract to the extent that they do not know each other and are separated from each other by many almost impenetrable barriers. Today you buy something from somebody, a manufacturer you do not know, who has sold it to a trader you do not know, who again has sold it to a retailer you may or may not know. The manufacturer is thus very remote, and the product has come through a whole chain of suppliers who eliminate personal relationships. The personal relationship which obtained in the days gone by was probably a factor that made the early moralist look into this in great detail. With mechanization of production, the importance of this personal relationship receded into the background. The New Trading Routes and the Discovery of America Another important factor in the process of depersonalization was reached with the vast increase of trade over enormous distances which resulted from the discovery of the new trading routes to the East, pursuant to the capture of Constantinople. This was augmented by the discovery of the Americas and the influx of vast amounts of wealth into Europe. Commerce multiplied several fold in magnitude and there was an unprecedented expansion of trading contacts. The importance of trade was also elevated to the point where commerce and empire went hand in hand, and the great traders were not second in importance to the princes and the generals. We see the emergence of great financial houses and enormous bourses, as in Antwerp, for example. These great merchants were potentates in their own right, and were theoretically free to do as they pleased, stretching their financial power as far as they could, without regard to the moralities which the Church had attached to commerce. Yet, it is interesting to note that the great merchants of Antwerp, even then, even at the height of their power and influence in the 16th and 17th centuries, would send their confessors or their religious advisors to the learned places of the world to seek an opinion – that is, a theological opinion – as to whether any particular activity in the field of commerce could be justified in morality and according to the principles of religion. For example, the Antwerp merchants used to send their spiritual advisers all the way to the University of Paris to find out whether the particular activity they were indulging in was morally D.

International Law and the Global Marketplace

155

blameworthy, or could pass muster according to the moral principles taught by religion. As historians of the time pointed out, the great merchants of the Dutch East India Company would have their spiritual advisers overlooking their activities and breathing down their necks, so to speak, to ensure that their massive commercial operations conformed to the dictates of morality.5 This was due to the strictness of the moral regime resulting from various facets of the Reformation. Lutheran Attitudes Let us now look at these developments in the light of Protestant teaching. Let us first observe the influence of Martin Luther. Luther’s thought was set against the background of a basically agricultural society. He still adhered to the old values of personal dealing in trade. International trade, banking and credit, and capitalist industry – all these, according to Luther, belonged to the Kingdom of Darkness, and here is a quotation from Luther: “Who is so stupid as not to see that combinations are mere outright monopolies which even heathen civil laws… condemn as a plainly harmful thing in all the world?”6 He was, in other words, emphasizing the Christian virtues and frowning on these enormous extensions of capitalist enterprise which he saw in his day, and which, with his rural perspective, he did not quite get to grips with. E.

The Influence of Calvinism Then, we encounter the magisterial influence of Calvin. Calvin approached the problem from the standpoint of urban society in which trade and commerce had become established, and he took the view that the economic virtues were to be applauded. This was quite the contrary of some of the views that Luther had expressed. Calvin took the view that here was an activity which had now become part of modern society. The view of the early church fathers and of those who condemned this sort of activity had been formed against a background that no longer existed. He therefore needed to take another look at this problem in the light of the new situation. Viewing the problem from this new standpoint, he laid down certain rules. He accepted the justice and the legitimacy of high commerce, but subject to this caveat: commerce should always be conducted with due regard for the high moral standards taught by religion. You legitimately made your profit from your burgeoning commerce, but not with a view to indulging in personal luxury, and not F.

5 6

See Simon Schama, The Embarrassment of Riches: An Interpretation of Dutch Culture in the Golden Age, 1988, pp. 331-37. Henry Wace & Carl Buchheim, Luther’s Primary Works, 1896, pp. 256-57.

156

Universalising International Law

with a view to stepping out of the rigorous moral discipline to which your religion bound you. There was therefore a personal responsibility to make your profits in a legitimate way, in a moral way and to use those profits also in the same way. In fact, he prescribed a sort of asceticism, even for those who made these enormous profits, and he condemned the life of luxury which might have resulted from this wholesale accumulation of wealth. This was the reason why, when the Dutch East India Company was making its enormous profits from its colonial ventures, it still had spiritual overseers to look over its transactions and ensure that they were conducted according to the highest principles of morality. So, that was the view that was taken of business as it emerged from the early spiritual prohibitions which had surrounded it. But what happened thereafter was, paradoxically, that once commerce had been released from the fetters in which it had been kept during the period of church prohibition and disapproval, it raced away from all control and forgot the moral aspect that teachers like Calvin had so emphasized. Calvin saw high commerce and industry as being in alliance with morality. The two were interlocked and the first was not justifiable without the second. But once high commerce had been released from its medieval fetters, it became difficult to control. It went off on a voyage of its own and left morality aside. The moral restraints that Calvin had imposed as a precondition to releasing trade from its spiritual fetters were forgotten as trade expanded, and traders grew more powerful. The influence of Calvin and of the Puritans was only a passing phase in the overall process of the liberation of trade from the fetters imposed on it by the early doctrines of the Church. The Treaty of Westphalia To this religious background, we need to add an element stemming from the new political configuration of Europe after the Peace of Westphalia. The connection of trade with ethical and religious concerns was total until around the time of the Treaty of Westphalia which liberated States from the traditional hegemony of Papal authority, and launched the completely secular State on a voyage towards its own betterment, free largely of the restraints which had circumscribed its activity in the past. States such as England and Holland were free to pursue their wars of trade, which have been described as wars of economic nationalism,7 for a State founded on the social contract, and not on religion, owed its allegiance to the advancement of the public interest rather than the codes of morality taught by religion. It needed to pursue its self-interest in order to survive. In the words of Weber’s classic study, The Protestant Ethic and the Spirit of Capitalism, “[t]he G.

7

See Tawney, supra note 3, at 7.

International Law and the Global Marketplace

157

great and chief end of men uniting into commonwealths and putting themselves under government is the preservation of their property.”8 The wars between England and Holland under the Commonwealth and Charles II are cited by economic historians as an example.9 The Resultant Release of High Commerce from Moral Restraints The phenomenon we are now encountering of gigantism in trade, and this giant power being wielded free of moral restraints, is best understood against this historical background. Once released from its initial shackles, high finance and trade have proceeded to conquer the world, working out their own code of morality which sees wealth as an end in itself, rather than as means to an end, and money as a value which is accorded the sacrosanct status that follows when its legitimacy and power cannot be questioned. Commerce thus reaches its present position of virtual freedom from the morals of the society in which it functions. That is the problem we encounter today and, if we are to address it, we must view it against its historical background, and not regard it as a phenomenon that has always existed and will therefore continue to be with us until the end of time. H.

IV. The Analogy with Technology Revisited I see an analogy here with technology, which I referred to earlier. Sophisticated technology was known to many civilizations before it came to the West. Chinese civilization, Indian civilization, and Arab civilization all had fairly sophisticated technology, but this was kept within the mores of those societies. But when technology came to the West, whether it be in the form of gunpowder or the mariner’s compass or even printing, it raced out of control. And when one philosophizes on the reason for that, one can trace it back to the path that Francis Bacon charted out for scientific inquiry – that it must be pursued free of all the superstitions of the marketplace, free of the superstitions of religion, free of the inhibitions imposed by society. The scientific inquirer is engaged in the pursuit of truth, and should not permit himself to be deterred from this quest by outmoded restraints and prohibitions. Basically that was the kind of liberation that technology received through the philosophy of Bacon.10 In regard to commerce and industry, the liberating philosophy of Calvin was different from the liberating philosophy of Bacon regarding technology, in that Calvin coupled the liberation of commerce with moral restraints. Yet in both cases, the liberation moved away from moral restraints. The legitimization of free inquiry, like the legitimization of commerce, was seen as giving these enterprises a sover8 9 10

Max Weber, The Protestant Ethic and the Spirit of Capitalism, Tolcott Parsons, trans (1991) p. 183. See Tawney, supra note 3, at 7. See Weeramantry, supra note 2, ch. 1.

158

Universalising International Law

eignty of their own. As a result, in commerce as in science, a situation was reached where the mores of the community, as well as the legal system of the community, were almost powerless to control it. That, I believe, is part of the problem that we are addressing in this seminar today. That historical overview may perhaps be useful in attuning us to the dimensions of the problems we are facing. Because law is not an omnipotent instrument, law can only control matters that lie within the reach of its formalized principles and prohibitions, and of its ability to oversee and punish. But some of these activities, in both technology and high commerce, have reached a stage where they are so powerful and complex that they are racing out of the area of legal accountability. V.

An Approach from the Standpoint of Contract Law

Globalization of commerce is one of the strongest of the factors producing this result. Let me approach this from the standpoint of contract law, the department of law most intimately concerned with trade and commerce. If you look at the contract law of 1900, the belief that was widely prevalent among contract lawyers was that contract is after all the product of two freely consenting minds. There is a bargain that is struck between two people who are willing parties to the agreement. What is involved is no less than the integrity of the human will, and the freedom of the individual to act as he or she desires in a free society so long as he or she does not violate the law. So let not the court interfere, let not the government interfere. The area which these two freely consenting wills have carved out for themselves must therefore be left intact unless it violated some specific legal prohibition. That was the accepted thinking of contract lawyers at the beginning of the 20th century. At the end of the century, that thinking has been virtually turned upon its head. Practically every jurisdiction in the world accepts that, despite the apparent meeting of two freely consenting minds, there can be unfair contracts resulting from inequality of bargaining power. It is accepted therefore that it is the duty of the court, the duty of the government, and the duty of legislators, to interfere on the side of the weaker bargaining party, so as to restore some semblance of equality in the bargaining process and overcome the myth of a free contract reached by two freely consenting minds. That is contract law, as it is understood in almost all jurisdictions at the present time. But an important reservation is this: that this is contract law as it is understood domestically. On the other hand, what is contract law as it is understood internationally? What is the position in the international marketplace? It is the fierce freefor-all, the tooth-and-claw competition of the Hobbesian variety, which prevails in the international market place. International contract law remains largely where domestic contract law was at the beginning of the century. It is a hundred years behind.

International Law and the Global Marketplace

159

Though every domestic contract lawyer will affirm that parties of unequal bargaining power need to be protected through some sort of legal protection of the weaker bargaining party, nothing of that sort appears in the international marketplace, where the most important and far reaching contracts are made that govern the entirety of global trade. Contract lawyers have not worked adequately on this, deterred no doubt by the fact that, unlike in the domestic context, there is no international agency with overarching authority that can impose conditions of fairness in the way a domestic legislature or judiciary can. Yet, the counterpart of legislation in the international field is the treaty, and treaties are based upon the parties’ inherent sense of fairness. Can we not, in the 21st century, insert into customary international law, the “general principles of law recognized by civilized nations”, and even into international treaties the principles of fairness in contract which we accept in all domestic jurisdictions? It is true, self-interest is a dominant force that drives international treaties. Yet we have seen in many areas how considerations of international fairness have overridden considerations of the self-interest of individual States, so that they have been willing subscribing parties to treaties which, viewed from the standpoint of individual State self-interest, may not appear to be in the best interests of those States. The self-interested and powerful forces ranged on the side of slavery were overcome by the power of compassion and reason. Should not the future see a similar humanitarianism overpowering the self-interested forces that insist on the uninhibited bargaining process between unequals that dominates international trade? In the international marketplace, poor countries trade with rich countries, poor producers with buyers who can buy their produce from half a dozen different sources and can therefore dictate their terms. There is no protective mechanism in place to give a corresponding protection to that which all domestic legal systems give to their weaker bargaining parties. The poor country has nothing to sell but its agricultural produce. Yet it desperately needs the industrial products of the developed world – railways and motor transport, pharmaceuticals and pesticides, energy and steel and communications. The price differential between the two categories of products keeps steadily altering in favour of the latter. The industrial producer dictates his price and offers his merchandise on a “take it or leave it” basis. The agricultural produce must be sold at any price, for national income and economic survival depend on it. Rarely would there be a marketplace so well equipped to buttress the strong and oppress the weak. Yet that, unfortunately is the pattern of the bulk of the trade on which the poor world depends. Such are the realities of the international trading scene which international law will need to address in the years ahead, remembering also that the bargaining parties are weak governments or traders on the one side and great trading establishments on the other, which straddle national boundaries, command vast economic empires and consequently bargain from a position of overwhelming strength.

160

Universalising International Law

VI. The Disbanding of Empires I will now give you another analogy that comes to my mind which will demonstrate the immense financial weakness of the developing countries. In the days of imperialism the great empires, each of them containing a large number of colonies and dependent territories, resembled vast commercial conglomerates. Take the British Empire for example. Each of the countries in the Empire could produce some particular commodity much better than most others. For example, Burma could produce rice, Malaysia could produce tin, Ceylon (Sri Lanka) could produce tea and so forth. So long as the whole organization held together, that was a fine commercial basis on which the entire administration could run. Each of the specialist producers could concentrate on each of the commodities which they could produce better than anybody else. They could concentrate on producing that particular commodity because their basic needs could be supplied through the infrastructure that was available for the whole empire. So, that was fine. It was like one large department store with a confectionery department and a perfumery department and a camera department. Each of those departments specialized in what they were doing. But all of them were serviced by the basic infrastructure. Now, if you dismantle that department store, and let each of those different entities proceed as separate businesses on their own, there will be chaos, because they would not have the necessary infrastructure to service their needs. The camera department, the confectionery department, and the perfumery department, now shops in their own right, but with no infrastructure to keep them going as separate entities, would need time to procure their own independent background services and sources of supply and to find their customers. If called upon to do business immediately, they would collapse. That is what seems to have happened in many former colonial countries, because the infrastructure that for many centuries gave the people the food they wanted and the sort of lifestyle they required, was destroyed or permitted to lapse into desuetude over centuries of domination by a regime which was primarily structured to serve the needs of the metropolitan power rather than of the territory in question. All of a sudden when their territories received independence, they found that they were without the basic infrastructure that had served their people for centuries, if not millennia. It is little wonder that they were unable to manage their own affairs, for they needed at least a generation or two to restore the infrastructure that had served them before the advent of the empires. That is an economic problem that is not often perceived – that the great department store constituting the great empires had been dismantled and the individual departments had been released to sink or swim on they own. International law needs to take note of this aspect which is so often swept under the carpet as if it were no one’s responsibility.

International Law and the Global Marketplace

161

VII. The Choice of Technology Another aspect which is relevant to this discussion is the choice of technology. Technology is generally produced in the industrialized countries, and the developing countries receive the technology thus developed. This technology is often tailored to the needs of the developed countries, but has to be received by the developing countries in the form in which they find it. This raises a great question of the choice of technology, on which much has been written in recent times. Who decides what technology is to be imported into developing countries? Each developing country has a little elite group of its own. Very often they have been educated in, or have many contacts with, the industrial countries. It is these people in positions of authority who determine what particular technology that country would absorb. That group often has more in common with the industrialized producing group than it has in common with its own people. They often have financial contacts with them and with the vast agencies of production. The decision regarding choice of technology therefore tends to be one which is slanted in the direction of some particular country or manufacturer with which that particular elitist group has some alliance. I once conducted a study for the United Nations University on this aspect and we unearthed many details on this. Two volumes resulted from our study of the question of technology transfer and the way in which elites in third world societies are very often in league with the producers in some of the major industrialized countries. The country receiving the technology therefore does not receive the technology which is most adapted to it, or of which it is in most in need, but one which may be tailored to meet the needs or interests of some other foreign group.11 Another factor – and here the fault lies heavily with the developing countries – is the widespread prevalence of corruption. This prevents the benefit of commerce, industry or technology from reaching those who most need it – the poor of the country. Indeed, this has become so much of a problem that the World Bank, the Asian Development Bank and other lending institutions have now put out documents laying it down as a condition that, before aid is given to any receiving country, consideration should be given to this question of corruption, because corruption siphons off from the people a huge amount of the benefit which is intended for them. This is a problem which urgently needs to be looked into. VIII. Power without Responsibility The next question which I would like to refer to very briefly is the question of power without responsibility. It is a basic axiom of democracy that if there is power, there must be responsibility. 11

See Human Rights and Scientific and Technological Development, vol. 1 (1990) and The Impact of Technology on Human Rights: Global Case Studies, (1993) edited by the author for the United Nations University in a study conducted at the request of the UN Commission on Human Rights. See particularly Saneh Chamarik, "Technological Self-reliance and Cultural Freedom", in Human Rights and Scientific and Technological Development, p. 39.

162

Universalising International Law

When developing countries deal with large multinationals, the multinational is often in a position of dominance, whether by reason of its enormous resources or by reason of its monopoly of the desired technology. Its power is very often larger than that of many a nation state of the world. Indeed, the economic power of several individual multinationals is greater than that of more than three-quarters of the nation states of the world. The problem is rendered more acute by the fact that when they wield such power in the territory of the developing countries, they do so without any responsibility or accountability. It is therefore contrary to a basic democratic principle which postulates that power without responsibility is anathema to the democratic ideal. This is a major a question which we as international lawyers and human rights lawyers need to address. How can we bring the principle of accountability into this phenomenal exercise of power? And if we do not, well, our failure gives encouragement to the violation of one of the basic tenets of democratic rule and democratic tradition. So, this is something again which becomes even more difficult to work to its logical conclusion when you see that these organizations are very often quite amorphous, thus rendering the question of accountability even more difficult. The principle of accountability requires the ability to detect who in fact is the author and the force behind some particular activity. That difficulty applies very often in the field of activities of the multinational corporations. There are some enormous corporations that have operations in may be fifty different countries and with five hundred different corporate registrations. Sometimes it would take years of research to track down some particular activity to its actual source, because there are all these veils of multiple corporate registration which stand between the decision-maker and the visible consequences of his or her action. So, power without accountability is a very important aspect which we need to address when we are dealing with the proliferation of power that comes with modern business enterprise. IX. The Artificial Creation of Wants Another aspect is the artificial creation of wants. Multinational corporations indeed have many achievements to their credit and have enormous potential to do good throughout the world. But there is often also the possibility that wants which never existed are often created artificially by them in many countries. Some years ago I was working on the Nauru Commission of Inquiry. You might be familiar with the Nauru Commission, whose work on phosphate mining in that country led to a claim by Nauru against Australia before the International Court of Justice.12 As Chairman of that Commission, I needed to examine the practices of the trading companies in the Pacific. Some of those early trading companies – the German trading companies, were among the earliest – were in the 12

See Nauru v. Australia, I.C.J. Reports, 1992, p. 240 (June 26) (preliminary objections). See also C.G. Weeramantry, Nauru: Environmental Damage under International Trusteeship, Oxford University Press, 1992.

International Law and the Global Marketplace

163

situation where they needed the goods of those Pacific islands, but those countries needed little, because they had an idyllic lifestyle, obtaining all their needs by way of food, housing, and other necessaries from the sea and from their land. They did not have many wants. So the problem the traders addressed was the problem of introducing new wants into the lifestyle of the islanders. Two ways in which they did this were by setting up “smoking schools,” and by distributing firearms. “Smoking schools” were places where the people were exposed to the habit of smoking, as both a source of pleasure and a status symbol. Once young people were “hooked” on the habit by inducements of various sorts including free cigarettes, they were told, “Well, now, if you want tobacco, you will pay for it.” And so the smoking schools created a new want in that society which never existed before. The other principal means resorted to for creating new wants was the gift of firearms to a few people. Some young men went back to their villages and demonstrated their new found power, and for the one gun that was given free, ten guns were demanded by people who wanted to have this new symbol of status and power. New wants were thus created and then, of course, there was something which the trader could offer in exchange for the produce of those countries which the traders needed. This helped to drain out such wealth as those countries possessed. One may think these are practices of the past, but I recall reading an article in the Reader’s Digest recently about similar practices today for inducing the cigarette smoking habit in the young people of developing countries. Many years ago, I spent some months at the University of Papua New Guinea, and recall two relevant episodes from my experiences there. One was that I observed one day, when I looked at the newspaper, that there were full-page advertisements by the cigarette companies. They were the usual advertisements we see of cigarette companies depicting smoking as conducive to health and symptomatic of an elegant lifestyle. I was wondering why they were advertising so heavily and, upon inquiry, I was told that a law restrictive of tobacco advertisement was about to be enacted, and that the manufacturers were attempting to derive the maximum benefit from the preexisting state of the law before the proposed restrictions became effective. The second episode also bears on the way in which artificial wants are created in communities that do not really need them. I was once on a plane travelling from Port Moresby, which is the capital, to Mount Hagen in the interior of the island. That particular area was a place where people had pursued their traditional lifestyle unhindered for generations. It was a small plane we traveled on. There must have been about ten people on it. That evening we all met in the hotel lobby

164

Universalising International Law

at our destination, and there was a young man there who was recounting with much satisfaction that he had brought a whole consignment of fast foods to the area. He had come there with a view to hiring a plane and dropping them in small packets in the public park and other public areas. The idea was that when all this confectionery was dropped in little bags, in places where the children would congregate, the children would pick up some packets, go to their parents and tell them what a nice new food this was, and put pressure on them to acquire more. An artificial want would thus be created and demand could be sponsored and stimulated by further campaigns like this. This young man did not seem to think there was anything wrong with what he was doing. It was a story of commercial enterprise and success. But in this traditional place which had lived its own lifestyle for centuries, if not millennia, a new artificial want was being created and after three or four expeditions there would be a demand for these products. That result would be applauded by directors and shareholders in a distant metropolitan capital. When we deal with the challenge of global markets, we cannot afford to lose sight of human aspects such as those which are typified by this little scenario. This is an important area which we must watch in relation to the activities of these major centres of economic power, and it is time perhaps to assess the ethics concerning the artificial creation of wants in this fashion. Once the want is created and the demand is there, then, of course, the bargaining position alters to the detriment of the receiving country and the benefit of the foreign commercial organization. X.

Intellectual Property

The field of intellectual property is another area beset with great problems. It is clear that intellectual property gives rise to many ethical problems in international trade. Let us think of the case of the inventor of something new, who is entitled to a proprietary interest in his product. But what if the invention is in some way so vital as to be indispensable to the community? For example, what would be the position if somebody tomorrow were to find an instant cancer cure? This is an extreme and perhaps fanciful example, but suppose ten of those pills would cure the disease. The inventor may theoretically have the right to place any price he wants upon his product, but is there not some social interest in the product which must lower the expectations of the inventor? He is entitled to due reward and recognition for what he has put into it, but can a socially useful and indeed vital invention be exploited without regard to the social interest? That is a factor highlighted by the extreme example I have offered, but it is important to reflect whether such social exploitation does not take place in a dozen spheres – to a lesser degree perhaps than in the example I have given but all the same in violation of the principle that the social

International Law and the Global Marketplace

165

interest in the invention is an important factor to be taken into account. The disregard of the social interest becomes particularly severe where the people desperately needing the invention are the people of the developing world, who do not have the economic muscle to bargain for a fair recognition of the human dimensions of the problem. The best examples of this come form the sphere of agricultural products and foodstuffs. These items of merchandise are essential for people, and cannot be overpriced merely because the inventor needs to get his profit. In items of importance to third world agriculture, there is much exploitation that can and does take place in such areas. In the African situation, for example, a pest-resistant kind of chemical may be desired which is the answer to some agricultural problem of the farmers, and the farmers purchase it and find that it keeps the pesticidal fly or bacteria at bay. That’s fine for that year and the next year. But two years later, when the bacterium or fly breeds a resistance to the pesticide, and it is no longer adequate for the purpose, a new version is put out at a higher price. By now the farmer is dependent on it and must purchase the new product at any price. The multinational puts out the new version of this product at an increased price, and the farmer is caught up in an ever escalating spiral of price increases as new products emerge to fight new elements of drug resistance. As the price keeps escalating, the farmer’s dependence on the new product is heightened. These are some of the aspects that need attention, which sometimes are almost beyond the power of nation states to control. XI. Intellectual Property in respect of Food Crops A question of enormous importance to the developing world is the increasing scope and reach of patents in various varieties of food. US Corporations are now routinely seeking patents over various kinds of grain which constitute the basic food of entire countries. For example, basmati is a variety of rice which has long been a staple of national diets in South Asian countries. One US corporation has made several claims in regard to food-related patents, including one relating to Indian basmati crossed with other varieties. The coalition of NGOs who are working on this new phenomenon have argued that the patent claim is simply a case of cross breeding and should not be treated as a novel invention. They stigmatise such claims as bio-piracy and one of these NGOs, Action Aid, has said that its investigations have revealed that in some 62 patents there is evidence of bio-piracy. India has successfully challenged some of these patents and a global coalition of about 90 organisations from 20 countries has demanded that the US Patent and Trade Mark Office revoke all of these patent claims on basmati. These organizations are pressing for the exclusion from patentability of all plants and animals. A large number of global coalitions of NGOs has backed the proposals by the African

166

Universalising International Law

group of countries that all life forms should be excluded from patenting.13 Another practical factor to be taken into consideration is that challenging individual patents is extremely costly if it is to be done on a case by case basis. NGOs working on this reported in July 2001 that American lawyers required a deposit of nearly US$500,000 from Pakistan – a basmati growing country – to challenge the patents.14 Patents in food varieties already granted include cassava, cocoa, jojoba, millet, nutmeg, rice, rubber, sorghum and sweet potato – all crops vitally important to the economy of developing countries and to the security of farmers in those countries. This is a problem that can, in the future, affect the livelihood of millions of small farmers in the developing countries. If these patents are not defeated many in the developing countries foresee this as a serious threat to living standards in vast regions. There is pressure from the World Trade Organisation to permit commercial interests to obtain patents on stable food crops, and this could be an important source of tension in the future. XII. Dumping of Goods Dumping of shoddy goods is another example. We hear of cases where highly deleterious substances have been surreptitiously dumped in countries. A land owner in some country feels that it would be worth his while receiving a huge fee from a corporation for burying on his land the refuse that the corporation sends him. It is a highly noxious material which may damage that land for generations, but still there may be no controls upon it. The noxious waste arrives disguised as some sort of merchandise and is buried on his land. This problem has in fact occurred in third world countries, where the mechanisms to control it are inefficient or lacking. XIII. The Need for Ethical Codes Is there an answer to all of this? Of course, one answer is ethical codes. We must raise the level of awareness of the damage that could be done, and sensitize the conscience of the multinationals who cause these various types of damage to economies that are already so weak that they have difficulty sustaining their populations. It is necessary also to sensitize their shareholders as well and make them more demanding of a high ethical standard on the part of directors of the companies which, after all, they – the shareholders – own. The idea that the company exists to make profits for its shareholders at all costs has to be softened in some 13 14

See "NGOs launch campaign against basmati patents" by Chakravarthi Raghavan, Third World Network Website: www.twnside.org.sg/title/basmati2.htm. ibid. published in the Ceylon Daily News, 24th July 2001.

International Law and the Global Marketplace

167

way by placing on the shareholders the responsibility for the moral wrongdoings that are very often committed in their name. In the dismantling of apartheid, it was possible, through sensitizing the conscience of shareholders, to produce a sufficient impact on the trade of many companies to make a difference to the South African situation. Shareholders’ action in disapproving of trade with South Africa in many areas played a significant role in dismantling the structure of apartheid. That may well be one of the parallels which we could invoke for the purpose of the matters we are discussing. Is there something that we could do by way of a stimulation of the conscience and the sensitivities of the shareholders of the great corporations that indulge in unfair trade practices vis-à-vis the developing countries? The fact that ethical codes are being propagated and that they are increasing in their range and reach is a most significant factor we must take into account, for the problems we are considering are not merely problems of law but problems of ethics as well. We have seen a trend to develop such ethical codes, and we see that these codes are beginning to encompass a wider area of activity than ever before. XIV. New Multinational Actors International law must face the reality that these entities that trade across national boundaries have enormous power, equivalent to that of a nation state and greater sometimes that than of many nation states in whose territories they do business. These are the new non-State actors who have appeared on the international stage, whose power is even so great that they can topple governments. At the last conference that was held at the American Society of International Law, there were a number of instances given of multinationals being powerful enough to topple governments in other countries. Huge movements of capital may be another way in which developing countries can be destabilized. We witness the new phenomenon here of trade, not in commodities but in currencies themselves, and that is a new development for which our international legal systems are not quite ready as yet. Moreover, it can occur now with lightening rapidity owing to the possibilities of instant electronic transfers of funds which modern technology makes possible. And, as another factor to which we must give our attention, we must note that information has become a new source of power, and that those who command vast quantities of information command the economic power that goes with it. We need to gear ourselves towards addressing this new problem as well. These are a number of blind spots in our vision of the world order, especially on the human rights scene, which must be addressed. I myself have written on what I have sometimes described as a blind spot in human rights and international law, namely the armaments industry.15 Despite all its human right violations, the armaments industry seems to flourish. Although it deals in ever more sophisticat-

168

Universalising International Law

ed weapons of destruction, it is permitted to sell death wholesale. It does so in public, in the most prestigious parts of a city, and attracts the most powerful patrons. By contrast, the small drug peddler is hauled before the magistrate and severely dealt with, while the wholesale trade in death flourishes with scarcely a murmur of protest from the law. There is, indeed, an anomaly here, which human rights and international law must address. XV. The Power of Lobby Groups Another blind spot is the way in which different interest groups can influence governments, even to the extent of influencing their presentation of globally important matters before international bodies. Their lobby groups are often powerful enough to influence governments themselves, even to the point where some government presentations before international bodies are prepared for them by these groups. They maintain a permanent presence in the legislative capitals of the developed world, with easy access to congressmen and parliamentations. They may be oil or gas interests, for example, which have a point of view to present which runs counter to environmental interests. Their power and the inducements they can offer, including financial support to political parties, can scarcely be matched by the public interest groups wishing to present an opposite point of view. In the result these powerful groups can sometimes speak with the voice of governments themselves. So great is their power. XVI. Some Checks on Commercial Power Today’s conference on the “Challenge of Global Markets” has revealed a number of ways in which new methods are being devised to keep all this surplus of commercial power in check. We have a long way to go before we can meaningfully address all these challenges and devise ways of ensuring equality before the law of these multinational corporations. Increasing shareholders’ sensitivity is one method, and brand resistance is another. Focusing on the corporation’s image may be another means, for corporations take very seriously any possibility of the tarnishing of their corporate image. A number of NGOs and others have been working in these fields and the large companies have proved sensitive to these pressures.

International law tends by and large to pass by several of the problems outlined in this chapter, as they are often thought to be peripheral to international law. They could in fact be among the central issues of the international law of the future. 15

See "Traffic in Armaments: A Blind Spot in Human Rights and International Law", 2 Development Dialogue, Journal of the Dag Hammarskjold Foundation 68 (1987), reprinted in 1 Justice Without Frontiers: Furthering Human Rights, 1997, p. 228.

Chapter 6

Private International Law and Public International Law: The Increasing Linkage* As other essays in this volume have stressed, the universalisation of international law demands a closer interaction between the disciplines of international law and all the other disciplines which surround it – history, sociology, philosophy, economics, psychology and others. International law has an interface area with nearly every branch of knowledge one may care to name and needs continually to interact with them and draw upon their funds of knowledge and experience. Yet there is a compartmentalisation of knowledge within the domain of international law itself, which often tends to pass unnoticed. International lawyers tend to divide themselves into public and private international lawyers who meet in different groups and perhaps interact with each other less frequently than the interrelated nature of their expertise warrants. The disciplines of private and public international law are interacting today in ever increasing fields of activity and ever more intricate ways and it is to be hoped that there will likewise be more interaction between the practitioners of the two sub-disciplines of international law. The influence of irresistible global forces makes compartmentalisation no longer possible. Private international law per se is very hard to define. The main reason for this difficulty is that private international law is not a visible and identifiable section of law as is the case with other legal disciplines such as criminal law, family law, the law of contract and others.1 However, over the years many definitions have been attempted. It is private inasmuch as it deals with the legal relations of individuals *

1

Address to the European Group for Private International Law, Hague Meeting , Peace Palace, 26th September 1997, and published in Rivista di diritto Internazionale privato e processuale, April/June, 1998, p.313. SeeCheshire and North, Private International Law, Butterworths, 1987, p.7.

169

170

Universalising International Law

and public inasmuch as it deals with conflicts between the law of different nations. It is properly called law inasmuch as its rules are enforced by the courts.2 For the purpose of this discussion public international law is treated not merely in its traditional connotation of the body of rules or principles which govern relations between states but also as including relations with other organizations and individuals. Private international law in the context of this discussion is the body of principles determining which of two or more systems of law shall prevail when they compete in a particular case dealing with the legal relations of an individual or individuals. While other descriptions are possible, these contours of the two disciplines are sufficient for the limited purposes of this discussion. A recent writer on the conflict of laws has very attractively highlighted its importance by observing that “It starts up unexpectedly in any court and in the midst of any process. It may spring like a mine in a plain Common Law action, in any administrative proceeding, in equity, or in a divorce case, or a bankruptcy case, in a shipping case or a matter of criminal procedure … The most trivial action of debt, the most complex case of equitable claims, may be suddenly interrupted by the appearance of a knot to be untied only by private international law.”3 I would go further and add that the cases are increasing in which private international law, in untying this knot, must act in concert with public international law. A similar observation could be made of public international law. Its principles tend increasingly to surface in administrative, matrimonial, bankruptcy, shipping, criminal, debt recovery and equitable claims – not to mention health, labour, citizenship, constitutional and company law matters, to name a few. In most of these areas there could be a combined relevance of the principles of public and private international law. Instances of activity which attract the principles of private international law keep proliferating as people become more mobile and the rate of transborder crossings keeps increasing exponentially. This vastly increased physical movement of individuals multiplies the intersection of legal systems out of which private international law problems arise. There is also a vastly increased movement of funds across national boundaries. Where once a physical courier was required to carry vast sums across national boundaries, electronic funds transfers achieve this result instantaneously. Likewise there is the growing domination of electronic media in what is sometimes described as electronic colonialism – a ‘colonialism’ which aims at dominance not over territories as did the old colonialism, nor over economies as does mercantilism but over minds, attitudes, desires, beliefs,

2 3

PeterHibbert, Private International Law, Oxford, p. xxx. Fedrick Harrison, Jurisprudence & the Conflict of Laws, pp. 101-102.

Private International Law and Public International Law

171

lifestyles, consumer opinions and purchasing patterns.4 All of these are geo-social phenomena which at once bring into operation both private and public international law. Internet in fact provides unprecedented opportunities for transactions and interaction between people in complete disregard of territorial frontiers and domestic regulations. It is exposing the inadequacy and indeed the futility of purely national attempts at regulation of the many areas of commercial and other activity which are rightly the concern of domestic governments. When contract and tort can take place in cyberspace it is only at international level that the many resulting problems can be addressed.5 Matrimonial law, corporate law, industrial law, communications law, criminal law, racial and gender discriminations – all of all these are the subject of international conventions and declarations, thus bringing them within the sphere of public international law apart from such principles of private international law as each case may attract. Moreover the increasing resort to war crimes tribunals, with the possibility of an International Criminal Court being set up in the future, bring individual conduct into the international law domain. Increasing assertions of domestic jurisdiction in respect of wrongful acts committed abroad also have the effect of rendering porous such notional partitions as may have been thought to exist between private and public international law. The activities of international financial institutions such as the World Bank, which tends increasingly to lay down terms relating to salaries, prices and trade practices within state jurisdictions also bring in a mix of public and private international law principles especially having regard to the vast number of migrant workers who comprise the workforce of today. The cases are thus increasing in which private international law must act in concert with public international law in untying the knot referred to. Having made these preliminary observations I shall now refer to a few of the factors that make this interaction more frequent than ever before. I.

Increasing Importance of the Individual in International Law

International law is moving inexorably out of the idea that its subjects are only sovereign states, and this for many reasons. In the first place, we know the path-breaking movement in the human rights field, which has pierced the walls of national sovereignty and thrust the individual forward as an appropriate subject of public international law. No longer need an individual commit piracy on the high 4 5

See Thomas L. McPhail, Electronic Colonialism: The Future of International Broadcasting and Communication, Sage Publications, 1987. See generally Katherina Boele-Woelki and Catherine Kessectjian (ed.), “Internet: Which Court Decides? Which Law Applies? Quel tribunal decide? Quel Droit S’applique?,” Kluwer International, 1998.

172

Universalising International Law

seas to be worthy of attention in the august domain of public international law! Moreover, there is an increasing number of non-State global actors – NGOs, multinational corporations, global associations of persons with similar interests. Individuals are therefore moving closer to center stage in public international law as well. We also encounter numerous problems regarding artificial persons. Here, again, grave problems arise of piercing the veil of corporate personality, raising questions of accountability through the screens of multiple registration. How does one sue them? How can they be made accountable? What rules, if any, of public international law regarding environmental protection, arms trafficking or money laundering have they violated and what rules of private international law determine the legal system under which their conduct will be judged? Private international law by itself cannot give us all the answers, nor can public international law either. The Barcelona Traction case6 gave us an early foretaste of the intertwining of public international law with domestic and private concerns and there will no doubt be many more of these in the future. It is true that jurisdiction over the individual conduct of its subjects is traditionally an essential part of State sovereignty, but increasing areas of individual conduct are now the subjects of international regulation. From the norms and standards prescribed by the Universal Declaration to the state obligations imposed by the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights, from the duties of prison officials in time of peace to the defence of superior orders in time of war, the conduct of the individual has become the concern of public international law. The responsibilities and liabilities thus arising pursue the individual even though he or she may cross and re-cross national boundaries. An increased interaction of the principles of public and private international law is a necessary result. II.

Increasing area of activity

Further, there is a growing number of UN Conventions regulating matters traditionally the subject of domestic law. Where sovereign states would have liked to regulate the entire conduct of individuals under their own sovereign power, they cannot do so now because of a multitude of global arrangements, conventions and principles that have taken charge of various spheres of domestic activity that have international implications. International trade, the environment, communications, health, air traffic, tourism, and intellectual property – all these know no national boundaries and demand international standards, regulations and controls.

6

Barcelona Traction, Light and Power Co., Ltd. I.C.J. Reports, 1970, p.3.

Private International Law and Public International Law

173

III. The Phenomenal Increase in the Number of Individuals Straddling State Boundaries There has in recent years been an exponential growth in travel. Tens of thousands of people from the smallest countries are travelling all over the world and settling down in foreign parts. My own country of Sri Lanka with a population of less than 20 million has around a million nationals who are resident abroad in almost every part of the world, and they would be a fruitful source for the generation of combined problems of private international law and public international law. Again, there are millions of refugees who are in their own way generating all manner of private international law problems, and at the same time are the subject of major public international law rules and conventions. Transnational employment is absorbing millions of workers from various countries. Here, again, there is a combination of private international law problems, human rights problems, public international law problems, and a fruitful source of combined interaction of these disciplines in the future. The rise in the importance of the individual and the increase in the number of individuals whose activities concern more than one State provide the setting against which we must consider the interaction of public and private international law. IV. Areas of Interaction between Public and Private International Law The areas of actual interaction between public international law and private international law are growing. The list is unending but I shall refer to a few illustrative examples to show how they straddle a vast range from the micro problems of individual children to the macro problems of the global environment. I shall first deal with these areas in general terms and then give some specific illustrative examples. Some areas where, broadly speaking, there will be an increasing interaction of public and private international law are the following: (a) Guardianship Let us start with the case of child guardianship, the subject of a Convention, which had been in force since 1902. When this Convention had remained in force for over half a century, the Elizabeth Boll Case (1958) between Sweden and The Netherlands7 drew attention to some of its inadequacies, and stimulated the Revised Convention of 1961. Thus, though an important private international law Convention had remained intact for fifty years, it needed this public international law case to stimulate its revision. 7

Application of the Convention of 1902 Governing the Guardianship of Infants, I.C.J. Reports, 1958, p.55.

174

Universalising International Law

(b) Child Abduction Child abduction is becoming a growing problem. Whether for forced labour, forcible induction into armed services or for prostitution, this has become a transborder problem of such notoriety as to cause grave concern in the field of public international law. At the same time a given case has heavy private international law connotations as well. Transnational adoptions are also growing to such an extent as to enter the area of trafficking in children. State sovereignty over its own subjects is an area that States have already jealously guarded. It will always be a matter of interest to a State how its children are treated in foreign States, whether they have got there with or without the volition of their parents or guardians. Hence there can be various public international law aspects arising from the treatment of children, in addition to any private international law questions that might arise. (c) Human Rights Human rights began their spectacular advance in the second half of the twentieth century as a department of public international law. Major developments in this field have refined and redefined the rights of individuals to the point where they form an essential part of the conceptual armoury of every domestic lawyer and a fortiori of every private international lawyer. For example, the rights of motherhood, the right to marry and found a family, the right to freedom of movement and travel, the rights of and rights over children, the right to freedom from cruel and unusual punishment – all of these are daily strengthening the individual rights which provide the bedrock of private international law. (d) Products Liability Products liability is another fertile field of interaction. Dangerous and noxious materials of various sorts are crossing national borders. They are supplied by manufacturing countries and enter the territory of recipient countries, very often countries of the poor world. They can cause damage of various sorts, including health damage and very heavy environmental damage. Certainly there could be a whole crop of personal claims, tortious claims, and contractual claims against manufacturers in another country. Apply the private international law rules of State A and you may get the result that there is no liability, but apply the private international law rules of State B and you may get a result that there is liability. The need for overarching principles is daily becoming clearer if in some cases there is not to be a total travesty of justice. In short, while they concern the individual manufacturer and importer, they are matters of state concern as well – sometimes even to the extent of causing tensions between states especially where poorer states feel they have become the dumping grounds for the inferior products of the manufacturing nations.

Private International Law and Public International Law

175

(e) Transport of Noxious Materials Two months ago a conference was held in Sri Lanka on sustainable development for the SAARC Region.8 There was much discussion there of a number of problems that have arisen of transboundary pollution resulting from noxious materials brought in from abroad. A notable instance under discussion was the incidence of pollution at a point where four States could be affected – India, Bangladesh, Bhutan, Nepal. All of them could possibly be affected through soil damage caused by noxious material that had been imported. The tracing of liability in such a situation is at the same time a very interesting question of private international law, if a private person is the claimant. At the same time, there could be various public international law aspects of this matter. Damage on the scale of the Bhopal disaster in India can clearly become a matter of public international law, while at the same time spawning hundreds or thousands of private international law claims. The same incident could thus give rise to claims which may end both in the International Court of Justice as well as in domestic courts. Environmental Concerns The conflict between the private and individual interest in pursuing industry and commerce, and the public interest in environmental protection and conservation can surface in lawsuits involving a combination of private and public international law. Environmental damage is thus one of those very heavy areas of intersection of private international law and public international law. Take the Potassium Mines case. Greenhouse owners in The Netherlands complained of French mines releasing massive discharges of waste salts into the Rhine, an international waterway, and causing damage to their crops. This presents a classic problem. The river of course was receiving pollutants, not only from France, but from other countries as well. How do you apportion and allocate and pinpoint liability? All these are questions which private international law is concerned with, but public international law also has a great concern with these problems. In fact, the professor of international law at the University of Leiden, Professor Panhuys, in an opinion appearing in the Netherlands Yearbook of International Law of 1980, had expressed an opinion that there had been a failure in that instance by the French Government in its duty to prevent pollution of the Rhine, and that The Netherlands should sue France in the International Court of Justice. That was a professional opinion given in relation to a matter which classically would be a subject of private international law, but which very clearly entered the domain of public international law as well. All lawyers will straightaway recall, in this context, the famous Trail Smelter case,9 as (f)

8 9

SACEP Conference on Sustainable Development, Colombo, 1997. Trail Smelter Arbitration (1949) 3 R.I.A.A. 1905

176

Universalising International Law

an example of a private dispute which, by straddling the border between two States, attracts the application of public international law. (g) Torture Let us consider another situation, which unfortunately seems to be occurring more often today - the question of torture, despite all our conventions against torture. Amnesty International has reported that there is a rash of torture practices spreading across the globe. States themselves supply torture apparatus and expertise to other states and private suppliers also make a good business of it. Take the case of a person who is tortured within a foreign domestic jurisdiction. Eventually, let us say, he files a damages action against his torturer. The torturer pleads that he acted as a State agent. The principles of private and public international law interact with each other, whether the matter be heard in a domestic or an international forum. (h) Multinational Corporations Take again, the case of the great multinational corporations, which today operate on an enormous scale, straddling State boundaries. They are major global actors of our time. Much international wrongdoing follows from the decisions taken in their boardrooms. This wrongdoing is sometimes on a scale which would entitle States to take action, and at the same time operates often at the micro-level, affecting a multitude of individuals, each of whom would have a separate cause of action. Both public international law and private international law would have to face the question “How far can one pierce the corporate veil?" (i)

Trusts

Conventions dealing with the validity, construction, effects and administration of trusts open up another large category of cases where public international law and private international law interact. The Hague Conventions deal with these matters but, at the same time, the question of recovery of trust assets to satisfy claims could blossom into major questions of public international law. State Sponsorship of Individual Grievances Other major areas of intersection result from the fact that a State may, for reasons, which seem fit to it, take up individual grievances as a matter of State policy. There could be questions ranging from the immunity of diplomats to the custody of children that thus cross the border between public and private international law. (j)

(k) The Arms Trade Another area we need to note arises from the phenomenon of the arms trade. The arms trade, a matter of profound importance to the fortunes of sovereign States,

Private International Law and Public International Law

177

is often, at least in form, the result of contracts between private parties. States are affected by this, international embargoes are broken, rebel groups receive assistance, and interference takes place in the internal affairs of States. Moreover, the arms trade is one of the largest generators of the transfer of international funds. It is probably the biggest money mover in the world today. The question of the arms trade is thus, for more than one reason, eminently within the domain of public international law, however the contracts on which it is based may originate. A multitude of conventions, United Nations resolutions, and other rules, directives and principles of public international law would be involved in this matter. (l)

Electronic Transfers of Funds

I would like to say a further word on the question of transfer of funds. We all know that electronic transfers of billions of dollars are taking place every day. Safe havens, tax shelters, protected bank accounts are in the news almost every day. Are these purely private matters between a customer and his bank or are there not questions of public international law also involved? The legal considerations lying behind some of the biggest movements of money in the world today will attract the closest attention from both public and private international lawyers. Moreover, hundreds of thousands of jobs and vast sectors of national economies are affected by them. I am sure that in the years to come, there will be many matters of that sort which will surface in both domains of international law. Questions of nationality, such as were involved in the Nottebohm case, are only the tip of the iceberg. (m) Money Laundering Money laundering is a major industry. In fact, it is one of the world’s biggest industries. Every conceivable way of defeating the law is brought into play, from drug trafficking to tax evasion. A special legal expertise is growing up around the subject and major law firms often advise clients in this regard. It is an international malady, which all governments are seeking to counter, both domestically and by joint action, but it seems to be ever on the increase. (n) Permanent Sovereignty over Natural Resources Perhaps I might also mention the question of permanent sovereignty over natural resources – a matter of great importance in the developing world. That is a jealously guarded right today, which is well recognized, but we find that a number of private contracts are entered into from time to time for the exploitation of domestic resources in developing countries and there, again, private law may be applicable in relation to the contract itself, but it impinges on major questions of public international law.

178

(o)

Universalising International Law

Information Technology

Though essentially a technology within the domain of private ownership, it has vast public law implications, for its power is so great as to manipulate national economies and governments themselves. The public law implications are legion, among which are great questions such as whether cultural diversity will eventually diminish, whether information on traditional resources of developing countries can be patented and whether a global monopoly is building up of channels of information and satellite services. Seeing that knowledge based products now make up more than half of the gross domestic product (GDP) of the OECD countries and that the proportion of high technology goods in world trade has, according to the World Bank Report of 1998 more than doubled over the past two decades, enormous global problems of a North/South variety will be spanned by privately owned information technology. The interactions of private and public international law will proliferate in this area. (p) Transborder data flow This presents individuals, corporations and governments with a formidable array of problems, for data accumulated in one country and containing the most sensitive personal information regarding its citizens instantaneously travels outside its borders and the jurisdiction of its courts and legal system. This often happens especially when transnational companies operate in a range of foreign countries and assemble all the details from those countries in the data banks of their metropolitan headquarters in such commercial centres as New York, London or Tokyo. Delicate questions of privacy of confidential information will then be determined by legal systems other than that of the subjects of such information. What does public international law have to say about the regularity of such data flow, about the conditions under which multinationals can trade in host countries and about data protection where data belonging to one sovereign state is held in another? In short, the areas of interaction are legion. Those are some specific areas of possible interaction between private and public international law. What I have offered are just a few illustrative examples out of a seemingly infinite range of possibilities. V.

The Growing Body of International Norms Regulating Individual Conduct

There is a growing body of international standards and norms concerning individual conduct, which are part of the corpus of public international law. Embodied in international conventions and rules of customary international law, they become principles relating to human rights and crimes against humanity, principles of individual as opposed to state responsibility, standards of professional

Private International Law and Public International Law

179

care, personal obligations relating to industrial safety and the like. Together they govern a very large sector of the activities of private individuals, an extensive area of legal territory which has major implications for public international law. So also questions of freedom of movement, loss of nationality, expropriation of property, illegitimacy, sex discrimination, responsibility for wrongful acts by state officials, principles of audi alteram partem, and due forms and procedures of trial – all of these are the subjects of international conventions, international standards and the growing body of human rights jurisprudence which is international. In all these areas we see public international law invading the territory formerly monopolized by domestic law and, in this way, making its impact also on private international law. VI. The Evolution of New Domestic Procedures in Areas Pertinent to Public International Law You are also particularly interested, I know, in matters of procedure – civil procedure, the service of documents abroad, and so forth. You may be interested to know that there are a number of new procedural structures evolving in various parts of the world, which have a bearing on questions of public international law. At an environmental conference in Sri Lanka of the superior judiciaries of countries of the South Asian region, there was an interesting discussion of a number of new procedural devices evolved by the courts of the region for handling environmental matters. The courts of the region are very much alive to the need for increasing the practical reach of the courts in handling environmental problems, often the result of foreign activity in that region. There is a proliferation of environmental problems, at the hands of polluters who have the economic muscle to get away with many a violation of basic environmental principles. Relator actions, class actions, and other means of increasing the catchment area of complaints and strengthening the hands of the complainants were among the measures considered. Of great interest in this connection is public interest litigation which, as developed particularly by the Indian courts, has enabled many a private complaint, which would not otherwise have surfaced in the arena of public law, to become a public law issue, thus bringing it closer even to the area of public international law itself. One of the innovative procedural devices discussed was what has been described as the continuous mandamus. The idea underlying this device is that the courts do not stop at issuing an order for the removal of a source of pollution, which, at common law, would be analogous to the removal of a nuisance. The court, having issued the order for the removal of the nuisance, proceeds to monitor the results on a continuing basis, appointing an overseeing committee for this purpose.10 The committee reports back to the court at stated intervals and, if the steps 10

See for example, M.C. Mehta et al v. Union of India et al, 2 AIR (1986) Supreme Court Cases, p. 176.

180

Universalising International Law

ordered by the court are not implemented on a continuing basis, the court would summon the offender. The notion that the court has discharged its duty by merely making an order for the removal of the nuisance has been proved to be quite inadequate to discharge the heavy environmental responsibilities lying upon it. The procedures devised by the courts of the region to appoint committees consisting of such persons as the Controller General of the Institute of Mines, and the head of the National Remote Sensing Agency, for the purpose of reporting to the court on environmental damage resulting from such activities as mining or quarrying cannot but be of interest to both public and private international lawyers who may have to advise large corporations on their overseas activities.11 Private and public international lawyers, advising their clients, would be considerably assisted in the discharge of their duties by monitoring such procedural developments in other jurisdictions, for they can be relevant in a variety of ways. I may observe in passing that foreign observers at this conference, including environmental law experts from America and Australia, expressed their view that the courts of the SAARC region were perhaps leading the world in the effort to render court orders more practically meaningful in the arena of environmental law. Since environmental law is an area par excellence for the intermingling of principles of public and private international law, this development in another important region should be of great interest to a European assembly of private international lawyers. I move now to some observations at a more general level concerning the interaction between public and private international law. VII. Dependence of Hague Conventions on Treaties and Treaty Interpretation In the first place, it is to be noted that a vast segment of private international law is based on treaties. Be the subject ever so personal and individual, be it adoption, wills, marriages, maintenance, or matrimonial property, the regime on which it depends brings immediately into operation the department of public international law relating to treaty interpretation. This has been the subject of an enormous expenditure of energy by public international lawyers, e.g., in the International Law Commission. The Vienna Convention on the Law of Treaties, and several important decisions of the International Court of Justice, on the interpretation of treaties immediately come into play. However, I should observe at the same time that, while it is the task of public international law to interpret treaties, it can often call in aid principles of domestic law in regard to the interpretation of documents which would have an undoubted bearing on their task. The corpus of interpretational principles thus far recognized and applied in public international law represents only a small fraction of the many 11

On all these aspects, see the case of Rural Litigation and Entitlement Kendra Dehradun v. Devaki Nandam Panday, AIR (1985) Supreme Court, p. 652 and AIR (1987) Supreme Court, p. 359.

Private International Law and Public International Law

181

refined rules of interpretation which domestic law has evolved. Many of the latter will eventually find their way towards adoption into the corpus of public international law rules of treaty interpretation – perhaps under the head of “general principles of law recognized by civilized nations". Thus, just as public international law feeds private international law through its interpretation of the treaties upon which large departments of the latter are based, so also domestic law can feed public international law with new refinements in the rules of treaty interpretation. VIII. Reference of Disputes to the International Court of Justice A second aspect of importance is that future conventions in the field of private international law may well include, almost on a routine basis, a clause accepting the jurisdiction of the International Court of Justice to determine disputes relating to the interpretation or application of the treaty. The need for uniformity in treaty interpretation is of vital importance to both public and private international law and this was the basis on which a Protocol was signed at The Hague in 1931 which conferred jurisdiction on the Permanent Court of International Justice in relation to disputes concerning the Hague Conventions on private international law. The Protocol went further and cast a specific obligation on the States concerned to apply the treaty within their jurisdiction in the manner determined by the Court. This jurisdiction passed to the International Court of Justice after World War II, and is still in force among nine States. This aspect assumes particular significance against the work that is currently being devoted to the Convention on Jurisdiction, Recognition and Enforcement of Judgments that is presently under discussion. It may well be a matter for consideration whether such a clause referring disputes to the International Court of Justice should not be inserted into this Convention. Seeing that this Convention is likely to be a primary topic for consideration at your next session, I would take this opportunity to commend it to you for examination. IX. Reference by Domestic Courts to the International Court of Justice Another potential area of interaction between public international law and private international law is the possibility of reference to the International Court of Justice of contested or controversial questions of international law that come before the domestic courts. This is a proposal that has been under discussion for some time. It has the advantages of offering the domestic courts an authoritative ruling on a question of international law, without entangling the domestic courts in the heat and controversy of sensitive international law issues which may arouse considerable passion in the domestic context. Much work will need to be done on this concept, but there is distinguished precedent for it in the European Court of Justice, which is empowered to assist domestic courts with such rulings and has exercised this jurisdiction with marked success.

182

Universalising International Law

There is indeed a difference of opinion on this matter between some of the most eminent jurists who have written on the Court’s jurisprudence. Thus Judge Lauterpacht, for instance, and Professor Wilfred Jenks have expressed themselves in favour of such a procedure, while Professor Shabtai Rosenne doubts its value.12 The matter therefore calls for careful study. A first step towards achieving such a jurisdiction may be to limit the subject of reference to the interpretation of treaties. Whatever form it may take eventually, this is an important area for consideration, enabling the International Court of Justice to participate more fully in assisting domestic courts, and involving a fruitful interaction between public international law and private international law, and between international and domestic judiciaries. X. Post Hoc Rulings by the International Court of Justice Another idea for consideration in this context is the possibility of post hoc rulings which may indicate guidelines for the future, after the immediately controversial matter has been settled on an ad hoc basis by the domestic courts. There are models for this in other judicial structures as, for example, in Holland, where, I understand, the courts can give rulings post hoc as guidance for the future.13 Such decisions would not, of course, affect the rights of parties flowing from the immediate judgment, but would be useful in achieving some measure of uniformity.14 It does little for either public or private international law if, even domestically, decisions are taken which are in violation of international law or if different national courts reach opposite decisions on the identical question of public international law. XI. The Need for Stimulating Interest in Private International Law in Developing Countries I move now to another aspect which I believe needs attention from the fraternity of international lawyers, both public and private. This is that, apart from the great metropolitan centres such as London, Paris and New York, which attract a large volume of international law work, it is scarcely possible for a lawyer who has 12

13

14

See Verslag van de Algmene Ledenvergadering, No. 96, March 1988. See, further, L. Caflisch, "Reference Procedures and the International Court of Justice", in L. Gross (ed.), The Future of the International Court of Justice, 1986, Vol.2, pp.588-598; L. Gross, “The International Court of Justice: Considerations of Requirements for Enhancing its Role in the International Legal Order”, 65 American Journal of International Law (1971), pp.308-313. See Stephen M.Schwebel, "Preliminary Rulings by the International Court of Justice at the Request of National Courts", in 96 Report of the Netherlands Association of International Law (1988), p.32. Verslag van de Algemene Ledenvergadering, No. 96, March 1988, pp.32-33. See also the comment of Judge Schwebel on this matter at p.52.

Private International Law and Public International Law

183

specialized in one or the other of these departments of international law to make a living out of this speciality. If an aspiring student is to plan reasonably for the future, he or she cannot in these jurisdictions plan to specialize in international law. He or she must necessarily acquire a special expertise in some department of domestic law which will bring him or her their bread and butter. Thereafter, in due course, if the young lawyer is fortunate, a couple of international law cases will come his or her way, but by no means in sufficient quantity to supply a regular flow of work in this area. After one or two cases involving international law, the lawyer will be back to his or her domestic practice, perhaps never to see international law again. Consequently, in the syllabus of the law schools and in the hierarchy of the law students’ interests, international law ranks very low. This factor, often lost sight of, tends to pass with scarcely any attention from the fraternity of international lawyers. It is for organizations like yours to stimulate an interest in the law schools in these departments of legal learning. It would be useful, for example, if you could stimulate the organization of seminars dealing with interesting aspects of the subject. These could familiarize law students and young lawyers with the growing need for expertise in this direction, and the increasing opportunities for professional service awaiting the lawyer with a special knowledge in this area. Perhaps an annual prize for the best dissertation on some topic could be offered by your society – one for the Asian region, and one for the African region. I do not mention the Latin American region because I believe there is a long tradition in that region of interest in international law. A prize such as I have mentioned would be much sought after by the best students in each region. It would not cost much to organize, but the rewards, in the form of drawing some of the best talent in the region into the area of international law, would be far out of proportion to the outlay. Nor is this only a publicity-oriented project. It has great utilitarian value, for the future will probably see a larger number of cases of private international law, having regard to the hundreds of thousands of people from developing countries who are now travelling to all parts of the world, and settling down there, while still retaining strong roots with their own countries of origin. This new diaspora of the talented (and also of the displaced) – many of whom have established themselves successfully in their countries of adoption – can be a fertile source of work for the private international lawyer of the future. Contracts, last wills, adoption, divorce, separations, enforcement of judgments, traffic accidents, administration of estates, maintenance, matrimonial property, succession – all of these will spawn legal problems on a scale not known before.

184

Universalising International Law

Moreover, the refugees fleeing across international frontiers and establishing themselves in other regions would today be numbered in millions. The problems that will arise from their displacement and resettlement will need much clarification from the international lawyers of the future. Those lawyers cannot all be drawn from the developed world, as they tend to be, under the present dispensation. Commercial legal problems, likewise, are proliferating, with the spread of capital and personnel all over the globe, as never before in history. It is our obligation to ensure that the legal professions of the developing countries will be equal to the task of serving their peoples in regard to these problems, if and when they arise. In conclusion, let me wish you much success in your deliberations. May you have a most fruitful and stimulating conference. Your conference assembles an outstanding array of expertise in private international law. Your combined body of expertise and experience has blazed new trails in the development of your discipline. We confidently look forward to a sterling contribution in the future which will match the expectations naturally flowing from your impressive achievements in the past.

Chapter 7

Widening the Conceptual Framework

The task of universalising international law requires a widening of the conceptual framework within which the discipline is set. This involves effort commencing at the level of legal education, where the mind-set of the future international lawyer is cast. Lon L. Fuller expressed his concern at Harvard in the 1950’s at what an incredibly narrow segment of the legal universe was being presented to law students. Fuller was making his observations primarily in the context of domestic law. They apply a fortiori in the field of international law which not only takes the whole world for its province but also needs to draw more copiously, in a discipline which is yet in a formative stage, on the principles and values which lie behind the letter of the law and give it both its substance and its impetus for growth. I am conscious that an examination of concepts constitutes only one aspect of an examination of the adequacy of a legal system. One must also examine procedures, structures and the personnel who administer it. Yet an examination of the conceptual basis is a necessary prelude to the examination of the other elements. 1.

The Western Structural Framework

An important factor bearing on all of this is that the practitioners of international law throughout the world are those who have received their training in this discipline in Western or Western-oriented law schools, where there is an implicit substratum of Western values, concepts and procedures. It is on this substratum that they have built their understanding of international law, and the time has arrived for another look at this substratum with a view to examining its adequacy to do duty in 185

186

Universalising International Law

a world so vastly different from the world of absolutism, colonialism and colonial administration in which it was formulated. True, it has grown beyond this framework now and is rapidly adapting to the needs of the wider world which it must serve, but this is the very reason why its conceptual underpinnings need to be rescrutinised for their adequacy to the transformed milieu in which they must function. There is also a hidden psychological element here. Recognition and advancement in the world of international law, whether academically or professionally, has depended to a large extent on acceptance of the postulates and norms on which the system was established, taught and administered. There was hence a conformity even from those who had the potential to offer fresh insights which might have enriched the system as a tool of global justice. It was thus to some extent inhibited in its growth at a time when the arrival of so many fresh actors on the international scene could have fertilised and adapted it into a more universal discipline, better suited to the multicultural world which it was now required to serve. In pursuing this inquiry we must of course be conscious always of the idealisms and natural law background which surrounded the incipient discipline in the 17th century when it first took practical shape in the West at the hands of Grotius and its other early masters. At the same time there were constricting influences such as the emergence of and emphasis on the system of nation states and the sanctity of their sovereignty. 2.

The Positivist Structural Framework

The natural law and idealistic push provided by its philosophical setting was thus countered and to a considerable extent negated by the positivist elements inherent in the nation state framework. In course of time these latter elements and the doctrines of realpolitik associated with them came to dominate the scene and resulted in the tendency to move towards an accentuation of rules at the expense of the larger principles lying behind them. Much in the fashion of domestic law, the principles of international law tended to congeal into rigid rules, on the particularity and precision of which their formulators took great pride. Considerations of the equities of the matter and of the overarching values and principles tended to be pushed aside very much in the manner of domestic legal systems, and the positivistic mind cast overwhelmed the natural law mind cast out of which the discipline had grown. This particularly suited the age of empires and the absolutism that was needed to administer these distant territories to which there was no moral claim whatever on the part of the dominant powers. Their dominion over them had to be justified on the basis of formalistic rules relating to acquisition and power, for the moment equities and moral principles entered the scene their power and authority would vanish. Imperialism thus contributed significantly to de-naturalising the international law system and pushing it powerfully in the direction of positivism.

Widening the Conceptual Framework

187

This was reinforced by the most influential legal thinkers of the day, who viewed law as a science and sought to emulate this new department of human activity which was yielding such dramatic results. Precise formulation of rules in such a manner that a situation deviating a hair’s breadth from the ambit of a rule fell completely outside its pale, attracting no equities whatsoever for its resolution, became the norm. Slavery, for example, a practice which was so obviously condemned by every principle of natural law and human sentiment, could flourish without the outright condemnation which international law was morally bound to extend to it. Annexation of territory, appropriation of property, the removal of peoples from their ancestral territories, wars of aggrandisement, enslavement and plunder – all of these drew no condemnation from a body of formalistic international law which accorded no rights whatsoever to those outside the charmed circle of members of the club of recognised nations. 3.

The Colonial Structural Framework

International law as it evolved and was practised during the period of colonialism was geared to assuring within each colony the unchallenged authority of the colonial power to which it belonged. Each of the colonial powers was anxious to preserve its unquestioned rule within its colonies, and the price it had to pay for this was to desist from interfering with the like authority of its fellow colonial powers within their own dominions. Wars were of course fought from time to time with a view to wresting some of these colonies from a rival and annexing them to one’s own empire, but it was always a condition of the peace that ensued that each colonial master should remain undisturbed in the administration of its colony. Just as security was thus sought from outside powers, so also was security sought from all internal forces that sought to interfere with the colonial master’s rule. It was generally agreed that the maintenance of peace within one’s dominions was a matter for the ruler of those dominions and what he did in order to enforce his authority was entirely his concern. Measures however brutal or autocratic which he might choose to adopt in order to maintain his absolute dominion in that territory were in no way the concern of international law. It turned a blind eye on this, for it did not recognise any rights in the subject population. The machinery of colonial administration was linked to this principle of absolute rule, and it was an autocratic structure set up to serve the military and economic interests of the administering power. There were, of course, enlightened voices such as that of Jeremy Bentham who, even in the heyday of colonialism saw all colonies as a source of oppression to the conquered and of rivalry among the conquerors. He translated these humanitarian insights into recommendations for colonial administrative structures and these recommendations were influential in

188

Universalising International Law

securing a better and more even administration. Yet the framework of colonial administrative structures dictated the limits of such beneficial influences and, by and large, the rigid and well ordered colonial administrative structures were inherited by these colonial territories when they achieved independence. A feature of those structures was that they often suppressed indigenous administrative models more suited to the territories in question, and even after independence those structures could scarcely be revived. Concepts of group rights, of duties rather than rights, of concern for national resources as an object requiring special protection from the legal system, the principle of maintaining harmony with nature rather than treating earth resources as available for short term exploitation – all of these tended to be submerged under the administrative apparatus of colonialism, and that is the framework which survived into the era of independence. Modern international law sees the need to correct some of these approaches but it tends to come up against the international apparatus of colonialism with its rigid and formalistic structures. Now that some of these concerns have become global concerns, it is necessary that even internal administrative mechanisms should be sensitive to these changes and develop a greater ability to respond to them. Modern international law can assist a great deal towards this end. 4.

Neglect of Other Value Systems

There has of course been an extension of membership of this club. Yet the rules of the club, as formulated during its heyday of privilege, have yet to be subjected to the scrutiny of nations and peoples whose value systems differ radically from the Western value system on which they were based. In many of their traditional backgrounds justice and equity were more important than precisely formulated legal rules; conciliation was more important than adjudication and arbitration, enforcement was not the result of the use of force but resulted from community sentiment; rules were not imposed on a community top down but were accepted by the community through their stemming upwards from the consensus of community sentiment; informality took the place of formalism at every stage of the legal process; dispute resolution was fashioned with a view to leaving no smouldering animosities behind, as in a formalistic court procedure where both winner and loser often leave the arena of contest with some feeling of bitterness left over. In many of these communities these informal methods of approach to the great problems of resolving conflict and preserving harmony were reinforced by religious tradition which enthroned principles rather than rules, in the manner of Christ’s condemnation of those whose concentration on the letter of the law obscured their view of the spirit of the law. Buddhist, Hindu, Confucian, Islamic

Widening the Conceptual Framework

189

and other teachings, exercising tremendous power over the minds of billions of the world’s population, emphasised such approaches. International law, as it takes stock of its position and responsibilities at the commencement of a new century, cannot afford to neglect so important a possible source of lack of empathy between the mindcast of the international legal system and the mindcast of those it is intended to serve. Perceptive observers of the new international scene, of whom Mahatma Gandhi was perhaps the most outstanding, anticipated this lack of congruence between the modes of legal thinking of the colonisers who had ruled India for a century and a half and of those who were to take over from them, on the basis of laws and legal systems which they had inherited. To him a centralised administration of law top-downward was the reverse of the ideal of law resting on the willing acceptance of the people. Centralised administration was the opposite of his ideal of a conglomerate of small units, duty was a far more important concept than right, the group was the shelter of the individual who might flounder if he had to fend for himself. These bases on which law and administration need to depend were vital, and he registered such protest as he could against the unthinking assumption that the opposite concepts of Western law could provide the foundation for the legal system that independent India would have to construct for itself. In the field of international law likewise we need to ask to what extent the relevant Western concepts underlying the conceptual bases of the substance of international law would receive the wholehearted support of vast sections of the world community. Let us take a few specific instances of concepts relevant to international law which are heavily impregnated with Western attitudinal approaches which may not be shared by other groups. 5.

Some Restrictive Approaches

(i) Narrow Concepts of Land Ownership In these days when environmental concerns are gripping the attention of international law, are there any tacit assumptions regarding the nature of land ownership which international law has tacitly taken over from Western domestic legal systems, which fly in the face of traditional attitudes to land ownership in many world systems? Africa, Polynesia, Melanesia, Australasia – not to speak of the vast range of Asian cultures – all treat land with a special degree of sanctity and reverence which is totally absent from modern western law. In most Western legal systems land is a commodity to be bought and sold by the rules of the market place. It is a matter between buyer and seller and the sale of land is little different from the sale of an item of merchandise. The highest bidder succeeds, he gets a whole bundle of rights

190

Universalising International Law

to do what he will with his property and he can if he chooses cut it up into little parcels as he would with a piece of cake. So also in regard to leasing. The owner parts with rights to the land for a period – often an extended period – enabling the lessor to do with the land as the owner would have done. Traditional respect for land in many systems of customary law was well explained in words attributed to Chief Seattle of the Suquamish tribe, when addressing US President Franklin Pearce in 1854: “You must teach your children that the ground beneath their feet is the ashes of our grandfathers; so that they will respect the land, teach your children that the earth is rich with the lives of our kin. Teach your children that the earth is our mother. Whatever befalls the earth befalls the sons of earth. If men spit upon the ground they spit upon themselves.”1 The broader perspectives of the community’s interest in the land and its right to be protected from the effects of its misuse, tended to be ignored in Western legal systems until environmental damage brought the problem into focus. Environmental devastation the world over whether through mining or major deforestation schemes or through the dumping of deleterious waste is a result which the wisdom of traditional attitudes towards land would have prevented. Western legal systems began to be sensitised to these issues by thinkers such as Albert Schweitzer who discussed “reverence for life” in 19152 and L.H. Bailey who in the same year spoke in practical terms of the respect due to the “holy earth.”3 Such perspectives were indeed not entirely absent from Western thought, but had been crowded out of the Western philosophical and economic agenda by the industrial revolution, and legal systems followed suit. The downgrading of nature was helped further by the apparently limitless power of science and the belief it induced that man had the power to tame nature to his will. Lawyers, likewise, shaped their discipline according to the belief in man’s power over nature, and legal systems grew increasingly regardless of nature and its traditional protections. Is the international law of the future to proceed on this conceptual basis or are new attitudes required incorporating some of the insights to be derived from traditional wisdom? Although these forms of damage were not specifically itemized by traditional systems, their attitude of instinctive respect for the land operated as an automatic protection against devastation through mining, debasement through disposal of waste, deforestation and desertification. Through the acceptance of the broad general principle the specific methodologies of environmental damage were avoided. 1 2 3

See Guruswamy, Palmer and Wester, International Environmental Law and World Order : A Problem Oriented Casebook, West Publishing Company¸1994, pp.298-300. Albert Schweitzer, Out of my Life and Thought: An Autobiography, 1933, p.188. L.H.Baily, The Holy Earth, 1915.

Widening the Conceptual Framework

191

(ii) Neglect of Economic Social and Cultural Rights Western political thought for the past few centuries has centred on the ways in which rights can be wrested from rulers unwilling to part with any aspects of their dominion over their subjects. From the time of Magna Carta through all the great European revolutions the concentration has been on civil and political rights. This was but natural against the backdrop of this process of political evolution. Yet, so great has been this concentration that it has crowded out a view of social, economic and cultural rights. This mode of thinking has transmitted itself to international law as well, as evidenced by the fact that even in 1948 when the Universal Declaration of Human Rights was adopted, the concentration was on civil and political rights. Other traditions than the European were more conscious of these other aspects and of the need to protect them. From the standpoint of those cultures there was a serious lacuna in the Universal Declaration of Human Rights in that it virtually neglected these other rights. Some measure of the divergence in thinking about these rights is the fact that it took eighteen years of discussion in UN circles for economic, social and cultural rights to receive recognition on a par with civil and political rights, for it was only in 1966 that the two sets of rights were accorded parity of status through the adoption in that year, on a footing of equality, of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Even with the acceptance of these rights there is still a tendency to sideline them through the lack of recognition of other cultural approaches to some of the main problems of international law. The stress on the individual rather than the group, on rights rather than duties, on adversarial proceedings inter parties rather than on inquiries as to how transactions with parties might affect the community, the lack of group rights, the denial of standing even in environmental matters to those who represent the communal interest – all of these still continue in the thought frames of international law and international lawyers. The emphasis on civil and political rights was appropriate to the historical period when they were stressed. While these rights still continue to need development and protection this must not be to the exclusion of a similar development of social and cultural rights in a world where groupings of people across all frontiers of race and nation will soon be the norm and their access to their cultural inheritances will be a matter of immediate and practical concern. (iii) The Narrow Time Frame of International Law International law as it emerged in the seventeenth century was geared to the necessity to preserve peace among warring sovereign states. It needed to attend to

192

Universalising International Law

its problems on a virtually day to day basis. True it derived much of its inspiration from sempiternal principles of justice and a higher law, but sufficient unto the day was the evil thereof. This had to be kept under restraints. The long term perspectives still remained a visionary’s dream. To think in terms of undergoing short-term hardship for long-term gain was the reverse of state centred concepts of short term advantage on the basis that the future would look after itself. The time frame in which the discipline was set was the present. European domestic law was also framed in terms of the rights of the present generation, with some rare exceptions in the case of entails on land. Rights of future generations scarcely entered into the equation of rights and duties. To the extent that domestic law framed the mind cast of international lawyers if indeed such a professional class existed, it set every legal problem in short term perspective. Modern international law, which now has to think in planetary terms and in terms of the long term survival of humanity, needs to recast its approach to the temporal dimension in which its principles are set. (iv) Narrow concepts of rights bearers International law concentrated on nation states as the sole bearers of rights and obligations. Other entities be they individuals or vast trading corporations were scarcely considered to be the subject of international law. Some inroads have been made on this principle, especially through the recognition of human rights and the incorporation of human rights principles into international law. Yet progress towards a fairer delivery of international justice through international law has been slow, having regard especially to the vast increases in the power of many of these non-state actors and their proliferation in number. When it is considered that some of the major trading multi nationals have revenues which far those of over 150 of the nation states, it becomes clear that they have a correspondingly large role to play on the international stage and that any attempt to advance the international rule of law requires a reorientation of traditional principles discounting the importance of non state actors. The proliferation of powerful non-governmental organisations, which are often bonded together across national boundaries, is another factor requiring a reconsideration of traditional attitudes. Many of the standard international instrumentalities lack the ability to deal with these entities because of traditional attitudes. Taking as an example the International Court of Justice one sees that it is geared to the nation state concept and that powerful entities such as those mentioned have neither access to nor amenability to the jurisdiction of this primary tribunal of international law. Even in regard to obtaining an Advisory Opinion from

Widening the Conceptual Framework

193

the Court, the list of non-state entities that have this right is extremely circumscribed. Likewise principles are evolving in international law which require the recognition of interests which have not thus far been even considered by international law. The foremost example of this concerns the rights of future generations. International law had no place for this concept in its repertory of principles and these interests tended to be trodden upon and negated without any principle being available for their protection within the corpus of traditional international law. Locus standi for generations yet unborn or for interests not able to defend themselves needs to be given to bodies that can speak for these interests and forums must also be available which they can approach on the basis of such locus standi. Where powerful interests engage in what might be described as international economic crime, there should likewise be the necessary tribunals invested with the requisite jurisdiction to handle them. (v) Formalistic Attitudes in relation to International Contracts International law has been slow to adapt to the juristic changes that have taken place over the past century in the attitude to contract. Domestic law started the 20th century with a formalistic approach to contract as the outcome of a meeting of two freely consenting minds. Their agreement was invested with a virtually sacrosanct character in consequence of the view that the autonomy of the contracting parties needed to be respected and should not be the subject of encroachment by the state or by the courts. This piece of privately created law with its rights and obligations tended therefore to be preserved intact and considerations of fairness, equity and unequal bargaining power did not enter the portals of judicial concern. The 20th century made a dramatic difference to judicial attitudes, for the realist and sociological schools of jurisprudence were able to demonstrate the injustice of this blinkered approach, especially in regard to the manifest inequalities of bargaining power which lay behind a vast number of contracts. The principle of fairness of contract came to be recognised, for it was manifest that gross inequities could result from the gross disparities of bargaining power under which such contracts were made. Significant advances were made to restore the balance and the end of the century saw the principle of fairness of contract being almost universally recognised in domestic legal systems. No longer was it possible for the courts and the state to be told that fairness of contract was none of their business. However international law has not recognised this sea change and still functions largely on the basis that parties are free to make their international contracts on whatever terms may result from the process of “no holds barred" bargaining that takes place in the international market place.

194

Universalising International Law

Contracts on which the prosperity of many Third World nations depends are entered into in circumstances of gross bargaining inequality and it is not to be wondered at that they are often contracts which take advantage of the weakness of the weaker bargaining party. Of course the problem here involved is an immense one because, unlike in the domestic arena, there is no court or administrative structure vested with the necessary power to investigate the fairness of the contract. Still international law cannot afford to shut its eyes to the problem. Principles of fair contract can be the subject of international declarations and internationally agreed instrumentalities for monitoring their fairness. It is not as though yardsticks of fairness are not available. Contracts need only to be compared with those entered into regarding similar commodities five or ten years earlier and the disproportion in payment becomes evident when one considers the much greater quantity of manufactured goods which could have been bought for the same quantity of primary produce five or ten years earlier. There tends to be a continual weightage in favour of the industrialised countries that buy this primary produce from the developing countries. UNCTAD and other instrumentalities have made efforts in the direction of evolving some safeguards but these have all been barred through superior economic might. The problem is urgent and needs a conceptual widening of attitudes towards international contracts. (vi) The Domination of the Economic Ethic World order today is powerfully dominated by the economic ethic which has succeeded to a large extent in pushing other considerations into the background. So strong is pressure for the necessities of life among the deprived sectors of the global economy that any factor that can contribute to economic advancement outshadows all others, thus often thrusting out of the way other values and considerations. Thus economic progress at whatever cost seems to be the order of the day whether that cost be in terms of environmental degradation, the dignity of labour, family relations, equality before the law, social and cultural rights, or even the autonomy of local or national governments. Economic advantage becomes the measure of all things, and some of the pristine values of international law itself seem unable to stand against it. The concept of sustainable development has been evolved to counter it in the interest of environmental integrity and the rights of future generations but at best this can only take us part of the way and it runs into heavy weather despite its compelling logic and necessity. This became evident at the World Summit on Sustainable Development held at Johannesburg in August 2002, where the forces ranged against it came out into the open, asserting numerous ideological and practical grounds for displacing or overriding this vital concept.

Widening the Conceptual Framework

195

Sustainable development is only one of the concepts that need to be strengthened if the dominance of the economic ethic is to be overcome. A number of other concepts bearing on the autonomy and integrity of individuals, local communities and national governments need to be examined. Among these are such varied matters as codes for multinational corporations, concepts and procedures for international impact assessment in relation to major activities concerning the use of national resources, concepts of global commons and those relating to marine resources, equity in the allocation and use of wave bands for communication, respect for culture and tradition in the exercise of the right of freedom of speech and advertisements, exchange relations in the world market, the abuse of tax shelters, the regulation of waste, buffers against the use of economic power as a means of political domination, equity in concessions relating to natural resources, the loosening of bonds of economic dependency on former metropolitan powers, safeguards against the shift of capital earnings from the developing to the developed world, the development of appropriate technologies and the curbing of illicit operations of the armaments industry. There is much corruption on the part of Third World leaders themselves in these areas and international law needs to address the question of regulating them, whoever may be involved. There must be a readiness to look further a field than the merely legal in the examination of the concepts of international law, and to relate the legal concepts to the practical realities resulting from their application. (vii) Attitudes towards Animals and Nature The vast new powers demonstrated by science, combined perhaps with the belief in much of Western culture of man’s domination over nature have led to a certain lack of restraint in opposing the forces of nature. There has tended to be a belief that through science man can tame nature and make it do man’s will. This belief has no doubt been reinforced for the past few centuries by teachings such as those of Francis Bacon who advocated that the progress of science be freed of the traditional ‘superstitions’ which had kept it in check in other cultures.4 This gave science a license to break free of the moral and social constraints, which in other societies such as the Chinese, the Arabic and the Indian, had kept science within the framework of the mores of the community. In many departments of scientific activity it is now becoming evident that altering the course of nature can have very damaging long-term consequences. The progress of science has indeed generated an expectation that if science could be further developed it could be used to adapt and change nature so as to suit man’s will. This was not inconsistent with the view of man as the lord of creation, with all created things being there to serve his will. The power of science reinforced this feeling of overlordship. 4

See C.G.Weeramantry, Justice Without Frontiers: Protecting Human Rights in the Age of Technology, Ch. 1.

196

Universalising International Law

Many world cultures presented a diametrically opposite view – of a harmony between nature and human effort, nature being the permanent and eternal order enjoying preponderant and overriding force with which human effort must conform. The Judaeo-Christian ethic has emphasised man’s domination over nature and all living things. Of course, humane treatment of animals is part of kind and gentle conduct as advocated in this tradition but it is not specifically placed in the category of affirmative duties, which are of a binding nature. In essence all forms of life on the planet are there for the service of man. International law has also tacitly proceeded upon this basis, and has consequently been reluctant till recently to spell out a principle of duty towards nonhuman forms of life or any right to protection vested in them. The concept that only humans are the bearers of rights and duties, which is a legacy of this tradition, has found its place in the jurisprudence of international law both expressly and by implication. Other world traditions, notably the Buddhist, the Far Eastern, the African, the Melanesian and Polynesian and the native American take a very different view. All life forms are there for a reason and are entitled to respect and protection. Of course, humans are entitled to obtain a benefit from them, but not to the extent of treating them as “things” to be wantonly appropriated, destroyed, mutilated or extinguished as human whim and fancy dictates. This was eloquently expressed in the native American letter already referred to. Whether the letter be authentic or not, it is generally accepted as articulating the traditional American view in regard to nature. Western legal systems – and international law in convergence – reflect a totally different approach. However, under the impetus of modern concepts such as sustainable development and environmental law in general, the negative force of this approach is being mitigated, but there is still a strong impetus to treat all nonhuman forms of life as rightless. Legal systems, it is true, lack procedures by which non-human entities can be represented and protected. Imaginative lawyers and judges in these systems are attempting to devise procedural means for their protection as for example where Justice Douglas of the US Supreme Court suggested that such natural entities as rivers and lakes, beaches and groves of trees should be given “standing” in the legal system so that rights could be asserted on their behalf.5 Likewise it is important that there should be procedures by which the rights of unborn generations could be brought to the attention of the Courts. Modern Western legal systems are feeling the need to alter their conceptual framework so as to accommodate animal rights. Organisations such as Europe for 5

In Sierra Club v Morton 405 US 743 (1972). See also Christopher D. Stone, “Should Trees Have Standing? Towards Legal Rights for Natural Objects” 45 S.Cal.L.Rev. 450 (1972).

Widening the Conceptual Framework

197

Animal Rights have been pressing for the creation of an appropriate international framework to enforce animal welfare standards. Within domestic jurisdictions animal welfare has been the subject of detailed Acts and regulations, and questions of animal welfare have even been the subject of constitutional court decisions in Germany (See the Federal Court’s ruling of 6 July 1999) laying down basic guidelines about how legislatures should draw up ordinances regarding animal welfare law. For example, the animal keepers’interests have to be reconciled with the interests of animal welfare on ethical grounds. The Federal Constitutional Court has recently taken the initiative towards the incorporation of animal welfare as a constitutional right in Germany’s Basic Law. The proposed wording of a new Article 20 is as follows: “Mindful also of its responsibilities towards future generations, the state shall protect the natural forms of life and animals by legislation and, in accordance with law and justice, by executive and judicial action, all within the framework of the constitutional order.” International law needs also to work towards developing principles, procedures and institutions which can move away from the treatment of non-human life as rightless objects and towards investing it with essential safeguards and affirmative protection. Numerous jurisdictions now have detailed provisions regarding various aspects of animal welfare regulations especially in regard to medical research. International law will need to expand its conceptual framework to give recognition on an international basis to the growing concern regarding animal welfare. 6.

Necessary Extensions of Some Primary Concepts

(i) Widening of the category of peremptory norms There are certain principles of international law which are so deeply entrenched that no state is free to disregard them. No treaty arrangements, no amount of acquiescence by another state, no excuses or justifications can override them. This category is based upon the principle, first clearly formulated by the International Court in the Barcelona Traction case (Second Phase)6 that such obligations are due to the international community as a whole. They cannot therefore be derogated from. A need of the future will be to expand this category of peremptory norms so as to include conduct which is violative of global peace either directly or potentially. The limitation of such peremptory prohibition to acts such as genocide is not enough. Genocide does not suddenly erupt but is the result of a variety of factors that promote it such as the propagation of hate literature and indoctrination in schools. The acts may not be as clear cut as genocide itself but they are often iden6

I.C.J. Reports, 1970, 3 at 32.

198

Universalising International Law

tifiable and can be prevented. A general norm of international law can be evolved outlawing such conduct so that gross and identifiable perpetrations of it can be located and prevented. In fact it may not be too fanciful to think in terms of a court or tribunal of eminent persons before whom such complaints can be brought, whose findings will carry great persuasive authority in the international community. The same applies to major environmental hazards. It is not merely when the hazard actually occurs which endangers a million lives that the principle should come into play, but when preparations are afoot for the action which has the potential of causing this disaster. Peremptory or jus cogens norms need to be applicable on a more extensive scale to such matters as health hazards and biological experimentation that carries possible global hazards such as the spread of epidemics. For example, xenotransplantation, (i.e. the transplantation of animal organs into human beings) is thought to carry risks of a pandemic of AIDS type proportions which could endanger human health globally, and there could conceivably be an extension to such experimentation of the jus cogens principle.7 This may be especially important because there is not in place as yet an international mechanism for monitoring or controlling such experimentation. Xenotransplantation is just one small area of scientific activity used here only for purposes of illustrating a much larger category of possible irreversible dangers to the global public, which can result if international law is slow in bringing such areas within the domain of peremptory norms. Such considerations bring into play also the precautionary principle which modern environmental law is now raising to the status of a norm of customary international law. The precautionary principle in cases of such grave danger to the human condition can well be elevated to the level of jus cogens. It will be remembered that Principle 15 of the Rio Declaration on Environment and Development, one of the outcomes of the Earth Summit held in Rio De Janeiro in June 1992, stated that: “In order to protect the environment, the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not 7

The best medical opinion at present cannot rule out such a possibility. See the warning issued by the Campaign for Responsible Xenotransplantation published by the Federal Registry, December 30, 1999, a coalition of physicians, scientists and 77 public interest groups r epresenting millions of people. Apart from AIDS, analogies may be drawn with animal to human cross infections which have had a global impact such as the influenza pandemic of 1918 which killed over twenty million people and was thought to have resulted from a virus transmitted from pigs (See David C. Cooper & Robert P. Lanza, Xeno: The Promise of Transplanting Animal Organs into Humans, 2000).

Widening the Conceptual Framework

199

be used as a reason for postponing cost-effective measures to prevent environmental degradation.” International law needs to be far-sighted enough to consider bringing such principles within the ambit of peremptory norms where there is a credible threat of a danger that can affect the global population or a considerable segment of it. Tardiness in according recognition to such a principle, may be likened to closing the stable door after the horse has bolted. The urgency and universality of this need were emphasised also in the Cartagena Protocol on Bio-safety to the Convention on Biological Diversity signed in New Zealand on 25 May 2000. The Protocol dealt specifically with the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity. A principal reason supporting the extension of the jus cogens principles to situations such as this is the irreversibility of the damage that may ensue. Once such an item of damage is inflicted on the environment, humanity would have to live with it for the rest of time and effects can well escalate over the generations. This is as powerful an argument as can be found for elevating any particular form of activity to the level of attracting jus cogens principles. Whether in the field of nuclear experimentation, mining technology, cross species breeding, bio-medical technology, chemical and biological weapons experimentation or any of its multifarious fields of new development, modern technology has the ability to impair and undermine some of the most basic legal protections offered by legal systems both domestic and international.8 These are often of absolutely fundamental importance and legal protections are sought to be set up too late in the day, when the technology is already well on its way. Widening the category of peremptory norms and an increased vigilance in guarding against possible sources of denigration will be required of international law in the future. (ii) Widening the concept of common amenities Cooperation in the use of earth resources will be an imperative of the future, and international law will need to reflect this need. The necessary recognition of this concept of international law lags far behind the needs of the age. In this area, in which perhaps international law needs to strike out on a path of its own, it is excessively dependent on the concepts and practices of municipal law. Yet municipal law itself has lagged far behind contemporary needs. Consequently international law is several steps behind the level of concern and competence required of it on the world scene today. 8

See generally C.G. Weeramantry, Justice Without Frontiers: Protecting Human Rights in the Age of Technology, op.cit.

200

Universalising International Law

To quote a well-known text, Brownlie, writing on common amenities and cooperation in the use of resources, observes “International law has tended so far to ape the individualistic manners of municipal law. Apart from the concepts of res communis as applied to the high seas and outer space, and ‘the common heritage of mankind’, international law depends to a large extent on voluntarist devices, in the form of concessions by private law methods, treaties and various types of international agencies and organisations, in order to provide access to resources outside national territory.”9 Brownlie’s observations deftly pinpoint a principal source of this inadequacy – namely the individualistic orientation of domestic legal systems which have still not attuned themselves to thinking in terms of the larger communal interest rather than the narrow, rights oriented individualistic framework. When earth resources are fast running out and even such methods for the exploitation of such resources as are available can cause much public harm, a cooperative and communitarian approach is required for husbanding, both for ourselves and for future generations, such slender stocks as now exist. Moreover, the technology to reach these stocks is largely in the hands of the affluent world with scarcely a prospect of such resources becoming available to the poor world before those resources run out. The result will be their exploitation by the industrialised world before the non-industrialised world can lay its hands upon them. What is undeniably a common resource of all humanity would then be denied to the bulk of humanity, who are all equal co-sharers of these planetary benefits. Common resources regimes need to be set up and common resources principles and practices worked out. International law has before it the necessary principles for handling this problem if only it were prepared to draw upon global wisdom and experience as displayed in various cultures and civilisations over the last two or three millennia. Rights of future generations, the precautionary principle, obligations erga omnes, communal rules in regard to the preservation of common amenities, principles of trusteeship, principles of conservation and the like are richly available in the human heritage. International law needs to widen its conceptual framework to draw from them the guidance and wisdom which can be derived from them. Areas where these principles become specially applicable are international rivers, the high seas, outer space, the polar regions and even within national boundaries there will need to be a custody under international trusteeship of particular types of scarce resources and of fauna and flora. Some incipient effort in this direction may offer a prototype for emulation in other areas and reference may be made in this connection to the Helsinki Rules on the Uses of Waters of International Rivers, adopted by the International Law 9

Ian Brownlie, Principles of Public International Law, Clarendon Press, 5th ed. 1998, p. 255.

Widening the Conceptual Framework

201

Association in 1966. Its various articles dealt with such matters as equitable and reasonable utilisation and participation (Art.5) the obligation not to cause significant harm (Art.6) the general obligation to co-operate (Art.8) and the regular exchange of data or information. (Art.9). In outer space as well the framework is being laid for such a cooperative regime. The areas of operation of such efforts need to be vastly extended, and the conceptual and procedural work vastly intensified. (iii) Scope of Legitimacy of State Conduct The international law of the future needs to re-evaluate its concepts in regard to what state conduct is permitted and what is not. There is a spurious doctrine coming down from the past, completely outmoded in the inter-dependent global world of today, that a state is free to indulge in any conduct save that which is expressly prohibited by some rule of international law or by its treaty arrangements with other states. Support is sought for this view from the Lotus case where the Court, in the absence of a principle or specific rule to which Turkey had expressly consented, held that the authority of the Turkish State should not be limited. Even if the Permanent Court intended to propound such a general principle – and these are weighty arguments that can be urged against such a construction – such a negative view is entirely inconsistent with the needs of the future. In an age of inter-state cooperation rather than mere state co-existence, what international law is in search of is not a negative doctrine of abstention from prohibited conduct but a positive principle encouraging states towards active assistance in the cause of global peace and harmony. This can be likened to the contrast between the principle of the common law that a person can with impunity pass by a scene where another is in dire trouble, e.g. a child drowning in a puddle of water, without giving assistance which could have saved that individual without any damage to the passer by. In most civil law systems an active duty of assistance would be imposed in such situations.10 Indeed in Islamic law there is the principle of bidding unto good, which requires a person to go to the assistance of a neighbour in distress.11 International law in the future needs to shake off this attitude of apathy resulting from individualistic principles which find a place in some legal systems, at the expense of the general interest. The world order of the future will abound in situations of failed states or urgent environmental hazards or hyper destructive 10

11

See Alexander W. Rudzinski, “The Duty to Rescue: A Comparative Analysis” in The Good Samaritan and the Law, 1966, pp. 91 et seq. See also C.G. Weeramantry, The Law in Crisis: Bridges of Understanding, Capemoss, London, 1975, pp. 120-122. See C.G. Weeramantry, Islamic Jurisprudence: An International Perspective, 1988, pp. 83-85.

202

Universalising International Law

damage scenarios in which it will be the duty of all states that can help, to cooperate in rendering assistance for the communal welfare of the world community. In disaster situations the goodwill of the world community often becomes evident, but the resulting acts of assistance are treated as examples of generosity rather than fulfilment of legal duty. International law thinking needs to be so restructured as to introduce an element of duty into such conduct rather than to leave it to the spirit of altruism of the states concerned. The view that all state conduct is permissible which is not expressly prohibited tends also to blunt the application of a vast range of principles of international law which in effect prescribe norms of conduct. To take a telling example, reliance was placed on such a line of argument in the case of Threat or Use of Nuclear Weapons, in which an opinion was sought by the General Assembly from the International Court on the legality of such threat or use. The lack of express prohibition of the use of nuclear weapons was relied on as an argument against illegality. A vast range of principles of humanitarian law, human rights law and environmental law tends to be glossed over when such an approach is adopted. These principles were more than sufficient to render any use of nuclear weapons illegal despite the absence of any rule or treaty obligation specifically banning the use of nuclear weapons. There are so many developing areas of state activity ranging from information technology, space exploration, environmental pollution, chemical and bacteriological weapons, to nuclear technology which are so new and sometimes so unimaginable that it is idle to look for specific prohibitions. What we are seeking is the relevant broader applicable principle which can take within its orbit the particular activity in question. Thus alone can such activities be effectively handled, leading thereby to the progressive development of international law (iv) Extending the concept of legitimate interests International law gives recognition to the principle of legitimate interests in determining what claims are entitled to protection and what are not. Its determinations in doing so can lead to the progressive development of international law, for new interests may receive recognition in this way. There are various categories of interests, which will need to receive recognition in the future, such as economic interests, environmental interests, cultural interests and historical and archaeological interests. The recognition of such interests is based on such considerations as fairness, reasonableness, equity, equality, good faith, acquiescence, recognition and the like but what is important is that through the operation of these principles, legitimate interests not traditionally accorded recognition may receive increasing recognition and lead to the progressive development of international law as an instrument sensitive to the various needs of different regions, peoples and cultures.

Widening the Conceptual Framework

203

In the Anglo-Norwegian Fisheries Case12 the International Court in considering the rules applicable to the Norwegian coastline took into consideration “certain economic interests peculiar to a region, the reality and importance of which are evidenced by long usage.” It is interesting also that the Court referred to the fact that “in these barren regions the inhabitants of the coastal zone derive their livelihood essentially from fishing” (p.128). In the Jan Mayen case likewise, considerations of equity played an important role in the Court’s decision and in evolving a nuanced application of the law of the sea to a particular situation.13 There is an important pointer here to considerations of vital importance to large sections of the global community some of whose essential interests have traditionally been left out of the purview of international law. It is only reasonable to expect that just as such considerations can be taken into account and woven into the principles of the law of the sea, there could be other major areas of international law where such principles, which are of such cardinal importance to the very existence of vast numbers of people, can be taken into account in appropriate cases – always fitting them within accepted principles of international law and, as stated before, leading to the progressive development of the latter. Considerations of the ways in which people derive their livelihood, the extreme difficulties and privations they endure if deprived of their traditional means and the like are relevant not merely to the law of the sea but to the broader canvas of international law and need to be taken account of in appropriate circumstances. If international law is to widen its conceptual framework, this is an area which cannot be neglected. Given the vital importance of economic interests in so many departments of international activity, it is important to the evolution of equitable regimes in regard not only to the law of the sea, but also to land usage, environmental protection, employment r egimes, global commons, common amenities, intellectual property, the uses of space, international communications technology and the like that the principle of legitimate interests be taken into account in moulding the law of the future – be those interests economic, cultural, historical, regional, or any other. (v) The Outlawing of War The UN Charter has achieved a great advance over anything known before in international law for, with certain well defined exceptions, it outlaws force or the use of force. War, but for those exceptions, is therefore a thing of the past so far as international law is concerned. The prohibition contained in Art. 24(4) of the Charter against the threat or use of force applies not merely to their use against the territorial integrity or poli12 13

I.C.J. Reports, 1951, p.116. See Ch. 9 below.

204

Universalising International Law

tical independence of any State, but also to their use in any manner inconsistent with the Purposes of the United Nations. Those Purposes include maintenance of international peace and security, development of friendly relations among nations, strengthening universal peace, achieving international cooperation and harmonising the actions of nations in the attainment of these common ends. The tightly framed provisions in Chapter VII in relation to the circumstances in which action may be taken with respect to threats to the peace, breaches of the peace and aggression serve, if at all, to accentuate the extremely limited nature of these exceptions. All of these need to be read in the light of the Purposes and Principles of the United Nations and also in the light of the Preamble to the Charter, the very first clause of which expresses the determination of the Peoples of the United Nations “to save succeeding generations from the scourge of war which twice in our lifetime has brought untold sorrow to mankind.” It is vitally important that all readings of the exceptions set out in Chapter VII should be in the context of the conceptual framework of the Charter. This conceptual framework is set out not merely in preambular recitals but in a substantive part of the Charter itself, for they could not be more clearly formulated than they are in Article I. Any action or interpretation in respect of any article of the Charter which does not conform to Article I would be invalid in terms of the Charter. In other words the Purposes of the Charter need to loom large in any discussions of the application of Chapter VII, thereby whittling down the occasions for the use of force to a narrow rather than a broad interpretation. Moreover all of these provisions are set in the context of the overriding importance of the peaceful settlement of disputes for which a variety of methodologies and instrumentalities are provided in the Charter. There is all too often a lingering on into the post-Charter era of habits of thought associated with the international law of the pre-Charter era when war was a normal and accepted method of settling disputes. The concept of peace needs to be strengthened to its widest and strongest proportions, with constant reference to the seminal fact that war is outlawed in the post-Charter world, except for the narrowest of exceptions allowed by the Charter in the most restrictive language. International law would lack its fundamental orientation if it does not constantly remind the global public that after three millennia of conflict caused by the legality of war, the world community has been able to achieve its illegality through the immense suffering and tribulation of two World Wars. What has been achieved at such great sacrifice cannot be jeopardised by loose interpretations which lose sight of the fundamental framework of the Charter, or an inadequate consciousness that the Charter constitutes one of the most important watersheds in the history of civilisation.

Widening the Conceptual Framework

205

(vi) Equity A much more free ranging inquiry into the sources of equitable principles and the methodology for their application is required. Drawing on equitable concepts and procedures is a powerful method of rendering international law more responsive to the demands of the age and of sensitising the international legal system to the various moral overtones and nuances attendant on its application. These have been referred to at some length in Chapter 9 below and are hence not expanded on here. (vii) New attitudes to sovereignty The entire concept of sovereignty needs careful reappraisal in the context of the future needs of international law. The subject is vast and complex, but some attempt to address this question has been made in Chapter 4 above, which it is unnecessary to duplicate here. (viii) Increasing Control over the Armaments Industry The international legal system has a blind spot in regard to the armaments industry. The trade in weapons of death is permitted to flourish with few and minor restraints upon it although it contravenes every known principle of ethics, human rights and humanitarian conduct. Arms fairs are major events at which the latest and most sophisticated weaponry is proudly displayed.They are patronised by the privileged and the powerful and every subterfuge and loophole which legal ingenuity can devise is placed at the service of arms dealers who wish to evade such regulations as there are in relation to the sale of arms. Across the world, death and destruction ensue as a result of this trade. At a September 1998 United Nations meeting, US Secretary of State, Madeline Albright said that arms exporting states bear some responsibility for a trade which “fuels conflict, fortifies extremism and destabilises entire regimes.” She was saying this in regard to a trade which runs to over a hundred billion dollars annually of which in 1994-96 the US commanded 55 percent. This trade involves not only multi-million dollar missile systems but also massive stocks of “small arms”, and also millions of land mines which have maimed unnumbered thousands of innocent civilians. One of the arguments of the arms suppliers is that if they do not supply the arms others will. They argue that they make their supplies within the guidelines laid down by their respective governments. The governments argue that the arms are required by the purchasing countries for their security. There is a passing of responsibility at every turn and international law seems quite unable to handle this problem which attacks the very vitals of world peace.

206

Universalising International Law

One of the realities behind this flouting of basic morality is that the arms trade, with the billions of dollars it generates for the industrialised world, is a potent creator of jobs. Millions of peaceful, law abiding people in these countries make their living on the manufacture of these weapons of death. The governments concerned canvass actively for this trade. They justify themselves on the basis that they look to various criteria such as democratic government, respect for human rights, non-aggression and full participation in the UN Register of Conventional Arms, as preconditions to such supply. Yet whatever requirements are imposed seem to be satisfied very easily for, in 1997, of the 24 countries which experienced armed conflict, the US sold arms or provided military training to the majority of them. The record would not be very different for some of the other major arms supplying nations.14 An Arms Sales Code of Conduct has been championed by Nobel Laureate, Oscar Arias and introduced in the US Congress. Though it had some success in the House of Representatives it was killed in conference committee. International law will not be serving the world community truly unless it widens its conceptual repertoire as well as its procedural mechanisms to enable this problem to be brought under control. (ix) Widening the Scope of Responsibility of Transnationals An enormous lacuna in international law is its inadequacy to deal with the new phenomenon of corporate might – a force exceeding that of many of the world’s nation states, but yet almost totally free of the controls and restraints which international law has imposed even upon nation states. The situation becomes even more crucial because these vast corporate entities often do not hesitate to use their powers to their own advantage and to the detriment of many a weak nation state that depends on their services and must hence capitulate to them in regard to the terms and conditions they offer. The damaging effect this can have on the economic and political systems of the smaller nation states is very great and can extend into such fields as the environment, the currency system, the framework of labour legislation and to many aspects of sovereign autonomy. This autonomy often exists only in name, very much in the fashion that freedom of contract exists only in name when bargaining inequality is so great that this freedom is often completely eroded in fact. It is not as though the international community has not recognised this problem. As early as the 1970s, the problem was recognised and many efforts were mounted to address it, but they have all substantially failed owing to the immense power that corporate might can bring not only to the bargaining table but to the international conference table as well. Indeed many governments even in the 14

Arma Rich: US Exports Arms to the World, Resist Newsletter, May 1999. thirdworldtraveler.com/Pentagonmilitary/USArmsExports.World html

Widening the Conceptual Framework

207

developed world are so influenced by corporate power that they often provide a mouthpiece for corporate power at international conferences. The effects of multinationals upon national sovereignty were the subject of several studies in the early 1970s15 and indeed in the 1960s research projects such as the Harvard Multinational Enterprise Project gave their detailed attention to this matter. Yet the dominion of the multinationals over sovereign states and over the concept of sovereignty itself has grown rather than diminished over the ensuing decades. New conceptual approaches will be required to make an impact on this problem which contains the seeds of future tensions and conflicts. * * * The items dealt with in the preceding discussion are by no means exhaustive of the list of areas needing attention. They must be taken as no more than a set of illustrative examples. We proceed now to a discussion of some more general perspectives. 7.

Supporting the Privileged

As a result of these various conceptual and procedural shortcomings international law may well be lending itself to the criticism that it is a system which supports the interests of the privileged sections of the world community. In this regard a meaningful comparison may be drawn with some of the criticisms levelled at domestic legal systems. One of the principal criticisms levelled at many systems of domestic law is that these systems are weighted both conceptually and procedurally in favour of the privileged sections of the community. Vested interests are protected and any interference with the status quo is discouraged. Concepts of freedom of contract and ownership of property heavily support those who are already privileged. Justice is nominally open to all but it is open to all only in the sense that the Ritz Hotel is open to all. There is an admission price to justice which not all citizens can afford to pay. The law is a majestic system of equality – in name - but can become a system of gross inequality in fact if there is unequal access to it. Moreover those who can afford the better lawyers tend to secure greater advantages from the system once it has been accessed. 15

e.g. Raymond Vernon, Sovereignty at Bay: The Multinational Spread of US Enterprises, Penguin Books, 1971 For an even earlier foreshadowing of this problem, see Hugh Stevenson, The Coming Clash - The Impact of Multi-National Corporations on National States, Saturday Review Press, 1952.

208

Universalising International Law

These comments may over-paint the picture but they contain a modicum of truth at least in so far as concerns a number of legal systems. The inequalities that flourished behind the façade of equality - inequalities which the established legal profession refused to recognise - were brought into the open through the work of the American realist and sociological schools of jurisprudence in the early years of the twentieth century and much improvement resulted from the realisation of this fact. Roscoe Pound at the beginning of the 20th century shook the American legal establishment out of its apathy by his landmark address to the American Bar Association on Causes of Popular Dissatisfaction with the Administration of Justice. He revealed a catalogue of shortcomings which rendered the legal system an instrument of injustice in many ways which the lawyers of the day, caught up in the routines of their professional work, had scarcely realised. This stirred the legal profession out of its complacency. International law at the commencement of the 21st century is probably at the stage in which domestic legal systems were at the commencement of the 20th century. The system is one of majestic equality in theory but in its operation it can be an instrument of inequality. The realists and the sociologists of international law have yet to make their influence felt. It will take time for their message to penetrate the ranks of privilege but there can be little doubt that this will occur. It is important that international law should not be viewed by the majority of the world’s population as open to the same criticism. This criticism is possible in respect of both concepts and procedures. International law must be seen as doing its best to reduce the widening gulf between the industrialised world and the poor world rather than allow it to ride out of control. It must devise protections and compensatory principles in the same way that domestic law has worked out concepts and procedures to safeguard the interests of the weaker party. Compensatory mechanisms and principles become especially important in an age where globalisation is becoming a feature of the world economy, with powerful multinational corporations wielding even more power and enjoying more wealth than many a nation state. International law is currently weighted heavily in favour of such entities, with a sheer inadequacy of compensatory principles and mechanisms to protect the weaker nation states with whom they do business. Guidelines for the conduct of national economies laid down by such agencies as the World Bank and the International Monetary Fund also push these nations in the direction which global capital dictates and benefits from, and all too often international law is used as an instrument for this purpose. Likewise, in regard to the environment and climate change, nations causing the greatest pollution and obtaining the greatest benefits from it are slow to recognise that they are using the international legal system to impose burdens of a continuing nature on those who derive scarcely any benefit from these activities.

Widening the Conceptual Framework

209

On all fronts the international lawyers of the future need to be vigilant to ensure that international law is not used as an instrument of inequality. A Holistic View of Law International law needs to keep in focus even more sharply than domestic law its interrelationship with every discipline dealing with the human condition. It needs to bear in mind the idealistic and visionary foundations on which it has been built and which, as a discipline still comparatively young and open-ended (as opposed to the older and more set forms of domestic legal systems) provides the natural force for its ongoing development. Human psychology regarding instincts of aggression and acquisitiveness and group loyalties, global history in all its myriad facets, principles of micro and macro economics, the cultural inheritance of the entire human family, the potential for good and harm of every department of modern technology, climatology and bio diversity, physical health and social welfare, the burgeoning field of information technolo gy, moral philosophy in all its dimensions, the dialogue of religions and civilisations, the cross fertilisation of cultures, the insights of linguistics, industrial relations, humanism in all its forms – each of these fields of scholarship has an intimate interface area with international law. International law needs more sensitivity to these interactions and more receptivity to the insights they offer. There have indeed been theoretical studies in all of these areas but their translation into the practical workings of international law has been long delayed and tends to be inadequate when it does occur. Multi-disciplinary congresses of international law and the other disciplines are to be welcomed and it is to be hoped will occur more frequently in the future. Far from being an esoteric discipline reserved for the specialists, international law is the concern of everybody, for everybody has something to contribute. International law tends to be isolated even from other lawyers who practise in domestic forums. The opening up of international law is a dramatic need of the future and without it, international law will flounder in the shallows without sailing majestically on the deep waters where it needs to lead the way. Intertwining of Law and Philosophy No department of law, however mundane it may seem, can ever divorce itself from the philosophical infrastructure on which it depends. The dependence of international law upon philosophy is heavier than that of almost any other department of legal studies. There are multiple reasons for this rather sweeping observation. In the first place international law was born of philosophical thinking. In its

210

Universalising International Law

earliest manifestations it was entwined with religion of which it was an integral part but later, especially in its modern revival after the emergence of the nation state, it emerged from the womb of philosophical thought intricately bound up with natural law thinking. It has over the centuries looked for inspiration to the dominant philosophical speculations of the time in relation to human well-being and the human future. International law cannot afford at any stage to cut itself adrift from philosophy, for this would lead it to sterility. In the second place international law is yet at a formative stage of its development. It is still a comparatively young discipline as compared with domestic legal systems, and in every aspect of its development it is now laying down the outlines along which it will develop in the future. A false step once taken can mould the law in a retrograde rather than progressive direction for the foreseeable future and the insights of philosophy can always be of value in the ongoing development especially of the many new areas which international law is annexing into its domain. Further international law is continually evolving general principles of universal applicability and is thus entering domestic legal systems as it has never done before. It has thus become immensely more influential across the whole spectrum of legal systems than it was in the past and is hence under the special duty of ensuring that those principles are the soundest that thought and experience can devise. Areas illustrative of the great potential for enriching international law through philosophy are human rights, inter-generational rights and environmental protection, where familiarity with the principal schools of philosophy is essential equipment for the international lawyer and judge. Another consideration is that the international judiciary has a rare opportunity to make a sterling contribution to international law as new concepts take shape and fresh nuances appear in the interpretation and application of existing concepts. The judiciary has a very significant role to play in a manner not dissimilar to that in which the common law developed in the early stages when it was as yet a rapidly developing discipline, and depended on judicial activity to give it form and substance. International law affords much scope to the judge for yet another reason – the importance of customary international law as a source of law. Here is an enormous wealth of principles, concepts, attitudes and philosophies as yet largely untapped, seeing that a strongly positivist tradition has tended to keep the influence of this source at a minimum and seeing also that such customary international law as the judges thus far have drawn upon tends to be derived from a monocultural, Eurocentric source. There is a wealth of world cultures yet to be incorporated in the corpus of customary international law and this yet remains largely virgin territory as far as international law is concerned. For all these reasons, philosophical perspectives have a specially important role to play in international law and it is to be hoped that this important source of inspiration will not be neglected by the international judiciary.

Widening the Conceptual Framework

211

The same applies also to the delegates and diplomats who meet at international conferences at which conventions and treaties take shape. When seeking to devise procedures and to understand and enrich concepts they need to tap into this source of inspiration. 10. Ethical Code of International Lawyers International lawyers constitute a very powerful body of specialists, consulted as they are by every government in the world and by every entity that is engaged in international operations of any significance. They are the custodians of a discipline which is itself the custodian of the highest values which humanity has achieved on its long journey towards the upliftment of the human condition. International lawyers have the advantage also of collegiality. They constitute a privileged group within the already privileged groups of lawyers, they meet regularly, they know each other across all geographical regions and they all owe allegiance to a common discipline with a common set of goals. This collegiality gives them a degree of independence and of loyalty to their discipline which can ensure that they tender advice when requested not to please the entity seeking their advice however powerful it may be, but in accordance with the fundamentals of their discipline. Corporate lawyers not infrequently face the allegation that they sometimes tender their advice to their corporate employers or clients in a manner that pleases the latter rather than in accordance with the high moral standards of their discipline. International lawyers must not lay themselves open to this charge, and more particularly do they need to be loyal to their discipline because of the enormous stakes involved. They may be consulted in matters imperilling the rights of future generations, projects destroying the cultural heritage of millennia or questions relating to the great issues of war and peace. It is irrefutable that there is a special obligation lying here, and a particularly onerous one at that. Signs are discernible at the highest levels of state policy of an increased readiness to abide by the dictates of international law. The highest military commanders in many countries now routinely seek the advice of international lawyers before launching out on campaigns which attract the principles of international humanitarian law. This was scarcely conceivable a generation ago. Even if this were done in the past and even if the advice given were against a course of conduct favoured by the general officer concerned, the chances were that the military authority would have brushed aside the advice of the international lawyer if that proved inconvenient. Today these opinions are not so easily brushed aside, both because the consciousness of international law and of the consequences of disregarding it are much more deeply entrenched.

212

Universalising International Law

The next stage of this development is that foreign ministers, prime ministers and presidents will not only seek such advice but treat it with greater respect. The creation of international criminal tribunals with jurisdiction to try cases of gross departure from basic norms of humanitarian law is also a factor which could make a difference. However this may be, an increasing load of responsibility now devolves on the shoulders of international lawyers who give advice at this level. The normal principle of loyalty to the integrity of their discipline, which is well accepted among domestic lawyers, applies a fortiori to the ranks of international lawyers as well. A code of professional conduct and responsibility, analogous to that which obtains in domestic law, could become the norm in international law as well. All of this must not be interpreted as meaning that such a code of ethics and responsibility does not already exist. Many international lawyers are loyal to such a body of ethical principles. It needs however to be strengthened by a conscious effort directed to this end and by the creation of a worldwide climate of opinion which will expect no less than the highest standards. International lawyers in foreign offices, presidential offices and prime ministers’ offices will then be able more easily to invoke the highest standards of their discipline when tendering unpopular advice. All too often at the highest levels of government and foreign and military policy there is an expectation that legal opinions will conform to the wishes of those in authority, and the latter do not always perceive the matter in the light of ethical loyalties owed to one of the most important of all the professional disciplines. 11. Mingling the Best of Both Systems International law and domestic law need to cross fertilise each other much more than they have done in the past. Domestic lawyers have rich rewards to reap from a greater familiarity with the literature of international law, and likewise international lawyers, who tend often to confine themselves to their discipline, can miss out on many rich conceptual and procedural perspectives which they could derive from a greater familiarity with domestic legal systems – not only of their own indigenous jurisdictions, but also from what might be brought under the rubric of comparative law. Comparative law is yielding many insights into the best than can be distilled from across the range of domestic legal systems and international law can profit from an awareness of these. International law is particularly weak in regard to procedures, and this is an area where there is a continuous process of development in domestic legal systems. Especially in such fields as environmental law, procedures for monitoring, surveillance and prevention have been developed significantly in a multitude of jurisdictions, and these insights need to be incorporated into international law.

Widening the Conceptual Framework

213

Also in the interlocking fields of international and domestic procedure, where the conduct of individuals and corporations is involved, there needs to be more liaison between domestic and international system. It thus becomes clear that if international law is to equip itself to meet the many new challenges it will face in the 21st century and if it is to become the truly universalist discipline which it needs to be, a considerable body of thought needs to be devoted to a number of conceptual assumptions which it has tended to take for granted. They no doubt suited the role in which international law was cast till the mid twentieth century, but their weaknesses became increasingly evident as the century progressed. The need for their reconsideration will clearly be manifest as the new century gets under way.

This page intentionally left blank

PART B

SOURCES OF INTERNATIONAL LAW

This page intentionally left blank

Introduction to Part B The universalisation of international law can only take place through a broader construction and application of the sources of international law. Of these sources (as set out in Art.38(1) of the Statute of the International Court of Justice), those which allow most scope for juristic and judicial initiative in tapping the vast resources available, are customary international law and the "general principles of law recognised by civilised nations." Treaty law needs in its formation to draw upon the wealth of concepts and experience available globally, but the treaty once entered into assumes a set form. Yet in its interpretation there is scope for adopting an approach which reflects a universalistic rather than a rigid and linear approach. The three sources mentioned above are, therefore, the most appropriate for examination in connection with the theme of universalisation of international law and are, therefore, the subject of the three chapters included in this Part. The other sources, namely judicial decisions and the writings of publicists, are in a sense secondary sources, for they must depend almost exclusively upon the three sources already mentioned. The Statute itself describes them as "subsidiary means for the determination of rules of law." Yet even these sources can make a richer contribution if all the materials available universally are used. The first chapter in this Part examines the vast, but underused, potential of customary international law. The second which is a reproduction of the author’s Separate Opinion in a case before the International Court, analyses in global context one aspect of the general principles of law recognised by all legal systems – namely the principle of equity. The third chapter is an illustration, from the sphere of treaty law, of an interpretation which takes into account a universalistic humanitarian approach as opposed to possible narrower constructions. Together these approaches may offer some perspectives as to the many ways in which the broader approach advocated in this volume can be implemented.

This page intentionally left blank

Chapter 8

Custom: The Growing Role of Customary International Law*

A publication on the theme of the global multicultural challenge at the onset of the 21st century needs a panoramic view of the primordial problems facing the community of nation states in this new era in which active international cooperation will be a necessity. At the same time it needs an examination of the technical apparatus of international law wherewith these global aims can be achieved. I have in other writings dealt with some of the great overarching concerns of the new world order which will need the concerned cooperation of the closely interdependent community of nation states.1 This community must face these problems as a closely knit group rather than as a series of individual states acting in pursuit of individual self interest. In this article I propose to deal with a major tool which we have at our disposal for attaining this end, which tends in my view to be increasingly neglected. I refer to customary international law which, for a variety of reasons, is currently being relegated to a somewhat inferior position among the sources of international law.2 I have for some time been concerned with what I perceive to be a diminishing reliance on customary international law. This tendency is observable at international level, where writings and pronouncements on customary international law tend sometimes to deprive it of its full scope and authority. It is observable also at * 1 2

Also published in Imagining Tomorrow; Rethinking the Global Challenge, Essays published on the occasion of the UN Millennium Assembly, 2000, p. 351. See Justice Without Frontiers, Vols. 1 & 2, Kluwer International, 1998, 1999; Equality and Freedom: Some Third World Perspectives, Vishva Lekha, 1999 reprint. See also the author’s contribution to the discussion on Customary International Law at the Third Joint Conference of the American Society of International Law and the Netherlands Society of International Law held at The Hague, July 13-15, 1995 on the topic of Contemporary International Law Issues.

219

220

Universalising International Law

national level, where the view tends to be increasingly advanced in some jurisdictions that rules of customary international law are not binding on nation states unless they have specifically indicated their consent to be bound by the rule in question. The growth of such a tendency can be particularly damaging to the ability of the global community of nation states to address the truly global problems with which they will be increasingly confronted in the years to come – problems which, moreover, can only be addressed by a community of nations and not by an agglomeration of individual states. This diminished view of customary international law can give a theoretical impetus to isolationist tendencies that do not augur well for the global future. I believe that this source of international law must continue to be in the future what it has always been in the past – a major fountain head of international law. Its maintenance in all its vitality is therefore essential to the continued discharge of its services to international law and therefore essential to the vitality of international law itself. I hence thought it appropriate on the occasion of so significant a meeting of those who shape the future course of world affairs, to make a few observations on its importance and the need for it to be preserved in all its integrity as one of the prime means of ensuring the international legal system’s conceptual adequacy to meet the challenges of the future. This is particularly important as we face a new century replete with problems so unprecedented in their nature that we must go back for their solution to that deep reservoir of general principles with which the corpus of customary international law is so richly endowed. The Apparently Diminishing Role of Customary International Law If customary international law is currently going through a period of crisis in its long and distinguished history, this must be a matter eminently deserving of attention before it congeals to a diminished fraction of its former stature. An increasing volume of codification of international law in many fields, an increase in the number of new States desiring to regulate their affairs in the conscious exercise of their own sovereignty and an increase in the areas of international activity that are regulated by multilateral treaties are some of the factors contributing to this result. A further factor adding to these inhibitions on the use of customary international law is the expansion of international law into areas which were formerly the jealously preserved province of the nation state – immigration, refugees, labour, prison conditions, criminal procedure, crime prevention, women’s rights, to mention a few. States do not wish to give up these areas to what they see as vague and inchoate norms, and tend to insist that their specific consent in the form of a treaty obligation is requisite to their subjection to legal regimes in these areas. At a philosophical level there are still strong influences from the positivistic approach to international law, which denigrate anything short of the black letter

Custom: The Growing Role of Customary International Law

221

formulation of a legal rule and at the same time postulate that the source of law is the will of the sovereign, in the absence of which neither the state nor its subjects can be bound. The voluntarist school reinforces this argument in the domain of international law by stressing the principle that the sovereign authority of a state shall not in any sphere of activity be restricted without the specific and considered consent of that State. The voluntarist school also tends to reinforce such attitudes by decrying the claim that a principle of customary international law can impose a rule of conduct which is binding on that state, since it may not in many instances have that state’s specific consent. All of these in combination produce a powerful phalanx of theory and practice which militates against the growth and proper utilization of customary international law. To all of this is added the compelling power and speed of modern technology which causes global changes of unprecedented magnitude and at an unprecedented rate, in sharp contrast to the supposedly slow and leisurely rate of progress of customary international law. Consequently there is a fear that customary international law is totally inadequate to handle scientific progress and leaves international law standing helplessly on the sidelines while the juggernaut of technology races ahead.3 This induces an increasing reliance on treaty law to the exclusion of customary international law in disregard of the fact that customary international law has shown itself capable of rapid readjustment to new situations and has always been the cornucopia of principles from which the deep and abiding concepts are drawn which govern the shape and content of international law. The grudging recognition sometimes accorded to customary international law and the proclivity of treaty law to suffocate it prompts one to ask whether we are not unwittingly treating it as a poor relation which, though officially a member of the family of sources, has fallen on hard times and is given a nominal place in the family house but with little active role to play. This trend needs to be arrested and customary international law restored to its pristine stature. The Problem Viewed in Historical Context Modern international law must take note of this problem for a variety of reasons, not the least of which is the total transformation of the international scene that has occurred in more than three quarters of a century since the authoritative formulation of the sources of international law in the Statute of the Permanent Court of International Justice. That was still the age of empires. The positivist idea that each individual state must individually consent to any principle or procedure by which it was to be 3

For an elaboration of this problem see the author’s The Slumbering Sentinels: Law and Human Rights in the Wake of Technology, Penguin, 1984.

222

Universalising International Law

bound, was predominant at that time. As we moved forward to the close of World War II, and the high noon of empires faded into its twilight, the notion of dominant individualism, though still strong, began to recede. Today, when the sun has set on the great empires, we find that in place of a few imperial states dominating the world order, and unwilling to yield the minutest fraction of their sovereign power to the interests of global needs, we now have a large community of states living together with an increased consciousness that they must all participate in husbanding the resources of a visibly shrinking planet which all must share. Other imperatives are emerging which counter the view that each individual state must consciously and deliberately give its consent to every emerging rule of customary international law. I think that the ongoing historical process must be taken into account in fashioning the new thinking with which we must approach the position of customary international law today. The proliferation of new states compels us to think of a community of nations rather than a series of high-profile individual states jostling each other in billiard ball fashion for the most advantageous position on the international billiard table. This proliferation of states coincides with the proliferation of global issues, thus pushing home the realization that we may all be compelled to stand together on some issues or be compelled to perish together. The growth of technology, already referred to, is another factor bringing home this realization. Yet another is the fact that international law has moved progressively from the notion of mere toleration of other states and co-existence with them to the notion of active co-operation. The movement from co-existence to active co-operation necessitates a more collective approach to the problems facing us. We are witnessing an exceptional growth of collectivist ideas in displacement of some of the strong individualism of the past. In that context, customary international law, as opposed to treaty making, cannot yield ground and cannot be relegated to a position of secondary importance. Treaties require the individual consent of every participant. Many principles necessary for the survival of the global community are emerging today, in respect of which it may not be possible to obtain the active, or positive, or shall we say, specific support and consent of every member of the global community. It is through customary international law that this can be achieved. It is reassuring in this regard to look at developments in Eastern Europe. The emerging new states in Eastern Europe show such an openness to international law, including customary international law, that many of them have accorded priority to the general principles of international law, as for example the constitutions of Uzbekistan (Preamble), Turkmenistan (Art.6) and Belarus (Art.8). The Ukrainian Constitution of 1991 “recognized the priority of internationally accepted legal norms”. The Russian Constitution of 1993 states that “Universally recognized principles and norms of international law as well as international agreements of the

Custom: The Growing Role of Customary International Law

223

Russian Federation shall constitute part of its legal system”. The constitution of Kirghizstan (Iart.12(3)) contains a similar provision. In regard to human rights, themselves a child of customary international law, a number of these constitutions give priority to human rights over their domestic law. Bulgaria (Preamble, 1991 Constitution) and the Czech Republic (Art.10,1992 Constitution) are among these. The position is similar under the 1992 Slovak Constitution (Art.11). In short, we are witnessing a phenomenon significantly different from that which we witnessed with the emergence of the new states that were released from colonialism a generation or two ago. Those states were then contending that they should not be bound by principles of international law to which they had not consented. But a hopeful sign today is that we now seem to have the phenomenon of a number of new states who, upon entering the global community, are ready to accept that international law is part of their domestic law and indeed are prepared to accord it a position of high priority. In doing so they expressly mention the general principles of international law, thus showing clearly that they do not confine their recognition to rules to which they have expressly agreed. This is a very significant positive factor in the current status of customary international law. Some Comparisons with Treaty Law I wish to say a word here about some reasons for the growing importance of treaty law and to examine customary international law in the light of the strengths and weaknesses of treaty law. A considerable strength of treaty law in a world order still based on the sovereign state system is that it postulates the express consent of states and therefore conserves their sovereignty and autonomy. Another source of strength is the specificity of the obligations assumed, thus avoiding to some extent the difficulties attendant on determining whether a given situation falls within the reach of a general principle that is invoked. But a world whose survival will increasingly depend in the future on active co-operation rather than mere co-existence has need of a system whereby rules that bind the international community do not need to have the specific individual consent of each and every one of the nearly two hundred states comprising the community of nations. If that were the sine qua non for a binding rule of international law, we could never obtain the rules we require for handling the problems of our global village. Treaty law will find itself hopelessly inadequate to handle such matters as the urgent environmental problems we already have on our hands. We need to have resort to a set of principles that do not owe their existence to an act of specific state consent but reach beyond state consent to the primordial verities and principles on which the international order is founded. Customary international law provides such a source which will need to be increasingly relied upon in a

224

Universalising International Law

future where unexpected and urgent problems of an unprecedented nature will keep arising, for which treaty law cannot provide the solutions Even if a unanimous consent to a treaty can be obtained, a total global consensus will take time to achieve, and consent at the level of sovereign states is a slow and ponderous process. Moreover, even in the context of a treaty there will be uncertainties in interpretation and application, as well as gaps, and there must be a supplementary source from which these lacunae and interstices in the law can be filled. The fact that treaty-making is a slow and involved process, that treaties are not all-embracing and do not specifically cover all relevant eventualities, that treaties involve formality in the mode by which they come into existence – all of these combine to highlight the importance of customary international law which postulates a set of principles already in existence, wherefrom one draw the specific rules which may be necessary for handling a given problem or situation. In the words of Oscar Schachter4 “However, treaties have not fully met the needs of new law. For one thing, the processes of treaty negotiation are often slow and cumbersome. It is easy to see why. The increase in the number of States, the diversity of interests, the novelty of the problems faced, the shortage of competent officials, are factors which combine to delay and complicate the treaty-drafting negotiations and ratifications. The difficulty of obtaining ratifications and accessions, even for States that had supported and signed the treaties has been a discouraging feature. Even when multilateral treaties obtained the requisite number of parties, a substantial number of countries remained outside the treaty, though they had no significant substantive objections and voted for its adoption by the drafting conference.” If treaties require time to evolve, what happens in the time between the rising of the need and the achievement of the treaty? In the world of environmental law in particular, we shall have progressively less time in the future than we have had in the past to attend to them, because they are growing increasingly urgent. There must be a body of legal principle that fills that gap. And customary international law provides just that. Treaties involve formality, and customary international law does not suffer from this impediment. So the latter is still a valuable instrument to us. A sterling example to illustrate this aspect can be drawn from the field of the law relating to modern weapons. To arrive at an international treaty which pronounces that the use of nuclear weapons in any circumstances amounts to a viola4

Oscar Schachter, “New Custom: Power, Opinio Juris and Contrary Practice” in Theory of International Law at the Threshold of the 21st Century, Essays in Honour of Krzysztof Skubiszsweski, p. 531.

Custom: The Growing Role of Customary International Law

225

tion of the law is well-nigh impossible under current circumstances. Yet the corpus of customary international law is replete with basic principles which point to this conclusion.5 What could be more necessary for the survival of humanity than the establishment of such a proposition and what could be more urgent? Yet treaties as a source of the necessary principles are silent whilst customary international law speaks loud and clear. That voice must not be muted. I see therefore, a growing future for customary international law rather than a future of diminishing utility and stature. The Multiplicity of Global Concerns It is to be remembered that environmental concerns, which I have mentioned earlier, constitute only one source of the global concerns which will beset us in the future. Global concerns of every nature beset our path as was not the case when the conflicting individualist interests of a small community of states could be catered for by treaty law. The communications revolution, universal health problems, the proliferation of non-state global actors, the advancing power of science and technology, the growth of the great media organizations – all these will present our successors with a full crop of problems which treaty law by itself will prove hopelessly inadequate to solve. In the economic sphere the global marketplace is giving rise to a multiplicity of problems with grave implications of generating North-South tensions through the entrenchment of the free market concept in a manner that sometimes negatives principles of fairness of contract. This aspect is dealt with in greater detail later in this discussion. The Prevalence of Positivistic Attitudes I believe that positivistic attitudes, so prevalent within domestic legal systems in the 19th Century, spilt over very heavily into the arena of public international law and gave a great emphasis thereby to the relative importance of treaty making among the sources of international law. We moved away from that attitude to some extent in the swing towards natural law thinking that evolved especially in the aftermath of World War II. We are now dangerously close to a swing back towards positivistic attitudes under the influences of globalisation and the economic and technological power that is now wielded by the more powerful actors among the community of nations - and indeed by non-state actors as well. The downgrading of customary international law and the elevation of treaty law, with the latter’s insistence on individual state consent, gives freer play to these global forces. It also serves well the interests of the non-state actors. The strengthening of the force and applicability of the norms of customary international law 5

See generally the author’s Dissenting Opinion in Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8th July, 1996, I.C.J. Reports, 1996, pp. 429-555.

226

Universalising International Law

may well be among the more effective means of enabling the global community to address the global problems which will confront it in the future and in a manner more in consonance with the philosophical underpinnings of international law. Individual State Consent not a Prerequisite to a Binding Rule of International Law Rules that bind all states do not necessarily have to be based on the individual consent of each and every state on whom they are binding. Absolutely unanimous international consent will be almost impossible to achieve in many instances. Indeed one can expect resolute objection on the part of an individual state to a rule which it considers will not suit its interests. Even persistent and specific objection by a single state ought not to exempt that state from compliance with a norm that is universal. The universal norms the world will require to order its affairs cannot be held up indefinitely by the opposition of any individual state. As observed in a recent study,6 the claim that a ‘dissenter’ is sometimes not bound by a rule of customary international law is a minority view and is “illogical, false and threatening” to the nature of customary international law. One does not need to go all the way up to the level of jus cogens to achieve the result of a universally binding rule. Much depends on the strength of intention and opinion on the part of the world community of nations – and I would even say of the world community, having regard to the phraseology of the Preamble to the UN Charter which speaks of the will of the “peoples of the United Nations.” As Judge Lachs pointed out in his dissenting opinion in the North Sea Continental Shelf Cases7 even the fact that some states have enacted special legislation or concluded agreements at variance with a particular rule (the equidistance rule) cannot be held to have disturbed the formation of a general rule of law on delimitation. Particular exceptions do not necessarily frustrate the emergence of a general customary rule, thus giving it a greater suitability for shaping the emerging law of the future than would be the case with treaty law. There are sometimes many State violations in practice of an existing and universally acknowledged rule of international law. Torture offers a good example, for there are dozens of states across the world where torture still occurs even at official levels. The norm needs to be maintained and strengthened despite these violations, which ought not to be permitted to weaken its force. As Oscar Schachter has observed “It is sufficient in my view to recognize that there is a category of norms that are part of general international law: which governments in general regard as obligatory despite violations, even if widespread.”8 Customary international law is an important field where this principle applies, even though state practice forms an 6 7 8

J.J. Paust, op.cit., German Yerbook of International Law, p.79. See Federal Republic of Germany v Denmark; FRG v the Netherlands, I.C.J. Reports, 1969. Oscar Schachter, op.cit., p.539.

Custom: The Growing Role of Customary International Law

227

element in the evolution of customary international law. This observation becomes particularly relevant also in the field of international humanitarian law where violations of the laws of war are widespread but yet customary humanitarian law is of vital importance. The International Committee of the Red Cross is currently engaged on a major study of customary humanitarian law9 and such studies only highlight the importance of customary international law as a source and a sustainer of international legal principles, however widespread the negations of these principles in practice. The study involves people’s perceptions of humanitarian principles in armed conflict in a wide variety of countries and thus focuses attention on another important source of customary law people’s perceptions across the world as distinct from state practice. I shall have more to say on this topic later in this discussion. This aspect becomes relevant also in relation to current studies on the human right to peace. If there is a human right to life, a human right to health, a human right to dignity and other such rights there must a fortiori be a human right to peace, without which none of those human rights would remain intact. While it is scarcely possible to achieve this by treaty it is certainly within the realm of possibility to achieve it through customary international law. The Problem of Establishing a Rule of Customary International Law I am not of course overlooking the difficulties of establishing a particular rule of customary international law. There are the traditional difficulties attendant on establishing opinio juris sive necessitatis – a so called psychological element – and the volume of state practice on acceptance necessary for this purpose. Yet this is a far lesser task than awaiting the distant and remote possibility of a unanimous specific consent of all the nations to a particular rule. Moreover the multiplicity of organizations from the General Assembly downwards in which the wishes and views of the world community are expressed makes such a task easier now than ever before. There is no dearth of multilateral forums – whether under UN auspices, regional auspices or indeed of non-governmental organizations – in which the evolving norms of international law are formulated, analysed, discussed, refined and redefined in such a manner as to leave little doubt of the will of the world community considered as a whole. General Assembly Resolutions when framed as general principles provide a basis for the further development of the law and the speedy consolidation of customary rules10 Examples come from areas as diverse as space law,11 international 9 10 11

See the pilot stud y The People on War Report: ICRC Worldwide Consultation on the Rules of War, International Committee of the Red Cross, 1999. Brownlie, Principles of Public International Law, 5th ed., Clarendon Press,1998, p.13. Declaration of Legal Principles Governing Activities in the Exploration and Use of Outer Space – Res.1962 (XVIII) 13 Dec.1963 Adopted unanimously.

228

Universalising International Law

criminal law12 nuclear weapons, emancipation from colonialism13 and ownership of natural resources.14 These are all areas of law in need of rapid development, and treaty law would, at least in some of these areas, have been difficult to achieve. Such resolutions greatly accelerated the development of the law on these matters. These forums take away to a large extent the long wait for the spontaneous evolution of a principle of international law which might otherwise have been requisite before the evolution of a new rule of customary international law. There is instead a considered evaluation of the rule and a clear expression by the majority of states of their support, opposition or neutrality to the proposed principle. An illustration can be drawn from the desire of nations, peoples and assemblies of all descriptions to work towards the abolition of nuclear weapons. The vast number of international fora of every description before which the matter has been discussed and resolutions taken can leave no manner of doubt – quite apart from judicial pronouncements on the matter – that there exists a norm of customary international law that all nations are under a duty to take meaningful steps towards the abolition of nuclear weapons. Even if one or two states should oppose such a rule – which in fact is not the case – such opposition would not negate the existence of such a rule of customary international law. I stress again the further advantage of customary international law that we do not today have to wait for intergenerational time spans, as was customary in the past before a new norm of customary international law was established. The process is nowadays much more rapid and hence makes customary international law a more practical source for the evolution of the concepts the global community will need if it is to survive. The speed of change has been further revolutionized by electronic means of instant communication across all national barriers and the rate of development of state practice has to that extent been further speeded up. The formation of customary international law is thus an even faster process than its most stalwart supporters could have envisaged a few decades ago. Questions of Terminology The degree of acceptance and credibility of customary international law is perhaps to some degree impaired by the terminology in which it is clothed – at any rate in the principal international document in which it is mentioned, namely the Statute of the International Court of Justice. 12 13 14

Resolution Affirming the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal and the Judgment of the Tribunal – Res.1653 (XVI) of 24 Nov.1961. Declaration on the Granting of Independence to Colonial Countries and Peoples – No 1514(XV) of 14 Dec.1960. Declaration on Permanent Sovereignty over Natural Resources – No 1803(XVII) of 14 Dec.1962.

Custom: The Growing Role of Customary International Law

229

Art. 38(1)(b) speaks of international custom as evidence of a general practice accepted as law. The first part of the phrase connotes conduct and the second connotes belief or mental attitude towards the rule in question. It is necessary to remember that conduct includes not merely affirmative action but ranges also from active acceptance to a state of belief or even passive acquiescence or acknowledgement. These requisites pose difficulties which have been amply analysed in the relevant literature but they are still nowhere near the difficulties posed by treaty law in securing universal state acceptance in relation to norms of global applicability. I am not speaking here of the antiquated and unacceptable phraseology of Art 38(1)(c) which speaks of the “general principles of law recognised by civilized nations” – a source which is also in my view of vital importance, for the general (though not necessarily universal) consensus of legal systems on the acceptance of a given norm is a powerful indicator of the international acceptance of a norm and thus comes close indeed to international custom. I believe international law has now moved far from the position expressed by the International Court in the Anglo-Norwegian Fisheries Case15 where it denied the status of customary international law to a practice which was preponderant, though not universal. As Sir Hersch Lauterpacht has observed in regard to such an approach16 “If universality is to be made the condition of the application of customary rules it may become doubtful whether many rules would qualify for that purpose”. Even before the global needs of a heavily interdependent world were perceived as acutely as they now are, the need to preserve customary international law in the full integrity of its continuous application was perceived and the fear expressed that through restrictive judicial dicta and otherwise it was being narrowed down and weakened. In the words of Sir Hersch Lauterpacht written over forty years ago: “In the international sphere, where legislation in the true sense of the word is non-existent, custom is still the primary source: It supplies the framework, the background and the principal instrument of the interpretation of treaties. Accordingly, a judicial technique which leads to the narrowing down of the scope of application of custom may be open to some objection as weakening one of the main foundations of the law.”17 Much more is such a note of warning required today, for reasons which have already been set out above. The various component elements for the existence of customary international law must not be the subject of a requirement of proof so stringent as to block the application of customary law. It must be borne in mind fur15 16 17

I.C.J. Reports, 1951, at p.131. The Development of International Law by the International Court, 1982, reprint, Grotius Publications, p.370. op.cit., p.387.

230

Universalising International Law

ther that proof of the level of recognition can never be to the level of absolute certainty. This leads to what may be described as the sociological perspective to our problem. Just as the historical perspective enriches our understanding of the development of customary law, so also does the sociological perspective. International society is not the only society where customary law operates. We can derive great profit from observing the manner in which in other societies customary law has evolved with a certain amount of definitiveness. Apart from national societies there are also smaller societies such as parochial societies and tribal societies. In many of these custom is king, with an authority and a definiteness which written laws cannot match. One is reminded of the discussion one finds in sociological jurisprudence, in regard to tribal societies that have no formal organization. We can even think in terms of Malinowski’s seminal work,18 where he looked at tribal societies and perceived that, in those tribal societies, there was a very clear understanding of what the law was, despite the absence of a law-making body. For example, in the Trobriand Islands, he found that every member of the tribe knew exactly what his rights and duties were, down to his exact place on the fishing boat, and his exact share of the catch – even though there was no formal law-making authority and no formal expression of the rule in some consensual document. This shows that customary international law can achieve a great deal of specificity, despite the absence of a formal law-making mechanism. There are many insights we can gain also from the studies which have been made recently of African customary law. Those societies have had experience from time immemorial in working out rules that are of importance to the entire community. For example, the foresight of African customary law requires that one think in terms, not only of those who are present here and now, but of generations yet to come. It sees the community of humanity as not being confined only to those who are alive at the relevant time. That means of course, that they foreshadowed the concept of intergenerational rights, which can be built into customary international law in the same way, in international society, as it was built into customary African law. There are similar concepts throughout the Pacific. Such considerations reinforce the view that customary law, whether domestic or international, has a rich fund of general principle to offer the legal system in which it operates, when that legal system is faced with the responsibilities of formulating a specific rule to govern a new situation. We cannot permit ourselves to forget that some of the most abiding and notable rules of international law, be they pacta sunt servanda itself, and the requirement of good faith or the obligations attendant on fiduciary relationships such as mandate or trusteeship, derived their origin and continuing inspiration from 18

B.Malinowski, Crime and Custom in Savage Society, Kegan Paul, 1926.

Custom: The Growing Role of Customary International Law

231

customary international law. So it will be with the great and abiding concepts of future international law such as the common heritage principle, obligations erga omnes, intergenerational rights, environmental impact assessment, sustainable development, the precautionary principle, the human right to peace and others that still lie in the womb of time. The Value of Equity as a Component of Customary International Law May I say also, that we ought not to neglect the importance of equity. Just as equity is an important component of domestic legal systems, so also is it an important component of customary international law. There is a tendency often to deride equity and toss it out of the window, so to speak, on the basis that it is an inaccurate, fuzzy and outmoded concept. Just as equity has been condemned in domestic law as being as variable as the length of the Chancellor’s foot, so also has it been condemned in international law as being as variable as the weather of the Hague. I believe this attitude is prevalent because the many categories and functions of equity as well as its varied uses are not often valued as they should be. Because equity functions in so many ways, it gives us equitable concepts, equitable procedures, equitable results, and an equitable method of testing the result of a case. Of course it must not be confused with absolute equity, or equity contra legem, or equity ex aequo et bono. But within its proper limits, equity is an important part and source of customary international law. It is alive with vitality, and it can make a great contribution to the development of concepts for the future. All of the new concepts which are in the process of formation, need to be developed to their fullest richness. We cannot do so by neglecting the wisdom to be found in the world’s great cultural traditions, which are heavily impregnated with equitable thinking. Not only does equity stimulate the emergence of new concepts, it also develops our understanding of existing concepts and helps us to test our legal results through the operation of the sense of injustice.19 Value of Customary International Law to Domestic Legal Systems The fertility of customary international law as a source of law in domestic jurisdictions which accept international law as part of their legal systems can be well illustrated from numerous jurisdictions. I take the United States as one of the most illustrative. To cite an eminent writer, some of the earliest subjects on which it proved relevant included all trespasses against the law of nations, piracy, acts of hostility or breaches of neutrality, assaults on foreign government personnel, terroristic publications, prizes of war and unlawful captures, the laws of war, slave 19

For a fuller discussion of the role of equity in international law, see the author’s Separate Opinion in Case Conerning Maritime Delimination in the Area Between Greenland and Jan Maven (Denmark v Norway) I.C.J. Reports, 1993, pp. 211-279.

232

Universalising International Law

trading, territorial infractions, poisoners, assassins and incendiaries by profession, violation of passports, violation of safe-conducts, extradition and ‘refuge’ or asylum, human rights, denials of justice to aliens, remedies, jurisdiction, non-immunity, confiscation of property, war, reprisals, lawful intervention, oppression, tyrannicide, revolution, title to land by discovery or conquest, settlement of controversies between nations and the law concerning treaties, including the forming of the law of nations over treaties. With increasing interdependence among all people, the list of subjects has predictably been considerably expanded.”20 If customary international law has played such a vital formative role in assisting domestic legal systems to handle such a variety of problems, it certainly has the potential in the milieu of international law proper to assist the international legal system to adapt itself to the numerous fundamental changes that system is currently facing. Overlapping of Customary and Treaty Norms It must not be thought that treaty norms and customary norms function in strictly watertight compartments. Each category may blend into the other. Even if there is a theoretical dividing line between custom and the law, it has been aptly said that ”the Rubicon which divides custom from law is often crossed silently, unconsciously and without proclamation:21 This is so even with treaty law, for a treaty may formulate a rule which afterwards becomes a rule of customary international law22 and the interaction between them is manifold. In the words of a recent writer “it can hardly be said that an agreement is an agreement and a custom is a custom and, like East and West, they never meet. They often do come together in the process of international law making.23 It follows that the two sources must be treated as complementary to each other, each performing a valuable role in its own sphere and each being important in its own way for the further development of international law.24 Another aspect worthy of mention in the context of the interrelationship between customary international law and treaty law is the fact that the incorpora20

21

22 23 24

Jordon J. Paust, “Customary International Law in the United States, Clean and Dirty Laundry.” 40 German Yearbook of International Law (1997) 1998, pp. 78-79. See also Paust, International Law as Law of the United States, 1996, pp.8,48-50, 393, 402-403. F. Williams, Some Aspects of International Law, 1939, p.44. See also Tiyanjana Maluwa, “Custom, Authority and Law : Some Jurisprudential Perspectives of Customary International Law:” African Journal of International and Comparative Law (1994) Vol. 6, p.387 at 407. See Art. 38, Final Draft of the Vienna Convention on the Law of Treaties. See Karol Wolfke, “Treaties and Custom: Aspects of Interaction” in Essays on the Law of Treaties in Honour of Ber t Vierdag, 1998, p.31. Rein Mullerson, “The Interplay of Objective and Subjective Elements in Customary Law” in International Law, Theory and Practice: Essays in Honour of Eric Suy, Kluwer International, 1997, p.161 at 171.

Custom: The Growing Role of Customary International Law

233

tion of a rule of customary international law into a treaty does not end the existence of that rule of customary international law. As the International Court of Justice observed in the Nicaragua Case “even if the customary norm and the treaty norm have exactly the same content, this would not be a reason for the Court to hold that incorporation of the customary norm into the treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm.25 But there is this difference – the treaty norm remains in the form in which it is frozen into the treaty until such time as the treaty itself is changed, whereas the customary norm, having an independent existence of its own, can continue to develop. Such greater flexibility is an advantage in the process of development and maturation of a norm and can thus be of critical advantage in a situation when fast moving changes require more adaptability and flexibility in a rule of law. For this reason as well it is an advantage not to overlook the customary international law aspect of a treaty norm. The incorporation of a principle of customary international law in a treaty “may lead advocates or decision-makers to drop other evidence of the law and to defer to the treaty because it speaks loudly and clearly”.26 Yet the customary law is there in all its integrity and is ignored only at the cost of the further development of the principles in question. Customary International Law in the Field of International Contracts The notion of fairness of contract, now universally accepted in domestic jurisdictions, has yet to achieve practical recognition in the international sphere. In the result the international market place has become the venue of hard, unequal and unfair bargaining in which the weak are often driven to the wall. This is a matter falling within the ambit of both private and public international law. The North-South cleavage is constantly widened by hard bargains sometimes driven by the developed world in its transactions with the developing world. The transactions are often in regard to the commodities provided by the developing world, which are in many cases the latter’s only source of revenue, and which they must sell at whatever price they can. Other contracts may be in regard to the concessionary terms which a multinational corporation requires as a precondition to trading in that country. Some others may be transactions to which governments themselves are parties. If there is an element of fundamental unfairness in them, and more particularly where this is of such a nature as would attract censure by a domestic court in a purely domestic transaction, they can be the cause of tensions, which are fraught with danger to international relationships. 25 26

Nicaragua v USA (Merits) I.C.J. Reports, 1986, p. 14, para 177. M.J. Bonell, An International Restatement of Contract Law: The UNIDROIT Principles of International Commercial Contracts, 2nd ed., Transnational Publishers, 1997, pp.10-11.

234

Universalising International Law

This aspect therefore presents an important area for the attention of international lawyers and there is no reason to suppose that international law lacks the resources to handle such problems. However, it is to customary law, rather than treaty law that one must often turn for the answers. True, there are a number of international conventions embodying principles of fairness. “Yet these instruments remain a dead letter or nearly so” and furthermore “international conventions are rather fragmentary in character … Even a comprehensive instrument like the 1980 United Nations Convention on Contracts for the International Sale of Goods … suffers from a number of significant lacunae…”27 The reason why treaty law cannot come to the rescue is well illustrated in the following observations which highlight in this specific field the limitations of treaty law to which we have already referred. “The treaty collections are littered with conventions that have never come into force, for want of the number of required ratifications, or have been eschewed by the major trading States. There are several reasons for this: failure to establish from potential interest groups at the outset that there is a serious problem which the proposed convention will help to resolve; hostility from powerful pressure groups; lack of sufficient interest of, or pressure on, governments to induce them to burden still further an already over-crowded legislative timetable; mutual hold-backs, each State waiting to see what others will do, so that in the end none of them does anything”28 I shall first of all attempt to show the universality of fairness principles in modern contract law in domestic jurisdictions. I shall then refer to the principles of international commercial contracts as formulated by UNIDROIT in 1994. In the United Kingdom the Unfair Contract Terms Act 1997 followed by the Unfair Terms in Consumer Contracts Regulations 1994 subject all consumer contract terms to a test of fairness. The rights of sellers to exclude liability for defective goods are excluded by section 6 of the Unfair Contract Terms Act. In applying the test of reasonableness to the contract Schedule 2 requires the Court to consider such matters as the parties’ bargaining power and the availability of other sources of supply. These statutory provisions are now backed by a body of decided cases in Courts ranging all the way to the House of Lords, thus demonstrating the availability of the judicial arm of state power to enforce the principle of fairness. The courts have developed principles relating to abuse of bargaining power (e.g. Lloyd’s Bank v Bundy 1975, Lord Denning) and on the need for fairness in the drafting of business contracts (e.g. Interfoto v Stiletto Programmes, 1987) 27 28

R.M. Goode, “International Restatements of Contract and English Contract Law,” in Uniform Law Review, 1997, pp.231-233. ibid.

Custom: The Growing Role of Customary International Law

235

In a related jurisdiction we may note the Contracts Review Act of 1980 of New South Wales which enables courts to invalidate or review ‘unjust’ contracts i.e. contracts which are ‘unconscionably harsh or oppressive’. An illustrative example of its application was the annulment by the New South Wales Supreme Court in 1993 of a settlement by a widow for less than 5,000 dollars of a claim for injury and breach of contract worth 50,000 dollars. In Dutch Law Articles 6.240-3 of the Dutch Civil Code enable consumers and business organizations to seek injunctions against unreasonable claims and in German Law Article 138 of the BGB makes a contract void if one person exploits another’s need or weaknesses to gain an ‘obviously disproportionate’ pecuniary advantage. In Spain the Law of 19 July 1984 for the protection of consumers and users requires contracts to conform with requirements of good faith and fairness (Art 10) and Article 36 of the Swedish Contract Act 1915 enables the court to alter or annul contracts containing an unfair term. Under the Business Contract Terms Act 1994 the court is empowered to decide that a certain type of condition is unfair. The European Union Directive on Unfair Terms in Consumer Contracts has been accepted by Italian law without the need for further legislation and in France unfair or abusive terms are regulated both by the efforts of judges and by legislation. Under Article 36 of the Nordic Contract Law any contract term which is unreasonable or the application of which may lead to unreasonableness may be mitigated or set aside. These instances are sufficient to show the universal concern of modern legal systems to check, in a domestic context, the exploitation of inequality of bargaining power.29 International law if it is to keep abreast of universal legal trends must also equip itself for this task, and this is an area where private and public international lawyers need to work together to remedy one of the most widespread and potentially damaging areas of international relationship in the contemporary world. Indeed it can be argued that such a body of rules relating to fairness in contract has now worked itself into international law and can be considered part of customary international law. One route to such a result is that the principle of fairness of contract is now accepted by the world’s principal legal systems and thus comes within Art. 38(1)(c) of the International Court’s Statute.

29

For a succinct summary of the legal provisions relating to these matters in a variety of legal systems see Michael H. Whincup, Contract Law and Practice:The English System and Continental Comparisons, 3rd ed., 1996, Kluwer Law International, ch.7. For a general review of fairness in the international legal system see Thomas M. Franck, Fairness In The International Legal And Institutional System, Academy of International Law, 1994.

236

Universalising International Law

Another is to rely on the Principles of International Commercial Contracts as worked out by the International Institution for the Unification of Private Law (UNIDROIT) in 1994. This UNIDROIT project dates back to a decision of the Governing Council in 1971 and the appointment of a special Working Group in 1980 which included representatives of all the major legal systems in the world, and comprised leading experts in the field of contract law and international trade law. The Working Group, after an intensive study of the subject and with the assistance of an impressive array of other participants, all experts in the field, sought to bring together, for use in the international commercial arena, the essence of the general principles relating to contract in the legal systems of the world. It can well be argued that this body of principles can form the basis for the emergence of a set of norms of customary international law relating inter alia to unfairness of contract, thus transposing into the international arena the universally accepted norms of contract law at this point in time. Many provisions of the UNIDROIT rules have a bearing on the subject matter under discussion but I would wish in particular to refer to Art.3.10 under which a party may avoid a contract or an individual term of it if at the time of the conclusion of the contract it unjustifiably gave the other party an excessive advantage. Regard is to be had, in this context to such factors as the fact that the other party has taken advantage of the first party’s dependence, economic distress or immediate needs. Art.7.1.6 likewise enables an exclusion clause not to be involved if it would be grossly unfair to do so having regard to the purpose of the contract. The UNIDROIT rules have been repeatedly invoked and applied by Courts and arbitrators, thus confirming the impression that they constitute an internationally accepted set of rules which have gained wide acceptance. As was stated by the International Court of Arbitration of the International Chamber of Commerce in an award of 5 June 1996. “The Court held that the UNIDROIT Principles, which had been proposed by a group of leading experts and academics from all major legal systems, contained in essence a restatement of those principes directeurs which had enjoyed universal acceptance and moreover were at the heart of those most fundamental notions which had consistently been applied in arbitral practice…” In this writer’s view the time has come for the translation of these principles into the practice of the international market place, for it is there that the gross disparities and major iniquities occur, which cause so much bitterness in the developing world and a heightening of North-South tensions. International law cannot possibly lag so far behind domestic law that the fierce, free-for-all competition of the market place reigns supreme in that field, while it is brought under the control of fairness principles in domestic forums. It

Custom: The Growing Role of Customary International Law

237

needs to be implicit that arbitrators in international commercial disputes should be entitled to apply these fairness principles of customary international law when arbitrating such disputes. Good faith and fair dealing are principles deeply ingrained in customary international law, and there is no reason to suppose that the applicability of these principles has by-passed the vital field of international commercial law – a field which, moreover, integrates increasingly into nearly every department of public international law. Customary International Law in the field of the Humanitarian Laws of War Another field of primary importance illustrating the value of customary international law is the field of humanitarian law. In this area the basic principles, many of which have later been incorporated in treaties, derive from customary international law. Moreover the whole of this vast body of law and principles cannot possibly be reduced to treaty form at any foreseeable time in the future, and consequently customary law must continue to be relied upon as a major source from which to draw applicable principles for new situations. Various world traditions have much to contribute in this area – in regard to such matters as conduct on the battlefield, treatment of prisoners of war, prohibited weapons, protection of civilians and the right of sanctuary. Christian traditions as manifested all the way back to the Lateran Council in the thirteenth century, Islamic law as expounded in Islamic legal treatises a thousand years ago, and detailed Hindu rules covering all these matters and dating back over two thousand years are not to be ignored in this context. All this massive body of tradition furnishes the background to customary international humanitarian law and all of its detail cannot ever be embodied in treaty law – nor can all of its wealth of principles be formulated in terms of specific rules covering all conceivable problems that may arise from time to time. It is in recognition of the enormous wealth of customary international law in this regard that the International Committee of the Red Cross has instituted the comprehensive review of the customary rules of international law, already referred to. As observed in the International Review of the Red Cross Sept. 1999, despite the four Geneva Conventions of 1949 and their two Additional Protocols of 1977 there are few treaty rules relating to non-international conflicts. In situations not governed by Additional Protocol II the only general article covering non-international armed conflict is Article 3 which is common to the four Geneva Conventions of 1949. The gaps in the Conventions cannot be easily filled by treaty law, for this would take long to achieve, and fresh situations that arise from time to time cannot await formulation in treaties for their solution.

238

Universalising International Law

International criminal tribunals need to resolve the case in hand on the basis of available principles of law and cannot await their specific formulation in treaties. It is only customary international law that can fill the gap. The Dynamism of Customary International Law Customary international law is dynamic. It does not freeze a principle once it is formulated, as legislation and treaty law tend to do. “Customary International Law is not static. It changes as the patterns of state behaviour change and opinio juris evolves to reflect current realities of obligation. Extant rules of law are subjected to change. Nations forge new law by breaking existing law, thereby leading the way for other nations to follow. Ultimately new patterns of behaviour and obligation develop”30 As we have noted earlier, after a rule becomes well established in international law even a persistent objector is bound by it. The Constraining Effects of Sovereignty and Autonomy Since great difficulties are involved in obtaining universal specific state consents to make a rule universally binding, it is scarcely possible to insist on a rigid requirement of consent. As argued herein, it will often fall to a source unrelated to specific consent, to provide the repository of principles whose application will constantly be needed if the international law of the future is to be a working system. Such a source, accorded its due measure of importance in the hierarchy of sources, is clearly the sine qua non for a global society faced with such a variety of cardinal dangers – military, environmental, economic, technological – as now confronts it. In the absence of international legislation, in the absence of a parliament of the nations sitting over all the sovereign states, in the absence of an all-embracing code of international law, where must we turn? Conclusion This article is not meant in any way to question the principle that there is no hierarchy among the sources of international law. Its purpose is rather to protect customary international law from its de facto relegation to a position of inferiority among the sources. The discussions on the way treaty law is overtaking customary international law are reminiscent of the descriptions one finds in Buddhist learning, of the situation where a pupil who has been moulded and given intellectual 30

J Charney, “The Persistent Objector Rule and the Development of Customary International Law” (1985) 56 British Yearbook of International Law, p.1.

Custom: The Growing Role of Customary International Law

239

strength by his teacher gradually grows in strength to the point where the pupil believes he or she has overtaken the teacher, and then proceeds to challenge or outdo the teacher. In those allegorical teachings, the teacher eventually comes out triumphant, showing that the seminal influence which has been the pupil’s original source of strength, is so soundly based that it will continue to exert its proper influence. It is well to remind ourselves that treaty law is the daughter of customary international law. Pacta sunt servanda, is after all, a rule of customary international law, the interpretation of treaties takes place on the basis of customary international law and the validity of treaties is determined by customary international law. It was for this reason that the normativist school considered treaties to be lower in the hierarchy than customary international law, for treaties needed to rely on customary international law for their binding force.31 Treaties per se are ineffective without the support of customary international law and still heavily dependent upon it in many respects, including interpretation. A perception of international law that allows treaties to strangle or diminish the influence of customary international law thus lacks a conceptual foundation. Customary international law is the answer and by being our principal answer elevates itself to a position that must command our continuing respect. Its usefulness will not cease at any stage, for there will always be an interval of time between the evolution of a legal need and the conventional regime that can handle it. There will always be a need for a reservoir of norms and principles supplying the tributaries which will nourish and fertilise the emerging fields of justice in the new century. It is the urgent task of international lawyers to ensure that the channels of supply are not clogged.

31

See H. Kelsen, Principles of International Law, 1952, p.314. See also Karol Wolfke “Treaties and Custom: Aspects of Interrelation” in J. Klabbers & R Lefebner, Essays on the Law of Treaties, Martinus Nijhoff, 1998 at 36.

Chapter 9

General Principles of Law: Equity in a Global Context

The Opinion reproduced here contains an extended discussion of the operation of equity as a general principle recognised by legal systems, and thus as an important source of international law. Although it deals specifically with some aspects of its application to maritime delimitations, it covers the principles, procedures, categories, uses and methods of operation of equity in international law in general. Introduction This chapter consists of extracts from the author’s Separate Opinion in Maritime Delimitation) Norway v Denmark (1993) I.C.J. Reports, pp. 211-279. The case involved the use of equity in maritime delimitation. The extracts reproduced here are intended to illustrate the universality of the concept of equity, its practical value and the possibility of enriching it by equitable traditions drawn from across the world. The observations r eproduced her e are not restricted to maritime delimitation but apply to equity in general.

240

Equity in a Global Context

241

SEPARATE OPINION OF JUDGE WEERAMANTRY

TABLE OF CONTENTS

Paragraphs INTRODUCTION 1-11 Special role played by equity in this case 5-11 PART A. GENERAL EQUITABLE JURISDICTION OF THE COURT 12-165 Conceptual problems associated with the use of equity 12-19 Issues arising from the Court’s reliance on equity 20 Analysis of equity with reference to maritime delimitation 21-165 I. The application of equity 21-42 (a) Equitable principles 22-24 (b) Equitable procedures 25-27 (c) Equitable methods 28-30 (d) Equitable results 31-42 II. Inapplicability of equity as a system separate from law 43-51 (a) Equity in common law 47-48 (b) Equity in civil law 49-51 III. The categories of equity 52-73 (a) Equity ex aequo et bono 53-61 (b) Absolute equity 62-64 (c) Equity praeter legem 65-68 (d) Equity infra legem (also termed equity intra legem or equity secundum legem) 69-72 (e) Equity contra legem 73 IV. The routes of entry of equity 74-102 (a) Equity as required to be applied by treaties 75-77 (b) Equity as contained in customary international law 78-80 (c) Equity as a general principle of law 81-86 (d) Equity as embodied in the decisions of courts and tribunals 87-90 (e) Equity as expounded in the writings of the publicists 91-93 (f) Equity as justice 94-98 (g) Equity as drawn in by the United Nations Charter 99-101 (h) Equity as embodied in State practice 102 V. A priori and a posteriori employment of equity 103-109 (a) The positive or a priori use of equity to construct a result 103 (b) The negative or a posteriori use of equity to test a result 104-109

242

Universalising International Law

VI. The uses of equity 110-121 (a) As a basis for individualized justice 113-115 (b) As introducing considerations of fairness, reasonableness, and good faith 116 (c) As a basis for certain specific principles of legal reasoning 117 (d) As offering standards for the allocation and sharing of resources and benefits 118-120 (e) To achieve distributive justice 121 VII. The methods of operation of equity 122-146 (a) Through balancing the interests of the parties 122-128 (b) Through an equitable interpretation of a rule of law or of a treaty or set of facts 129-132 (c) Through tempering the application of strict rules 133-135 (d) Through the choice of an equitable principle 136-139 (e) Through the use of judicial discretion 140-142 (f) Through filling in gaps and interstices in the law 143 (g) Through following equitable procedures 144 (h) Through the application of equitable principles already embedded in the law 145 (i) Through its use in negative fashion to test a result 146 VIII. The stages of equitable decision-making 147-155 (a) The identification of the area of the dispute 148 (b) The preparatory phase of assembling the relevant circumstances 149-150 (c) The decisional phase 151-153 (d) The confirmatory phase 154-155 Uncertainties in the use of equity 156-165 (a) Absence of mechanisms for precise quantification 157-158 (b) Lack of definiteness in the scope of equity 159 (c) Lack of crystallization of equitable results 160 (d) Changing nature of the law of the sea 161-162 (e) The resort to fact-intensive rather than rule-intensive procedures 163-165 PART B. PARTICULAR INVOCATIONS OF EQUITY IN MARITIME DELIMITATION 166-232 Long-standing recognition of equity in the law of the sea 166-170 The use of equity in the 1958 Geneva Convention 171-177 The use of equity in the 1982 Montego Bay Convention 178-180 Categories of relevant factors are not closed 181-189 The equidistance principle 190-203 (i) Is it a mandatory rule ? 192-196 (ii) Does it have priority over other factors ? 197-199 (iii) Does it have parity with other factors ? 200-203 The “special circumstances” principle 204-207

Equity in a Global Context

The “relevant circumstances” principle (a) Population (b) Economic factors (c) State practice (d) The ice factor (e) National security (f) The conduct of parties (g) Disproportion in coastal length PART C. EQUITY VIEWED IN GLOBAL TERMS

243

208-232 213-218 219 220-224 225-227 228 229-230 231-232 233-248

244

Universalising International Law

MARITIME DELIMITATION (SEP. OP. WEERAMANTRY) INTRODUCTION 1. The observations that ensue indicate the reasons for my agreement with the Judgment of the Court. In view of the Judgment’s intensive use of equity, they explore in somewhat extended form the jurisprudential content and practical application of that concept in a manner which can most ap p ro p ri at e ly be attempted in a separate opinion. 2. Against this background, it is not necessary in this opinion to re c ap itulate the several details of fact, which are set out in the Judgment. This opinion will attempt, rather, to examine the application of equity to those fa c t s , explaining my support of the methods used and concl u s i o n s re a ch e d. 3 . The ensuing analysis is undert a ken against the back ground of the substantial body of cre at ive wo rk done by this Court in laying the fo u n d at i o n s of an equitable juri s p rudence for the evolving law of the sea. What “appears at first sight to be a jumble of different and disparate elements”1 m ay well yield, upon closer ex a m i n at i o n , some useful guidelines for the d e t e rm i n ation of a case such as this. 4 . Although this opinion focuses on the field of maritime delimitat io n , it will also take in occasional glimpses, when necessary, of the bro a d e r e q u i t able landscape lying beyo n d. This is re n d e red all the more necessary because ap p l i c ation of equity in the field of maritime delimitation ra i s e s fa r- re a ching juristic questions 2 and is curre n t ly passing through a cri t i c a l p h a s e. 3 Special Role Played by Equity in this Case 5. The Court’s Judgment reveals the use of equity in several ways, and at various stages in the judgmental process. 1

R. Y. Jennings, “Equity and Equitable Principles”, in Annuaire suisse de droit international, Vol. XLII (1986), p. 38. See, also, the same author in “The Principles Governing Marine Boundaries”, in Staat und Völkerrechtsordnung, Festschrift für Karl Doehring, 1989, p. 408.

2

See Mark W. Janis,“Equity in International Law”, Encyclopedia of Public International Law, Vol. 7,pp. 7677: “The application of equitable principles in these maritime delimitation cases has evoked a debate regarding the role of equity which is rather similar to that which accompanied earlier manifestations of equity practice. Some observers – largely in the positivist tradition – have criticized the courts for going beyond their powers.”

3

Judge Jennings refers, in connection with maritime delimitation, to “some deep problems – one might almost add a malaise – affecting that part of international law today” (“The Principles Governing Marine Boundaries”, op. cit., p. 398, See, also,the criticisms of the use of equity assembled by Judge Bedjaoui in “L ‘enigme’ des ‘principes equitables’ dans le droit des délimitations maritimes”, in Revista Española de Derecho Internacional, Vol. XLII (1990), p. 376.

Equity in a Global Context

245

6 . It describes the equidistance-special circumstances rule of the 1958 Convention as ex p ressing a ge n e ral norm based on equitable pri nciples (para. 46) and examines the “ e q u i t able pri n c i p l e s - re l evant circ u msta n c e s” rule re lating to delimitation of a continental shelf, fish e ry zone or a ll-p u rpose single boundary (para. 56). It also examines the effect of the c u s t o m a ry rule wh i ch re q u i res a delimitation based on equitable pri n ciples (paras. 46 and 71). 7 . The Court gives its attention to the ap p l i c ation of equitable proc e d u res (para. 92), the effecting of an equitable division (para. 64), t h e need to arrive at an equitable result (paras. 54 and 90), the ensuring of an equitable solution (para. 65) and the process of evolving such a solution (para. 63). It notes the prima facie equitabl e 4 ch a racter of the re asons underlying the equidistance method and the need for an equitabl e d e l i m i t ation to take into account the disparity in coastal lengths (para . 65). It stresses that a result wh i ch is equitable in itself is the objective of eve ry maritime delimitation based on law (para. 70), and re fe rs to the equity of the delimitation line (para. 62). 8 . The Judgment considers whether a given line is “ e q u i t able in its result” (para. 62), and it describes the line drawn by Denmark 200 nautical miles from the baselines of Eastern Greenland as “ i n e q u i t able in its e ffe c t s ” ( p a ra. 87). It takes note of Norway ’s argument that pro p o rt i o n a lity is the test of the equitableness of a result arrived at by other means ( p a ra. 63) and Denmark ’s re fe rence to “a method ap p ro p ri ate for an equit able delimitation line” ( p a ra. 62). It considers the manife s t ly inequitabl e results fo l l owing from the ap p l i c ation of the median line (para. 68). 9 . Specific re fe rence is made to the measure of discretion conferred on the Court by the need to arrive at an equitable result (para. 90). Recog n iz ing the need to make proper provision for equitable access to fishery resources (paras. 75, 91 and 92), the Court makes a division according to which it considers that “the requirements of equity would be met” (para. 92). 1 0 . Equity has thus played a role of ove r whelming importance in the C o u rt ’s decision, i nvolving the ap p l i c ation of equitable pri n c i p l e s , e q u it able pro c e d u res and equitable methods. The decision reveals in intens ive effo rt directed towa rds ach i eving an equitable solution and at testing the equitable nat u re of that solution. It draws in equity to add ress the p ro blem in hand through a multitude of routes – tre at y, c u s t o m a ry intern ational law and judicial decisions to name a few. The methods used involve both the a priori use of equity to work forwards towards a possible result and the a posteriori use of equity to test a result thus re a ch e d. 11. Since this case has drawn both upon the Court’s general equitable jurisprudence and on its particular invocations in relation to the law of the se a , this opinion will deal with both these aspects. The special invo c at i o n s of equity wh ich give it re d o u bled emphasis in the law of the sea tend some-

246

Universalising International Law

times to ove rs h a d ow the ap p l i c ability of ge n e ral principles of equity, wh i ch still play a vital part in this fi e l d. To minimize the importance of ge n e ral equitable considerat i o n s , e s p e c i a l ly at this incipient stage of the d eveloping law of the sea, m ay cramp the evolution of the latter in wh at is perhaps its most fo rm at ive phase. This opinion consequently devo t e s some attention to an ex a m i n ation of the ways in wh i ch equity, both in its general sense and in its special application to the law of the sea, can contribute to the solution of the va ried pro blems encountered in this case.

PA RT A. G E N E R A L E QU I TA B L E J U R I S D I C T I O N

OF THE

C O U RT

C o n c eptual Pro blems A s s o c i ated with the Use of Equity

12. The issue whether equity should play a role in maritime delimitation is one which has been questioned by eminent authority, both judicial and academic, and must be seriously addressed if reliance is to be placed upon it. This is part of a larger question as to whether, indeed, although equity is clearly a part of public international law, its use is really necessary or useful, having regard to its uncertainties, its difficulties of definition and its lack of methodologies for the precise quantification of its findings. 13. Telders, for example, has expressed the view that, apart from the application of the principle of good faith, equity has no special legal significance.1 Ripert, in his lectures before the Hague Academy in 1933, went even further to state that equity is a principle, but a principle of morality and not of law.2 14. Indeed, judicial dicta of some judges of this Court have given strong expression to such a view. Vice-President Koretsky, for example, in the North Sea Continental Shelf cases, affirmed that equity, being of “a non-juridical, ethical character”, ought not to be resorted to by this Court: “I feel that no introduce so vague a notion into the jurisprudence of the International Court may open the door to making subjective and therefore at times arbitrary evaluations, instead of following the guidance of established general principles and rules of international law in the settlement of disputes submitted to the Court.” (I.C.J. Reports, 1969, p. 166, dissenting opinion). 1

“Opzet van een boek over het internationale recht”(“Outline of a Book on Internatonal Law”) in Verzamelde Geschriften (Collected Papers), The Hague, 1948, p. 292, at p. 338.

2

Georges Ripert, “Les règles du droit civil applicables aux rapports internationaux”,44 Recueil des cours de l’Académie de droit international (1933-II),p. 575 – “L’ équité est principe, mais principe de morale et non principe du droit.”

Equity in a Global Context

247

Judge Tanaka put it even more strongly in his observation in the same case t h at , “ R e fe rence to the equitable principle is nothing else but begging the question.” (I.C.J. Rep o rt s , 1969, p. 196 dissenting opinion.). Other criticisms1 describe equity as a doctrine “déroutée et déroutante”, “a ri dd l e wrapped in a mystery inside an enigma”, as para d ox i c a l , circular, fuzzy and lacking precise definition. 15. These conceptual criticisms of equity may be addressed at three levels at the level of law in general, at the level of international law and at the level of the law of the sea. 16. At its most general level, equity has been seen as the source of that dynamism which is necessary for legal development. Thus, in the words of the eminent comparat ivist Puig Bru t a u , “equity is one of the names under which is concealed the creative force which animates the life of the law.”2 1 7 . At the level of intern ational law, t h at cre at ivity is well illustrat e d when one considers that equity has been the source that has given international law the concept of intern ational mandates and tru s t s , of good fa i t h , of pacta sunt serva n d a, of jus coge n s, of unjust enri ch m e n t , of rebus sic s t a n t i bus and of abuse of rights. No doubt, the future holds for it a s i m i l a rly vital cre at ive ro l e. 1 8 . Vi ewed more specifi c a l ly, in the context of the law of the sea, i t s potential for developing that incipient bra n ch of intern ational law is so fa r- re a ching as to have at t racted the comment that it is “a juridical arsenal from wh i ch the judge draws the tools wh i ch e n able him to identify, eva l u at e, u n d e rstand and give effect to circumstances re c og n i zed as juri d i c a l ly re l evant in a particular case” 3 (t ra n s l at i o n) . 1 9 . Wh at fo l l ows is an analysis of these tools by wh i ch equity helps to i d e n t i f y, eva l u at e, u n d e rstand and give effect to the circumstances in a p a rticular case. Th e re a f t e r, this opinion will add ress the question wh e t h e r the uncertainties of equity render it a pra c t i c a l ly unsuitable tool for the d e t e rm i n ation of cases such as this. Issues A rising from the Court ’s Reliance on Equity 2 0 . This analysis centres around the fo l l owing aspects of the re l i a n c e on equity in the Ju d g m e n t : 1

As assembled by Judge Bedjaoui in “L ‘énigmé’des “principes équitables’dans le droit des délimitations maritimes”, op. cit., p. 376.

2

“Juridical Evolution and Equity”, in Essays in Jurisprudence in Honor of Roscoe Pound, 1962, pp. 82, 84.

3

“les principes équitables se présentent en définitive comme un arsenal juridique dans lequel le juge puise les outils permettant d’identifier, d’évaluer, de comprendre et de satisfaire des circonstances reconnues juridiquement pertinentes dans une espéce déterminée.” (Bedjaoui, op. cit., p. 384)

248

Universalising International Law

– The Judgment of the Court , in common with most others in the field of m a ritime delimitat i o n , re s o rts to equity not mere ly for principles but also for pro c e d u res and methods, and for the testing of tentat ive solutions re a ch e d. The one wo rd “ e q u i t y ” c ove rs all these ap p l i c at i o n s , some of them quite distinct from others . – The term “ e q u i t y ” as used by the Court , and in intern ational law and in m a ritime delimitation ge n e ra l ly, has a distinct meaning from equity as used in the sense of a corre c t ive system standing ap a rt from the law. Wh e n ever the term equity is used in the Ju d g m e n t , the term is not used in the latter sense, and this distinction must be kept in mind for an ap p re c i ation of the role of equity in this case. – There has been no resort to equity ex aequo et bono. Nearly every decision applying equity to maritime delimitation has stressed that the species of equity employed is not equity ex aequo et bono. This necessitates an examination of the distinctions between that concept and the concept of equity actually employed. The various categories of equity and their relevance to this case call for examination in this context. – The Judgment draws in equity through treaties, customary international law and judicial decisions, as well as broader concepts of equity which flow in from many sources. An examination of these varied sources will clarify the several ways in which the problem before the Court has necessarily attracted its operation. – The Judgment uses equity a pri o ri to wo rk towa rds a re s u l t , and a posteri o ri to ch e ck a result thus re a ch e d. This raises important j u ristic issues. – There are several purposes or ends for which equity has been used. These are varied and some of them are pertinent to this Judgment in particular and to maritime delimitation in general. Not all the possible purposes and ends of equity are appropriate to maritime delimitation. – Equity has many methods of operation, more than one of which has been used in the Judgment. These may not all be spelt out specifically, but one or more of them are in constant use in every exercise of that discretion, as indeed they are in this case. The ambit of judicial discretion – a matter specifically referred to in the Judgment – has been the subject of some controversy. In subscribing to the decision of the Court, I have accepted the legitimacy of such a use of judicial discretion and feel impelled to explain why I consider such use of discretion legitimate. – The process of equitable decision-making, as in a boundary delimitation, is not a single process but can be broken up into its constituent stages. The decision in this case has proceeded through those stages as

Equity in a Global Context

249

will be pointed out. An appreciation of those separate stages is an aid to understanding the actual operation of equity in this case. These aspects will be discussed in the ensuing paragraphs in the order in which they have been set out. ANALYSIS OF EQUITY WITH REFERENCE TO MARITIME DELIMITATION

I. The Application of Equity 21. The application of equity to a given case can comprise the application of an equitable principle or principles, the adoption of an equitable procedure or procedures, the use of an equitable method or the securing of an equitable result. All of these aspects are relevant to the determination of the present case. (a) Equitable principles 22. Equitable principles are in this discussion taken to include concepts, black-letter rules and standards or principles in the broader sense, as there is no need in this discussion to refine this category further. The important distinction drawn by jurists1 between black-letter rules and standards or principles is hence not used for the purpose of this classification, and the term “equitable principles” is to be read as covering all of these. 23. The Chamber of this Court, in the case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, had in mind a classification of this broad nature when it observed that there is a distinction: “between what are principles and rules of international law governing the matter and what could be better described as the various equitable criteria and practical methods that may be used to ensure in concreto that a particular situation is dealt with in accordance with the principles and rules in question” (I.C.J. Reports, 1984, p. 290, para. 80). The ensuing analysis proceeds upon the broad division between concep t s and principles without making another specific cat ego ry of “ c ri t e ri a ” . 24. General equitable principles relevant to this case would include equitable principles applicable to the assessment of representations of S t ate policy rega rding maritime delimitation wh i ch other States have relied upon to their prejudice; equitable principles of interp re t ation in relation to relevant treaties; and principles of fairness in considering

1

See, for example, R. Dworkin, Taking Rights Seriously, 1977, p. 46.

250

Universalising International Law

whether large sections of the wat e rs to be demarc ated are unu s able in consequence of their being fro zen over for considerable peri o d s . ( b ) E q u i t able pro c e d u re s 2 5 . As with most areas of law, equity has both a substantive and an a d j e c t ival aspect. The ap p l i c ation of equitable pro c e d u res of enquiry is n e c e s s a ri ly an important part of equity. Pro c e d u ral equity in its bro a d e s t form is the equity which ensures that in the process of enquiry and investigation leading to a decision, the parties enjoy the opportunity of a full and fair presentation of their respective cases to the court or tribunal. The procedural aspect of equity has an ancient origin and is rooted in popular concepts of fairness.1 2 6 . The equitable concern with pro c e d u ral fa i rness gives rise to the principle involved in this case, that all relevant circumstances will be considered in determining how the maritime space in contention is to be delimited between the Parties, unless this consideration is prevented by a rule of law. The Court in its Judgment has therefore given its consideration to a wide range of factors – State practice, the conduct of the Parties, proportionality of coastlines, p o p u l at i o n , economic fa c t o rs , the equidistance p rinciple and the unu s ability of part of the maritime space in contention owing to drift ice. Wh at ever may be the eventual conclusion regarding the weight to be given to each factor, Parties are entitled to a consideration of such factors by the Court and in the absence of a legal principle rendering a particular factor irrelevant, the impact of that factor upon the case in hand needs to be assessed. 27. This is especially so having regard to the uniqueness of each particular case and the fact that its special circumstances may throw up for consideration some fact or circumstance never considered in the relevant jurisprudence up to that time. The fact that a considerable portion of the relevant area in this case is ice-bound for the greater part of the year is such a factor. As this Court pointed out in the Gulf of Maine case: “Although the practice is still rather sparse, ... it too is there to d e m o n s t rate that each specific case is, in the final analy s i s , d i ffe re n t

1

For example, the audi alteram partem rule has from ancient times been described even in popular literature. “Qui statuit aliquid parte inaudita altera, Aequum licet statuerit, haud aequus fuit.” (Seneca, Medea 199-200, cited in a series of later common law cases such as Re Hammersmith RentCharge, 4 Ex 87, at 97; Smith v Rex, 3 App. Cas. 614 at 624. See also Broom, Legal Maxims, 10th ed., 1939, p. 66)

Equity in a Global Context

251

from all the others, that it is monotypic and that, more often than not, the most appropriate criteria, and the method or combination of methods most l i ke ly to yield a result consonant with wh at the law i n d i c at e s , can only be determined in re l ation to each particular case and its specific ch a ra c t e ri s t i c s .” (I . C . J. Rep o rts 1984, p . 2 9 0 , p a ra . 81.) Th u s , t h e re is “no legal limit to the considerations wh i ch States may take account of for the purpose of making sure that they ap p ly equitable p ro c e d u res“ (I . C . J. Rep o rts 1969, p. 50). (c) E q u i t able methods 2 8 . Among the practical methods listed by the Chamber in the Gulf of Maine c a s e, as distinct from cri t e ria and rules or principles wh i ch should be used for ach i eving an equitable re s u l t , a re the drawing of an equidistance or median line, the division of the area in va rious segments using d i ffe rent methods in respect of each sector and the method of drawing a line perpendicular to the coast or to the ge n e ral direction of the coast. 1 29. Many other suggestions appear in the literature, which could be described as methods stemming from equitable considerations2. As the jurisprudence on maritime delimitation develops, a refinement of methods appropriate to particular types of dispute may well emerge.3 30. In the present case, the Court has used as its method the provisional adoption of the median line as its starting point and, having regard to its evaluation of the various considerations before it, moved that line eastwards, carefully dividing the relevant space into segments which again

1

I.C.J. Reports 1984, p. 313, para. 159

2

See, for example, the five separate tasks devolving on the Court, as analysed by J.I. Charney, of which the last three may be classified as methods: “(3) To the extent possible, each piece of information identified in the prior paragraph should be used to construct a line or range of lines that best suits the function to which it relates. (4) These alternative lines and previously identified factors should be studied and weighed according to their importance. In a process that might even approach vector analysis,a line that best reflects all the relevant factors in light of their importance to the zone should be sought. (5) A cartographical method should be selected to describe the line accurately and reliably.” (J.I.Charney, “Ocean Boundaries between Nations: A Theory for Progress”, 78 American Journal of International Law (1984), p. 597).

3

One could, if so disposed, draw a distinction between a merely geometrical norm and a juridical norm as Judge Tanaka did in his dissenting opinion in the North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 183). However, if the geometrical norm stems from equitable considerations, it is for the purposes of this discussion classed as an equitable method. Judge Tanaka was referring to the distinction between the rule of equidistance as a mere technique and as a norm of law.

252

Universalising International Law

have been differently divided having regard to the considerations involved, such as the seasonal movement of fish and equitable access to fishery resources (para. 91). These methods are all grounded in equitable considerations and are, for the purposes of the present discussion, treated as equitable methods. (d) Equitable results 31. The fi rst three aspects mentioned are only the means towa rds the l a s t , wh i ch , as the object and test of eve ry determ i n ation according to e q u i t able pri n c i p l e s , calls for considered attention. As this Court o b s e rved in the Continental Shelf (Libyan A rab Ja m a h i ri ya / M a l t a ) c a s e : “It is however the goal – the equitable result – and not the means used to achieve it, that must be the primary element . . .” (I.C.J. Reports 1985, pp. 38-39, para. 45.) 32. The Court has at nu m e rous points in its Judgment re fe rred to the i m p o rtance of ach i eving an equitable result. Some of these re fe rences are detailed in paragraphs 7 and 8 of this opinion. In paragraph 54, the Ju d gment states that “ The aim in each and eve ry situation must be to ach i eve ‘an equitable re s u l t ’” and in paragraph 56 it concludes that : “there is inevitably a tendency towards assimilation between the special circumstances of A rt i cle 6 of the 1958 Convention and the relevant circumstances under customary law, and this if only because they both are intended to enable the achievement of an equitable result”. 33. Articles 74 (1) and 83 (1) of the 1982 Convention also highlight the importance of achieving an equitable solution. The Judgment, after referring to the “correction” of a median line delimitation in the Gulf of Maine case1, similarly rejects the application of the median line in this case as leading to “manifestly inequitable results” (para. 68) in view of the great disparity of the lengths of coasts. 34. This concern with equitable results, despite the application of equitable principles, procedures and methods, is well founded in the Court’s jurisprudence. The object of equitable principles is to obtain an equitable result. However equitable each principle may appear to be when considered in isolation, it may not necessarily produce an equitable result, as is demonstrated by the application of the equidistance principle to two opposite coastlines which are vastly different in length. As this Court has o b s e rve d, “the term ‘ e q u i t able pri n c i p l e s ’ cannot be interp reted in the 1

I.C.J. Reports 1984, p. 336, paras. 221-222.

Equity in a Global Context

253

abstract; it refers back to the principles and rules which may be appropriate in order to achieve an equitable result” (Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), I.C.J. Reports 1982, p.59, para. 70; emphasis added). 35. Even though, in the North Sea Continental Shelf cases, the Court appeared to stress the methods used, it also emphasized the importance of an equitable result, for, while it said that resort could be had “to various principles or methods, as may be ap p ro p ri at e, or a combination of them”, this was subject to the proviso that “by the application of equitable principles, a reasonable result is arrived at” (I.C.J. Reports 1969, p. 49, para. 90). So, also, the Court said: “it is necessary to seek not one method of delimitation but one goal” (ibid., p. 50, para. 92). 3 6 . This aspect was stressed also by this Court in the case concern i n g the Continental Shelf (Tu n i s i a / L i byan A rab Ja m a h i ri ya ): “The result of the application of equitable principles must be equitable. This terminology, which is generally used, is not entirely satisfactory because it employs the term equitable to characterize both the result to be achieved and the means to be applied to reach this result. It is, however, the result which is predominant; the principles are subordinate to the goal.” (I.C.J. Reports 1982, p. 59, para. 70). 3 7 . The diffe rence between the use of an equitable method and the a ch i evement of an equitable result was well brought out in the joint sepa rate opinion of Ju d ges Ruda, Bedjaoui and Jiménez de A r é ch aga in the Continental Shelf (Libyan A rab Ja m a h i ri ya / M a l t a) case: “To assert, as Malta has done, that the equidistance method should be applied, even if it produces a delimitation which is grossly disproportionate to the length of the relevant coasts, is an attempt to s u b o rd i n ate the equitable result to be ach i eve d, to the method a d o p t e d. This is pre c i s e ly the opposite of the fundamental rule of d e l i m i t at i o n , n a m e ly, t h at the method to be adopted should be just i fied by the equity of the re s u l t .” (I . C . J. Rep o rts 1985, pp. 82-83, p a ra. 20.) 38. The Gulf of Maine case drew a clear distinction between the applic ation of equitable cri t e ria and the re a ching of an equitable result. Th e p rocess by wh i ch the Chamber determined the boundary line has been a n a lysed as consisting of: (1) the delimitation of the boundary line through the use of equitable criteria – primarily the use of geographical configurations to set out the affected area and the subsequent equal division of that area; (2 ) the adjustment of that line, by the consideration of re l evant circ u mstances including ge ographic “ a n o m a l i e s ” and the pro p o rtionality of m a ritime area to coastal fro n t age ;

254

Universalising International Law

( 3 ) the checking of the equitableness of the result so reached, by examining other factors such as economic impact and resource use patterns.1 39. The Judgment was specially useful in separating some of the different elements included in the equitable process and showing how more than one element could be used in combination.2 4 0 . It is interesting also to note from the opinion of Ju d ge Oda in Tu n i s i a / L i bya t h at even as early as the 1958 Conve n t i o n “the idea of an e q u i t able solution, although not specifi c a l ly mentioned in A rt i cle 6 of the 1958 Conve n t i o n , l ay at the basis of that p rovision . . .” (I . C . J. Rep o rts 1982, p. 246, p a ra. 144; emphasis a dd e d ) . It is to be noted also that the Law of the Sea Convention uses the term “ e q u i t able solution” thus turning the spotlight on the equity of the re s u l t (see A rts. 74 and 83). 4 1 . H aving rega rd to the ove rall importance of the equitable re s u l t , it is not without interest that there is support in legal philosophy for the method of testing a solution by taking a view at its results. This add itional juristic basis for ch e cking a result for its equity or inequity comes f rom the “sense of injustice” wh i ch has an ancient history in the p h i l o s o p hy of juri s p ru d e n c e. This is bri e fly considered in Section V, p a ragraphs 104-109, b e l ow. 42. The foregoing discussion shows that all four aspects of equity dealt with in this section come into play in this case, and an approach to the application of equity in this fashion helps to focus attention upon the particular aspect under examination. II. Inap p l i c ability of Equity as a System Sep a rate from Law 43. It scarcely needs to be mentioned that the term equity, as used in the Court’s Judgment or in the context of international law, is quite distinct from its use to designate separate systems of judicial administration such as existed in some legal systems for the purpose of correcting insufficiencies and rigidities of the law. 4 4 . The equity of the common law system and the a e q u i t a s of the Roman law, exe rcised by the Chancellor and the p ra e t o r re s p e c t ive ly, were the systems par excellence which give the word equity such overtones of interference with the law. The term equity as used in the law of the sea naturally does not absorb such associated meanings. 1

See T.L. McDorman, P.M. Saunders and D.L. VanderZwaag, “The Gulf of Maine Boundary: Dropping Anchor or Setting a Course?”, 9 Marine Policy (1985), p. 100

Equity in a Global Context

255

45. In view of the substantial influence exercised by these systems on the development of international law, the heavy overtones of equity’s corrective influence over law tend to spill over into international law, necessitating a constant vigilance against this tendency. This is especially important, in relation to maritime delimitation, where there is a constant questioning as to whether the Court, in using equity, is overstepping its authority. As this Court observed in Tunisia/Libya: “In the course of the history of legal systems the term ‘equity’ has been used to define various legal concepts. It was often contrasted with the rigid rules of positive law, the severity of which had to be mitigated in order to do justice. In general, this contrast has no parallel in the development of international law; the legal concept of equity is a general principle directly applicable as law.” (I.C.J. Reports 1982, p. 60, para. 71.) 46. In view of the importance of equity in these two systems, a brief note upon them ensues. (a) Equity in common law 47. In the Norwegian Shipowners’ Claims case, the Permanent Court of Arbitration said: “The words ‘law and equity’ used in the special agreement of 1921 cannot be understood here in the traditional sense in which these words are used in Anglo-Saxon jurisprudence. The majority of international lawyers seem to agree that these words are to be understood to mean general principles of justice as distinguished from any particular system of jurisprudence of the municipal law of any State.”1 48. Some of the principles of equity, as evolved by the English Court of Chancery, may, however, be relevant to a matter concerning the law of the sea, not because they are part of the English law of equity, but because those principles accord with the concepts of general equity as more widely understood. Such concepts might conceivably include such notions as that equity looks to the intent rather than to the form, or that a person must not act contrary to his own representations on the faith of which others have acted. Items of State conduct, for example, may attract general principles of equity such as these. (b) Equity in civil law 49. The jus honorarium built up by the Roman praetor, through his p ra e t o rian edict, s e rved the purp o s e, a c c o rding to Pap i n i a n , of aiding, 1

Reports of International Arbitral Awards (RIAA), Vol. 1, 1922,p. 331.

256

Universalising International Law

supplementing or correcting the jus civile1 - a useful summary of three different functions served by Roman equity. Roman equity thus stood as a system separate from the jus civile, at any rate until Hadrian in A. D. 125 froze the form of the edict, after which it ceased directly to be a source of new law. The corrective function of aequitas up to that time included action contra legem. 50. Though equity continued to fertilize the Roman law thereafter, this was achieved largely through the work of the jurists acting through the interpretation and adaptation of the law rather than by standing in opposition to it.2 51. In view of the immense influence of the civil law upon international law, it bears repetition that the aequitas of the era of praetorian equity – a corrective equity standing separate from the law – is not an analogy for the equity of international law. The later tradition of the civil law, of law and equity integrating with each other to produce a harmonious whole, would be a truer analogy. III. The Categories of Equity 52. As observed earlier, the Court in its Judgment has not used equity ex aequo et bono. Nor has it used absolute equity or equity contra legem. (a) Equity ex aequo et bono 53. The issue has frequently been raised, in the context of maritime delimitation, as to whether the Court is resorting to a concept of equity more liberal than that which it is entitled to administer. This issue has come indeed to acquire the appearance of a question mark hanging over the use of equity in such cases and has resulted in frequent disavowals, in the jurisprudence of maritime delimitation, of resort to equity ex aequo et bono.3 54. The extent of the concern registered in this regard is indicated in juristic literature which specifically raises the question whether there is indeed a difference between the equity administered by the Court and equity ex aequo et bono. Judge Jennings alerts us to the attendant dangers of litigants obtaining a decision ex aequo et bono whether they wanted it or not, and observes: 1

“Adjuvandi, vel supplendi, vel corrigendi juris civilis” (D.1.1.7.1).

2

The equitable work of the jurists was fruitful, and important doctrines such as subrogation, estoppel and constructive notice resulted from their efforts. See W.W. Cook, in Encyclopedia of the Social Sciences, ed. Seligman, 1931, Vol. 5,p.584. Equity can do no less in international law.

3

See I.C.J. Reports 1974, p. 33, para. 78 and p. 202,para. 69; I.C.J. Reports 1982, p. 60, para. 71, and p. 92, para. 133 A (1); I.C.J. Reports 1984, p. 278,para. 59, and p. 299, para. 112; I.C.J. Reports 1985, pp. 38-39,para. 45, and pp. 56-57.

Equity in a Global Context

257

“At any rate, the very serious question arises of what exactly is the difference between a decision according to equitable principles and a decision ex aequo et bono?”1 The question raised is truly a very serious one, for if this is indeed the case, the Court is extending itself into an area which it can only reach by the consent of parties.2 Such uncertainties necessitate a close examination of the ex aequo et bono provision in Article 38, paragraph 2, of the Statute of the Court. 55. This phrase, which has its origins in the Roman law3 is defined in the standard works of reference in terms that involve justice, fairness and conscience. Thus Black’s Law Dictionary (5th ed., 1979, p. 500) defines it as a “phrase derived from the civil law, meaning, in justice and fairness; according to what is just and good; according to equity and conscience”. It will be seen that equity ex aequo et bono is thus not confined within limitations of existing rules of law but extends more widely, leaving aside considerations of what the law may be, regarding the matter under reference. It enters into the area of equity contra legem, as discussed below. 56. Equity ex aequo et bono, in the context of the Court’s jurisprudence, is perhaps best approached through a perusal of the drafting history of the ex aequo et bono provision in the Statute of the Court. 57. One could perhaps identify three stages in the travaux préparatoires leading to the adoption of Article 38 (2) of the Statute: (1) Earlier drafts of Article 38 of the Statute of the Permanent Court4 did not contain a subsection dealing with decisions ex aequo et bono. The draft section read as follows: “Dans les limites de sa compétence, telle qu’elle est déterminée par l’article 34, la Cour applique en ordre successif: 1. Les conventions internationales soit générales, soit spéciales, établissant des régles expressément reconnues par les Etats en litige; 2. La coutume internationale, attestation d’une pratique commune acceptée comme loi; 1

R. Y. Jennings, “The Principles Governing Marine Boundaries”, op. cit.,p. 401.

2

See Encyclopedia of Public International Law, op. cit., p. 77.

3

The related expression bonum et aequum means “right and equitable, fair(ness) and just(ice)” (Adolf Berger, Encyclopaedic Dictionary of Roman Law, 1952,p. 377) and appears,in Celsus’celebrated definition of jus as “ars aequi et boni”, cited at the very commencement of Justinian’s Digest (D.1.1.pr.). It appears,also,in the formula of actiones in aequum et bonum conceptae (Berger, ibid).

4

Draft Scheme for the Institution of the Permanent Court of International Justice Presented to the Council of the League of Nations by the Advisory Committee of Jurists,Art. 35 (corresponding to the later Article 38).

258

Universalising International Law

3. Les principes généraux de droit re c o n nus par les nations civ i l i sées; 4. Les décisions judiciaires et la doctrine des publicistes les plus q u a l i fiés des diff é rentes nat i o n s , comme moyens auxiliaires de déterm i n ation des régles de dro i t .” 1 (2) The discussions among the distinguished intern ational jurists participating in the drafting Committee’s meeting of 1 December 19202 are of great interest. Mr. Fromageot (France) wished to widen the wording of the then A rt i cle 35 in order to enable a judgment of the Court to confirm an arrangement reached by the parties – a result which was not possible under the existing wording of the A rt i cl e. In the course of the ensuing discussion, serious concerns were voiced about the effect of such an amendment. The Chairman (Mr. Hagerup) expressed the view that Mr. Fromageot’s idea belonged rather to the sphere of arbitral jurisprudence and that its ap p l i c ation would jeopard i ze the authority of a Court of Ju s t i c e. Mr. Fernandes (Brazil) expressed a fear that the amendment would open the way to arbitary decisions. Mr. Loder (the Netherlands) pointed out, however, that the Court would evidently not confirm proposals which we re not well fo u n d e d. During further discussion, M r. Fro m age o t amended his proposal to add to A rt i cle 35 (3) the further wo rds “the ge ne ral principles of law and justice”. He explained that the effect of his amendment would be to enable the Court to state as the sole reason for its judgment that the award had seemed to it to be just. He explained further that this did not mean that the Court might disregard existing rules. Mr. Fromageot’s amendment was adopted.3 (3) However, the amended A rt i cle 35 continued to cause concern. At the meeting of the Sub-Committee held on 10 December 1920, to adopt the final draft for submission to the Main Committee, it was the sole subject of further discussion. That discussion is recorded as follows: “ D u ring the discussion on the Pre s i d e n t ’s rep o rt , M. Po l i t i s ( G reece) raised the question whether the text of A rt i cle 35, No. 3, adopted by the Sub-Committee, did actually ex p ress the Sub-Comm i t t e e ’s opinion on the subject. This opinion wa s , a c c o rding to M. Po l i t i s , t h at the Court should have the right to ap p ly the ge n e ral principles of justice only by virtue of an agreement between the p a rties. The actual text was wider, in so far as it left it to the 1

Documents concerning the Action Taken by the Council of the League of Nations under Article 14 of the Covenant and the Adoption by the Assembly of the Statute of the Permanent Court, Geneva, 1921, p. 41 Annex.

2

Seventh Meeting of the Sub-Committee of the Third Committee of the First Assembly Meeting held on 1 December 1920.

3

Documents concerning Action Taken ..., op. cit., p. 145.

Equity in a Global Context

259

d i s c retion of the Court to decide when those principles could be ap p l i e d. M. Politis consequently proposed to alter the paragraph as fo l l ow s : The general principles of law and with the consent of the parties, the general principles of justice recognised by civilised nations. After some discussion, M. Fromageot (France) proposed to meet M. Politis’point by adding at the end of Article 35, No. 3, the following: This provision shall not prejudice the power of the Court to decide a case ex aequo et bono if the parties agree thereto. The Article thus amended was adopted.”1 58. In reporting this Article (renumbered Article 38) to the Main Committee, the Sub-Committee stated as follows: “The Sub-Committee has... made the following changes in the Article: .......................................................... (2) At the end of No. 3 it has added a new clause in order to give a more flexible character to this provision and to permit the Court, if necessary and with the consent of the Parties, to make an award ex aequo et bono.”2 Such was the genesis of the ex aequo et bono provision in Article 38 which has provoked so much reference in the cases on the application of equity in maritime boundary delimitations. 59. It is clear from this drafting history that earlier drafts of the Article were amended to allow for the possibility that parties could make their own agreements and ask the Court to embody them in a judgment, which the Court would do provided it conformed to general principles of law and justice. Thereafter even more flexibility3 was introduced by introducing a separate ex aequo et bono provision not necessarily tied to “general principles of law and justice,” and enabling the Court to make an order in accordance with its sense of justice if the parties so consented. There was clearly an ampler latitude given to the Court in an ex aequo et bono provision standing on its own rather than if the Court were to depend on a clause merely enabling it to decide in accordance with ge n e ral principles of law and justice. However the gre at e r 1 2 3

Documents concerning Action Taken . . ., op. cit., p.157 ibid., p. 211 “The notion ex aequo et bono had been little used before its addition to the PCIJ’s Statute and was included there, with little debate, arguably to give the Court somewhat greater flexibility.” (Janis, Encyclopedia of Public International Law, Vol. 7,p. 75)

260

Universalising International Law

reach of that clause necessitated the safeguard of resting it upon the agreement of parties. 60. The expression ex aequo et bono, viewed against this drafting history, shows quite clearly that the concept travels far beyond equity intra legem or praeter legem as discussed below.1 It refers to a decision untrammelled by rules of law but depending purely on the tribunal’s sense of justice. When, as in the present case, the Court uses equitable concepts and procedures which enter its jurisdictional field through routes other than Article 38 (2) and so long as the Court does not act contra legem, it is acting in a field far removed from the vast expanses of equity ex aequo et bono. However, within its far more limited field of operation, it is well entitled to use the full and appropriate range of equitable principles, procedures and methods without being inhibited by concerns that it is travelling beyoned its jurisdiction. 6 1 . If the conceptual ro a d bl o ck rep resented by ex aequo et bono is out of the way, a cl e a rer path opens out for a fuller and more confident use of equity in the development of the law of the sea. This aspect was well summ a ri zed in the N o rth Sea Continental Shelf c a s e s , wh e re the Court o b s e rved in the cl e a rest term s : “ when mention is made of a court dispensing justice or decl a ring the l aw, wh at is meant is that the decision finds its objective justifi c at i o n in considerations lying not outside but within the ru l e s , and in this field it is pre c i s e ly a rule of law that calls for the ap p l i c ation of equit able principles. Th e re is consequently no question in this case of any decision ex aequo et bono, s u ch as would only be possible under the conditions pre s c ribed by A rt i cle 38, p a ragraph 2, of the Court ’s S t at u t e.” (I . C . J. Rep o rts 1969, p. 48, p a ra. 88.) 2 ( b ) Absolute equity 62. This term, also inapplicable to the present case, connotes the applic ation of a just and fair solution irre s p e c t ive of whether it ove rrides ex i s t -

1

Chaim Perelman, in his study of lacunae in the law, makes the point in the context of arbitrations and judical decisions in public international law, that a request for a decision ex aequo et bono could be read “dans le sens contra legem” (Le problème des lacunes en droit, 1968, p. 327).

2

For similar expressions by other tribunals,see the statement of the Court of Arbitration in the Anglo-French Continental Shelf Arbitration Award (RIAA, Vol. XVIII,paras. 70 and 245; see, also, Guinea/Guinea-Bissau Arbitral Award (Revue générale de droit international public (1985), Vol. 89, paras,88 and 90) referring to the Judgment of this Court in the North Sea cases, and holding that its own function, likewise, was not to decide ex aequo et bono.

Equity in a Global Context

261

ing rules or principles of positive law, h owever well entre n ched they may b e. It is a disrega rd of the letter for the spirit of the law, a disrega rd of t e chnicalities in favour of justice 1. This would come close to the connotation of equity ex aequo et bono as discussed in the preceding section. 63. An illustrat ive and we l l - k n own example in the juri s p rudence of i n t e rn ational law of the use of the ex p ression “ absolute equity” is to be found in the O rinoco Steamship Co. c a s e, 1 9 1 0 , wh e re, in the wo rds of the Permanent Court of Arbitration, the compromis required the US-Venezuelan Mixed Claims Commission to “give their decisions on the basis of absolute equity without regard to objections of a technical nature, or to the p rovisions of local legi s l at i o n . . . .”. The Umpire's re c ognition of local l egi s l ation in dismissing the claims on account of fa i l u re to exhaust local remedies and the debtor's fa i l u re to notify the cession of the d ebt in accordance with local legi s l at i o n , was held to be a decision not in accordance with absolute equity and thus to be in disrega rd of the c o m p ro m i s2 . 64. The methods of equity ex aequo et bono and of absolute equity are not the methods of intern ational law. “A b ove all, it is necessary to stop viewing equity as something which is in opposition to the law or as supplying a corrective to the law.”3 (c) Equity praeter legem 65. This sense of equity re fe rs to filling in gaps and interstices in the l aw. Even wh e re there is no rule of law to provide for a mat t e r, a decsion has neve rtheless to be re a ch e d, for the judicial function does not perm i t the court to ab d i c ate the responsibility of judgment because the law is s i l e n t 4. Consequently, the gap 5 has to be filled in some manner. Some would say that the judge is free to act in his discretion. Others would say

1 2 3

4 5

See also Bin Cheng, “Justice and Equity in International Law”, Current Legal Problems, 1955, p.203. I Scott, Hague Court Reports (1916), p.226. Shabtai Rosenne, “The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law”,in A.Bloed and P.van Dijk(eds.), Forty Years International Court of Justice: Jurisdiction, Equity and Equality, 1988, p.108. See O. Schachter,“International Law in Theory and Practice”, 178 Recueil des cours (1982-V), Chap.IV, “General Principles and Equity”, p.85. The question whether there is a “gap”in the law or whether there is always a rule or principle of law which is capable of extension and application to the case in hand is a nice jurisprudential one which it is not necessary to examine here at length. For a fuller, and perceptive, discussion, see Vaughan Lowe, “The Role of Equity in International Law”, 12 Australian Yearbook of International Law (1988-1989),pp.58-63.

262

Universalising International Law

the judge then falls back upon equity as a guide. It is in this latter sense that the expression equity praeter legem is generally used. 66. In support of the view that equity should guide the judge in such c a s e s , it could be said that judicial discretion does not then roam unb ridled and at large, bu t , rat h e r, is used in a disciplined way along the lines indicated by equitable concepts and principles. Within the para m e t e rs of those guidelines, t h at discretion will then be exe rcised though no rule of law has so far been fo rmu l ated to gove rn the case. 67. Equity p raeter lege m re c e ives juridical justifi c ation also from the fa c t , outlined elsewh e re in this opinion, t h at the body of ge n e ral equitable p ri n c i p l e s , as part of “ ge n e ral principles of law ” , is itself part of intenational law. Indeed, viewed strictly from that point of view, it ceases to be a c at egory of its own but is merely an application of the law itself. 68. In the context of maritime delimitation, there are dicta in the jurisprudence of the Court that strongly support the view that the process in operation is one of the application of equity praeter legem: “Is not the conclusion therefore justified, to round off the enumeration of those international acts which refer to equity, that these acts constitute applications of the general principle of law which authorizes recourse to equity praeter legem for a better implementation of the principles and rules of law? And it would not be premature to say that the application of the principle of equity for the delimitation of the areas of the continental shelf in the present case would thus be in line with this practice.” (North Sea Continental Shelf, I.C.J.Reports 1969, p.141, Judge Ammoun, separate opinion1.) This aspect also receives some attention in the discussion, under item head VII (f) below, of the methods of equity. (d) Equity infra legem 69. This is the cat ego ry most re l evant to the Judgment of the Court , for it is within its confines that the equity used by the Court has been administered. As the Court observed in the North Sea Continental Shelf cases: “ when mention is made of a court dispensing justice or decl a ring the 1

See, also, the separate opinion of the same judge in Barcelona Traction, Light and Power Company. Limited,Second Phase (I.C.J. Reports 1970, pp.332-333), in relation to equity praeter legem and the sense which Papinian, the author of that expression, gave to it.

Equity in a Global Context

263

law, what is meant is that the decision finds its objective justification in considerations lying not outside but within the rules” (I.C.J. R ep o rts 1960, p.48,para.88). This was clearly a reference to equity infra legem1. 70. In re l ation the ge n e ral juri s p rudence of the Court , the operation of equity i n f ra lege m has been well summari zed by Shabtai Rosenne in t e rms that : “It [the Court] has permitted the first steps to be taken towards c re ating a conception of international equity, not contra legem in the sense that it is sometimes said that a decision ex aequo et bono may be a decision contra legem; but intra legem, it being the substantive law, and not the agreement of parties, that calls for its application.”2 71. Ju d ge Ammoun offe red an important wa rning against exceeding the limits of equity i n f ra lege m when he said, with re fe rence to its opposite, equity c o n t ra lege m: “ This conception of Equity, wh i ch re a l ly consists of a possibl e d e rogation from ge n e ral law in a particular case, has never been applied in intern ational law. An intern ational court wh i ch cofe rre d s u ch jurisdiction upon itself would appoint itself a legi s l at o r.” (B a rcelona Tra c t i o n , Light and Power Company, L i m i t e d, I . C . J. R ep o rts 1970, p . 3 3 3 , p a ra . 4 2 . ) 72. With special re fe rence to maritime delimitat i o n , a compre h e n s ive d o c t rinal study has noted that : “the doctrine of equitable principles ap p l i c able to maritime delimi t ation has alre a dy ach i eve d, both with rega rd to its pro c e d u ral and s u b s t a n t ive elements, a degree of cl a rity and pre d i c t ability wh i ch is s u fficient for it being re c og n i zed as a fundamental norm operat i n g w i t h i n , and not outside, the law ” . 3 (e) E q u i t y c o n t ra lege m 73. Needless to say, equity as used in the Judgment is not of this cat ego ry. The notion of equity being in opposition to the law and competing with it in some way by offe ring a set of altern at ive principles is not the 1

2 3

The fact that the judge must function infra legem, while the arbitr ator is free of those constraints, is mentioned by Aristotle in a passage quoted by Grotius : “For the arbitrator has regard to what is fair, but the judge follows the law” (De Jure Belli ac Pacis, Bk.III, chap.XX,sec.XLVII, Kelsey, trans., Classics of International Law). Shabtai Rosenne, The Law and Practice of the International Court, 1965, Vol. II, p.605. Barbara Kwiatkowska, “The International Court of Justice Doctrine of Equitable Principles Applicable to Maritime Delimitation and Its Impact on the International Law of the Sea”,in A. Bloed and P.van Dijk(eds.), Forty Years International Court of Justice: Jurisdiction,Equity and Equality, p.158.

264

Universalising International Law

i m age of equity that pro p e rly sets out the role of equity in intern at i o n a l l aw. This aspect has alre a dy been discussed in Section II. In intern at i o n a l l aw, equity is rather a fo rce that supplements the law and helps it fo r wa rd on its course of delive ring just results in disputes between part i e s . “[T] he Intern ational Court has been ve ry careful - and in this respect it may be possible to speak of a ‘position’ since fundamental questions of judicial policy are involved - to formulate its resort to ‘equity’ not in terms of ‘opposition’ to ‘law’, but in terms of fulfilling the law and if necessary supplementing it.”1 Judge Hudson, in the Diversion of Water from the Meuse case, also stressed this aspect when he said, “A sharp division between law and equity, such as prevails in the administration of justice in some States, should find no place in international jurisprudence.” (P.C.I.J.,Series A/B, No.70, p.76, separate opinion.) IV. The Routes of Entry of Equity 74. Th e re are many routes of entry of equity into intern ational law, a n d equity has been drawn into the judgmental process in this case thro u g h s eve ral of them. A concentration of attention on only one or other of these routes of entry can constrict the full scope of operation of equity in a give n c a s e. (a) Equity as required to be applied by treaties 75. In re l ation to the matter befo re the Court , t h e re is, of cours e, t h e p re-eminent example of A rt i cles 74 and 83 of the 1982 Law of the Sea C o nvention ex p re s s ly making equity ap p l i c able in the delimitation of m a ritime boundari e s . 76. The invocation of equity by treaty is often a means by which a developing branch of the law is brought into line with contemporary thinking, thereby enabling perspectives which have not yet crystallized into legal rules to make their impact upon the law in question. The Law of the Sea Convention exemplifies this process, which can also be seen in tre at i e s regarding contemporary concerns relating to earth resources such as food and space and in regard to economic matters and the settlement of disputes. Thus, the International Covenant on Economic, Social and Cultural Rights, 1966, deals with the “equitable distribution” of world food supplies (Art.II); and the Convention on Intern ational Liability for Damage Caused by Space Objects requires compensation to be determined in accordance with “ i n t e rn ational law and the principles of justice 1

Shabtai Rosenne, “The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law”, op.cit., pp.88-89.

Equity in a Global Context

265

and equity”. The Charter of Economic Rights and Duties of States, 1974, likewise uses terms such as “equity”, “equitable”, “just”, “equitable sharing”, “equitable prices”, “equitable terms of trade” (see Arts.10,14,26,28,29); and the Protocol of the Commission of Mediation, Conciliation and Arbitration of the Organization of African Unity specifically draws equity into the settlement of disputes (Arts.29 and 30).1 77. The specific invocation of equity by the Montego Bay Convention thus follows a time - honoured practice in international law, which can be traced back through the ceturies. 2 (b) Equity as contained in customary international law 78. Customary international law has been invoked in the Judgment as a source of equity, especially in the context of giving meaning to the ex p re ssion “ re l evant circ u m s t a n c e s ” under intern ational law (Ju d g m e n t , para. 56). Those relevant circumstances have been shown to be assimilated with the special circumstances of A rt i cle 6 of the 1958 Convention, as both are intended to enable the achievement of an equitable result (ibid.). 79. The Court is required by Article 38(1) of its Statute to decide such disputes as are submitted to it “in accordance with intern ational law ” . Th e re is an impre s s ive body of authority to the effect that equity is part of c u s t o m a ry intern ational law. Fri e d m a n n , w riting of the ch a n ging stru c t u re of intern ational law, has observe d : “There is thus overwhelming support for the view developed by Lauterpacht, Manley Hudson, De Visscher and Dahm that equity is p a rt and parcel of the modern system of administration of justice.” 3 1 2

3

See, further, Monique Chemillier-Gendreau, “Equity”, in Bedjaoui (ed.), International Law: Achievements and Prospects, 1991,pp.274-275. Cf. the Jay Treaty of 1794, which , by Article 7,provided that the Commissioners appointed under the Treaty to decide the matters in contention between Britain and the United States should decide the claims “according to the merits of the several cases and to Justice, Equity and the Law of Nations”. Judge Hudson has listed numerous bilateral treaties entered into during the intervening centuries which provide for the application of equity - such as the 1795 United States-Spain Treaty, the 1840 Great Britain-Portugal Treaty and the 1926 and 1930 Danish Treaties with Finland and lceland, respectively. See M.O.Hudson, The Permanent Court of International Justice, 1920-1942,1943 (1972 reprint), p.616 (footnotes). Friedmann, The Changing Structure of International Law, 1964,p.197,citing Hersch Lauterpacht, Private Law Sources and Analogies, 1927,para.28;Manley Hudson, The Permanent Court of International Justice, 1972 ed.,p.617; Charles De Visscher, “Contribution á l’étude des sources du droit international”, 60 Revue de droit international et de lègislation comparèe (1933),pp.325,414 et.seq.; Dahm, I Völkerrechts (1958), pp.40 et seq.

266

Universalising International Law

So, also, Judge Hudson observed in his individual opinion in the Diversion o f Water from the Meuse c a s e, “ Wh at are widely known as principles of equity have been long considered to constitute a part of intern at i o n a l l aw. . .” 1 - a view wh i ch re c e ived the support of Ju d ge Jessup in the N o rth Sea Continental Shelf c a s e s 2. In the Fi s h e ries Ju risdiction c a s e (United Kingdom v. l c e l a n d) , 3 Ju d ge Dillard cited this opinion with approval. Judge Hudson, writing extra-judicially, has observed, “equity is an element of international law itself.”4 80. In rega rd to the law of the sea and the delimitation of boundaries of the continental shelf and the ex cl u s ive economic zo n e, equity has been re c og n i zed by this Court as part of intern ational law - as in the N o rth Sea Continental Shelf cases 5 , and the Tunisia/ Libya c a s e. 6 Thus in the N o rt h Sea Continental Shelf c a s e s , the Court considered it inequitable that the c o nvexity or concavity of a coastline should deny equal tre atment to S t ates with coastlines that are comparable in length. 7 The re q u i rement of a degree of pro p o rtionality between the shelf awa rded to a State and the length of its coastlines was likewise looked upon as a principle of equity. S o , a l s o , equity did not re q u i re a “ re fa s h i o n i n g ” of ge ograp hy. 8 (c) Equity as a general principle of law9 81. Th e re are seve ral cat ego ries of ge n e ral principles of law applied by i n t e rn ational law; and equitable pri n c i p l e s , c o n c epts and pro c e d u re s , s u ch as have been applied in the Ju d g m e n t , find a place in more than one of them. 82. Citing the G e n t i n i case concerning intern ational law's re c og n i t i o n , t h rough equity, of the principle of pre s c ri p t i o n , while denying re c og n i t i o n of local laws of pre s c ri p t i o n , P ro fessor Bin Cheng stat e s : “The process applied in the Gentini Case (10) of tracing a general p rinciple from rules of positive law unive rs a l ly applied in fo ro Loc.cit. L.C.J.Reports 1969 ,p.84 I.C.J.Reports 1974, p.63,fn.1. The Permanent Court of International Justice, 1920-1942, 1972 ed. ,p.617. I.C.J. Reports 1969, p.48, para.88. I.C.J. Reports 1982, p.60, para.71. I.C.J. Reports 1969, pp.49-50, para.91. ibid The phrase is used in this form rather than in the now inappropriate phraseology refer ring to “civilized nations”. Sir Humphrey Waldock preferred the expression “general principles of law recognized in national legal systems”, and the shortened expression “the general principles of law” is perhaps adequate for present purposes (see North Sea Continental Shelf , I.C.J. Reports 1969, p.136, Judge Ammoun,separate opinion). 10 Venezuelan Arbitrations of 1903, p.720

1 2 3 4 5 6 7 8 9

Equity in a Global Context

267

d o m e s t i c o t h rough the ge n e ral feeling of mankind for the re q u i rements of equity and to equity itself, is a striking reminder of D e s c a m p s ’ p ro-posal for the ap p l i c ation in intern ational law of ‘ o b j e c t ive justice’ or ‘ e q u i t y ’ as evidenced by the ‘c o n s c i e n c e j u ridique des peuples civ i l i s é s’ and confi rms the belief draw n f rom the t ravaux préparat o i re s of the S t atute of the Pe rm a n e n t C o u rt of Intern ational Justice that this proposal is not ve ry diffe rent from the ultimat e ly adopted fo rmula of ‘the ge n e ral pri nciples of law re c ognised by civilised nations' in A rt i cle 381( c ) of the Court's Stat u t e.” 1 M a ny cl a s s i fi c ations of such ge n e ral principles are possible and the fi rs t t h ree items in a five - fold cl a s s i fi c ation by Sch a ch t e r 2 s h ow again under h ow many heads of this cl a s s i fi c ation the principles of equity used by the C o u rt could have been draw n : “(1) The principles of municipal law ‘ re c og n i zed by civ i l i zed n at i o n s ’ . (2) G e n e ral principles of law ‘ d e rived from the specific nat u re of the intern ational commu n i t y ’ . (3) P rinciples ‘ i n t rinsic to the idea of law and basic to all legal systems’....” 83. Equity in its ge n e ral sense, s u ch as the Court has used, finds place in all of these cat ego ries. Rega rding the fi rst cl a u s e, wh i ch of course is the l a n g u age of A rt i cle 38, p a ragraph 1( c ), of the Statute of the Intern at i o n a l C o u rt of Justice and the Pe rmanent Court of Intern ational Ju s t i c e, S ch a chter points out that some of the participants at the drafting stage of this clause had in mind equity and principles re c og n i zed by the “ l egal conscience of civ i l i zed nat i o n s ” 3 . Elihu Root, who prep a red the draft fi n a l ly a d o p t e d, had intended however to re fer to principles actually re c og n i ze d and applied in national systems.4 It would be correct to say also that international law, as discussed by eminent commentators5 and by this Court, has looked for universal acceptance by legal systems rather than purely municipally adopted principles for this purpose. Equity clearly comes under this head. Part C of this opinion deals with the universal aspect of equity in some greater detail. 1 2 3 4 5

General Principles of Law as Applied by International Courts and Tribunals, 1987,pp.377-378. Op.cit., p.75 Ibid. Ibid., p.76 See Wilfred Jenks, Common Law of Mankind, 1958,p.106;Wolfgang Friedmann,The Changing Structure of International Law, 1964, pp.188-210; and Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987, p.377.

268

Universalising International Law

84. The second cat ego ry would comprise such principles as pacta sunt s e rva n d a1 wh i ch came into intern ational law from the nat u ral law tra d i t i o n wh i ch was inex t ri c ably linked with equity in the broader sense. The third c at ego ry includes such ideas as re c i p rocity and equality of parties befo re a tri bu n a l , wh i ch are basic to all law. 85. The special influence of equity in its ge n e ral sense is evident in all these cat ego ries and as the concept of a common law of mankind gat h e rs momentum and principles re l ating to an equitable sharing of re s o u rc e s become more urge n t ly re q u i re d, this route of entry of equity will perhap s assume increasing importance in developing the law of the sea. 86. Sch wa r ze n b e rge r, in commenting on “ ge n e ral principles of law re c ognised by civilised nat i o n s ” as contained in the Statute of the Court , lists seven ach i evements of the draftsmen of that cl a u s e. One of them, wh i ch fi t t i n g ly summari zes this discussion is that , “ Th ey [the dra f t s m e n ] opened a new channel through wh i ch concepts of nat u ral law could be re c e ived into intern ational law.”2 Equity would rep resent a heavy item of t ra ffic along that ch a n n e l . (d) Equity as embodied in the decisions of courts and tribunals 87. Article 38, paragraph 1 (d), of the Court's Statute mentions that, subject to the consideration that decisions of the Court shall have no binding force except between the parties and in respect of the particular case, judicial decisions shall be a subsidiary means for the determination of the law. 88. The jurisprudence of this Court has now reached a stage where a considerable body of equitable principles is contained within the deci-sions of the Court and where there is frequent resort to equity as an aid towards the process of decision.3 Through their adoption by the Court, they have thus entered the mainstream of international law. 89. The Fi s h e ries case (I . C . J. R ep o rts 1951, p.116) is an outstanding

1 2 3

Schachter, op.cit.,pp.79-80 As set out in his Foreword to Bin Cheng's General Principles of Law as Applied by International Courts and Tribunals, 1987, p.xi. See, for example, Barcelona Traction, Light and Power Compan y, Limited, Second Phase,I.C.J. Reports 1970, p.48, para.94: “ It must first of all be observed that it would be difficult on an equitable basis to make distinctions according to any quantitative test....The protector State may, of course, be disinclined to take up the case of the single small shareholder, but it could scarcely be denied the right to do so in the name of equitable considerations.”

Equity in a Global Context

269

e a rly ex a m p l e1, but since then there has been mu ch development of this c o n c ept in the context of maritime delimitation through a series of decisions of this Court making explicit re fe rences to the ap p l i c ation of equit able pri n c i p l e s . 90. The heavy reliance in the Judgment on judicial decisions thus d raws in equity through yet another sourc e. Dependence on such cases as the N o rth Sea Continental Shelf c a s e s , the L i bya / M a l t a case and the G u l f of Maine case has provided ave nues not only for the entry of equity into maritime delimitation but for the constru c t i o n , out of those equitabl e p ri n c i p l e s , of a coherent body of equity-based maritime juri s p ru d e n c e. A ny consideration of pro blems re l ating to the law of the sea must thus, a s in this case, h ave rega rd to this considerable body of decisions wh i ch , t h rough their adoption of equitable pri n c i p l e s , h ave made the fe rt i l i z i n g i n fluence of equity an integral part of maritime law. (e) Equity as expounded in the writings of the publicists 91. Going back to the fountainheads of intern ational law, one sees that G rotius incorp o rated into intern ational law the idea that equity could complement the administration of intern ational justice, for he cites A ri s totle's re fe rences to “the perc eption of wh at is fa i r ” , “the quality of fa i rn e s s ” , and “ j u s t i c e ” . 2 A ristotle's definition of justice as “the correction of t h at in wh i ch the law, by reason of its ge n e ral ch a ra c t e r, is at fa u l t ” is also cited. Indeed, Grotius' comment goes so far as to suggest even the application of equity “outside the rules of justice, p ro p e rly so-called”. Grotius is no doubt here using the term “rules of justice” in the sense in which we would speak of “rules of law”. 92. One cannot fail to note, in this rega rd, the heavy reliance by Gro t i u s on nat u ral law, in his pioneering wo rk on the construction of the basic p rinciples of the law of the sea. The law of the sea may perhaps be d e s c ribed as an area of intern ational law wh i ch is part i c u l a rly sensitive to e q u i t able infl u e n c e s . 93. The process initiated by Grotius goes on to this day and the gre at p u blicists of each ge n e ration have, t h rough their own wri t i n g s , i n c o rp o rated considerations and principles of equity into their contri bu t i o n s , wh i ch have been assimilated into the corpus of public intern ational law 3 1 2 3

See S.Rosenne, The Law and Practice of the International Court, 1965, Vol.II,p.605. Grotius, De Jure Belli ac Pacis (1646), Bk.II, Chap.XVI,see.XXVI; see, also,Bk.III, Chap.XX, sec.XLVII (Kelsey ,trans., Classics of International Law, 1925,pp.425,824). With specific reference to the law of the sea, a number of eminent modern publicists,some of whom have been referred to in this opinion, are keeping up this tradition and making a distinguished contribution to this fast-developing field.

270

Universalising International Law

(f) Equity as justice 94. In the North Sea Continental Shelf cases, the Court stated, “Whatever the legal reasoning of a court of justice , its decisions must by definition be just and therefore in that sense equitable.” (I.C.J.Reports 1969,p.48, para.88) Equity as part of justice which the court is bound to administer then becomes part of its general jurisprudence. Equity in the sense of a quest for the just solution offers a firm substratum for a con-siderable part of the Court's reasoning. 95. In his sep a rate opinion in B a rcelona Tra c t i o n , Light and Powe r C o m p a ny, L i m i t e d, Second Phase, Ju d ge Fi t z m a u ri c e, citing a standard wo rk on equity (Snell's Principles of Equity, 26th ed. , 1 9 6 6 , p p . 5 - 6 ) , s a i d : “as the author of the passage cited points out...equity is not d i s t i n g u i s h able from law ‘because it seeks a diffe rent end, for both aim at justice. . .’ B u t , it might be add e d, t h ey can ach i eve it only if t h ey are allowed to complement one another.” (I . C . J. R ep o rts 1970, p . 8 6 , p a ra . 3 6 . ) 96. In Continental Shelf (Tu n i s i a / L i byan A rab Ja m a h i ri ya ), this Court o b s e rve d, “Equity as a legal concept is a direct emanation from the idea of j u s t i c e. The Court whose task is by definition to administer justice is bound to ap p ly it.” (I . C . J. R ep o rts 1982, p . 6 0 , p a ra . 7 1 ) This Court and its predecessor have of course been careful to point out that the fact that it dispenses justice does not entitle it to ignore the rules of law. The need to administer justice does not, in the words of the Pe rm a nent Court, entitle it to “base its decision on considerations of pure expediency” (Free Zones of Upper Savoy and the District of Gex, P.C.I.J., Series A, No. 24, p.15). 97. Kelsen and some other authori t i e s 1 h ave ex p ressed the view that the court's function is to decide cases in accordance with intern ational l aw and on no other grounds. Kelsen say s , for ex a m p l e, t h at the Statute of the Court re q u i res that the Court decide disputes in accordance with i n t e rn ational law and does not mention justice, thus leading to the view t h at the Court is not authori zed to decide disputes in accordance with j u s t i c e. 2 98. Such view s , with gre at re s p e c t , do not take into account the fact that mu ch of intern ational law alre a dy embodies equity, and that equity was a p rincipal route through wh i ch many basic concepts entered the corpus of 1 2

E.g., Judge Koretsky in North Sea Continental Shelf cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands, I.C.J.Reports 1969, p.165. Kelsen, The Law of the United Nations, 1950, p.366.

Equity in a Global Context

271

i n t e rn ational law and became part of it. Th ey also do not take into account the fact that to shut the gates to the entry of this stream of influence into the corpus of intern ational law is to cramp the development of the lat t e r. (g) Equity as drawn in by the United Nations Charter 99. The Charter of the United Nations in Article 1 sets out as one of the Purposes of the United Nations that “To maintain international peace and security” it shall “bring about by peaceful means, and in conformity with the principles of justice and intern ational law, [the] adjustment or settlement of intern ational disputes... ”. The Intern ational Court has been set up within that fra m ewo rk as one of the principal organs of the United Nations and is thus obl i ged to act in the adjustment and settlement of intern ational disputes “in confo rmity with the principles of justice and i n t e rn ational law”. Equity as an inherent part of justice, if not of intern ational law itself, thus enters into the Court's juri s p ru d e n c e. Its signifi cance in this rega rd can be measured from the fact that the maintenance of i n t e rn ational peace and security being among the fo remost of the objects of the United Nations and all its age n c i e s , a pri m a ry means of ach i ev i n g this object, n a m e ly, the principles of justice and intern ational law mu s t t h e m s e l ves have pri m a ry import a n c e. Indeed, justice and equity are i n h e rent at t ri butes of peace itself, wh i ch is fo remost among the objects i n t e rn ational law aims at ach i ev i n g. 1 The obl i gat o ry nat u re of this aspect becomes clearer when one considers also that the earlier draft of the Charter contained the words “with due regard to justice and international law” which were changed to “in conformity with” as the earlier phrase was not considered to be sufficiently emphatic.2 100. So, a l s o , the Pre a m ble to the Charter ex p resses as one of the fountainheads of the whole concept of the United Nations the determ i n ation of the peoples of the United Nations “to establish conditions under wh i ch justice and respect for the obl i gations arising from tre at i e s and other sources of intern ational law can be maintained”. Shab t a i Rosenne ri g h t ly uses this aspect to point out that the unity of equity with law and justice must there fo re be seen in terms of a “ m o n a d ” of e q u i t y, l aw and justice (connoting a lack of opposition among them)

1

2

See Annuaire de 1'AAA, 1972/1973, Vol.42/43, Editorial by Boutros Boutros-Ghali, p.4 on the need for international lawyers of the future “à affronter les problèmes complexes d'un monde nouveau, oü le droit international devrait établir une paix durable, juste et équitable” Documents of the United Nations Conference on International Organization, Vol.VI, San Francisco, 1945, p.454.

272

Universalising International Law

rather than the “ t ri a d ” of law, justice and equity concep t u a l i zed by Sohn. 1 101. It needs scarcely to be stressed that every portion of the Charter is as basic to the operation of the Court as the Court's own Statute, for the two are one integrated document. The Court's warrant to use equity in this case as in all others is thus mandatory and comes direct to it from its funda-mental statutory source. It is worthy of note, also, that the intimate link-age of justice and equity as set out in the United Nations Charter, with the law of the sea, was eloquently underlined by the President of UNCLOS III, Mr.H.S.Amerasinghe, at the very commencement of the Conference, when he said, in his opening address as President: “If the Confe rence re s o l ved to be guided by the principles of justice and equity, and if it showed a spirit of mutual unders t a n d i n g, go o dwill and compro m i s e, it would not only be living up to the high ex p e c t ations of the United Nations Charter but also handing down to p o s t e rity one of the supreme ach i evements of the Orga n i z at i o n .” 2

(h) Equity as embodied in State practice 102. A number of items of State practice have been placed befo re the C o u rt in support of propositions concerning their re s p e c t ive positions wh i ch the Pa rties seek to infer from them. State practice would within limits be ev i d e n t i a ry of customary intern ational law. In so far as the Stat e p ractice relied upon re l ates to the delimitation of maritime boundari e s , i t is important to note that equitable considerat i o n s , s u ch as the principle of e q u i d i s t a n c e, often provide the back ground against wh i ch States nego t i ate on such mat t e rs. The resulting arra n gements may there fo re incorp orate principles of equity. To the extent that State practice helps to build up i n t e rn ational law, i n t e rn ational law would then have, built into it thro u g h this sourc e, some of the principles of equity. Concre t i zed in this fa s h i o n , their equitable ori gins may be obscure d, but we may neve rtheless sometimes re c og n i ze them in the State practice they helped to evo l ve.

1

2

S.Rosenne, “The Position of the International Court of Justice on the Foundations of the Principle of Equity in International Law”, op. cit., pp. 88-89. Sohn's view was expressed in “The Role of Equity in the Jurisprudence of the International Court of Justice”,in Mélanges Georges Perrin (1984), p.303. Official Records of the Third United Nations Conference on the Law of the Sea,Vol.1, p.4,para.16.

Equity in a Global Context

273

V.A priori and a posteriori Employment of Equity (a) The positive or a priori use of equity to construct a result 103. The positive use of equity would of course be illustrated in the Court's Judgment by the application of equitable concepts and the use of equitable procedures and methods towards the achievement of an equitable result. (b) The negative or a posteriori use of equity to test a result 104. This has been touched on alre a dy in paragraphs 31-42. It was there pointed out that the ap p l i c ation of the equidistance pri n c i p l e, itself a p rinciple of equity, can on occasion yield a result wh i ch is not equitabl e, as pointed out by this Court on more than one occasion. Wh e re there is a vast dispro p o rtion in coastlines, as in the L i bya / M a l t a c a s e, t h at would be a means for using equity in the sense of testing whether the result would be inequitable. So, also, in the present case, the vast disproportion between the lengths of the coastlines of Greenland and Jan Mayen has been used in testing whether the result obtained by equitable principles and methods is in fact inequitable. Such a role of equity can indeed be looked at as “not so much the positive assurance of an equitable result as the negative avoidance of an inequitable one”1, but it has both practical value and theoretical justification. 105. The use of equity in this sense is analogous to the use of injustice as a test of justice, wh i ch has a long history in philosophical thought. Although justice by its ve ry nat u re is incap able of compre h e n s ive fo rmul at i o n , injustice by its ve ry nat u re is often a matter of instant detection. L i kew i s e, though that wh i ch is equitable cannot be fo rmu l ated in adva n c e in terms of a compre h e n s ive set of ru l e s , 2 t h at wh i ch is inequitable can be re a d i ly identified as such when a situation has occurred or a proposal is m o o t e d. 106. This line of thought rega rding justice has an ancient lineage. 3 A ristotle wrote in the N i c o m a chean Ethics rega rding the sense of injustice that , “ The many fo rms of injustice make the fo rms of justice quite 1 2

3

Prosper Weil, The Law of Maritime Delimitation: Reflections, 1989, p.166. Cf.Kelsen, Was ist Gerechtigkeit? 2nd de., Vienna, 1975, p.43 -” 1ch weiss nicht und kann nicht sa gen was Gerechtikgeit ist...und kann nur sagen was Gerechtigkeit für mich ist”(“I do not know and cannot say what justice is... and can only say what justice is to me”) See Julius Stone, Human Law and Human Justice, 1965, p.316.

274

Universalising International Law

clear”1, a theme also taken up by modern jurists.2 Whereas the response to the concept of justice is merely contemplative, the response to a situation one senses as unjust is a more positive one.3 The enlistment of the sense of injustice in the service of justice thus enjoys strong philosophical justification. The “sense of injustice” is “largely retrospective and cor-rective”, while “the deficiencies it identifies can be finally repaired only by a body of doctrine that is prospective and creative”.4 This is an illustration of the fact that “theories of justice in all their rich diversity of content and mode of presentation, cannot safely be discarded even from the most practical concern”.5 107. In short, “ We are confronted here with the diffe rence betwe e n , on the one h a n d, the question of the definition of equity in ab s t ra c t o a n d, on the other hand, the question of whether a c o n c re t e s i t u at i o n , m e a s u re or decision is equitabl e.” 6 108. All this is not to say, h oweve r, t h at re l evant rules of equity ap p l i cable to a given object can never be fo rmu l ated in adva n c e. Th ey can, up to a point, as the juristic learning on that topic mat u re s , but they can neve r be formulated totally and the sense of injustice or the sense of the inequitable will always continue to offer assistance in the pursuit of the equitable solution. 109. With re fe rence to boundary delimitat i o n , no code of justice or e q u i t y, h owever pre c i s e ly fo rmu l at e d, can cover all possibilities in a dva n c e. Howeve r, a solution once pre s e n t e d, can immediat e ly at t ract a sense of injustice, wh i ch would then result in its rejection and the s e a rch for another wh i ch does not produce the same reaction. The stre s s upon the need for an equitable solution and the rejection of any solution wh i ch , though re a ched in accordance with equity, is inequitabl e, is thus one wh i ch has philosophical support .

1 2 3. 4 5 6

Nicomachean Ethies, V.i.5.See, also, Aquinas' Commentary on the Nicomachean Ethics, 5.1. Cf.Plato's Republic, 440C- D See E.N.Cahn, The Sense of Injustice, 1949; Julius Stone, op.cit., p.316 Cahn, op.cit., p.13 I. Jenkins,“Justice as Ideal and Ideology”, in Nomos, Justice 191, cited in Stone, op.cit., p.317 Stone, op.cit., p.321 P. van Dijk, Nature and Function of Equity in International Economic Law, Grotiana New Series, 1986, Vol.7, p.5

Equity in a Global Context

275

VI. The Uses of Equity 110. The uses of equity are manifold and more than one of them may be in operation simu l t a n e o u s ly in a given case such as that befo re the Court . This aspect of equity is best ap p re c i ated by using any of the we l l - k n ow n cl a s s i fi c ations of the use of equity. Oscar Sch a chter's analy s i s , for ex a m p l e, in his course on ge n e ral intern ational law at the Hague A c a d e my in 1982 itemized five uses 1 : (a) equity as a basis for “individualized” justice tempering the rigours of strict law; (b) equity as introducing considerations of fairness, reasonableness, and good faith; (c) equity as offe ring certain specific principles of legal re a s o n i n g a s s o - c i ated with fa i rness and re a s o n abl e n e s s , to wit, e s t o p p e l , unjust enri chment and abuse of ri g h t s ; (d) equity as furnishing equitable standards for the allocation and s h a ring of re s o u rces and benefi t s ; (e) equity as a broad synonym for distri bu t ive justice and to sat i s f y demands for economic and social arra n gements and re d i s t ri bu t i o n of we a l t h . 111. To this list may be added some others such as those listed below as methods of operation of equity. There may be some ove rl ap between the two groups, for some of these uses of equity may also be listed as methods and vice versa. 112. Of the five cat ego ries listed ab ove, it is clear that at least the fi rs t four have re l evance to this case. 1 1 3 .( a ) Though Sch a chter mentions “ i n d iv i d u a l i zed justice” in the sense of tempering the ri go u rs of strict law, equity can be used to delive r “ i n d iv i d u a l i zed justice” without in fact operating in conflict with a rule of l aw. The use of equity in this sense for maritime delimitation was well put by Ju d ge Jimenez de A re ch aga in the Tu n i s i a / L i bya c a s e ; “the judicial ap p l i c ation of equitable principles means that a court should render justice in the concrete case, by means of a decision s h aped by and adjusted to the re l evant ‘ factual mat ri x ’ of that c a s e. Equity is here nothing other than the taking into account of a c o m p l ex of historical and ge ographical circumstances the considera tion of wh i ch does not diminish justice bu t , on the contra ry, e n ri ch e s it”. (I . C . J. R ep o rts 1982, p . 1 0 6 , p a ra . 2 4 , s ep a rate opinion.) 1

Schachter, op.cit., p.82

276

Universalising International Law

114. In many cases of maritime disputes including the present this aspect is of gre at re l eva n c e, for each case calls for indiv i d u a l i zed tre atment within the context of wh at ever rules of customary or tre aty law may be relevant. No conflict with those rules is implied but an operation within them, as more fully discussed in the section on equity intra legem. This use of equity to help shape the decision to the “factual mat ri x ” of the case is very much in use in the present case as evidenced by the variety of factors considered by the Court, at least one of which - the ice factor - has perhaps not been considered in the Court’s jurisprudence before. 115. The rationale of the indiv i d u a l i zed ap p ro a ch was also we l l ex p ressed by Ju d ge Jimenez de A r é ch aga in the fo l l owing terms : “Its [the Court ’s] having authority to ap p ly equitable pri n c i p l e s does not entitle a court to re a ch a cap ricious decision in each part i cular case, but to reach that decision which, in the light of the individual circumstances, is just and fair for that case. Equity is thus achieved, not merely by a singular decision of justice, but by the justice of that singular decision.”1 116. (b) Equity as considerations of fairness and reasonableness is also clearly in operation in this case. 117. (c) Equity as the basis of specific principles of legal reasoning has also been used, as when the Court considers whether the conduct of p a rties has been such as to amount to an estoppel. This becomes re l eva n t in the present case in assessing, for ex a m p l e, the effect of the past conduct of the Pa rties in re l ation to equidistance in demarc ating boundari e s . 118. ( d ) E q u i t able standards for the allocation and sharing of re s o u rces and benefits of course lie at the heart of this dispute and in the c o n t ext of the sharing of nat u ral re s o u rces it has been shown elsewh e re in this opinion that equity is playing an incre a s i n g ly important intern at i o n a l ro l e. 119. Useful analogues to equity’s role in re l ation to the sharing of mari time space come from space law and ri p a rian law. Space law takes in the c o n c ept in the Moon Tre at y, 1979 (Agreement gove rning the A c t ivities of S t ates on the Moon and other Celestial Bodies), wh i ch pre s c ribes “ t h e e q u i t abl e s h a ring by all States part i e s ” in the benefits derived from those re s o u rces and also in the allocation of “ s l o t s ” for the ge o s t at i o n a ry commu n i c ation satellites in outer space. The re l evant tre aties dealing with the a l l o c ation of these slots, s u ch as the Convention of the Intern ational 1

E. Jiménez de Aréchaga,“The Conception of Equity in Maritime Delimitation”, in International Law at the Time of Its Codification : Essays in Honour of Roberto Ago, 1987, Vol. II,p. 232.

Equity in a Global Context

277

Telecommunication Union, invoke equity for this purpose through their reference to “equitable access” as a goal. 1 120. A closer analogy, wh e re a re s o u rce is to be divided between two S t at e s , would be the rights of littoral and ri p a rian States to lakes and rive rs. The Lac Lanoux A r b i t ration of 1957 between France and Spain2 i s an illustration of equitable principles of good faith and a just balance b e t ween the interests of the parties being used to determine the re s p e c t ive rights of two States. The Helsinki Rules on the Uses of the Waters of International Rivers (adopted by the International Law Association in 1966) and the Resolution on Pollution of Rivers and Lakes (adopted by the Institut de droit international in 1979) show a heavy dependence on equity in relation to the sharing of resources. 121. ( e ) Equity in the sense of distri bu t ive justice and re d i s t ri bution of wealth is not invo l ved in the present case. With re fe rence to mari t i m e b o u n d a ry delimitat i o n , this Court has observe d : “While is clear that no rigid rules exist as to the exact weight to be attached to each element in the case, this is very far from being an exercise of discretion or conciliation; nor is it an operation of distribu t ive justice.” (Continental Shelf (Tu n i s i a / L i byan A rab Ja m a h i ri ya ) . I . C . J. Rep o rts 1982, p. 60, p a ra. 71.) VII. The Methods of Operation of Equity (a) Through balancing the interests of the parties 122. True equity, it has been said, “consists in holding in the best equilibrium the considerations of equity invoked by both parties”. 3 The Judgment in this case has considered a number of circumstances and evaluated their resultant effect in a manner that can be so described. This is not only a well-accepted method of equity, but has ample support from the jurisprudence of this Court and of arbitral tribunals in maritime delimitation cases. 123. In the Tunisia/Libya case, the Court defined its task as an obligation 1 2 3

M.A. Rothblatt,“Satellite Communication and Spectrum Allocation”,76 American Journal of International Law (1982), p.56. International Law Reports, 1957, pp.139,141. Bin Cheng, General Principles of Law as Applied by International Courts and Tribunals, 1987, pp.48-49, citing the Pinson case (1928) as contained in Jurisprudence de la commission franco-mexicaine des récla mations (1924-1932), p.133.

278

Universalising International Law

“to balance up the various considerations which it regards as relevant in order to produce an equitable result” (I.C.J. Reports 1982, p. 60, para. 71). 124. Ju d ge Jiménez de A r é ch aga , in his sep a rate opinion in the same c a s e, pointed out that : “To resort to equity means, in effect, to appreciate and balance the relevant circumstances of the case, so as to render justice, not through the rigid application of general rules and principles and of formal legal concepts, but through an adaptation and adjustment of such principles, rules and concepts to the facts, realities and circumstances of each case.” (Ibid., p.106, para. 24. See, also, ibid,. Judgment, paras. 71 and 107 on the “balancing process”.) The process outlined by Judge Jiménez de Aréchaga describes very closely the process followed in the Judgment of the Court. 125. This notion of the balancing of considerations to reach an equitable result goes back very far in international law. The decisions of the Commissions set up under the Jay Treaty of 1794 1, and authorized to employ equity in their determinations, have been analysed as having been reached through “the necessary process of adjustment, of the weighing of one consideration against another.”2 126. A re fe rence to the process of balancing up all re l evant considerations was made also in the N o rth Sea cases wh e re the Court observe d: “In fact. there is no legal limit to the considerations wh i ch Stat e s m ay takes account of for the purpose of making sure that they ap p ly e q u i t able pro c e d u re s , and more often than not it is the balancing-up of all such considerations that will produce this result rather than reliance on one to the ex clusion of all others .” (I . C . J. Rep o rt s 1 9 6 9, p . 5 0 , p a ra. 93.) 127. The Tri bunal hearing the D e l i m i t ation of the Continental Shelf b e t ween the United Kingdom and Fra n c e c a s e 3 also engaged itself specifi c a l ly in the task of balancing the fa c t o rs presented to it by the re s p e c t ive p a rties in determining the boundary line in the Channel Islands. 128. Of comparat ive intere s t , f rom a re l ated area of the law, is the fo ll owing methodology described in A rt i cle V, p a ragraph 3, of the Helsinki Rules on the Uses of Wat e rs of Intern ational Rive rs : 1

2 3

A Treaty of Amity, Commerce and Navigation between the United States of America and Great Britain providing for the creation of three mixed commissions of American and British nationals to settle a number of outstanding questions between the two countries. Moore’s analysis,as cited by H. Lauterpacht in The Function of Law in the International Community, 1933, p.121,fn.4.See, also, p.132. Decision of 30 June 1977, RIAA,Vol.XVIII, pp.87-95, paras. 180-202.

Equity in a Global Context

279

“ The weight to be given to each factor is to be determined by its i m p o rtance in comparison with other re l evant fa c t o rs. In determ i n ing wh at is a re a s o n able and equitable share, all re l evant fa c t o rs are to be considered together and a conclusion re a ched on the basis of the wh o l e.” (b) Through an equitable interpretation of a rule of law or of a treaty or set of facts 129. One of the important functions of the equitable ap p ro a ch in all judicial processes is to provide a method of interp re t ation. This can re l at e to the interp re t ation of a rule of law or of a document, or indeed of a set of facts. Literal interpretations, wedded to the letter of the law and to formali s m , c o n t rast with liberal interp re t at i o n s , based upon an equitabl e ap p ro a ch. Whether it be a rule of law or a tre aty or a factual situation that is under interp re t at i o n , the same duality of ap p ro a ch is possibl e, w i t h w i d e ly va rying consequences. 130. Schwarzenberger spells out this aspect of equity in terms that, “ The rule of equity, as it has grow n , demands re a s o n ableness and good faith in the interp re t ation and ap p l i c ation of tre at i e s .” 1 131. This could be more specifically addressed in terms of a choice not between two but among several available interpretations. In the words of De Visscher: “Equity can be something other than an independent basis of decision, as when in a decision which in other respects is founded on positive law (intra legem), the judge chooses among several possible i n t e rp re t ations of the rule the one which appears to him, having regard to the particular circumstances of the case, most in harmony with the demands of justice.”2 132. In this case, one of the major questions add ressed by the Court has been the interp re t at i o n , in accordance with equity, of the “special circ u ms t a n c e s ” mentioned by the 1958 Conve n t i o n . (c) Through tempering the application of strict rules 133. This is the classical Aristotelian concept of equity, described thus by Aristotle, in the Nicomachean Ethics: “ The reason for this is that law is always a ge n e ral stat e m e n t , ye t t h e re are cases wh i ch it is not possible to cover in a ge n e ral

1 2

Schwarzenberger, “Equity in International Law”, Yearbook of World Affairs, 1972, p.346,at p.357. Charles De Visscher, Theory and Reality in Public International Law, trans. P.E.Corbett, Princeton, 1957, p.336.

280

Universalising International Law

statement... This is the essential nature of the equitable : it is a rectification of law where law is defective because of its generality.”1 134. Equity could thus adopt a dominant attitude and correct a law that is defe c t ive, or adopt a soft or more lenient interp re t ation of a law, t h u s t e m p e ring its ri gidity without conflicting with it. The fo rmer attitude is, a s a l re a dy noted, i n ap p l i c able to intern ational law. 135. Howeve r, the latter aspect of fl ex i b i l i t y, wh i ch is re l eva n t , is capt u red by A ristotle in the same wo rk in his comparison of the indefi n i t e n e s s of equity to the “leaden rule used by Lesbian bu i l d e rs ” , wh i ch “is not ri gi d but can be bent to the shape of the stone.” 2 In the context of mari - t i m e d e l i m i t at i o n , e a ch case presents upon the facts a diffe rent shape fro m eve ry other, and equity adjusts itself around that shape in the manner d e s c ribed because it is fl ex i bl e, wh e re a ri gid rule would scarc e ly do it j u s t i c e. The Judgment in this case does no less. (d) Through the choice of an equitable principle 136. This is an aspect re l evant to the judicial processes invo l ved in the p resent case, for there are many equitable principles (and pro c e d u res and methods) that can be used. The Court , for reasons stat e d, has made its choice among these in deciding upon the line of delimitation it has chosen. 137. The judicial function by its ve ry nat u re invo l ves a choice among competing principles all of wh i ch in one way or another have re l evance to the matter in hand. Wh at principles a court adopts from the ra n ge of choice ava i l able is determined by a weighing of considerations such as those of re l eva n c e, i m m e d i a cy to the pro bl e m , p ractical value in the particular circ u m s t a n c e s , and the degree of authority of the pri n c i p l e. Th e s e a re mat t e rs in wh i ch a court ’s ex p e rience and sense of judgment will provide it with guidance. In such situat i o n s , an important additional guide would be, within the limits of choice ava i l able in law, the court ’s sense of j u s t i c e, fa i rness and equity. 138. In re l ation to maritime delimitat i o n , ap a rt from a few specific p rinciples such as the equidistance-special circumstances rule (wh i ch h ave alre a dy emerge d ) , it would be a matter for the court , among the ra n ge of ge n e ral principles (and pro c e d u res and methods) ava i l abl e, to make s u ch a choice as is in accordance with law and its sense of justice. 139. This is another illustration of what Julius Stone describes as the “element of eva l u at ive choice” that is part and parcel of the judicial proc e s s . 3 To use another ex p ression of that eminent juri s t , “ l e eways of judi1 2 3

Aristotle, The Nicomachean Ethics, H. Rackham (trans.),Loeb Classical Library, revised ed., 1934,pp.315 and 317. Ibid. See Julius Stone, Legal System and Lawyers’Reasonings, 1964, p.305.

Equity in a Global Context

281

cial ch o i c e ” 1 exist within the concept of equity, as indeed they do in most d ep a rtments of the law. The fact that intern ational law is invo l ve d, rat h e r than domestic law, does not alter the nat u re of the judicial process. Equity n ever was nor ever will be a completely objective dep a rtment of lega l k n ow l e d ge. In the wo rds of a we l l - k n own tre at i s e, “Equity may play a dra m atic role in supplementing the law or appear unobtru s ive ly as p a rt of legal re a s o n i n g.” 2 (e) Through the use of judicial discretion 140. Some aspects of this have alre a dy been dealt with in so far as judicial discretion re l ates to the choice of an ap p ro p ri ate principle for ap p l ic ation. Judicial discretion also comes into operation in rega rd to the choice of an ap p ro p ri ate solution from among a ra n ge of ch o i c e s , all of them equally ava i l able on the basis of the Court ’s re a s o n i n g. Indeed, t h i s aspect is part i c u l a rly re l evant in the present case, fo r, in theory, an infi n i t e number of possible lines of delimitation would be ava i l able within the f ra m ewo rk of the principles wh i ch the Court has chosen to fo l l ow. 141. This aspect assumes even more re l evance having rega rd to the ex p ress ave rment in paragraph 90 of the Judgment that the adjustment of the median line would be within “the measure of discretion confe rred on the Court by the need to arrive at an equitable result”. I agree with this a s s e rtion of Judicial discre t i o n , for it is an explicit ave rment of wh at is often an implicit assumption. It is essential to point out, if one may borrow the combined judicial and academic wisdom of O. W. Holmes and Julius Stone, t h at , in matters such as this, there are no unique answers which are “ ‘ ri g h t ’ in some absolute sense, as if judgment consists of ‘adding up one’s sums corre c t ly ’ ”.3 The court, as distinct from an arbitrator or conciliator, works within certain parameters set by law.4 It exercises its discretion within the parameters thus set, and, where it uses the fl ex i ble tools of equity, it uses them infra legem. But yet, as with every exercise of judicial d i s c re t i o n , t h e re is a ra n ge of choices ava i l able to the judge within a broad framework of permissible limits. Where the choice falls within that range depends upon the judge, and how he makes his choice depends on the guiding principles he employs. This is not an area of lacunae in the law, for, though the law can offer guiding principles, it is by its very nature i n c ap able of covering entirely the innumerable permutations and combinations of fact that present themselves in a given case. 1 2 3 4

Julius Stone, Legal System and Lawyers’Reasonings, 1964, p.304. Ian Brownlie, Principles of International Law, 4th ed., 1990, p.26. Julius Stone, Legal System and Lawyers’Reasonings, 1964,p.305; and O.W. Holmes,Jr.,“Path of the Law”, 10 Harvard Law Review (1897). pp. 465-466. This distinction between the modes of operation of a judge and arbitrator was noted by Aristotle in a passage picked up by Grotius (see p.233, footnote 1, above).

282

Universalising International Law

142. The use of judicial discretion may not be one of the gre at illumin ated places of the law bu t , within it, equity is par ex c e l l e n c e one of the l i g h t s 1 ava i l able to a judge in determining his pre fe rence amidst the lee ways of choice ava i l abl e. 2 Equity here may consist of specific pri n c i p l e s t h at have emerged from equity, or equity in the broad and ge n e ral sense a l re a dy discussed. Either way equity can enter intern ational law and make a vital contri bution to its continued development. Since the use of judicial d i s c retion within the pre s c ribed para m e t e rs is thus a necessary and intri nsic part of the judicial pro c e s s , a court exe rcising its discretion in a case s u ch as this does not exceed its judicial function in making its considere d ch o i c e, within those limits, on the basis of its sense of the fair and equitable. Nor does it need to feel inhibited, in the exercise of that very proper function, by concerns that it is trespassing beyond the limits of the judicial function. Viewed thus, the whole spectrum of equitable applications, uses and methods stretches out before the Court, enabling the best choice to be made from the range available within the limits of its authority.

(f) Through filling in gaps and interstices in the law 143. This has alre a dy been dealt with in the context of equity p ra e t e r l ege m . (g) Through following equitable procedures 144. This has already been dealt with in classification 1 (b) above. (h) Through the application of equitable principles already embedded in the law 145. Many principles of equity such as unjust enrichment, good faith, contractual fairness and the use of one’s property so as not to cause damage to others are already embedded in positive law. In the field of international law the position is the same. When one applies such a rule of positive law, one is thus giving effect at the same time to a principle of equity. At what precise time a particular rule of 1.

2.

There could of course be several others,especially in a municipal forum, where a judge may consciously or unconsciously lean towards, for example, a utilitarian, an analytical positivist, a realist, or other philosophical stance in making his decision. See C.G. Weeramantry, “The Importance of Philosphical Perspectives in the Judicial Process”, 6 Connecticut Journal of International Law (1991), p. 559. On leeways of choice in judicial discretion see, generally, Julius Stone Human Law and Human Justice, 1965, pp. 304-312. See also Lon L. Fuller, The Morality of Law, revised ed., 1969, for a view of the choices available, ranging from what Fuller calls the morality of aspiration, high up on the scale, to the morality of duty lower down. The more idealistic judge would make his choice higher up the scale than the more pragmatic. The highest points of the scale would be unsuitable for practical use.

Equity in a Global Context

283

equity takes on also the mantle of a rule of law is often a difficult question to decide. The results reached would often be the same, and probing the matter further may then be a merely academic exercise. (i) Through its use in negative fashion to test a result 146. This has already been dealt with in classification V (b) above. VIII. The Stages of Equitable Decision-Making1 147. It is perhaps helpful, in analysing a judgment involving the use of e q u i t y, to note that equity has not been applied in one swe eping operat i o n , but that it is a careful and ord e red process involving sequential stage s wh i ch can be sep a rat e ly ex a m i n e d. The Judgment of the Court in this case applies equity in this ord e red fashion and has my support in rega rd to the decision taken at each of these stages. These stages could of course be d i ffe re n t ly analy s e d, but the fo l l owing stages perhaps rep resent the C o u rt ’s ap p ro a ch to the pro bl e m . (a) The identification of the area of the dispute 148. The earlier part of the Judgment care f u l ly considers this aspect in some detail (para. 21), specifying the three areas invo l ve d. The extent of the re l evant area is also specifi e d. (b) The preparatory phase of assembling the relevant circumstances 149. As in this case, the next task that presents itself is to assemble the re l evant circumstances. In so doing the Court would indep e n d e n t ly assess the re l evance of each circ u m s t a n c e. The Judgment of the Court i n d i c ates wh at circumstances it considers re l evant. The particular circ u mstances invo l ved in this case are re fe rred to in Pa rt B of this opinion. 150. In wo rking on this prep a rat o ry phase the Court would be guided by the equitable pro c e d u re of considering eve ry item re l evant to the m atter under ex a m i n ation. The decision whether a matter has re l evance or not would nat u ra l ly be dependent also on any ap p l i c able rules of law, for the equity the Court is here using is not equity c o n t ra lege m. This

1

See, on this aspect, Michel Virally (“L’équité dans le droit. A propos des problémes de délimitation maritime”, in International Law at the Time of Its Codification:Essays in Honour of Roberto Ago, 1987, Vol. II pp.526-530), which makes a three-fold division. For a more elaborate analysis into five stages, see J. Charney, “Ocean Boundaries between Nations: A Theory for Progress,” op. cit. See, also, for a four-fold classification into identification of area, identification of method, application of practical method and assessment of equitablity, M.D. Evans, Relevant Circumstances and Maritime Delimitation, 1989, pp. 87.88.

284

Universalising International Law

aspect is of crucial importance in determining for example whether such c i rcumstances as population or economic fa c t o rs should be taken into account. (c) The decisional phase 151. This has a thre e - fold aspect – decisions in rega rd to the ap p ro p riate ru l e s , whether of law or equity that have to be employed; decisions in rega rd to the assessment of the facts found to be re l evant under head ( b ); and the ap p l i c ation of rules of law or equity to those facts to produce a p ractical re s u l t . 152. Once the re l evant circumstances are determ i n e d, their weight has to be assessed. Wh at weight wo u l d, for ex a m p l e, be given to the ice fa c t o r in this case in wo rking out a principle of fair division? Wh at is its we i g h t both intri n s i c a l ly and when mat ched against the other re l evant fa c t o rs ? wh at is the weight to be given to pro p o rtionality in the light of the disprop o rt i o n ate coastal lengths invo l ve d ? 153. Thus each factor needs to be assessed for its intrinsic import a n c e and for the weight it carries amidst the totality of re l evant fa c t o rs . (d) The confirmatory phase 154. The Court would then re a ch a re s u l t , but that result needs to be t e s t e d, for equitable principles or pro c e d u res do not automat i c a l ly lead to an equitable result. As alre a dy noted, while equidistance might rep re s e n t an equitable principle or method, it could lead to a result wh i ch is not e q u i t abl e. A result must not be unjust. The philosophical underpinnings of this concept have alre a dy been discussed in re l ation to the a posteri o ri use of equity in cat ego ry V ab ove. 155. This short survey of the handling of equity in the Ju d g m e n t , and of p o s s i ble ap p ro a ches to the ap p l i c ation of equity, will show the mu l t i t u d e of heads and the dive rsity of routes through wh i ch equity becomes ava i lable to the Court. It is hoped, also that his analysis will have shown the i n ev i t ability of the entry of equity into a pro blem such as that confro n t i n g the Court , the pro d u c t ive role it can play through judicial decision and otherwise in constructing the law of the future and the fact that equity is a vital and integral part of positive law wh i ch one neglects only at the cost of legal deve l o p m e n t . UNCERTAINTIES IN THE USE OF EQUITY

156. It is intrinsic to the operation of equity that there are some uncertainties in rega rd to the extent of its ap p l i c ation and the results wh i ch e m e rge. This has alre a dy been noted in an earlier part of this opinion.

Equity in a Global Context

285

Some of the causes of these uncert a i n t i e s , with special re fe rence to maritime delimitat i o n , a re sep a rat e ly considered below with a view to add re s sing the question whether there is in equity, as is sometimes allege d, a quality of uncertainty wh i ch re n d e rs it an unsuitable instrument for determining the claims of parties in a matter such as this. (a) Absence of mechanisms for precise quantification 157. To expect gre ater precision is to ignore the ve ry nat u re of equity. 1 One is reminded here of the A ristotelian ap h o rism that only so mu ch p recision can be ach i eved as the subject-matter will allow. The fa c t u a l m at e rial wh i ch equity deals with is in most cases ra re ly assessable in q u a n t i fi able terms. Equity has no fine balances at its command to weigh human conduct, no graded units of value with wh i ch to measure the particular mix of va ried fa c t o rs a given case may present. It makes in most cases an ove rall assessment on the basis of legal principle and human experience and will not be able, in mathematical fashion, to produce a result precisely calibrated to match the circumstances, if, indeed, such a result were at all possible, having regard to the nature of the subject-matter. 158. When there fo re a court , as in this case, t ra n s l ates an equitabl e finding into a delimitat i o n , it is only in terms of an assessment of the equities as cl o s e ly as it can and not with any suggestion that the resulting c a rt ographic delimitation mirro rs the exact ratio of equities invo l ve d. C e rtainties such as are contended for here do not exist even in the realm of the law, l e ave alone the realm of equity. 2 (b) Lack of definiteness in the scope of equity 159. Equity’s seeming weakness in defying compre h e n s ive defi n i t i o n 3, or precise quantifi c ation is at the same time one of its stre n g t h s , for it has 1

2

3

Judge Manley Hudson points out: “The conceptions introduced into the law as principles of equity cannot be listed with definiteness; but they are not to be discarded because they are vague, for that is a quality attaching to international law ...” (The Permanent Court of International Justice, 1920-1942 (1972 reprint, intro. by L. B. Sohn),p. 617.) On the belief in legal certainty even in law, as opposed to equity, see Julius Stone, The Province and Function of Law, 1946, pp. 204 - 205: “(T)he defence of legal ‘certainty’insofar as it assumes that certainty can be attained by continuing to adhere closely to logical development of the ‘principles of law’is defending what has never existed. The appearance of certainty and stability in legal rules and principles conceals existing uncertainty.” O. Schachter, op cit., p. 82:“ No concept of international law resists precise definition more than the notion of equity.”

286

Universalising International Law

given it the fl exibility to make a prime contri bution to the development of the law. Try as one may to ach i eve the desirable goal of cert a i n t y, t h i s remains elusive, for “the finest legal dissert ations on equity will never succeed in comp l e t e ly eliminating wh at is perhaps an irre d u c i ble core of judicial s u b j e c t iv i s m . . .” (Continental Shelf (Libyan A rab Ja m a h i ri ya / M a l t a) , I . C . J. Rep o rts 1985, p. 90, p a ra. 37, joint sep a rate opinion of Ju d ge s R u d a , Bedjaoui and Jiménez de A r é ch aga ) . E l s ewh e re in this opinion, re fe rence has been made to the series of seminal principles equity has contri buted to intern ational law. These have proceeded from its quality of fl ex i bl i t y, its ability to handle new situations fo r wh i ch legal precedent affo rds no guidance, and its confo rmity with justice and fa i rness. In maritime delimitation law, l i kew i s e, these qualities will no doubt assist it in shaping that body of law in equitable fa s h i o n , and each i n d ividual decision based on equity, s u ch as the present case can contri bute to this end. The day equity is completely cap t u red in a definition or fo rmu l a , its cre at ivity would be at an end. (c) Lack of crystallization of equitable results 160. In the special field of the law of the sea, e q u i t able concepts re m a i n l a rge ly undefined and their theoretical fo u n d ations uncl e a r. This is but n at u ra l , p a rt i c u l a rly in such an active ly developing fi e l d, for as De Vi s s cher has observe d, “If one views the matter historically, rules of law have at all times been largely the offshoots of equity before being crystallized within the positive legal order”.1 The danger of ove rc o n c ep t u a l i z ation of equitable principles has indeed been noted by this Court in the context of the law of the sea, 2 h oweve r gre at the ap p a rent need to concre t i ze the ap p l i c ation of equity in this fi e l d. (d) Changing nature of the law of the sea 161. An additional circumstance making for uncertainty in this fi e l d should also be noted – namely that the uncertainties of equity are com1

2

Charles De Visscher, De l’équité dans le règlement arbitral ou judiciaire des litiges de droit international public, 1972, pp. 8-9: “envisagées du point de vue de la formation historique de leur contenu,les règles de droit ont de tout temps été largement tributaires de l’équité avant de se cristalliser dans l’ordre juridique positif.” See, also, M.D. Blecher, “Equitable Delimitation of Continental Shelf”, 73 American Journal of International Law (1979), pp. 83-88. Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports, 1982, p. 92.

Equity in a Global Context

287

pounded, in relation to the law of the sea, by the fact that the law of the sea itself has been undergoing a process of spectacular change. Some cases such as the 1969 North Sea Continental Shelf cases and the 1982 Continen-tal Shelf (Tunisia/Libyan Arab Jamahiriya) case occurred before the Law of the Sea Convention was signed, whereas others such as the 1985 Continental Shelf (Libyan Arab Jamahiriya/Malta) case and the 1985 Guinea/ Guinea-Bissau cases occurred after. Maritime delimitations such as are sought in this case straddle the Geneva Convention of 1958 and the Montego Bay Convention of 1982, with all the conceptual changes occurring between 1958 and the present day. 162. Not only was a new dimension given by that Convention to the ap p l i c ability of equity but the ve ry concepts to wh i ch it was being applied - such as that of the ex cl u s ive economic zone - we re in a state of dynamic evolution. New concepts unknown in the 1950s such as that of the ex cl u s ive economic zone we re gat h e ring strength even as older concep t s s u ch as that wh i ch based the continental shelf on a nat u ral pro l o n gat i o n we re losing momentum. It is no cause for surp rise that fl ex i ble p rinciples superimposed upon so fluid a subject should have failed to produce a gre ater pre d i c t ability of legal re s u l t . (e) The resort to fact-intensive rather than rule-intensive procedures 163. An important aspect wh i ch the Court must add ress in mari t i m e d e l i m i t ation cases is the extent to wh i ch it should concentrate on the va riable facts of each sep a rate case rather than on a search for ove rrding rules wh i ch are common to all.1 The juristic literat u re describes the fo rm e r as fa c t - i n t e n s ive rather than ru l e - i n t e n s ive pro c e d u re s , and points to the c o n c e n t ration on fa c t - i n t e n s ive pro c e d u res as an additional cause of uncertainty in this area of the law. Howeve r, the type of enquiry invo l ved in the p resent case necessari ly re q u i res heavy reliance on fa c t - i n t e n s ive pro c ed u res. A dd i t i o n a l ly, the cry s t a l l i z ation of equitable rules re l ating to delimi t ation has not yet re a ched a stage of sufficient mat u rity to be a compreh e n s ive guide. 2 Fa c t - i n t e n s ive pro c e d u res must there fo re continue to play a significant role in maritime delimitat i o n s . 164. In the history of maritime delimitat i o n , t h e re have indeed been attempts to reduce the solution of this pro blem to ru l e - i n t e n s ive pro c e d u res specified with nearly mat h e m atical pre c i s i o n . 3 The effo rt at one 1 2. 3.

Schachter, op.cit., p. 87. See, generally, Schachter, ibid... As perhaps best illustrated by J.L. Azcárraga’s suggestions running to three pages of mathematical formulae titled “Nuestra Fórmula Matemática”, in La Plataforma Submarina y el Derecho International, 1952, pp. 82-84. The formulae allocate different areas of shelf according to three fixed factors – number of inhabitants, length of coast and area of territory.

288

Universalising International Law

s t age to erect the concept of equidistance into a ri gid rule was another attempt at ru l e - i n t e n s ive solutions aimed at ach i eving a pre d i c t able certainty of re s u l t . 165. The self-limiting nature of such formulae is clear, especially in the light of later experience revealing the relevance of numerous factors, some of which may not have been foreseen, and some of which – such as State conduct – cannot possibly be the subject of pre-set assessments. Legal concepts cannot thus be locked into the ri go u rs of mathematical method. Part B. PARTICULAR INVOCATIONS OF EQUITY IN MARITME DELIMITATION Long-standing Recognition of Equity in the Law of the Sea 166. Ap a rt from the ge n e ral ap p l i c ability of equity in intern ational law wh i ch wo u l d, in any eve n t , d raw it into disputes in re l ation to the law of the sea, it has also been specifi c a l ly drawn into the law of the sea by tre at y, p ro cl a m at i o n , judicial and arbitral decisions and State pra c t i c e. Equity has long been specifi c a l ly drawn into the law of the sea in this fa s h i o n . This aspect is dealt with in the Judgment of the Court and I shall deal with it only in outline. It will suffice for present purposes to note that its invocation in the Truman Pro cl a m ation (of 28 September 1945) was coeval with the very birth of the continental shelf doctrine. The statement in the Procl a m ation that the determ i n ation of boundari e s , wh e re the continental shelf extended to the shores of another State or was shared with another S t at e, was to be in accordance with equitable pri n c i p l e s was a signifi c a n t e a rly indication that the law of the sea wo u l d, in its fo rm at ive phase, l e a n h e av i ly on equity. 167. A landmark event was the Geneva Convention of 1958 wh i ch will be considered below. Howeve r, even befo re this, the régime of equity in this field was well establ i s h e d : “It is generally admitted that in State practice prior to the Geneva Conference of 1958 the tendency was to refer in general terms to the delimitation of continental shelf boundaries or ‘equitable principles’...” (North Sea Continental Shelf, I.C.J. Reports 1969, p. 91, Judge Padilla Nervo, separate opinion.) 168. In the juri s p rudence of this Court in maritime disputes, the equit able ap p ro a ch re c e ived re c ognition in 1951 in the A n g l o - N o r wegi a n Fi s h e ri e s c a s e. 1 The development of this trend through a series of 1

I.C.J. Reports, 1951, p. 142. See, also, S. Rosenne, The International Court of Justice, 1957,pp. 427-428..

Equity in a Global Context

289

c a s e s 1 until the latest decisions of this Court , has entre n ched equity as a key legal factor in this fi e l d. This trend is evident also in the arbitra l d e c i s i o n s .2 169. In the deliberations during UNCLOS III, the role of equity in re l ation to the law of the sea progre s s ive ly ach i eved increasing re c og n it i o n , till it became enshrined as a cardinal principle in the final draft of the C o nve n t i o n , in A rt i cles 74 and 83. In ach i eving this stat u s , equity displaced other suggested cri t e ria such as equidistance wh i ch had ap p e a red in earlier drafts as the prime consideration for delimitation. Indeed, a d e ep concern for equitable considerations perm e ates the Convention (see A rts. 160 (2)(d) , 161 (1) (e) , 162 (2) (d) , 163 (4), 274 (a) . 170. So mu ch importance has equity gained in this rega rd that it has been described as “ c u rre n t ly gaining ground as the central principle of maritime boundary delimitation over the 1958 equidistance - special circumstances rule”. 3 The Use of Equity in the 1958 Geneva Conve n t i o n 171. The 1958 Geneva Convention on the Continental Shelf provides by Article 6 that, where the same continental shelf is adjacent to the territories of the two States whose coasts are opposite to each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. “In the absence of agre e m e n t , and unless another boundary line is j u s t i fied by special circ u m s t a n c e s , the boundary is the median line, eve ry point of wh i ch is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.” 172. Ju d ge Oda has observed that , although not specifi c a l ly mentioned in A rt i cle 6, the idea of an equitable solution lay at the basis of that provision 4 which can perhaps be regarded as having infe re n t i a l ly attracted equity into delimitation. 1

2

3 4

North Sea Continental Shelf cases, I.C.J. Reports, 1969, p. 3; Continental Shelf (Tunisia/Libyan Arab Jamahiriya) case, I.C.J. Reports, 1982, p. 18; case concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area,I.C.J. Reports 1984, p. 246; and Continental Shelf (Libyan Arab Jamahiriya/Malta) case, I.C.J. Reports,1985, p. 13. See, in particular, the decisions of the Court of Arbitration in the Delimitation of the Continental Shelf between the United Kingdom and France case, RIAA, Vol. XVIII. pp. 3ff.; and Chile/Argentina Beagle Channel Arbitration, International Legal Materials, 1978, pp. 36 ff. H.W. Jayawardene, Regime of Islands in International La w, 1990, p. 316. Continental Shelf (Tunisia/Libyan Ar ab Jamahiriya), I.C.J. Reports, 1982, p. 246, para. 144, dissenting opinion of Judge Oda.

290

Universalising International Law

173. Th e re are two pointers in the A rt i cle to the area of enquiry in wh i ch the Court should engage itself – (i) any agreement between the parties, and, (ii) in the absence of such agreement, whether any line other than the median line is justified by special circumstances. 174. Under each of these heads, t h e re are mat t e rs wh i ch arise for cons i d e rat i o n . 175. Under the first head, there is the Agreement of 1965 between Norway and Denmark which is considered in the Judgment of the Court. I respectfully express my agreement with the conclusion of the Court that that Agreement does not relate to the maritime area in dispute in the present case. 176. Under the second head, the Court has been add ressed on a nu m ber of fa c t o rs – re l at ive populat i o n s , p ro p o rtionality of coastlines, re s p e c t ive landmasses and economic importance to the ap p u rtenant c o a s t , to mention a few. These mat t e rs will re c e ive consideration later in this opinion. It is my view that none of them can be ruled out in limine o n the basis of a general principle of irrelevance relating to any one category. 177. As was observed by the Court of A r b i t ration in D e l i m i t ation of the Continental Shelf between the United Kingdom and Fra n c e in 1977: “the rôle of the ‘special circ u m s t a n c e s ’ condition in A rt i cle 6 is to e n s u re an equitable delimitation; and the combined ‘ e q u i d i s t a n c e special circumstances rule’, in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles”.1 The Use of Equity in the 1982 Montego Bay Convention 178. the “equitable solution” formula contained in the Convention (Arts. 71 (1) and 83 (1)) – a compromise between that favoured by the equidistance group2 and that favoured by the equitable principles group3 – gave further recognition to the role of equity. 1 2

3

RIAA, Vol. XVIII, p. 45,para. 70. “The delimitation of the Exclusive Economic Zone/Continental Shelf between adjacent or opposite States shall be effected by agreement employing, as a general principle, the median or equidistance line, taking into account any special circumstances where this is justified.” (Doc. NG 7/2 Rev. 2, 28 March 1980, cited by Brown,“Delimitations of Offshore Areas:Hard Labour and Bitter Fruits at UNCLOS III”, Marine Policy (1981), p. 180). “ The delimitation of the exclusive economic zone between adjacent or/and opposite States shall be effected by agreement, in accordance with equitable principles taking into account all relevant circumstances and employing any methods where appropriate, to lead to an equitable solution,” (Doc. NG 7/10/Rev.2, 28 March 1980, cited by Brown, op.cit.).

Equity in a Global Context

291

179. As is observed in a contempora ry text on the régime of islands under intern ational law : “ The most distinctive fe at u re of the provision [on the economic zone and continental shelf in the Info rmal Single Nego t i ating Tex t ] was the abandonment of the 1958 equidistance-special circ u mstances model in favour of a fo rmula based on the principle of equit able delimitat i o n .” 1 180. The acceptance by both gro u p s 2 of phra s e o l ogy including “ a n e q u i t able solution” despite the wide disparities in the positions of the two groups gives equity a position of special importance in this sensitive and c o n t rove rsial area of intern ational law, thus cre ating a special need for a fuller inve s t i gation of all the implications of the phra s e o l ogy so adopted 3. Categories of Relevant Factors Are Not Closed 181. In paragraphs 122-128 ab ove dealing with the operation of equity t h rough the balancing of intere s t s , attention has been given to the way in wh i ch the va rious re l evant circumstances are weighed against each other. R e fe rence was there made to the N o rth Sea cases wh i ch stated that there was no legal limit to the considerations wh i ch States take account of fo r this purp o s e. 4 S o , a l s o , in the L i bya / M a l t a c a s e, this Court observe d : “ For a court , although there is assure d ly no closed list of considerations, it is evident that only those that are pertinent to the institution of the continental shelf as it has developed within the law, and to the application of equitable principles to its delimitation, will qualify for inclusion.” (I.C.J. Reports, 1985, p. 40, para. 48.) 182. No complete list can be made, if for no other reason than that each case is unique and one can never fo retell wh at circumstances may surfa c e or ach i eve importance in the unknown disputes of the future. More ove r, 1 2

3

H. W. Jayewardene, The Regime of Islands in International Law, 1990, P. 320. See Official Records of the Third United Nations Conference on the Law of the Sea,Vol. XV, pp. 39-42, for the discussion on the compromise text formulated by the President, and for its acceptance by the two groups concerned. It is not necessary for present purposes to enter into discussions of the question whether the provisions of the Convention have acquired the force of customary international law. That question is not free of controversy – see Jennings, “Law Making and Package Deal”, in Mèlanges offerts à Paul Reuter, Paris, 1981, pp. 347-355; L.A. Howard, “The Third UN Conference on the Law of the Sea and the Treaty/Custom Dichotomy”, 16 Texas International Law Journal (1981), pp.321-345; H. Caminos and M.R. Molitor, “Progressive Development of International Law and the Package Deal”, 79 American Journal of International Law (1985), pp. 871-890; and M.C.W. Pinto, “Maritime Security and the 1982 UN Conference on the Law of the Sea”, Maritime Security, The Building of Confidence, UNIDIR, 1993,p. 9 at pp. 40-46.

292

Universalising International Law

e a ch item – such as State conduct or national security – is infi n i t e ly variable and, more often than not, is itself a conglomerate of factors which themselves need to be assessed and evaluated. This Court’s description of each as “monotypic”1 thus aptly captures its individuality. 183. It may be noted that , although the 1961 Helsinki Rules on the Uses of Water of Intern ational Rive rs , contained in A rt i cle V, p a ragraph 2, a list of re l evant fa c t o rs , the list is ex p re s s ly stated to be non-ex h a u s t ive. 184. From these preliminary observations to what extent can the process be carried fo r wa rd of developing equitable principles in relation to maritime delimitation? 185. Since “ t h e re is no legal limit to the considerations wh i ch Stat e s m ay take account of”2 , it would seem, for ex a m p l e, t h at they cannot be limited to the pure ly ge ograp h i c. Geographic fa c t o rs may perhaps be used as the starting point for an enquiry of this nat u re, and it is right to stre s s their import a n c e. However the equitable solution yielded by the ap p l i c ation of the principles of equity is not attained by the mere ap p l i c ation of ge ograp h i c a l ly based principles such as the equidistance pri n c i p l e. In the anxiety to concre t i ze equitable principles by re l ating them to demons t rable and quantifi able data such as ge ographic data we may perhaps shut out important considerations re l evant to equity. Definiteness of p rinciple is no doubt an important value to be striven after,3 but it could be bought at too high a price at an incipient stage of development of a lega l c o n c ep t . 186. Among the fa c t o rs taken into consideration in the Tu n i s i a / L i bya case we re not mere ly ge ographical fa c t o rs but historical and political fa ct o rs as well. Among these we re the history of the enactment of petro l e u m licensing by each party and the grant of successive petroleum concess i o n s , 4 and such indicia as we re ava i l able of the line or lines wh i ch the p a rties themselves had considered equitable or acted upon as such .5 187. When one ve n t u res outside the areas of pure ge ograp hy and ge o l ogy, one encounters considerations wh i ch are of immense importance in the real wo rld – mat t e rs such as populat i o n s , s e c u ri t y, h i s t o ry, p ra c t i c a l u s ab i l i t y, political status and economic dep e n d e n c e. Doubtless they will 1. 2. 3. 4. 5.

I.C.J. Reports, 1984, p. 290, para. 81. North Sea Continental Shelf cases, I.C.J. Reports, 1969, p. 50,para 93. See Shigeru Oda, “Delimitation of a Single Maritime Boundary”, in International Law at the Time of Its Codification: Essays in Honour of Roberto Ago, 1987, Vol. II, p. 349. See Continental Shelf (Tunisia/Libyan Arab Jamahiriya), I.C.J. Reports,1982, p. 83, para. 117. Ibid., p. 84, para 118. See, also, Jiménez de Aréchaga, “The Conception of Equity in Maritime Delimitation”, in International Law at the Time of Its Codification:Essays in Honour of Roberto Ago, 1987, Vol. II, p. 232.

Equity in a Global Context

293

h ave diffe rent values in individual cases va rying from the minimal to the i m m e n s e ly influential and these will need to be taken into considerat i o n and eva l u at e d. 188. In the D e l i m i t ation of the Continental Shelf between the United Kingdom and Fra n c e, the United Kingdom relied upon such mat t e rs as d e m ograp hy and economics1 a n d, though the court did not rega rd them as exe rcising a decisive influence on the delimitat i o n , it held that they could support and stre n g t h e n , but not negat ive, a ny conclusions indicat e d by the ge ograp h i c a l , political and legal circ u m s t a n c e s . 2 To quote Ju d ge Jiménez de A r é ch aga aga i n : “All the relevant circumstances are to be considered and balanced; they are to be thrown together into the crucible and their interaction will yield the correct equitable solution of each individual case.” (I.C.J. Reports, 1982, p. 109, para. 35) 189. Equity was by ve ry definition the process by wh i ch situat i o n s wh i ch could not be provided for by the specific letter of a legal rule we re t a ken into account wh e re the pure ly mechanical ap p l i c ation of the ru l e would shut them out. It would be a negation of that fl exibility wh i ch is a ch a ra c t e ristic of equity if we we re at this early stage in the development of m a ritime demarc ation to introduce into it the ve ry element of ri gi d i t y wh i ch equitable doctrine was devised to prevent. As this Court observed in Tu n i s i a / L i bya, no attempt should be made to ove rc o n c ep t u a l i ze the ap p l i c ation of the principles and rules ap p l i c able to the continental shelf (i b i d. , p. 92, p a ra. 132). The Equidistance Principle 190. It is necessary to consider the status of the equidistance method, as Norway lays gre at store by it, not only in its own right but also by virt u e of the 1965 A greement between the Pa rt i e s . 191. Speaking in general terms, three possible ranks may be assigned to this rule: (i) the status of a mandatory rule either under customary international law or, where parties are bound by the Convention, in the absence of agreement or justification of a different rule by other circumstances; (ii) a status of priority over other equitable factors to be considered; (iii) a status of parity with other equitable factors. 1. 2.

RIAA, Vol. XVIII, pp. 84-85,paras. 171-173. Ibid., p. 90, para. 188.

294

Universalising International Law

(i) Is it a mandatory rule? 192. In the N o rth Sea Continental Shelf c a s e s , this Court , while viewing the equidistance rule as one of gre at practical convenience and wide ap p l i c ab i l i t y, held that the equidistance method was neither pre s c ribed by a mandat o ry rule of customary intern ational law (I . C . J. Rep o rt s , 1 9 6 9 , p. 46, p a ra. 83, p. 53, p a ra. 101) nor an inherent necessity of continental shelf doctrine (i b i d. , pp. 35-36). Placing the rule in the context of its equit able ori gi n s , the Court observe d : “It wa s , and it re a l ly remained to the end, gove rned by two beliefs; – namely, fi rs t , t h at no one single method of delimitation was like ly to prove sat i s fa c t o ry in all circ u m s t a n c e s , and that d e l i mitation should, t h e re fo re, be carried out by agreement (or by re fe rence to arbitration); and secondly, that it should be effected on equitable principles. It was in pursuance of the first of these beliefs that in the draft that emerged as Article 6 of the Geneva Convention, the Commission gave priority to delimitation by agreement, – and in pursuance of the second that it introduced the exception in favour of ‘special circumstances’. Yet the record shows that, even with these mitigations, doubts persisted, particularly as to whether the equidistance principle would in all cases prove equitable.” (Ibid., pp. 35-36, para. 55). 193. The Gulf of Maine case also made this clear: “ The Chamber must there fo re conclude in this respect that the p rovisions of A rt i cle 6 of the 1958 Convention on the Continental Shelf, although in fo rce between the Pa rt i e s , do not entail either for them or for the Chamber any legal obl i gation to ap p ly them to the single maritime delimitation which is the subject of the present case.” (I.C.J. Rep o rt s , 1984, p. 303 para. 125.) 194. This Court tersely summarized the jurisprudence on this point when it observed in the Libya/Malta case, “The Court is unable to accept that, even as a preliminary and provisional step towards the drawing of a delimitation line, the equidistance method is one which must be used....” (I.C.J. Reports, 1985, p. 37, para. 43.) 195. If the rule is to have a mandatory status under the Convention, this can only occur in the absence of agreement and in the absence of justification by special circumstances. Where special circumstances exist, as they do in this case, the equidistance rule cannot in any event be mandatory. 196. Although the equidistance rule may be basically equitable in conception and ori gi n , it is by its very nature and definition infl ex i bl e, contrasting in this respcet with the flexibility of equity which enables the latter

Equity in a Global Context

295

to accommodate itself to varying and unforeseeable conditions which must depend on each particular case. (ii) Does it have priority over other factors? 197. This Court also ex p ressed itself on this aspect in the N o rth Sea Continental Shelf c a s e s , when it said that this rule did not have a priv il eged status in re l ation to other methods. 1 S t ate pra c t i c e, as the Court o b s e rve d, often re s o rted to this rule but it showed also that in many cases other cri t e ria had been re s o rted to, when they we re found to offer a better way to re a ch agre e m e n t . 198. As the Chamber observed in the Gulf of Maine c a s e, “Nor is there a ny method of wh i ch it can be said that it must re c e ive pri o ri t y ” (I . C . J. Rep o rt s , 1 9 8 4, p. 315, p a ra. 163). 199. In the L i bya / M a l t a c a s e, this Court observed that “the equidistance method has never been rega rd e d, even in a delimitation between opposite coasts, as one to be applied without modific ation wh at ever the circ u m s t a n c e s ” (I . C . J. R ep o rt s , 1 9 8 5, p. 48, para. 65). (iii) Does it have parity with other fa c t o rs ? 200. The previous discussion shows that the equidistance ru l e, i m p o rtant though it be, is one of the multiple fa c t o rs that need consideration in the context of any delimitation case. Wh at can be said of these diffe re n t fa c t o rs is that they may assume diffe rent degrees of importance in the context of different cases, but that there is no ranking order among them. This was the position under the 1958 Convention but, after the 1982 Convention, the matter has been made clearer still. 201. It is perhaps not without significance that the equidistance ru l e does not appear in either A rt i cle 74 or A rt i cle 83 of the Convention on the L aw of the Sea, 1 9 8 2 , although the Revised Single Nego t i ating Tex t (RSNT) of 1976 2 , and the Info rmal Composite Nego t i ating Text (ICNT) of 19773 as well as the two revised texts of the latter contained a re fe re n c e to the median or equidistance line “ wh e re ap p ro p ri at e ” . 4 202. The Court of A r b i t ration in D e l i m i t ation of the Continental Shelf b e t ween the United Kingdom and Fra n c e, 1 9 7 7 , placed the equidistance rule in context when it observed that : 1. 2. 3. 4.

I.C.J. Reports 1969, pp. 45-46, para. 82. See Official Records of the Third United Nations Conference on the Law of the Sea, Vol. V, pp. 164 and 165. Articles 74 and 83 were then numbered 62 and 71, respectively. See ibid., Vol. VIII, pp. 16 and 17. See ibid., Vol. XIII,pp. 77-78.

296

Universalising International Law

“ even under A rt i cle 6 [of the 1958 Convention] it is the ge ograp h ical and other circumstances of any given case which indicate and justify the use of the equidistance method as the means of achieving an equitable solution rather than the inherent quality of the method as a legal norm of delimitation”. 1 The Court went on to observe that the equidistance method, like any other method, was “a function or reflection of the geographical and other relevant circumstances of each particular case”.2 203. The status of parity of the equidistance method when compare d with others was well ex p ressed by the A r b i t ral Tri bunal in the dispute b e t ween Guinea and Guinea-Bissau, 1 9 8 5 , when it said: “Le tribunal estime pour sa part que 1 ‘équidistance n’est qu’une méthode comme les autres et qu’elle n’est ni obligatoire ni prioritaire, même s’il doit lui être reconnu une certaine qualité intrinsèque en raison de son caractère scientifique et de la facilité relative avec laquelle elle peut être appliquée.”3 The “Special Circumstances” Principle 204. “Attempts made at the Geneva Confe rence on the Law of the Sea to stri ke out the altern at ive of ‘special circ u m s t a n c e s ’ and to make the equidistance method the only rule we re rejected by a large majori t y.” (N o rth Sea, I . C . J. Rep o rt s , 1 9 6 9, p. 93, Ju d ge Padilla Nervo , s ep a rat e opinion.) This is re a d i ly unders t a n d able when one considers that “in certain ge ographical circumstances wh i ch are fre q u e n t ly met w i t h , the equidistance method, despite its known adva n t age s , l e a d s u n q u e s t i o n ably to inequity. . .’ ( i b i d. , Ju d g m e n t , p. 49, p a ra. 89). 205. This principle art i c u l ates the rule of pro c e d u ral equity that all m at e rial circumstances re l evant to the matter in hand should be taken into account in re a ching an equitable result and that no lega l ly re l evant circumstances should be left out of consideration unless there is compelling reason to do so. 206. As was observed by the Court of A r b i t ration in D e l i m i t ation of the Continental Shelf between the United Kingdom and Fra n c e in 1977: “the rôle of the ‘special circ u m s t a n c e s ’ condition in A rt i cle 6 is to e n s u re an equitable delimitation; and the combined ‘ e q u i d i s t a n c e special circumstances ru l e ’ , in effe c t , gives particular ex p ression to a 1. 2. 3.

RIAA, Vol. XVIII, pp. 45-46,para. 70. ibid., p. 57, para. 97 Revue générale de droit international public (1985), Vol. 89, p. 525, para 102.

Equity in a Global Context

297

ge n e ral norm that , failing agre e m e n t , the boundary between States abutting on the same continental shelf is to be determined on equitabl e p ri n c i p l e s ” . 1 207. Eve ry case is diffe rent and, while ge n e ral guidelines exist such as the equidistance principle in the absence of other or competing fa c t o rs , i t is for the Court to decide in each case wh at are the ap p ro p ri ate fa c t o rs to be taken into account and wh at weight should at t a ch to them. It is too e a rly in the history of maritime delimitation for any determining pri n ciples to be laid down by this Court as to the re l at ive importance of one factor over the other. It may be that when these determ i n ations are made on a case-by-case basis, some guidelines will in course of time emerge. The “Relevant Circumstances” Principle 208. As the Court of Arbitration observed in 1977 in Delimitation of the Continental Shelf between the United Kingdom and France: “The choice of the method or methods of delimitation in any given case, whether under the 1958 Convention or customary law, has t h e re fo re to be determined in the light of those circumstances [ i . e. , ge ographical and other re l evant circumstances of each part i c ular case] and of the fundamental norm that the delimitation must be in accordance with equitable pri n c i p l e s .” 2 209. It is also to be stre s s e d, b e fo re ap p ro a ching a consideration of e a ch of these fa c t o rs , t h at they will be ap p ro a ched not from the standpoint of either Norway or Denmark but from the standpoint of the two terri t o ries in question – Jan Mayen and Greenland – as if these we re independent terri t o ries competing for maritime ri g h t s , for it is clear that wh at ever maritime rights these terri t o ries enjoy are ge n e rated by their re l evant coastlines and not by considerations that they are part of some l a rger political entity. 210. I agree with the Court in its careful consideration and ove rall eva lu ation of the va rious re l evant fa c t o rs enu m e rated by it. While doing so I would like, h oweve r, to emphasize that consideration should not be limited to fa c t o rs wh i ch are ge o p hysical in their nat u re. 211. In each case there surfaces for consideration a va ried mix of fa ct o rs. Ap a rt from the diffe rent nat u re of the mix in each case, a ny one fa ct o r, s u ch as population or economy, will nat u ra l ly present itself diffe re n t ly in each case. For ex a m p l e, the population factor may be of little re l eva n c e or no re l evance in one case, while in another it may assume cons i d e rable 1. 2.

RIAA, Vol. XVIII,p. 45, para. 70. Ibid., p. 57, para. 97.

298

Universalising International Law

s i g n i fi c a n c e. So, a l s o , with economic fa c t o rs or indeed any other fa c t o r one may care to name. A ny ge n e ral proposition that population or econo my are irre l evant because, u n l i ke ge o p hysical confi g u rat i o n s , t h ey may ch a n ge with time is juri s t i c a l ly untenable and not in confo rmity with the fl exibility of equity. 212. In other wo rd s , I re s p e c t f u l ly endorse the findings the Court has re a ched on the re s p e c t ive items arising for consideration in this case. Access to fi s h e ry re s o u rces is a matter to wh i ch the Court has ri g h t ly d evoted particular care and attention and I am in agreement with this ap p ro a ch and with its resultant effect upon the ove rall delimitation. I wo u l d, h oweve r, a dd a few observations on some of the mat t e rs cons i d e re d. (a) Population 213. For ex a m p l e, while agreeing with the weight the Court gives to the population factor in the present case, I would stress that no ge n e ra l p roposition can be laid down that the population factor is in all cases i rre l eva n t . 214. One can visualize a case wh e re a particular coast has sustained a teeming population for seve ral centuries and the coast facing it has no p o p u l ation wh at s o ever and has been uninhabited as far as historical m e m o ry extends. Cases such as that need to be considered as and wh e n t h ey arise and cannot be left out of consideration on any ge n e ral pri n c i p l e t h at the population factor is irre l evant. Such an ap p ro a ch would be cont ra ry to equitable principles and pro c e d u re s . 215. Refe rence may also be made in this context to the A n g l o - Fre n ch A r b i t rat i o n , in wh i ch it is significant that among the fa c t o rs advanced by the United Kingdom was the fact that the Channel Islands we re “ p o p u lous islands of a certain political and economic import a n c e ” . 1 The Court o b s e rved that it “ a c c epts the equitable considerations invo ked by the United Kingdom as carrying a certain we i g h t ” . 2 216. It is true that fa c t o rs such as population or lack of it are ch a n geable over time. A piece of land which is today barren and uninhabited may in a hundred years be the centre of a numerous and thriving population just as a thriving population of today may, for reasons which cannot now be foreseen, be reduced to a few struggling survivors some generations from today. These are factors inherent in the nature of human life and settlement but on the basis of such lack of certainty, these factors ought not, in my view, to be totally disregarded by an overriding general principle applicable in all cases. 1 2

RIAA, Vol. XVIII, p. 93,para. 197. Ibid., p. 93, para. 198.

Equity in a Global Context

299

217. When the Law of the Sea Convention spelt out in A rt i cle 121 (3) t h at ro cks wh i ch cannot sustain human hab i t ation or economic life of their own shall have not ex cl u s ive economic zone of continental shelf, i t was perhaps giving ex p ression to the concept that population and economic life are re l evant to the enjoyment of ex cl u s ive economic zones and continental shelf entitlements. It was not ro cks per se t h at we re ex cl u ded from these rights but ro cks wh i ch lacked the possibility of sustaining h ab i t ation or economic life, thus indicating the importance of these fa c t o rs in at t racting ex cl u s ive economic zone and continental shelf entitlements, in an ap p ro p ri ate case. 218. The law of the Sea Convention could not have adopted a div i d e d rationale in its diffe rent parts on this vital question, and if it considere d p o p u l ation and economic life to be a vital and determining factor in rega rd to the question whether ro cks at t racted these entitlements, it could not have considered that in rega rd to other ge ographical confi g u rat i o n s p o p u l ation and economic life we re irre l evant and to be ignore d. (b) Economic factors 219. Similar considerations ap p ly to economic fa c t o rs. On this aspect, it must be pointed out that this is an area in wh i ch the juri s p rudence of the C o u rt has not thus far been concl u s ive, despite the trend of recent decisions to tre at economic fa c t o rs as irre l evant. In the Gulf of Maine, 1 wh e n the dispute was cl e a rly about re s o u rc e s , Canada argued for the pre s e rvation of fishing pat t e rns established over the past ten to fifteen ye a rs wh i l e the United States contended that it was virt u a l ly entitled to a monopoly over the Georges Bank fi s h e ry. Although the Chamber dismissed these a rguments as irre l evant in law, yet it did not altogether ignore them, h o l ding that data as to human and economic ge ograp hy, a l t h o u g h “ineligible for consideration as criteria to be applied in the delimitation process itself, may...be relevant to assessment of the equitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography” (p.340, para. 232). In other wo rd s , these fa c t o rs could in fact be used to test the equity of the result. The Chamber placed stri n gent limitations on such use, limiting it to cases wh e re the results we re

1

I.C.J. Reports 1984, paras. 48 and 232 of Judgment.

300

Universalising International Law

“ ra d i c a l ly inequitabl e, t h at is to say, as like ly to entail cat a s t ro p h i c rep e rcussion for the livelihood and economic well-being of the popu l ation of the countries concern e d ” (I . C . J. Rep o rt s , 1 9 8 4, p. 342, p a ra. 237). Yet we have here a recognition, however restricted, that such factors can play a part in the overall result.1 (c) State practice 220. So, also in considering individual acts of State pra c t i c e, a n i m p o rtant limiting factor is that the special circumstances and political c o n s i d e ration that lie behind a particular arra n gement between two c o u n t ries are often veiled in obscurity unless the parties themselve s re c o rd or state those fa c t s . 2 This is well illustrated in the present case in re l ation to Norway ’s own tre aty with Iceland, for Norway herself accep t s t h at there we re special political considerations lying behind that arra n gement. As stated in paragraph 560 of Norway ’s Counter- M e m o ri a l , “ The political bargain stru ck between Norway and Iceland was ex c ept i o n a l . . .” , and in the same paragrap h , the arra n gement giving Iceland a 200-mile zone is described as a “concession made in favour of Iceland” wh i ch “ p roduced a boundary wh i ch re flects no norm of equitable delimit at i o n .” On Norway ’s own submission, these circumstances render an agreement at y p i c a l , wh i ch might otherwise be relied upon as an item of S t ate pra c t i c e. 221. Another va ri able factor in re l ation to State practice is the fact that the effect given to islands for equidistance purposes has sometimes been a p a rtial effe c t , thus introducing an additional element of fl ex i b i l i t y. Fo r ex a m p l e, the Gre e c e - I t a ly A greement of 24 May 1977 gives to the Gre e k islands invo l ved a va rying effe c t , ra n ging from full effect for the large islands of Corfu, Ke fallinia and Zakinthos to lesser effects for the islands of Othonoi and Mat h ra k i . 222. Other instances of partial effect also ex i s t , s u ch as the Ira n - O m a n A greement of 25 Ju ly 1974, where the presence of the small island of Umm al Faiyarin belonging to Oman does not cause a proportional deviation of the demarcation line between Oman and Iran. Had this island been given full effe c t , the line would have moved considerably closer to the I ranian coast than it ap p e a rs on the map (Rep ly of Denmark , Ann. 71). 1

2

See, generally on this aspect, D.W. Bowett, “The Economic Factor in Maritime Delimitation Cases”, in International Law at the Time of its Codification: Essays in Honour of Roberto Ago, 1987, Vol. II. p. 45, esp. at pp. 58-63, pointing out, inter alia, that economic interests of States lay at the very heart of the 1982 Convention and that no part of the Convention is divorced from these economic interests. Rejoinder of Norway, p. 178. para. 605.

Equity in a Global Context

301

223. So also in the United Kingdom-Ireland A greement of 7 Nove m ber 1988 (Rep ly of Denmark , A n n . 7 2 ) , the Scilly Isles have not been give n full effe c t . 224. Nor is the juri s p rudence of this Court marke d ly diffe rent in this rega rd. The Court itself has in more than one of its judgments given less than full effect to small islands in re l ation to the equidistance pri n c i p l e. The half-effect basis of delimitation was used in Tu n i s i a / L i bya 1 in rega rd to the Ke rkennah Islands, and in the Gulf of Maine c a s e2 in rega rd to the Canadian Seal Island. The half-effect basis was also used by the Court of A r b i t ration in the case concerning the D e l i m i t ation of the Continental Shelf between the United Kingdom and Fra n c e in re l ation to the Scilly I s l e s , fo r “abating the disproportion and inequity which would otherwise result from giving full effect to the Scilly Isles as a base-point for determining the course of the boundary”.3 (d) The ice factor 225. On the ice fa c t o r, l i kew i s e, one would hesitate to say that there can be a ge n e ral proposition that it can have no beari n g. In the present case, the fa c t o rs are such that although the ice is a real ge o p hysical factor that i m p i n ges on the usability of the wat e rs in question, it is so situated that it does not make a diffe rence significant enough to affect the re s u l t . 226. Howeve r, while in these days of cl i m atic ch a n ge there may be some ch a n ge ability in drift ice pat t e rn s , t h e re may well be cases wh e re d rift ice or the freezing of the seas for the gre ater part of the year have, t h roughout re c o rded history, re n d e red ice-bound the sector adjacent to the coastline of one part y, while the sector adjacent to the coastline of the other remains large ly unaffe c t e d. In such a case this seems indeed to be a factor pertinent to the question of equitable div i s i o n , for it intri n s i c a l ly a ffects the usability of the areas to be demarc at e d. 227. These are but ex t reme cases. Howeve r, t h ey serve the purpose of s h owing that possible ave nues of enquiry ought not to be fo re cl o s e d. (e) National security 228. Similar considerations ap p ly to fa c t o rs bearing on national security which again will vary from case to case and may in a given case assume considerable importance. The observation in Libya/Malta cited in the Judgment (para. 81) to the effect that security considerations are not u n re l ated to the concept of the continental shelf bears this out (I.C.J. R ep o rt s , 1985, p.42, para. 51). 1 2 3

I.C.J. Reports,1982, pp. 63-64, para, 79; p.89, para.129. I.C.J. Reports, 1984, pp. 336-337, para. 222. RIAA, Vol. XVIII, p.117, para. 251.

302

Universalising International Law

(f) The conduct of parties 229. Rega rding the conduct of part i e s , this has been fully dealt with by the Court. Conduct can, in an ap p ro p ri ate case, assume importance as, for ex a m p l e, wh e re it amounts to an admission or an estoppel, but I agre e t h at it does not constitute an element wh i ch could influence the part i c u l a r d e l i m i t ation in the present case. 230. While the items of conduct relied upon do not thus becomes suffi c i e n t ly significant to affect the present decision, the possibility mu s t a lways remain open in future cases that any one or more of such fa c t o rs can assume sufficient significance to affect a delimitat i o n . (g) Disproportion in coastal length 231. The dispro p o rtion in length of the coastlines, h oweve r, a s s u m e s i m p o rtance in this case. The Court in its Judgment has dealt with this aspect at length and I am in agreement with the Court ’s reasoning and c o n clusion on this mat t e r. 232. The equitable aspects invo l ved in this question of dispro p o rtion or pro p o rtionality may be bri e fly set out as fo l l ow s : (a) Disproportion in coastal lengths of the magnitude present in this case is clearly a relevant circumstance requiring consideration both on the basis of prior decisions and on the basis of equitable principles. (b) The principle of proportionality does not mean a division of maritime space on a proportionate basis. This Court observed in the Libya/Malta case that it rejects any attempt to “define the equities in arithmetical terms” (I.C.J. Reports, 1985, p.55, para. 75). As the Court there observed: “The Court does not consider that an endeavour to achieve a predetermined arithmetical ratio in the relationship between the relevant coasts and the continental shelf areas generated by them would be in harmony with the principles governing the delimitation operation.”(Ibid.) (c) The factor of proportionality applies only to coastlines and not to landmass, for “it is the coastal length that matters” (ibid., p. 73, Judge Sette-Camara, separate opinion). (d) Proportionality can legitimately be used as a test to verify the equity of a delimitation. “In the view of the Court, there is no reason of principle why the test of proportionality, more or less in the form in which it was used in the Tunisia/Libya case, namely the identification of ‘relevant coasts’, the identification of ‘relevant areas’ of continental shelf, the calcula-tion of the mat h e m atical ratios of the lengths of the coasts and the

Equity in a Global Context

(e)

(f)

(g)

(h)

303

areas of shelf at t ri bu t e d, and finally the comparison of such ratios, should not be employed to verify the equity of a delimitation between opposite coasts, just as well as between adjacent coasts.” (I.C.J. Rep o rt s , 1985, p. 53, para.74.) The Court would use proportionality as an instrument for correcting disproportionality where“the flagrant disproportion in the lengths of coasts is such that the correction of any line according to a reasonable ratio is indispensable for achieving an equitable result” (ibid., p. 73, Judge Sette-Camara, s ep a rate opinion. See, also, Anglo-French Arbitration, RIAA, Vol. XVIII, p.58, para.101). The application of the principle of proportionality is an instance of the use of the sense of injustice to test the justice of a result, as described in paragraphs 104-109 above. Even though the equidistance principle is based on equitable considerations, equidistance is only a prima facie solution. The fact of gross disproportionality as in this case would suffice to move the Court away from that prima facie solution. Such disproportion constitutes a special circumstance within the meaning of Article 6, paragraph 1, of the 1958 Convention as well as a relevant circumstance under customary international law. PART C. EQUITY VIEWED IN GLOBAL TERMS

233. At the conclusion of this survey of the applications of equity in the Judgment of the Court, it would be ap p ro p ri ate to examine the concept b ri e fly in global terms. Given the crucial importance of equity to the law of the sea, and given also that the law of the sea is still at a critical and fo rm at ive phase, no examination of equity’s influence upon the law of the sea is complete without a search for concepts, principles and attitudes that range further afield in a global sense. Such a universal view can only strengthen maritime law, both in its conceptual content and in its authoritative fo rc e. The concepts of equity currently drawn upon by international law do not represent the totality of the available corpus of equitable thought wherewith to strengthen the equitable ap p ro a ch to the problems of maritime law. Such perspectives can also offer insights of value in the determination of a case such as this. 234. The Intern ational Court of Ju s t i c e, s p e c i fi c a l ly stru c t u red to e m b o dy a “ rep re s e n t ation of the main fo rms of civ i l i z ation and of the p rincipal legal systems of the wo rl d ” (see A rt i cle 9 of the Statute of the

304

Universalising International Law

C o u rt ) , is under a particular obl i gation to search in all these traditions and l egal systems for principles and ap p ro a ches that enri ch the law it administ e rs , and in the context of the present case, this applies to the contri bu t i o n s t h at equity can make to the law of the sea. 235. A search of global traditions of equity in this fashion can yield p e rs p e c t ives of fa r- re a ching importance in developing the law of the sea. Among such pers p e c t ives deep ly ingrained there i n , wh i ch intern at i o n a l l aw has not yet tap p e d, a re concepts of a higher trust of earth re s o u rc e s , a n e q u i t able use thereof wh i ch extends inter- t e m p o ra l ly, the “sui ge n e ri s” s t atus accorded to such planetary re s o u rces as land, l a kes and rive rs , t h e c o n c ept of wise stewa rdship there o f, and their conservation for the b e n e fit of future ge n e rations. Their potential for the development of the law of the sea is self-ev i d e n t . 236. Such pers p e c t ives are to be found in many traditions and civ i l i z at i o n s , and the ubiquitous nat u re of the principle of equity has alre a dy been noted in the juri s p rudence of this Court . 237. With special re fe rence to the Law of the Sea, Ju d ge A m m o u n o b s e rved in the N o rth Sea Continental Shelf cases : “ I n c o rp o rated into the gre at legal systems of the modern wo rl d re fe rred to in A rt i cle 9 of the Statute of the Court , the principle of equity manifests itself in the law of We s t e rn Europe and of Lat i n A m e ri c a , the direct heirs of the Romano-Mediterranean jus ge n t i u m; in the common law, t e m p e red and supplemented by equity descri b e d as accessory; in Muslim law wh i ch is placed on the basis of equity (and more part i c u l a rly on its equiva l e n t , equality) by the Ko ran and the teaching of the four gre at jurisconsults of Islam condensed in the S h a ri ’ a , wh i ch compri s e s , among the sources of law, the i s t i h s a n, wh i ch authori zes equity-judgments; Chinese law, with its pri m a cy for the moral law and the common sense of equity, in harm o ny with the Marxist-Leninist philosophy; Soviet law, wh i ch quite cl e a rly p rovides a place for considerations of equity; Hindu law wh i ch re commends ‘the individual to act, and the judge to decide, a c c o rd i n g to his conscience, a c c o rding to justice, a c c o rding to equity, if no other rule of law binds them’; fi n a l ly the law of the other A s i a n c o u n t ri e s , and of the A f rican countri e s , the customs of wh i ch part i cu l a rly urge the judge not to dive rge from equity and of wh i ch ‘ t h e c o n c i l i ating role and the equitable nat u re ’ h ave often been underva lued by Europeans; customs from wh i ch sprang a jus ge n t i u m c o n s t ituted jointly with the rules of the common law in the fo rmer Bri t i s h p o s s e s s i o n s , the lacunae being filled in ‘ a c c o rding to justice, e q u i t y and good conscience’; and in the fo rmer Fre n ch possessions, j o i n t ly with the law of We s t e rn Euro p e, s t e eped in Roman Law. A ge n e ral principle of law has consequently become establ i s h e d,

Equity in a Global Context

305

wh i ch the law of nations could not re f rain from accep t i n g, a n d wh i ch founds legal re l ations between nations on equity and justice.” (I . C . J. Rep o rt s , 1 9 6 9 , pp. 139-140, Ju d ge A m m o u n , s ep a rate opinion; footnotes omitted. ) 238. The list of sources cited by Judge Ammoun provides a vast resource from which to quarry the elements of the universal sense of justice and fairness that underlies the meaning of equity. Some other important sources should also be mentioned - the fine analyses of justice in Greek1 and Judaic2 philosophy; the equity-impregnated concept of “dharma” in Hindu jurisprudence; 3 the eleborately researched concept of fairness and justice in Buddhism;4 the Christian tradition of justice and conscience as “weightier matters of the law” as opposed to mere legalism;5 and the Qur’anic injunction:

1

Cf. the conflict between conscience and the unjust law as highlighted in Sophocles’ Antigone, fifth century B.C. – Sophocles, Antigone, Eliz. Wyckoff (trans.), in Complete Greek Tragedies II, ed. D. Grene and R. Lattimore, 1960, University of Chicago Press, p. 170. 2 “If mankind is to master the greatest of all arts, the art of living together in neighbourlines – if law is to light the march of the human spirit toward a closer understanding among nations – we must recognize the truth which was revealed to the Prophets of Israel, that equity is an integral component of justice.” (Ralph A. Newman, “The Principles of Equity as a Source of World Law”, 4 Isreal Law Review (1966), p. 631.) 3 The Bhagavad Gita gives righteousness a central place in world order (IV.7) and the very first word of this classic, described as the glory of Sanskrit literature, is the word “dharma”- see Juan Mascaró (trans.), Penguin Classics, 1962,p.37; and the Brihad Aranyaka Upanishada characterizes dharma as the king of kings (1,4-14). Kane’s monumental treatise on the dharmasastra (P.V. Kane, History of Dharmasastra, 1946) sets out among the meanings of dharma the concepts of duty, right, justice and morality (Vol. I, p.I). Fritz Berolzheimer describes the philosophical positions regarding justice in ancient India as “the antecedents of later legal and ethical developments among the Greeks and Romans” (Berolzheimer, The World’s Legal Philosophies, 1968,p.37). 4 See, generally, K.N. Jayatilleke, “The Principles of International Law in Buddhist Doctrine”, 120 Recueil des cours (1967-1), pp.443-567. World rulership is to be under a “kingless authority”. That “kingless authority” is to be the law (p.539); and righteousness is extremely important to the Buddhist conception of law (p.449). Two conceptions underlie the Buddhist attitude towards law; (a) the rule of righteousness; ( b) the happiness and well-being of mankind (L. P. N. Perera, Buddhism and Human Rights, 1991, p.41). 5 See Matthew 23:23. The expostions of conscience by mediaeval churchmen (such as the Summae Confessorum written to guide priests in assessing the mroal conduct of penitents) were probably an influential source in shaping the thinking of the early English Chancellors (see A. W. B. Simpson, A History of the Common Law of Contract, 1975, p. 405. See , also, ibid., pp. 377-379 and pp.397-405). Their primary concern centred so much on conscience that the rubric under which early Chancery cases are to be found is not Equity but Conscience (see ibid.,p.398), for in laying the foundations of equity jurisprudence, the Chancellor sat “as a judge of conscience, in a court of conscience, to apply the law of conscience....” (ibid).

306

Universalising International Law

“If thou judge judge in equity between them for God loveth those who judge in equity” 1 which has been the subject of extensive commentary over the centuries by the jurists of Islam. 2 239. The sophisticated notions of reasonable and fair conduct currently being unveiled by modern researches in African,3 Pacific4 and Amerindian5 customary law, and the principle of deep harmony with the environment whichunderlies Australian Aboriginal customary law6 add to the reservoir of sources available. 240. What emerges is a notion of equity broad-based upon global jurisprudence which speaks therefore with greater authority. Notions of the supremacy of international law, its impregnation with concepts of righteousness, the sacrosanct nature of earth resources, harmony of human activity with the environment, respect for the rights of future generations, and the custody of earth resources with the standard of due diligence expected of a trustee are equitable principles stressed by those traditions - principles whose fuller implications have yet to be 1

2

3

4

5 6

Surah 5, Verse 45, Yusuf Ali’s translation. In particular, the technique of legal reasoning called istihsan, referred to by Judge Ammoun, accords an important role to equity. See, also, John Makdisi, “Legal Logic and Equity in Islamic Law”, 33 American Journal of Comparative Law (1985), P.63; H. Afchar, “The Muslim Conception of Law”, International Encyclopedia of Comparative Law, Vol.VII, pp.90-96, and the same author on “Equity in Musulman Law”, in Ralph Newman (ed.), Equity in the World’s Legal Systems, 1973, pp. 111-123. Their techniques of legal reasoning included qiyas (reasoning by analo gy), istishab (presumption of continuity), istislah (considerations of public interest) and istihsan (a concept of equity). See Makdisi, op.cit., pp.40-45. The relevance to equity of some of them - such as istislah and istihsan – need scarcely be stressed. The individual’s right of ownership of land is limited by the superior right of the social group to which he belongs - A.N.Allott,in Cotran and Rubin (eds.), Readings in African Law, 1970,p.265. See also, T.O.Elias, The Nature of African Customary Law, 1956, p.272: “It is this motive of the judge to do equity that is the most persistent characteristic of the African judicial process.” See, also,M.Gluckman, The Judicial Process among the Barotse of N.Rhodesia, 1955, pp.202-206; J.H. Driberg (“The African Conception of Law”, Journal of Comparative Legislation and International Law, November 1934,pp.230-246) discusses African law as an organic growth keeping in tune with the changing needs of society. On the felt standards of the community which are not themselves matters of law entering the process of judgment, see, M.Gluckman, Order and Rebellion in Tribal Africa, 1963,pp.178-206. See,generally, Peter Sack, Land between Two Laws,1973; and P.Hambruch, Nauru: Results of the South Seas Expedition, 1914, For the trust concept in traditional Hawaiian land law, see M.K.MacKenzie (ed.), Native Hawaiian Rights Handbook, 1991,p.26. See K.N. Llewellyn and E.A.Hoebel, The Cheyenne Way, 1941; Charles F.Wilkinson, American Indians, Time, and the Law, 1987. See H.McRae,G. Nettheim, L.Beacroft, Aboriginal Legal Issues, 1991, pp.44-56; Mabo v. Queensland (1992), 7 Australian Law Journal 408 (High Court of Australia).

Equity in a Global Context

307

woven into the fabric of international law. Such an approach can also give to equity, especially in its application to the increasingly important area of planetary resources such as the sea, a deeper and more insightful meaning than it would bear if the search were less than universal. It also emphasizes the long-term perspectives that need to be kept in view as a developing branch of the law settles into the conceptual mould which gives it shape for the foreseeable future. 241. Two examples of such broader perspectives which are specially relevant to the law of the sea and which are drawn from two widely different legal traditions will illustrate this proposition. They highlight the principles of conservation of earth resources and safeguards against environmental pollution which are of particular importance to the law relating to such an important earth resource, and are not without relevance to maritime boundary delimitation cases. This case itself has highlighted the importance of conservation as a factor constituting the background to the dispute before it, for the near extinction of the capelin, one of the richest resources of this maritime region, was a compelling circumstance leading to the international negotiations preceding this case. 242. The first illustration of such a broader perspective comes from traditional legal systems such as the African, the Pacific, and the Amerindian, which contained a deeply ingrained respect for the earth, the atmosphere, the lakes and the seas, which the evolving law of the sea can consider with profit.1 Among Pacific societies, for example, land had metaphysical connotations which prevented it from being seen as a sale-able commodity like items of merchandise.2 Respect for these elemental constituents of the inheritance of succeeding generations dictated rules and attitudes based upon a concept of an equitable sharing which was both horizontal in regard to the present generation and vertical for the benefit of generations yet to come.3

1

2 3

See, also, E.B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, 1989, for the recognition by diverse cultures that each generation is a trustee or steward of the natural environment for the benefit of generations yet unborn, and for the fact that intergenerational fairness can be addressed under principles of equity in accordance with a long tradition in international law of using equitable principles to achieve a just result. See P. Sack, op.cit., pp.33 and 37. See E.B.Weiss, op.cit., p.37, “The use of equity to provide equitable standards for allocating and sharing resources and benefits lays the foundation for developing principles of intergenerational equity. These principles can build upon the increasing use by the International Court of Justice of equita ble principles to achieve a result that the Court views as fair and just.

308

Universalising International Law

243. The second illustration comes from Islamic law wh i ch enshri n e s another deep ly re l evant equitable idea - the idea that earth re s o u rces s u ch as land cannot be the subject of outright ow n e rship as is the case with m ovabl e s , but are the subject of trusteeship for the benefit of all future ge n e rations. Such a juristic concept dictates the principle that such re s o u rces must be tre ated with the care due to the pro p e rty of others and t h at the present must pre s e rve intact for the future the inheritance it has re c e ived from the past. In such equitable principles may lie a key to many of the env i ronmental concerns wh i ch affect the land, the sea and the air space of the planet. 244. Such transcending equities, as visualized by those systems, a dd n ew dimensions to the equitable fra m ewo rk within wh i ch the equities of the law of the sea can evo l ve, and add authority to this stru c t u re. Th ey u n d e rs c o re the special responsibility of a tri bunal delimiting mari t i m e a reas to pay due emphasis to the unive rsal nat u re of the mat e rial out of wh i ch it is moulding the law of the future. 245. To place these conclusions in an elegant setting: “Behind the dive rse facades of legal systems we discern the substantial identity of the underlying principles of equity wh i ch link l egal systems toge t h e r, as in a Gothic cat h e d ral the multiplicity of its r hythms of stone unite with the fundamental impulses of the mind and of nat u re.” 1 246. Not without reason did the emerging law of the sea find in equity a ge n e ral area of agreement among participants at UNCLOS who came to its meetings rep resenting widely diffe rent back grounds and widely dive rgent intere s t s . * * * 247. This brief survey of a vast topic - the contri bution of equity to an i n d ividual decision - is intended to indicate the many ways in wh i ch it c o n t ri butes to the process of judgment and can contri bute to the deve l o pment of the law of the sea. While not intended to be a compre h e n s ive ex p o s i t i o n , it could also serve the limited purpose of drawing attention to aspects of its operation wh i ch , by remaining implicit, m ay remain u n ex p l o re d. 248. Intern ational law throughout its history has been ri ch ly interwoven with equitable strands of thought. Of equity perhaps more than of a ny other dep a rtment of legal thought it could tru ly be said that , “Under 1 Newman, op.cit.,p.631.

Equity in a Global Context

309

the surface eddies cre ated by the decisions of individual cases, t h e re s u rges a mighty tide of the fundamental principles of justice.” 1 Th at tide needs to be drawn into service to its fullest potential as the developing law of the sea moves towa rds its fuller mat u ri t y.

(Signed) Christopher Gregory WEERAMANTRY.

1

See R.A. Newman, op.cit.,p.621.

Chapter 10

Treaties: Humanitarian Treaties and State Succession*

In 1993 Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia (Serbia and Montenegro) alleging acts of genocide within the definition of the Genocide Convention of 1948. Preliminary objections were taken by Yugoslavia to the application on the grounds inter alia that Bosnia and Herzegovina was not a party to the Convention and had not succeeded to the rights of its predecessor State under the Convention. This objection, which was overruled, raised the question of automatic succession to humanitarian treaties. The ensuing extracts from the author’s Separate Opinion examine this area of treaty law, which is of particular importance to the large number of newly emergent States in the community of nations. I.

THE ISSUE OF AUTOMATIC SUCCESSION TO THE GENOCIDE CONVENTION

I agree with the majority of my colleagues that the Court does have jurisdiction in this case. However, this case raises the important issue of automatic succession to the Genocide Convention, which has not been developed in the Court's Judgment. I believe it warrants consideration. One of the principal concerns of the contemporary international legal system is the protection of the human rights and dignity of every individual. The question of succession to the Genocide Convention raises one of the most essential aspects of such protection. The topic which I wish to address in this Opinion is the continuing applicability of the Convention to the populations to which it has applied. When a con*

Bosnia and Herzegovina v Yugoslavia, I.C.J. Reports, 1996 (II), p. 595 at 640.

310

Treaties: Humanitarian Treaties and State Succession

311

vention so significant for the protection of human life has been entered into by a State, and that State thereafter divides into two or more successor States, what is the position of its subjects in the interim period that elapses before the formal recognition of the successor States, or before the new State's formal accession to treaties such as the Genocide Convention? I think this situation should not be passed by without attention, especially having regard to the fact that the foundations for a consideration of this matter are to be found in the Court's Opinion in the earlier case on Genocide which came before it over forty years ago (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15). Another reason calling for attention to this topic is the fact that the international community is passing through a historical period, when, throughout the world, the phenomenon is being experienced of the splintering of States. This has occurred with particular intensity especially after the end of the Cold War. It is vitally important that the principle of protection of populations against human rights abuses and atrocities should be strengthened in every manner available under current legal principles; and the clarification of the law relating to State succession to a humanitarian treaty so important as the Genocide Convention is eminently such an area. Bosnia has contended that there is automatic succession to this treaty, and Yugoslavia denies this proposition. This problem leads into the intricate field of State succession to treaties – a field in which there has been much difference of juristic opinion, and in which many competing theories strive for recognition. Theories relating to State succession State succession is one of the oldest problems of international law. As Oscar Schachter reminds us, this problem goes all the way back to Aristotle who, in his Politics, gave his mind to the question of continuity when “the State is no longer the same”.1 On this problem, the views of jurists have varied between the two poles of universal succession (these were among the earliest theories, taking their conceptual position largely from the analogy of the Roman law of testamentary succession, involving a total succession to the deceased), and of total negativism, involving a complete denial of succession (based upon the conceptual analogy of a personal contract). It is not necessary for present purposes to refer to the various theories lying between these two extremes. 1

Oscar Schachter, “State Succession: The Once and Future Law”, Virginia Journal of International Law, 1992-1993, Vol. 33, p. 253, citing Aristotle, The Politics, Book III, Ch. 1. While analysing the constituent elements of a State – territory, government and population – Aristotle refers, inter alia, to the question of the continuity of contractual obligations after a change in the State.

312

Universalising International Law

The circumstances of international life have demonstrated that neither of these absolutist theories is adequate to cover all situations that might arise and that any workable theory lies somewhere between these poles.2 Quite clearly, whichever of these positions one might lean towards, some exceptions must necessarily be admitted. The question for consideration in this case is whether, even on the basis of the negativist theory that treaties of the predecessor State are not binding, a necessary exception must exist in relation to treaties such as the Genocide Convention. Much guidance is to be had on this question from the consideration of automatic succession to human rights and humanitarian treaties in general. The discussions and literature on this matter suggest a principle of automatic succession to a large range of such treaties. This Opinion does not seek to deal with all human rights and humanitarian treaties, but uses principles worked out in the context of such treaties to reach the conclusion that they apply a fortiori to the Genocide Convention which, in consequence, is a treaty to which there is automatic State succession according to the contemporary principles of international law. II.

THE “CLEAN SLATE” PRINCIPLE

(a) Historical Antecedents of the Clean Slate Principle The principle that a new State ought not in general to be fettered with treaty obligations which it has not expressly agreed to assume after it has attained statehood (the clean slate principle) is of considerable historical and theoretical importance. New States ought not, in principle, to be burdened with treaty-based responsibilities without their express consent. With the sudden advent into the international community of nearly eighty newly independent States in the late fifties and early sixties, there was a realization among them, in the words of Julius Stone, that: “their authority or their territory or both are burdened with debts, concessions, commercial engagements of various kinds or other obligations continuing on from the earlier colonial regime ...”3 2

A number of studies view multilateral treaties as an exception to the “clean slate principle”– see Ian Brownlie, Principles of Public International Law, 4th ed. ,1 9 9 0 , p. 670; D.P. O'Connell, State Succession in Municipal Law and International Law, 1967, Vol. II, pp. 212-219. The latest edition of Oppenheim, while observing that there is more room than with regard to treaties generally for the new State, on separation, to be considered bound by multilateral treaties of a lawmaking nature, singles out treaties of a humanitarian character as especially attracting this view (Oppenheim's International Law, 9th ed., Jennings and Watts (eds.), 1992, Vol. 1, s.64, pp. 222223). However, the definition of multilateral treaties presents a problem and, for the purposes of the present Opinion, it is not necessary to enter into this field.

3

Julius Stone, “A common law for mankind?” International Studies, 1960, Vol. 1, pp. 430-431. See, also E.G. Bello, “Reflections on Succession of States in the Light of the Vienna Convention on Succession of States in Respect of Treaties 1978”, German Yearbook of International Law, 1980, Vol. 23, p. 298; D.P. O'Connell, State Succession, op. cit., p. 116.

Treaties: Humanitarian Treaties and State Succession

313

For example, in Nigeria, 300 treaties negotiated by Britain were said to be applicable to the country.4 Other newly emerging countries soon became conscious of the dangers to their autonomy involved in this principle, and what came to be known as the Nyerere Doctrine emerged under which none of the colonial treaties became applicable unless the new State, within a specified period of time, notified its accession to such treaties.5 In the language of Jenks, in relation to State succession to colonial treaties, “The psychology of newly won independence is a formidable reality”.6 This was not, however, the only historical reality that favoured the clean slate theory. There were numerous older precedents, of which a few illustrative examples may be mentioned. Following the Franco-Prussian war and the transfer of Alsace-Lorraine, French treaties applicable to the provinces had, in general,7 to cease to have effect and be replaced by German treaties. Again, British jurists, facing the problem of annexation of colonial territories, tended towards the view that “the treaties of the expunged legal person died with it,”8 so that they received those colonies free of the burden of prior treaties. At the United Nations Conference on Succession of States in Respect of Treaties9 several other examples were referred to, among them the situation resulting from the termination of the AustroHungarian Empire, when Czechoslovakia and Poland emerged as independent States with a clean slate in regard to treaties of the former Austro-Hungarian Empire, except for certain multilateral treaties.10 The clean slate theory was thus the result of many historical trends,11 and had received favour at one time or another from both emerging and established nations.

4

By exchange of letters between the Prime Minister and the United Kingdom High Commission on the very day of independence, the Federation assumed all rights and obligations entered into “on their behalf” before independence, and undertook to keep such agreements in force until the Government of Nigeria could consider whether they required modification or renegotiation in any respect (E.G. Bello, op.cit., p. 298).

5

ibid., pp. 298-299.

6

C. Wilfred Jenks, “State Succession in Respect of Law-Making Treaties”, British Year Book of International Law, 1952, Vol. 29, p. 108.

7

An exception wa s ,h owever, in regard to ecclesiastical law, where Napoleon's Concordat with the Holy See continued to apply.

8

D.P. O’Connell, “Reflections on the State Succession Convention”, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 1979, Vol. 39, p. 735.

9

Vienna, 4 April – 6 May 1977, and 31 July – 23 August 1978.

10

Official Records, Vol. III, p. 92, para. 14. O'Connell, “Reflections on the State Succession Convention”, op.cit., p. 735.

11

314

Universalising International Law

(b) Theoretical Bases of the Clean Slate Principle Theoretically, the clean slate principle can be justified on several powerful bases – the principle of individual State autonomy, the principle of self-determination, the principle of res inter alios acta, and the principle that there can be no limitations on a State's rights, except with its consent. Newly independent States should not have to accept as a fait accompli the contracts of predecessor States, for it is self-evident that the new State must be free to make its own decisions on such matters. The clean slate principle could also be described as an important corollary to the principle of self-determination, which is of cardinal importance in modern international law. The principle of self-determination could be emptied of an important part of its content if prior treaties automatically bind the new State. One of the bases of the negativist view is that treaties entered into by the predecessor State are res inter alios acta. Castrén, dealing specially with the case of division of a pre-existing State into new States, observes: “When a State is dismembered into new independent States, its treaties as a rule become null and void without descending to the new States. Treaties are generally personal in so far as they presuppose, in addition to the territory, also the existence of a certain sovereign over the territory. To the succeeding State, the treaties concluded by the former State are res inter alios acta.”12 Basic concepts of State sovereignty also require that any curtailment of the sovereign authority of a State requires the express consent of the State. If there is to be, in a given case, a deviation from the clean slate principle, sufficiently cogent reasons should exist to demonstrate that the new State's sovereignty is not being thereby impaired. The question needs therefore to be examined as to whether there is any impairment of State sovereignty implicit in the application of the principle of automatic succession to any given treaty. (c) Necessary Exceptions to the Clean Slate Principle Human rights and humanitarian treaties involve no loss of sovereignty or autonomy of the new State, but are merely in line with general principles of protection that flow from the inherent dignity of every human being which is the very foundation of the United Nations Charter. At the same time, it is important that the circle of exceptions should not be too widely drawn. Conceivably some human rights treaties may involve economic burdens, such as treaties at the economic end of the spectrum of human rights. It is 12

E. Castr n, “Obligations of States Arising from the Dismemberment of Another State,” Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht, 1950-1951, Vol. 13, p. 754 (emphasis added); cited by M.G. Maloney in Virginia Journal of International Law, 1979-1980, Vol. 19, p. 892.

Treaties: Humanitarian Treaties and State Succession

315

beyond the scope of this Opinion to examine whether all human rights and humanitarian treaties should be exempted from the clean slate principle. It is sufficient for the purposes of this Opinion to note a variety of reasons why it has been contended that human rights and humanitarian treaties in general attract the principle of automatic succession. These reasons apply with special force to treaties such as the Genocide Convention or the Convention against Torture, leaving no room for doubt regarding automatic succession to such treaties. The international community has a special interest in the continuity of such treaties. III. REASONS FAVOURING VIEW OF AUTOMATIC SUCCESSION TO THE GENOCIDE CONVENTION 1.

It is Not Centred on Individual State Interests

This Court, in its earlier consideration of the Genocide Convention, drew pointed attention to the difference between a humanitarian treaty such as the Genocide Convention, and a convention aimed at protecting the interests of a State. The Court stated in its Opinion on Reservations to the Genocide Convention that: “In such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d'être of the convention. Consequently, in a convention of this type one cannot speak of individual advantages or disadvantages to States, or of the maintenance of a perfect contractual balance between rights and duties.” (I.C.J. Reports 1951, p. 23.) Charles De Visscher has remarked on the contrast “between the frailty of agreements of merely individual interest, dependent as these are upon transitory political relations, and the relative stability of conventions dictated by concern for order or respect for law.”13 He has also remarked in this context that the growing part played by multilateral treaties in the development of international law should count in favour of the transmission rather than disappearance of the obligations they create.14 Human rights and humanitarian treaties do not represent an exchange of interests and benefits between contracting States in the conventional sense, and in this respect may also be distinguished from the generality of multilateral treaties, many of which are concerned with the economic, security or other interests of States. Human rights and humanitarian treaties represent, rather, a commitment of the participating States to certain norms and values recognized by the international community. 13

Theory and Reality in Public International Law, revised ed., 1968, tr. P.E. Corbett, p. 179.

14

ibid.

316

Universalising International Law

Stated another way, the personality of the sovereign is not the essence of such an agreement. Multilateral treaties are most often concluded with the object of protecting and benefiting the international community as a whole, and for the maintenance of world order and co-operation, rather than of protecting and advancing one particular State's interests. 2.

It Transcends Concepts of State Sovereignty

The Genocide Convention does not come to an end with the dismemberment of the original State, as it transcends the concept of State sovereignty. An important conceptual basis denying continuity to treaties is that the recognition of the continuity of the predecessor State's treaties would be an intrusion upon the sovereignty of the successor State. This would be so if it were a matter confined within the ambit of a State's sovereignty. But with human rights and humanitarian treaties, we are in a sphere which reaches far beyond the narrow confines of State sovereignty, and enters the domain of universal concern. In its ongoing development, the concept of human rights has long passed the stage when it was a narrow parochial concern between sovereign and subject. We have reached the stage, today, at which the human rights of anyone, anywhere, are the concern of everyone, everywhere. The world's most powerful States are bound to recognize them, equally with the weakest, and there is not even the semblance of a suggestion in contemporary international law that such obligations amount to a derogation of sovereignty. 3.

The Rights It Recognizes Impose No Burden on the State

Moreover, a State, in becoming party to the Convention, does not give away any of its rights to its subjects. It does not burden itself with any new liability. It merely confirms its subjects in the enjoyment of those rights which are theirs by virtue of their humanity. Human rights are never a gift from the State and hence the State, in recognizing them, is not imposing any burden upon itself. We have long passed the historical stage when a sovereign, granting to his subjects what we would today call a human right, could claim their gratitude for surrendering to them what was then considered to be a part of his absolute and undoubted rights as a sovereign. Human rights treaties are no more than a formal recognition by the sovereign of rights which already belong to each of that sovereign's subjects. Far from being largesse extended to them by their sovereign, they represent the entitlement to which they were born. Quite contrary to the view that human rights treaties are a burden on the new State, it could indeed be asserted that the adherence by a new State to a system which is universally accepted, whereby the new State becomes part of that system, is indeed a benefit to the new State, in sharp contrast to the position of disadvantage in which it would place itself if it stood outside that system.

Treaties: Humanitarian Treaties and State Succession

4.

317

The Obligations Imposed by the Convention Exist Independently of Conventional Obligations

This Court observed in Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, “the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation” (I.C.J. Reports 1951, p. 23). The same may be said of all treaties concerning basic human rights. The Court referred also in the same Opinion to the universal character of the condemnation of genocide. This condemnation has its roots in the convictions of humanity, of which the legal rule is only a reflection. The same could likewise be said of many of the basic principles of human rights and humanitarian law. 5.

It Embodies Rules of Customary International Law

The human rights and humanitarian principles contained in the Genocide Convention are principles of customary international law. These principles continue to be applicable to both sovereign and subjects, irrespective of changes in sovereignty, for the new sovereign, equally with the old, is subject to customary international law. The customary rights which the subjects of that State enjoy continue to be enjoyed by them, whoever may be their sovereign. The correlative duties attach to the sovereign, whoever he may be. The position is no different when those customary rights are also embodied in a treaty. This factor may indeed be seen in wider context as essential to the evolution of international law into a universal system. Among writers who have stressed this aspect in relation to multilateral treaties are Wilfred Jenks, who observed: “It is generally admitted that a new State is bound by existing rules of customary international law. This principle has, indeed, been of fundamental importance in the development of international law into a world-wide system . . . It is not clear why, now that the rules established by multipartite legislative instruments constitute so large a part of the operative law of nations, a new State should be regarded as starting with a clean slate in respect of rules which have a conventional rather than a customary origin.”15 In regard to such a matter as genocide, there can be no doubt that the treaty is of fundamental importance to the development of the operative law of nations. 6.

It Is a Contribution to Global Stability

The strengthening of human rights protections in accordance with universally held values is a matter of universal concern and interest. 15

W. Jenks, op.cit., p.107.

318

Universalising International Law

The promotion and encouragement of respect for human rights is, according to Article 1(3) of the United Nations Charter, one of the Purposes of the United Nations, and the reaffirmation of faith in fundamental human rights and the dignity and worth of the human person are among the foremost objects that the peoples of the United Nations set before themselves “to save succeeding generations from the scourge of war”. Genocide attacks these concepts at their very root and, by so doing, strikes at the foundations of international stability and security. A State's guarantees of human rights to its subjects in terms of even such a Covenant as the International Covenant on Civil and Political Rights are thus a matter which does not concern that State alone, but represent a contribution to human dignity and global stability – as distinguished, for example, from a commercial or trading treaty. This aspect is all the more self-evident in a treaty of the nature of the Genocide Convention. At the United Nations Conference on State Succession on 22 April 1977, the Soviet Union drew attention to a letter by the International Committee of the Red Cross to the Chairman of the International Law Commission to the effect that no State had ever claimed to be released from any obligation under the Geneva Conventions. In this connection, the representative of the Soviet Union observed that, “Such a practice had not created difficulties for newly independent States.”16 He also observed: “Thus treaties of a universal character were of paramount importance for the whole international community, and particularly for newly independent States. It was therefore in the interests of not only newly independent States but also of the international community as a whole that a treaty of universal character should not cease to be in force when a new State attained independence.”17 7.

The Undesirability of a Hiatus in Succession to the Genocide Convention

If the contention is sound that there is no principle of automatic succession to human rights and humanitarian treaties, the strange situation would result, of the people within a State, who enjoy the full benefit of a human rights treaty, such as the International Covenant on Civil and Political Rights, and have enjoyed it for many years, being suddenly deprived of it as though these are special privileges that can be given or withdrawn at the whim or fancy of governments. Populations once protected cease to be protected, may be protected again, and may again cease to be protected, depending on the vagaries of political events. Such a legal position seems to be altogether untenable, especially at this stage in the development of human rights. 16

24th meeting, 22 April 1977, Official Records, Vol. I, p. 164, para. 5.

17

ibid., p. 163, para. 2.

Treaties: Humanitarian Treaties and State Succession

319

Jenks observes, “It is not a matter of perpetuating the dead hand of the past, but of avoiding a legal vacuum.”18 This vacuum could exist over “hundreds of thousands of square miles and millions of citizens ...”.19 He also refers to: “the uncertainty, confusion and practical inconvenience of a legal vacuum which may be gravely prejudicial not only to the interests of other States concerned but equally to the interests of the new State itself and its citizens”.20 The undesirability of such a result becomes more evident still if the human rights treaty under consideration is one as fundamental as the Genocide Convention. If the principle set out earlier is not clearly recognized, the international legal system would be endorsing the curious result that people living under guarantees that genocide will not be committed against them will suddenly be deprived of that guarantee, precisely at the time they need it most – when there is instability in their State. The anomaly of a grant followed by a withdrawal of the benefits, of such a Covenant as the International Covenant for Civil and Political Rights, becomes compounded in the case of the Genocide Convention, and the result is one which, in my view, international law does not recognize or endorse at the present stage of its development. Furthermore, there may be circumstances where, after a new State has proclaimed its independence, the accession of that State to statehood may itself be delayed by the non-recognition of a breakaway State by the State from which it breaks away. In such a situation, where advent of the new State to statehood is deliberately delayed by action of the former State, there can be no accession to the treaty by the breakaway State for a considerable time. During that period, it seems unreasonable that the citizens of that breakaway State should be deprived of such protection as the Convention may give them, against acts of genocide by the State from which the secession has occurred, as well as by the State that has seceded. The longer the delay in recognition, the longer then would the period be during which those citizens are left unprotected. Such a result seems to me to be totally inconsistent with contemporary international law – more especially in regard to a treaty protecting such universally recognized rights as the Genocide Convention. 8.

The Special Importance of Human Rights Guarantees Against Genocide during Periods of Transition

To the strong conceptual position resulting from the foregoing considerations, there must be added the practical imperatives that result from a realistic view of the international situation occurring in the process of the dismemberment of a State, with all the political, social and military turmoil that is known only too well to accompany that process in modern times. 18

Jenks, op. cit., p. 109.

19

ibid. ibid.

20

320

Universalising International Law

It would in fact be most dangerous to view the breakup of a State as clearing the decks of the human rights treaties and obligations of the predecessor State. It is dangerous even to leave the position unclear, and that is why I have felt impelled to state my opinion upon this all-important matter. All around us at the present time, the break up of States has often been accompanied by atrocities of the most brutal and inhuman kind, practised on a scale that defies quantification. To leave a lacuna in the continuity of the law or any vagueness in the perception of that continuity would be fraught with danger to the most cherished values of civilization. If the principle of continuity in relation to succession of States, adopted in Article 34(1) in the 1978 Vienna Convention on Succession of States in Respect of Treaties, is to apply to any treaties at all, the Genocide Convention must surely be among such treaties. Furthermore, humanitarian treaties formulate principles that are an established part of the law of war. The law of war applies, of course, even in regard to an internal war (vide Geneva Convention 1977, Protocol II). The applicability of the principles underlying these treaties, among which the Genocide Convention may also be reckoned, becomes particularly important in times of internal turmoil. Such treaties cannot be suspended sine die during times of internal unrest such as accompany the break up of a State, when they are most needed. 9.

The Beneficiaries of the Genocide Convention Are Not Third Parties in the Sense Which Attracts the Res Inter Alios Acta Principle

The beneficiaries of the Genocide Convention, as indeed of all human rights treaties, are not strangers to the State which recognizes the rights referred to in the Convention. The principle that res inter alios acta are not binding, an important basis of the clean slate rule, does not therefore apply to such conventions. There is no vesting of rights in extraneous third parties or in other States, and no obligation on the part of the State to recognize any rights of an external nature. Far from being a transaction inter alios, such treaties promote the highest internal interests which any State can aspire to protect. 10. The Rights Conferred by the Convention Are Non-derogable The rights and obligations guaranteed by the Genocide Convention are nonderogable, for they relate to the right to life, the most fundamental of human rights, and an integral part of the irreducible core of human rights. It relates not merely to the right to life of one individual, but to that right en masse. Moreover, under the Genocide Convention, the obligation of States is not merely to refrain from committing genocide, but to prevent and punish acts of genocide. The failure by a successor regime to assume and discharge this obliga-

Treaties: Humanitarian Treaties and State Succession

321

tion would be altogether incompatible with State obligations as recognized in contemporary international law. Another possible line of inquiry, not necessary for the determination of the present matter, is the analogy between a treaty vesting human rights, and a dispositive treaty vesting property rights. From the time of Vattel21, such a dispositive treaty, as for example a treaty recognizing a servitude, has been looked upon as vesting rights irrevocably in the party to whom they were granted; and those rights, once vested, could not be taken away. Perhaps in comparable fashion, human rights, once granted, become vested in the persons enjoying them in a manner comparable, in their irrevocable character, to vested rights in a dispositive treaty.22 This interesting legal hypothesis need not detain us here as the conclusion I have reached is amply supported by the other principles discussed. *** Some of the reasons set out above, even considered individually, are cogent enough to demonstrate the applicability of automatic succession to the Genocide Convention (and indeed to a wide range of human rights and humanitarian treaties). Taken cumulatively, they point strongly to the clear incompatibility with international law of the contention that the Genocide Convention ceases to apply to the subjects of a State upon the division of that State. IV. INTERNATIONAL PRESSURE FOR RECOGNITION OF THE PRINCIPLE OF AUTOMATIC SUCCESSION In the discussions that took place at the United Nations Conference on Succession of States in Respect of Treaties, this aspect of a need to prevent a hiatus occurring in the process of succession of States received emphasis from several States. The position was well summarized by one delegate who, while pointing out that the “essence of the problem was to strike a balance between continuity and the freedom of choice which was the basis of the ‘clean slate’ principle”,23 stated that, in the case of multilateral treaties, the need for continuity was pressing. He described as an “international vacuum” the situation that could arise if this were 21 See E. de Vattel, The Law of Nations or Principles of Natural Law, (tr.) C. Fenwick, 1916, p. 169, referred to in Virginia Journal of International Law, 1979-1980, Vol. 19, p. 888, note 16. 22 On the possible extension to human rights of the doctrine of acquired rights which has traditionally been applied to dispositive treaties and property rights, see Malcolm N. Shaw, “State Succession Revisited”, in Finnish Yearbook of International Law, 1994, Vol. 5, p. 82; Rein Mullerson, “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia” , 42 International and Comparative Law Quarterly, 1993, Vol. 42, pp. 490-491. See also the statement at the Human Rights Committee of one of its members referring to these rights as “acquired rights” which were not “diluted” when a State was divided (Serrano Caldera, CCPR/C/SR.1178/Add. 1, 5 November 1992, p. 9. 23 Mr. Shahabuddeen, speaking for Guyana, 23rd Meeting, 21 April 1977, Official Records, Vol. I, p. 163.

322

Universalising International Law

not the case, and spoke of this as “a lacuna inconvenient both to the newly independent State and to the international community”.24 This question has also been considered in some depth by the Commission on Human Rights and by the Human Rights Committee. At its forty-ninth session, the Commission on Human Rights adopted resolution 1993/23 of 5 March 1993, entitled “Succession of States in respect of international human rights treaties”. This resolution encouraged successor States to confirm officially that they continued to be bound by international obligations under relevant human rights treaties. The special nature of human rights treaties was further confirmed by the Commission in its resolution 1994/16 of 25 February 1994, and the Commission, in that resolution, reiterated its call to successor States which had not yet done so to confirm to appropriate depositories that they continued to be bound by obligations under international human rights treaties. The Committee on Human Rights, at its forty-seventh session (March/April 1993), stated that all the people within the territory of a former State party to the Covenant remained entitled to the guarantees under the Covenant. It is worthy of note also that during the fifth meeting of persons chairing the human rights treaty bodies, held from 19-23 September 1994: “The chairpersons emphasized, however, that they were of the view that successor States were automatically bound by obligations under international human rights instruments from the respective date of independence and that observance of the obligations should not depend on a declaration of confirmation made by the Government of the successor State.”25 The Ad Hoc Committee on Genocide also made the important point that the crime of genocide generally entails the complicity or direct involvement of governments26 and national courts are likely to be reluctant or ineffective in adjudicating claims of State-sponsored genocide – hence the importance of Article IX.27 All of these views, though not authoritative in themselves, serve to underline the principle here under discussion. These are all committees with special experience of handling problems in the human rights area, and the force of their conviction of the necessity of such a rule emphasizes how vital it is in actual practice.

24

Ibid., p. 162. See, also, Sweden Mr. Hellners, 26th Meeting, 25 April 1977, ibid., p. 177.

25

E/CN.4/1995/80, 28 November 1994, p. 4.

26

See annexed slip (from p. 654).

27

Ibid.

Treaties: Humanitarian Treaties and State Succession

323

If such should be the principle suggested, in regard to human rights conventions such as the Covenant on Civil and Political Rights, one can be left in little doubt regarding its essentiality in regard to conventions such as the Genocide Convention. A clarification of this principle is one of the ways in which international law can respond to the needs of international society. In the words of Jenks, written in the context of State succession to treaties: “if our legal system fails to respond to the widely felt and urgent needs of a developing international society, both its authority as a legal system and the prospect of developing a peaceful international order will be gravely prejudiced”.28 *** All of the foregoing reasons combine to create what seems to me to be a principle of contemporary international law that there is automatic State succession to so vital a human rights convention as the Genocide Convention. Nowhere is the protection of the quintessential human right – the right to life – more heavily concentrated than in that Convention. Without automatic succession to such a Convention, we would have a situation where the worldwide system of human rights protections continually generates gaps in the most vital part of its framework, which open up and close, depending on the break-up of the old political authorities and the emergence of the new. The international legal system cannot condone a principle by which the subjects of these States live in a state of continuing uncertainty regarding the most fundamental of their human rights protections. Such a view would grievously tear the seamless fabric of international human rights protections, endanger peace, and lead the law astray from the Purposes and Principles of the United Nations, which all nations, new and old, are committed to pursue. (Signed) Christopher G. Weeramantry

28

Jenks, op cit., p. 110.

324

Universalising International Law

This page intentionally left blank

PART C

INTERNATIONAL LAW AND UNIVERSAL PEACE

This page intentionally left blank

Introduction to Part C This part contains a variety of perspectives on peace. It first explores the philosophical and religious approaches to the concept and its practice over the centuries and then deals with the importance of peace education at all levels – for without popular understanding of the concept it has little practical value. The concluding chapter shows the ways in which international law needs to be reconsidered if it is to serve its main purpose – of being a practical instrument for the attainment of world peace.

This page intentionally left blank

Chapter 11

Philosophical Perspectives on Peace

The Variety of Approaches to the Problem of World Peace Peace is the paramount objective of international law. Since, in general, international law lacks an enforcement arm1 and depends for its authority on an appeal to the minds and hearts of people even more than any domestic system of law, it must draw much of its strength and inspiration from philosophical perspectives. Philosophical perspectives must thus provide a principal motive force for peace. There has been no lack of these down the ages from the very commencement of recorded thought, and it therefore becomes an important part of international law scholarship to scrutinise this visionary thinking and draw as much practical strength from it as possible. Such teachings about peace fall into two broad categories – religious teachings and philosophical inquiries. This chapter will confine itself to the latter. Those who have philosophised about peace have approached the problem along many routes ranging from the idealistic to the intensely practical. Any meaningful attempt to address the question of global peace requires an appreciation of this diversity of approaches, for each of them has valuable perspectives to offer. Among them are idealistic approaches, social and economic approaches, educational approaches, psychological approaches, constitutional approaches, costbenefit approaches, realist approaches and gradualist approaches.

1

With occasionally used exceptions such as under Chapter VII of the UN Charter, ad hoc tribunals such as the International Criminal Tribunals for Yugoslavia and Rwanda and the International Criminal Court which has not yet commenced its work. The UN Charter provisions for enforcement by the Security Council of judgments of the International Court of Justice have not been used thus far.

329

330

Universalising International Law

The idealist approach sees as essential the universal enthronement of transcendent values deriving from religious, spiritual and high moral sources. Justice related approaches see the establishment of social and economic justice on a global scale as a precondition to universal peace. Those favouring the educational approach believe that universal peace results from the universal spread among individuals of the higher values and that this is an important practical route to the goal of a just world order. Psychological approaches seek to deflect feelings of aggression as a practical means for avoiding conflict and thus achieving universal peace and order. According to the cost-benefit approach war results in certain evils and peace results in certain benefits, and a dispassionate appraisal of the extent to which the latter outweigh the former will ward off the current reliance on force as a resolver of conflicts. There are other writers who visualise a solution at a constitutional level – a world government or a federal world state. The realist approach seeks to strip war of its aura of glory and show it as it really is. The environmental/human survival approach stresses the escalation in weaponry that occurs once war begins and the environmental devastation and threat to human survival that can occur when the more dangerous weapons are used. Another approach which may be described as the gradualist approach seems to have practical advantages in view of current world organisation. While the sovereignty of states is preserved, increasing segments of state controlled activity such as health, communications, environmental protection, narcotics control, industrial law and human rights are seen as becoming subject to overall international authorities specially set up for this purpose, with international authorities enjoying jurisdiction even within the territory of sovereign states. The spread of this trend into ever increasing areas will result in course of time in a global ordering of all the international activities that matter. There have been other approaches as well but the above will suffice to convey some idea of the attention the problem has commanded from the thinkers of all cultures and historical periods. Some of these approaches may be described as visionary and idealistic, but it does not follow that they are to be rejected for that reason, for idealism has often been productive of far reaching practical consequences. Others are more related to realities as they now exist on the ground. Perhaps the solution will eventually be found along the lines of a mix of all these different approaches. Before we deal with these various approaches a few general observations may be useful. We shall briefly deal with two aspects - first with some connotations of the word ‘peace’ and second with the way in which the world of the statesman and the diplomat has swung from time to time between the positivist and the idealist approaches to the problem of establishing the institutions of peace.

Philosophical Perspectives on Peace

331

The Varied Connotations of “Peace” Just as there are numerous avenues to the achievement of peace, so also there are numerous connotations of the concept itself. Peace within the heart and mind of each individual may be said to be the primary connotation of peace. This connotation, which may be described as the religious or spiritual connotation, is not unrelated to the meaning of peace in the larger or political connotation for, according to many major philosophies of peace, the wider connotation of peace is unattainable unless the inner peace of each individual radiates outward to society, making society itself a haven of peace. Peace in society would not be a real and stable peace unless it flows from the peaceful disposition and attitudes of its individual members. Another connotation of peace is that it denotes the absence of war or armed hostilities. This is the connotation that is most readily conjured up when the word ‘peace’ is used, but it conveys only a fraction of its true meaning, for numerous conflicts of various sorts can rage while “peace” in this sense prevails. This meaning of peace could be referred to as “minimal peace” as opposed to the “deeper peace” which “embodies certain positive characteristics and values (such as justice, equality, respect, etc.) that make the society generally free of violence and conflict.”2 In the words of Martin Luther King, Jr., “True peace means not the absence of conflict but the presence of justice.” Yet again peace must be considered not merely in the context of the absence of physical force. Force which negates the existence of peace can take many forms – economic, social, psychological, religious, regional and political pressures of an extreme nature, which a given society or nation is unable to resist. This is duress, which operates with the same compulsive force as armed attacks. Peace in the true sense needs to be free of these pressures as well. It must not be thought of merely in the sense of absence of physical force. Again, the world is sometimes said to be at peace when there is no global conflict in progress such as was typified during World Wars I and II. In between the Wars, as well as after World War II the world was said to be at peace, whereas in fact 50 or more substantial armed conflicts have been raging in various parts of the world since the end of World War II. The world has not in fact been free of conflict at any time during this period. The word “peace” is also used in the sense of a transitory period of cessation of hostilities such as a truce between two episodes of war. What passes for “peace” is often only a period of truce intervening between hostilities. In fact peace can be discussed and analysed at several levels and it is important to bear in mind at which level the topic is under discussion. 2

John A.Vasquez, “Understanding Peace: Insights from International Relations Theory and Research” in A Natural History of Peace, ed. Thomas Gregor, Vanderbilt University Press, 1996.

332

Universalising International Law

It is important when one reads the references to peace in international documents such as the UN Charter and the Universal Declaration of Human Rights to bear all these meanings and levels in mind and to distinguish them accordingly. Quite often statesmen and lawyers fail or refuse to see these distinctions with the result that their ensuing settlements, treaties and peace agreements become a dismal failure. Articles 39 and 2(7) of the UN Charter as well as the entirety of Ch.VII need to be read in this light. Expressions such as “international peace”, or “threat to the peace” as well as numerous resolutions of UN and other international bodies relating to peace, need all to be read with a clearer understanding of which particular meaning of peace is in contemplation. The Congresses that ensue after major wars are generally described as Peace Congresses. Yet, through lack of attention to these different meanings and levels the bitterness of feelings that attended the conflict are still permitted to continue, with little if any abatement. Indeed the bitterness of defeat might even be worse than the bitterness of conflict and the Congress is often a Peace Congress only in name. The settlements after the Franco Prussian War and the meetings at Versailles after World War I are typical examples. The “peace” which followed was only a period of preparation for a conflict more bitter than that which was supposed to have been settled by the Congress. Such Congresses are object lessons for the student of peace as to how the long term prospects of peace can be defeated by short term advantages extracted after the conflict, without a proper realisation of the multitudinous connotations of the concept that need attention.3 The Swings of the Pendulum between Positivism and Natural Law History records periodic swings of the pendulum of national and world opinion between what may be described as the positive law approach and the natural law approach. There are times, as in the bulk of the post Napoleonic 19th century, when the pendulum swung decidedly in favour of positivism. The era of Prussian militarism, the consolidation of the British Empire, the Clausewitzean Century as it was called, was an era when war was thought to be the natural extension of diplomacy 3

See Lepard, op.cit., p. 150 for 5 such connotations: 1. Peace as a temporary cessation of violence or military hostilities; 2. Peace as a cessation of or respite from violence or military hostilities coupled with arrangements such as a peace agreement, designed to secure the continuation of a state of nonviolence; 3. Peace as a semipermanent absence of violence supplemented by a minimal degree of social harmony or stability (for example, including stable diplomatic relations among states or the absence of widespread and severe violations of essential human rights within them); 4. Peace as all the above with a higher level of diplomatic harmony in interstate relations or a fuller realisation of human rights within states; and 5. Peace as all of the above plus an inner sense of “tranquillity” within the minds of individuals.

Philosophical Perspectives on Peace

333

and armed force was the order of the day. Paradoxically, it was the era also of the proliferation of peace societies, when more than 400 of them straddled the globe. World War I was its inevitable outcome but following on the carnage of that worst disaster in world history up to that time, there was a swing of the pendulum towards natural law thinking. The League of Nations was the result. However this swing of the pendulum was not as strong as it might have been, mainly owing to the obduracy of the larger states who held on doggedly to every vestige of their national sovereignty, reluctant to concede any part of it – even the judicial – to a supra national authority. President Woodrow Wilson, who spearheaded this movement towards a new world order, could not carry even the United States with him and the hopeful moves towards an enduring world peace crashed on the rocks of revenge and self-interest which littered the corridors of Versailles. The pendulum swung in even more extreme fashion towards positivism as a consequence of these attitudes and the iron rule of the resulting dictatorships propelled the world towards World War II. At its conclusion there was a dramatic swing towards the higher ideals of natural law. The United Nations, the Universal Declaration of Human Rights, the move towards the disbanding of empires – these were of an order of natural law thinking which the world had rarely seen since the heady days of the American revolution. These events proved the strength of the sad old adage that it needs a catastrophe to bring the nations of the world to their senses. The swing of the pendulum towards natural law, much stronger than the swing after World War I, lasted longer, but it soon lost its momentum under the impact of the Cold War which drove both adversaries into a positivistic stance to protect their own interests, thus blocking out the sunlight of liberalism which might otherwise have brightened up the international scene. The end of the Cold War could well let the sunlight in once more and one power, now entrenched as the super power of the world, has an unrivalled opportunity to offer world leadership in advancing international law as the key to world order. It is earnestly to be hoped that this leadership opportunity will be seized, for never before in history has any nation been favoured with so much power to enthrone the global rule of law. It is to be hoped that the broader perspectives will be perceived and that the unique opportunities that now exist for propelling world affairs to a higher plane will not be lost. The rest of this chapter will explore very briefly the various categories of visions of peace which have been specified above. They will be approached in the following sequence: 1. 2.

Idealistic approaches Justice-related approaches

Universalising International Law

334

3. 4. 5. 6. 7. 8. 9.

Educational approaches Psychological approaches Cost-Benefit approaches Constitutional approaches Realist approaches Environmentalist/Human Survival approaches The Gradualist approach

1.

Idealistic Approaches Idealistic approaches see the enthronement of transcendental values as being of great practical value in the attainment of global justice. Transcendental values enter the discourse of peace through religious teachings as well as through philosophical writings. The former are dealt with in Chapter 12 and the ensuing discussion confines itself to the philosophical writings. As these are so vast in range and number we shall in this study confine ourselves to the representative collection of philosophical perspectives considered by three outstanding peace philosophers, Desiderius Erasmus, Leo Tolstoy and Aldous Huxley, who symbolised three of the outstanding eras when thoughts about peace preoccupied the minds of intellectuals – the Renaissance, the 19th century and the period succeeding the two World Wars of the 20th century.4 Erasmus (1466-1536) the pre-eminent humanist of the Renaissance period, whose statue very appropriately adorns the gardens of the International Court of Justice, devoted a considerable part of his scholarly effort to the concept of peace. He saw peace as being oppressed and crushed by the forces of his time and sought to analyse the reasons for this reversal of the proper order of human affairs. He published his celebrated Complaint of Peace at a time when the intellectual world was in ferment with dissatisfaction with the existing order. This publication, coinciding with Martin Luther’s posting of his ninety five theses on the cathedral door in Wittenberg, was a plan for a reversion to the basic values which should guide human conduct. Though these values lay at the very basis of Christian civilisation, they were totally negated by both Church and State. He personifies Peace as being driven out of every human institution and makes a powerful plea for a re-enthronement of the pristine values of civilisation. If this could be done, war “the destroyer of all things and the very seed of evil” could itself be destroyed. “What is there of prosperity that it does not infect? What is secure or pleasant that it does not undermine? No greater enemy of goodness or religion can be found. Though nothing is more odious and harmful to 4

For ease of reference all the works cited may conveniently be referred to in Howard P. Kainz’s excellent collection of peace writings – Howard P. Kainz, Philosophical Perspectives on Peace, Libra Publishers, 1987.

Philosophical Perspectives on Peace

335

man, yet it is incredible to see the tremendous expenditure of work and effort that intelligent beings put forth in an effort to exchange me for a heap of ruinous evils.” Man alone, though endowed with reason and enriched with the gifts of the Holy Spirit, rejects it although the various solar systems, the stars in the firmament and the animal kingdom are based on harmony. “Take for example the behaviour of elephant herds, of swine and sheep pasturing together. Cranes and jays flock together. Storks noted for their parental care have their well-known roosts. Dolphins are known to defend one another, bees and ants demonstrate great community efforts”. It seemed easier for Peace to take up its abode among beasts rather than men. Peace complains that it could find an abode neither in the courts of princes nor at the council tables of statesmen and diplomats, nor in the churches or monastic orders or universities nor even in the family. Erasmus reminds us that Homer marvelled that even for such desirable things as sleep, food, drink, dance and music, humans would at a certain stage be satiated with them, but that the impulse for war could never be satisfied. A reversion to the pristine values was what was required. Peace is to be found not in leagues or confederations which are often the very source and cause of wars. “We must look for peace by purging the very sources of war, false ambitions and evil desires. As long as individuals serve their own personal interests, the common good will suffer.” Rulers are placed under heavy responsibilities, for the measure of their majesty and happiness is the honesty, contentment and wealth of their subjects. Their attitude to their subjects should be that of a father to his family. “This world of ours is the fatherland of the entire race.” “Bloodless victories are few and far between. Your men will inevitably be contaminated with the blood of others. And at the same time earnestly consider the moral degeneration and absence of public discipline, whose restoration will be a very tedious matter …. Those who are just are burdened, the malicious are enticed further … skilled labour, art and commerce rapidly decay …” There are some who wickedly thrive on war and encourage it. “We should conscientiously judge whether this dishonesty should so heavily outweigh the earnest will of all good men.” The reality is that “(W)ar incessantly sows war, vengeance seethingly draws vengeance, kindness generously engenders kindness, favours will be abundantly returned by

336

Universalising International Law

other favours and he will humbly appear most righteous who, at all times, considers the right of others first.”5 Using the transcendent values of Christianity as a focal point for reference, Erasmus thus explores the total inconsistency of war with the fundamental principles of Christian civilisation. His vivid dramatisation of the banishment of Peace from any effective participation in human governance caught the imagination of his age and focussed attention on the enormous disparities between Christianity as taught and practised in professedly Christian countries. Generations of thinkers have been stirred and inspired by the work of Erasmus in tearing away the veils of hypocrisy which conceal the true exchanges at many a conference hall and diplomatic table. Another thinker whose work has commanded great historical influence is Leo Tolstoy (1828-1910). Tolstoy attracted great attention in the latter part of the 19th century and it may well be that his influence was a dominant thread in the array of influences fashioning the thinking of Czar Nicholas II when he called the great Peace Conference of 1899. This was a landmark event in the history of international organisations, leading as it did to the creation of the Permanent Court of Arbitration and in turn to the Permanent Court of International Justice and the International Court of Justice. It is said that the Czar was so enamoured of the works of Tolstoy that he regularly read extracts from them to the Czarina at night. In The Kingdom of God is within You (1893) Tolstoy blamed unthinking public opinion for the sad spectacle of “millions of stupefied men ready, like chained dogs, to attack those against whom their master may set them….. Only let the mist evaporate that hides from man the true meaning of certain deeds of violence, and the Christian public opinion that is growing up will overcome the obsolescent pagan public opinion that permits and justifies deeds of violence.” Tolstoy’s thesis was that wars would only be ended when the public reform their attitudes to wealth, power, privilege and position. In his work he referred to the changes of attitude that were slowly making their impact on Russian society. The better people were gravitating away from the positions in which they could exploit the people and benefit themselves and were looking to vocations of service such as doctors, teachers, artists and writers, where formerly they would have sought legal, administrative, ecclesiastical or military positions as routes to fame and fortune. If this process continued there could be a dramatic alteration in the propensity of society for war.

5

See The Essential Erasmus, ed. & tr. John P. Dolan, New English Library & New Australian Library, 1964, pp. 174-204 as reproduced in Howard P. Kainz, Philosophical Perspectives on Peace, op.cit., pp. 148-176.

Philosophical Perspectives on Peace

337

“The condition of Christian humanity, with its fortresses, cannon, dynamite, rifles, torpedoes, prisons, gallows, churches, factories, custom houses, and palaces, is really terrible. But neither the fortresses nor the cannon nor the rifles will attack anyone of themselves, the prisons will not of themselves lock anyone up, the gallows will not of themselves hang anyone, nor will the churches delude anyone or the custom houses hold anyone back, and the palaces and factories do not build themselves or maintain themselves. All this is done by people. And if they once understand that there is no necessity for all these things, these things will disappear.” Thus the prediction would come to pass that men will cease to make war anymore, and will beat their swords into ploughshares and their spears into pruning hooks. Gallows, guns and cannon will remain unused. Humanity was approaching this condition with ever increasing rapidity. “Each of us has only to begin to do what he ought to do and cease doing the contrary. We need only each of us to live according to the light that is in us to bring about the promised Kingdom of God towards which the heart of every man aspires.” So great was his faith that a reformed human nature will see war as totally impermissible, that Tolstoy was most optimistic that a just and peaceful world order would thereby be attained. “But is it possible that so strong an aversion for human suffering, for illtreatment, for the killing of men, should have been so deeply implanted in you; that you should be so imbued with the need of loving your fellows and a still stronger need of being loved by them, that you see clearly that only by recognising the equality of all men and by mutual service one of another can the greatest good that is accessible to man be realised; that the same thing is taught you by your heart, by your reason, by the faith you profess, and the same said by science – is it possible that despite all this you can by some very vague and complicated reasoning be forced to do everything directly opposed to it?” “…and every young man – really compelled to be a soldier, and renouncing your own will and all human sentiments, compelled to promise to kill all those whom men you do not know may order you to kill?” To Tolstoy it was inconceivable that when people’s sensitivity to these higher values was sharpened they could continue to be so cruel and illogical as to perpetuate the institution of war. Aldous Huxley (1894-1963) as was appropriate to the post-war years, searched much further afield than in purely European learning for the perennial

338

Universalising International Law

principles on which peace could be based. In his Perennial Philosophy he surveys all religions, deploring the tendency of Western philosophy to write on metaphysics “as though nobody had even thought about these subjects, except the Jews, the Greeks and the Christians of the Mediterranean basin and Western Europe… The ignorance of European scholars was sufficient reason for this provincialism. Today, when more or less adequate translations are available in plenty, there is not only no reason for it, there is no excuse.” He sees this ignorance and lack of recognition as an obstacle to world peace. “Like any other form of imperialism, theological imperialism is an enemy to world peace.” “……Like any other form of imperialism, theological imperialism is a menace to permanent world peace. The reign of violence will never come to an end until, first, most human beings accept the same, true philosophy of life; until, second, this Perennial Philosophy is recognised as the highest factor common to all the world religions; until, third, the adherents of every religion renounce the idolatrous time philosophies, with which, in their own particular faith, the Perennial Philosophy of eternity has been overlaid; until, fourth, there is a worldwide rejection of all the political pseudo-religions, which place man’s supreme good in future time and therefore justify and commend the commission of every sort of present iniquity as a means to that end. If these conditions are not fulfilled, no amount of political planning, no economic blueprints however ingeniously drawn, can prevent the recrudescence of war and revolution.” Huxley was of immense significance as indicating the awakening of European socio-political thought to the global setting in which alone it can command universal support – a thought most important to international law which by its very nature is premised on global acceptance. Though not a writer on international law, he was exposing a prime weakness of international law – its Achilles’ heel, so to speak – which, while basing itself exclusively upon European thought and philosophy, was expecting to command global acceptance. One could examine philosophical approaches to this topic at greater length but the writers referred to are perhaps sufficient to convey some idea of the many ways in which the higher values can be posited as prerequisites to the attainment of global peace. 2.

Justice-Related Approaches

There cannot be true peace without justice and hence a peaceful world order depends upon the presence of justice on a global scale. But the concept of justice has many complexities within itself and one needs to analyse its various forms and constituent elements.

Philosophical Perspectives on Peace

339

Legal philosophy has over the ages thrown up a rich variety of theories of justice. Some of these deal with justice in the purely legal sense. Others deal with other vital facets of justice such as social justice, economic justice, political justice and group justice as opposed to individual justice. All of these theories concern themselves with justice within the framework of a state. In relation to world order we need an extended area of application of these principles so that they have a universal application. One is reminded straightaway of Kant’s theory of the categorical imperative – make a rule of conduct for yourself which could equally be the rule of conduct of everyone else in your society – which applies to any society, at any time, in any circumstances, so much so that it could theoretically apply to the entire global community or even to a community on another planet. The same applies to the golden rule of Christian conduct – do as you would be done by. Its applicability is universal and covers all facets of life – political, social, economic, family relations, and the like. Many of the perennial justice theories can be applied on a global scale but it is important in the sphere of international law particularly, that they should cover social, economic and political justice as well as purely legal justice. Rawls’ theory of justice as fairness has much relevance here. The test propounded by Rawls is simply that there would be fairness in social ordering in a given society if a person agreed in advance to being a member of that society without knowing what his or her position might be in that society and without even knowing what his or her special abilities or talents might be. If behind such a veil of ignorance people are prepared to join that society, the chances are that its social ordering would be a just one. This rests upon the simple logic that there is every chance that there will not be major injustice in a scheme of social ordering which that person, behind a veil of ignorance, is prepared to join. In such a society any disadvantage to be suffered by any person or group would presumably be offset by commensurate benefits, thus rendering that particular inequality just in the overall scheme of things. Should we apply such a view to international society it is clear that most of the current social, economic and other orderings in international society are manifestly unfair. A world in which, irrespective of the merits of the individual, that individual may be cast into a society in which his children may starve to death, millions are below the poverty line, and oppression from domestic and foreign political and economic forces is overpowering, is clearly not one of justice and fairness by Rawlsian standards. This approach tellingly illustrates the truth that injustice on a global scale is prevalent in regard to wealth, status, power, educational opportunities and every aspect of an individual’s position in society. International society is thus a breeding ground for discontent, and a vast discontented society living under massive injustices is a breeding ground for conflict and violence. True peace

340

Universalising International Law

must consist in an effort to track down the causes of these iniquities and abolish them. There have been many philosophical efforts to track down the causes of war which point in the same direction. Proudhon for example (1809-65) saw poverty as a primary cause of war and declarations of war as being linked in the most intimate way to economic considerations. Marx likewise, though with a different and revolutionary approach, saw economic systems as the creators of injustice. For Proudhon international law and the laws of war were simply too weak to prevail against compelling economic considerations, and if war was to be abolished, economic justice should first be achieved. Economic justice also underpinned Jeremy Bentham’s (1748-1832) Plan for a Universal and Perpetual Peace.6 He saw many wars as originating with requirements of trade. Although war was believed, if successful, to produce prosperity, he saw war as unfavourable to prosperity. He likened the victor in a war to a man who had a leg cut off and, with the stump healed, could hop faster than a man lying in bed with both legs broken. It was only in this sense that a war could be considered successful or glorious or productive of prosperity. In fact it was the reverse. It severely hobbled the victor as well as the vanquished. Bentham is notable also, in the context of modern international law, for the prescience with which he saw the iniquity of all forms of colonialism. One of the basic propositions he laid down was that “It is not in the interest of Great Britain to have any foreign dependencies whatsoever” – a thought which must indeed have been revolutionary at the time. In his forthright manner he condemned British colonial conquests as “bungling imitations of miserable originals …. Nothing but continued blindness can prompt us to go on imitating Alexander and Caesar…”. Colonialism in his view damaged the fortunes and interests of both colonisers and colonised and it was a highroad to future wars. It stood in the way of his plan for perpetual peace. Whichever way we consider the problem it is clear that the bedrock on which world peace can be built is a basic justice enjoyed by all sections of the global community. A world of immense want in some sectors and immense prosperity in others is the reverse of this prescription and hence the widening disparities between the rich and the poor worlds, between the North and the South, such as we see at present must be a cause of grave concern. If this problem remains unaddressed global peace will be an ever-receding ideal. The problem is compounded further by a new species of injustice which technology has introduced especially during the past century – the problem of environmental injustice. The rich world causes damage to the entire planetary environment through its industrial activity which benefits itself primarily if not exclusively, but for which the whole planetary population pays. Much of the environmental 6

Written 1789, published 1843.

Philosophical Perspectives on Peace

341

damage takes place moreover in the developing world, which pays the heaviest price for the least benefit enjoyed. There is also the aspect of inter-generational damage, thus provoking the emergence of sustainable development as one of the main planks of the just world order of the future. Not without reason was it considered necessary in 2002 to convene a global meeting at Johannesburg of heads of state around this theme and not without reason will sustainable development soon make a claim to be a grundnorm of the international law of the future. It will be of interest that this topic was considered central enough to be the subject also of a meeting of Chief Justices of the world, convened at Johannesburg a week before the global summit of Heads of States and that the judges passed a resolution unanimously on this topic, which was forwarded to the meeting of Heads of State. All these varied approaches will show how the problem of global peace has been approached by the philosophers down the ages. There can be little doubt that this is one of the central problems and concerns of philosophy, and it has indeed been one of the sad facts of history that the bridges have been few and far between, that link the world of philosophy with that of realpolitik. The world of power and politics, pride and prejudice, pomp and pageantry scarcely pauses to consult or commune with the world of the philosopher except when its vital interests are at stake and when it does so it picks up a few crumbs of its wisdom and learning too little and too late. Those who live in these worlds have tended to deride the thought of philosophers. In the plaintive words of Immanuel Kant in his “Eternal Peace”, the practical statesman “assumes a haughty air and looks down upon the theorist with great satisfaction as a mere theoriser. The worldly-wise statesman may, therefore, without giving himself great concern, allow the theorizer to throw his eleven bowlingballs all at once.” This section, it is hoped, gives a fair sampling of the eleven and more bowling balls that the philosophers have thrown over the ages. In the midst of this richness of ideas there are leading concepts without which the peaceful world order of the future cannot be built. The world of power must consider them. It is not difficult to understand why over two thousand years ago Plato expressed the seemingly impractical view that there could not be justice in the state until kings become philosophers and philosophers become kings. This observation has equal relevance to the global state of the future. 3.

Educational Approaches7

Education for peace has many aspects. Its primary basis is the proposition that every individual contains within himself or herself the elements out of which peace or war would eventually result. If the bulk of individuals want peace and will not tolerate war, that society will be peaceful, but if the bulk of individuals are prepared 7

See further Chapters 12-14 below.

342

Universalising International Law

to tolerate war as a necessary evil, war will result. In short, public opinion is based upon an infinite number of individual wills. Consequently, education of those individuals would be a lasting basis for world peace and may indeed be the only basis. War is chiefly the product of public opinion and what can be established by public opinion can be destroyed by public opinion. Education for peace must therefore start with the educational process in schools. This involves the following:1. De-glorifying war and taking it down from the pedestal of honour and glory on which it has been enthroned by successive generations of politicians, writers, artists, poets and even philosophers. 2. Exposing the inhumanity of war and its awful realities. As Tolstoy points out, war involves “ever increasing armaments and millions of stupefied men ready like chained dogs to attack those against whom their master may set them.”8 3. Education on the benefits of peace. Peace throughout the ages has had a bad press. This was well set out by Erasmus in his Complaint of Peace in which Peace complains that men have cast her out from all their assemblies. Peace speaks of itself as the source and defender of all good things – of prosperity, of security and of happiness. He points out that throughout society people who claim to be Christians act in total disagreement with what is most important to Christ who was the Prince of Peace. Society needs to be rid of its hypocrisy and education is the route to this result. 4. Schools need to teach also the sad realities that history is soaked with the cruelties of warfare. To quote Erasmus again,9 “Let us look at the last ten years. What land or what sea did not witness warfare? What region was not soaked with Christian blood? The cruelty of Christians surpasses that of heathens and beasts…” All pretence aside, ambitions, anger, and the desire for plunder are at the base of Christian wars. 5. Children need to be taught the true basis of war, which is greed, ambition and anger. 6. The hidden benefits of war to those who exploit it need to be brought to the open. Those who benefit from it are rulers, arms dealers, politicians and merchants who make a profit from the immensely lucrative business deals involved. 7. The reasons why war continues to be resorted to need to be analysed and shown to school children in simple terms. Some of these are indicated in section 5 of this chapter, dealing with cost-benefit approaches. 8. Children need to be taught to exercise their influence for peace, as citizens of the world. No government will commit itself to a war situation if its citizens are genuinely opposed to it. War and peace is not a matter for presidents and prime 8 9

Philosophical Perspectives on Peace, Edited by Howard P. Kainz, p. 178. Op-cit. p.160.

Philosophical Perspectives on Peace

343

ministers and generals alone but is one of the first concerns of the average citizens, taking priority over other matters such as the economy, which tend to attract compulsive attention, especially in times of elections. 9. Children need also to be taught that in their time they will not be able to look upon themselves merely as citizens of their State but will also need to take their place as citizens of the world, taking the same interest in matters of world government as they take in matters relating to their own government. 4. Psychological Approaches Psychological perspectives examine ways in which aggression can be subdued. They involve not only an examination of the instinct for aggression as part of human nature but also of ways in which feelings of hurt and disappointment which develop into animosities and hatred can be diverted or modified somewhere along the way. If international law is to function at a high level of practicality it needs to take note of these psychological insights. It is useful to observe preliminarily that religious teachings also have much to offer in this area ranging from the forgiveness taught by Christianity to the compassion and the deep psychological analyses of Buddhism in regard to the ways in which misunderstandings grow into hatreds and the methods by which these can be modified. Mediation, conciliation and dispute resolution are some of the procedures for which instruction and guidance can be found in religious literature. It would be convenient to start the psychological discussion with Freud’s insights on the human propensity for violence. Freud draws attention to the inclination for aggression which can be assumed to be present in the human psyche.10 He cites in favour of this Plautus’ proposition,11 the atrocities committed by the Huns, by the Mongols under Jenghiz Khan and Tamerlane, by the Crusaders at the capture of Jerusalem and by the Nazis. In consequence of this instinct of hostility, civilised society is perpetually threatened with disintegration. Civilisation must consequently hold these tendencies in check by ‘psychical reaction formation guiding people into love and co-operation with one’s neighbour’. Freud does not see aggressiveness as a result of property but sees it as inherent in human nature even in primitive times when property is scanty. Freud therefore warns that it would be difficult to give up this basic inclination to aggression and emphasises the need to take serious note of this natural and ever present propensity. A sublimation of aggression can be found in work and in human relationships. He sees practical difficulties in giving effect to the Christian precept of asking people to love their neighbours as themselves. Although his conclusions are basically in the negative, the Freudian insights are a reminder of the effort needed for analysing the reactions of individuals, 10 11

Sigmund Freud, Civilisation and its Discontents, Hogarth Press, 1946, Chapter 5. Asinaria ii, iv. 88 - Homo homini lupus (Man is a wolf to man).

344

Universalising International Law

groups and nations to situations which lead to warfare. The mass hysteria one sometimes sees aroused in a group by a hostile act on the part of an outsider needs realistic psychological insights into human nature if it is to be adequately handled. It is here that other scholars come in with a series of helpful suggestions. Konrad Lorenz, for example in his work on Aggression outlines several possible areas for attention. Another means of sublimation is the promotion of personal acquaintance between people of different nations, for personal knowledge of and friendship with those in a different group constitutes a strong obstacle to aggression. It is for this reason that in countries with disparate population groups, regular exchanges of student populations or a regular mixing of populations has been practised with a view to avoiding conflict and hatred in advance. A governmental policy of such compulsory student exchange and mixing could help considerably in preserving peace and harmony within a nation. Transferring the same idea to the international sphere, regular student exchanges between nations, which can be greatly facilitated by the modern ease of communication, can be a potent means for the sublimation of feelings of hostility that might otherwise develop. The psychological value of such meetings is great because, while it is easy to feel anger and hatred towards an anonymous and distant group it is difficult to entertain such feelings towards a person one has known very well. In the words of Lorenz ‘No one is able to hate, wholeheartedly, a nation among whose members he has several friends.’ Likewise such contact with people of other groups creates a mistrust of generalisations branding adverse qualities on that group as a whole. In the former Soviet Union there were large camps in which students from distant regions of the Soviet Union were brought together to live with each other for a certain period in the expectation that this would diminish the feelings of difference that might otherwise have existed between these groups. Lorenz refers to a children’s village in Trogen, Switzerland where children of all nations were brought together to live in a friendly community. Another means of sublimation is to develop enthusiasm for causes which all people recognise as being of lofty value. Such loyalty to a common norm which straddles national, racial and religious barriers would be a powerful way of uniting people. It may well be that with the growth of international communications and information technology people from all nations will be able to bond together in the pursuit of common interests. We already see signs of this in the proliferation and growth of non-governmental organisations of various kinds. When these develop to a much higher degree, they will engender feelings of fellowship and commonality which could be a great aid to international peace and understanding in the future. Work needs also to be done to de-throne war from being an established institution and a glorious institution at that. That has been its traditional image and an

Philosophical Perspectives on Peace

345

important means of dethroning war from the pedestal it now occupies is to launch a concerted campaign at all levels to underline its brutalities, its destructive effect and its negation of all the values we hold dear. There is no dearth of uplifting and moral causes which can attract popularity, particularly with the youth. Dispelling poverty, spreading education, ensuring health, safeguarding the environment, improving working conditions, the avoidance of torture, ensuring human rights – all of these are causes which can generate as much enthusiasm as used to be generated for a war effort. If the energies of people could be attracted into these fields, the world would have a new and powerful ally in the cause of global peace. The media needs to co-operate in highlighting these causes and the efforts that are devoted to ameliorating them. At present the media build up a psychology of expectations that they will deal only with the sensational and the violent. A new media ethic which assists in infusing enthusiasm into causes such as these can help enormously. Sport is also a useful outlet, for it diverts aggression into the form of non-hostile combat. One of the values of sport is that it educates people to a conscious and responsible control of their own fighting behaviour. It also gives an outlet for national fervour and enthusiasm. International sport could in this way operate as a safety valve allowing competition between nations without developing national or political hatred. The Olympic Games are no doubt an outstanding example of this. A psychological element to be countered is the element of apathy in viewing an evil which is still at a distance. One waits until the evil knocks on one’s door before one moves into action. It is necessary to bring home to everyone the immediacy of these dangers and deprivations and to show that unless one counters them when they are distant, they may well find their way to one’s own doorstep. Another powerful means towards sublimation of any aggressive tendencies is a concerted attempt to teach the common core of all religions and to show how the basic and overriding framework of moral goodness on which they depend is universal. A compulsory exposure of all school children to the scriptures of all the religions will create in their developing minds the opposite of the feelings of remoteness and hostility which are now generated. At assembly each morning on the five days of the week if the school principal or teacher could read on successive days passages from the Bible, the Upanishads, the Dhammapada, The Qur’an and other scriptures, those children will grow up in an atmosphere of enlightenment which will help powerfully in keeping future conflicts at bay. This inter-penetration of all cultures can be worked into most of the regular curriculum subjects, be they history, geography, science, literature or poetry, music or painting and it should be the endeavour of educational authorities to produce materials on these subjects which show the universal contribution to knowledge rather than as is currently the tendency to present these departments of knowledge as though they were the exclusive creations of one culture.

346

Universalising International Law

In short we need to promote a new humanism in education.12 Teachings on the essential unity of humanity, its common origin, its interlinkages, its mutual dependence, its togetherness on one planet – all of these will generate the necessary mental attitudes which can divert such instincts of aggression as Freud and others have underlined and channel them in directions far more productive of peace than might be commonly imagined. All this is not to accept the Freudian assumptions but to show that even if one accepts these assumptions there are ways of countering them. On the other hand, there could well be considerable support for the view that basic human nature contains an immediate opposite to the Freudian assumption of aggressiveness. It could well be that humanity is cast in a different mould and that the instinctive human reaction towards one’s neighbour is one of basic love and friendship. Influential sociologists have pointed powerfully to the existence of such basic instincts.13 Desmond Morris for example, points out that if friendship towards one’s neighbour was only a modern invention and primitive life was filled with violence and hatred, humanity would never have survived as a species. “If our hunting ancestors had really been ruthless, greedy tyrants loaded with original sin, the human success story would have petered out long ago.”14 There is strong support for the view that the truth about human nature may be that there is an inbuilt biological altruism by which the species has been enabled to survive and without which it would have perished.“ “Compassion, kindness, mutual assistance, a fundamental urge to co-operate within the tribe must have been the pattern for the early groups of men to survive in their precarious environment.”15 If one takes this point of view then there is considerable hope for humanity. It harks back to the “noble savage” concept of Rousseau. A modern religious philosopher held in universal esteem, His Holiness the Dalai Lama, strongly reinforces this view that human nature is fundamentally gentle and compassionate. In fact, he goes further and emphasises the need to develop an appreciation and awareness of that fact. Such an awareness will have a real impact on how we interact with others. In other words, there could be a difference in behavioural patterns depending on whether we see ourselves as intrinsically aggressive or as intrinsically gentle.16 Without entering into a deeper analysis of these differences in the assessment of human nature, it is at least clear that a conscious effort to divert such negative aspects and to amplify such positive aspects as it might contain, is a task worthy of effort and is not to be ignored by any disciplines concerned with peace – of which 12 13 14 15 16

On Education for Peace see Ch.13 below. See Desmond Morris, The Human Zoo, Panther Books, 1979. op.cit., p. 26 ibid. See His Holiness the Dalai Lama and Howard C Cutler, M.D., The Art of Happiness: A Handbook for Living, 1999.

Philosophical Perspectives on Peace

347

international law is one of the most important. This can result in a more practical approach to the peaceful resolution of disputes. To neglect attention to this aspect is to permit the baser instincts such as might be present in some individuals to career unrestrained and to work their way into the creation of wars, without any of the restraining influences that people of goodwill can exert. 5. Cost Benefit Approaches It is not often perceived and indeed it is rarely spelt out that one of the reasons why war flourishes is that it confers a number of material benefits on those in authority in a given society. In combination they make war attractive to rulers despite its wickedness and total negation of all the higher values of civilisation. These aspects are rarely spelt out, for it is not in the interests of those who benefit from them that they be perceived. It is therefore necessary to set them out, as it is only then that their Machiavellian character becomes plain. Perceptive writers have drawn attention to these from time to time. Among these benefits are the following. The war system makes easier the stable governments of societies. War tends to smother criticism of the administration as, in a war situation, criticism of the administration takes on the appearance of disloyalty to the nation and in extreme cases even the appearance of treason. When the bulk of the energies of society are devoted to the war effort this overriding purpose subordinates other considerations, which might else assume a magnitude demanding attention from the powers that be. Criticisms of a serious nature can always be shelved as being matters which will undoubtedly be dealt with after the termination of the war. The war also makes administration far easier because it accentuates the duty of loyalty and obedience. Authority needs to be obeyed because it is in the national interest to do so and disobedience needs to be discouraged because, by weakening national authority, it can be of assistance to the enemy. In the perceptive words of Anatole France “A people living under the perpetual menace of war and invasion is very easy to govern. It does not haggle over expenditure on armaments and military equipment. It pays without discussion, it ruins itself and that is an excellent thing for the syndicate of financiers and manufacturers for whom patriotic terrors are an abundant source of gain.”17 i)

War strengthens the ruler’s hand by strengthening the armed forces The ruler can also legitimately ask for greater strength and resources for the armed forces. Since the armed forces function under the ruler’s control, the ruler therefore has another strong instrument with which in the last resort to keep his own people under control. ii)

17

See J. Larson and M. Micheels-Cyrus (eds.) Seeds of Peace: A Catalogue of Quotations, New Society Publishers, 1987, p. 96.

348

Universalising International Law

iii) War binds a nation together A war situation increases the cohesiveness of a nation. United against a common enemy, all the disparate units of a society join together, pooling their resources and channelling in a common direction the forces which might otherwise be directed against each other. The moment the war terminates these forces are released and the divergent elements in a given society will be found competing against each other for political advantage. A nation which is not at war thus seems weaker in resolve and achievement than one whose collective energies are directed towards a common goal, violent though it be. iv) War postpones the need to co-operate with neighbouring states When a nation is at peace it needs to co-operate with its neighbours and with the family of nations. This means that those in authority may have to impose a voluntary curb upon their powers in the interests of international amity. Authoritarian rulers naturally dislike this and would prefer to have a state of general obedience to their will which they can always justify on the ground of national necessity. The advantage of secrecy A war situation dispenses with much of the need for openness of government and decision-making, because secrecy in major decision-making is of the essence of the efficient conduct of war. When major decision-making is shrouded under the cloak of a secrecy which can be justified, many other decisions which are not immediately essential for the war effort can be smuggled in under that cloak of secrecy and the administration’s power to make comparatively unfettered decisions is correspondingly increased. v)

vi) Economic benefits Spending in wartime becomes more ample than it could be in time of peace because the legislature and the people become more willing to bear taxes and loosen the purse strings when this is required for military effort. Taxes to fuel the war machine are much more easily imposed than a tax to relieve suffering even in one’s own country. Indeed even academically, courses on war studies are more easy to introduce into tertiary curricula than courses on peace studies, because the latter have the appearance of visionary thinking not rooted in reality whereas courses on military study seem to have an obvious practical purpose and are firmly rooted in the world of reality. vii) Overall spending increases, unemployment decreases A much greater proportion if not the entirety of the workforce is gainfully employed. There are fewer dissatisfied unemployed who vent their grievances in public to the detriment and embarrassment of the administration. There is considerably more money in circulation and trade appears to flourish.

Philosophical Perspectives on Peace

349

Spending may increase but it is government directed and therefore there is an economy planned as the government desires. viii) Scientific advancement War has in the past been a prime mover of scientific progress under the dual impulse of necessity and the greater availability of funding. Many of the pre-eminent scientific discoveries of recent years from space physics to information technology have had their origins in military research. Once peace overtakes the nation that is at war, the pressure for results that are militarily useful is diminished and funds available for scientific research begin to get scarcer. It is not even easy to raise necessary funds for medical research and even medical research in wartime tends to benefit from wartime funding. ix) War often provides an ideal or a cause to fight for People are prepared to sacrifice their comforts and their lives for a cause. They do not complain of their deprivations. The war gives them a purpose in life, an ideal to achieve which transcends the monotony of their daily routine. All this follows of course from brainwashing and propaganda against the ‘enemy’ which has preceded the war. Benefits to powerful individuals Another reason which makes war popular is that there are many who benefit from it in the form of an increase of authority and sometimes an enormous accumulation of wealth. These people command much power with those in authority because they are in a position to wield enormous influence through their wealth, their access to the media and their power to affect the course of an election. Illegitimate though their authority may be, it is something so powerful that it cannot be discounted. This class offers its total and unstinting support to the ruler, who thus enjoys the benefit of a powerful additional source of support. A good example of this is the weapons lobby which in the United States and elsewhere has power enough to make legislators themselves dependent on their good will. All of these are factors which, though rarely acknowledged, assist in fomenting wars and in keeping them going when they begin. There are various classes of beneficiaries from rulers down to humble people who receive employment. This helps significantly to explain why, though everyone condemns war, it yet finds a place – and an honoured one too – in the activities of states. This catalogue of benefits to some is more than outweighed by the vast array of ways in which war causes infinite suffering to the vast generality of citizens. These will appear in more detail later in this chapter18 and it is scarcely necessary to set them out here. x)

18

See particularly sections 7 and 8 below.

350

Universalising International Law

In the ultimate analysis the cost-benefit approach is a catalogue of benefits to some and costs to others – benefits to a few and costs to the vast majority. Having set the problem in this context of reality it is now time to examine from various standpoints the enormity of war’s damage to the fabric of civilisation, and its brutalising and debasing effects. The cost benefit aspect was well summarised by Rousseau in his Project of Perpetual Peace. He there pointed out that the victor is always weaker than before the war when he observed: “Let us consider the waste of men, of money, of forces of all kinds, and the exhaustion into which the most successful war throws any state, and compare these injuries with the advantages it gains from it…….” “Now it is well known that as the result of the way wars are waged today the loss of life is least on the battlefield. It is there that the loss is most evident and visible, but at the same time the state suffers much graver and more irreparable loss than that of the men who die, by reason of those men who will never be born, by the increase of taxation, by the interruption of commerce, by deserted countrysides and abandoned agriculture. This evil, unperceived at first, makes itself cruelly felt later on, and it is then that a country is astonished to find itself so weak as the result of having made itself so powerful. 6.

Constitutional Approaches

These approaches have taken two forms – suggestions of a single governmental authority over the entire world community and suggestions of a world authority resulting from a federation of independent states. We shall deal with them in turn. A World Government The notion of a single world government is a very ancient one. The great world empires of the past such as the Roman, brought the prospect seemingly within the reach of practical possibility. With all the known world under one dominion, there would be one set of laws and peace within its vast territories. Of course this would be under the overlordship of the one imperial power whose interests it would always subserve, but there would be peace under one universal government. As under the Pax Romana, there could be one legal system which could be mellowed into an equitable system acceptable to all. Alexander and Caesar, and Napoleon in more modern times, afforded glimpses of that universal state, and the Code Napoleon, like the Pax Romana, offered the prototype of what could be a universal civil law. i)

Philosophical Perspectives on Peace

351

Another vision of such a world state was presented by the great religions, particularly Christianity and Islam. Theologians of these religions envisaged a world state under the rulership of the head of the religion and with a legal system based ultimately on the laws of that religion. The Papacy, the Holy Roman Empire and the Respublica Christiana were such ideas on the Christian side and on the Islamic side there was the Islamic world (Dar-al-Islam) and the non-Islamic world (Dar-al-Harb) which might sooner or later be absorbed into the world of Islam. There were also other world views as for example in China where theoretically the rulership of the Emperor, the “Son of Heaven” could extend over the whole world. In India, Hindu tradition envisaged a Chakravarti or world ruler who may some time in the future bring the whole world under his dominion and there was also the more refined concept in Hinduism and Buddhism that the ultimate world ruler might be not a physical sovereign but the law – that is an all-embracing system of international law which covers the whole world. Each of these systems attracted their appropriate philosophers who expanded on the concept of a world government. Aristotle, friend and adviser to Alexander the Great, is said to have advised him in an Epistle that it would take a long time and successive generations to obtain the firm respect of the common people of distant provinces and that this might involve exiling the ruling class from those provinces.19 There has been some controversy over the authenticity of this Epistle but in any event the document is an early vision of a world government. At a time when Rome was making strides towards ruling the whole of the known world, Cicero was able to envisage a higher law, standing above the laws of all states however powerful, which would be both eternal and universal. The Roman Empire long provided a model to philosophers of a world government, for it was highly centralised but the governors of its distant provinces enjoyed some measure of autonomy and at the same time were in a state of alliance with some local rulers who were permitted to remain upon their thrones. Later philosophers sought to adapt the Roman model to new circumstances, as when it was sought to make the reign of Christianity universal in the idealised Respublicana Christiana. The Pax Christiana would be the successor of the Pax Romana, and Dante Alighieri (1265-1321) sought to work out the necessary principles of government for such a world state having regard particularly to the interests of future generations. He visualised an eternal kingdom under God’s law established for the benefit of the whole human race. Its goal was universal peace. He argues in favour of a Monarchy as being necessary for the well being of the world. One of the reasons adduced is that if there is a dispute between princes who are each totally independent there would be no effective judgment given to settle their disputes but a third person with power such as a Monarch or Emperor 19

See S.M.Stern, Aristotle on the World State, Oxford, Bruno Cassireo, 1986, pp.3-8.

352

Universalising International Law

could render an effective judgment. Justice, which is indispensable to world order, is most powerful when it is located in an entity with a perfect will and a maximum of power. Justice is therefore most potent in the world when located in the Monarch alone and particularly in a Monarch whose universal and absolute power guarantees that he has nothing to gain or lose by his decision. Aristotle observed that the greatest obstacle to justice is cupidity.20 A global monarch who has no one to challenge him has nothing more to desire and hence will administer justice with greater fairness. This did not mean that every minute decision regarding every township could proceed directly from him, for the different characteristics of different nations and cities would demand different laws for their government. Yet the supreme prince could best lay down the law by which, subject to necessary local variations, his subjects would be governed just as Moses, having called together the tribes of Israel, left minor decisions to them while reserving to himself the major decisions which affected everyone. From such ancient and mediaeval speculations about world government we turn now to a modern reflection on the topic, which takes into account a vastly different world scenario, including the availability of weapons of mass destruction. Bertrand Russell (1872-1970) wrote eloquently on the need for a world organisation. He spoke of the current dangers of nuclear weaponry which could let loose great floods of radioactivity which may be the extinction of all life on the planet. The cruelty of modern war drove him to the concept of global government. Moreover, war becomes more destructive because the increased productivity of labour makes it possible to set aside a greater part of the population for the task of mutual slaughter. For these reasons, war is a more serious menace now than ever before and the prevention of war has become necessary if life is to continue. Also it may be taken as nearly certain that great wars will occur from time to time: “This will inevitably happen so long as there are different sovereign states, each with its own armed forces, and each the unfettered judge of its own rights in any dispute. There is only one way in which the world can be made safe from war, and that is the creation of a single worldwide authority, possessing a monopoly of all the more serious weapons.”21 Another reason adduced by him was the intimate connection between economic systems and the state. Since economic interdependence is now very much greater than in any former time and since economies are more closely linked to state administrations, economic relations between states can be a cause of rivalry and tensions, thus pointing to the need for global government. 20 21

Nichomachean Ethics (v.2). Philosophical Perspectives on Peace, Edited by Howard P. Kainz, p. 28.

Philosophical Perspectives on Peace

353

Having arrived at the conclusion that a world government was necessary, Russell stipulated that it must have a monopoly of all the major arms and have adequate armed forces at its disposal. This conclusion raises of course the problem that a world government cannot be established by consent alone and needs some element of force for its achievement. It raises also the problem that the more powerful states would want to dominate that government. The speculations of writers such as Russell tend to be dismissed as impractical for these very reasons, there being little practical possibility of independent nation states being coerced into the formation of a world state. It is interesting that at opposite ends of the historical time spectrum leading intellectuals should, for such vastly different reasons, have arrived at the conclusion that only a world state could avoid the spectre of war. Major problems attendant on all of these, whether the physical empire of Alexander, the visionary empire of Dante, the conceptual empire of the Chakravarti or the futuristic world state of Russell, are the need for force to establish them. The lack of restraint upon the sovereign, the need for uniformity of administration against a diversity of cultures and the dominance within the sovereign body of the needs and viewpoints of its dominant elements are some of the other attendant problems. These examples are all of interest, however, as illustrating how widely this approach has received recognition, straddling all geographical regions and historical eras. A World Confederation For the reasons just outlined a solution based on consent seems the only alternative, and philosophies down the ages have explored this possibility, commencing from early Greek Federations of City States to the United Nations Organisation of today. The manifest difficulties both in the establishment of a world government and in its continuing administration have naturally led to speculation about a possible organisation short of world government which can nevertheless deliver many of the peace-related benefits associated with overcoming the unrestrained authority of a sovereign state to make war on its own. Various possibilities on these lines have naturally engaged the attention of philosophers. They have generally dealt with the looser sort of union – the confederation of states rather than the single federal state. Rousseau (1713-78) and Kant (1724-1804) are perhaps the two most eminent philosophers who have considered this possibility. This is not to say that such confederations of states were a new idea devised by them as a novel constitutional proposition. The idea of a confederation of states goes back into ancient history, with such examples as the Amphyctionic Leagues of neighbouring tribes or cities,

b)

Universalising International Law

354

the Achaean League and the Delphic League among the Greeks and the Latin League among the Latins, each with arrangements for mutual defence and peacekeeping among themselves. Yet these were only on a regional basis. What these eighteenth century writers were proposing was a confederation of all the states which were operative on the world stage as known by them, and an effective surrender of their unfettered power to make war on the basis of their sovereign autonomy. Rousseau (1713-78) was anticipated in this regard by Saint Pierre (16581743) one of the first proponents of arbitration as a means of averting the conflicts that were raging among the warring states of Europe. To this end he advocated a confederation of European states who would operate through a central congress which would arrange the arbitration of their disputes. The idea received much support at the time but the procedures envisaged were complex. Rousseau built on Saint Pierre’s ideas but gave them the stamp of his own genius, observing that “no grander, finer or more useful project has ever occupied the human mind than that of a perpetual and universal peace between all the peoples of Europe.” He saw internal constitutional structures as preventing private feuds only to fan the flames of public wars which are ten thousand times more terrible. The only way of getting rid of these was by a confederative form of government which submits all states equally to the authority of the laws. He analysed the motives for all wars under six heads:

• • • • • •

to make conquests to defend oneself against an invader to weaken a too powerful neighbour to maintain one’s own rights when assailed to end a quarrel which has not been settled amicably to fulfil the engagements of a treaty

If a federation of all the powers of Europe could be achieved no single power would be able to oppose the combined will of all the others and any infraction of the alliance would result in the offending power being placed under the ban of Europe and being treated as a common enemy. Under such an arrangement every one of the causes of war listed by him would be obviated and it would be impossible for any seeds of war to be left among the members of the confederation once it was established. Rousseau also saw in such an arrangement a strengthening of the nations of Europe against all frontier nations, for the frontier European states, delivered from all anxiety on the European side, would be able to guard and protect their frontiers, and the united strength of Europe would also be an insurance against attack.

Philosophical Perspectives on Peace

355

As the circle of states within the union was progressively enlarged to take in the whole world, Rousseau’s analysis would presumably be applicable to that extended community of states. The enthusiasm and vision of Rousseau have no doubt made a lasting impact on all subsequent philosophers of world federations despite the manifest difficulty of procuring that initial surrender of important portions of state sovereignty. This would be particularly difficult in the case of the more powerful states – a difficulty still faced whenever any form of global arrangement is under discussion to this day. Whether at the Hague Peace Conference of 1899 or at Versailles prior to the creation of the League of Nations or at San Francisco prior to the creation of the United Nations this resistance was the principal drawback to a global compact and it will no doubt be one of the principal difficulties to be overcome in the future. Indeed the more powerful the nation the more reluctant it is to surrender any portions of its essential sovereignty. Among those whom Rousseau significantly influenced was Immanuel Kant (1724-1804) whose essay Eternal Peace 1795 goes beyond Rousseau’s plan in the degree of detail worked out for the peace keeping functions of the Federation. Kant works out a set of articles for the proposed organisation, some of a preliminary nature and some of a definitive nature. Among the preliminary articles he envisaged were stipulations against peace treaties with secret reservations for a future war, against the acquisition of any independent state by another, the phasing out of standing armies and the prohibition of interference in the affairs of other states. The methods of war, he philosophises, when once brought into use, continue in time of peace and negate it – hence the need to banish them altogether. “For after all, war is only the regrettable instrument of asserting one’s right by force in the primitive state of nature where there exists no court to decide in accordance with law. Moreover a war “in which destruction may come to both parties at the same time, and thus to all rights too, would allow eternal peace only upon the graveyard of the human race” – an observation which is of special pertinence in the age of modern weaponry. Kant follows his preliminary articles with a set of definitive articles, one of which is of an exclusionary nature, for only states with a republican constitution would be admitted to the federation. In a state which is not republican “it is the easiest thing in the world to start a war” because it is not the people but the ruler who decides whether to go to war, for “he will resolve upon war as a kind of amusement on very insignificant grounds”. Kant postulates also, beyond the law of nations as it then existed, a system of world law which would insure against the possibility of a disturbance of the peace and ensure his ideal of an eternal peace. These early philosophical speculations show how difficult the task is of achieving such a federative union in view of the difficulty of achieving the essen-

356

Universalising International Law

tial preconditions for such a viable world order. Self interest in the form of a reluctance to surrender privileges and power one already enjoys is the principal obstacle and what the philosophers were attempting was to show that it would be in the self interest of even the most powerful states to subscribe to such a union. They would be parting with some of their sovereign powers for the long term benefits that would result from an eternal peace. These philosophical speculations are useful in constructing a convincing argument regarding these long term benefits, for unless the great powers are thus convinced by reason, they will tend only to be convinced by the occurrence of global catastrophe. If, after World War I, the great powers had been able to agree to curtail their sovereign authority to the extent of granting compulsory jurisdiction and an enforcement mechanism to the Permanent Court of International Justice, and if the United States had been able to overcome its reluctance to join the League of Nations, the millions of lives lost in World War II might well have been saved. The voice of the philosophers, despite these traditions of several hundred years, was still not strong enough to penetrate into the echelons of power or to grip the imagination of the people sufficiently to influence their governments. Whenever they can achieve this breakthrough, the prospect of global peace is close at hand, just as it may remain a distant dream so long as this voice is ignored. 7. Realist Approaches22 Developing the law of war has been an interesting academic exercise for centuries. We have the jus ad bellum which tells us when and for what reasons a declaration of war is legitimate. We have the jus in bello which, once war breaks out, sets out the limits of legitimate military conduct. But behind the legalisms, the diplomatic exchanges and the international conferences lies the stark reality of war in terms of excruciating human suffering. This has been camouflaged down the ages through war being glorified in poetry, music, art and literature and through perennial streams of patriotic rhetoric which appear with surprising regularity in all parts of the world. It has been the highroad to fame and fortune, to national leadership and adulation. All these have helped to conceal the stark realities and to deliver death, destruction and untold suffering to successive generations on a colossal scale. All technical considerations of war and its legality take on a new meaning if we look at war in its naked reality. This is the only proper setting in which this phenomenon, unique to the human species, can be considered. a. Eye witness accounts From a bystander’s perspective Henry Dunant’s account, after seeing the battlefield of Solferino, is a classic, which attracted international attention at the time 22

Many of the quotations in this chapter can be easily traced through that excellent catalogue of peace related quotations-Jeanne Larson and Madge Michels-Cyrus, Seeds of Peace: A Catalogue of Quotations, New Society Publishers, 1996.

Philosophical Perspectives on Peace

357

he did his sterling work on the foundation of the Red Cross movement. A short extract follows: “Here is a hand–to-hand struggle in all its horror and frightfulness: Austrians and Allies trampling each other under foot, killing one another on piles of bleeding corpses, felling their enemies with rifle butts, crushing skulls, ripping bellies open with sabre and bayonet. No quarter is given. It is sheer butchery… A little further on, it is the same picture, only made the more ghastly by the approach of a squadron of cavalry, which gallops by, crushing dead and dying beneath its horses’ hoofs. One poor man has his jaw carried away; another his head shattered; a third, who could have been saved, has his chest beaten in. Here comes the artillery, following the cavalry and going at full gallop. The guns crash over the dead and wounded, strewn pell-mell on the ground. Brains spurt under the wheels, limbs are broken and torn, bodies mutilated past recognition - the soil is literally puddled with blood, and the plain littered with human remains.”23 In the context of the nuclear age these horrors achieve a new dimension as evidenced by the following eyewitness accounts of Hiroshima the day after the attack. “It was a horrible sight. Hundreds of injured people who were trying to escape to the hills passed our house. The sight of them was almost unbearable. Their faces and hands were burnt and swollen; and great sheets of skin had peeled away from their tissues to hang down like rags on a scarecrow. They moved like a line of ants. All through the night they went past our house, but this morning they had stopped. I found them lying on both sides of the road, so thick that it was impossible to pass without stepping on them. And they had no faces! Their eyes, noses and mouths had been burned away, and it looked like their ears had been melted off. It was hard to tell front from back. One soldier, whose features had been destroyed and was left with his white teeth sticking out, asked me for some water but I didn’t have any. (I clasped my hands and prayed for him. He didn’t say anything more). His plea for water must have been his last words.”24 b. Opinions of celebrated military leaders Likewise, observations by military leaders who knew war at first hand need to be more generally known. Here are some of them: 23 24

Henri Dunant, A Memory of Solferino, 1862. Hiroshima Diary: The Journal of a Japanese Physician August 6- September 30, 1945, by Michihiko Hachiya, M.D.,translated and edited by Warner Wells, M.D., University of North Carolina Press, 1955, pp 14-15.

358

Universalising International Law

“I have known war as few men now living know it. Its very destructiveness on both friend and foe has rendered it useless as a means of settling international disputes.” “War has become a Frankenstein to destroy both sides. No longer does it possess the chance of the winner of the duel – it contains rather the germ of double suicide.” General Douglas MacArthur 1961 “[I speak] …as one who has witnessed the horror and the lingering sadness of war - as one who knows that another war could utterly destroy this civilisation which has been so slowly and painfully built over thousands of years.” General Dwight D Eisenhower “I am tired and sick of war. Its glory is all moonshine. It is only those who have neither fired a shot nor heard the shrieks and groans of the wounded who cry aloud for blood, more vengeance, more desolation. War is hell.” “There is many a boy here today who looks on war as all glory; but, boys, it is all hell. You can bear this warning voice to generations yet to come. I look upon war with horror.” General William Tecumseh Sherman, 1879,1880 “The next dreadful thing to a battle lost is a battle won.” Duke of Wellington c. Observations of respected statesmen “War will exist until that distant day when the conscientious objector enjoys the same reputation and prestige that the warrior does today.” “Mankind must put an end to war or war will put an end to mankind” John F. Kennedy “The stone age may return on the gleaming wings of science.” Winston Churchill “War has always seemed to me ”the ultimate insanity”. Violence and war as the maximum demonstration of man’s capacity for inhumanity to man are against my religious beliefs, my sense of morality, and my common sense.” Dag Hammarskjold “In the past war has been accepted as the ultimate arbiter of disputes among nations. But in the nuclear era we can no longer think of war as merely a continuation of diplomacy by other means. Nuclear war cannot be measured by the archaic standards of victory and defeat.” Jimmy Carter

Philosophical Perspectives on Peace

359

d. Statistical Approaches Another aspect of the realist approach is the approach through raw physical statistics. Here is a spine chilling example: An equation: 40,000 dead young men is 3000 tons of bone and flesh, 124,000 pounds of brain matter, 50,000 gallons of blood, 1,840,000 years of life that will never be lived, 100,000 children who will never be born. “If the dead mean nothing to us (except on Memorial Day weekend…), what of our 300,000 wounded? Does anyone know where they are? How they feel? How many arms, legs, ears, noses, mouths, faces, penises they’ve lost? How many are deaf or dumb or blind or all three? How many are single or double or triple or quadruple amputees? How many will remain immobile for the rest of their days?…The Library of Congress reports that the Army Office of the Surgeon General for Medical Statistics “Does not have figures on single or multiple amputees.”.. In the words of a researcher for one of the national television networks “the military itself, while sure of how many tons of bombs it has dropped, is unsure of how many legs and arms its men have lost.” Dalton Trumbo These perspectives from a single war of the past (the Vietnam war) have to be multiplied several fold in today’s context. Indeed if Trumbo’s arithmetic is used for World War I we have the following statistics: 9,000,000 dead young men equal 1,350,000,000 pounds of bone and flesh, 27,900,000 pounds of brain matter, 11,250,000 gallons of blood, 414,000,000 years of life that will never be lived, and 22,500,000 children who will never be born. The dry if imposing figure “9,000,000 dead” seems a little less statistical when we view it from this perspective.25 Some telling economic statistics will be useful here. For the price of one missile a school full of hungry children could eat lunch every day for five years. Take this against the statistic that in the 1990s more than 10 million children died from illness and starvation while more than one hundred billion dollars worth of weapons were sold each year by the armaments trade. Many of these deaths could have been prevented for the price of 10 stealth bombers or what the world spends on its military budget in two days.26 One billion dollars are spent with difficulty on AIDS relief, while two billion dollars are more easily spent on one item of sophisticated aircraft and there are a dozen on order. Statistics are also helpful in placing the escalating cost in human lives in historical context. Quincy Wright27 observes that since about 1500 there have been 25 26 27

http://www.emory.edu/ENGLISH/LostPoets/Casualties-note.html See http://www.library/thinkquest.com See Wright Q. (1942) A Study of War, Univ. Chicago Press (2nd ed. 1965).

360

Universalising International Law

284 wars and some 3000 battles, a battle being defined as involving more than 1000 casualties on land or more than 500 at sea. In the 11th century there was less than 1 casualty per 1000 of the population, rising to 2 in the 12th century, 5 in the 13th century, 8 in the 14th century, 10 in the 15th century, 15 in the 16th century, 37 in the 17th century, 33 in the 18th century, 15 in the 19th century, 54 in the 20th century. This is a telling statistical analysis making the 20th century the bloodiest in human history. A widespread war in the 21st century is likely to escalate even this frightening statistic of the 20th century. Another interesting historical statistic is that for each interval in which the human population doubles, there occur wars in which ten times as many people are killed, as are killed by wars in the previous such period.28 In other words in the ever shortening time it takes for world population to double, the war casualty rate multiplies tenfold. In an all out nuclear war even this figure may be underestimated. It is estimated that there has been a grand total of 1 billion direct war casualties in the 14000 major and minor wars in a recorded world history of 5595 years. Studies of casualty figures in these wars have led to the conclusion that the distant past may have involved more wars but fewer casualties - people fighting more but killing each other less. Having regard to the nature of modern weaponry, these observations can well be substantially intensified in respect of future wars.29 A so called limited war like the Vietnam War caused 55,000 dead, another 35,000 accidentally killed, 33,000 crippled, 330,000 wounded. A more general war will take a far larger toll. Moreover, while a war is easy to get into it is difficult to get out of and a war which appears to be localised can easily spread. Once entered into it becomes difficult to control. It could continue to wreak its economic havoc and take its increasing toll of human life for years. e.

Observations of philosophers “What is there of prosperity that it (war) does not infect? What is secure or pleasant that it does not undermine? No greater enemy of goodness or religion can be found. Though nothing is more odious and harmful to man, yet it is incredible to see the tremendous expenditure of work and effort that intelligent beings put forth in an effort to exchange me (Peace) for a heap of ruinous evils.” “War incessantly sows war and vengeance seethingly draws vengeance…” Erasmus30

28 29 30

V.Stefflre, “Long term forecasting and the problem of large scale wars,” Futures, Aug. 1974, pp.302-8. http:// www.rint.rechten.rug.nl/rth/dennen/unesco2.html Desiderius Erasmus, The Complaint of Peace, 1517.

Philosophical Perspectives on Peace

361

“From the success of war, come, say they, our prosperity, our greatness; thence the respect paid to us by foreign powers – thence our security; and who does not know how necessary security is to opulence? … War is, in this way, just as unfavourable to opulence as in the other… Just so far then as war is, by its direct effects, unfavourable to opulence, just so far is it unfavourable to security ... And true enough it is, that a man who has had a leg cut off, and the stump healed, may hop faster than a man who lies in bed with both legs broken, can walk. And thus you may prove that Britain is in a better case after the expenditure of a glorious war, than if there had been no war; because France or some other country, was put by it into a still worse condition.” Jeremy Bentham31 “For after all, war is only the regrettable instrument of asserting one’s right by force in the primitive state of nature where there exists no court to decide in accordance with law. In this state neither party can be declared an unjust enemy, for this presupposes a court decision….. Between states no war of punishment can be conceived, because between them there is no relation of superior and subordinate. From this it follows that a war of extermination, in which destruction may come to both parties at the same time, and thus to all rights too, would allow eternal peace only upon the graveyard of the whole human race. Such a war, therefore, as well as the use of the means which might be employed in it, is wholly forbidden.” Kant32 “Now it is well known that as the result of the way wars are waged today the loss of life is least on the battlefield. It is there that the loss is most evident and visible, but at the same time the state suffers much graver and more irreparable loss than that of the men who die, by reason of those men who will never be born, by the increase of taxation, by the interruption of commerce, by deserted country sides and abandoned agriculture. This evil, unperceived at first, makes itself cruelly felt later on, and it is then that a country is astonished to find itself so weak as the result of having made itself so powerful” Rousseau33 “In the pleasant and comfortable wars of the eighteenth and nineteenth centuries, it was chiefly the combatants who suffered; now the suffering falls increasingly upon civilians. I am an old man, and I can remember a time when

31 32 33

J. Bentham, A Plan for A Universal And Perpetual Peace (1789). Immanuel Kant, Eternal Peace (1795). Jean- Jacques Rousseau, A Project of Perpetual Peace (1761).

362

Universalising International Law

it was not thought quite the thing to make war on women and children; but that happy age is past. For all these reasons, war is a greater menace now than it was formerly. The prevention of war has become necessary if civilised life is to continue, perhaps if any kind of life is to continue.” Bertrand Russell34 f. Linguistic camouflages of reality Bertrand Russell sought to debunk the patriotic overtones of war by his percipient observation that: “Patriots always talk of dying for their country, and never of killing for their country.” Modern war is full of linguistic camouflages which gloss over the reality. As I observed in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,35 “A factor which powerfully conceals that contradiction, even to the extent of keeping humanitarian law at bay, is the use of euphemistic language the disembodied language of military operations and the polite language of diplomacy. They conceal the horror of nuclear war, diverting attention to intellectual concepts such as self defence, reprisals, and proportionate damage which can have little reference to a situation of total destruction. Horrendous damage to civilians and neutrals is described as collateral damage, because it was not directly intended; incineration of cities becomes “considerable thermal damage”. One speaks of “acceptable levels of casualties”, even if mega deaths are involved. Mediating the balance of terror is described as “nuclear preparedness”; assured destruction as “deterrence”, total devastation of the environment as “environmental damage”. Clinically detached from their human context, such expressions bypass the world of human suffering, out of which humanitarian law has sprung” As observed at the commencement of this opinion, humanitarian law needs to be brought into juxtaposition36 with the raw realities of war if it is to respond adequately. Such language is a hindrance to this process. Both ancient philosophy and modern linguistics have clearly identified the problem of the obscuring of great issues through language which 34 35 36

Bertrand Russell, On World Government, (1952) . The author’s Opinion appears in I.C.J. Reports, 1996, pp. 429-555. This aspect is addressed in a volume of contemporary philosophical explorations of the problem of war, The Critique of War, Robert Ginsberg (ed.), 1969. See, in particular, Chap. 6, “War and the Crisis of Language”, by Thomas Merton.

Philosophical Perspectives on Peace

363

conceals their key content. Confucius, when asked how he thought order and morality could be created in the state, answered, “By correcting names”.37 By this he meant calling each thing by its correct name. Modern semantics has likewise exposed the confusion caused by words of euphemism, which conceal the true meanings of concepts.38 The language of nuclear war, rich in these euphemisms, tends to sidetrack the real issues of extermination by the million, incineration of the population of cities, genetic deformities, inducement of cancers, destruction of the food chain, and the imperilling of civilisation. The mass extinction of human lives is treated with the detachment of entries in a ledger which can somehow be reconciled. If humanitarian law is to address its tasks with clarity, it needs to strip away these verbal dressings and come to grips with its real subject matter. Bland and disembodied language should not be permitted to conceal the basic contradictions between the nuclear weapon and the fundamentals of international law. 8. The Environmental / Human Survival Approach It does not need much elaboration to show that a future war has the possibility of turning nuclear and that a nuclear war has the potential to destroy humanity and the planet. As Jonathan Schell observed in The Fate of the Earth “We prepare for our extinction in order to ensure our survival”. The increasing power of modern weaponry spells danger to vastly increasing proportions of the population of the warring nations and of other non-combatant nations as well. The increasing danger to populations resulting from improvements in weaponry was noted over a century ago by the Russian banker J. Bloch in a six volume treatise39 aimed at showing that future wars would be so disastrous to both participants as to render war outmoded as a means of settling disputes. The exponential increase in the destructiveness of weaponry over the past 150 years has multiplied several fold the grim statistics compiled by Bloch, but the business of war goes on nevertheless. Not only are increasing segments of the human race at risk. Modern weaponry threatens the environment as well and has the power to destroy all life on earth not once but several times over. Once a nuclear or germ war begins there is every danger of all sense of restraint being lost and of a multiple exchange of weapons which could paralyse all life on earth. Climate change and nuclear winters which could blot out all life are well on the cards. 37 38 39

Cited in Robert S Hartman, “The Revolution against War”, in The Critique of War, p. 324. “They serve to build these fragments of hell into the system of power politics, and to dim the minds of the nuclear citizens” (ibid., p. 325). The War of the Future in its Technical, Economic and Political Relations, 1899.

364

Universalising International Law

No less an authority than the Office of Technology Assessment of the US Congress in its report on The Effects of Nuclear War observed in regard to the possible consequences of a nuclear exchange. “Immediate deaths – 20 -160 million. Middle-term effects – Enormous economic destruction and disruption. If immediate deaths are in low range, more tens of millions may die subsequently because economy is unable to support them. Major question about whether economic viability can be restored. Unpredictable psychological effects. Long-term effects – Cancer deaths and genetic damage in the millions; Relatively significant in attacked areas, but quite significant elsewhere in the world.” Carl Sagan, celebrated authority on the Nuclear Winter described its effects as follows: “Vast numbers of surviving humans would starve to death. The delicate ecological relations that bind together all organisms on Earth in a fabric of mutual dependency would be torn, perhaps irreparably. There is little question that our global civilisation would be destroyed. The human population would be reduced to prehistoric levels, or less. Life for any survivors would be extremely hard. And there seems to be a real possibility of the extinction of the human species. Carl Sagan - The Nuclear Winter The devastating consequences in terms of human survival and environmental disaster need little elaboration. The argument would no doubt be advanced that war is still possible without nuclear weapons being brought into operation. Yet the possibility is ever-present of wars in any part of the world attracting the use of nuclear weapons, for several reasons – the proliferation of nuclear weaponry, the availability of unused nuclear weapons, nuclear accidents, the wider availability of nuclear know-how, the possibility that nuclear powers will espouse one side or the other in a non nuclear conflict, the inefficiency of the UN’s monitoring programmes, the possibility of nuclear weapons falling into the hands of terrorist organisations and, of course, the increased number of states with acknowledged nuclear capability. “A nuclear Holocaust would silence life on our planet forever. It would not only be the death of human life and plants, but the death of music and painting and books. The silence is total and eternal. The earth only a rock spinning forever alone. It would be the death of life and the death of death itself.” Jonathan Schell and Helen Caldicott

Philosophical Perspectives on Peace

365

War viewed in its harsh reality is thus an undertaking which humanity simply cannot afford to resort to at this stage in world history. Considerations of logic, humanity, self interest, religion and self preservation concur in ruling it out and declaring imperative the peaceful settlement of disputes, however arduous the road to this result. War is comparatively easy to engage in and could take years to disengage from. It can destroy everything we hold dear and all that thousands of years of effort and sacrifice have put together as the common human inheritance. Erasmus described it as the “destroyer of all things and the very seed of evil.” This assumes ever more relevance in our age of universal interrelatedness and instant communication, when it is like a spark which can in a moment ignite an ever broadening fire. Once commenced it tramples under foot every humanitarian concern. Seen as it really is, it is the most abhorrent of all human enterprises. It is essential to take off the roseate blinkers that hide its realities from view. It is only by doing so that we can avoid pushing ever further into the receding distance the vision of the ages which the United Nations has brought so much closer to reality – a vision so well encapsulated by Tennyson: “We dip into the future, far as human eye can see, See the vision of the world and all the wonder that shall be, Hear the war-drum throb no longer, see the battle flags all furled In the parliament of man, the federation of the world.” 9. The Gradualist Approach A world government seems incapable of achievement without an unacceptable measure of compulsion. A world federation in the sense of a true surrender of effective sovereign power in key areas seems still far from realisation. A loose organisation such as the United Nations, which falls far short of a world federation still seems ineffective in keeping global peace though it has chalked up some significant successes. What then is the route to the eventual world authority which will regulate international affairs so effectively as to keep the peace? It may be that the current workings of the United Nations may offer some glimpses of a possible answer. What we have seen thus far is that in many areas which were formerly the unquestioned preserve of the nation state, the nation state has, whether voluntarily or under the pressure of necessity, made a surrender of some of its power to a global agency which alone can deal with it on a global scale. Take health, for example, or international navigation or air travel, international communications, labour regulations, exchange regulations, environmental standards, water resources, desertification, climate change, international justice. None of these can any longer be regulated by a single state however powerful. The

366

Universalising International Law

human rights norms that are accepted globally have penetrated into every domestic statute book. The era when the national sovereign could be an island unto himself has long receded into the distance. Regional groupings of states such as the European Union have shown how much further sovereign states are prepared to go in relinquishing long cherished preserves of national sovereignty such as even currency. One path to unification is through gradualism – the progressive surrender to supranational agencies of hitherto jealously preserved facets of national sovereignty. The process will take long but the pressures exerted by international communications, globalisation, environmental perils, proliferation of weapons of mass destruction, medical hazards, diminishing earth resources, energy shortages, international currency manipulations, space travel and the like are fast compelling the nation states to seek alternatives which can regulate what they themselves are incapable of regulating. A rapidly shrinking globe with a growing population increases the pressure. The growing gulf between North and South, the rich and the poor, is creating a tinder-box situation in which the value of some sort of international regulation becomes manifest. Events on the international stage are moving with exponential rapidity and it may well be that the time frame we are considering for this scenario may be shorter than we think it is. As increasingly important areas of national sovereignty are thus surrendered, it may well be that control over weapons of mass destruction may be vested in an international authority, as was indeed envisaged at the commencement of the nuclear age. All of this presupposes an increasing respect for international law which unfortunately tends to be swept aside by the most powerful nations when it come to action in defence of their national interests. Unilateral resort to force without UN sanction is a basic illegality which has been committed more than once in the recent past. It would require a universal strengthening of the regard for international law to prevent repetitions of such unfortunate deviations from the norms of international law. Here the international lawyers of the world have a role to play and the duty rests squarely on their shoulders to advise their governments against such deviations. True, the politicians do not always listen to them, but a climate of opinion needs to be constructed such that the need to comply with international law will be more unhesitatingly conceded. We have seen such a development in the sphere of military law where army commanders are now not merely more ready but are in fact obliged to consult their legal advisers before launching on some action which may be questionable in terms of international humanitarian law. A parallel development in the political sphere is to be welcomed and encouraged.

Philosophical Perspectives on Peace

367

Under the pressure of all these forces it may not be too optimistic to expect that the gradual seepage of sovereign authority we have already witnessed will grow in volume till the resulting contradiction of global authority approaches ever closer to the philosophers’ vision of a global government. In short there is a multitude of approaches to the universally desired goal of World Peace. None of them can be neglected just as none of them by itself is the answer to the problem. It is through a combination of elements drawn from each of them that the ultimate goal can be achieved and there is challenging work here for the scholars to co-ordinate these approaches and produce out of their synthesis a powerful combination of factors which the forces making for war will be unable to resist. Peace studies constitute one of the most important fields of intellectual endeavor and it is on their success in translating ideals into practical realities that the future of humanity depends. This chapter is a call to governments, educationalists and public spirited citizens throughout the world to rise to this challenge. Never was the need so urgent, never was there a more compelling cause and never was it more imperative to bring this message to every individual, for there is something meaningful that every individual can contribute to the cause of global peace.

Chapter 12

Religious Perspectives on Peace

The attainment and maintenance of peace is the primary objective of international law and is also one of the primary goals of religious instruction. Yet international law has tended to neglect this source of inspiration and has denied itself the perspectives so clearly set forth and analysed in the revered texts which command the respect and allegiance of over four billion of the world’s population.1 The irony is compounded by the fact that all of these religions converge in their teachings on the central question of peace. It is time therefore that international law delved deeper into this primary source of moral inspiration of the bulk of the word’s population, thereby reinforcing its own authority to light up the path towards global peace. Moreover distortions of other cultures are rife, tensions between them run high and confrontations are promoted though the need of the hour is to overcome distortions by information, smoothen tensions by understanding and avoid confrontations by goodwill. If in these critical times the discipline of international law, so central to the cause of global peace, denies itself the benefits it can derive from these founts of inspiration, one is prompted to ask what other disciplines can use 1

The 1999 Britannica Book of the Year lists the followers of the following from religions out of a world population of 5.929 million. The followers of the first four religions thus constitute 71.24% of the global population. Christianity - 1.943 million Islam - 1.165 million Hinduism - 762 million Buddhism - 354 million 4.224 million This does not include Sikhism’s 22 million,(Judaism’s 14 million),Baha’i Faith’s 7 million,and Confucian and Chinese folk religion’s 385 million. The followers of the first four religions thus constitute 71.24% of the global population.

368

Religious Perspectives on Peace

369

them more effectively in the cause of peace. International law urgently needs to take this wisdom on board its vessel as it steers into the deep and uncharted waters which it must navigate in the century which has just begun. The need for these overall perspectives has indeed been further highlighted by the events of September 11, 2001, which show to what extent attention can be diverted from the central truth that peace is the common core of all the religions. Once this confluence of teaching recedes from view, anger and hatred, violence and terrorism can very easily be generated in the name of religion itself, as has happened all too often in known history, dating back far beyond the 21st century to the religious wars of the 17th century, the Crusades and beyond. Moreover, once this process commences, distorted versions of religion – both one’s own and one’s opponent’s – tend to be propagated, leading to action and retaliation not only militarily but also socially, economically and politically. This vicious spiral can only be broken by a broader understanding across the religions of the manner in which they all lead to one goal – namely peace on earth. That goal can well keep receding unless this convergence of teaching is not merely understood more generally but also taken on board the major disciplines dealing with peace – of which international law perhaps takes pride of place. I. The centrality of peace to all religions This is an aspect which scarcely needs emphasis but requires some attention for the sake of completeness and as a general setting to the theme of this chapter. A useful reflection on the nature of peace is conveyed by Shalom, the Hebrew word for peace. Apart from peace itself it has many connotations associated with peace and indeed indispensable to peace – safety, contentment, happiness, friendship, health, concord, goodwill, harmony. It is understood in terms of prosperity and welfare (Dt 23:6, Jer 29:7); security (2 Sam 17:3; Mic 5:4); mutual relationship (Josh 9:15; Zech 6:13); harmony between man and animals (Is 11:6-9); turning swords into ploughshares (Is 2:4; Mic 4:3) and of justice as a necessary condition of peace (Is 9:7; 11:5; Jer 23:5-6). This underlines the fact that peace means not merely the absence of war but that it has a substantial and affirmative content as well. This aspect will receive more attention later in this chapter. For Christianity one need go no further than Jesus’ commandment to “love thy neighbour as thyself” (Mark 12:31) and his own comment on the rules of loving God and loving one’s neighbour that “there is none other commandment greater than this” (ibid). The condemnation of militarism contained in the teaching that “he who lives by the sword shall die by the sword”, the exhortation against violence even in retaliation contained in the teaching regarding turning the other cheek, the stress on the legacy of peace which he left to his disciples – all these show the centrality of the notion of peace to Christianity, and the reason why one of the most favoured descriptions of Jesus was that he was “the Prince of Peace”.

370

Universalising International Law

Love, kindness, mercy, compassion, patience and forgiveness were all peace-related virtues to which he gave vigorous expression in his life and work. War is the negation of all these and “blessed are the peacemakers for they shall be called the children of God.”(Matthew 5:9). In the words of Erasmus, the outstanding humanist of the Renaissance era, “What did Christ teach besides peace? What did he express himself on besides peace? He saluted his disciples with ‘Peace be with you’. He prescribed it as the only worthy form of greeting for Christians.” (The Complaint of Peace). For Buddhism peace is one of the most central concepts – both the inner peace of the individual and the external peace he or she emanates through peaceful living, thus spreading the notion of peace into the general community which is then at peace both with itself and with its neighbours. All of this follows also from the notion of compassion towards all, which is a principal basis of Buddhist conduct. Buddhism examines in minute detail the various psychological implications of violence and the Dhammapada teaches that “Victory breeds hatred The defeated live in pain Happily the peaceful live Giving up victory and defeat.” (Dh.v.201) Thus, even victory through the use of arms is hollow and leads in its turn to even more conflict. Buddhist sovereigns, of whom the Emperor Asoka of India is the outstanding example, gave effect to this concept of peace in the way they ordered their own state and its relations with its neighbours. The importance of the peaceful resolution of disputes is heavily stressed in Buddhism and there is a minute discussion in the Buddhist texts of the various ways in which incipient dissatisfactions and animosities can be nipped in the bud before they grow into confrontations and violence. Islam, likewise, elevates peace to a value of primary importance. “Allah, according to the Quran, is As-Salam (the source of peace) and a Muslim’s salutation, which embodies the ideal of Muslim life, is As-SalamuAlaikum (peace be unto you)”.2 “One of the aspirations of Muslim life, therefore, is the attainment of peace on all fronts – peace with self through harmonious self-discipline, peace with fellow creatures through the basic attitude of relatedness and compassion, and 2

Mohamed A.El-Erian et al – Jamjoom A Profile of Islam, Islamic Publications (Australia),1990, p. 9.

Religious Perspectives on Peace

371

peace with Allah through submission to the divine will and emulating Muhammad”.3 Islam is impregnated with the notion of forgiveness and the condemnation of vengeance. There are numerous passages in the Quran and the Hadiths on these. For example, there is a Hadith to the effect that at the fall of Mecca no thought of vengeance entered the Prophet’s mind. His bitterest foes were forgiven in the words “This day there is no reproach upon you and you are all free.”4 Hinduism teaches that goodwill and harmony are the foundations of society, and greed and selfishness are the evils that cause its destruction. The Hindu is reminded that human beings are involved in inter-personal, inter-racial and inter-religious conflicts and dissensions and Hinduism attempts to guide each individual towards thoughts of goodwill and harmony. Love and compassion are the cure for all evils, and all Hindus are required to live under the rule of righteousness or dharma. The peace that Hinduism teaches is a peace which is impregnated with justice, and not a peace based upon the imposition of force. The literature of Hinduism is enormous in volume, and there is at every point an intertwining of law and morality. An all-embracing moral regime surrounds the daily life of the Hindu, and if this rule of righteousness is observed, all conflict comes to an end. The great message of the Upanishads “Tat Tam Asi” – “Thou art That.” – proclaims that all humans are part of the Supreme Divinity. One must therefore love one’s neighbour as both proceed from the same Divine source. This teaching dispels all hatreds and unites humanity in togetherness and love. The major religions thus concur on the centrality of the notion of peace in human relations. II.

Progression of legal systems from passive avoidance of conflict to active removal of its causes

When any system originates for regulating the mutual relations of the members of a group, it starts with the basic essentials of keeping the peace and ordering the conduct of its constituent members. Achieving this is but a small part of its goal, for once this is achieved that system must progress further and seek to ensure that the causes of deviant conduct are themselves mitigated or removed. Most legal systems were thus in their origin systems aimed at keeping the peace. As these systems matured they also directed their attention to achieving justice not merely by punishing offenders but by ensuring that the causes leading to such conduct received due attention. This latter object cannot be achieved by addressing only the deviant individuals, but by looking to the community as a whole to help in obviating the causes which lead to such behaviour. 3 4

ibid. Athar Hussain, The Message of Mohamed, Islamic Book Foundation, Pakistan, 1980, p.142.

372

Universalising International Law

So also has it been with international law. One of the great transformations which international law has undergone since the community of nations was vastly expanded after World War II, is that it has moved from being merely a set of minimum rules for keeping the peace and for coexistence of individual states, to a body of principles aimed at maximum cooperation among the community of states, so as to overcome present and future causes of tension among states. It has thus overcome its negative and passive role and progressed to a positive and active role. At least at the conceptual level this has been achieved though of course much remains to be done in order to translate this into living reality. In achieving this aspect of its goals international law has a great source of inspiration in religion, and this source still lies largely untapped. The principles of brotherhood and sisterhood , the unity of the human family and the preservation of peace within it, the duty to assist one’s neighbour and relieve him of his distress, the peaceful resolution of disputes before they break out in open hostilities – all of these principles can be considerably strengthened and enriched by religious teachings which, through the wide respect and allegiance they command, will considerably reinforce the authority of these principles. The same progression observed in domestic law and international law applies very specifically to the concept of peace. It must likewise progress from the negative and passive aspects of merely avoiding hostilities and armed conflict to the positive and active aspects of seeking out the causes of conflicts and avoiding or mitigating them. As one analyses the concept of peace and traces this progression one sees straightaway that peace in its fullest sense is not merely the absence of conflict but the presence of justice. There cannot be true peace in the absence of justice. In the minds of most people and indeed of most nation states, peace means the absence of war. When this is achieved there tends to be a relaxation of effort, although it is only the threshold of the concept that has been entered. In the absence of a state of active hostilities we are accustomed to saying to ourselves that all is well. In fact however, though there may be no active war the seeds of a dozen new wars may be in process of germination. It could hardly be truly said that a situation in which multiple new wars are being bred is a situation of peace. Peace truly so called would then be a state of affairs in which there is not merely the absence of active conflict but one in which the causes of future conflict also receive attention and are nipped in the bud if they should arise at all. This is the true view of peace in international law, and such a conceptual view of peace is greatly aided by a contemplation of what the world’s religious traditions have to teach on this matter.

Religious Perspectives on Peace

373

This essay will examine the different facets of peace and the insights which the revered texts of the major religions can provide towards a better understanding of their nature. There is no doubt that the international law of the future will need to draw on these well-springs of wisdom in addressing this concept which is so central to the entire discipline. III. Armed conflict is only one of the several forms of conflict On the negative or passive side, it is of course essential to postulate the absence of hostilities. Even the slightest vestige of this element would be a negation of peace. But it is to be remembered that hostilities mean not merely those which are waged with the sword. There are many other kinds of hostile action which are akin to warfare though they do not resort to arms. Among these are economic hostilities and embargoes, ostracisms of various kinds, boycotts, bans on travel and social movement, waves of animosity which can sometimes amount to mass hysteria, prejudices against and condemnations of entire groups and religions and nations and indeed even the tendency for nations to withdraw into a protectionist shell of their own and totally alienate themselves from an understanding of their neighbours, their problems, their actions and their modes of thought. All of these are forms of hostility and even a purely passive view of peace would require their elimination. The religious texts that deal with these aspects are most instructive. Peace as taught by Christianity is not merely a teaching that one should refrain from armed combat but an exhortation to give every assistance to one’s neighbours, whoever they may be, by going the extra mile if need be to succour them in their distress. Imposing embargoes and boycotts is the reverse of the Christian message of peace. So also with the other religions – the loving kindness enjoined by Buddhism, the assistance to neighbours enjoined by Islam and Hinduism’s stress on goodwill and harmony among all people. Once these drawbacks are cleared, the stage is set for an exploration of the positive and affirmative aspects of peace. There are many facets to the concept of peace and all of these are contemplated by the religious texts in their discourses on peace. Among the facets that call for close attention are those enumerated below. Every one of them is an important aspect of the concept, and international law, in developing the concept of peace as it will need to do in the ensuing century, can gain considerable illumination from religious texts dealing with these matters. The tendency for international law to stand away from particular religions for fear that reliance on the texts of any one will affect its universal appeal may have been appropriate to an earlier age of religious schism. To do so today is to deni-

374

Universalising International Law

grate its universality, for international law has grown to a stature where it can enrich itself from these perennial sources of wisdom without in any way compromising its universality. Indeed it would add to its universal appeal were it to do so, for that would be the clearest indication to all the world that it is not cast in a monocultural Eurocentric mould. Grotius himself, while consciously seeking to distance the new discipline from religion, in an age of deep religious tensions, himself made scores of references to scripture in his seminal work on war and peace. The concept of peace has many facets and it is not possible to enumerate them all. A few are set out here, as illustrations of aspects which religious teachings could support and strengthen. They also illustrate how all religions converge in their support of these essential constituents of the concept of peace. The facets of peace which will be briefly examined in the light of religious texts are: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

The individual as the unit of peace The substitution of the rule of law for the rule of force The unity of the human family Justice (including economic and social justice) as the basis for peace The infinite value of human life Equality Non aggression Tolerance Non violence Forgiveness Assistance to those in distress Psychological insights into war and peace Peaceful resolution of disputes The economic causes of war

1. The Individual as the Unit of Peace The individual is a much neglected topic in international law. The feelings of anger, bitterness or frustration of individuals and conversely feelings of happiness, contentment and peace make up in their totality the attitudes of states on these matters. If state attitudes need to be altered towards peace it is with the individual that the process should start. Religion plays a special role here for it can help in orientating the individual towards peace and thereby cumulatively influence national attitudes. In Buddhist thinking the peace of the community and of the wider world depends on the peace mindedness and goodwill of the individual members of the community, and the same holds true even if we enlarge the community to include

Religious Perspectives on Peace

375

the whole world.5 The subjective aspect is thus more important for the Buddhist social ethic than the externals of social behaviour, and peace is a psychological condition or attitude that transmits itself into society. The individual is the “ haven of peace” in the Buddhist texts.6 The peace-mindedness of the individual is finely analysed in Buddhism into its constituent elements and one of the basic analyses is into four states – maitri (universal love), karuna (universal sympathy), muditha (rejoicing in the happiness of others) and upekkha (equanimity). Each of these is the subject of profounder analyses. One of these mental states, karuna for example is itself analysed into 32 aspects.7 The importance of peace within the individual is emphasised in Buddhism in terms that “the noblest victor is he who would conquer himself rather than defeat a hundred thousand men in battle.8 The Dalai Lama, giving expression to the Buddhist viewpoint, has recently written “Peace in the world thus depends on peace in the hearts of individuals”.9 The first step in the dismantling of military establishments is the internal disarmament of individuals, leading to external disarmament in the spirit of reconciliation and compromise. Peace requires compassion for others in the mind of each individual. It may also be noted in this connection that Confucius spoke of the duty of each individual to do what he or she could for the welfare of the whole human community. This is indeed an essential characteristic of the fully developed individual according to Confucian thinking and was one of the eight virtuous accomplishments urged upon every individual.10 In the Old Testament (Psalms 119:165) we read on this theme “Great peace have they which love thy law: and nothing shall offend them.” No doubt the indication here is that if a person lives according to God’s law he shall have peace – the peace within himself which is the precursor to external peace. Christianity likewise refers to the inner peace within each individual – “Peace I leave you, my peace I give unto you : not as the world giveth give I unto you” [John 14.27]. Clearly the reference here is to the inner peace, which has been described by the apostles as the “peace of God, which passeth all understanding” [Philippians 4.7] The individual has an obligation to disseminate peace – a notion beautifully incorporated in the opening line of the famous prayer of St. Francis of Assisi : 5 6 7 8

9 10

O. H. de A Wijesekera, The Concept of Peace as the Central Notion of Buddhist Philosophy, Reprinted from Archive Fur Rechts – und Sozialphilosophie XLV 1 /4 (1960), p. 5. See Anguttara Nikaya, Discourses of the Buddha, 11 Pali Text Society, p.18. See the Bodhisatva Doctrine, Har Diyal, London 1932 pp. 24, 61, 173 referred to in Wijesekera op cit p 11. See Dhammapada, Verse 103. The Dhammapada is one of the thirty one books that comprise the Tripitaka, the collection of Buddhist scriptures. It consists of 423 melodious verses spoken by the Buddha and is widely revered as a succinct statement of Buddhist teaching. H.H. the Dalai Lama, Ancient Wisdom: Modern World: Ethics for the New Millennium,Abacus, London, 1999, p. 217. See Mark W. Janis and Carolyn Evans (ed) Religion and International Law, Kluwer International, 1999, p.28.

376

Universalising International Law

Lord, make me an instrument of thy peace Where there is hatred, let me sow love Where there is injury, pardon Where there is doubt, faith Where there is despair, hope Where there is darkness, light Where there is sadness, joy 2. The Substitution of the Rule of Law for the Rule of Force All religions alike teach that law and order in society should not be the result of the use of force upon citizens but rather should be the result of their willing obedience to and compliance with the law. The law itself draws its strength and inspiration from principles of morality which in turn would draw strength and inspiration from the teachings of religion. The proposition that law rather than force would be the basis of conduct is therefore axiomatic. Hinduism takes this concept to the highest international level when it teaches that the ultimate sovereign of the world will be law rather than a world ruler who would presumably use force to enforce his law. International law would therefore rule the entire world and rule it through the force of its moral authority rather than the use of force. Buddhism shares the same concept. In both religions righteousness is the basis of law which must always conform to the concept of dhamma. The term dhamma has various connotations, so far as justice is concerned but these may best be summarised as righteousness. Islam requires all law to conform to divine teaching and in that system law and religion are interfused. No ruler could enact law which contradicted the principles of the shariya and a ruler, however much he resorted to force could not expect obedience from his subjects to laws which contravene the shariya. The ultimate sanction for the law therefore was not force but the moral content of the law. The same would apply to international law. Christianity likewise speaks in terms of a higher law which stands above whatever law a ruler may enact. That higher law would ultimately be the cornerstone of the validity of any national law. It is true that various Christian kingdoms would enact laws that were not in conformity with the divine law, but in the last analysis such laws did not command validity in the eyes of Christianity. Christianity also enjoined a duty to observe the law of the state, “Render unto Caesar the things that are Caesar’s and to God the things that are God’s”, but all this was subject to the overriding consideration that the state should not in its legislation contravene the law of God.

Religious Perspectives on Peace

377

Thus in the last analysis the religions envisage the rule of law and not the rule of force. Laws, of course, may need to be enforced within a state but the sanction of the law is not the force which accompanies it but the moral duty of obedience to the law. All religions would stand opposed to laws deriving their validity from mere force, for force divorced from morality and righteousness would clearly lead to despotism. 3. Unity of Human Family All the great religions are united in teaching that the human family is one, irrespective of barriers of race, colour, nationality, religion, class or sex. The Qur’an calls upon man to remember that “all mankind was at first but one community”, that subsequently it “stood divided” and that it should be man’s endeavour to restore its unity (Q. 10:19 ; 2: 208) The Farewell Sermon of the Prophet Mohamed, one of the great human rights documents of all time, proclaimed this principle in ringing tones – “ The aristocracy of yore is trampled under my feet. The Arab has no superiority over the non Arab and the non Arab has no superiority over the Arab. All are children of Adam and Adam was made of earth.” 11 Buddhism was one of the earliest religions to teach the doctrine of the oneness of humanity, explaining in great detail that differences of various sorts in physical appearance and other attributes are totally inconsequential and that the human family is one. The Buddha explained that while all forms of life visible on earth such as grass, trees, insects, four footed animals large and small, reptiles, fish and birds have different species by birth, no such differences are found among human beings. Differences among human beings are purely verbal designations.12 The universality of the human community and the oneness of humanity have rarely been more tellingly described. Hinduism teaches very specifically that every human being is an emanation of the Divinity. This divine spark, lying in every human being, ensures that all humans are brothers and sisters to each other, for these offshoots of the divine one are naturally kindred to each other. We read in the Bhagavad Gita that God makes his dwelling in the hearts of all humans (15:15) and that all humans without exception are part of the body of 11 12

See C.G.Weeramantry, Invitation to the Law, Butterworths, 1982, p. 273. D Anderson & H.Smith, ed. Suttanipata, Pali Text Society, London, 1913, pp.117-118; D J Kalupahana, The Buddha and the Concept of Peace, Vishva Lekha, 1999, p.83; O Abeynayake, Fundamentals of Buddhist Policy,1995, p.124.

378

Universalising International Law

God (11.7) In the result Hinduism views “the whole human family as one and indivisible”.13 Christianity broke down the barriers between races, classes, tribes and nations. The good Samaritan ethic straddles all such boundaries and proclaims a duty of assistance to one’s neighbour which presupposes the unity of the human family. Jesus came to save all humanity and not just one group and the totality of this mission proclaimed the oneness of humanity. The fatherhood of God as taught by Christianity implies the brotherhood and sisterhood of all humans. This element of the unity of humanity is necessarily a central part of the concept of peace. Many cultural traditions stress the importance of the community of humans whereas the modern Western tradition through its emphasis on the rights of individuals tends to obscure this perspective. African tradition, for example, stressed this concept of togetherness as opposed to a society of competing individuals. Pre-colonial Africa is generally described as being communitarian rather than individualistic in its outlook and social solidarity and the continued existence of the community was of prime importance. The African conception of humans is thus that they are not a collection of isolated individuals but are integral members of a group animated by a spirit of solidarity.14 In extended terms this view would mean also the togetherness of the human community rather than a group of isolated individuals or nations. Major African regional documents such as the Banjul Charter have re-emphasised this communitarian aspect inherent in the African approach. 4. Justice as the Basis of Peace It is universally agreed that peace depends on justice for its continued existence. A peace that denies justice to the vanquished or a situation in which gross injustice prevails is a seedbed of future wars. Peace, as Martin Luther King Jr. has so eloquently observed, is not the absence of war but the presence of justice. Support for this is found in the teachings of all the religions. The Old Testament links peace and justice in several passages. Isaiah for example speaks of The Prince of Peace and “of his government and peace, there shall be no end” in a kingdom which will be established “with justice from henceforth for ever”. Isaiah teaches that righteousness and peace go together, for “the work of righteousness shall be peace and the effect of righteousness quietness and assurance for ever.” (Isaiah 31.17).

13 14

K.R.R. Sastry, “Hinduism and International Law”, Recueil des Cours 117 (1966) p. 552. Makau wa Mutua, “The Banjul Charter and the African Cultural Fingerprint, an evaluation of the language of duties” 35 Virginia Journal of International Law, p. 340. See also Janis, op.cit., p. 433

Religious Perspectives on Peace

379

In the New Testament Jesus the Prince of Peace elaborates on the notion of the Kingdom of God which Christians must seek to establish on earth, wherein peace and justice are enthroned. Buddhism’s many psychological insights into peace stress the forces of evil – “the Black One’s, fighting squadrons”15 – which include the denigration of others – a denigration which can take the form of insults or deprivation of their dues, both of which are denials of justice. These are themselves born of desires, the first of the “Black One’s fighting squadrons” which may take the form of desire for power or for possession or physical comfort at the expense of others. The peace which Buddhist sovereigns as typified by Asoka of India sought to establish was based upon justice down to the last detail touching the life of the humblest citizen – to which end the emperor instituted an order of “Censors of Piety” whose business it was to travel the kingdom from end to end to ensure that no injustice was suffered by the humblest of his subjects. Likewise the Buddhist constitution of Prince Shotoku Taishi of Japan (604 AD), described as the first Japanese Constitution, observed that great disturbances spring from injustice and it strove to establish justice throughout the kingdom, observing that if there are a thousand complaints of injustice in one day, “how many will there be in a series of years?”. If “from such an origin great disturbances arise within a kingdom the same must be true in the international community.” As Thomas à Kempis observed in his Imitation of Christ 1441, “ all men desire peace but few desire the things that make for peace. Social and economic justice, the elimination of war and inequality, the fair distribution of community resources, restraint from exploitation of the weak by the strong – these are the things that make for peace but they are the very things which those who desire peace are often reluctant to give. Indeed the entire world order today is based upon such denials of justice on an enormous scale and it is precisely in such denials of justice that the seeds of future wars are sown. Hinduism extols the importance of justice and righteousness (dharma) in all people and imposes a special duty of such just or righteous conduct on rulers. Injustice breeds violence and disorder but those subjected to it are taught the path of non-violent protest so dramatically highlighted in the work and career of Mahatma Gandhi. In the absence of such restraint injustice leads to disturbances and war, thus proving once more the linkage between justice and peace. Islam elevates justice to a place amongst the highest virtues. Its opposite is oppression and from oppression come disturbances of the peace. “Verily God enjoineth justice and the doing of good… and he forbiddeth wickedness and oppression” (Quran 6.92). The duty of justice is placed very heavily on rulers and 15

Suttanipatha 3.2.

380

Universalising International Law

numerous sayings of the Prophet expand on this. Thus according to a tradition reported by Abu-Sa’id the Prophet observed, “The most beloved of men in the sight of God… shall be the just leader, and the most hateful of men…shall be the tyrannical leader.”16 5. The infinite value of human life The infinite value of human life is a central principle of every religion but is probably the value which is most completely negatived by war. War means not the killing of a single human being but multiple killings – killings numbered in thousands, tens of thousands, hundreds of thousands and millions. Yet the basic teaching of all religions is that even one human life is of infinite value. In Christianity, we have the teaching that man is cast in the image of God and every human life is sacrosanct. From the days of the Ten Commandments, the Commandment “Thou shalt not kill” has reverberated in Judaeo Christian teaching down the centuries. Yet by some strange twist of logic the killing of thousands in war seems to escape this basic Commandment. Moreover it is common knowledge that among these thousands are unnumbered thousands of innocent civilians who are indeed today the primary victims of war, numbering several multiples of actual combatants. Islam teaches that a person who murders an individual also murders humanity because with the murder of one person there is also killed the universal principle of the dignity of human life.17 This is laid down in the Quran itself where the wrongful killing of one man is said to spread disorder and tyrannical confusion in the land. The killer has as it were, destroyed the whole of humanity and conversely whoever saves an innocent life has acted as if he has put life into the whole of humanity (Q 5;35). Buddhism teaches that life is dear to every living being18 and its first precept is that one should neither harm nor kill. Hinduism sees every person as an emanation of the divinity and it follows inexorably that every human life is of infinite value. 6. Equality Islam teaches the concept of human equality in the strongest terms. A ringing affirmation of this is contained in the farewell sermon of the Prophet already referred to in which he said: “The Arab has no superiority over the non-Arab and the non-Arab has no superiority over the Arab.” 16 17 18

Mirza Abdul Fazal, Sayings of Prophet Muhammad, Award Publishing House, India,1980, p.89 (No 366). Afzel Iqbal, The Culture Of Islam, Institute of Islamic Culture, Lahore, p.70. Dhammapada x 2.

Religious Perspectives on Peace

381

The personal life of the Prophet also made it clear that wealth or rank or birth made no difference in his eyes. “He would sit with the humblest of persons saying that righteousness alone was the condition of one’s superiority over another”. He invariably invited people, be they slaves, servants or the poorest believers, to partake with him of his scanty meals.”19 A well known saying of the Prophet is that all people are as equal as the teeth of a comb. Buddhism broke through the concept of casteism and proclaimed the equality of members of all castes. The Buddha in many of his sermons, stressed this concept of equality, not merely within the confines of India, but as applied to the entire human family, whatever their race, colour or creed. This equality was expounded and explained on ethical,20 legal,21 moral,22 religious,23 sociological,24 anthropological25 and biological26 grounds.27 Indeed Buddhism taught equality from more points of view than the most advanced human rights teachings of today. Birth confers no superiority and superiority arises only through intellectual and moral attainments. It is not by birth but by deeds that one becomes a Brahmin. The social hierarchy of the caste system is entirely negated by Buddhism. Christianity gives eloquent expression to this idea through the conduct of Jesus who made no distinction between people on the basis of their position in life or their tribe or race. He consorted with the lowest in society and made his conduct an example to others as to how all sections of society need to be treated on a footing of complete equality. Confucius taught that a person’s dignity in society depended not on his rank but on his character and conduct. Hinduism contains several passages in the revered texts which require all persons whether Brahmin or outcast to be treated with the same respect. (Bhagavad Gita 5.18) There have been some differences of opinion in connection with statements in some of the religious writings regarding the position of women. Yet – “Although religious writings may be supposed to indicate differentiation against women, there are some clear statements of a general and universal principle of equality in many of the texts.”28 19 20 21 22 23 24 25 26 27 28

Athar Hussain, The Message of Muhammed, Islamic Book Foundation, 1980, p.127. Digha Nikaya, Vol. 111, pp. 250 et seq. Majjhima Nikaya, Vol. 11, pp. 84 et seq. Majjhima Nikaya, Vol. 11, p. 86. Majjhima Nikaya, Vol. 11, pp. 128 et seq.; 147 et seq. Majjhima Nikaya, Vol. 11, p. 149. Digha Nikaya, Vol. 111, pp. 93 et seq. Digha Nikaya, Vol. 111, pp. 93 et seq. For these and other references, see L.P.N. Perera, Buddhism and Human Rights, Karunaratne & Sons, 1991, pp. 35-36. See Brian D. Lepard, Rethinking Humanitarian Inter vention : a fresh legal approach based on fundamental ethical principles in international law and world religions, Pennsylvania State University, 2002, p.393.

382

Universalising International Law

7. Non-aggression Buddhism looks upon the avoidance of violence as fundamental to human conduct. Kings are urged to cultivate ties of friendship with neighbouring kings and all warfare is declared to be impermissible. The Buddha’s condemnation of armed conflict is well captured by Sir Edwin Arnold in describing the Buddha’s renunciation of his princely inheritance; “I lay aside those realms Which wait the gleaming of my naked sword: My chariot shall not roll with bloody wheels From victory to victory, till earth Wears the red record of my name”29 According to the Buddhist theory of the state, the state has an obligation not to commit aggression and to co-operate with other states for the benefit of mankind.30 Likewise peace lies at the heart of the Christian message. The doctrine of turning the other cheek, the doctrine that blessed are the peacemakers for they will be called the children of God, Christ’s injunction to his follower to put down his sword after cutting off the ear of the high priest’s servant31 and his refusal to take up any form of violent protest even in response to the unjust accusations against him, all indicate a prohibition on the use of force. Christian theologians no doubt worked out a just war doctrine to justify the use of force. But numerous limitations upon it were indicative of the need to wrestle with the sacred texts in order to give it justification. Judaism’s classic references to turning swords into ploughshares and not learning war any more have passed into universal currency. In Islam there is authority for the proposition that the use of force is limited to self-defence and there are passages in the Quran which prohibit aggressive war. The categorical passage, “Let not detestation for a people who barred you from the Holy Mosque move you to commit aggression”32 shows that even the strongest provocation does not justify the taking of arms. All of this is reinforced by numerous Quranic passages and Hadiths recommending conciliation and arbitration.33 For Hinduism the texts in the Bhagavad Gita relating to the need to take up arms in a just cause have been read by the most authoritative commentators including Gandhi and Radhakrishnan as being purely allegorical, meaning that one must fight spiritually against evil and not succumb to it. 29 30 31 32 33

Light of Asia, Theosophy Co. California, 1997, p.94. K.N.Jayatilleke, Dhamma, Man and the Law, Buddhist Research Society, p. 113. Matthew 27.51. See The Qu’ran 5.3. See Khadduri, War and Peace, Islamic Book Foundation, pp.231-238.

Religious Perspectives on Peace

383

8. Tolerance This is well illustrated by the Edict of Toleration of the Emperor Asoka in the third century BC in which he states that a man must not disparage the sect of another man because the sects of other people all deserve reverence for one reason or another. By exalting his own sect a person does service to the sects of other religions but if he denigrates another sect he denigrates his own.34 For Hinduism, the Bhagavad Gita puts this idea in the following terms: “Like the bee gathering honey from different flowers, the wise man accepts the essence of different scriptures and sees only the good in all religions” It should be noted that despite the differences in religious background of the members of the United Nations, the United Nations General Assembly adopted in 1981 a Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Sect. The second Vatican Council acknowledged the right to freedom of religious belief and practice. All this is not to discount the numerous historical examples of religions themselves being guilty of religious intolerance. Indeed history is littered with examples of intolerance and oppression such as jihads and inquisitions.35 Yet, this intolerance has been the result of human action and interpretation rather than religious teaching. 9. Non Violence Non violence is a primary obligation according to the Buddhist way of life. So far is this doctrine carried that, according to the Mahasilava Jataka, a king who was wrongfully attacked did not use force to overcome his foe but through his behaviour caused the attacker to feel so much remorse that he withdrew. The moral of this story is the value of passive resistance.36 Mahatma Gandhi made one of history’s best known efforts to convert the doctrine of peace as found in all religions into a means of solving practical problems. He believed that the means of solving the problems must be as good as the end sought to be achieved. War is an ignoble means of achieving even a noble end. Satyagraha or non violence could be a substitute for war and just as effective. Gandhi in fact believed that non violent resistance was the mightiest force on earth and he sought to prove it by taking on the might of the then most powerful Empire 34 35 36

Rock Edict V, Vincent A Smith, The Edicts of Asoka, 1909. John Witter, “Law, Religion and Human Rights” ; 28 Columbia Human Rights Law Review, 1996, p. 1. K.N Jayatilleke, Dhamma Man and Law, Buddhist Research Society, pp. 106-7.

384

Universalising International Law

in the world. On the basis of religious teachings Gandhi maintained that resistance to violence by counter violence is wrong, as one wrong cannot be righted by another wrong. So violence must be resisted by persuasion and where persuasion fails by non violence. He argued that non violence has a force of its own and that it is a means of direct action, involving organisation and numbers, thus sharing four of the characteristics of military action.37 Gandhi derived much inspiration from some passages in the Bhagavad Gita extolling the principle of ahimsa or non violence. There is a view that the Bhagavad Gita sanctions war but it needs to be read in its total context and pacifists have derived much inspiration from it.38 The Christian teaching of forgiveness, of not meeting force with force, of turning the other cheek, would be completely in accord with these views. Later generations of churchmen with their doctrine of the just war naturally found great difficulty in accommodating their position within the pristine teaching of Christ. 10. Forgiveness When dealing with forgiveness there immediately comes to mind the passage in Christian scriptures where Jesus says it is idle to perform acts of religious devotion while still bearing a grudge against one’s brother. He must first be forgiven. On being asked how many times forgiveness should be extended to a person who has wronged one, the emphatic reply “Seventy times seven” shows how totally forgiveness needs to be practised if Christian teaching is to be truly observed. Indeed forgiveness was the last message of Jesus in relation to his persecutors. “Father, forgive them for they know not what they do.” has re-echoed down the centuries as one of the most poignant pleas for forgiveness ever uttered. The Sermon on the Mount – “Love your enemies, bless those who curse you, pray for those who abuse you” [Luke 6.27-30] is itself a plea for forgiveness and indeed goes far beyond it. Islam teaches restraint in the face of provocation as well as forgiveness. The Quran (3.133) extols “those who master their anger and forgive others. God loveth the doers of good” Likewise Tirmizi records a hadith “Verily it is better that the leader should err on the side of forgiveness than on the side of retaliation”. Buddhism teaches forgiveness in terms that “hatred never ceases by hatred but by love alone. This is an eternal law” [Dhammapada 1.5]

37 38

See generally R Balasubramanium, The Technique of Non-Violent Resistance, in Robert Grinsberg ed., The Critique of War: Contemporary Philosophical Explorations, 1969, p. 296. See Christopher Isherwood, “The Gita and War” in Isherwood (ed) Vedanta in the Western World, op.cit., p. 246. See also Franklin Edgerton, “Interpretation of the Bhagvad Gita” in The Bhagvad Gita, translated and interpreted by Franklin Edgerton, 1972, pp.185-6.

Religious Perspectives on Peace

385

11. Assistance to those in distress This concept is powerfully illustrated in the scriptures of all the religions. There immediately comes to mind the Good Samaritan parable of Christianity which imposes a duty of assistance across all racial and national barriers. Those in distress need to be assisted whatever be the group to which they belong and that assistance needs to be given not merely nominally but to the maximum extent possible in the circumstances. One is called upon to go that extra mile to give this assistance and it is to be noted in this connection that the Good Samaritan parable is often considered a corollary to the Lord’s Prayer. In Islam there is the notion of “bidding unto good”. This means that if one sees a person in distress there is an affirmative duty to go to the assistance of that person whoever that person may be. It is not merely a concept of being my brother’s keeper, for the duty to assist is not restricted to those with whom one is in a close relationship. In the words of the Prophet “every one of you is a keeper unto every other and will be accountable for his welfare”.39 The Prophet is reported to have said “He is not a true believer who eats to his fill when his neighbour is suffering the pangs of hunger (Bukhari)”. Economic deprivation in the midst of prosperity is one of the potent causes of war and is intimately interlinked with nearly every single item in the cluster of global problems currently confronting humanity. The common law may be contrasted with this Islamic concept, for the common law imposes no duty to go to the assistance of a person in distress. Theoretically it may be possible therefore to pass by an old person drowning in a puddle of water without assisting that person, although assistance can be given without cost or danger to oneself. This is quite the contrary of the Islamic teaching of bidding unto good. Buddhism covers the same concept through its doctrine of loving kindness to all beings and Hinduism likewise would look upon it as the required standard of righteous conduct that one should go to the assistance of those in distress. All this has an intimate bearing on international law in an age when all peoples are so closely inter-linked that the hardships or sufferings of any have their immediate repercussions on the rest of the global community. Having regard to the fact that extreme want is a potential cause of future wars, these religious concepts can offer very valuable perspectives to all nations in their quest for a peaceful world order.40 12. Psychological Insights into War and Peace Buddhism has analysed deeply the psychological causes of war. It attributes most wars to misplaced emotion. In its analyses of emotion it minutely examines 39 40

Athar Hussain, The Message of Mohamed, Islamic Book Foundation, Pakistan, p. 69. For a discussion from the economic angle, see generally Amartya Sen, Development as Freedom, 1999.

386

Universalising International Law

the emotion of anger. Of the many types of anger, one which is very relevant to war is the emotion of righteous indignation which has been the cause of many wars. While some philosophers such as Aristotle commend righteous indignation, Buddhism points out that this can be especially disastrous if it prevails among groups. Moreover, it is extremely infectious and spreads rapidly, infecting the minds of entire populations. One of the prescriptions for overcoming this is dialogue, for a consideration of the opposite points of view, the reasons which induce it, and the compromises that overcome it can help to mitigate and eventually eliminate it. The voice of justice and reason can always change the nature of righteous indignation. Righteous indignation often has an element of truth or justice within it, but this element tends to be obscured by emotion and can be uncovered by dialogue. Thus while righteous indignation is a higher form of anger than frustration anger, for example, it is an emotional reaction to the sense of injustice which can at any time be transformed into an ignoble emotion. While the sense of injustice (which Aristotle expounded at some length) is a positive emotion, it can easily degenerate into a counter-productive emotion such as hatred. Buddhist literature offers numerous illustrations of righteous anger being subdued by dialogue, removing by reasoned argument the emotion of anger and substituting in its place a heightened awareness of the factors which gave rise to the conduct that caused the anger, as well as a desire to restore harmony in the disrupted relationship. This has extreme relevance to the causes of war and the processes of diplomacy that can avoid this violent result, for nations often go to war in a spirit of righteous indignation at the wrongs done to them, without sufficient examination of the causes that gave rise to their opponent’s conduct, and without sufficient attempt at dialogue.41 The psychological insights of Buddhism need to be deeply researched in regard to their relevance to the causes and prevention of war. Buddhism’s psychological insights on the futility of war are also telling. “Victory breeds hatred for the conquered live in sorrow.”42 This in turn will lead to fresh wars in which the result will not necessarily be the same. The victor of today may be the vanquished of tomorrow, for “the conqueror in turn gets someone who conquers him.” Christianity teaches the avoidance of conflict by a process of self analysis before criticising and attacking one’s neighbour. That process of self analysis, as taught in the Sermon on the Mount (through the metaphor of seeing the beam in 41

42

See Padmasiri de Silva, The Ethics of Moral Indignation and the Logic of Violence, Public Trustee’s Department, Sri Lanka, 1984, p. 16, citing William Neblett’s discussion of “ indignation” in Metaphilosophy, April 1979. Dhammapada verse 207.

Religious Perspectives on Peace

387

one’s own eye before seeing the mote in one’s neighbour’s) will show that one can have in oneself the very faults which are the cause of anger against one’s neighbour. There are also powerful admonitions against the accumulation of inordinate wealth, which can lead to bitterness and conflict and a strong reminder of the need to seek reconciliation with one’s neighbour before taking steps against him. Anger without just cause is severely condemned (Matthew 5.22), thus requiring a process of analysis of one’s claim before commencing any action upon it. Much more would this apply in the case of hostilities. 13. Peaceful Resolution of Disputes The Buddha during his more than forty years of public ministry, often acted as conciliator and mediator in disputes between rulers. The prohibition of the use of armed force meant that disputes, whatever the stage they may have reached, should be addressed with a view to their peaceful resolution. Kings were urged to cultivate ties of friendship with other kings and not to harbour feelings of hostility towards them. The Quran encourages the peaceful settlement of disputes and arbitration as is evidenced by verse 4.62 which shows that goodwill and conciliation if honestly resorted to are to be commended. The idea of a peaceful resolution in Christianity is enshrined in the celebrated passage in the Sermon on the Mount extolling the peacemakers. “Peacemakers” would by very definition include mediators and conciliators. In Hinduism, the notion of the peaceful resolution of disputes goes all the way back to the Code of Manu circa 100 BC in terms of which war was always to be a last resort, with conciliation and other means of dispute settlement being recommended as the course of action rulers should follow in order to avert hostilities.43 The notion of dharma pervades every stage and aspect of inter–state relations. A Dharmishta solution (that is one which is in accordance with Dharma) would therefore be obligatory on the parties and if the dispute in question can be settled by peaceful means before it degenerates into violence and killing, then such a course of action to resolve the dispute would be the recommended course of Hinduism. Indeed the moral duty to act righteously and in accordance with dhar ma would be a religious duty and as such the failure to explore the possibility of preventing bloodshed would be a dereliction from religious duty. 14. The Economic Causes of War Islam lays an affirmative duty on all those in a situation of affluence to extend material help to those in need. Those in distress, those who are in straitened circumstances, those in need of any kind are to be helped and with such help dissatisfaction and tensions in society will be mitigated. So specific was this duty that 43

G. Buhler, (trans.) The Laws of Manu, Motilal Banarsidass, Delhi, 1967, Ch. 7.

388

Universalising International Law

there was a levy for charitable purposes on all Muslims and the notion of the charitable trust evolved, antedating by many centuries the notion of charitable trusts in Europe.44 Over and above this obligatory levy there was the duty to go to the assistance of one’s neighbours in distress. One of Islam’s five pillars is to pay Zakat, a yearly sum of money to assist the needy. This is a moral and religious obligation and high value has attached to it in the structure of administration of the Islamic state. Just as within a state such obligations lead to a reduction of tension so also in the international community an obligation to assist those in distress would greatly relieve tension and avoid the potential causes of future conflict. The accumulation of wealth to the point where it amounts to an unfair deprivation of the legitimate needs of others is a phenomenon of growing intensity in the world today and one is reminded of the Christian condemnation of the accumulation of wealth through such teachings as that it is easier for a camel to go through the eye of a needle than for a rich man to enter the Kingdom of God. The possession of exorbitant wealth is clearly targeted here and the condemnation it attracts has clearly not only a religious but a social dimension as well for it clearly does harm to the body politic whether domestic or international. So also with the teaching against laying up wealth to the extent that it is consumed by moth and rust, when in fact it is sorely needed by others. Buddhism analyses the political consequences of accumulation of wealth with great specificity. The Cakkavattisihanada sutra describes them in these terms: “Thus as a result of goods not accruing to those who were destitute, poverty becomes rife; from poverty becoming rife stealing increases, from the spread of stealing violence grows apace, from the growth of violence the destruction of life becomes common.”45 “Among such humans there will arise a war …, during which they will look on each other as wild beasts; dangerous weapons will fall into their hands and they, thinking ‘this is a wild beast’, ‘that is a wild beast’, will with these weapons deprive each other of life.”46 There is even a premonition of nuclear war when the text goes on to observe, “Then to some of those beings it will occur; Let us not just slay anyone; not let just anyone slay us! Let us now, therefore, betake ourselves to dens of grass or dens in the jungle, or holes in trees, or river fastnesses, or mountain clefts and subsist on root and fruits of the jungle. And they will do so for seven days. And at the end of those seven days, coming forth from those dens and fastnesses and moun44 45 46

See C.G.Weeramantry, Islamic Jurisprudence, Sarvodaya Vishva Lekha, 1999, p. 73. See K. N. Jayatilleke, Buddhism and Peace, Buddhist Publication Society, Kandy, Third Impression, 1983, p. 25. ibid., at p. 27, citing Digha Nikaya, Pali Text Society, Vol III, pp. 70-75. See also Thus Have I Heard: The Long Discourses of the Buddha tr. Maurice Walshe, 1987, pp. 399, 402.

Religious Perspectives on Peace

389

tain clefts, they will embrace each other and be of one accord, comforting one another and saying: Hail, O mortal, that thou livest still! O Happy sight to find thee still alive.”47 Out of such a cataclysm would emerge a just world order. Though embellished with much symbolic detail, this is perhaps one of the most striking passages in the religious books connecting economic deprivations and injustice to war and the ways in which the inequitable distribution of wealth could lead to a catastrophe endangering civilisation.48 *** These few references to various religious writings on matters pertinent to war and peace will illustrate that modern international law can reinforce its central principles by invoking these teachings on matters vital to war and peace. Before war commences they show many routes to its avoidance. Once war is embarked upon its severities can be considerably mitigated and its duration shortened, and when war is ended they show the path to a restoration of harmonious relationships. All of these are results much sought after by international law, and a willingness to rely on these sources can considerably assist international law in the task of translating its precepts into practice by rendering them more acceptable to vast segments of the global population.

47 48

ibid. On a proper use of economic development as a solution to wars see Amartya Sen, Development as Freedom, op.cit.

Chapter 13

Practical Steps Towards Education for Peace 1

We dip into the future, far as human eye can see, See the vision of the world and all the wonder that shall be, Hear the war-drum throb no longer, see the battle flags all furled In the parliament of man, the federation of the world. Alfred Lord Tennyson Today’s school children will be tomorrow’s global citizens in a world which would then have shrunk considerably and be much closer to being a global village than it is now. Martin Luther King Jr. has observed that “we shall have to repent in this generation not so much for the evil deeds of the wicked people but for the appalling silence of the good people.” That appalling silence is due largely to the lack of information on topics bearing on peace and good order and to a lack of sensitisation of the minds of people to the need for action in these areas. Peace studies will be a prime corrective to this apathy. Students will need to be sensitised to the moral and social issues involved and to be alerted to a sense of social duty. This chapter deals with education in schools. Education for peace must of course be conducted at all levels of society including tertiary education, continuing education for professionals and education of the general public. The present chapter will focus on school education at three levels, elementary, middle grade and secondary.

1

Address to a meeting of 150 Principals of schools in Sri Lanka on 6th July 2002, arranged by the Ministry of Education, Sri Lanka.

390

Practical Steps Towards Education for Peace

391

It would not be an overstatement to say that education authorities the world over are taking stock of their curricula to examine their relevance to modern problems. They are particularly impelled to do so in view of the deteriorating law and order situation, terrorism and the proliferation of conflict situations across the world, the growing gulf between the rich and the poor, the decline in the standards of public conduct, corruption in high places, and the lack of contact between academic studies and practical problems. The increasing compartmentalisation of knowledge is also causing concern, with different academic disciplines being taught and studied in watertight compartments, without due regard to their interlinkage. UNESCO Regional Seminar on Curriculum Developments for Peace Education 2001 This important regional seminar held in Colombo, Sri Lanka 3rd-5th January 2001 charted out a number of steps that need to be taken for the development of attitudes and behaviours in and out of the school environs, “to achieve a culture of peace and non-violence, a cherished ideal of all human beings.” The Seminar drew attention to the essential role of peace education in building defences of peace in the minds of people and the need to establish a prioritised programme of peace education in all aspects of school curricula. The seminar stressed such aspects as the need to ensure the professionalisation of teachers for peace education, the incorporation of peace education in all curricula and the encouragement of member states to formulate government policy institutions and implement peace education programmes. The conclusions of the seminar are reproduced as an appendix to this chapter. Some general observations All the world over school education concentrates increasingly on giving students the education and information necessary to advance them in life. With examinations taking a high level of priority as a pre-requisite to employment, there tends to be an intense concentration on knowledge necessary for passing examinations as they are looked upon as passports to employment. In the days before these pressures became so intense, there was time within the curriculum for instruction on moral values and ethical behaviour, for religious instruction, development of personality and strengthening of character. Indeed in the days before formal education these were the aspects that tended to be stressed in the upbringing of a child, an activity which the whole community considered to be its duty. Today this duty is delegated to the school and in the school these activities are crowded out by the pressures already referred to.

392

Universalising International Law

Among the areas that suffer as a result are the exposure of the minds of young children to the concept of peace in all its forms – peace within oneself, peace in one’s relations with the community and peace in the community’s relations with the outside world. Peace is no longer a topic that can be taken for granted. It needs to be actively taught. Especially as the children now in schools – or any one of them - may have the power to blow up their world – the world not only of their community and their country but of all civilisation. Such are the horrendous powers now made available by military weaponry, accessibility to which is becoming progressively less difficult not only to governments but to private individuals and groups. Children need to be alerted to these things as part of their responsibility rather than be permitted to see them as other people’s business. And children who reflect on these things often see perspectives which others may miss. Here for example is what a child of ten is recorded to have observed “If every one in the world says that they want peace how can we still have nuclear bombs? Somebody in the world must be lying.”2 Here is another quote, by a child of seven: “Dear God, Adam was the first man on earth. I hope I am not the last”3 It is often thought that matters of state conduct, issues of war and peace and principles of international law and conduct are beyond the reach of children and of adults themselves. This is a fallacy. The basic principles on which even international law rests are such as would have the willing approval and would stir the imagination of the average child if simply explained to them. This has been the author’s experience in speaking of international law in simple terms to children of the ages of twelve years and upwards in schools. Children are fascinated to know that these great issues have been addressed on a moral plane and that serious attempts have been made to lay a foundation for world order on this basis. Education in these matters can of course start at an earlier age with the child’s imagination and curiosity being whetted by information about the ideas of peace on earth entertained by great philosophers down the ages, not to speak of ideas of peace as taught by the great religions. The first hurdle in introducing peace education into schools is to overcome the objections of those who ask whether such education is necessary. One answer to this is that in this day and age it is not only essential, but is also instinctively desired by children. Another is that those who have taught it have found it to be

2 3

See Jeanne Larson & Madge Micheels-Cyrus, Seeds of Peace: A Catalogue of Quotations, New Society Publishers, 1986, p. 20. op cit., p. 69.

Practical Steps Towards Education for Peace

393

one of the most rewarding teaching experiences of their life.4 Yet another is that in the absence of such a focus on social responsibility, deviant behaviour and disillusionment increase their grip over children, permitting them to complete their secondary education with feelings of frustration and helplessness. The Escalation of Violence in Society Violence is emerging in an unprecedented manner in societies across the world. There is not only the spectre of national and international terrorism, but constant information regarding them is relayed to the public on a daily basis. The child sees violence all around in the community. Local crime rates are often on the increase. Many an instance of violence passes unpunished. There is suffering visible all around with very little done to address its causes. As for children themselves, child victimisation occurs in various forms and naturally comes prominently to their consciousness. They hear of exploitation of children in child labour, victimisation of children for pornography, conscription of children as child soldiers and the sale of children into slavery. The International Working Group on Slavery has reported the sale into slavery of hundreds of thousands of children every year. All of these are dimly and peripherally present in the child’s mind and no doubt trigger off some vague speculation as to how and why this happens. Present educational systems tend to leave these areas of natural concern unattended, leading perhaps to an impression that exploitation and oppression are part of the world order – part of the natural moral scenery which the child must take for granted. Children may be slow to articulate these concerns as they would lack the means of expressing them, but they are nevertheless part of their subconscious frame of mind. An inevitable result is a subconscious feeling of frustration, if not sadness and disillusionment. The media add to these impressions of the inevitability of violence and terror, for they grow up in a media-dominated environment, in which extreme violence is part of the daily fare offered by the media. Growing up for some years with these negative feelings and unexplained concerns, the child may feel dissatisfied and unconnected with the social order, and with the various forms of exploitation which lie at the root of it. There is an increasing drift towards violence, drugs, mental instability and revolt.5 Value of Peace Education The UNESCO handbook Learning the Way of Peace: A Teachers Guide to Peace Education 2001 states that no education system is complete without some 4 5

See Learning the Way of Peace: A Teacher’s Guide to Peace Education, UNESCO, 2001. R.D. Laing writing as long ago as 1978 observed that every child then born in the United Kingdom had a g reater chance of being admitted to a mental hospital than to a university, thus indicating a profound weakness in the educational system.

394

Universalising International Law

component similar to peace education. It may take such forms as moral education, education in good citizenship, peace related values, democratic rights and duties, duties of global citizenship, planetary protection and the like. The differentiating feature of peace education is the focus it has on the problem of human violence in all its forms and at all levels. Violence is not necessarily physical violence. Economic, psychological, verbal and political violence must also be looked at, for any one of these has the potential to flare into physical violence. Likewise violence must be examined at all levels – whether in the street or family or at school, in the city, in the country, in the region and in the world. Such a study would have the following basic features: “It aims at protecting children’s minds from being imbued by the violence in society. It prepares them for building a peaceful world by empowering them with necessary knowledge, attitude and skills. … Schools can directly benefit by adopting peace education. There is ample evidence to show it improves the quality of teaching, learning and discipline, and helps emotional development in the children.” Madam Maria Montessori made the percipient observation that “those who want war prepare young people for war but those who want peace have neglected young children and adolescents so that they are unable to organise them for peace.” We still face the paradox in our educational systems at all levels that it is far easier to introduce courses on war studies into curricula than courses on peace studies. Peace Related Exercises The manuals of peace teaching contain a number of ideas which can very easily be introduced into the daily or weekly curriculum, all of which have the effect of focussing children’s minds on peace and the factors contributing to and disrupting peace, whether in the immediate neighbourhood or the nation or the world at large. Among these are the following: a) News Presentations:- A weekly presentation by students at their respective levels, of the news for the week. They would be asked to choose two or three of the items of the week’s news indicating either tendencies towards peace or away from peace and would be invited to make their observation as to the importance of the event and the ways in which its potential for peace could be increased or its potential for violence reduced. b) Quotations on Peace:- Children could be asked to make a collection of inspiring quotations of peace and to make a brief comment on the values underlying them.

Practical Steps Towards Education for Peace

395

c) The Apostles of Peace:- As a more detailed exercise children can be asked over a period of time of a month or two months to make a study of the life and work of a principal figure in the history of peace and idealism. e.g. Gandhi, Mandela, Mother Theresa, Martin Luther King, or from an earlier age people like Erasmus, Wilberforce, Henry Dunant or Tolstoy. d) The Peace Congresses:- At a more advanced level students could be asked to identify some of the main peace congresses in history, particularly, the Peace of Westphalia 1648, the Congress of Vienna 1815, the Hague Peace Conference 1899, Versailles 1919 and San Francisco 1945. In doing so they could be asked to identify the achievements as well as the weaknesses and failures of these Congresses. At a more detailed level they could be asked to pick out one or two personalities who played a role of prime importance at these Congresses and to analyse their strengths and failures. e) Analyses of violence:- Children could be asked to describe some violent incident which they have witnessed. e.g. an altercation in the street, and to analyse why it was caused, how it could have been avoided, what conduct on the part of bystanders could have helped in resolving it and how such incidents could be avoided in the future. This would have the effect of focusing their thinking on the causes of conflict and the methods of resolving them. f) Identifying peace values:- A passage of around a page of material describing some event or activity could be distributed in the class room and children could be invited to identify the peace related values relevant to the material described. All of these could be a subject of discussion in the class room. g) Debates on peace related themes:- The class could be divided into groups, each of which could be assigned a peace related topic for debate and discussion amongst themselves. Within the groups they could be divided into supporters of one approach or another and the groups could report back to the class on the results of their discussions. h) Cross-cultural understanding:- This is a topic in itself and requires an exposure of the children to the principal cultural traditions of the world ranging over Africa, Australasia and the Pacific, Latin America, South and South East Asia, the Far East, Eastern and Western Europe. It is essential that children be given some understanding of the different problems in these areas and their different religious and cultural backgrounds. This process could be aided by regular scripture readings at school assembly or otherwise from the major texts of the world’s principal religions. i) Identifying a community problem:- The teacher and the students together could decide on some problem which is causing concern in the com-

396

Universalising International Law

munity, such as an environmental problem, or the problems of elderly members of the community. The class could then be asked to identify the problem and devise methods for its solution. The causes could be related to human rights issues and the solution likewise be geared to human rights and other values. j) Setting up imaginary courts and tribunals:- The children could be asked to present a case of what they perceive as a social injustice to two or three children elected by them who will function as judges of a tribunal investigating the matter. The class can be divided into two groups to present the case for the defence as well. k) The causes of war:- Children could be asked to reflect on the causes of war – territorial, economic, cultural and religious - and to try to give examples from the history of wars in each category. How could these wars have been avoided? When the war was over what should have been done at the time of its resolution to soften the bitterness of the conflict and to prevent similar conflicts in the future? All of these exercises are intended to generate interest, participation and reflection. But behind all of these lie values and principles. The relevance of these values and principles to human rights, the legal system and international relations must be brought out wherever possible. The linkage of these topics to human rights can quite easily be traced by making simple summaries of the Universal Declaration and related documents available to the children. Introduction of Peace Studies into Standard Curriculum Subjects Every subject taught in the cur riculum would have some potential for peace related observations • Literature – this would be a vast field of inquiry including not merely the writers on peace but also novelists whose works reflect on peace related issues. • History – the linkage is particularly strong here and policies and events having a bearing on peace and war can be chosen and analysed in greater detail. • Science – the potential of science for helping towards a better world as well as its potential for militarism could be analysed. Botany, chemistry and physics would each afford numerous openings for the discussion of environmentally related issues. • Economics – the cost both direct and indirect of wars could be analysed and likewise the cost of avoiding the problems that resulted in those wars. Statistics such as that $100 billion are spent each year on armaments, as opposed to a few hundred million in redressing the most pressing problems of the day.

Practical Steps Towards Education for Peace

397

•

Social Studies – the ways in which better organisation of society can help to obviate the causes of wars and the ways in which lack of attention to social problems can generate wars could be observed. • Art – exercises could be set on exploring the themes of militarism and military glory as depicted in works of art. Likewise ways in which peace has been depicted in art and the message of peace can be carried through art forms to the general public. • Geography – all areas of the world are replete with memories of military campaigns and the damage that resulted from them. A special study could be made of the numerous ways in which war damaged the economy, agriculture, social organisation and even the natural landscape of the area in question. • Environmental Studies – the damaging effect of war on the environment could be a subject of graphic depiction. The effect of nuclear weaponry, chemical weapons and pesticides could all be analysed, not to speak of the effects of conventional weaponry. The medical effects of hostilities could also be examined. • Religious Studies – the teachings of the great religions on peace could be the subject of instruction. In all the above areas exercises and presentations can be devised at levels appropriate to the student groups involved. The Basics of the International Legal System As already indicated the basic principles of the international legal system are well within the grasp of schoolchildren of the ages of around twelve years and upwards. The notion that nations should be free and equal, that there should be no wars of aggression, that humanitarian conduct is required in all states activities, that the environment should be preserved and protected, that disarmament should be promoted, that the last vestiges of colonialism should be brought to an end, that treaties should be honoured and that diplomats should be respected – all of these are illustrations of basic concepts that every school child will understand and appreciate. Where is international law found? This too can be simply explained. These is no legislation to make international law as there is to make domestic law, and in its absence treaties, customary international law, the general principles of law recognised by the community of nations, judicial decisions and juristic writings – surely all of these are within the comprehension of the school child. It will also be of interest to the child to know that international law, despite its lack of an enforcement mechanism, is now universally accepted as law and that though it lacks the physical means of exacting compliance it relies on its moral

398

Universalising International Law

authority – a moral authority which is growing so rapidly that no nation likes to be seen as a violator of international law. Simple versions of the UN Charter and of the Universal Declaration of Human Rights should be made available and attention should be drawn to the Preamble to the UN Charter and to the Statement of the Aims of the UN. Children can also be introduced to the structure of the international system the United Nations and its predecessor the League of Nations as well as various instrumentalities of the United Nations and the work performed by those entities. e.g. the World Health Organisation or International Labour Organisation or the Food and Agricultural Organisation, and the Human Rights Committee. The existence of such organisations as the International Atomic Energy Agency, the International Civil Aviation Organisation, the Universal Postal Union and the World Meteorological Organisation will not only trigger curiosity and interest but will also generate more awareness and discussion of the numerous areas of basic activities which have now acquired an international dimension. Children should be made aware of the ways in which these organisations can be approached, and how every one of them has relevance to the activities in their own country and community. In their generation it will be just as important for them to know of these instrumentalities as it is now important for children to be taught something about the basic constitutional structures of their country. It would be also useful to introduce students to the notion of nongovernmental organisations which in their day will play an increasing role in linking together the people of the world around issues in which they have a special interest. The UNESCO Teachers’ Guide draws attention6 to the fact that children especially in primary grade may find it difficult to grasp the concepts involved in human rights and it is suggested that learning human rights should begin with understanding them in daily experiences of the personal lives of children. e.g. standing in a queue for one’s turn, helping the injured and sick, keeping public places clean, not encroaching on another’s property and keeping one’s promises. Each of these examples has the potential to lead to a many faceted discussion involving the equality of human beings, the duty to obviate suffering, environmental protection, and the like. Every article in the Universal Declaration can very easily be linked to events in everyday life and both teacher and student need to be sensitised to this, for example, by making pocket copies of simplified versions of the Declaration freely available. Indeed with such a copy conveniently at hand classroom discussions could be constantly stimulated on one or the other of the human rights it contains. Simplified versions of the Universal Decalaration, stating its basic propositions in language children could understand, can be prepared on one card or folder. 6

Supra n. 4 at p. 135.

Practical Steps Towards Education for Peace

399

The Realities of War Generations of children have grown up in an atmosphere of the glorification of war. Indeed schools themselves have been among the principal propagators of this view of war. In the nuclear age this needs to be drastically changed. War needs to be taught as it really is – the most cruel, ghastly and horrendous exercise which human beings can engage in. Children need to be introduced to this viewpoint not only through historical and religious and philosophical material bringing out the horrors of war, but also through the raw statistics themselves – how many lives lost, how many children rendered orphans, how many limbs lost, how many wounded living out the remainder of their lives in misery, how many children prevented from being born, how many billions squandered on weapons of death when one tenth of this could keep the world population contented and avoid the seeds of future wars.7 Such an approach needs to be placed in the setting of a possible escalation of any conflict to the level that the use of nuclear weapons becomes an ever present possibility to be seriously considered. Children need to be taught how easily war can be entered into and how difficult it is to extricate oneself from a war that has once commenced. So also they need to be shown how difficult it is to control a war once it has commenced and how it tends to spread and to stir up fresh hatreds and renew old ones. War thus presented, stripped of the honorific trappings that have accompanied its presentation for ages, will leave an indelible impression on the minds of future leaders that war is a phenomenon that mankind needs to leave behind, if it intends to survive. Intercultural approaches to peace. Peace studies are an important way of generating cross-cultural understanding, which is so important to peace. Ignorance of other religions and of the basic commonality of their teachings on such matters as human dignity and peace needs to be cured in the classroom itself. An exercise that can be set to children in the higher classes of schools is to peruse the revered texts of four or five of the great religions and to extract there from all the peace related teachings they contain. This has the double advantage of broadening their outlook beyond the mono-cultural mould in which their moral education is generally set, as well as stimulating informed discussions on the divisive features of today’s world order. The chapter on Religious Perspectives in the present volume collects some of these teachings and some such collections of basic materials can be distributed to the students. 7

Some useful statistics on these are contained in Chapter 11 above.

400

Universalising International Law

This exercise can also be combined with some historical perspectives. How, despite their teachings on peace, did the followers of these religions find themselves able to wage war against each other which imposed untold suffering upon millions? Where was the gap between precept and practice? The context of some particular war in history could be looked at in some detail and the children asked to imagine themselves as a citizen or a leader in that episode. What could he or she have done to avoid war? How could he or she have used the religious teachings regarding peace to counteract the drift towards war? All of these can yield enormous dividends in the understanding of human conflict and how it has been promoted by interested parties down the ages. To what extent does the same hold true today? To what extent can the individual contribute to peace by projecting his or her viewpoint and relating it to the fundamental moral framework to which that society is committed? Philosophical approaches to peace What have the great philosophers written concerning peace and the causes of departures from this fundamental norm? A selection can be made of dramatic passages on this topic from the earliest times, which would arouse the interest of students. Erasmus’s Complaint of Peace would be a wonderful starting point, for he there personifies peace and shows how Peace complains that she can find no place in the councils and parliaments, how she is driven out of even learned assemblies and religious meetings and can find refuge nowhere among the human community – not even among the family. People are always quarelling. Why is this so? Is it due to ignorance, stubbornness in refusing to see the other’s point of view, selfishness in preserving one’s privileges or increasing one’s possessions, wickedness and indifference to human suffering, the apathy of good people who do not intervene when they should, or any other cause? Lively debates can be provoked in the classroom, and perhaps interesting presentations made. Also, it could be a subject of enquiry as to what the philosophers have done on a practical plane to translate their visions into reality. For example Tolstoy’s attempts to do this could be the subject of a detailed analysis and explanations. Why did this experiment fail? What were the vested interests that felt threatened by it? Did any rulers in history adopt the teachings of philosophers and try to translate them into practical procedures of government? To what extent can some of these teachings be incorporated into current governments? The chapter in this volume on Philosophical Perspectives may perhaps offer some ideas for topics of discussion. The linkages between these philosophical writings and the various peace societies and movements in history could be examined.

Practical Steps Towards Education for Peace

401

The Peace Movements An attempt may be made to identify some of the peace movements in the 19th century, when over 400 peace societies proliferated all over the world. Why was this period so prolific in producing movements aimed at the abolition of war? The horrors of war, as so dramatically described by Henry Dunant in his Memory of Solferino might be given as one example. The growing destructiveness of arms and the fear that was entertained that there would be no victors in future wars but that they would lead to mutual annihilation of both contending parties as was the contention of the Russian banker Bloch in a multi-volume treaties that even influenced the Tsar of Russia to call the Peace Conference of 1899. The growing strength of pacific movements among religious people – such as the Quakers who had long advocated the abolition of war, could be the subject of class discussions. Would you join a peace society or would you form one? If you did so what steps would you take? Who would be your principal opponents? How would you marshal public opinion on your side? All these would be absorbingly interesting to school children and could be the subject of very interesting and constructive discussions. The Armaments Trade How much business does the armaments trade transact every year? Over 100 billion dollars. How much is spent on combating malaria, AIDS, malnutrition? Why is money so readily available for the manufacture and production of weapons of death and so hard to come by for such essential purposes? What are the vested interests that maintain and support the armaments trade? Why is the armaments lobby so powerful? What can be done to reduce its influence? Are politicians in the grip of the armaments trade and if so why? Should the armaments trade be permitted to make contributions to political parties and thus place them under an obligation to pursue warlike policies? Is there a linkage between the arms industry and other big businesses, so that they together become overwhelmingly powerful? What is the military industrial complex against which President Eisenhower warned the American people?

402

Universalising International Law

Is there a connection between arms production and job creation? All of these are topics that can keep the class riveted in discussion, thereby stimulating also a very real interest in other disciplines as well, such as economics, psychology, and the political and constitutional system. The idealism of youth would find it particularly incomprehensible that these interests could flourish and be treated with such respectability when the small time drug peddler whose damage to society is perhaps much less, is so severely dealt with by the law. In all these various ways the schoolroom can be turned into a place of real thoughtfulness regarding the current ordering of society and a real training ground for world citizenship of the future. Children are in school in the modern age not merely to be trained to be good citizens of their countries but also to be good citizens of the world. That realisation should give a new and universalistic orientation to all education today. The national moulds in which education has been cast in the past need to be considerably restructured in the present age in which universalism is not merely an ideal but an imperative.

Practical Steps Towards Education for Peace

403

Appendix A The topic is vast and varied and has already engaged the attention of expert educationists and others. A short reading list from different countries is appended which will give peace educators a rich assortment of ideas from which to choose.

•

Andreopoulous, G. and Claude R. P. (Eds.) (1997) Human rights educa tion for the twenty-first century. Philadelphia, PA: University of Philadelphia Press.

•

Baraka Education Foundation. Good things about me: Practical class room activities to foster pupils’self esteem and confidence. New Zealand: The Peace Foundation. (n.d.)

•

Bjerstedt A (1993) Peace Education: Global Perspectives (studia psychologica et paedagogica, 107) Stockholm, Sweden: Almquist and Wiksell International Publishing.

•

Borrelli, M. and Haavelsrud, M. (1993) Peace Education within the arch ipelago of peace research, 1945-1964. Norway: Arena Publishers.

•

Dupont L. Foley J. and Gagliardi A (1999) Raising children with roots, rights and responsibilities. Minnesota: The Human Rights Resources Centre, University of Minnesota.

•

Fountain, S. (1993) Education for Development: A teacher’s resource for global learning. Britain: Hodder & Stoughton.

•

Graves N. J. O. Dunlop, J. and Torney-Purta J. V. (1984) Teaching for international understanding, peace and human rights. Paris: UNESCO.

•

Krieger, D. (Ed) (1999) A student’s guide to global responsibility, Second Edition. Santa Barbara: Nuclear Age Peace Foundation.

•

Levin, D. E. (1996) Teaching young children in violent times: Building a peaceable classroom. USA: Kendall/Hunt Publishing Company.

•

Panagtagbo sa Kalinaw: A basic orientation manual towards a culture of peace for Mindanao communities, (1998).

•

Ray D. (Ed.) (1988) Peace Education: Canadian and International Perspectives Canada: Third Eye Press.

•

Ray P. Alson, S. Lantieri, L. and Roderick, T. (1996) Resolving conflict creatively: a teaching guide for grades Kindergarten through six. New York: Board of Education of the City of New York.

•

Reardon B.A. (1995) Educating for human dignity: Learning about rights and responsibilities. PA, USA, University of Pennsylvania Press.

Universalising International Law

404

•

Shevchenko, O, Dzyabenko, v, and Inzhutova N. (2000) Learning Democracy. Ukrainian Movement, Educators for Peace and Mutual Understanding: Kiev.

•

Shiman, D, Alemayehu G, McCormack M, and Melville Myers I, (1997) Human rights education for citizenship. Trinidad: Caribbean Educational Publishers.

•

Stomfay-Stits, A. (1993) Peace education in America (1828-1990): A sourcebook for education and research. New Jersey: Scarecrow Press.

•

Swee-Hin, T. and Floresca-Cawagas, V. (1987) Peace education:A frame work for the Philippines. Quezon City, Philippines: Phoenix Publishing House.

•

Towards peaceable school communities: Creative and constructive approaches to conflict (2000) University of Cape Town: Centre for Conflict Resolution.

•

Thomas Anchukandam, Jose Kuttianimattuthil (ed.) Grow Free Live and Free – a source book for value education, Kristu Jyoti Publications, Salesians of Don Bosco Bangalore 560036, India.

•

UNESCO manual – Learning peace: A teachers’guide to peace educa tion. UNESCO, New Delhi, 2001.

Practical Steps Towards Education for Peace

405

Appendix B Conclusions Reached at the UNESCO Regional Seminar on Curriculum Development for Peace Education, Colombo, Sri Lanka 3-5 January 2001 Draft Resolution: The participants at the Seminar I. Recognizing the role that education has to play in building defences of peace in the minds of people, and the interrelationship between peace and sustainable development as critical to achieving the object of social cohesion and living together, and to move away from a culture of war and violence in a world beset with strife to a culture of peace and non-violence; II. Acknowledging the responsibility to the future of humanity and the critical role of peace education in discharging such responsibility; III.Underscoring that the respect for human dignity and human rights and the protection of the environment are the core values, that need to be practised to achieve peace and harmony and sustainable development through lifelong peace education. IV. Reinforcing the need to harness the full potential in body, mind and spirit of every human being and the need to preserve one’s identity (learning to be); V. Emphasizing the need to establish a prioritised programme of peace education in all aspects of school curricula; VI. Realising the importance of the noble ideals such as loving kindness, mercy, friendship, generosity, equanimity, and righteousness, as enshrined in all our religions, resolving that the following steps are conducive to the inculcation of the values and development of attitudes and behaviours to be practised in the school and out of the school environment to achieve a culture of peace and non-violence, a cherished ideal of all human beings: 1. Re-orient teacher education programmes to ensure the professionalization of every teacher and teacher educator as a peace educator. 2. Design school programmes, curricular activities, functions, ceremonies and celebrations to internalised concepts and practices of peace education. 3. Create awareness that the school practises the culture of peace by way of developing literature for children, and by displaying peace mottos in prominent places, on bill boards and wall magazines. 4. Take measures to eliminate and denounce violence, of any forms, explicit or implicit, within the school and campus premises. 5. Incorporate peace education in all curricula and in the development of teacing/learning materials, including in multi-media facilities.

406

Universalising International Law

6. Set up teacher and student exchange programmes nationally and internationally for the promotion of peace education. 7. Establish a Peace Education Centre for South Asia, which would co-ordinate, promote and support researches, surveys, studies and innovations in peace education. 8. Promote the learning of concepts and practices of responsible and duty-conscious citizenship among students. 9. Initiate functionaries of school management systems into peace education and provide them with the enabling environment to do so. 10. Develop skills in conflict resolution as an integral part of education. 11. Promote respect for diversities and pluralities in multicultural societies comprising different linguistic, cultural and religious backgrounds. 12. Influence the relevant authorities to ensure that mass media fall in line with the mission of peace education by recognizing their own social responsibility. 13. Involve schools in building out-of-school informal and non-informal support structures for promotion of peace, involving the home, civil society, organisations and communities. 14. Lobby with decision-makers and policy-makers in public and private sectors that environments conducive to peace must be ensured to supplement what is done in the schools. 15. Prepare a handbook comprising guidelines to be followed by every teacher and teacher educator by way of an integrated approach in all subjects taught in schools and teacher education institutions on the basis of proposals made during the seminar. (This handbook to be made available to the member states by 28 February 2001 in order to enable the testing of the models to commence in the South Asian members states, as soon as possible). 16. Develop and execute monitoring and evaluation mechanisms for peace education programmes and build these into the new programmes. 17. Encourage member states to formulate government policy to institutionalise and implement peace education programmes. 18. Globalize the peace movement by proposing these concepts and programmes to be adopted by UNESCO’s member states in General Conference and to be practised in the respective member states thereafter, since it is only a world order imbibing similar values, attitudes and behaviours that could bring about respect for human dignity and rights and respect for the environment which are the essential ingredients for contributing to a culture of peace worldwide. 19. Sustain peace education programmes by the adoption of appropriate strategies in the short, medium and long term. Colombo, Sri Lanka 5 January 2001

Practical Steps Towards Education for Peace

407

Appendix C List of topics for class discussion:

• • • • • • • • • • • • • • • • • • • •

How Do Wars Begin. How Disputes Can Be Resolved. What Each Individual Can Do. The Universal Declaration of Human Rights. Common Elements in World Culture. The History of Peace Movements. The Basis of International Organisations. How Governments Can Be Influenced To Work For The Poor. Economic Irregularity And How It Can Be Addressed. The Role of the Global Citizen of the Future. The Horrors of War. The Arms Trade. Torture. Child Abuse. Slavery. Nuclear Weapons. Land Mines. Profiles of Famous Peace Workers – e.g. Gandhi, Mandela, Wilberforce, Mother Theresa, Henry Dunant, etc. Racial Intolerance. Religious Intolerance.

Chapter 14

International Law as an Instrument of Peace1

Although the highest principles and noblest purposes of international law are the achievement and the maintenance of peace, these ideals seem to be far indeed from realisation in a world where dozens of mini wars are raging, any one of which has the potential to flare into a major conflagration. International law may well be described as the queen of the disciplines which deal with global order. Leadership in the battle against the factors disrupting global peace is the natural province of international law. Then only can it truly be described as the instrument of peace which it should be. Of course it will be a long while before we can make international law an effective instrument for the avoidance of conflict, but its inadequacies thus far must prompt us to ask whether there are any prerequisites to its efficacy which remain unsatisfied. International law has come a long way since it was scoffed at as a visionary ideal and an impractical dream – a view held by many till well into the twentieth century. The ‘precise’positivistic reasoning of an age dazzled by the achievements of science even denied it the status of law. Although it has outlived that initial question mark which stood over its legitimacy and has considerably improved its concepts and techniques over the past two or three generations, it still remains a largely ineffective tool in the pursuit of world peace. This prompts us to ask whether there are still some prerequisites fundamental to its efficacy that remain unsatisfied. Busy lawyers do not often pause to consider this question but when they do the areas of insufficiency, the lacunae and the blind spots command increasing attention and the more one contemplates the problems the more serious they 1

Address delivered at the 10th Annual Convocation of the National Law School of India University, Bangalore Sunday 11th August 2002

408

International Law as an Instrument of Peace

409

appear. International law has traditionally neglected these areas and it is imperative that we focus increasing attention on them. There can be no doubt that the international law of the future will have to be an active instrument of peace rather than a passive subscriber to the notion of peace. It cannot play this role if it does not home in on these questions and concentrate all its resources on the principal causes of global tension and the principal sources of disturbance of global peace. International law has for centuries focused on issues of war and peace – on war after it arises and on peace as an abstract concept. It must now focus on war before it arises and peace as a goal of affirmative action. It is also important to note preliminarily that if international law is to fulfil its real role of being an instrument of peace, it needs even more than domestic law, to command the approval of its constituency, namely the world community which it serves. It cannot achieve this if it continues to be viewed as a monocultural product tailored to the needs and traditions of only one segment of the global community. It is, therefore, vital to the international rule of law that the international legal system be so developed as to reflect the multicultural global cultural inheritance. In doing so some of the weaknesses that currently affect it would automatically receive attention. Some of the areas of weakness of current international law which compel attention if we are to make it a more meaningful instrument of peace are the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

Multiculturalising International Law Establishing the Human Right to Peace Stressing Prevention Rather Than Cure Ensuring Fair Dealing in the International Market Place Emphasis on Duties as well as Rights Curbing the Arms Trade Protecting Intergenerational Rights Redressing the Wrongs Done During Colonialism Ensuring Equality of States Devising Mechanisms for Early Warning and Dispute Resolution Stimulating Individual Interest in World Order Through Education Moving the World Community Towards Collectivist Rather Than Individualist Modes of Thought 13. Stimulating a Global Effort to Ensure Freedom From Want 14. Developing the Concept of Sustainable Development 15. The Abolition of Nuclear Weapons and Weapons of Mass Destruction 16. Controlling the Narcotics Trade 17. Developing the Concept of Obligations erga omnes This is by no means an exhaustive list.

410

Universalising International Law

Multiculturalising International Law To this end the jurisprudence of international law must be more prepared to incorporate elements drawn from all the world’s cultures – a tendency that has been remarkably absent at least till the recent past. During the author’s years on the International Court of Justice he has attempted to infuse these elements into a number of his Opinions and it is to be hoped that multiculturalism will soon enter the mainstream of international jurisprudence, to be followed and developed both academically and institutionally. In the words of Aldous Huxley, written half a century ago, “A hundred years ago hardly anything was known of Sanskrit, Pali or Chinese. The ignorance of European scholars was sufficient reason for their provincialism. Today, when more or less adequate translations are available in plenty, there is not only no reason for it, there is no excuse.”2 As an example of academic development I would refer to a recent remarkable work on Humanitarian Intervention3 which stresses the importance of the multicultural approach I have adopted in my judicial opinions and incorporates material drawn from Hindu, Judaic, Buddhist, Confucian, Christian, Islamic and Baha’i sources, not merely by way of passing mention, but in a serious attempt to draw those sources into the mainstream of international legal thinking. In regard to Buddhism for example the author reinforces over twenty concepts relevant to international law through research into its revered texts. As an example of institutional measures to address this problem, I would draw attention to the creation at McGill University of the Institute for Sustainable Development Law which draws upon the multicultural approach to environmentally related matters through which I have sought in my Opinions to reinforce the concept of sustainable development and elevate it from the level of a mere aspiration to the level of a principle of customary international law. On such major issues as the illegality of nuclear weapons, the humanitarian laws of war (of which it is a part), the safety of ambassadors or the sanctity of treaties it is unwisdom indeed to neglect the cultural under-pinnings of at least two thirds of the world’s population whose thinking, as adherents of one or other of the world’s major religions, is profoundly influenced by the basic moral principles taught in the revered texts of those religions. If international law is viewed and taught as a set of principles divorced from its moral and socio cultural base it not only loses its authority but tends to become arid and sterile with little potential for development and only slender claims to wholehearted acceptance by the bulk of the world’s population. If, on the other 1.

2 3

See The Perennial Philosophy, Harper & Row, 1944, pp.192-200. See Brian D. Lepard, Rethinking Humanitarian Intervention: a fresh legal approach based on fundamental ethical principles in international law and world religions, Pennsylvania State University Press, 2000.

International Law as an Instrument of Peace

411

hand, it is viewed and taught against the multi-cultural backdrop of global experience and wisdom, its support and strength will grow and its relevance and immediacy will increase. A practical example may well illustrate this point. During the Iran/US crisis, when US diplomats were held in conditions of confinement the privileges and rights of diplomatic personnel were very much in issue. The US rightly drew attention repeatedly to the rules and conventions of international law relating to the position of diplomats. But what it did in effect was to draw Iran’s attention to the rules of international law as they appeared in the abstract in the Western law books without regard to their multicultural base. It needed to be stressed rather that the principle of respect for diplomats was an honoured one in the Islamic tradition and that hadiths of the Prophet Mohamed, showed that he had received foreign envoys with every mark of honour and that this was hence the subject of elaborate commentaries in the Islamic juristic writings over the ages. There seemed to have been a neglect of this important aspect in the communications that were issued on this matter. Indeed this cross-cultural lack of information exists even within the sphere of international law itself, for the contributions of the different cultures to international law are sometimes not known even within the ranks of international lawyers themselves. Current events such as September 11th highlight the need for cross-cultural understanding as a preventive to the repetition of such disasters. Establishing the Human Right to Peace The Universal Declaration of Human Rights has proved to be one of the most influential documents ever adopted by the United Nations. Yet an important omission in the document was that perhaps the most significant of all human rights – indeed the right without which all the rest collapse – namely the right to peace, is omitted from the document. It could surely be argued that the right to peace and security is the most important of all human rights. 4 A great Jewish commentator on the Bible, quoted by Rosenne in this connection, wrote in the twelfth century that, placed in the scale of values, peace outweighs all else.5 The General Assembly in 1984 sought to set right this deficiency. Resolution 39/11 of 12th November 1984 approved a Declaration on the Right of Peoples to Peace. It referred to life without war as the primary international prerequisite to national well being, development and progress as well as for the full 2.

4 5

See S.L. Rosenne, The Perplexities of Modern International Law, Martinus Nijhoff, 2002,p.239. Rabbi Shelomo Ben Isaac 1040-1005,a major Jewish commentator on the Bible, commenting on the verse “And I will give peace in the land” – Levities xxv 1.6.

412

Universalising International Law

implementation of the rights and fundamental freedoms proclaimed by the United Nations. Doubtless much more has to be done in international forums to give pith and substance to the human right to peace. It exists at present both inferentially from its indispensability to all other human rights and, specifically as a right in itself. Yet the literature on this aspect is not as strong as it needs to be, and both judicial pronouncements and international treaties and declarations do not give it the essential importance it deserves. Stressing Prevention Rather than Cure International law thus far has concentrated on the curative rather than the preventive aspect of international conflict. It has to the limit of its ability devised mechanisms to settle conflicts after they arise. Arbitration, judicial decision, conciliation, mediation, – all of these are in its list of remedies and palliatives but its pharmacopeia does not contain the recipes for eliminating the causes of these conflicts. It needs little perception to see that many of the conflicts endemic in the world order stem from inequalities, cross-cultural misunderstandings, unjust international contracts, selfishness and even rapaciousness in the pursuit of global preserves, which international law is not without at least some resources to handle. As Franklin D. Roosevelt so pertinently observed “ More than an end to war we want an end to the beginning of all wars – yes, an end to this brutal, inhuman and thoroughly impractical method of settling differences between governments”6 In this advanced stage of weaponry where conflicts have the potential to blow up all civilization, it seems the height of folly to neglect attending to the causes of conflict, and to attempt to patch them up only after they have reached serious proportions. This is not a matter to be left to the prime ministers and the politicians, the generals and the diplomats and others who dabble in international affairs. It is surely a matter for international lawyers as well, for it is they who mind the one discipline which operates authoritatively, trans-nationally and as a regulator of state conduct. The growing disparity between the rich world and the poor world is a powder keg with a time fuse attached to it. As the gulf grows, dissatisfaction, envy, anger and hatred can develop, especially as those on the privileged side of the divide tend sometimes to flaunt their wealth and power, accompanied sometimes by discourses on how the latter should behave. This worsens the situation in a world of transparent communication and instant vision, where the amenities and the lifestyle of the rich are immediately visible to the poor. The poor tend to reflect on the causes of their inability to close the gap and the more they reflect on these the more they are convinced that the causes stem 3.

6

Franklin D. Roosevelt, message for Jefferson Day, April 13, 1945.

International Law as an Instrument of Peace

413

most often from the inability to attain equality in a race where the handicap is too wide. A contest between a walker and a cyclist will result in an ever-widening gap however much the walker may exert himself, for the latter already has an advantage which manifests itself at every moment of the contest. Try as he may he is always outpaced and the longer the inequality continues the greater will be the gap. The handicap keeps steadily increasing, and the longer the race is run the greater is the inequality of the contest. The growing gulf between the rich world and the poor world is just one example of the causes of conflict that need attention. There are many more, and some are dealt with in the succeeding sections. In the result the gulf between the haves and the have-nots keep widening by the day. The rich world grows more and more remote from the poor world, while within the poor world itself the gulf between the rich and poor is constantly widening. Such disparities in their economic situations breed resentments, which develop into frustrations, anger, hatred and violence. If they are to be avoided they need to be nipped in the bud or at least prevented from escalating. International law has an important but much neglected role to play in this if it is truly to be an instrument of peace. Ensuring Fair Trade Practices We come across a strange anomaly here, which as far as the author’s observation goes seems to be a virtual blind spot in international law. I refer to the following: In the field of contract law there have been remarkable developments in the twentieth century, which have taken contract law away from its insensitivity to considerations of fairness of contracts, to a situation where the law is deeply concerned with questions of fairness. At the dawn of the twentieth century the prevailing philosophy in regard to contract was that contract was the result of a meeting of two consenting minds and as such it was an area of private law made by the parties themselves in the exercise of their undoubted prerogative to make their own bargains. Therefore let not the courts interfere. Let not the legislature interfere. To do so would be to invade the autonomy of the individual and the integrity of the individual will. We have moved far since then. Every domestic jurisdiction recognizes that there can be profound unfairness in consequence of such an attitude. A millionaire choosing an employee from one of a thousand applicants, some of whom who would not know where the next meal is coming from with which to feed their starving families, could drive a very hard bargain. Millionaire mine owners were known to have made prospective employees sign on the dotted line, giving away the rights of their families even if they should be injured or killed in an accident in the mine while being about their employer’s business. Contracts agreeing that 4.

414

Universalising International Law

their families would have no right to be recompensed even in such an eventuality were in fact upheld by the courts. This was administration of justice in blinkers. Thanks particularly to the pioneering work of the realist school of lawyers in America at the beginning of the century, legal systems grew out of these myopic attitudes. They began to take note that such academic theories as freedom of contract could result in enormous unfairness and indeed rank injustice. Today, there is practically no jurisdiction in the world which would shut its eyes to the problem of unfairness in contract, for inequality in bargaining power is a very real factor which a practical legal system must take note of. Yet international law remains largely unconcerned with this profound change in the la w. What every national jurisdiction regards as axiomatic remains sorely neglected by international law and the fierce tooth and claw competition of the marketplace remains the order of the day in international law. 5. Duties Rather than Rights International law tends often to be worked as a positivistic system of law, on the model of domestic legal systems. There is consequently an emphasis on individual members of the global community of nations and on their rights. The world community of the future, if it is to be a peaceful one, will need more concentration on the collective interest of the global community rather than the individual interests of particular states. It will need also to emphasise the concept of their duties rather than their rights. International law cannot truly be an instrument of peace in the years ahead unless it registers this change of orientation. International law is already working on this aspect but it has a long way to go before it truly reflects the collective needs of the global community. Insights from legal philosophy, jurisprudence and multicultural sources are important means by which this can be achieved. These tend to be neglected. One of the best illustrations of this preoccupation with rights rather than duties is the Universal Declaration of Human Rights itself. Its concentration on rights rather than duties is not entirely in tune with the traditions of many sectors of the world community, which emphasise duties rather than rights. International law must be responsive to this change of emphasis, which the collective needs of the global community will demand in the future. This means also a closer look at the concept of state duties, the scope of which has enormously extended in recent times to cover such areas as state duties in relation to global health, environmental pollution, global travel, space exploration, climate change and such matters. The Arms Trade The arms trade had for decades been virtually a law unto itself. It commands enormous revenues and has an interest, sad to say, in keeping arms conflicts alive

6.

International Law as an Instrument of Peace

415

in various parts of the world. Dozens of minor conflicts rage across the world today and these are fed with supplies of arms both licitly and illicitly. In fact the illicit arms trade, which functions under the cover of subterfuges of one sort or another, seems to keep growing. It is often in alliance with the narcotics trade which is often used by rebel and terrorist movements to supplement their income wherewith to buy armaments. The arms trade violates every canon of human rights, whether it be the right to life, freedom from fear, the right to privacy or the right to a safe environment. There is no right spelt out in the Universal Declaration of Human rights, which is not violated by this trade. One of the principles of international law, which is exploited by the arms trade, is the principle of self-defence. This is used to give it legitimacy even though this excuse is often used to pile up weapons for purposes of offence rather than defence. International law has also been lax in its monitoring of the routes of supply and payment. States have also been lax in policing within their boundaries the manufacture of arms for purposes of such illicit export. Unfortunately the arms industry is so lucrative that states themselves prefer sometimes to turn a blind eye to this form of activity, which not only generates revenues but also creates massive employment opportunities. More attention needs to be devoted to the ways in which the vast resources currently devoted to the manufacture of weapons of death can be turned to the production of implements of peace – the classic concept of turning swords into ploughshares, which is a purpose which the UN organization ranks high among its objectives, even displaying biblical exhortations to this effect in prominent places in the UN building. The UN needs also to devise more effective machinery for the supervision of arms sales through penetrating the various codes of secrecy and dissimulation through which it functions. In fact conversion needs to be encouraged as a discipline in its own right as it is full of potential going all the way up to the use of space technology, for peaceful purposes. The matter assumes grave importance when we look at the statistics. During 1994-1996 the United States alone exported 67.3 billion dollars worth of armaments – four times the share of its closest competitor and constituting 55 per cent of the total of the global arms exports.7 Global arms exports were therefore well over 100 billion dollars. Although one would expect the global armaments trade to shrink, owing to the end of the Cold War, this has not happened – due partly to the increased cost of technology, the comparatively easier availability of financing packages and a willingness to disregard the effects of proliferation.

7

See http://www.thirdworldtraveler.com :‘U.S. Exports Arms to the World’ by Anna Rich.

416

Universalising International Law

Some of the arms producing countries sell their arms to both parties to an internal conflict and they plead that refusal to sell to friendly states would be taken as an insult. The arms trade profits also from arming one party to a domestic conflict whereupon the conflict escalates, thus stimulating the demand for further arms. Another aid to the increase of arms exports is the comparative freedom with which licences are issued particularly for small arms. As Madeleine Albright, former US Secretary of State,8 once observed the armament trade “fuels conflict, fortifies extremism and destabilises entire regions.”9 Against this dismal record the preventive role of international law seems minuscule. The international arms bazaars at which arms producers publicly display their wares and flaunt their superiority over rival products are a blot upon the international legal system, which international law needs to address. Codes of conduct in relation to arms exports need to be devised and to be endorsed at the highest professional and academic level. Such a code known as the ‘Arms Sales Code of Conduct’ championed by Nobel Laureate Oscar Arias was once unsuccessfully introduced into the US Congress in the 1990’s and could provide a model for international lawyers to work on.10 Intergenerational Rights The concept of peace assumes new dimensions today in the context of the shortages of earth resources and the continuing tendency of this generation to exploit the resources of the earth in its own interests and with scant regard to the rights of future generations. There is in a sense a war, an invisible war, being conducted between the generations. The question may be asked how this manifests itself in terms of conflict, seeing that future generations do not have people to represent them and fight on their behalf. There is more than one answer to this question. In the first place it is to be remembered that the exploitation of earth resources take place mainly in the countries of the developing world. By and large the process of exploitation is still by the rich world of the resources of the poor world, for the rich world has the industrial machine and the poor world has the raw materials with which it is fed. Translated into political terms this means that it is the developing world in the main, which suffers from this process, and even though the future generations who are being exploited are not yet in existence the developing world sees this as a present and immediate invasion of their rights. The wrong which is being done inter-generationally is thus also a wrong that is being presently being inflicted on the developing world and is a potent contributor towards tension. 7.

8 9 10

September 1998, United Nations Meeting. ibid. ibid.

International Law as an Instrument of Peace

417

Another aspect of this problem is that there is a growing volume of activism in respect of altruistic causes. Non-governmental organisations, other organized bodies and concerned individuals are no longer as passive as they once were and are even taking to the streets in dramatic displays of resentment at the misuse of economic power by the rich world. These demonstrations stem from the enthusiasm and the energy of their members and generate opinions on a global scale. They show the power of concerned opinion when it is awakened to action. The violation of inter-generational rights is thus in more senses than one, a potent factor which can disturb world peace. If international law is to be truly an instrument of peace it must take within its purview the redressing of the wrong done to future generations and the prevention of such further wrongs. Redressing the Wrongs Done During Colonialism The centuries of colonialism, which have only just been concluded, have left in their wake numerous unredressed problems. International law is not without the means to give some attention to this problem, which is heavily rooted in the colonial past, and the cure of which cannot be simply achieved by sweeping the past under the carpet, and suggesting that bygones be bygones. Where there has been wrongful gain by some, as happened under colonialisation, and wrongful loss to others, the moral obligation to take at least some meaningful steps to assist the victims lies heavily on those who have received and continue to enjoy the spoils. International law needs to address this question, not in a sense of recrimination but with thoughtful care and concern, seeing that both groups alike are members of a common and shrinking global community. Modern research is revealing the numerous ways in which colonisers underdeveloped the colonised.11 International law needs to concern itself with the question how some redress might be devised for this, seeing particularly that the wealth of proceeds of colonisation still remains comfortably in the possession of the coloniser who continues to benefit from it. World hunger, partly the result of this process of dispossession, needs attention from all the disciplines. The statistics are bleak. Malnutrition and unsafe water cause an estimated 17 per cent of all the deaths in the world. An estimated 791 million people in the world currently do not consume enough calories to safely maintain their basic health. 12 51 per cent of all Africans in Sub-Saharan Africa live in absolute poverty – less than one dollar a day.13 These cannot be dismissed 8.

11

12 13

See Walter Rodney, How Europe Under-Developed Africa, Howard University Press,May 1984; L. Blusse, H.L.Wesseling, G.D.Winius, eds. History and Underdevelopment,Leiden University, 1980. See http://www.fh.org : Food for the Hungary – Fact Sheet. See http://www.lists.essential.org : Development : Africa Spending Less on Basic Social Services.

418

Universalising International Law

as the concerns of other disciplines such as economics. They are equally the concern of international law, particularly because international law has at least some of the tools wherewith to address some major aspects of this problem. So also with the problems of the crippling of local economies, the dispossession of the peasantry, the destruction of cultures, the importation of alien labour forces and the legacies of boundaries redrawn in imperial capitals to safeguard their interests and without any reference to the wishes or needs of local populations. They have all left an inheritance of problems which compound themselves in combination and seem to defy solution. Many of the problems of societies liberated from colonialism are not capable of being simply dealt with, for they have deep roots in the colonial period when international law did not exist for subject peoples, who were totally rightless. They were thus free to be exploited, expropriated, expelled from their lands and even enslaved, without any redress whatsoever. This state of rightlessness continued for centuries and left deep scars in the societies and economies of territories which have now become nation states. Economic, social, territorial and political problems created by colonial activity still continue. It is not unreasonable for nations who have been at the receiving end of this kind of activity to complain and to seek some assistance however slight from the nations that caused them, in cases where expropriation and appropriation of land and property took place. The appropriators and the expropriators are still in possession of what they made their own. Whatever strict law may say in relation to the obligation to make some form of redress, the voice of morality speaks quite clearly on this issue. Considerations of equity very clearly indicate some sort of a duty to attempt to mitigate the effects of the wrongful acts systematically practised under cover of international law during the period of colonialism. The international law of the future would need to take note of this problem if it is truly to be an instrument of peace. Current attitudes of ignoring the problem can over the long run be productive of increased tensions – if not immediately, certainly over the long run. This is especially so in the light of the fact that the disparities in wealth caused by that historical phenomenon tend to keep widening rather than narrowing and consequently the potential causes of tension are intensifying rather than reducing. Some measures of assistance rendered at an early stage may well be a form of insurance against such situations sliding out of control through a progressive intensification of the problem and the consequent heightening of the bitterness and tension which result from it. Equality of States It is essential to the proper discharge of its functions by international law that there should be equality among the states that are the members of the international community. States are of course often grossly unequal in size, population, wealth,

9.

International Law as an Instrument of Peace

419

power and influence. However the basic principle on which an international legal system is built is the equality in the eyes of the law of all members of the community of nations, irrespective of size, population, wealth, power or influence. Of course we do not live in a perfect world and there are some natural inequalities that result from these disparities. In particular, the natural prestige of particular states may result in other states paying special regard to their opinions just as in a parliament the more experienced and respected members attract more weight to their opinions than some others. This is understandable. However, the principle of equality of nations is diluted and often negatived if nations of power and influence use their special position to browbeat, coax or bribe the less influential members of the world community to support their point of view. Unfortunately, this does happen internationally on quite a few issues and the result is a weakening of the authority of international law and international institutions. This is to be deprecated and it is to be hoped that members in a natural position of leadership will exhibit qualities of leadership rather than reduce the authority of international law when they should be leaders in promoting it. It is also a matter of concern that in a world which depends on the universal authority of international law, powerful nations sometimes pursue a course of exceptionalism, requiring special exemptions and special rules for themselves when their interests are affected. Such policies result in a dilution of the authority of international law. Whether it be in the environmental field or the field of international justice or the field of honouring international commitments such exceptionalism violates the spirit and rationale of international law. There have been worrying signs of such claims to exceptionalism in the recent past. It is to be hoped that manifestations of this attitude will prove to be exceptions to the rule of equality and not trend setters in relation to possible attitudes of powerful nations in the future towards the great role of internationalism. Mechanisms for Early Warning and Dispute Resolution The international arena is lacking in mechanisms for nipping in the bud the many tensions that show signs of growing into major disputes. There need to be think tanks of trained sociologists, economists, scientists, environmental experts and international lawyers who will spot potential trouble areas and draw them to the attention of the international community. The other experts will not be able by themselves to devise the institutional and conceptual means of preventing the escalation of these conflicts. But the international lawyers, with their special expertise is developing concepts and devising procedures will be able to evolve practical means of translating the necessary policies into appropriate international action – whether by setting up assessment groups, devising impact studies, refining existing concepts or evolving mechanisms of damage control while the

10.

420

Universalising International Law

problem is still in an incipient stage. Too long has the world waited for trouble to flare up in the form of open violence before damage control measures and healing procedures are set in place. There is a huge reservoir of available experience in dealing with such matters which needs to be assembled and marshalled, for world history is replete with instances of the ways in which minor problems escalate and gather an unstoppable momentum. Research teams can be set the task of collecting this material under different heads – economic, social, linguistic, racial and religious. This preventive aspect of international law is much neglected and needs to be a subject of study independently. 11. Stimulating Individual Interest in World Order Through Education There is often a feeling that international affairs are so far beyond the reach of the average individual that the individual should be resigned to leaving this domain to the Presidents and the Prime Ministers, the diplomats and the generals. This follows from a top-down view of the international structure. The truly peaceful international order of the future depends on a reversal of this attitude, for it is only through a just and peaceful order emanating upwards from each individual that a just and peaceful society can emerge – whether regionally, nationally or internationally. This is what the major philosophical and religious traditions teach. Confucius in his wisdom pointed out that one of the eight duties of proper conduct lying upon every individual is to do what he can for the welfare and betterment (Ping) of society. The accumulation of millions of such efforts is the only true base of a more just and orderly society which in the last analysis must stem from the individual’s own sense of righteousness. Translated into the context of international law, this means that an effort must be mounted at all levels to introduce international law and a consciousness of its potential into education curriculum across the world. No meaningful steps have been taken over this and it should be the subject of a concerted international and national effort. I look hopefully to a time in the very near future when peace education and the role of each individual in the maintenance of international harmony will be a subject in every school from the earliest years onwards and I have founded a Centre14 to promote this project. The project needs texts and materials and it is the international lawyers above all others who can supply these. An important aspect of this education is to overcome the parochialism of an approach to religion which does not see the core elements of peace, dignity, commonality of the human family, and co-operation which are taught by all religions, and these are indeed the bedrock of international law itself.

14

Weeramantry International Centre for Peace Education and Research, Colombo, Sri Lanka.

International Law as an Instrument of Peace

421

12. Moving the World Community Towards Collectivist Rather Than Individualist Modes of Thought The international law of the nineteenth century visualised a world community of states with individual states as the members of that community. Any embryonic attempts at world organisation or at the evolution of concepts and principles appropriate to that organisation proceeded on the analogy of domestic law in the domestic sphere – a law which catered for the rights and duties of individuals within that community. Especially in the era of individualism following the French revolution and the Industrial revolution which wiped the slate clean of prior group organisations, the individual was left to fend for himself against all others including even the state. In the late twentieth century even jurisdictions which stressed individualism and individual rights began to make some accommodation for some collective interests under the pressure of movements of organised labour, environmental campaigners, consumer organisations and the like. These moves towards giving more recognition to collectivist interest are gathering momentum. The world of international law however still remains heavily oriented towards the concept of the state being the basic and indeed the only individual it deals with. It is true some regional groupings of states have emerged and several non-governmental organisations are advancing particular group interests. Yet the state remains essentially the sole bearer of rights and duties and group concerns have as yet acquired little status. As a consequence of this there continued to be a tendency for states to shape their foreign policies on considerations of balance of power, and these tended to lead to war as an ultimate resolver of disputes. The outmoded nature of this manner of state policy making was underlined by Woodrow Wilson in an address to the US Senate on January 22, 1917 when he said “There must be, not a balance of power, but a community of power; not organised rivalries, but organised peace”. The need for a group orientation grows exponentially as national partitions become porous and global interests assume more prominence. Environmental pollution and health hazards do not stop at national boundaries. They cross these with total disregard of man-made divisions and create automatically a group of states which have a collective interest in addressing the resulting problem. Yet these collective interests have little if any locus standi in international law. Neither the procedures nor the concepts nor the institutional arrangements of international law can handle these without considerable re-structuring. The need is urgent and international law must move quickly. 13. Stimulating a Global Effort to Ensure Freedom From Want It is estimated that more than three times the number of people who died in all wars of the twentieth century have died from hunger and poor sanitation in the

422

Universalising International Law

past 50 years. At least a part of this staggering total of 418 million people need not have died if their problem had been the subject of concentrated attention in the light of the applicable principles of international law. In the words of Mr. James D. Wolfensohn, President of the World Bank 15 “while the link between progress and development and progress toward peace is not recognised enduring peace may never be realised.” He there drew attention to the imaginary wall that divided the rich world from the poor world and the fact that on September 11th that wall came crashing down. It was belief in that wall and in those separated worlds that allowed 20 per cent of the population of the rich countries to dominate the world’s wealth and resources and take 80 per cent of its income. As he observed, there is an increased understanding that the leaders of the developed and developing world are united by a global response based on ethics, experience and selfinterest. Such global responsibility, it might be added, is based also on principles of international law, if international law is viewed, as it should be, as an instrument of peace. 14. Developing the Concept of Sustainable Development For too long development has been stressed to the extent of neglecting major considerations such as environmental protection, trusteeship of earth resources and the rights of future generations. International law has stressed the right to develop without due regard also to the other side of the coin and this has provided a license for the exploitation of earth resources and the devastation of the environment. Sustainable development has been talked of for some time as the answer to this. But only in the sense of it being an aspiration and an ideal. It remained to be translated into law and legal obligations. In my Separate Opinion in Gabcikovo-Nagymaros16 and in others relating to nuclear weapons17 I sought to raise this concept from the level of mere aspirational ideal to the level of a recognised principle of customary international law. In doing so I invoked also the traditions of the world’s several cultures all of which re-enforced the principles of trusteeship, inter-generational rights and other aspects which look beyond the immediate present into the foreseeable future. The introduction of this view into the jurisprudence of the court has, I believe, resulted in its greater recognition and it is for international law to develop and entrench this principle so that those who seek advantages for themselves at the expense of our common planet and its future inhabitants will not be able to promote the selfish interests of the present generation against the rightful claims of those who are yet to come. 15 16. 17.

See www.web.worldbank.org : Implementing a Global Partnership for Poverty Reduction by President James Wolfensohn, Keynote Address delivered at Peking University, May 29, 2002 I.C.J. Reports, 1997, p. 7. See footnote 19 below.

International Law as an Instrument of Peace

423

If the civilisations of ancient Egypt or China or India or for that matter if the people of an earlier age had acted so selfishly as to deprive us of our rightful enjoyment of the earth and its amenities, we would not have had words strong enough to condemn them. We must be alive to the possibility that future generations may condemn us in like fashion. So important has sustainable development now become that there is to be later this month a world summit of heads of states on this very topic. (WSSD) preceded by a world conference of Chief Justices. The Chief Justices conference will aim at formulating a recommendation on this very important topic for the consideration of the heads of state.18 We hope there will be significant results but what I wish to stress is the way in which international law has thus far had a blind spot on this all important subject which is so vital to global peace. 15. The Abolition of Nuclear Weapons and Weapons of Mass Destruction Nuclear weapons are the ultimate in terms of the destruction of civilisation and all the values which humanity has held dear for the past forty centuries. They are also the ultimate in terms of the murder of human populations, the extermination of other species and damage to the climate and the environment. Yet, international law has somehow found a place for this monstrosity in its scheme of things. The International Court of Justice had an outstanding opportunity to express itself categorically on this matter when two opinions were sought from it some years ago on the illegality of the threat (General Assembly Opinion) and the illegality of the use of nuclear weapons (WHO).19 The Court held unanimously that a threat or use of force by means of nuclear weapons is contrary to Article 2 Paragraph 4 of the United Nations Charter and that there is an obligation on all states to pursue in good faith and bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. However the Court did not shut the door completely on the use of nuclear weapons in all circumstances, for it did not express an opinion on the use of the weapon in extreme circumstances of self defence in which the very survival of a state was at stake. In my view the effects of nuclear weapons are so horrendous that there are no circumstances whatsoever in which they can be used without violation of every principle of humanitarian law. I expressed this view in three Dissenting Opinions 18 19

The author has since had the privilege of addressing this conference, at which the international resolution was passed. See The Nuclear Test (New Zealand v. France) Case, I.C.J. Reports,1995, p.287; Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, I.C.J. Reports, 1996, p.225; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports, 1996, p.66.

424

Universalising International Law

and I must say that in reaching and formulating this view I derived much inspiration from the teachings of the great religions. Hindu law, as you all know, was most meticulous in laying down in great detail the conditions of honour in war even to the extent of describing equality of arms and the minutest details of protection of civilian populations and of the environment. In regard to nuclear weapons there are passages in the Ramayana and the Mahabharatha which expressly deal with hyper-destructive weapons and with their total prohibition in war. Readers of the Ramayana will recall that Rama, who had available to him the use of a hyper-destructive weapon, was told by the sages of the law that it was not lawful to use it in warfare as it went beyond the purposes of war. Likewise Islamic law is meticulous in its description of the weapons that are lawful in warfare even to the extent of the prohibition of poisoned arrows. Its code of conduct regarding the laws of war and humanity in warfare is so comprehensive that nuclear weapons would stand outlawed ab initio. The traditions of the sub-continent and the religious teachings which play such an important role in determining the conduct of individuals and states are thus categorical in their prohibition of nuclear weapons and as the Judge elected for this region I derived great strength from these well-springs of wisdom in writing my Opinions. International law is in the anomalous position of outlawing a weapon like the dum dum bullet but not outlawing the nuclear weapon which has the destructive power and the potential for cruelty of a hundred million dum dum bullets. International law needs to become a more logical system if it is truly to serve the interests of peace. 16. Controlling the Narcotics Trade The narcotics trade has perhaps the largest financial turnover and is the largest industry of the world exceeding the turnover of even armaments and gold.20 It operates in devious ways, circumventing and defeating every international control that can be devised to contain it. Its proceeds are often used to finance arms trafficking, for the drug industry and the armaments industry often operate hand in hand. Both nationally and internationally anti-drug and anti-narcotics policies have been adopted. Particularly at a time when the world is concentrating on combating terrorism the drug trade needs to be brought under the searchlight of international scrutiny.

20

See http://www.defencejournal.com : Book review of Narcotics and Global Economy by Musa Khan Jalalzai written by A.H. Amin

International Law as an Instrument of Peace

425

The drug trade seems to be able to make its way through a series of loopholes and escape mechanisms which it has found in the international regulatory system. International law needs to be used more reflectively to close these loopholes. It may well be said that international law by itself cannot achieve these objectives. This is indeed true but those engaged in that discipline can do much to alert public opinion in relation to the loopholes which the drug traffickers use. Public opinion against the drug trade is strong and with more information about practical methods of closing the legal and institutional gaps, public support for the cause will no doubt emerge very strongly. 17. Developing the Concept of Obligations erga omnes Too long has international law directed its thought and effort into the sphere of rights and obligations inter partes. Domestic law could get away with this up to a point but not international law which deals with the world community. Cooperative effort is the basis of world order and peace and cooperative effort requires a concept of obligations towards all. All members of the human community are in an inextricable relationship with all others and the traditional bases of world ordering stressed greatly the responsibilities of the individual towards the entire community rather than merely to those with whom the individual was in a particular relationship. Even in domestic law the circle has widened of those to whom the individual owes a duty. Lord Atkin in the famous case of Donoghue v. Stevenson21 asked the question “Who is my neighbour?” and gave to it an extended answer which went beyond the ambit of those with whom one is in an immediate relationship. In modern times we need to extend this still further and in international law more than in any department of domestic law. If the international law of the future is to be truly an instrument of peace it will need to widen its traditional attitudes as to the circle of persons to whom every individual and every state owe a duty. Conclusion What I have discussed thus far are some of the principal areas on which international law needs to focus its attention if it is to become more effectual and avert the stigma now attaching to it of being an academic and formalistic discipline which does not effectively deliver the goods so far as international peace is concerned. The rationale and the very raison d’être of international law is the achievement and maintenance of peace. It cannot lose sight of this prime objective in whatever it does and it cannot dismiss this goal as being unattainable through the resources available to it. 21

1932 A.C. 562.

426

Universalising International Law

It is international law more than any other discipline that can contribute to the evolution of a peaceful world order and the plea I make is for a greater concentration of attention on the fundamentals of its purpose and mission. Too often we tend to be so immersed in the minutiae of a given problem that attention to the broader vistas tends to be neglected. While every particular problem needs the closest study, the overarching framework of the discipline must also receive continuing attention. We neglect it at cost not only to the discipline but to humanity and to the survival of all that civilisation holds dear. The responsibility lies particularly heavily on the international lawyers of the future and even more heavily on the young lawyers of this region, which is so rich in the traditions and wisdom of humanity that they can make a sterling contribution. They can indeed do much to remove the huge question marks that hang over the future of mankind.

PART D

SPECIFIC FIELDS

This page intentionally left blank

Introduction to Part D This Part deals with three specific areas of international law which are of prime significance in addressing some of the principal problems confronting the global community today. Sustainable development is a topic of such importance that it has been the subject of a global summit held in Johannesburg in August 2002. Environmental law is a rapidly developing field of international law which is much in need of attention from all international and domestic lawyers and judges. The illegality of nuclear weapons may indeed be described as the most momentous of the issues which present themselves to the international legal community. All these three areas are indeed interlinked but a separate consideration of each of them is essential in view of their particular importance. These three topics are the subject of Part D.

This page intentionally left blank

Chapter 15

Sustainable Development: An Ancient Concept Recently Revived1

This presentation will aim at outlining the way in which sustainable development has moved upwards in the level of its recognition by the international legal system, to identify some of the obstacles in the path of the development of the concept and to show how its future development can be assisted by drawing upon the traditional wisdom of the global community. I shall stress also the role that the judiciary, both domestically and internationally, can play in enriching and strengthening the concept. What is sustainable development? The concept of sustainable development is one of those forward looking legal concepts on which the future happiness of the human family very heavily depends. The betterment of the economic and social conditions of every individual is one of the cardinal missions of all legal systems. “Development” aims at achieving this result at a practical level through such measures as development of economies, development of skills, development of wealth, development of utilization of resources, development of necessary infrastructures, development of living conditions, development of health and development of the overall quality of life. These are much desired objectives which all too often have been much delayed. We need to get on with the task of achieving them and the law needs to help towards this result but “development” can take place at the expense of the environment. It can take place at the expense of future generations. It can take place at the expense of the poor and disadvantaged. It can take place at the expense 1

Presentation at the Global Judges’ Symposium on Sustainable Development and the Role of Law, Johannesburg, South Africa, 18th August 2002.

431

432

Universalising International Law

of destroying cultural inheritances and traditional ways of life which have taken thousands of years to achieve. Herein lies a problem, for each of these sets of values is important. Each of these represents a human right. Each of these is vital to the human future. Legal systems, both domestic and international, are expected to foster and advance both these sets of concerns. Strong legal arguments can be advanced in favour of each of these. Legal systems are thus involved in a delicate balance of competing interests. There is no room any longer for denying the legal status of the concept of development. Nor is there room any longer for denying the legal status of the concept of sustainability. Out of this juxtaposition of opposing considerations has arisen the concept of sustainable development. The theme of this chapter will be that there is no room any longer for denying the legal status of the concept of sustainable development – a new synthesis that has resulted from the clash of opposing interests. Growing recognition of the concept There is a belief on the part of many that the notion of environmental law is “soft” law and that the concept of sustainable development is an even softer law. There is a strong belief that these are only aspirational, and not really law properly so called – and hence that courts would not concern themselves with these areas. One of my objectives will be to show that environmental law and the concept of sustainable development are both substantive parts of law in a very real sense – law which the Courts must endeavour to administer in the same way as law they consider to be “hard” and established law. Why can we argue that these rights are part of international law? International law arises initially from the realm of aspirations. All its principles are formulations of aspirations. This formulated idea gradually hardens into concrete law. The Universal Declaration of Human Rights is an obvious example. It started with the formulation of a series of aspirations. But as time went on these aspirations became firmer, they crystallised, they became part of accepted International Law and in that way they injected themselves into domestic law and even became hard domestic law. So the same applies in the case of environmental law. It starts in the realm of the aspirational but as time progresses and its importance becomes clearer it becomes more and more a part of the established legal order and in that way it infuses itself into the established domestic legal order. The General Assembly Declaration on the Right to Development 1986 categorically stated that the right to development is an inalienable human right. This document contains a very concrete formulation of the principle that the right to development is no longer merely aspirational but is an inalienable human right. A series of international conferences, treaties, declarations, and many other activities

Sustainable Development: An Ancient Concept Recently Revived

433

have confirmed this statement. The principle that it is an inalienable human right has strengthened and consolidated itself in the corpus of International Law. The Rio Declaration of 1992 states in Principle 3 that the right to development must be fulfilled so as to equitably meet development and the environmental needs of present and future generations. The need for balance is here emphasised – it must serve development and at the same time not sacrifice environmental needs. The notion of sustainable development has gathered much strength from a variety of international declarations, conventions, and academic writings. The Brundtland Commission to which the Ambassador of Norway referred, describes it as development which meets the needs of the present without compromising the ability of future generations to meet their own needs. The concept of sustainable development is a new concept which is fast gathering momentum and has now become part of accepted International Law. A principle becomes absorbed into International Law in a variety of ways. Among these are its acceptance in treaties, and in international practice. There is now a sufficient body of treaties, declarations and recognitions in international practice for sustainable development to be accepted as a recognised legal concept. Principles 4, 5, 7,8,10,28,20 and 21 of the Rio Declaration 1992, all formulated this principle of sustainable development. The Global Conference on the Sustainable Development of Small Islands States 1994, the Copenhagen World Summit on Social Development, 1995, and a whole host of declarations which probably are numbered by the dozen likewise recognises it. The North America Free Trade Agreement 1991, the Convention on Biological Diversity 1992, the Treaty of the European Union 1992, the Convention to Combat Desertification 1994, – all of these speak of the concept of sustainable development. International financial institutions such as the World Bank, the Asian Development Bank, and the Multilateral Investment Guarantee Agency all accept the concept of sustainable development, and State practice rounds this edifice so to speak by the recognition of the concept in practical terms by States in their practical ordering of their affairs. For example, the Dublin Declaration on the Environmental Imperatives of the European Community in 1990 spoke in specific terms of the principle of sustainable development as being one of the objectives of the European Community. Therefore, the recognition of the concept of sustainable development is world wide. The concept is not merely of concern to the developing world. It is accepted even as a criterion of State conduct by the developed world as well. So it is truly a global concept. All of these are sufficient to indicate that the concept has now attained a level of sufficient recognition to place it in the category of principles which are part of the corpus of customary international law. It could also be regarded as one of the general principles of law recognized by legal systems. To add to this there is now a substantial body of juristic writing, a growing volume of judicial decisions and

434

Universalising International Law

acceptance in a range of multinational treaties. All the sources of international law thus combine in giving weight and recognition to this principle. It may indeed be said that it has passed out of the transitory phase of moving from the category of aspirations to the category of law and has established itself in the latter. Sustainable development as the focal point of many interests Sustainable development is a remarkable focal point of many disciplines, many areas of law, many cultures, many time frames,many human rights and many world concerns. Philosophy, economics, history, sociology, cultural traditions, engineering, bio-ethics, medicine, and political science – all of these disciples converge and bring together the insights of many cultures – Chinese, Hindu, Buddhist, European, Islamic, African, Australian, Melanesian, Native American. Many time frames converge in this area – past, present, future, short term, medium term, long term, definite and indefinite. The planner and social engineer have a rich intellectual field to grapple with and if law is an instrument of social engineering, the lawyer as well needs to draw his inspiration from probably more fields here than in almost any other department of the law. At the same time the problem lies at the center of some of the key global issues of today – The North/South Divide, fresh water resources, bio-diversity, global poverty, the food chain, climate change, desertification, depletion of the ozone layer and the like. Human rights affected are legion – the right to health, the right to an adequate standard of living, the right to information, social and cultural rights and so forth. In short the area of sustainable development has attained such pivotal importance in the spectrum of law-related global issues that it needs very special attention and a concentration of resources and legal talent adequate to match its phenomenal significance. Impediments to the development of the concept How do we achieve this through law? There are a number of impediments in traditional legal systems to the acceptance of some important human rights and humanitarian concepts. I will now enumerate a few of them which are pertinent to this field. There is a concept that is very strongly entrenched in modern law that only the living generation have rights under the law. Most of our current legal systems, be they the Common Law systems or the Civil Law systems, concentrate exclusively on the rights of those who are living here and now. They are the only bearers of rights in our modern legal systems. That is indeed a very limited view. It does not accord with the philosophies that tra-

Sustainable Development: An Ancient Concept Recently Revived

435

ditional wisdom has bequeathed to us. Those philosophies teach us that there is a duty on the present generation to look beyond itself to those who are to come after us as well as to look back at the past and respect those who went before us. This is very beautifully expressed in the traditional African concept which Archbishop Tutu has referred to in his sermons – that the human community consists of three elements – those who went before us, those who are with us here and now, and those who are yet to come. All three together constitute the human community and if you lose sight of any one of those component parts of the trinity you then get a lopsided view of the human endeavour. That is a very important tradition which I believe we must weave into our environmental law. Another rather narrow attitude of modern law is to hold that it is only human beings that have any recognisable rights. No other creatures which inhabit this planet which is our common home have any rights at all which are recognised by modern legal systems. That was not the case in traditional law. Especially in our part of the world there was a very deep understanding of the rights of other living creatures to this planet which we all share. In the traditions of this country there were very strong items of State conduct which showed a recognition of this principle. The establishment by our kings of hospitals for animals showed that there was a strong understanding that human duties are not concentrated on human beings alone, and that one must, in devising a legal system, think a little beyond the confined vision that human beings are the only creatures that mattered on this planet. Yet another rather narrow approach of modern law is to concentrate almost exclusively on the rights of individuals. There is a great stress on individualism as though only individuals have rights. However, traditional societies flourished not only on the basis of individual rights but also on the basis of group rights. The group was very important and as one knows even from the history of Europe that the group, whether it be the guild or the manor or the parish, was very important to the life of every individual. There were groups to which every individual belonged and through which the individual felt secure and protected. If you destroy the group, to quote Edmund Burke in his description of the French Revolution, and wipe the slate clean of the traditional group organisations, you leave the individual naked and alone to face the might of an all encompassing State. The individual, once he is broken away from the group, has to sink or swim on his own. Ancient society, in contrast to modern society, recognised that the group had rights. The village had rights. The church or temple had rights. The guild had rights. The manor community had rights. Those important rights were lost sight of through the concentration on individualism which occurred after the European Revolutions. As a matter of fact, when the Indian Constitution was established, Mahatma Gandhi strove hard to obtain some recognition of group rights - but he was not suc-

436

Universalising International Law

cessful in the face of the strength of Western concepts of individualism which provided the basic background thinking for many Indian lawyers themselves. Then again modern law thinks in terms of rights rather than duties. The entire emphasis seems to be on rights, whereas traditional legal systems heavily accentuated duties. Every individual had duties towards his or her group, every villager had duties towards the village. The ancient irrigation system of this country could not have been maintained in all its complexity if the members of each village did not have duties of maintenance and repair in regard to the village tank and the local irrigation channels. And then, when we come to consider some of the concepts of modern legal systems we get into deeper waters still. Concepts such as absolute freedom of contract, and absolute ownership or property, have been environmentally devastating. Take the idea of absolute freedom of contract. A mining company makes a contract with the owner of land or with the Government and proceeds to mine the land. It has its rights under the contract and proceeds to use those rights to the absolute limit to which they can be stretched, irrespective of what happens to the land. The notion of responsibilities that go with those rights is unknown. That is one of the causes of the environmental devastation we see all over the world today. The concept of absolute ownership likewise tells you that if you own an item of property, you have the absolute right to do with it what you will. The same concept is extended to land and you can treat land, if you are its owner, in the same way that you can treat movable property. The owner of movable property can destroy it if he so pleases. Likewise, the owner of land can mine it to destruction, bury noxious waste in it, fell primeval forests and reduce it to wasteland. He can do what he will, for he is the absolute owner. Modern law with its concept of individual ownership permits this. Traditional law would not have tolerated such treatment of land. That is one of the factors that have led to the enormous scale on which environmental problems present themselves today. The next observation I wish to make about International Law, which has pertinence to the subject of this seminar, is that the old International Law, if I may so term it (that is the International Law that prevailed until the end of World War II) was based upon individualism. It was based upon the individual sovereignty of the different States that are members of the world community. But today's International Law is not so much an individualistic International Law but a socially oriented International Law. One of the pressures that has forced this recognition is the pressure of environmental needs, because with ozone depletion, global warming, extinction of species and so forth, we have a whole catalogue of possible damage not merely to individual States but to the world at large. Environmental damage does not respect national boundaries. Pollution does not recognise the doctrine of state sovereignty and end at the boundaries of a nation state. Pollution proceeds beyond that and if we are to fight pollution we have to do

Sustainable Development: An Ancient Concept Recently Revived

437

that as a global community and not as a series of separate and individual States asserting their sovereign rights. In the past we could have functioned internationally on the basis of co-existence. We tolerated the existence of the other State as a necessity of life. The other State was there and we had to co-exist with it whether we liked it or not. We reconciled ourselves to that situation and international law worked out rules for coexistence with those States. We have now passed out of the era of co-existence into the era of cooperation and not merely passive cooperation but active cooperation because if we are to save our global inheritance we have to do so actively. We need for this purpose to avoid dependence on ideas of sovereignty and the desire of each State to claim complete dominion over everything going on within its borders. We need to surrender some part of that sovereignty to the rest of the world and to accept common guidance by the global community. Hence, because the environment knows no territorial boundaries we have to live as a cooperative group of States – at any rate so far as environmental law is concerned. Likewise, our vision must extend not only to States beyond national frontiers but it must extend in time beyond generational frontiers. We have to cast our vision beyond the present generation and look forward into the future. When we deal with environmental law we are in the realm of future generations. What we are handling are the rights not only of ourselves but of generations to come. I remember vividly that in one of the environmental cases that was argued before the International Court, counsel appearing for one of the parties argued that if Stone Age man had inflicted on the environment the damage which we are inflicting upon it now, we would still be living with the damage that Stone Age man had inflicted on the environment. Now it is the same with us. What we do now will affect future generations even more remote from us in the future than Stone Age man is remote from us in the past. What would we be saying of Stone Age man if he had polluted the planet in the way we are now polluting the planet for our posterity? We would have blamed him for his lack of a sense of responsibility, a lack of moral sense and lack of civilised behaviour. All those arguments could be hurled against us by posterity if we do not take on our responsibilities now. So, what the so-called uncivilised people of the Stone Age did not do – for they gave us an unpolluted planet – we, this ‘civilised’ generation are doing to our descendants. Is that proper? Another concept which has worked itself into international law is the concept called the erga omnes concept, i.e. the concept of an obligation owed towards all the world. Now, disputes between two parties are disputes inter partes, i.e. disputes between individual parties. There are two parties who come before a judge and the judge's task is to determine between those individual parties which party should succeed. But environmental issues are not merely inter partes, but may also affect other parties apart from those before the Court. So the judge, whether domestically or internationally, has to have his eye also on the impact of the Court's decision

438

Universalising International Law

on the community. Although procedurally it is a matter between the two parties, in substance it is a matter which affects the world. It affects the rights of others outside the limited frame of the parties to the dispute. So the erga omnes doctrine which is now being developed in International Environmental Law is something that domestic judges will have to taken note of as well. Another factor to be considered is that the forces of technology are advancing at a rate of galloping growth. This is true of almost any kind of technology. Take computer technology or whatever technology you may think of. The rate of its advance is almost uncontrollable. But the rate of the advance of the law that tries to keep that technology in check is extremely slow. So, while the technology is galloping ahead, the law is lagging far behind and the gap between technology and law is widening all the time. Our ability therefore to control any technology through law is thus growing weaker day by day. This is a very important phenomenon which all judges are called upon to consider today; and I draw the attention of the judges of the SAARC region to this phenomenon which concerns their region even more particularly than most others, because much of the technology we use is not of home growth but comes to us from outside. We must as far as possible assist in achieving legal control over that technology to ensure that it serves the interests of our people and not some foreign interest that operates from afar. The wisdom of traditional systems Some time ago I was Chairman of the Nauru Commission of Inquiry which looked into the question of phosphate mining in Nauru. In consequence of that mining there was not even an inch of topsoil left in the mined out areas and the land was devastated and reduced to a moonscape which was unfit for any form of human activity. That is because of the idea that if you have certain rights you can use them to the full without regard to the traditional ways in which land was respected and protected. So there is much guidance that can be gained from traditional wisdom which in these respects surpasses the rather limited vision of modern legal systems. A few words need to be said about this aspect, which constitutes the main theme of this presentation – that modern law, rich though it may be, is neglecting an important and fertile source of nourishment when it neglects the traditional wisdom of humanity. In environmental matters, the traditional wisdom of humanity can teach us how we can live in harmony with our environment without destroying it in the manner resulting from the pursuit of legal concepts to the limit of their logic, without applying also the restraining influence of the traditional wisdom of the human family. We must martial all our resources to this task. Our region is very rich in a particular resource – the resource of traditional wisdom - and we as lawyers must see how we can best tap into that reservoir of wisdom. It will surely be very impor-

Sustainable Development: An Ancient Concept Recently Revived

439

tant to us in the future and I wish to point out that when we think on those lines we will see the force of the argument that we are neglecting our richest resource of wisdom if we do not look back on tradition. The human family has learnt to live in harmony with the environment for thousands of years and has achieved this in a very successful manner. If we fail to look to the past for its traditional wisdom in facing our environmental problems, we may be depriving ourselves of one of our richest resources. When we think in terms of formal law and “civilised” legal systems, we rather superciliously deprive ourselves of this very important source of wisdom. Let me illustrate this from the Aboriginal people of Australia. The Australian Aborigines, the historians tell us, have to their credit one of the greatest achievements that any human race can claim. They were able to maintain a stable life style for 60,000 years, on the world's most inhospitable continent. Reflect on what this means. The great civilisations we think of as being very ancient – say the civilisation of ancient Egypt, or the Indus Valley civilisation, were not much more than 6000 years old. Multiply that 10 times and the Aboriginal people have maintained a stable life style on this inhospitable continent with great success for that period of time. It is a period of time that makes the mind boggle. Is there not some wisdom we can gather from them? If you look at their traditions you will find that they are impregnated with their love and respect for nature. They loved and revered the land. Why cannot we adopt some of that wisdom in our modern law rather than superciliously scoff at it and say the indigenous people of Australia did not have a legal system? What can we gather from their ancient wisdom? Their traditional paintings place great emphasis on Mother Earth. All human beings are linked to Mother Earth by an umbilical cord. Their paintings convey the idea that nature is always regarded as the source of nourishment, Mother Earth must be protected, Mother Nature must be respected, Mother Earth must even be reverenced. There is also the feeling that land has a vitality of its own. Land lives and grows with the people. If the land withers and dies so also do the people, because the health of a community is dependent on the health of the land and the health of the land is lost unless you pay due regard and reverence to that land and look after it as you would look after a living thing. They had mature ideas about conservation. They were very wise. We have all heard of their concept of “walk about”. The “walk about” embodies the idea that if you have lived off a particular piece of land for some time, you should go elsewhere on a circuit of three or four years and come back to that land after giving the land time to regenerate itself. The “walk about” was thus a method of conservation of the environment due to their wisdom gathered over thousands of years. They know that you could use land only up to a certain point without depriving it of its ability to regenerate itself and to sustain the population dependent on it.

440

Universalising International Law

Another piece of traditional Australian wisdom was to try to get from every species the maximum advantage you could. Fauna and flora were comparatively meager on the continent, but every species of plant and animal was used to maximum advantage. Nothing was discarded. Now those are all items of wisdom modern law can gather from Australian indigenous culture, which is one of many cultures one can draw from for the purpose of enriching the environmental law of the future. From what has so far been said of indigenous custom, it will be evident that there are many principles ingrained in it which we can with great profit build into modern international law – the principle of conservation of resources, the principle of making the optimum use of whatever is available, the principle of giving land time to regenerate, and the principle of treating land with respect. Let us look now at the traditions of the Pacific. When I was working on the Nauru Commission we researched the customs relating to land of the various islands in the Pacific. I came across the evidence given by a Solomon Islander to a Land Reform Commission in the Solomon Islands. His evidence was to the effect that Pacific islanders did not treat land like an article of merchandise as the westerners treat land - an article which, once you have purchased it you can do with it what you will. Land has to be treated with reverence and respect and its “owners” are obliged to use it in a manner that is respectful to the rights of future generations. I also recall from a conversation that occurred when I was a visiting Professor in the University of Papua New Guinea. In Port Moresby there were pockets of land within the city (which is the capital city and quite built-up) which were not developed. One day in the common room the conversation turned to the reason why these lands were left undeveloped and they turned out to be land belonging to various family groups. One of the young lecturers in the Law Faculty was a family member of one of those groups and therefore one of the co-owners of this valuable piece of undeveloped land in the heart of the capital. Somebody said to him ‘do you realise you are sitting on a gold mine. Has it ever struck you that if you sold this land you would have a fortune?’ This produced an outburst from the lecturer who said “Do you not understand our traditions in this country. This land belonged to our ancestors and belongs to our posterity, How can you suggest that I have the right to sell it? I have to respect the rights of those who will come after me.” Such are the traditions of those countries which we can weave into the fabric of modern international law by developing the concept of trusteeship for future generations. I pass now to the Amerindian traditions which we read of in modern books on environmental law. A letter of the Cherokee Chief to the President of the United States is often referred to in these books. The letter is thought to have been written

Sustainable Development: An Ancient Concept Recently Revived

441

later to express the sentiments of the Cherokee Indian but it has been widely regarded as stating authentically the Indian viewpoint on these matters. I refer you to the book on environmental law by Professor Lakshman Guruswamy and Mr. Geoffrey Palmer, the former Prime Minister of New Zealand. This famous letter is reproduced in this book, and I quote from it. Apparently, the President of the United States had sought to buy some land belonging to the Cherokee tribe and the chief of this tribe wrote this letter to the President saying “how can you suggest that I sell this land. It is like asking me to sell you a part of the sky or a part of the flowing rivers. Every part of the earth is sacred to my people, every part of the earth is of the red man, every shining pine needle, every sandy shore, every mist, every humming insect is holy in the memory of my people and one portion of land to you is the same as the next and the Earth is not your brother but your enemy and when you have conquered it you move on but we treat Earth as a mother and brother and the earth and sky are not things to be bought and sold like sheep or bright beads. These are entities that have a living life of their own. The community respects it because that is the source from which the community gathers nourishment.” So those are some of the traditions that are very important in this field and I think that modern International Law can draw upon such traditions to enrich many concepts of environmental law. International Law must draw upon the wisdom of all civilisations. In my contention, this is not done adequately. We must do that to a greater degree in the future by drawing upon these thousands of years of wisdom in building up the concept of the common heritage of mankind. That is vital in the context of our evershrinking planet which is the common home of everybody. Whatever the forces may be that are resulting in our narrow view of law – be they monetarism or individualism – they are drawing us away from our cultural traditions. It is very important that we restore the links, for otherwise international law will grow further away from the people and the planet it is intended to serve. This is very important if we are to develop the international law of the future in a truly global sense. Our present attitudes are partly due to the views of the positivistic school of jurisprudence. Particularly in the last century the Austinian school which was one of the leading positivistic schools at that time, taught that a customary rule is not worthy of the name of law unless it is written and proceeds from the will of the sovereign and has a specific sanction or punishment to enforce it. Otherwise, it was not worthy of the name of a law and the entirety of such a system was not a legal system. The 19th Century lawyers both national and international were somewhat arrogant and dismissed with contempt the wisdom of all the traditional systems of law that they encountered in the world. But throughout the world there were traditional systems of law – law that may not be accompanied by sanctions in an Austinian sense or proceed from an identifiable sovereign in an Austinian sense. Yet they were law none the less. Modern research such as that of Malinowski in the

442

Universalising International Law

Trobriand Islands and various research studies such as A.N. Allott's New Essays in African Law,1 M. Gluckman’s African Traditional Law in Historical Perspective,2 T.O. Elias' The Nature of African Customary Law3 and many others are revealing the richness of those traditional systems so that we now have available to us the ability to treat those systems as legal systems. They were very rich in relation to environmental norms and therefore systems that we must treat with respect and try to draw upon in building up the environmental law of the future. Now that I have said something about the legal systems of different regions, I will come to my own region. There is in this region an infinite amount of richness which we can draw upon when we try to build up environmental law. This is a matter of particular importance to judges from South Asia. We must not ignore the traditions of our part of the world. Thousands of years ago the Ramayana and Mahabharatha enshrined the highest form of respect for the environment. You will recall that in the Ramayana and in the Mahabharatha, there is reference to what is described as a hyperdestructive weapon, that is, a weapon that could ravage the entire countryside of the enemy. The question arose whether that weapon could be used in war and when there was a question of the use of that weapon it was said to those who might have used it, “you cannot use this in war without consulting the sages of the law.” When the sages of the law were consulted they said, “this weapon goes far beyond the purposes of war. Even though your object is to overcome your enemy you dare not lay waste his countryside. You have no right to do that.” Culturally, South Asia has a strong heritage of respect for the environment. The teachings of Buddhism go even further, for they require a compassion for all living things even to the extent of recognising the rights of animals to freedom from fear. The sermon of the Arahat Mahinda to King Devanampiyatissa at the time when Buddhism was brought to Sri Lanka spoke in terms of these rights. The concept of freedom from fear is an advanced human rights concept. Yet more than 2000 years ago the king was in effect told “Remember that these animals are also as much inhabitants of this island as you are”. The king was also told that he was only a trustee of this land, and not the owner of it. Trusteeship is one of the basic principles of modern environmental law. Yet, it was anticipated over two thousand years ago. This basic concept of environmental law is thus deeply ingrained in Sri Lankan traditions having been incorporated in the very first sermon that was preached at the time when Buddhism was brought into the country. I want to complete this reference to our strong cultural tradition by talking of the way in which the ancients combined the notion of development and environmental protection in a manner which is today described as “sustainable deve1 2 3

A. N. Allott, New Essays in African Law, Butterworths, 1970. M. Gluckman, African Traditional Law in Historical Perspective, Oxford University Press, 1969. T.O. Elias, The Nature of African Customary Law, Manchester University Press, 1956.

Sustainable Development: An Ancient Concept Recently Revived

443

lopment.” Sustainable development, as we saw at the outset, is the combination of the idea of development and the idea of the protection of the environment. In that particular aspect, the civilisation of Sri Lanka was extremely rich, for there was deeply ingrained within it the idea of protection of the environment. The idea that animals had to be protected was so well respected that there were sanctuaries for animals, dating back to the time of King Devanampiyatissa in the third century B.C. Wild life sanctuaries thus established more than 2000 years ago continued to be preserved throughout this period. There was also the idea that forests must be preserved - there is the notion in traditional law of thahanan kelle - of forests where felling of timber is prohibited. The forests were preserved because they attract the rain and the rain feeds the mountain streams which feed the river system, which in turn feeds the irrigation system. So there were vast tracts of land which by royal decree were absolutely protected from felling. Then again, there was the notion of optimal use of resources - to the last drop so to speak. There was the famous edict of one of the great kings of Sri Lanka which said that “no drop of water should flow into the sea without first serving the interests of man.” King Parakrama Bahu was in fact articulating one of the central principles of the concept of development. From a practical point of view the environmental damage that might have been done by irrigation works was looked after because the ancient engineers had their answer to the question of silting. Because silting interferes with river systems, silting is a great environmental danger. The ancient engineers invented the bisoko tuwa. This was a way in which silt was collected and there were also erosion control tanks for the protection of the environment. Then again, there were tanks for wild life - they were called forest tanks. The forest tank was built for the benefit of the wild life of the forest for it enabled animals to get water from those tanks without coming into the protected areas and disturbing the crops. There was also the customary law which prohibited the construction of permanent buildings on prime agricultural lands. There is also a lesson for modern development law when we consider the purpose of this wonderful system of tanks. Our ancient chronicle, the Mahawamsa says “this irrigation system was undertaken for the benefit of the country and out of compassion for all living creatures.” What better formulation can there be of the concept of development, which is meant not for economic gain but for improving the lot and increasing the happiness of all? This concept was worked out and given practical effect in this country in a superlative manner – probably to a greater extent both in magnitude and in detail than perhaps anywhere else in the world. There is a recent book which I think those interested in the environment should look at – a book by Goldsmith and Gilliard, Social and Environmental Effects of Large Dams.4 It contains a very important chapter on the Ancient Irrigation System of Sri Lanka which refers to the fact that Sri Lanka is covered with a network of thousands of man made lakes and ponds. 4

Sierra Club Books, 1984.

444

Universalising International Law

Arthur Clarke, the great futurist who lives in Sri Lanka, in an article in the National Geographic Magazine says that it provides a text book example of many modern dilemmas, including the dilemma of striking a balance between development and the environment. In his book, The View from Serendib, he says, “Before the Christian era, a series of tremendous irrigation works transformed the island's dry zone into what might have been a fertile paradise. Some of the artificial lakes created are kilometres in circumference and there are thousands of these tanks linked by intricate networks of canals.” These enormous irrigation works – some of them enclosing an area of water which might run to areas of up to 10 square miles had retaining structures sometimes several miles long and 50 feet high. The Sea of Parakrama for example has a retaining bund which is 8 1/2 miles long. These enormous structures were linked to 25,000 to 35,000 small tanks. We call them tanks after the Portuguese word tanque which means a reservoir. These 25,000 - 35,000 small tanks were linked by hundreds of miles of canals to these enormous reservoirs. We see from all this that the rulers of that age were extremely concerned with what today we call development. As development projects go, some of these are larger than many modern development projects. While they were aimed at development, at the same time they combined development with the protection of the environment. They did not neglect one or the other, but pursued both and they struck a happy balance between the two concepts in a manner which has lasted for centuries. That is precisely the concept which this conference is endeavouring to address. How does one strike a balance between development and environment? Let us not neglect examples from the past both in Asia and in other civilisations of the world from which we can derive enormous benefits. Let us not lose sight of the fact that in European civilisation as well there was a great love of nature and this was lost sight of during the industrial revolution. When Wordsworth, for example, rhapsodised on the beauty of nature, he was speaking not only for himself but was reflecting the prevalent ethos in those societies before the industrial revolution. Likewise, Thoreau in America and Tolstoy in Russia, whose writings are instinct with this love for nature, were reflecting the traditions of their countries. Thus respect for the environment is a part of the common culture of humanity. We are looking for a formula which will reconcile development and protection of the environment. We must work out that formula using all the wisdom we can find – and one of the messages I will leave with this Conference is this: “Please do not neglect the traditional wisdom of the many rich cultures that we can draw upon for the purpose of developing this very important area of future International Law.” The role of the judiciary Sustainable development must be achieved through law, and the judges being such an important part of the legal establishment must necessarily be involved in this - and sensitively involved. This is currently one of the vibrant topics in the

Sustainable Development: An Ancient Concept Recently Revived

445

development of law both domestic and international law and I might say that environmental law is one of those topics which is probably least developed in the whole gamut of legal topics that come up before the courts. In international law that is even more so. It is one of the least developed areas of international law. Domestic law will be richly discussed at this forum but I would also like to make some observations on the international law aspects of the topic that is before you. Sustainable development is yet an infant concept, at least so far as modern law is concerned. As an infant concept it needs to be fostered and developed. Treaties and legislation cannot anticipate the nuances of the myriad practical problems that could arise. When cases involving sustainable development arise the judiciary will often find itself called upon to apply a broad general principle, the detailed implications of which have not yet been considered. It is very much like the situation in which the common law judges having only the broadest of general principles to guide them, fashioned an intricately nuanced system of law to meet a myriad situations which the formal law giver had not and could not have anticipated. In short the judges are at the cutting edge of the development of this concept and both domestically and internationally will need to show imagination, initiative and vision in handling a matter so deeply fraught with implications for the global future. A poignant circumstance associated with development that takes place without regard to environmental considerations is that it hurts two classes in particular – the unborn and the poor. Neither of them has the ability to assert its rights. The judiciary assumes a particular importance here in holding the balance true between powerful interests on the one hand and the voiceless on the other. The judiciary have in a sense an enormous role of trusteeship to discharge in this regard. The judges have the working tools with which to handle this enormous responsibility. They have the basic concepts and procedures, the traditions of thousands of years of human experience in dealing with the environment and a considerable but underused equitable jurisdiction. New concepts such as trusteeship of earth resources, intergenerational rights, the precautionary principle and obligations erga omnes await the craftsmanship of the concerned and experienced judge to shape them into practical means of ensuring development without neglecting sustainability. The judges can elevate the standing of the concept by moving it up the hierarchy of legal norms and principles, thus preventing it from being lightly brushed aside by political commercial or other interests that seek to advance “ development” whatever the cost. In the environmental field much development has already taken place at the hands of judges, who have developed a series of innovative procedures from diverse jurisdictions across the world, to handle environmentally-related problems. As a result of their activity the concept of environmental protection has been prac-

446

Universalising International Law

tically moulded and adapted to meet a variety of diverse situations and problems, thus taking it far from being a merely academic and theoretical concept. The same needs to be done in the field of sustainable development.2 On this aspect it needs to be noted that superior courts throughout the world have already worked out an unusually rich and many faceted jurisprudence in this field. All this wisdom and experience needs to be collated and made available to judiciaries across the world. It is to be hoped that before long a manual would have been compiled containing the essence of this jurisprudence. Such a handbook on sustainable development for the global judiciary would be an important practical tool for forging the necessary jurisprudence on this topic for the future.3 A collective consciousness of the issues needs to be raised in the minds of the global judiciary. The judiciary is a key player in the exciting task of constructing a law of sustainable development which will help not one geographical region but all, draw upon the nuances not only of one cultural tradition but of all, advance the interests of not merely one section of the global economy but of all and protect the environment not merely for this generation but for others yet unborn. Basic importance of the concept to world order Sustainable Development is currently one of the most vibrant topics in both domestic and international law. It has reached center stage intentionally, with even a global summit of heads of state being convened here in Johannesburg to discuss it, with a global summit of heads of the judiciary holding a precursor meeting to the heads of States meeting. The special significance of this topic derives from many causes. In the first place it is an issue that lies at the very center of the widening gap between the rich world and the poor world. Development is the bridge but that bridge cannot be built with materials stolen from future generations. It is important that it be built with materials that are ours to use, materials that are legitimate. The concept of sustainable development assists us in the choice of materials, and guides us in our choice of methods. * * * Exploitation of earth resources without regard to the future and the destruction of the environment are among the principal contemporary causes of global tension. Herein lie the seeds of future conflicts and sustainable development is an insurance against those conflicts and possibly wars of the future. 2

3

For an example of a comprehensive study in the practical field harmonizing ancient traditions with modern technology in a particular geographical region, see K.H.J. Wijayadasa, Harmonizing Environment and Development in South Asia, 1997, South Asia Co-operative Environment Programme. Parallel studies are needed in the judicial field. The author has since been requested by the United Nations Environment Program (UNEP) to draft the outline for such a handbook and this outline has been prepared and submitted for consideration by a committee of superior court justices who are specially concerned with environmental law.

Sustainable Development: An Ancient Concept Recently Revived

447

True peace is impossible without justice. A principal element of justice is economic justice. Economic justice is impossible without sustainable development. Sustainable development is thus an important prerequisite to peace. If peace is an indispensable object of international law, sustainable development is indispensable to the attainment by international law of its most important goal. Moreover one of the great transitions of international law is the transition it is currently undergoing from the era of state individualism to the era of the collective community of states. Most rules of past international law have been based on preserving the individual rights of individual states. The international law of the future will aim rather at preserving the collective rights of the community of states, who are all co-sharers of planet earth.

Chapter 16

Environmental Law

Introduction The previous chapter dealt with the concept of sustainable development, one of the most dynamic and rapidly developing fields of international law. It sought to place that concept in its universalist setting in the context of the global traditions of harmony with the environment. The present chapter pursues some more specific aspects of the development of environmental law. It comprises extracts from two of the author’s dissenting Opinions – one dealing with state obligations in relation to the environment and the other with specific emerging principles of international law. The question of state obligations arose in the context of an Advisory Opinion sought from the Court by the World Health Organisation regarding the use of nuclear weapons1 and the question of emerging environmental law principles arose in the context of a Request by New Zealand2 for an Examination in 1995 of a 1974 Judgment of the Court in relation to nuclear tests. It highlighted the development of environmental law principles between 1974 and 1995. 1.

State obligations in regard to the environment

The Court is asked whether the use of nuclear weapons is a breach of State obligations in relation to the environment. The Court has not considered this ques1 2

Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, I.C.J. Reports, 1996, p.66 at pp. 139-146. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (New Zealand v France) I.C.J. Reports, 1995, p.228 at pp. 339-347.

448

Environmental Law

449

tion. The Court's Opinion (para. 16) states that “the Court must identify the obligations of States under the rules of law invoked, and assess whether the behaviour in question conforms to those obligations, thus giving an answer to the question posed based on law”, but does not proceed to identify and examine those obligations in order to answer the question. I consider that it needs more attention. It is moreover an area very much within the legitimate concerns of WHO. The question asked by WHO affords the Court an opportunity for contributing to an important aspect of this development, for it focuses attention on the vital question of the duties of States in regard to the environment. I regret this opportunity has not been taken by the Court. (a) The progress of environmental law From rather hesitant and tentative beginnings, environmental law has progressed rapidly under the combined stimulus of ever more powerful means of inflicting irreversible environmental damage and an ever increasing awareness of the fragility of the global environment. Together these have brought about a universal concern with activities that may damage the global environment, which is the common inheritance of all nations, great and small. To use the words of a wellknown text on international environmental law: “The global environment constitutes a huge, intricate, delicate and interconnected web in which a touch here or palpitation there sends tremors throughout the whole system. Obligations erga omnes, rules jus cogens, and international crimes respond to this state of affairs by permitting environmental wrongs to be guarded against by all nations”3 Such compelling facts do not admit of any exceptions, however powerful the actor or compelling the purpose, for it is increasingly clear that what is at stake can well be the very survival of humanity. Nuclear weapons bring us to such a limit situation, and therefore attract the principles of environmental law. As was observed in the preamble of the Treaty of Tlatelolco: “nuclear weapons, whose terrible effects are suffered, indiscriminately and inexorably, by military forces and civilian population alike, constitute, through the persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even render the whole earth uninhabitable”. (b) The growth of the notion of State obligations The Declaration of the United Nations Conference on the Human Environment (Stockholm), adopted on 16 June 1972, was designed to “inspire and 3

International Environmental Law and World Order, Guruswamy, Palmer and Weston, 1994, p.344.

450

Universalising International Law

guide the peoples of the world in the preservation and enhancement of the human environment”. Principle 1 of that Declaration states that: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations ... ” Principle 21 has a direct relevance to WHO's inquiry, for it deals specifically with the obligation of States not to damage or endanger significantly the environment beyond their jurisdiction. Principle 2 of the Rio Declaration gives expression to the same principle. Both may be said to be articulations, in the context of the environment, of general principles of customary law. In the words of Corfu Channel, there is a “general and well recognized” principle that every state is under an “obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States.”4 Principle 24 of the Rio Declaration on Environment and Development (1992), whereby States are called upon to “respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary”, is a further expression of this general principle. It cannot therefore be gainsaid that the concept of state responsibility in regard to the environment is today an established part of international law. (c) Active and passive state obligations There is a State obligation lying upon every member State of the community of nations to protect the environment, not merely in the negative sense of refraining from causing harm, but in the positive sense of contributing affirmatively to the improvement of the environment. A wide recognition of this principle was evidenced when, in 1971, the General Assembly affirmed “the responsibility of the international community to take action to preserve and enhance the environment”. For the purposes of the present case, however, it is not necessary to enter the area of active state responsibility to conserve the environment - an aspect now receiving increasing attention. The passive responsibility not to damage the environment is sufficient for the purposes of this case, for it is patently clear that any state action which damages the environment in the way that nuclear weapons do is a violation of the obligation of environmental protection which modern international law places upon States. A contrary view would negative the basic logic of environmental law and send a tremor through the foundations of this vital sub-discipline of modern international law. (d) The juristic nature of State obligations In relation to environmental obligations, the notion is evolving of duties owed 4

I.C.J. Reports, 1949, p. 22.

Environmental Law

451

erga omnes and of rights assertible erga omnes, irrespective of the compartmentalization of the planetary population into nation states. The concept of an erga omnes right is not new. In 1915, the eminent American jurist, Elihu Root, who later became a member of the Committee which drafted the Statute of the Permanent Court, stated, in a paper on “The Outlook for International Law”: “Wherever in the world the laws which should protect the independence of nations, the inviolability of their territory, the lives and property of their citizens, are violated, all other nations have a right to protest against the breaking down of the law.”5 Such thinking is the background against which the damage caused to the environment must be considered, for the purpose of ascertaining whether the use of a nuclear weapon by a State is in conflict with State obligations under international law. The concept of obligations erga omnes has, of course, received recognition in the Court's jurisprudence, though in a different context, in Barcelona Traction, Light and Power Company, Limited Second Phase.6 Indeed, in some areas, modern discussions of state responsibility take the matter even further, to elevate serious breach of State duty in regard to the environment to the level of an international crime when they state that: “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas” may result in an international crime.7 It is not necessary for present purposes to examine the various levels of state obligations in respect of the environment, which may range from obligations erga omnes, through obligations which are in the nature of ius cogens, all the way up to the level of international crime. (e) Multilateral treaty obligations There have been, since the Stockholm Declaration of the United Nations Conference on the Human Environment (1972), over one hundred multilateral environmental instruments which are in force. A United Nations Environment Programme is in force, major instruments have been signed regarding the Law of the Sea, transboundary pollution, hazardous waste, nuclear accidents, the ozone 5 6 7

Proceedings of the American Society of International Law, 1915, Vol, 2 pp. 7-9, cited in Guruswamy, Palmer and Weston, op.cit., p. 345. I.C.J. Reports, 1970, p. 3. International Law Commission,Draft Article 19 (3) (d) on State Responsibility, Yearbookof the International Law Commission, 1976 (2) Part II, p.96.

452

Universalising International Law

layer, endangered species – to name but a few. The UNEP register of multilateral treaties affecting the environment revealed as many as 152 treaties in May 1991.8 The multifarious international instruments relating to the environ-ment, to which reference has been made, build up the rising tide of international acceptance which creates in its totality a universal acceptance of State obligation which in turn translates itself into law. All of the areas they deal with are areas affected by the nuclear weapon to an extent which is impermissible under these instruments, had the damage been caused by any other agency. The areas named are a small sample of the areas of State obligations under international law which are affected by the nuclear weapon. What WHO wants to know, in view of the close linkage of a pure environment with human health, is whether there is a breach of such state obligations when a state uses a nuclear weapon. It cannot, in my view, be denied this information, which lies at the very heart of its constitutional mandate of safeguarding global health. 2. State obligations in regard to health The next question to be addressed is whether there are State obligations in regard to health, and whether these are violated by the use of the nuclear weapon. (a) The human right to health An examination of the various international developments in regard to health shows that State duties in regard to health have now passed beyond the field of good intentions into the realm of binding international law. Even before the Universal Declaration of Human Rights, the Constitution of WHO (1946) recognized the enjoyment of the highest attainable standard of health as one of the fundamental rights of every human being. This will be dealt with more fully in the section on the WHO Constitution. Article 25(1) of the Universal Declaration recognizes the right of everyone to health and well being, through its stress on the right to a standard of living adequate for health and well being. (b) State obligations in relation to health A more specific recognition of the right to health is contained in Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966. Article 12 states that the “States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. It will be noted here that the recognition by States of the right to health is in the general terms that they recognize the right of “everyone” and not merely of their own subjects. Consequently each State is under an obligation to respect the right to health of all members of the international community. It is to be noted also that the formulation contained in the Covenant is not restricted to mere recognition or to statements of good intention. Article 2(1) provides that: 8

See Geoffrey Palmer, "New Ways to Make International Environmental Law" American Journal of International Law, 1992, Vol. 86, p.262.

Environmental Law

453

“Each State party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (Emphasis added.) Further, Article 2(2) contains a guarantee by States that “the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, ... national or social origin, ... or other status”. Quite clearly this is a reinforcement of the obligation erga omnes towards the entire global population which is contained in Article 12 and a further obligation to take active steps towards guaranteeing this right to health of the global population. (c) Global implementation measures involving State obligations in regard to health On 22 May 1981, the World Health Assembly, by Resolution WHA 34.36, unanimously adopted a “Global Strategy for health for all by the year 2000”, which was noted with approval by the General Assembly. In that resolution, the Assembly urged all member States to assure its implementation and requested all appropriate organizations and bodies of the United Nations system to collaborate with the World Health Organization in carrying it out. In particular, there has been much action on the regulation of products harmful to health and the environment. A consolidated list has been issued of products which have been banned, withdrawn, severely restricted or not approved. At its 39th session, the General Assembly received a report from the Secretary-General on products harmful to health and the environment, and decided that an updated consolidated list should be issued annually, and urged member States to avail themselves of this information, and to supplement the data in the consolidated list. Thus, not only has the right to health been recognized as a human right, but specific implementation measures have been urged on all States in measures which have been universally accepted by States, without any demurrer on the ground that health is not an area of State responsibility. Special action programmes have been worked out in relation to agencies likely to damage health and the environment. (d) The clash between state obligations and the health-related effects of nuclear weapons How does the use of the nuclear weapon accord with this obligation which States under binding treaty obligation, and by general agreement, have recognized as binding, and have in fact agreed by treaty to implement? The nuclear weapon produces the various effects upon health which have been outlined in this Opinion.

454

Universalising International Law

They include the inducement of radiation sickness, leukaemia, cancer, keloids, genetic deformities, and the like. They do so on a massive scale, not limiting their effects to the target population of the countries at war. Even within the countries at war, they promote these sources of destruction of human health among civilian and combatant alike. It appears evident that there is here a clear contradiction between State obligations under international law in relation to health and the use of the nuclear weapon. There can be no doubt that if a State by deliberate action of any other kind should foster this sort of danger to human health, it would clearly be seen as a contradiction between that act and the State's obligations in regard to health. Even if that act should have been performed in conditions of war, there would still be a breach of State obligations under humanitarian law in relation to human health, as is clear with chemical, bacteriological or asphyxiating weapons. By what title of exemption does the nuclear weapon fall clear of this principle? I know of none. 3. The duties of States under the WHO Constitution WHO asks whether, in view of their health and environmental effects, the use of a nuclear weapon by a State would be a breach of its obligations under the WHO Constitution. Knowledge of the legal reach of its constitution is vital to the proper functioning of any agency. The Court is the pre-eminent authority under the United Nations system to advise a United Nations agency on such a matter which is unquestionably a matter of law, and which is unquestionably a matter of legitimate concern to the agency. WHO turns naturally to the Court for advice on precisely such a matter. The Court denies this advice on what seems to me to be a technicality. Quite apart from their responsibilities under customary international law and any other conventions to which they are parties, the States that are parties to the WHO constitution, which is itself an international treaty, accepted certain principles and obligations. The Constitution was signed by 61 States on 22 July 1946 and entered into force on 7 April 1948. Appendix I to the WHO volume of Basic Documents shows that, at 31 October 1992, 182 States had become party to the Constitution. What are the obligations of States under the WHO Constitution? In the first place, the States Parties to the Constitution declare inter alia that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being ... ”; that “The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest cooperation of individuals and States”; and that “Governments have a responsibility for the health of their peoples ...”.

Environmental Law

455

They proceed to accept these principles and they establish the World Health Organization “for the purpose of co-operation among themselves and with others to promote and protect the health of all peoples ... ”. This Organization's objective, as stated in Article 1 is “the attainment by all peoples of the highest possible level of health”. There is thus a commitment to the attainment by all people of the highest possible level of health, to regarding the achievement of the highest achievable standard of health as a fundamental right of every person on the planet, a recognition of health as fundamental to peace, and of the duty of State co-operation to achieve this ideal. More such commitments would appear from a scrutiny of other articles of the Constitution, but the foregoing suffices for purposes of present discussion. The Constitution is a multilateral treaty, and each participating State holds out to all others its adherence to these principles, on the basis of which all others make a similar commitment. All participating States have committed themselves, to the extent of their respective abilities, to pursue this objective, consistently with the underlying assumption that the health of all peoples is fundamental to the attainment of peace and security. As stated in the next section, the WHO Constitution and its object and purpose must be interpreted in accordance with the principle of broad interpretation approved by the Court in its Opinion in the present case. It is in this sense that the commitments of the participating nations under the WHO Constitution must be construed. It seems to be clearly inconsistent with this objective that any of these nations, even for purposes of war, should consciously spread a means by which global health is undermined. In fact, it is a contradiction in terms to commit oneself to the attainment by all peoples of the highest possible levels of health and at the same time to launch into the midst of the global population a lethal instrumentality for spreading ill health on an unprecedented scale. The use of conventional weapons in war does not spread disease. It does not cause genetic deformities. It does not imperil crops. It does not cause intergenerational climatic effects which imperil the global food supply. The use of nuclear weapons does. The user of the weapon now knows, in the present state of scientific knowledge, that all these dangers to health will be caused. There is thus a clear breach of State obligations undertaken in the treaty which forms the WHO Constitution, when States resort to the use of nuclear weapons. This is the crux of the WHO inquiry regarding the interpretation of its Constitution. Such a result would be achieved even without the application of broad principles of interpretation, discussed in the next section, for it follows naturally from a consideration of these declarations and commitments collectively. The Constitution also accepts the promotion of child health and welfare as one of the mandatory functions of the Organization (Article 2(l)). This principle

456

Universalising International Law

has been accepted by every participating State. Nuclear weapons surely violate this principle, if for no other reason than the genetic damage they cause. The position is no different in regard to maternal health and welfare dealt with in the same article (2(l)). Some Emerging Principles of International Law9 I.

The Inter-Temporal Principle

It is a truism that scientific knowledge increases exponentially. The knowledge of 1995 is not the knowledge of 1974. Nor was the knowledge of 1974 the knowledge of the 1950s. There is perhaps as much of a differential between the knowledge relating to such matters between the 1970s and the 1950s as there is between the knowledge of the 1990s and the 1970s. The nature and effects of nuclear activity and radioactive contamination are matters of popular knowledge, having regard to such episodes as Chernobyl, which have demonstrated even to the layman how much more widespread the damaging effects of radioactive contamination are than was once believed. Elsewhere in this opinion reference has been made to the better understanding of the effects of underground nuclear explosions since 1974, when they were considered safe. The Court is seised of the present Request at this point of time and must bring to bear upon it the scientific knowledge now available. A court, faced with a science-oriented problem of present and future damage in 1995, cannot resolve it by ignoring the knowledge acquired between 1974 and 1995, and by applying to the problem in hand the knowledge of 1974. That would be an exercise in unreality. A similar question arose when New Zealand was asked at the time of the 1979 case why it did not protest against the larger and more dangerous nuclear explosions of the 1950s, just as today it is asked why it did not object to France’s underground testing in the 1970s. The answer of Dr. Finlay, the New Zealand AttorneyGeneral, offers an interesting perspective on the inter-temporal principle. He observed: “The plain answer is that an inter-temporal rule applies to fact as well as to law. In the world of the 1950s shoe shops in my country and in many others had X-ray machines through which the customer could see the bones of his feet in the shoes he was trying on. In the world of the 1970s we are appalled by, and forbid, these unnecessary exposures to the damaging effects of radiation.”10 So it is with the knowledge of the effects of underground explosions in the 1970s, as compared with the knowledge of the 1990s. That which was assumed then has been contradicted by later knowledge. The basic suppositions of fact on which public conduct was ordered have been undermined. If the basic assumption of the protection of a party’s rights in 1974 is undermined by knowledge available 9 10

The discussion that follows is extracted from New Zealand v France, I.C.J. Reports,1995, pp. 339347. I.C.J. Pleadings, Nuclear Tests, Vol. II, p. 255.

Environmental Law

457

in 1995, and if the terms of the protecting judgment make its reconsideration available to a party complaining that its basis had been undermined, this Court, when approached on the footing that the basis of the Judgment had been undermined, must apply to that question the knowledge it has today and not the knowledge of 1974. The question whether the basis of the Judgment has been affected is a question of practical reality and not a legal abstraction viewed apart from its practical impact upon human life and the environment in the applicant State. II.

The Concept of Intergenerational Rights

The case before the Court raises, as no case ever before the Court has ever done, the principle of intergenerational equity – an important and rapidly developing principle of contemporary environmental law. Professor Lauterpacht, on behalf of New Zealand, adverted to this aspect when he submitted to the Court that if damage of the kind alleged had been inflicted on the environment by the people of the Stone Age, it would be with us today. Having regard to the information before us that the half-life of a radioactive byproduct of nuclear tests can extend to over 20,000 years, this is an important aspect that an international tribunal cannot fail to notice. In a matter of which it is duly seised, this Court must regard itself as a trustee of those rights in the sense that a domestic court is a trustee of the interests of an infant unable to speak for itself. If this Court is charged with administering international law, and if this principle is building itself into the corpus of international law, or has already done so, this principle is one which must inevitably be a concern of this Court. The consideration involved is too serious to be dismissed as lacking in importance merely because there is no precedent on which it rests. New Zealand’s complaint that its rights are affected does not relate only to the rights of people presently in existence. The rights of the people of New Zealand include the rights of unborn posterity. Those are rights which a nation is entitled, and indeed obliged, to protect. In considering whether New Zealand has made out a prima facie case of damage to its interests sufficient to bring the processes of this Court into operation in terms of paragraph 63, this is therefore an important aspect not to be ignored. In the words of an important recent work on this question: “The starting proposition is that each generation is both a custodian and a user of our common natural and cultural patrimony. As custodians of this planet, we have certain moral obligations to future generations which we can transform into legally enforceable norms.”11 11

See E. Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity, 1989, p. 21.

458

Universalising International Law

The Stockholm Declaration on the Human Environment adopted by the United Nations Conference on the Environment at Stockholm, 16 June 1972, formulated nearly a quarter century ago the principle of “a solemn responsibility to protect and improve the environment for present and future generations” (Principle 1). This guideline sufficiently spells out the approach to this new principle which is relevant to the problem the Court faces of assessing the likely damage to the people of New Zealand. This Court has not thus far had occasion to make any pronouncement on this developing field. The present case presents it with a pre-eminent opportunity to do so, as it raises in pointed form the possibility of damage to generations yet unborn. III. The Precautionary Principle Where a party complains to the Court of possible environmental damage of an irreversible nature which another party is committing or threatening to commit, the proof or disproof of the matter alleged may present difficulty to the claimant as the necessary information may largely be in the hands of the party causing or threatening the damage. The law cannot function in protection of the environment unless a legal principle is evolved to meet this evidentiary difficulty, and environmental law has responded with what has come to be described as the precautionary principle – a principle which is gaining increasing support as part of the international law of the environment.12 In 1990, the Ministers from 34 countries in the Economic Commission for Europe and the Commissioner for the Environment of the European Community, meeting at Bergen, Norway, issued the Bergen ECE Ministerial Declaration on Sustainable Development. Article 7 of this Declaration formulated the precautionary principle in these terms: “In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”13 In paragraph 16(f), the Declaration stressed the importance of optimizing democratic decision-making related to environment and development issues, and it identified the following need as part of what it called the Bergen process:

12 13

See Philippe Sands, Principles of International Environmental Law, Vol. I, pp. 208-210. Bergen ECE Ministerial Declaration on Sustainable Development, 15 May 1990, in Harold Hohmann (ed.), Basic Documents of International Environmental Law, 1992,Vol. I, pp. 558559.

Environmental Law

459

“To undertake the prior assessment and public reporting of the environmental impact of projects which are likely to have a significant effect on human health and the environment and, so far as practicable, of the policies, programmes and plans which underlie such projects and to ensure that East European and developing countries are assisted through bilateral and multilateral channels in evaluating the environmental impact and sustainability of their own development projects. To develop or expand procedures to assess the risks and potential environmental impacts of products.” (Op. cit., p. 565) The precautionary principle of course went further back in time than 1990. It is a principle of relevance to New Zealand in its application to this Court and one which inevitably calls for consideration in the context of this case. New Zealand has placed materials before the Court to the best of its ability, but France is in possession of the actual information. The principle then springs into operation to give the Court the basic rationale for considering New Zealand’s request and for not postponing the application of such means as are available to the Court to prevent, on a provisional basis, the threatened environmental degradation, until such time as the full scientific evidence becomes available in refutation of the New Zealand contention. Several environmental treaties have already accepted the precautionary principle (see Sands, op. cit., pp. 210 et seq.). Among these are the 1992 Baltic Sea Convention, and the 1992 Maastricht Treaty (Treaty on European Union, Title XVI, Art.130r(2)), which states that Community policy on the environment “shall be based on the precautionary principle” (emphasis added). It is noteworthy that under the 1992 Convention for the Protection of the Marine Environment of the NorthEast Atlantic (OSPAR Convention), the parties (France and the United Kingdom), wishing to retain the option of dumping low and intermediate level radioactive waste at sea, would be required to report to the OSPAR Commission on: “the results of scientific studies which show that any potential dumping operations would not result in hazards to human health, harm to living resources or marine ecosystems, damage to amenities or interference with other legitimate uses of the sea.” (Ann. II, Art. 3 (3) (c) cited in Sands, op. cit., p.212) This last application of the precautionary principle, to which France is a party, has particular relevance to the matter presently before the Court. The provision in the Maastricht Treaty, incorporating the precautionary principle as the basis of European Community policy on the environment (Art. 130 r (2)), would lead one to expect that the principle thus applicable to Europe would apply also to European activity in other global theatres. Reference should be made finally to Principle 15 of the Rio Declaration on Environment and Development, 1992, which reads;

460

Universalising International Law

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”14 IV.

Environmental Impact Assessment (EIA)

This principle is ancillary to the broader principle just discussed. As with the previous principle, this principle is gathering strength and international acceptance, and has reached the level of general recognition at which this Court should take notice of it. The United Nations Environment Programme (UNEP) Guidelines of 1987 on “Goals and Principles of Environmental Impact Assessment” states in Principle 1 that: “States (including their competent authority) should not undertake or authorize activities without prior consideration, at an early stage, of their environmental effects. Where the extent, nature or location of a proposed activity is such that it is likely to significantly affect the environment, a comprehensive environmental impact assessment should be undertaken in accordance with the following principles.”15 A proper Environmental Impact Assessment should, according to Principle 4, include: “ a) A description of the proposed activity; b) A description of the potentially affected environment, including specific information necessary for identifying and assessing the environmental effects of the proposed activity; c) A description of practical alternatives, as appropriate; d) An assessment of the likely or potential environmental impacts of the proposed activity and alternatives, including the direct, indirect, cumulative, short-term and long-term effects; e) An identification and description of measures available to mitigate adverse environmental impacts of the proposed activity and alternatives, and an assessment of those measures; f) An indication of gaps in knowledge and uncertainties which may be encountered in compiling the required information; g) An indication of whether the environment of any other States or area beyond national jurisdiction is likely to be affected by the proposed activity or alternatives; 14 15

Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 314 June 1992, Vol. I, Ann. I, p. 6. Hohmann, op. cit., p. 187.

Environmental Law

461

h) A brief, non-technical summary of the information provided under the above headings.”16 It is clear that on an issue of the magnitude of that which brings New Zealand before this Court, the principle of Environmental Impact Assessment would prima facie be applicable in terms of the current state of international environmental law. This Court, situated as it is at the apex of international tribunals, necessarily enjoys a position of special trust and responsibility in relation to the principles of environmental law, especially those relating to what is described in environmental law as the Global Commons. When a matter is brought before it which raises serious environmental issues of global importance, and a prima facie case is made out of the possibility of environmental damage, the Court is entitled to take into account the Environmental Impact Assessment principle in determining its preliminary approach. Of course the situation may well be proved to be otherwise and fears currently expressed may prove to be groundless. But that stage is reached only after the Environmental Impact Assessment and not before. V. The Illegality of Introducing Radioactive Waste into the Marine Environment This principle is too well established to need discussion. The marine environment belongs to all, and any introduction of radioactive waste into one’s territorial waters must necessarily raise the danger of its spread into the wider ocean spaces that belong to all. If such danger can be shown prima facie to exist or be within the bounds of reasonable possibility, the burden shifts on those who claim such action is safe to establish that this is indeed so. As observed already, the 1992 OSPAR Convention between France and the United Kingdom requires a report that any proposed dumping of low and intermediate level radioactive waste would not result in hazards to human health and marine resources. Such is the standard observed internationally. Until such time, a judicial tribunal is entitled to act upon the prima facie case that New Zealand has made out. That report of the Rio Conference of 1992 deals in Chapter 22 of Agenda 21 with “Safe and Environmentally Sound Management of Radioactive Wastes”. Paragraph 22.5 (c) deals specifically with this problem in terms that States should: “Not promote or allow the storage or disposal of high-level, intermediatelevel and low-level radioactive wastes near the marine environment unless they determine that scientific evidence, consistent with the applicable internationally agreed principles and guidelines, shows that such storage or disposal poses no unacceptable risk to people and the marine environment or 16

Hohmann, op. cit., p. 188.

462

Universalising International Law

does not interfere with other legitimate uses of the sea, making, in the process of consideration, appropriate use of the concept of the precautionary approach.”17 France supported Agenda 21. Indeed, President Mitterrand gave it such strong support as to suggest that the Secretary-General of the United Nations should be entrusted with the task of taking stock of the implementation of Agenda 21 every year (ibid., Vol. III, p. 195). The President also observed: “Secondly, it would be useful to determine more clearly the role, or the responsibility, of the countries of the North. I think that they have to preserve and restore their own domain (water, air, towns, countryside), a task which their Governments are tackling unevenly. That they have to refrain from any action harmful to the environment of the countries of the South. Such is the purpose of France’s very strict laws on the export of wastes.” (ibid., p. 194; emphasis added) It scarcely needs citation of authority to establish so self-evident a principle. VI. The Principle that Damage Must Not Be Caused to Other Nations The conclusions just reached are reinforced by a fundamental principle of modern environmental law which must here be noted. It is well entrenched in international law and goes as far back as the Trail Smelter case.18 This basic principle, that no nation is entitled by its own activities to cause damage to the environment of any other nation, appears as Principle 2 of the Rio Declaration on the Environment, 1992: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”19 Other international instruments that embody this principle are the Stockholm Declaration on the Human Environment (1972, Principle 21) and the 1986 Noumea Convention, Article 4 (6) of which states: 17 18 19

Report of the United Nations Conference on Environment and Development (A/CONF. 151/26/ Rev.1), Vol. I, Ann. II, pp. 371-372. Report of International Arbitral Awards, 1938, Vol. III, p. 1905) and perhaps beyond (see also Corfu Channel, Merits, Judgment, I.C.J. Reports, 1949, p. 4. Report of the United Nations Conference on Environment and Development (A/CON F.15 1/26/Rev.1), Vol. I, Ann. I, p.3.

Environmental Law

463

“Nothing in this Convention shall affect the sovereign right of a State to exploit, develop and manage their own natural resources pursuant to their own policies, taking into account their duty to protect and preserve the environment. Each Party shall ensure that activities within its jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of its national jurisdiction.”20 It is in the context of such a deeply entrenched principle, grounded in common sense, case law, international conventions, and customary international law that the Court must reach a determination as to whether a prima facie case of danger to its rights has been made out by New Zealand. * * * It is hoped that the foregoing observations will have emphasized that environmental law is progressing at the level of both state and individual obligations. The two are complementary to each other and, as observed in the previous chapter as well, impose a heavy responsibility on the judiciary to contribute to the progressive development of international law in this field.

20

Hohmann, Basic Documents of International Environmental Law,1992, Vol. 2, p. 1063.

Chapter 17

Nuclear Weapons Law

Introduction Perhaps the most momentous issue which has ever surfaced in international law is the legality of nuclear weapons – and this applies not only to the use or threat of use of nuclear weapons but also to their manufacture and possession. Yet there was a deafening silence on these questions in the field of international law when the weapon first made its appearance and for a considerable period after its first (and hopefully last) use in war. Like the general public and the politicians, the lawyers were initially too severely shaken by it to contemplate its profound impact on nearly every department of international law – sovereignty, the equality of states, humanitarian law, genocide, the law of the sea, environmental law, common amenities, state responsibility, jus cogens, the peaceful settlement of disputes and a host of other fields on which it had the profoundest impact. Various circumstances combined to produce this apathy – the initial US monopoly of the bomb, the Cold War, the Korean War, the Vietnam War, the era of McCarthyism all helped to prevent what should have been a flood tide of critical examination of the legality of the bomb. Occasional works appeared such as Schwarzenberger’s The Legality of Nuclear Weapons, 1958 and Nagendra Singh’s Nuclear Weapons and International Law, 1959, but even this trickle of writings dried up after a while and this most crucial of all issues attracted little or no serious writing for around two decades. Thereafter the topic attracted increasing attention and achieved a peak of recognition when both the General Assembly and the World Health Organisation referred to the International Court of Justice for Advisory Opinions the questions of the Legality of the Use or Threat of Nuclear Weapons. 464

Nuclear Weapons Law

465

These references attracted much international attention, with thirty five nations, nuclear and non-nuclear, filing statements and twenty four making oral submissions before the Court. Public interest in the matter was such that the Court Registry received from citizens groups documents containing over three million signatures. These were so voluminous that the Court Registry could not accommodate them and they had to be deposited in other repositories. The question referred by the General Assembly was “Is the threat or use of nuclear weapons under any circumstances permitted by International Law?” The Court in its Opinion stated that the use of nuclear weapons is, in general, contrary to international law but did not express an opinion in regard to a situation of extreme self defence in which the very survival of a state is at stake. The first section of this chapter consists of extracts from the author’s Dissenting Opinion in which he concluded that the threat or use of nuclear weapons is illegal in any circumstances whatsoever. The second section is an extract from the author’s work Nuclear Weapons and Scientific Responsibility, published in 1987, which examined the question of the responsibility of scientists who make or assist in the making of nuclear weapons. The first section deals with the illegality of the threat or use of the weapon. The second deals with the illegality of manufacture. Though the work relied on for the purpose of the second section was written in the context of the Cold War, and a possible nuclear conflict between the US and the Soviet Union, its arguments carry even greater relevance today in a world which has seen the proliferation of nuclear nations and an increase in regional conflicts which are capable of escalation to global proportions. A. ILLEGALITY OF USE OR THREAT OF USE* Humanitarian Law It could indeed be said that the principal question before the Court is whether the nuclear weapon can in any way be reconciled with the basic principles of humanitarian law. The governance of nuclear weapons by the principles of humanitarian law has not been in doubt at any stage of these proceedings, and has now been endorsed by the unanimous opinion of the Court (para. 2(D)). Indeed, most of the States contending that the use of nuclear weapons is lawful have acknowledged that their use is subject to international humanitarian law. Thus the Russian Federation has stated: “Naturally, all that has been said above does not mean that the use of nuclear weapons is not limited at all. Even if the use of nuclear weapons is in principle justifiable – in individual or collective self-defence – that use shall be made within the framework of limitations imposed by * Extracts from 1996 (1) I.C.J. Reports, pp. 476-512. Footnotes are numbered in the sequential order in which they appeared in the Opinion.

466

Universalising International Law

humanitarian law with respect to means and methods of conducting military activities. It is important to note that with respect to nuclear weapons those limitations are limitations under customary rather than treaty law.” (Written Statement, p. 18.) The United States states: “The United States has long taken the position that various principles of the international law of armed conflict would apply to the use of nuclear weapons as well as to other means and methods of warfare. This in no way means, however, that the use of nuclear weapons is precluded by the law of war. As the following will demonstrate, the issue of the legality depends on the precise circumstances, involved in any particular use of a nuclear weapon.”(Written Statement, p. 21.) So, also, the United Kingdom: “It follows that the law of armed conflict by which the legality of any given use of nuclear weapons falls to be judged includes all the provisions of customary international law (including those which have been codified in Additional Protocol I) and, where appropriate, of conventional law but excludes those provisions of Protocol I which introduced new rules into the law.” (Written Statement, p. 46, para. 3.55.) The subordination of nuclear weapons to the rules of humanitarian law has thus been universally recognized, and now stands judicially confirmed as an incontrovertible principle of international law. It remains then to juxtapose the leading principles of humanitarian law against the known results of nuclear weapons, as already outlined. When the principles and the facts are lined up alongside each other, the total incompatibility of the principles with the facts leads inescapably to but one conclusion – that nuclear weapons are inconsistent with humanitarian law. Since they are unquestionably governed by humanitarian law, they are unquestionably illegal. Among the prohibitions of international humanitarian law relevant to this case are the prohibitions against weapons which cause superfluous injury, weapons which do not differentiate between combatants and civilians, and weapons which do not respect the rights of neutral states. A more detailed consideration follows. 1.

“Elementary Considerations of Humanity”

This phrase gives expression to a core concept of humanitarian law. Is the conduct of a State in any given situation contrary to the elementary considerations of humanity? One need go no further than to formulate this phrase, and then recount the known results of the bomb as outlined above. The resulting contrast

Nuclear Weapons Law

467

between light and darkness is so dramatic as to occasion a measure of surprise that their total incompatibility has even been in doubt. One wonders whether, in the light of common sense, it can be doubted that to exterminate vast numbers of the enemy population, to poison their atmosphere, to induce in them cancers, keloids and leukaemias, to cause congenital defects and mental retardation in large numbers of unborn children, to devastate their territory and render their food supply unfit for human consumption – whether acts such as these can conceivably be compatible with “elementary considerations of humanity”. Unless one can in all conscience answer such questions in the affirmative, the argument is at an end as to whether nuclear weapons violate humanitarian law, and therefore violate international law. President Woodrow Wilson, in an address delivered to a joint session of Congress on April 2, 1917, gave elegant expression to this concept when he observed: “By painful stage after stage has that law been built up, with meager enough results, indeed, ... but always with a clear view, at least, of what the heart and conscience of mankind demanded.”59 In relation to nuclear weapons, there can be no doubt as to “what the heart and conscience of mankind” demand. As was observed by another American President, President Reagan, “I pray for the day when nuclear weapons will no longer exist anywhere on earth”60. That sentiment, shared by citizens across the world – as set out elsewhere in this Opinion – provides the background to modern humanitarian law, which has progressed from the time when President Wilson described its results as “meager ... indeed”. The ensuing portions of this Opinion are devoted to an examination of the present state of development of the principles of humanitarian law. 2.

Multicultural background to the humanitarian laws of war

It greatly strengthens the concept of humanitarian laws of war to note that this is not a recent invention, nor the product of any one culture. The concept is of ancient origin, with a lineage stretching back at least three millennia. As already observed, it is deep-rooted in many cultures – Hindu, Buddhist, Chinese, Christian, Islamic and traditional African. These cultures have all given expression to a variety of limitations on the extent to which any means can be used for the purposes of fighting one’s enemy. The problem under consideration is a universal problem, 59

60

Address of the President of the United States at a Joint Session of the Two Houses of Congress, April 2, 1917, reprinted in (1917) 11 American Journal of International Law, Supp., p. 144. The President was speaking in the context of the indiscriminate German submarine attacks on shipping which he described as “a warfare against mankind.” Speech of June 16, 1983, referred to by Robert S. McNamara, op. cit., p. 60.

468

Universalising International Law

and this Court is a universal Court, whose composition is required by its Statute to reflect the world’s principal cultural traditions61. The multicultural traditions that exist on this important matter cannot be ignored in the Court’s consideration of this question, for to do so would be to deprive its conclusions of that plenitude of universal authority which is available to give it added strength – the strength resulting from the depth of the tradition's historical roots and the width of its geographical spread62. Of special relevance in connection with nuclear weapons is the ancient South Asian tradition regarding the prohibition on the use of hyperdestructive weapons. This is referred to in the two celebrated Indian epics, the Ramayana and the Mahabharatha, which are known and regularly re-enacted through the length and breadth of South and South East Asia, as part of the living cultural tradition of the region. The references in these two epics are as specific as can be on this principle, and they relate to a historical period around three thousand years ago. The Ramayana63 tells the epic story of a war between Rama, prince of Ayodhya in India, and Ravana, ruler of Sri Lanka. In the course of this epic struggle, described in this classic in the minutest detail, a weapon of war became available to Rama's half-brother, Lakshmana, which could “destroy the entire race of the enemy, including those who could not bear arms”. Rama advised Lakshmana that the weapon could not be used in the war “because such destruction en masse was forbidden by the ancient laws of war, even though Ravana was fighting an unjust war with an unrighteous objective”64. These laws of war which Rama followed were themselves ancient in his time. The laws of Manu forbade stratagems of deceit, all attacks on unarmed adversaries and non-combatants, irrespective of whether the war being fought was a just war or not65. The Greek historian Megasthenes66 makes reference to the practice in India that warring armies left farmers tilling the land unmolested, even though the 61

62

63 64

65 66

It should be noted in this context that the sad demise of the deeply respected Latin American Judge Andrés Aguilar Mawdsley, six days before the hearings of the case commenced, reduced the Court to fourteen, and deprived its composition of a Latin American component. As observed in a contemporary study of the development of international humanitarian law, there is evidence “of efforts made by every people in every age to reduce the devastation of war” (Herczegh, op. cit., p.14). The Ramayana, Romesh Chunder Dutt (tr.). See Na gendra Singh, “The Distinguisha ble Characteristics of the Concept of the Law as it Developed in Ancient India”,in Liber Amicorum for the Right Honourable Lord Wilberforce, 1987, p. 93. The relevant passage of the Ramayana is Yuddha Kanda (Sloka),VIII. 39. Manusmrti, vii, 91, 92. c.350BC - c.290BC - ancient Greek historian and diplomat sent on embassies by Seleucus I to Chandragupta Maurya, who wrote the most complete account of India then known to the Greek world.

Nuclear Weapons Law

469

battle raged close to them. He likewise records that the land of the enemy was not destroyed with fire nor his trees cut down67. The Mahabharatha relates the story of an epic struggle between the Kauravas and the Pandavas. It refers likewise to the principle forbidding hyperdestructive weapons when it records that: “Arjuna, observing the laws of war, refrained from using the ‘pasu pathastra’, a hyper-destructive weapon, because when the fight was restricted to ordinary conventional weapons, the use of extraordinary or unconventional types was not even moral, let alone in conformity with religion or the recognized laws of warfare.”68 Weapons causing unnecessary suffering were also banned by the Laws of Manu as, for example, arrows with hooked spikes which, after entering the body would be difficult to take out, or arrows with heated or poisoned tips69. The environmental wisdom of ancient Judaic tradition is also reflected in the following passage from Deuteronomy (20:19): “When you are trying to capture a city, do not cut down its fruit trees, even though the siege lasts a long time. Eat the fruit but do not destroy the trees. The trees are not your enemies.”(emphasis added.) Recent studies of warfare among African peoples likewise reveal the existence of humanitarian traditions during armed conflicts, with moderation and clemency shown to enemies70. For example, in some cases of traditional African warfare, there were rules forbidding the use of particular weapons and certain areas had highly developed systems of etiquette, conventions, and rules, both before hostilities commenced, during hostilities, and after the cessation of hostilities – including a system of compensation71. In the Christian tradition, the Second Lateran Council of 1139 offers an interesting illustration of the prohibition of weapons which were too cruel to be used in warfare – the crossbow and the siege machine, which were condemned as “deadly and odious to God”72. Nussbaum, in citing this provision, observes that, it “certainly appears curious in the era of the atomic bomb”. There was a very early 67 68 69 70 71 72

Megasthenes, Fragments, cited in N. Singh, Juristic Concepts of Ancient Indian Polity, 1980, pp. 162-163. Mahabharatha, Udyog Parva, 194.12, cited in Nagendra Singh, “The Distinguishable Characteristics of the Concept of Law as it Developed in Ancient India” op. cit., p. 93. Manusmrti, VII. 90, cited in N. Singh, India and International Law, 1973, p. 72. See Y. Diallo, Traditions africaines et droit humanitaire, 1978, p. 16; E. Bello, African Customary Humanitarian Law, ICRC, 1980, both referred to in Herczegh, op. cit., p. 14. Bello, op. cit., pp. 20-21. Resolutions of the Second Lateran Council, Canon XXIX, cited by Nussbaum, A Concise History of the Law of Nations, 1947, p. 25.

470

Universalising International Law

recognition here of the dangers that new techniques were introducing into the field of battle. Likewise, in other fields of the law of war, there were endeavours to bring it within some forms of control as, for example, by the proclamation of “Truces of God” – days during which feuds were not permitted which were expanded in some church jurisdictions to periods from sunset on Wednesday to sunrise on Monday73. Gratian’s Decretum in the 12th century was one of the first Christian works dealing with these principles, and the ban imposed by the Second Lateran Council was an indication of the growing interest in the subject. However, in Christian philosophy, while early writers such as St. Augustine examined the concept of the just war (jus ad bellum) in great detail, the jus in bello was not the subject of detailed study for some centuries. Vitoria gathered together various traditions upon the subject, including traditions of knightly warfare from the age of chivalry, Aquinas worked out a welldeveloped doctrine relating to the protection of non-combatants and other writers fed the growing stream of thought upon the subject. In the Islamic tradition, the laws of war forbade the use of poisoned arrows or the application of poison on weapons such as swords or spears74. Unnecessarily cruel ways of killing and mutilation were expressly forbidden. Non-combatants, women and children, monks and places of worship were expressly protected. Crops and livestock were not to be destroyed75 by anyone holding authority over territory. Prisoners were to be treated mercifully in accordance with such Qur’anic passages as “Feed for the love of Allah, the indigent, the orphan and the captive”76. So well developed was Islamic law in regard to conduct during hostilities that it ordained not merely that prisoners were to be well treated, but that if they made a last will during captivity, the will was to be transmitted to the enemy through some appropriate channel77. The Buddhist tradition went further still, for it was totally pacifist, and would not countenance the taking of life, the infliction of pain, the taking of captives or the appropriation of another's property or territory in any circumstances whatsoever. Since it outlaws war altogether, it could under no circumstances lend its sanction to weapons of destruction – least of all to a weapon such as the nuclear bomb.

73 74 75 76 77

Ibid., p. 26. See N. Singh, India and International Law, op. cit., p. 216. Qur’an, II.205. Ibid., LXXVII. 8; emphasis added. S.R.Hassan, The Reconstruction of Legal Thought in Islam, 1974, p. 177. See, generally, Majid Khadduri, War and Peace in the Law of Islam, 1955. For a brief summary of the Islamic law relating to war, see C.G. Weeramantry, Islamic Jurisprudence: An International Perspective, 1988, pp. 134-138.

Nuclear Weapons Law

471

“According to Buddhism there is nothing that can be called a ‘just war’ – which is only a false term coined and put into circulation to justify and excuse hatred, cruelty, violence and massacre. Who decides what is just and unjust? The mighty and the victorious are ‘just’, and the weak and the defeated are ‘unjust’. Our war is always ‘just’ and your war is always ‘unjust’. Buddhism does not accept this position.”78 In rendering an Advisory Opinion on a matter of humanitarian law concerning the permissibility of the use of force to a degree capable of destroying all of humanity, it would be a grave omission indeed to neglect the humanitarian perspectives available from this major segment of the world’s cultural traditions79. Examples of the adoption of humanitarian principles in more recent history are numerous. For example, in the Crimean War in 1855, the use of sulphur was proposed at the Siege of Sebastopol, but would not be permitted by the British Government, just as during the American Civil War the use of chlorine in artillery shells by the Union forces was proposed in 1862, but rejected by the Government80. It is against such a varied cultural background that these questions must be considered and not merely as though they are a new sentiment invented in the 19th century and so slenderly rooted in universal tradition that they may be lightly overridden. Grotius’concern with the cruelties of war is reflected in his lament that: “when arms were once taken up, all reverence for divine and human law was thrown away, just as if men were thenceforth authorized to commit all crimes without restraint”81. The foundations laid by Grotius were broad-based and emphasized the absolute binding nature of the restrictions on conduct in war. In building that foundation, Grotius drew upon the collective experience of humanity in a vast range of civilizations and cultures. Grotius’encyclopedic study of literature, from which he drew his principles, did not of course cover the vast mass of Hindu, Buddhist and Islamic literature having a bearing on these matters, and he did not have the benefit of this considerable supplementary source, demonstrating the universality and the extreme antiquity of the branch of law we call the jus in bello. 78 79

80

81

Walpola Rahula, What the Buddha Taught, M.D. Gunasena, 1959, p. 84. On Buddhism and international law, see, generally, K.N. Jayatilleke, “The Principles of International Law in Buddhist Doctrine,” 120 Recuiel des cours de l’Academie Droit International de la Haye, Vol. 120 (1967-I), pp. 441-567; C.G. Weeramantry, “Some Buddhist Perspectives on International Law”, Boutros Boutros-Ghali Amicorum Discipulorumque Liber, Brussels, 1998, p. 775. See L.S. Wolfe, “Chemical and Biological Warfare: Effects and Consequences”, McGill Law Journal, (1983), Vol. 28, p. 735. See, also, “Chemical Warfare” in Encyclopedia Britannica, 1959, Vol. 5, pp. 353-358. Grotius, Prolegomena, para. 28, trans. Whewell.

472

3.

Universalising International Law

Outline of humanitarian law

Humanitarian principles have long been part of the basic stock of concepts embedded in the corpus of international law. Modern international law is the inheritor of a more than hundred-year heritage of active humanitarian concern with the sufferings of war. This concern has aimed at placing checks upon the tendency, so often prevalent in war, to break every precept of human compassion. It has succeeded in doing so in several specific areas, but animating and underlying all those specific instances are general principles of prevention of human suffering that goes beyond the purposes and needs of war. The credit goes to the United States of America for one of the earliest initiatives in reducing humanitarian law to written form for the guidance of its armies. During the War of Secession, President Lincoln directed Professor Lieber to prepare instructions for the armies of General Grant – regulations which Mr. Martens, the delegate of Czar Nicholas II, referred to at the 1899 Peace Conference as having resulted in great benefit, not only to the United States troops but also to those of the Southern Confederacy. Paying tribute to this initiative, Martens described it as an example, of which the Brussels Conference of 1874 convoked by Emperor Alexander II, was “the logical and natural development”. This conference in turn led to the Peace Conference of 1899, and in its turn to the Hague Conventions which assume so much importance in this case82. The St. Petersburg Declaration of 1868 provided that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy” – and many subsequent declarations have adopted and reinforced this principle83. It gives expression to a very ancient rule of war accepted by many civilizations84. The Martens clause, deriving its name from Mr. Martens, was by unanimous vote, inserted into the Preamble to the Hague Convention II of 1899, and Convention IV of 1907, with respect to the Laws and Customs of War on Land. It provided that: “Until a more complete code of the laws of war has been issued, the high contracting Parties deem it expedient to declare that, in cases not includ ed in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized 82 83

84

For Martens’speech, see The Proceedings of the Hague Peace Conferences, op. cit., pp. 505, 506. The Hague Regulations of 1899 and 1907,Art. 25; the Hague Convention (IX) of 1907,Art.1; League of Nations Assembly Resolution of 30 September 1928; United Nations General Assembly Resolutions 2444 (XXIII) of 19 December 1968, and 2675 (XXV) of 9 December 1970; Additional Protocol I to the 1949 Geneva Conventions,Arts. 48 & 51. See Section V.2 on below “The Aims of War.”

Nuclear Weapons Law

473

peoples, from the laws of humanity, and the dictates of the public conscience.” (Emphasis added.) Although the Martens clause was devised to cope with disagreements among the parties to the Hague Peace Conferences regarding the status of resistance movements in occupied territory, it is today considered applicable to the whole of humanitarian law85. It appears in one form or another in several major treaties on humanitarian law86. The Martens clause clearly indicates that, behind such specific rules as had already been formulated, there lay a body of general principles sufficient to be applied to such situations as had not already been dealt with by a specific rule87. To be read in association with this is Article 22 of the 1907 Hague Regulations which provides that “the right of belligerents to adopt means of injuring the enemy is not unlimited”. These were indications also that international law, far from being insensitive to such far-reaching issues of human welfare, has long recognized the pre-eminent importance of considerations of humanity in fashioning its attitudes and responses to situations involving their violation, however they may occur. These declarations were made, it is to be noted, at a time when the development of modern weaponry was fast accelerating under the impact of technology. It was visualized that more sophisticated and deadly weaponry was on the drawing boards of military establishments throughout the world and would continue to be so for the foreseeable future. These principles were thus meant to apply to weapons existing then as well as to weapons to be created in the future, weapons already known and weapons as yet unvisualized. They were general principles meant to be applied to new weapons as well as old. The Parties to the Geneva Conventions of 1949 expressly recognized the Martens clause as a living part of international law - a proposition which no international jurist could seriously deny. As McDougal and Feliciano have observed: “To accept as lawful the deliberate terrorization of the enemy community by the infliction of large-scale destruction comes too close to rendering pointless all legal limitations on the exercise of violence.”88 85 86

87

88

See D. Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, 1995, p. 29. First Geneva Convention 1949,Art. 63, para. 4; Second Geneva Convention,Art. 62, para. 4; Third Geneva Convention, Art. 142, para. 4; Fourth Geneva Convention, Art. 158, para. 4;Inhumane Weapons Convention, 1980, Preamble, para. 5. At the last meeting of the Fourth Commission of the Peace Conference, on 26 September, 1907, Mr. Martens summarized its achievements in terms that, “If from the days of antiquity to our own time people have been repeating the Roman adage ‘Inter arma silent leges’, we have loudly proclaimed, ‘Inter arma vivant leges.’ This is the greatest triumph of law and justice over brute force and the necessities of war.” (J.B. Scott, “The Conference of 1907”, The Proceedings of the Hague Peace Conferences, 1921, Vol. III, p. 914. M.S. McDougal and F.P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion, 1961, p. 657.

474

Universalising International Law

International law has long distinguished between conventional weapons and those which are unnecessarily cruel. It has also shown a continuing interest in this problem. For example, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 1980, dealt in three separate Protocols with such weapons as those which injure by fragments, which in the human body escape detection (Protocol I); Mines, Booby Traps and Other Devices (Protocol II); and Incendiary Weapons (Protocol III). If international law had principles within it strong enough in 1899 to recognize the extraordinary cruelty of the “dum dum” or exploding bullet as going beyond the purposes of war,89 and projectiles diffusing asphyxiating or deleterious gases as also being extraordinarily cruel,90 it would cause some bewilderment to the objective observer to learn that in 1996 it is so weak in principles that, with over a century of humanitarian law behind it, it is still unable to fashion a response to the cruelties of nuclear weapons as going beyond the purposes of war. At the least, it would seem passing strange that the expansion within the body of a single soldier of a single bullet is an excessive cruelty which international law has been unable to tolerate since 1899, and that the incineration in one second of a hundred thousand civilians is not. This astonishment would be compounded when that weapon has the capability, through multiple use, of endangering the entire human species and all civilization with it. Every branch of knowledge benefits from a process of occasionally stepping back from itself and scrutinizing itself objectively for anomalies and absurdities. If a glaring anomaly or absurdity becomes apparent and remains unquestioned, that discipline is in danger of being seen as floundering in the midst of its own technicalities. International law is happily not in this position, but if the conclusion that nuclear weapons are illegal is wrong, it would indeed be. As will appear from the ensuing discussion, international law is not so lacking in resources as to be unable to meet this unprecedented challenge. Humanitarian law is not a monument to uselessness in the face of the nuclear danger. It contains a plethora of principles wide enough, deep enough and powerful enough to handle this problem. Humanitarian law has of course received recognition from the jurisprudence of this Court (for example, Corfu Channel, I.C.J. Reports 1949, p. 22; Border and Transborder Armed Actions (Nicaragua v. Honduras), I.C.J. Reports 1988, p. 114), but this Court has not so far had occasion to examine it in any depth. This case offers it the opportunity par excellence for so doing.

89 90

International Declaration Respecting Expanding Bullets, signed at The Hague, 29 July 1899. International Declaration Respecting Asphyxiating Gases, signed at The Hague, 29 July 1899

Nuclear Weapons Law

4.

475

Acceptance by States of the Martens clause

The Martens clause has commanded general international acceptance. It has been incorporated into a series of treaties, as mentioned elsewhere in this opinion, has been applied by international judicial tribunals, has been incorporated into military manuals,91 and has been generally accepted in international legal literature as indeed encapsulating in its short phraseology the entire philosophy of the law of war. At the Krupp Trial (1948), it was described as: “a general clause, making the usages established among civilised nations, the laws of humanity and the dictates of the public conscience into the legal yardstick to be applied if and when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare”92. The clause has been described by Lord Wright as furnishing the keynote to the Hague Regulations which particularize a great many war crimes, “leaving the remainder to the governing effect of that sovereign clause which does really in a few words state the whole animating and motivating principle of the law of war, and indeed of all law, because the object of all law is to secure as far as possible in the mutual relations of the human beings concerned the rule of law and of justice and of humanity.”93 The Martens clause has thus become an established and integral part of the corpus of current customary international law. International law has long passed the stage when it could be debated whether such principles had crystallized into customary international law. No state would today repudiate any one of these principles. A generally accepted test of recognition of rules of customary international law is that the rule should be “so widely and generally accepted, that it can hardly be supposed that any civilized State would repudiate it”94. While no state today would repudiate any one of these principles, what seems to be in dispute is the application of those principles to the specific case of nuclear weapons which, for some unarticulated reason, seem to be placed above and beyond the rules applicable to other weapons. If humanitarian law regulates the lesser weapons for fear that 91 92 93

94

See section III. 10 (a), below. Law Reports of Trials of War Criminals, Vol. 10, p. 133. Foreword by Lord Wright to the last volume of the law Reports of Trials of War Criminals, Vol.15, p. xiii. See, further, the discussion of the Martens clause in Singh & McWhinney, op. cit., pp. 46 et seq., referring, inter alia, to the two passages cited above. West Rand Central Gold Mining Co., Ltd. v. R (1905), 2 KB, p. 407.

476

Universalising International Law

they may cause the excessive harm which those principles seek to prevent, it must a fortiori regulate the greater. The attempt to place nuclear weapons beyond the reach of these principles lacks the support not only of the considerations of humanity, but also of the considerations of logic. These considerations are also pertinent to the argument that customary law cannot be created over the objection of the nuclear weapon States (United States Written Statement, p. 9).95 The general principles of customary law applicable to the matter commanded the allegiance of the nuclear weapon States long before nuclear weapons were invented. It is on those general principles that the illegality of nuclear weapons rests. It seems clear that if the principles are accepted and remain undisputed, the applicability of those principles to the specific case of nuclear weapons cannot reasonably be in doubt. 5.

“The dictates of public conscience”

This phraseology, stemming from the Martens clause, lies at the heart of humanitarian law. The Martens Clause and many subsequent formulations of humanitarian principles recognize the need that strongly held public sentiments in relation to humanitarian conduct be reflected in the law. The phrase is, of course, sufficiently general to pose difficulties in certain cases in determining whether a particular sentiment is shared widely enough to come within this formulation. However, in regard to the use or threat of use of nuclear weapons, there is no such uncertainty, for on this issue the conscience of the global community has spoken, and spoken often, in the most unmistakable terms. Resolutions of the General Assembly over the years are not the only evidence of this. Vast numbers of the general public in practically every country, organized professional bodies of a multinational character,96 and many other groupings across the world have proclaimed time and again their conviction that the public conscience dictates the non-use of nuclear weapons. Across the world, presidents and prime ministers, priests and prelates, workers and students, and women and children have continued to express themselves strongly against the bomb and its dangers. Indeed, this conviction underlies the conduct of the entire world community of nations when, for example, in the NPT, it accepts that all nuclear weapons must eventually be got rid of. The recent Non-Proliferation Review Conference of 1995 reconfirmed this objective. The work currently in progress towards a total test ban treaty reconfirms this again. Reference is made in the next section (section VI.6) to the heightening of public sensitivity towards humanitarian issues, resulting from the vast strides made by human rights law ever since the United Nations Charter in 1945. 95 96

On this aspect, see further section VI. 6, below. See, on these organizations, section VI.3,below.

Nuclear Weapons Law

477

General Assembly resolutions on the matter are numerous.97 To cite just one of them, Resolution 1653(XVI) of 1961 declared that: “The use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations.” and asserted, with more specific reference to international law, that such use was “contrary to the rules of international law and to the laws of humanity.” In addition, the “threat” to use nuclear weapons, and not merely their actual use, has been referred to by the General Assembly as prohibited.98 Nuclear weapons have been outlawed by treaty in numerous areas of planetary space – the sea-bed, Antarctica, Latin America and the Caribbean, the Pacific, and Africa, not to speak of outer space. Such universal activity and commitment would be altogether inconsistent with a global acceptance of the compatibility of these weapons with the general principles of humanity. They point rather to a universal realization that there is in them an element which deeply disturbs the public conscience of this age. As has been well observed in this regard: “in this burgeoning human rights era especially, respecting an issue that involves potentially the fate of human civilization itself, it is not only appropriate but mandated that the legal expectations of all members of human society, official and non-official, be duly taken into account.”99 It is a truism that there is no such thing as a unanimous opinion held by the entire world community on any principle, however lofty. Yet it would be hard to 97

98 99

Resolution 1653 (XVI) on 24 November 1961 (“Declaration on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons”); Resolution 2936 (XXVII) of 29 November 1972 (“Non-Use of Force in International Relations and Permanent Prohibition of the Use of Nuclear Weapons”); Resolution 33/71B of 14 December 1978 (“Non-Use of Nuclear Weapons and Prevention of Nuclear War”), Resolution 34/83G of 11 December 1979 (“Non-Use of Nuclear Weapons and Prevention of Nuclear War”), Resolution 36/921of 9 December 1981 (“Non-Use of Nuclear Weapons and Prevention of Nuclear War”); Resolution 44/117C of 15 December 1989 (“Convention of the Prohibition of the Use of Nuclear Weapons”); Resolution 45/59B of 4 December 1990 (“Convention on the Prohibition of the Use of Nuclear Weapons”),Resolution 46/37D of 6 December 1991 (“Convention on the Prohibition on the Use of Nuclear Weapons”). See, also, e.g., Resolution 36/100 of 9 December 1981 (“Declaration on the Prevention of Nuclear Catastrophe”), paragraph I (“States and statesmen that resort first to the use of nuclear weapons will be committing the gravest crime against humanity”). Resolution 2936 (XXVII) of 29 November 1972 (“Non-use of Force in International Relations and Permanent Prohibition of the Use of Nuclear Weapons”), preambular paragraph 10. Burns H. Weston, “Nuclear Weapons and International Law: Prolegomenon to General Illegality”, New York Law School Journal of International and Comparative La w, (19821983), Vol. 04, p. 252 and authorities therein cited.

478

Universalising International Law

find a proposition so widely and universally accepted as that nuclear weapons should not be used. The various expressions of opinion on this matter “are expressive of a far-flung community consensus that nuclear weapons and warfare do not escape the judgment of the humanitarian rules of armed conflict.”100 The incompatibility between “the dictates of public conscience” and the weapon appears starkly, if one formulates the issues in the form of questions that may be addressed to the public conscience of the world, as typified by the average citizen in any country. Here are a few questions, from an extensive list that could be compiled: Is it lawful for the purposes of war to induce cancers, keloid growths or leukaemias in large numbers of the enemy population? Is it lawful for the purposes of war to inflict congenital deformities and mental retardation on unborn children of the enemy population? Is it lawful for the purposes of war to poison the food supplies of the enemy population? Is it lawful for the purposes of war to inflict any of the above types of damage on the population of countries that have nothing to do with the quarrel leading to the nuclear war? Many more such questions could be asked. If it is conceivable that any of these questions can be answered in the affirmative by the public conscience of the world, there may be a case for the legality of nuclear weapons. If it is not, the case against nuclear weapons seems unanswerable. 6.

Impact of the United Nations Charter and human rights on “Considerations of Humanity and Dictates of Public Conscience”101

The enormous developments in the field of human rights in the post-war years, commencing with the Universal Declaration of Human Rights in 1948, must necessarily make their impact on assessments of such concepts as “considerations of humanity” and “dictates of the public conscience”. This development in human rights concepts, both in their formulation and in their universal acceptance, is more substantial than the developments in this field for centuries before. The public conscience of the global community has thus been greatly strengthened and sensitized to “considerations of humanity” and “dictates of public conscience”. Since the vast structure of internationally accepted human rights norms and standards has become part of common global consciousness today in a manner unknown before World War II, its principles tend to be invoked immediately and automatically whenever a question arises of humanitarian standards. 100 101

ibid., p. 242. See, also, Section III. 10(g), infra.

Nuclear Weapons Law

479

This progressive development must shape contemporary conceptions of humanity and humanitarian standards, thus elevating the level of basic expectation well above what it was when the Martens clause was formulated. In assessing the magnitude of this change, it is helpful to recall that the first movement towards modern humanitarian law was achieved in a century (the 19th century) which is often described as the “Clausewitzean century” for the reason that, in that century, war was widely regarded as a natural means for the resolution of disputes, and a natural extension of diplomacy. Global sentiment has moved an infinite distance from that stance, for today the United Nations Charter outlaws all resort to force by States (Art. 2(4)), except in the case of self-defence (Art. 51). The Court's Opinion highlights the importance of these articles, with far-reaching implications which this Opinion has addressed at the very outset (see “Preliminary Observations”). There is a firm commitment in Article 2(3) that all members shall settle their international disputes by peaceful means, in such manner that international peace and security, and justice, are not endangered. This totally altered stance regarding the normalcy and legitimacy of war has undoubtedly heightened the “dictates of public conscience” in our time. Charter provisions bearing on human rights, such as Articles 1, 55, 62 and 76, coupled with the Universal Declaration of 1948, the twin Covenants on Civil and Political Rights and Economic, Social and Cultural Rights of 1966, and the numerous specific conventions formulating human rights standards, such as the Convention against Torture – all of these, now part of the public conscience of the global community, make the violation of humanitarian standards a far more developed and definite concept than in the days when the Martens clause emerged. Indeed, so well are human rights norms and standards ingrained today in global consciousness, that they flood through into every corner of humanitarian law. Submissions on these lines were made to the Court (for example, by Australia, CR 95/22, p. 25) in presentations which drew attention further to the fact that the General Assembly has noted the linkage between human rights and nuclear weapons when it condemned nuclear war “as a violation of the foremost human right – the right to life.”102 Parallel to the developments in human rights, there has been another vast area of development – environmental law, which has likewise heightened the sensitivity of the public conscience to environmentally related matters which affect human rights. As observed by the International Law Commission in its consideration of state responsibility, conduct gravely endangering the preservation of the human environment violates principles “which are now so deeply rooted in the conscience

102

General Assembly Resolution. 38/75 of 15 December 1983 (“Condemnation of nuclear war”), operative paragraph 1.

480

Universalising International Law

of mankind that they have become particularly essential rules of general international law.”103 7.

The argument that “collateral damage” is unintended

It is not to the point that such results are not directly intended, but are “byproducts” or “collateral damage” caused by nuclear weapons. Such results are known to be the necessary consequences of the use of the weapon. The author of the act causing these consequences cannot in any coherent legal system avoid legal responsibility for causing them, any less than a man careering in a motor vehicle at a hundred and fifty kilometres per hour through a crowded market street can avoid responsibility for the resulting deaths on the ground that he did not intend to kill the particular persons who died. The plethora of literature on the consequences of the nuclear weapon is so much part of common universal knowledge today that no disclaimer of such knowledge would be credible. 8.

Illegality exists independently of specific prohibitions

Much of the argument of States opposing illegality was based on the proposition that what is not expressly prohibited to a State is permitted. Some practical illustrations would be of assistance in testing this proposition. (a) If tomorrow a ray were invented which would immediately incinerate all living things within a radius of 100 miles, does one need to wait for an international treaty specifically banning it to declare that it offends the basic principles of the ius in bello and cannot therefore be legitimately used in war? It would seem rather ridiculous to have to await the convening of an international conference, the drafting of a treaty, and all the delays associated with the process of ratification, before the law can treat such a weapon as illegal. (b) The fallacy of the argument that what is not expressly prohibited is permitted appears further from an illustration used earlier in this Opinion. The argument advanced would presuppose that, immediately prior to the treaties outlawing bacteriological weapons, it was legal to use warheads packed with the most deadly germs wherewith to cause lethal epidemics among the enemy population. This conclusion strains credibility and is tenable only if one totally discounts the preexisting principles of humanitarian law. The fact that no treaty or declaration expressly condemns the weapon as illegal does not meet the point that illegality is based upon principles of customary international law which run far deeper than any particular weapon or any particular declaration. Every weapon proscribed by international law for its cruelty or bru103

Report of the International Law Commission on the work of its twenty-eighth session, Yearbook of the International Law Commission, 1976, Vol. II, Part II, p. 109, para 33.

Nuclear Weapons Law

481

tality does not need to be specified any more than every implement of torture needs to be specified in a general prohibition against torture. It is the principle that is the subject of customary international law. The particular weapon or implement of torture becomes relevant only as an application of undisputed principles - principles which have been more than once described as being such that no civilized nation would deny them. It will always be the case that weapons technologists will from time to time invent weapons based on new applications of technology, which are different from any weapons known before. One does not need to wait until some treaty specifically condemns that weapon before declaring that its use is contrary to the principles of international law. If, as is indisputably the case, the Martens clause represents a universally accepted principle of international law, it means that beyond the domain of express prohibitions, there lies the domain of the general principles of humanitarian law. It follows that “If an act of war is not expressly prohibited by international agreements by customary law, this does not necessarily mean that it is actually permissible”.104 It is self-evident that no system of law can depend for its operation or development on specific prohibitions ipsissimis verbis. Any developed system of law has, in addition to its specific commands and prohibitions, an array of general principles which from time to time are applied to specific items of conduct or events which have not been the subject of an express ruling before. The general principle is then applied to the specific situation and out of that particular application a rule of greater specificity emerges. A legal system based on the theory that what is not expressly prohibited is permitted would be a primitive system indeed, and international law has progressed far beyond this stage. Even if domestic systems could function on that basis – which indeed is doubtful – international law, born of generations of philosophical thinking, cannot. Modern legal philosophy in many jurisdictions has exposed the untenability of this view in regard to domestic systems and, a fortiori, the same applies to international law. As a well-known text on jurisprudence observes: “The rules of every legal order have an enveloping blanket of principles and doctrines as the earth is surrounded by air, and these not only influence the operation of rules but sometimes condition their very existence.”105 More to the point than the question whether any treaty speaks of the illegality of nuclear weapons is whether any single provision of any treaty or 104 105

D. Fleck, op. cit., p. 28, basing this principle on the Martens clause. Dias, Jurisprudence, Butterworths, 4th ed.,1976, p. 287.

482

Universalising International Law

declaration speaks of the legality of nuclear weapons. The fact is that, though there is a profusion of international documents dealing with many aspects of nuclear weapons, not one of these contains the shred of a suggestion that the use or threat of use of nuclear weapons is legal. By way of contrast, the number of international declarations which expressly pronounce against the legality or the use of nuclear weapons is legion. These are referred to elsewhere in this Opinion. The general principles provide both nourishment for the development of the law and an anchorage to the mores of the community. If they are to be discarded in the manner contended for, international law would be cast adrift from its conceptual moorings. “The general principles of law recognised by civilised nations” remains law, even though indiscriminate mass slaughter through the nuclear weapon, irreversible damage to future generations through the nuclear weapon, environmental devastation through the nuclear weapon, and irreparable damage to neutral states through the nuclear weapon are not expressly prohibited in international treaties. If the italicized words are deleted from the previous sentence, no one could deny that the acts mentioned therein are prohibited by international law. It seems specious to argue that the principle of prohibition is defeated by the absence of particularization of the weapon. The doctrine that the sovereign is free to do whatever statute does not expressly prohibit is a long-exploded doctrine. Such extreme positivism in legal doctrine has led humanity to some of its worst excesses. History has demonstrated that power, unrestrained by principle, becomes power abused. Black-letter formulations have their value, but by no stretch of the imagination can they represent the totality of the law. With specific reference to the laws of war, it would also set at nought the words of the Martens clause, whose express terms are that, “Until a more complete code of the laws of war has been issued, the High contracting Parties ... declare that, in cases not included in the Regulations adopted by them ...” (emphasis added), the humanitarian principles it sets out would apply. Thus, by express agreement, if that indeed were necessary, the wide range of principles of humanitarian law contained within customary international law would be applicable to govern this matter, for which no specific provision has yet been made by treaty. 9.

The “Lotus” decision

Much of the argument based on the absence of specific illegality was anchored to the “Lotus” decision. In that case, the Permanent Court addressed its inquiry to the question: “whether or not under international law there is a principle which would have prohibited Turkey, in the circumstances of the case before the

Nuclear Weapons Law

483

Court, from prosecuting Lieutenant Demons” (P.C.I.J., Series A, No. 10, p. 21). In the absence of such a principle or of a specific rule to which it had expressly consented, it was held that the authority of a State could not be limited. Indeed, even within the terms of the “Lotus” case, these principles become applicable, for, in relation to the laws of war, there is the express acceptance by the nuclear powers that the humanitarian principles of the laws of war should apply. Apart from the nuclear powers, some other powers who have opposed a finding of illegality before this Court (or not adopted a clear-cut position in regard to the present Request), were also parties to the Hague Convention, e.g., Germany, The Netherlands, Italy and Japan. The “Lotus” case was decided in the context of a collision on the high seas, in time of peace, between the Lotus, flying the French flag and a vessel flying the Turkish flag. Eight Turkish sailors and passengers died and the French officer responsible was sought to be tried for manslaughter in the Turkish courts. This was a situation far removed from that to which the humanitarian laws of war apply. Such humanitarian law was already a well established concept at the time of the “Lotus” decision, but was not relevant to it. It would have been furthest from the mind of the Court deciding that case that its dictum, given in such entirely different circumstances, would be used in an attempt to negative all that the humanitarian laws of war had built up until that time - for the interpretation now sought to be given to the “Lotus” case is nothing less than that it overrides even such wellentrenched principles as the Martens clause, which expressly provides that its humanitarian principles would apply “in cases not included in the Regulations adopted by them”. Moreover, at that time, international law was generally treated in two separate categories – the laws of peace and the laws of war - a distinction well recognized in the structure of the legal texts of that time. The principle the “Lotus” court was enunciating was formulated entirely within the context of the laws of peace. It is implicit in “Lotus” that the sovereignty of other States should be respected. One of the characteristics of nuclear weapons is that they violate the sovereignty of other countries who have in no way consented to the intrusion upon their fundamental sovereign rights, which is implicit in the use of the nuclear weapon. It would be an interpretation totally out of context that the “Lotus” decision formulated a theory, equally applicable in peace and war, to the effect that a State could do whatever it pleased so long as it had not bound itself to the contrary. Such an interpretation of “Lotus” would cast a baneful spell on the progressive development of international law. It is to be noted also that just four years earlier, the Permanent Court, in dealing with the question of state sovereignty, had observed in Nationality Decrees

484

Universalising International Law

Issued in Tunisia and Morocco (Advisory Opinion, P.C.I.J., Series B, No. 4, (pp. 121-125, p. 127, p. 130) 1923 that the sovereignty of states would be proportionately diminished and restricted as international law developed. In the half century that has elapsed since the “Lotus”case, it is quite evident that international law – and the law relating to humanitarian conduct in war – have developed considerably, imposing additional restrictions on state sovereignty over and above those that existed at the time of the “Lotus” case. This Court’s own jurisprudence in the Corfu Channel case sees customary international law as imposing a duty on all States so to conduct their affairs as not to injure others, even though there was no prohibition ipsissimis verbis of the particular act which constituted a violation of the complaining nation's rights. This Court cannot in 1996 construe “Lotus” so narrowly as to take the law backward in time even beyond the Martens clause. 10.

Specific Rules of the Humanitarian Law of War

There are several interlacing principles which together constitute the fabric of international humanitarian law. Humanitarian law reveals not a paucity, but rather an abundance of rules which both individually and cumulatively render the use or threat of use of nuclear weapons illegal. The rules of the humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect. In the words of Roberto Ago, the rules of jus cogens include: “the fundamental rules concerning the safeguarding of peace, and notably those which forbid recourse to force or threat of force; funda mental rules of a humanitarian nature (prohibition of genocide, slavery and racial discrimination, protection of essential rights of the human person in time of peace and war); the rules prohibiting any infringement of the independence and sovereign equality of States; the rules which ensure to all members of the international community the enjoyment of certain common resources (high seas, outer space, etc.).”106 The question under consideration is not whether there is a prohibition in peremptory terms of nuclear weapons specifically so mentioned, but whether there are basic principles of a jus cogens nature which are violated by nuclear weapons. If there are such principles which are of a jus cogens nature, then it would follow that the weapon itself would be prohibited under the jus cogens concept. 106

(1971-III) Recueil des cours de l’Academie de droit international de la Haye, Vol. 134 (1971), p. 324, footnote. 37; (emphasis added). See, also, the detailed study of various peremptory norms in the international law of armed conflict, in Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, 1988, pp. 596-715, where the author finds that many of the principles of the humanitarian law of war are jus cogens.

Nuclear Weapons Law

485

As noted at the commencement of Part III, most of the States which support the view that the use of nuclear weapons is lawful acknowledge that international humanitarian law applies to their use, and that such use must conform to its principles. Among the more important of the relevant principles of international law are: (a) the prohibition against causing unnecessary suffering; (b) the principle of proportionality; (c) the principle of discrimination between combatants and non-combatants; (d) the obligation to respect the territorial sovereignty of non-belligerent states; (e) the prohibition against genocide and crimes against humanity; (f) the prohibition against causing lasting and severe damage to the environment (g) human rights law (a)

The prohibition against causing unnecessary suffering

The Martens clause, to which reference has already been made, gave classic formulation to this principle in modern law, when it spelt out the impermissibility of weapons incompatible with “the laws of humanity and the dictates of public conscience.” The prohibition against cruel and unnecessary suffering, long a part of the general principles of humanitarian law, has been embodied in such a large number of codes, declarations, and treaties as to constitute a firm and substantial body of law, each document applying the general principles to a specific situation or situations.107 They illustrate the existence of overarching general principles transcending the specific instances dealt with. The principle against unnecessary suffering has moreover been incorporated into standard military manuals. Thus the British Manual of Military Law, issued by the War Office in 1916, and used in World War I, reads: “IV The Means of Carrying on War 39. The first principle of war is that the enemy’s powers of resistance must be weakened and destroyed. The means that may be employed to inflict injury on him are not however unlimited (footnote cites Hague Rules 22, ‘Belligerents have not an unlimited right as to the choice of means of injuring the enemy’). They are in practice definitely restricted 107

Examples are the Lieber Code of 1863 (adopted by the United States for the Government of Armies in the Field); the Declaration of St. Petersburg of 1868, the Hague Conventions of 1899 and 1907; the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare of 1925; the Hague Rules of Air Warfare of 1923; the Nuremberg Charter of 1945; and the four Geneva Conventions of 1949.

486

Universalising International Law

by international conventions and declarations, and also by the customary rules of warfare. And, moreover, there are the dictates of morality, civilization and chivalry, which ought to be obeyed. ..................... 42. It is expressly forbidden to employ arms, projectiles or material calculated to cause unnecessary suffering [Hague Rules 23(e)]. Under this heading might be included such weapons as lances with a barbed head, irregularly shaped bullets, projectiles filled with broken glass and the like; also the scoring of the surface of bullets, the filing off the end of their hard case, and smearing on them any substance likely to inflame or wound. The prohibition is not, however, intended to apply to the use of explosives contained in mines, aerial torpedoes, or hand-grenades.” (pp. 242-243.) Such was the Manual the British forces used in World War I, long before the principles of humanitarian warfare were as well entrenched as they now are.108 As early as 1862, Franz Lieber accepted the position that even military necessity is subject to the law and usages of war, and this was incorporated in the instructions for the army.109 Modern United States War Department Field Manuals are in strict conformity with the Hague Regulations and expressly subject military necessity to “the customary and conventional laws of war.”110 The facts set out in Part II of this Opinion are more than sufficient to establish that the nuclear weapon causes unnecessary suffering going far beyond the purposes of war. An argument that has been advanced in regard to the principle regarding “unnecessary suffering” is that, under Article 23(e) of the 1907 Hague Regulations, it is forbidden, “to employ arms, projectiles, or material calculated to cause unnecessary suffering”(emphasis added). The nuclear weapon, it is said, is not calculated to cause suffering, but suffering is rather a part of the “incidental side effects” of nuclear weapons explosions. This argument is met by the well-known legal principle that the doer of an act must be taken to have intended its natural and foreseeable consequences (see section III.7, above) It is, moreover, a literal interpretation which does not take into account the spirit and underlying rationale of the provision – a method of interpretation particularly inappropriate to the construction of a humanitarian instrument. It may also be said that nuclear weapons are indeed deployed “in part with a view to utilising the destructive effects of radiation and fallout”111. 108 109 110 111

On the importance of validity of military manuals, see Singh & McWhinney op. cit., pp. 5253. General Orders 100, Instructions for the Government of the Armies of the United States in the Field, s. 14. Singh & McWhinney. op. cit., p. 59. Ian Brownlie, “Some Legal Aspects of the Use of Nuclear Weapons”, International and Comparative Law Quarterly, 1965, vol. 14, p. 445.

Nuclear Weapons Law

487

(b) The principle of proportionality Refer 1996 (1) I.C.J. pp. 514-516. (c) The principle of discrimination The principle of discrimination originated in the concern that weapons of war should not be used indiscriminately against military targets and civilians alike. Non-combatants needed the protection of the laws of war. However, the nuclear weapon is such that non-discrimination is built into its very nature. A weapon that can flatten a city and achieve by itself the destruction caused by thousands of individual bombs, is not a weapon that discriminates. The radiation it releases over immense areas does not discriminate between combatant and non-combatant, or indeed between combatant and neutral states. Article 48 of the Additional Protocol 1 to the Geneva Conventions of 1949 repeats as a “Basic Rule” the well-accepted rule of humanitarian law: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” (Emphasis added.) The rule of discrimination between civilian populations and military personnel is, like some of the other rules of jus in bello, of ancient vintage and shared by many cultures. We have referred already to the ancient Indian practice that Indian peasants would pursue their work in the fields, in the face of invading armies, confident of the protection afforded them by the tradition that war was a matter for the combatants.112 This scenario, idyllic though it may seem, and so out of tune with the brutalities of war, is a useful reminder that basic humanitarian principles such as discrimination do not aim at fresh standards unknown before. The protection of the civilian population in times of armed conflict has for long been a well established rule of international humanitarian law. Additional Protocol I to the Geneva Conventions (1949) provides by Article 51(5(b)) that the “indiscriminate attacks” which it prohibits include: “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. So, also, Article 57(2)(b) prohibits attacks when: “the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. 112

Nagendra Singh, op.cit., footnote. 67, above.

488

Universalising International Law

The many facets of this rule were addressed in the resolution of the International Law Institute, passed at its Edinburgh Conference in 1969,113 which referred to them as prohibited by existing law as at that date. The acts described as prohibited by existing law included the following: “all attacks for whatsoever motive or by whatsoever means for the annihilation of any group, region or urban centre with no possible distinction between armed forces and civilian populations or between military objectives and non-military objects.” 114 “any action whatsoever designed to terrorize the civilian population”115 (para. 6). “the use of all weapons which, by their nature, affect indiscriminately both military objectives and non-military objects, or both armed forces and civilian populations. In particular, it prohibits the use of weapons the destructive effect of which is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable ..., as well as of 'blind' weapons.” (para. 7.) (d)

Respect for non-belligerent states

When nuclear weapons are used their natural and foreseeable consequence of irreparable damage to non-belligerent third parties is a necessary consideration to be taken into reckoning in deciding the permissibility of the weapon. It is not merely a single non-belligerent state that might be irretrievably damaged, but the entire global community of states. The uncontainability of radiation extends it globally. The enormous area of damage caused by nuclear weapons, as compared with the most powerful conventional weapons, appears from the diagram appended to this Opinion, which is taken from WHO studies. When wind currents scatter these effects further, it is well established by the TTAPS and other studies that explosions in one hemisphere can spread their deleterious effects even to the other hemisphere. No portion of the globe – and therefore no country – could be free of these effects. The argument of lack of intention has been addressed in this context as well. In terms of this argument, an action directed at an enemy State is not intended to cause damage to a third party, and if such damage in fact ensues, it is not culpable. This argument has already been dealt with in an earlier section of this Opinion, when it was pointed out that such an argument is untenable (see section III.7). The launching of a nuclear weapon is a deliberate act. Damage to neutrals is a natural, foreseeable and, indeed, inevitable consequence. International law cannot contain 113 114 115

On the eminent juristic support for this proposition, see Section III.11 below. Annuaire de l’Institut de droit international, 1969, No. 53, Vol. II, p. 377, para. 8, Iran , CR 95/26, p.47, footnote. 45. Annuaire de l’Institut de droit international, 1969, No. 53, Vol; II, p. 377, para. 6.

Nuclear Weapons Law

489

a rule of non-responsibility which is so opposed to the basic principles of universal jurisprudence. (e)

The prohibition against genocide115

The Court's treatment of the relevance of genocide to the nuclear weapon is, in my view, inadequate (para. 26 of the Opinion). Nuclear weapons used in response to a nuclear attack, especially in the event of an all-out nuclear response, would be likely to cause genocide by triggering off an all-out nuclear exchange, as visualized in Section IV (below.). Even a single “small” nuclear weapon, such as those used in Japan, could be an instrument of genocide, judging from the number of deaths they are known to have caused. If cities are targeted, a single bomb could cause a death toll exceeding a million. If the retaliatory weapons are more numerous, on WHO's estimates of the effects of nuclear war, even a billion people, both of the attacking state and of others, could be killed. This is plainly genocide and, whatever the circumstances, cannot be within the law. When a nuclear weapon is used, those using it must know that it will have the effect of causing deaths on a scale so massive as to wipe out entire populations. Genocide, as defined in the Genocide Convention (Art. II), means any act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. Acts included in the definition are killing members of the group, causing serious bodily or mental harm to members of the group, and deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part. In discussions on the definition of genocide in the Genocide Convention, much play is made upon the words “as such”. The argument offered is that there must be an intention to target a particular national, ethnical, racial or religious group qua such group, and not incidentally to some other act. However, having regard to the ability of nuclear weapons to wipe out blocks of population ranging from hundreds of thousands to millions, there can be no doubt that these weapons target, in whole or in part, the national group of the State at which it is directed. Nuremberg held that the extermination of the civilian population in whole or in part is a crime against humanity. This is precisely what a nuclear weapon achieves. (f)

The prohibition against environmental damage

The environment, the common habitat of all member states of the United Nations, cannot be damaged by any one or more members to the detriment of all others. Reference has already been made, in the context of dictates of public con115

See, further, section III.10 (g) below on Human rights law.

490

Universalising International Law

science (section III.6, above), to the fact that the principles of environmental protection have become “so deeply rooted in the conscience of mankind that they have become particularly essential rules of general international law.”116 The International Law Commission has indeed classified massive pollution of the atmosphere or of the seas as an international crime.117 These aspects have been referred to earlier. Environmental law incorporates a number of principles which are violated by nuclear weapons. The principle of intergenerational equity and the common heritage principle have already been discussed. Other principles of environmental law, which this Request enables the Court to recognize and use in reaching its conclusions, are the precautionary principle, the principle of trusteeship of earth resources, the principle that the burden of proving safety lies upon the author of the act complained of, and the “polluter pays principle”, placing on the author of environmental damage the burden of making adequate reparation to those affected.118 There have been juristic efforts in recent times to formulate what have been described as “principles of ecological security” – a process of norm creation and codification of environmental law which has developed under the stress of the need to protect human civilization from the threat of self-destruction. One writer,119 in listing eleven such principles, includes among them the “Prohibition of Ecological Aggression,” deriving this principle inter alia from such documents as the 1977 Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques which entered into force on 5 October 1978 (1108 UNTS, p. 151), and the United Nations General Assembly resolution “Historical responsibility of States for the preservation of nature for present and future generations” (GA Res. 35/8 of 30 October 1980). The same writer points out that, “Under Soviet (now Russian) legal doctrine, the deliberate and hostile modification of the environment – ecocide – is unlawful and considered an international crime.”120 Another writer, drawing attention to the need for a co-ordinated, collective response to the global environmental crisis and the difficulty of envisioning such a response, observes: 116 117 118

119 120

Report of the International Law Commission on the work of its 28th Session, Yearbook of the International Law Commission, 1976, Vol. II, Part II, p. 109, para. 33. Draft Article 19(3)(d) on “State Responsibility” of the International Law Commission, ibid., p. 96. See the references to these principles in my Dissenting Opinion in Request for an Examination of the Situation in accordance with Paragraph 63 of the Court’s Judgement of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports, 1995, pp. 339, 347. A. Timoshenko, “Ecological Security: Global Change Paradigm”, Columbia Journal of International Environmental Law and Policy, 1990, Vol, 1, p. 127. Timoshenko, op.cit.

Nuclear Weapons Law

491

“But circumstances are forcing just such a response; if we cannot embrace the preservation of the earth as our new organizing principle, the very survival of our civilization will be in doubt.”121 Here, forcefully stated, is the driving force behind today's environmental law – the “new organizing principle” of preservation of the earth, without which all civilization is in jeopardy. A means already at work for achieving such a co-ordinated collective response is international environmental law, and it is not to be wondered at that these basic principles ensuring the survival of civilization, and indeed of the human species, are already an integral part of that law. The same matter is put in another perspective in an outstanding study, already referred to: “The self-extinction of our species is not an act that anyone describes as sane or sensible; nevertheless, it is an act that, without quite admitting it to ourselves, we plan in certain circumstances to commit. Being impossible as a fully intentional act, unless the perpetrator has lost his mind, it can come about only through a kind of inadvertence - as a ‘side effect’ of some action that we do intend, such as the defense of our nation, or the defense of liberty, or the defense of socialism, or the defense of whatever else we happen to believe in. To that extent, our failure to acknowledge the magnitude and significance of the peril is a necessary condition for doing the deed. We can do it only if we don’t quite know what we’re doing. If we did acknowledge the full dimensions of the peril, admitting clearly and without reservation that any use of nuclear arms is likely to touch off a holocaust in which the continuance of all human life would be put at risk, extinction would at that moment become not only ‘unthinkable’ but also undoable.”122 These principles of environmental law thus do not depend for their validity on treaty provisions. They are part of customary international law. They are part of the sine qua non for human survival. Practical recognitions of the principle that they are an integral part of customary international law are not difficult to find in the international arena. Thus, for example, the Security Council, in Resolution 687 of 1991, referred to Iraq's liability “under international law ... for environmental damage” resulting from the unlawful invasion of Kuwait. This was not a liability arising under treaty, for Iraq was not a party to either the 1977 ENMOD Convention, nor the 1977 Protocols, 121

122

A. Gore, Earth in the Balance: Ecology and the Human Spirit, 1992, p. 295, cited in Guruswamy, Palmer and Weston, International Environmental Law and World Order, 1994, p. 264. Jonathan Schell, The Fate of the Earth, 1982, p. 186.

492

Universalising International Law

nor any other specific treaty dealing expressly with the matter. Iraq's liability to which the Security Council referred in such unequivocal terms was clearly a liability arising under customary international law.123 Nor are these principles confined to either peace or war, but cover both situations, for they proceed from general duties, applicable alike in peace and war.124 The basic principle in this regard is spelt out by Article 35(3) of the 1977 Additional Protocol I to the Geneva Convention in terms prohibiting: “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Article 55 prohibits: “the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. The question is not whether nuclear weapons were or were not intended to be covered by these formulations. It is sufficient to read them as stating undisputed principles of customary international law. To consider that these general principles are not explicit enough to cover nuclear weapons, or that nuclear weapons were designedly left unmentioned and are therefore not covered, or even that there was a clear understanding that these provisions were not intended to cover nuclear weapons, is to emphasize the incongruity of prohibiting lesser weapons of environmental damage, while leaving intact the infinitely greater agency of causing the very damage which it was the rationale of the treaty to prevent. If there are general duties arising under customary international law, it clearly matters not that the various environmental agreements do not specifically refer to damage by nuclear weapons. The same principles apply whether we deal with belching furnaces, leaking reactors or explosive weapons. The mere circumstance that coal furnaces or reactors are not specifically mentioned in environmental treaties cannot lead to the conclusion that they are exempt from the incontrovertible and well established standards and principles laid down therein. Another approach to the applicability of environmental law to the matter before the Court is through the principle of good neighbourliness, which is both impliedly and expressly written into the United Nations Charter. This principle is one of the bases of modern international law, which has seen the demise of the principle that sovereign states could pursue their own interests in splendid isolation 123 124

A submission to this effect was made by the Solomon Islands in the hearings before the Court, CR 95/32, Sands, p. 71. See, for example, the phraseology of Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, referring to the duties of States to prevent damage to the environment of other States.

Nuclear Weapons Law

493

from each other. A world order in which every sovereign state depends on the same global environment generates a mutual interdependence which can only be implemented by co-operation and good neighbourliness. The United Nations Charter spells this out as “the general principle of goodneighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters” (Art. 74). A course of action that can destroy the global environment will take to its destruction not only the environment, but the social, economic and commercial interests that cannot exist apart from that environment. The Charter’s express recognition of such a general duty of good neighbourliness makes this an essential part of international law. This Court, from the very commencement of its jurisprudence, has supported this principle by spelling out the duty of every State not to “allow knowingly its territory to be used for acts contrary to the rights of other States” (Corfu Channel, I.C.J. Reports 1949, p. 22). The question of State responsibility in regard to the environment is dealt with more specifically in my Dissenting Opinion on the WHO request (ICJ Reports, 1996, pp. 139-143), and that discussion must be regarded as supplementary to the discussion of environmental considerations in this Opinion. As therein pointed out, damage to the environment caused by nuclear weapons is a breach of State obligation, and this adds another dimension to the illegality of the use or threat of use of nuclear weapons. (g)

Human rights law125

This Opinion has dealt in Section III.3 with the ways in which the development of human rights in the post-war years has made an impact on “considerations of humanity and dictates of public conscience.” Concentrating attention more specifically on the rights spelt out in the Universal Declaration of Human Rights, it is possible to identify the right to dignity (Preamble and Art. 1), the right to life, the right to bodily security (Art. 3), the right to medical care (Art. 25(1)), the right to marriage and procreation (Art. 16(1)), the protection of motherhood and childhood (Art. 25(2)), and the right to cultural life (Art. 27(1)), as basic human rights which are endangered by nuclear weapons. It is part of established human law doctrine that certain rights are non-derogable in any circumstances. The right to life is one of them. It is one of the rights which constitute the irreducible core of human rights. The preamble to the Declaration speaks of recognition of the inherent dignity of all members of the human family as the foundation of freedom, justice and peace in the world. Article 1 follows this up with the specific averment that “All human beings are born free and equal in dignity and rights.” Article 6 states that 125

See, also Section III. 6, below.

494

Universalising International Law

everyone has the right to recognition everywhere as a person before the law. The International Covenant on Civil and Political Rights made this right more explicit and imposed on States the affirmative obligation of protecting it by law. Article 6(i) states, “Every human being has the inherent right to life. This right shall be protected by law”. States parties to the Covenant expressly assumed the responsibility to implement the provisions of the Covenant. The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, Art. 2) and the American Convention of Human Rights (1969, Art. 4) likewise confirm the right to life. It is one of the non-derogable rights and an integral part of the irreducible core of human rights. It has been argued that the right to life is not an absolute right and that the taking of life in armed hostilities is a necessary exception to this principle. However, when a weapon has the potential to kill between one million and one billion people, as WHO has told the Court, human life becomes reduced to a level of worthlessness that totally belies human dignity as understood in any culture. Such a deliberate action by any State is, in any circumstances whatsoever, incompatible with a recognition by it of that respect for basic human dignity on which world peace depends, and respect for which is assumed on the part of all member States of the United Nations. This is not merely a provision of the Universal Declaration of Human Rights and other human rights instruments, but is fundamental Charter law as enshrined in the very Preamble to the United Nations Charter, for one of the ends to which the United Nations is dedicated is “to reaffirm faith in fundamental human rights, in the dignity and worth of the human person” (emphasis added). No weapon ever invented in the long history of man's inhumanity to man has so negatived the dignity and worth of the human person as has the nuclear bomb. Reference should also be made to the General Comment of the United Nations Human Rights Committee entitled “The Right to Life and Nuclear Weapons”126 which endorsed the view of the General Assembly that the right to life is especially pertinent to nuclear weapons.127 Stating that nuclear weapons are among the greatest threats to life and the right to life, it carried its view of the conflict between nuclear weapons and international law so far as to propose that their use should be recognized as crimes against humanity. All of these human rights follow from one central right – a right described by René Cassin as “the right of human beings to exist” (CR 95/32, p. 64, and see fn. 20). This is the foundation of the elaborate structure of human rights that has been painstakingly built by the world community in the post-war years. 126 127

Gen. C 14/23, reproduced in M. Nowak, United Nations Covenant on Civil and Political Rights, 1983, p. 861. General Assembly Resolution. 38/75, “Condemnation of Nuclear War”, first operative paragraph.

Nuclear Weapons Law

495

Any endorsement of the legality of the use, in any circumstances whatsoever, of a weapon which can snuff out life by the millions would tear out the foundations beneath this elaborate structure which represents one of the greatest juristic achievements of this century. That structure, built upon one of the noblest and most essential concepts known to the law, cannot theoretically be maintained if international law allows this right to any State. It could well be written off the books. 11. Juristic Opinion It would be correct to say that the bulk of juristic opinion is of the view that nuclear weapons offend existing principles of humanitarian law. Juristic opinion is an important source of international law and there is no room in this opinion for a citation of all the authorities. It would suffice, for present purposes, to refer to a resolution already noted in an earlier part of this discussion - the resolution adopted by the Institute of International Law in 1969, at its Edinburgh Session, at a time when juristic writing on nuclear arms had not reached its present level of intensity and was in fact quite scarce. The finding of the Institute, already cited (see section III.10(b), above.), that existing international law prohibits, in particular, the use of weapons whose destructive effect “is so great that it cannot be limited to specific military objectives or is otherwise uncontrollable ..., as well as of 'blind' weapons,”128 was adopted by 60 votes, with one against and two abstentions. Those voting in favour included Charles De Visscher, Lord McNair, Roberto Ago, Suzanne Bastid, Erik Castrén, Sir Gerald Fitzmaurice, Wilfred Jenks, Sir Robert Jennings, Charles Rousseau, Grigory Tunkin, Sir Humphrey Waldock, José Maria Ruda, Oscar Schachter and Kotaro Tanaka., to select a few from an illustrious list of the most eminent international lawyers of the time. 12. The 1925 Geneva Gas Protocol Quite independently of the various general principles that have been invoked in the discussion thus far, there is a conventional basis on which it has been argued that nuclear weapons are illegal. It is for this reason that I have voted against paragraph 2B of the dispositif which holds that there is not, in conventional international law, a comprehensive and universal prohibition of the threat or use of nuclear weapons as such. I refer, in particular, to the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare, June 17, 1925 (commonly referred to as the Geneva Gas Protocol). It is so comprehensive in its prohibition that, in my view, it clearly covers nuclear weapons, which thus become the subject of conventional prohibition. There is con-

128

(1969) 53 Annuaire de l’IDI, Vol. II, p. 377, para.7.

496

Universalising International Law

siderable scholarly opinion favouring this view.129 Moreover, if radiation is a poison, it is caught up also by the prohibition on poison weapons contained in Article 23(a) of the Hague Regulations. The rule against poisonous weapons has indeed been described as “The most time-honoured special prohibition on the subject of weapons and instruments of war.”130 It is a rule recognized from the remotest historical periods and in a wide spread of cultures. The Geneva Gas Protocol was drafted in very wide terms. It prohibits “the use in war of asphyxiating, poisonous, or other gases and of all analogous liquids, materials or devices” (emphasis added). If this Protocol is to be applicable to nuclear weapons, it must be shown: (1) that radiation is poisonous; and (2) that it involves the contact of materials with the human body. If both these questions are answered in the affirmative, the damage to the human body caused by radiation would be covered by the terms of the Protocol. (i)

Is radiation poisonous?

Poison is generally defined as a substance which, of its own force, damages health on contact with or absorption by the body.131 The discussion of the effects of radiation in Section II.3 (e) above can leave one in no doubt that the effects of radiation are that it destroys life or damages the functions of the organs and tissues. Schwarzenberger points out that, if introduced into the body in sufficiently large doses, radiation produces symptoms indistinguishable from poisoning.132 129

130 131

132

See Burns H. Weston, op. cit., p. 241; E. Castrén, The Present Law of War and Neutrality, 1954, p. 207; G. Schwarzenberger, The Legality of Nuclear Weapons, 1958, pp. 37-38; N. Singh, Nuclear Weapons and International Law, 1959, pp. 162-166; Falk. Meyrowitz and Sanderson, “Nuclear Weapons and International Law”, Indian Journal of International Law, 1980, Vol. 20, p. 563; Julius Stone, Legal Controls of International Conflict, 1954, p. 556; Spaight, Air Power and War Rights, 3rd ed., 1947, pp. 275-276; H. Lauterpacht (ed.) in Oppenheim’s International Law, Vol. 2, 7th ed., 1952, p. 348. Singh & McWhinney, op. cit. p. 120. The McGraw-Hill Dictionary of Scientific and Technical Terms defines poison as “A substance that in relatively small doses has an action that either destroys life or impairs seriously the functions of organs and tissues.” (2nd ed., 1978, p. 1237.) The definition of poison in the Oxford English Dictionary is that poison is: “Any substance which, when introduced to or absorbed by a living organism, destroys life or injures health, irrespective of mechanical means or direct thermal changes. Particularly applied to a substance capable of destroying life by rapid action, and when taken in a small quantity. Fig. phr. to hate like poison. But the more scientific use is recognized in the phrase slow poison indicating the accumulative effect of a deleterious drug or agent taken for a length of time.” (Vol. XII, p. 2, 1989 ed.) The Legality of Nuclear Weapons, 1958, p. 35. He remarks very severely that they “inflict death or serious damage to health in, as Gentili would have put it, a manner more befitting demons than civilised human beings.” The reference is to Gentili’s observation that, though war is struggle between men,the use of such means as poison makes it “a struggle of demons” (De Jure Belli Libri Tres (1612)), Book II, Ch. VI, p.161, trans. J.C. Rolfe.

Nuclear Weapons Law

497

Once it is established that radioactive radiation is a poison, it is also covered by the prohibition on poison weapons contained in the Hague Regulations already referred to. It poisons, indeed in a more insidious way than poison gas, for its effects include the transmission of genetic disorders for generations. The NATO countries have themselves accepted that poisoning is an effect of nuclear weapons, for Annex II to the Protocol on Arms Control of the Paris Agreements of 23 October 1954, on the accession of the Republic of Germany to the North Atlantic Treaty, defines a nuclear weapon as any weapon: “designed to contain or utilise, nuclear fuel or radioactive isotopes and which, by explosion or other uncontrolled nuclear transformation ... is capable of mass destruction, mass injury or mass poisoning” (Emphasis added). (ii) Does radiation involve contact of the body with “materials”? The definitions of poison speak of it in terms of its being a “substance”. The Geneva Gas Protocol speaks of “materials” which are poisonous. It is necessary therefore to know whether radiation is a “substance” or a “material”, or merely a ray such as a light ray which, when it impinges on any object, does not necessarily bring a substance or material in contact with that object. If it is the former, it would satisfy the requirements of the Geneva Gas Protocol. The definition of “radioactive” in the Shorter Oxford Dictionary is as follows: “Capable (as radium) of emitting spontaneously rays consisting of material parti cles travelling at high velocities.”133 Scientific discussions134 draw a distinction between the spectrum of electromagnetic radiations that have zero mass when (theoretically) at rest, such as radio waves, microwaves, infra-red rays, visible light, ultraviolet rays, x-rays, and gamma rays, and the type of radiation that includes such particles as electrons, protons and neutrons which have mass. When such forms of particulate matter travel at high velocities, they are regarded as radiation. The ionizing radiation caused by nuclear weapons is of the latter kind. It consists inter alia of a stream of particles135 coming into contact with the human body and causing damage to tissues. In other words, it is a material substance that causes damage to the body and cannot fall outside the prohibition of poisonous weapons prohibited by the Geneva Gas Protocol. The question whether radiation is a “material” seems thus beyond doubt. In the words of Schwarzenberger: 133 134 135

3rd ed., 1987, Vol. II, p. 1738, emphasis added. See Encyclopedia Britannica Macropaedia, Vol. 26, pp. 471 et. seq. on “Radiation”. The definitions of radiation in the McGraw-Hill Dictionary of Physics and Mathematics (1978, p. 800) is “a stream of particles, ... or high energy photons, or a mixture of these .”

498

Universalising International Law

“the words ‘all analogous liquids, materials or devices’ are so comprehensively phrased as to include any weapons of an analogous character, irrespective of whether they were known or in use at the time of the signature of the Protocol. If the radiation and fall-out effects of nuclear weapons can be likened to poison, all the more can they be likened to poison gas ...”136 There has been some discussion in the literature of the question whether the material transmitted should be in gaseous form as the provision in question deals with materials “analogous” to gases. It is to be noted in the first place that the wording of the provision itself takes the poisons out of the category of gases because it speaks also of analogous liquids, materials, and even devices. However, even in terms of gases, it is clear that the distinction between solids, liquids and gases has never been strictly applied in military terminology to the words “gas”. As Singh and McWhinney point out, in strict scientific language, mustard gas is really a liquid and chlorine is really a gas, but in military terminology both are categorized as gas.137 The case that nuclear weapons are covered by the Geneva Gas Protocol seems therefore to be irrefutable. Further, if indeed radioactive radiation constitutes a poison, the prohibition against it would be declaratory of a universal customary law prohibition which would apply in any event whether a State is party or not to the Geneva Protocol of 1925.138 Yet another indication, available in terms of the Geneva Gas Protocol, is that the word “devices” would presumably cover a nuclear bomb, irrespective of the question whether radiation falls within the description of “analogous materials”. Nuclear weapons, being unknown at the time of the documents under consideration, could not be more specifically described, but are covered by the description and intent of the Protocol and the Hague Regulations. It has been submitted by the United States that: “This prohibition was not intended to apply, and has not been applied, to weapons that are designed to kill or injure by other means, even though they may create asphyxiating or poisonous by-products.” (Written Statement, p. 25.) If, in fact, radiation is a major by-product of a nuclear weapon - as indeed it is - it is not clear on what jurisprudential principle an exemption can thus be claimed from the natural and foreseeable effects of the use of the weapon. Such 136 137 138

Op. cit., p. 38. Op. cit., p. 126. See, to this effect, Schwarzenberger, op.cit., pp. 37-38, in relation to chemical and bacteriological weapons.

Nuclear Weapons Law

499

“by-products” are sometimes described as collateral damage but, collateral or otherwise, they are a major consequence of the bomb and cannot in law be taken to be unintended, well known as they are. Besides, such an argument involves the legally unacceptable contention that if an act involves both legal and illegal consequences, the former justify or excuse the latter. 13. Article 23(a) of the Hague Regulations The foregoing discussion demonstrates that radiation is a poison. Using the same line of reasoning, it follows that there is also a clear contravention of Article 23(a) of the Hague Regulations which frames its prohibition in unequivocal terms139. No extended discussion is called for in this context, and it is well accepted that the categorical prohibition against poisoning therein contained is one of the oldest and most widely recognized laws of war. Since “the universally accepted practice of civilised nations has regarded poison as banned”, the prohibition contained in Article 23(a) has been considered as binding even on States not parties to this conventional provision. “Thus, apart from purely conventional law, the customary position based on the general principles of law would also bar the use in warfare of poisonous substances as not only barbarous, inhuman and uncivilized, but also treacherous.”140 ILLEGALITY OF MANUFACTURE * To extend the principles of illegality from use to manufacture requires a consideration of two further possibilities: that the weapons may be manufactured not for use but for deterrence, and that manufacture does not need to be for a war of total destruction but could be for a contained nuclear war. If either of these positions has validity, it would remove or reduce the culpability associated with manufacture. We need therefore to probe both the true intention that lies behind deterrence doctrine and the strength of the claim that nuclear war can be contained. If the true intention behind deterrence is use, however conditional it might be, then the manufacture of weapons becomes a manufacture for use and is therefore culpable for the reasons set out earlier. If it is a reasonable inference from the information available to us that a nuclear war cannot be contained, then the manufacture of weapons becomes a manufacture for a purpose of which the reasonable and probable consequence is allout nuclear war. Those who knowingly commit an act cannot seek to be absolved from responsibility for its reasonable and probable consequences. B.

139 140

*

See Singh & McWhinney, op.cit., pp. 121 and 127. ibid., p. 121. Extracts from Nuclear Weapons and Scientific Responsibility, Longwood Academic, 1987, pp. 111-136. These observations,written in the context of the power confrontation as it then existed, retain their relevance in the context of the non-compliance by all the nuclear powers with the Nuclear Non-Proliferation Treaty, and the consequent continuance of the possibility of nuclear confrontations. Although references are made to the (former) U.S.S.R., the principles applicable to nuclear conflict continue to apply, perhaps with even greater force because of nuclear proliferation.

500

Universalising International Law

Deterrence The position of the Reagan administration regarding the intentions underlying the doctrine of deterrence was explained in 1982 by National Security Adviser William Clark to the (US) National Conference of Catholic Bishops Committee on War and Peace. Clark stated, “Our decisions on nuclear armaments and our defense posture are guided by moral considerations as compelling as any which have faced mankind. The strategy of deterrence, on which our policies are based, is not an end in itself but a means to prevent war and preserve the values we cherish: individual liberty … respect for the sanctity of human life, and the rule of law through representative institutions.”141 It is submitted that this claim does not pass the tests either of practicality or of legality. The argument against it, in brief, is as follows. Deterrence necessarily connotes a preparedness to use nuclear weapons if deterrence fails. This use is not a token but a substantial or massive use. Such a massive use must necessarily provoke a massive retaliation, which would mean all-out nuclear war. Since such an all-out war would mean the probable destruction of the U.S. with its lifestyles and cherished values, the result would be the destruction of the very values which it was sought to preserve. a)

The impracticality of deterrence

Assured mutual destruction is the very essence of the deterrence doctrine. As Mr. Robert McNamara observed in explaining the doctrine,142 the potential aggressor (i.e. the enemy) must believe that this capability is actual and the will to use it is unswerving. This belief must be induced for the rest of time. It can only achieve success if the potential aggressor is permanently terrified into inaction. If there is a period of time in which one’s opponent ceases to be terrified or calls one’s bluff, deterrence has failed. If one does not really want to use these weapons, one might deceive the enemy for some of the time by making him think that one means to use them. But one cannot expect to deceive him for all of the time from now to eternity. Hence deterrence strategists have sensed that deterrence cannot be achieved merely by empty threats. One must really mean the threat if one expects the opponent to be terrified by it. As the late Olof Palme, Prime Minister of Sweden, recently pointed out,143 deterrence involves not only technical capacity but political preparedness.

141 142 143

New York Times, November 17, 1982 – Text of Administration’s letter to Catholic Bishops on Nuclear Policy. The Essence of Security: Reflections in Office, Hodder & Stoughton, 1968. Bellerive Colloquium, Geneva, June 1985.

Nuclear Weapons Law

501

Deterrence then becomes not the storage of weapons with intent to terrify, but a stockpiling with intent to use. We straightaway come within the ambit of the prohibitions applicable to use of the weapon. We need to face squarely the fact that nuclear weapons are with us not only for deterrence, but for use. We should not allow the smokescreen of deterrence to cover up their inherent illegality. The unacceptability of deterrence become obvious when we realise that once we are launched upon deterrence as a means of war prevention, we cannot afford to allow any abatement in its reign of terror. If it fails to terrorize even for a short time, a time-window of vulnerability would open up. This deterrence, like a massive dam, cannot afford to spring a single leak; but unlike the dam, which holds back a fixed quantity of water, the dam of deterrence holds back an ever-increasing reservoir of terror and destruction. The dam must thus keep growing on the scale of that which it seeks to confine. In the speech just mentioned, Olof Palme used the analogy that depending on deterrence is like addiction to a drug – you continually need a larger and larger dose. Unreal in practical terms, the doctrine is also morally indefensible, since it perpetually links survival and security to terror. Churchill expressed this graphically to the House of Commons in 1955 when he said: “Safety will be the sturdy child of terror and survival the twin brother of annihilation.” To commit humanity to a perpetual future where security is linked not to goodwill but to terror and intimidation is to invert and debase all human values. Such a course stands condemned by reality and morality alike. Moreover, the implications of such a doctrine are too demoralizing to serve as a practical basis for ordering the future affairs of mankind. The doctrine means in effect that for all future time we must depend upon terror to survive. The future of the highest form of life known on this planet must be linked to the basest instincts of the jungle. The possibility of movement towards a better tomorrow, which has long been the aspiration of the human race, will be shut off. Just as love begets love, so terror begets terror. The perpetual fate of humanity will be an escalating spiral of terror which must explode when it can no longer escalate. If one thinks the doctrine of deterrence through to its logical conclusion, it not only plumbs the depths of human instinct on a time scale of perpetuity, but is a frustrating exercise in circularity from a logical point of view. If terror and security are in a symbiotic relationship with each other, then security, must breed terror just as terror breeds security. All civilization will then depend on intimidation for its continuance, and all the finer instincts and achievements of man will need to function within this framework of terror. At no stage in man’s civilized history has the formula for survival been so ignominiously constructed. One final aspect of deterrence is the vagueness of the concept. Not even the most vigorous exponents of deterrence will venture to tell us how much damage it

502

Universalising International Law

is necessary to inflict in order for the concept to be credible to the enemy. Would it deter one’s opponent to have 10 of its cities destroyed, or 100, or 1,000? Would it be a deterrent to destroy 50% of its population or 75% of its industrial capacity? This basic information is not known even by the super-powers. It is even more obscure how much weaponry would be required to produce the effect of deterrence. The whole concept is shrouded in more obscurity, therefore, than its advocates would like to admit. It means a licence to produce an unspecified number of weapons – when all the world knows that one-fiftieth of those in existence would “make the Soviet rubble bounce all the way from Moscow to Vladivostock,” to use the expressive phrase of Senator Edward Kennedy. It would also, of course, make the American rubble bound all the way from New York to San Francisco. Senator Kennedy also rightly said: “To suggest that we need to test and develop more weapons to maintain a credible deterrent is the kind of contorted logic which will guarantee a never-ending arms race in which both sides will be the losers.”144 b)

The illegality of deterrence

The criteria of legality in the conduct of war have been discussed in a previous publication by the author.145 Among the principles mentioned were the principles of proportionality, right authority, the need for a prospect of success, exhaustion of alternative methods and right intention. Each one of these principles is violated by the doctrine of deterrence. Let us imagine that the doctrine of deterrence has failed and that, despite its terrors, an attack has been launched. Such an attack may be non-nuclear or nuclear. It may be counterforce (i.e. an attack on military targets and capability) or countervalue (an attack on non-military targets such as civilian populations or industry.) It may be strategic (directed at the enemy’s homeland) or theatre (directed at a particular theatre of war). Within each of these categories an enormous choice of weaponry is now available. There is a seemingly unending variety of forms, therefore, which a possible attack may take. The levels of intensity of the attack are also unpredictable. While in previous non-nuclear wars there was time for reflection on the countermeasures to be taken, nuclear war will allow no such cushion of time. Decisions 144

145

Many of these issues are discussed in W.V. O’Brien, The Conduct of Just and Limited War, Praeger, 1981, pp. 127-144. The present author strongly disagrees with O’Brien’s conclusion that within strictly defined limits nuclear weapons would be permissible. See on the contrary, Burns H. Weston, “Nuclear Weapons versus International Law:A Contextual Reassessment,” 28 McGill L.J., 1983, p. 542, where, after a careful examination of various combinations of the types of warfare (strategic or tactical) and the types of targeting (counter values/ counterforce/ threats/ battlefield) the writer concludes that virtually all potential uses of nuclear weapons are unlawful. See the author’s book Nuclear Weapons and Scientific Responsibility, Chapter 5, 1987, pp. 6479.

Nuclear Weapons Law

503

regarding the nature, the level and the targets of the deterrent strike must be taken within minutes if not seconds. Fine evaluations regarding proportionality will be impossible. An all-out nuclear retaliation will be a very likely response. More finely graded retaliations will be beyond the abilities of heads of state, and it may well be that field commanders will have to take these decisions.146 If so, there will be an infringement of the principle of right authority. From the start the concept of a just war has depended on the principle of right authority, and in the special case of nuclear weaponry there is common agreement among mankind that only a supreme political authority should make the decision to launch a nuclear war. In many species of attack, the retaliation will only be possible by violating this principle of right authority. The prospect of success does not exist in the case of nuclear war, where victor and vanquished will both be devastated. A retaliatory deterrent attack would also be difficult to justify on the ground that all alternative peaceful methods have been exhausted. In point of fact, every one of the nuclear powers has violated its obligations under the Nuclear NonProliferation Treaty, “to pursue disarmament by all available means.” One look at the arsenals each of them has accumulated is enough to dispel any notion that they are fulfilling their obligation. The violations have been particularly flagrant in the last ten years, and the general world dissatisfaction with their performance in this regard was naturally the subject of acid comment at the five-yearly review of the Treaty in 1985. The information now available regarding the consequences of nuclear war also precluded any pro-nuclear arguments based on the principle of right intention. As mentioned earlier, a nuclear war is more aptly characterised as the burial grounds of all intentions, right or otherwise. Other principles of war, namely the jus in bello, will also be violated for there will be damage to non-combatants, to the environment, and to neutral nations – all of which goes far beyond what is permissible under the jus in bello. In summary, the massive nuclear warfare which will follow from the first use of nuclear weapons will violate all the established principles of war. One writer on this topic says: “Where is the military necessity in incinerating entire urban populations, defiling the territory of neighbouring and distant neutral countries, and ravaging the natural environment for generations to come…? If so, then we are witness to the demise of Nuremberg, the triumph of Kriegsraison, the virtual repudiation of the humanitarian rules of armed conflict … The very meaning of ‘proportionality’ becomes lost and we come dangerously close to condoning the crime of genocide, that is, a military campaign directed more towards the extinction of the enemy than towards the winning of a battle or conflict.”147 146 147

For a fuller discussion, see the author’s Nuclear Weapons and Scientific Responsibility, op.cit. Burns H. Weston, op cit., p. 578.

504

A.

Universalising International Law

Contained Nuclear War

There was much effort in the early 1980s to play down the effects of a nuclear war. Thus in the 1980 Presidential campaign, Mr. George Bush expressed the view, in a much quoted speech, that a nuclear war was winnable. Later, widespread popular discussion raised the credibility level of assertions that nuclear war could be limited, that a protracted nuclear war could be won, and that civil defence measures for survival after a nuclear war could be effective. The belittling of the effects of nuclear war went so far that a Civil Defence Advisory Authority advised residents of Cambridge, Massachusetts to mount their automobiles in the event of a nuclear emergency and proceed 100 miles to the small town of Greenfield, taking their credit cards with them.148 If it were truly possible to contain a nuclear war, laws of war pertaining to such a conflict would more closely approximate those relating to a traditional war. Since total or near-total annihilation would not be the result, wars could even be fought to produce specific political efforts. The notion of limited nuclear war requires, in the first place, some analysis of the nature of war itself and of the concepts of victory and defeat. War is a means of resolution of dispute when all other means have failed. It is like a test of physical strength. The combatants draw upon their resources up to their very limits, and as long as any strength remains there is no surrender; the only exception is when the outcome is so obvious that there is capitulation to save lives and resources. History provides no examples of a surrender by a nation on its own soil while it still had the physical resources to inflict a crushing blow upon its adversary. To use the Clausewitzean analysis, war is violence pushed to its utmost limits. In any case the very concept of war requires that one party, however bruised and battered, survive with some reserves of strength while the reserves of the other are totally exhausted. A nuclear conflict does not correspond to this concept of war. The point is never reached in which there is exhaustion of strength and resources of one party, while the other still survives. Even a contestant reeling under the impact of a first strike can unleash destruction upon its opponent with a mere fraction of its available fire power. Indeed, we are now at the stage when machines will take over the fighting from man and go about their preset task of destruction even after human life has been extinguished. As we have seen, an interesting case has already been filed in the U.S. Supreme Court asserting that computers geared for automatic response in the event of nuclear attack are a violation of the U.S. Constitution in that the decision to unleash nuclear weaponry needs to be consciously taken by the human agencies entrusted with that power by the Constitution.

148

Professor K. Galbraith, “The Politics of Arms Control, the American Context”, Groupe de Bellerive Colloquium, June 1985.

Nuclear Weapons Law

505

With nuclear weaponry the dialogue thus shifts from war, with all its connotations of victory and defeat, to total destruction. This hypothesis must be more closely examined in the light of three scenarios: theatre nuclear war, nuclear war limited to specific tactical targets and the new notion of Star Wars. A further factor needing consideration in this context is the launch-on-warning capability (LOWC), which involves the speedy release of nuclear missiles by electronic means in response to the warning of a nuclear attack. a)

Theatre nuclear war

Possible theatres of tactical nuclear war are the European theatre, the SinoSoviet theatre, the Middle Eastern theatre, the South African theatre, and the IndoPakistan theatre. The question is whether a nuclear exchange could take place in any of these places without escalation to a level at which the superpowers become involved. It is clear that at least two of these theatres – the European theatre and the Sino-Soviet theatre – will directly involve the superpowers. However, even the theatres which do not directly involved the superpowers have all the potential to draw them in. It is unlikely that the superpowers will choose to remain mere spectators, since a power vacuum will result from the annihilation of one or another of the participants. In the theatres where the superpowers become directly involved, the scale of devastation alone would render the description of “theatre nuclear war” totally inappropriate. In the European theatre, for example, thousands of short-range tactical nuclear devices available on both sides would be brought into action, resulting in death and destruction on a scale too frightful to contemplate. Moreover, this particular theatre is specially vulnerable because the serried ranks of nuclear missiles confront each other at comparatively close range while the large ground forces of each side face each other. What may begin as a conflict with conventional arms can create a tinder box situation in which either side may suddenly decide to escalate to the nuclear level. In such a situation, a first strike with nuclear weapons would have strategic value; however, this alone would probably be enough to set off a nuclear exchange on a scale sufficient to result in global devastation. The gravity of the situation is apparent from the fact that neither the U.S. nor the U.S.S.R. is prepared to accept a defeat by conventional weaponry. The U.S.S.R. is reported stronger in this theatre in conventional weaponry, and the U.S. has made it plain that it will resort to nuclear weaponry rather than take a defeat based on conventional arms. In the Sino-Soviet theatre, the conflict will be too important for the other superpower, the U.S., to be a mere spectator. The immense superiority of Soviet firepower over the Chinese creates the necessary backdrop for U.S. intervention.

506

Universalising International Law

In regard to the Indo-Pakistan theatre, India announced in May 1985 its grave fears that Pakistan was on the verge of nuclear capability. India has called a halt to this activity, saying that if Pakistan achieves the bomb, India may reconsider its position of not pursuing weapon-manufacturing capability. India has also demanded that the U.S. prevail upon Pakistan to halt this activity. Perhaps this demand is justifiably based, perhaps not – but it does illustrate one way in which superpowers are drawn into what at first appears to be a “local” situation. In the Middle East, the current Iraq-Iran war illustrates how, in a struggle, all available weaponry is thrown in. If nuclear weapons had been available, they would in all probability have been used too. If they were, there is little doubt that the superpowers would have been drawn in quickly. Maintenance of the oil fields is of vital importance to the superpowers, particularly the U.S. One recalls in this context President Carter’s announcement that U.S. interests in the oil fields would be protected even with nuclear weapons. b)

Limited nuclear war

It is argued by the supporters of limited war theory that nuclear weapons can now be targeted much more accurately. They can reach within a few feet of their intended targets, thereby preventing effective retaliation by enemy nuclear delivery systems. Hence “war winning” strategy is replacing Mutually Assured Destruction as a preferred scenario for nuclear war.149 Supporters of the theory also argue that the confinement of the attack to military targets makes the conflict similar to the actions of conventional warfare and allows the traditional legal principles governing warfare to be invoked. The defects in such theories are easily seen. In the first place, the range of destruction of even a single nuclear missile is so massive, compared with any conventional weapon, that a great deal of civilian life will be lost whether the missile is accurate or not. It also needs to be remembered that it is not a matter of a single, isolated military target. The series of military targets spreads throughout the length and breadth of a country. Even if one were only attacking military targets, the entire country could easily be destroyed. In the second place, the doctrine is dangerous because of the inducement it offers for a pre-emptive strike. If the theory works, the power that makes the first attack will be the country to emerge the victor. This places nerves on edge on both sides, for every action needs to be interpreted so as to enable the forecasting of the “enemy’s” next move. Such forecasting is never error-proof; sooner or later a misreading of the evidence can precipitate an unwanted war. It is to be noted, thirdly that although submarines can also be targeted no less than weapons silos at home, a single submarine such as the Trident can unleash 149

SIPRI Yearbook 1979, p.449, referred to this seven years ago.

Nuclear Weapons Law

507

devastation on a nation sufficient to cripple its entire national life. Even with the best information and tracking systems, it is unlikely that all enemy submarines will be instantly destroyed. As for the land-based and air-based forces, only a small percentage of their firepower needs to escape destruction for them to destroy the attacker. In the face of these facts, how can a “war-winning” theory be valid? Fourthly, the unpredictability of actions of leaders on both sides makes it impossible to guarantee that a “limited” nuclear war will stay limited. For it to work, the “limited war” theory requires that cool and precise calculation be made by the leaders. But even the practice of brinkmanship places a tremendous strain on the ability of leaders to think clearly and rationally. One need only read of the reactions of John F. Kennedy in the days of the Cuban missile crisis to understand the level of tension involved. Once the nuclear threshold is crossed, the disorientation is likely to be even worse. In the panic, shock, and confusion, there are not likely to be objective, academic discussions about the exact degrees of force to be marshalled. c)

Star Wars: The objections

The question of whether a “limited” nuclear war can stay limited leads naturally to the question of space-based defence systems and the suggested Star Wars “defence shield” aimed at throwing a blanket of protection over the air space of an entire country In a dramatic speech on March 23, 1983, President Reagan expressed the hope that the U.S. would be able to construct for itself a defence shield against incoming nuclear missiles. Such a shield would be based on new advances in such areas as kinetic-energy projectiles, particles beams and lasers. His announcement that research would be done on this project gave a new complexion to the arms debate, for it meant that the superpowers would not necessarily have to base their strategies on the idea of mutual assured destruction. The concept of mutual assured destruction at least has had the merit of giving reality to deterrence. It has been on the basis of mutual assured destruction, in fact, that negotiations between the superpowers have taken place concerning limitations on the proliferation of missiles.150 But once the capacity of each side to destroy the other is removed - even in theory – the basis of negotiation is altered. Star Wars therefore assumes a position of key importance in arms negotiations. There is strong scientific opinion that a complete shield is unattainable. According to Nobel Laureate Hans Bethe, for instance, even being “as optimistic as you can be within the laws of physics and geometry, the system is unworkable.”151 Time Magazine commented: “Other experts maintain that even if a Star 150 151

Such as was achieved in Strategic Arms Limitation Talks (SALT I) in 1972 and was attempted in SALT II in 1979. Time Magazine, Nov. 26, 1984, p. 10. See the article by the same author and others in 251 Scientific American, 1984, p. 37.

508

Universalising International Law

Wars system could be made operational, it would never be 100% effective.”152 Moreover, the cost, variously estimated at between 500 billion and a trillion dollars,153 is well beyond the reach of even such an economy as that of the U.S. Aside from these problems in setting up such a system, there is the problem that work on it would stimulate counter measures by the attacker. Among the more probable counter measures are the following: 1. Releasing a swarm of decoys by the real weapon, thus drawing wasted attacks from the defence system. 2. Causing the missile to spin like a rifle bullet, thus preventing laser or particle beams from concentrating on one spot 3. Setting in place “space mines” which can destroy U.S satellites in orbit 4. Multiplying the number of missiles so that more of them get through the “screen”.154 5. Another possibility, much discussed recently, is that of devising a “fastburn” rocket which would do all its burning during the first one minute of flight and hence succeed in avoiding all Star Wars defences based on heat-seeking devices. There are indeed numerous other possibilities such as super propellants and coatings which reflect laser beams; but we do not need to consider them save to observe that this is an excellent example of escalation breeding escalation. Each advance in methods of attack upon the missiles leads to multiplied defences against such attack and the need for further improvements in methods of attack – a neverending process. Indeed, a “Star Wars capacity might well intensify the arms race, since the Soviets would build more and more ICMs to ensure that at least some of their missiles penetrated U.S. defences.”155 In the words of a coordinator of research at Livermore, “we are going to be in the counter-counter-measure game forever.”156 As it happens however, there are financial limits to such games. Escalation cannot go on forever in a situation where the economic resources of the U.S. have been stretched to the limit. As for the Soviet response, each of the measures to evade the defensive “shield” need not involve anything like the same level of expense or sophistication as the “shield” itself. If it were possible to construct a complete defence, scientific research directed solely towards this objective would indeed be something to be commended. Unfortunately the moral implications of Star Wars are not quite so easy. For one thing, the projectiles, particle beams or lasers developed for the nominal purpose 152 153 154 155 156

ibid. Time Magazine, Jan 21, 1985, p. 10-11. Time Magazine, March 11, 1985, p. 27. Time Magazine, November 26, 1984, p. 10. Time Magazine, March 11, 1985, p. 27.

Nuclear Weapons Law

509

of defence could be used to perfect offensive weapons. Also, with the development of the Star Wars program the positive contributions of satellites to international security will be threatened.157 There is another aspect, too, which should cause concern to scientists and others. In a report released in March 1985 by the Center for Strategic and International Studies at Georgetown University, the Center argued that the shield did not appear to be a realistic possibility and pointed out among other things, that it would not protect allied population. Even if Star Wars achieved a 100% capability of protection of the U.S., it would place the U.S. in the position of defending its own populations while the lives of its allies were held hostage. Europe, without a nuclear shield, would be an open target for retaliatory attacks. Where is the morality of building a defence shield for oneself alone? Even with the most optimistic hopes, the U.S. will not have its shield in place until the mid 1990s. When will Europe have its shield? The several billions of dollars required for perfection of the American shield would be an even more formidable burden for Europe to bear. In the words of the Georgetown study, “We must recognise that there is no quick fix, no magic remedy. We cannot expect our nuclear dilemma to be solved, once and for all, by some far-reaching arms control agreement …or by an invisible shield that will protect us from nuclear attack.” It is for informed scientific opinion to advise the lay world whether such a “dream of total safety”158 is realistic. The scheme, originally envisaged as a defensive rather than an offensive measure, is not only appearing to be unworkable but is also defeating its objective. It is becoming increasingly clear that instead of making nuclear weapons obsolete, it will inevitably lead to a proliferation of nuclear weapons. * * * It seems, then, that under any of the three scenarios described, nuclear war becomes impossible to contain. Limited war expands once more into mutually assured destruction, and we are back to where we began. Apart from these three scenarios there are some additional reasons why the continued construction (and therefore proliferation) of nuclear weapons is culpable enough to be illegal. They are all aspects that are so obvious or well known as to be within the ordinary knowledge of those engaged in manufacture, who cannot therefore disclaim in law an intention to cause those consequences. These reasons are dealt with in the next section.

157 158

for details see Richard L. Garwin et al., Scientific American, 1984, p. 27. Time Magazine, Jan 21, 1985, pp. 10-11.

510

Universalising International Law

Other considerations a)

The unpredictability of the outbreak of war

Discussions of nuclear war are often based on the assumption that wars begin because certain rational decisions have been made by rulers. However, this has not been true of a great number of wars. Most serious thinkers of war – Clausewitz, Tolstoy, and Barbara Tuchman among them – have noted the unpredictability of the outbreak of war. Factors totally beyond prediction or analysis can suddenly occur to spark off a major conflagration when the background factors are ready for it. Assassinations (such as the Sarajevo assassination), the acts of a madman, computer error, a mistaken assessment of another’s intention, or mere “nerves” can act like a spark in a dry forest. The sparks no one can prevent. But what we are presently doing is loading the forest with the tinder, leaving no doubt that when the spark arrives everything will be destroyed. Those who create this situation cannot disclaim a share of responsibility for the result. The problem of unpredictable behaviour has long intrigued mathematicians, logicians and scientists. Among the manifestations of this phenomenon, sometimes called the chaos factor, are the curling smoke of a burning cigarette, the weather, the stock market, and the economy. Broad patterns can be predicted, but no formula can anticipate the myriad minor factors that determine which of a multitude of alternatives will result. Alvin M. Saperstein, a theoretical nuclear physicist by training and a student of the impact of science on society, has argued in a recent article that war is similarly unpredictable. It is, he says, a “breakdown in predictability: a situation in which small perturbations of initial conditions, such as malfunctions of early warning radar systems or irrational acts of individuals disobeying orders, lead to large unforeseen changes in the solutions to the dynamical equations of the model. There is no way to predict the effects of the actions of any participant - analyst, planner, statesman or general – with any certainty.”159 The chaos factor is so real, argues Saperstein, that security policies based upon any purported ability to predict international events are outmoded. The situation is analogous to that prevailing in the sphere of the economy, which always seems to outwit economists’ explanations of it. The fault lies not in bad or incomplete data but the inherent instability and unpredictability of the system. Mathematical models for the outset of war can be constantly improved, but total predictability will never be achieved. b)

The unpredictability of the course of war.

Once war breaks out, the course it will take is most unpredictable. At a Press Conference on January 12, 1945, General Eisenhower observed: “When you once 159

“Chaos- A Model for the Outbreak of War,” Nature, Vol.309, 24 May 1984, p. 303.

Nuclear Weapons Law

511

resorted to force…you didn’t know where you were going … If you got deeper and deeper, there was just no limit except…the limitations of force itself.” An outstanding book on nuclear war by Paul J. Bracken emphasizes this chance element. Bracken writes: “Uncertainties, random phenomena and the general notion of chaos lead to loss of control.”160 Previously orderly events turn chaotic and the scope for the chance factor multiplies, breaking down even the semblance of orderly control possible in peacetime. As this happens, those in positions of command also respond unpredictably as panic, hysteria, and irrationality set in. c)

The uncontrollability of war.

Clausewitz, the philosopher of war, emphasized that the idea of war carried the idea of limitlessness. “War is an act of force,” he said, “which theoretically can have no limits.”161 One of the characteristic features of war, according to Clausewitzean analysis, is that the logic of war is simply a steady thrust towards extremity. As he said “We can never introduce a modifying principle into the philosophy of war without committing an absurdity.” Each party would be taxed to the limits of its strength. The more intense the violence used on one side, the more intense would be the violence used on the other, provided that the means were available to commit violence. There could be no imaginable act of violence, however treacherous or cruel, which would not be used. Each adversary’s aim is continually to force the hand of the other. This is not to say that restraint in the use of force has never occurred. The Vietnam War is a case in point. Although it did have recourse to such means as defoliation, scorched earth, and other practices, the U.S. did not resort to nuclear war when it was facing defeat. But a number of factors distinguish this situation from that of a nuclear war situation. Among these are the following: 1.

2.

3. 4.

This was a conflict between a nuclear nation and a non-nuclear nation. Nuclear weapons have never been resorted to in such situations, after their initial use in Japan. The American agencies of control were far removed from the actual theatre of war. Since this High Command was not itself engulfed in war, it could take an objective view of the battlefront. The U.S. homeland was never threatened. There was no serious possibility of the war escalating into conflict with another nuclear power.

In a conflict between nuclear powers there would arise all the uncertainties and lack of restraints discussed above. As Paul J. Bracken observes, “there are strong reasons to believe that any such attacks would initiate an uncontrollable cas160 161

Paul J. Bracken, The Command and Control of Nuclear Forces, Yale Univ. Press, 1983. Edward M. Collins, War, Politics and Power, Chicago, 1962, p. 65.

512

Universalising International Law

cading sequence of actions and reactions.”162 d)

Launch on warning capability (LOWC)

It now would take only 30 minutes for a missile launched in the Soviet Union to reach the Midwest region of the United States. A submarine-launched missile can reach there in 15 minutes. West Germany can be hit in less than 10 minutes. The strike times are about the same for a Western attack on the Soviet Union. If the President of the United States is informed that enemy missiles are on their way, he will scarcely have enough time to collect his thoughts – even if he is awake when the first news comes in. During those few minutes or moments he would have to take one of the most important decisions in human history. Since an evaluation of the pros and cons within this time frame would be beyond human capacity, mechanical aids are employed. The United States has never officially acknowledged that a “launch on warning” system exists. Nevertheless, a 600 million dollar effort was launched in 1984 to develop supercomputers for the military, anticipating the day when defence systems will need “almost total reliance on automated systems.” It is projected that in order for the Pershing 2 missiles installed in West Germany to be launched in time, they will have to be fired within 3 minutes of the beginning of a Russian attack. In the Star Wars scenario the response time may well be as little as 90 seconds. It is thought that only supercomputers will have the speed to allow a response to be made at all.163 This increasing reliance on computers has led to the fear that the President and Congress may be abandoning their constitutional decision making-power to a machine. This is the basis of an action instituted in 1985 by Clifford Johnson, a computer specialist, against the U.S. Secretary of State, Mr. Weinberger. Johnson is asking for a declaration that LOWC violates the U.S. Constitution. Johnson draws attention in his brief to examples of computer error. For example, in 1980 computers at the North American Aerospace Defence Command in Colorado Springs reported the approach of two Soviet missiles. One hundred nuclear bombers readied their engines for take-off, military stations were placed on alert, and the Presidential plane was readied. The cause of all the alarm was a malfunctioning silicon chip. On another occasion, an American defence system in Greenland misinterpreted the rising moon as a Russian missile. Such malfunctioning, which no known system can insure against, could well unleash the havoc of nuclear war. Even if it is caused by a mistake, enemy missiles would respond and the phony war becomes a real one within a matter of minutes.

162 163

Paul J Bracken, op.cit., p. 241. For details regarding LOW strategy, see 250 Scientific American, 1984, p. 23.

Nuclear Weapons Law

513

Discussing the complexities of nuclear warning systems, Paul Bracken writes: “In the world in which people live, power grids fail, trains derail, bridges and dams fall down, DC-10 engines fall off and nuclear power plants come close to meltdown. These things don’t happen often but they do occur.”164 Bracken’s point about nuclear power plants has recently been illustrated by the Soviet nuclear disaster at Chernobyl, and to Bracken’s list we may add the sad fact that a space shuttle with humans aboard has exploded soon after take-off. The great power failure in the Northeast in 1965 was traced to a single inexpensive switch that led to a cascading power blackout; experts predicted such a thing would never happen again; but in 1977 it happened again in New York. With the much more complex systems involved in nuclear responses, anything is possible. Moreover the signals received are often essentially ambiguous. One would like the machine, if it errs, to err on the side of caution, but caution carried beyond a certain point may be self-defeating. Surprise attack can take many forms. The signals need to be checked and cross- checked within a minute or two. “How can a warning system be designed to prevent this kind of attack? The answer is, it can’t.”165 The ultimate in this regard would be the computer system at the heart of the Strategic Defence Initiative (SDI), which would have to respond unerringly, distinguishing hostile attack from a host of alternative natural and man-made events. Dr Henry Thompson of the Department of Artificial Intelligence, University of Edinburgh, and 79 other professionals working in computer science, artificial intelligence and related fields, writing to The Guardian of July 14, 1985, observed as follows: “…such a system cannot be designed and cannot be built. No design can exhaustively anticipate all relevant detail… These problems are made all the more serious because the extremely short reaction times required of the critical parts of the system preclude effective human supervision…. when the cost of a false alarm is an unprovoked attack of the Soviet Union which will then certainly (and probably automatically) respond with a real missile launch, it would literally be suicidal to rely on necessarily unreliable computer systems in this way.” Similar fears have been voiced by computer professionals in America and Canada. The very fact that the Challenger disaster involved an area of lesser complexity should remind us that despite a multiplicity of computer checks and crosschecks and despite the active supervision of teams of technologists, major error can occur in the assessment of a situation. The tragedy of January 28, 1986, occurred not in a split-second decisional situation but against a background of weeks of time for consideration of all possible areas of error. One month later, on February 27, the world was informed of a crippled Soviet satellite weighing 10 tonnes which was breaking up and likely to hit the Earth’s surface in chunks. Fortunately it was not nuclear-powered, as was the Soviet satellite which crashed in 1978. 164 165

Paul J. Bracken, op.cit., p. 49. Paul J. Bracken, op.cit., p. 70.

514

Universalising International Law

Robert C. Aldridge wrote as follows in 1980: “Three times in seven months the US strategic nuclear forces have been placed on higher alert because of an electronic malfunction. Last November 9 the NORAD indicated an attack by submarine-launched ballistic missiles; on June 3, it indicated a full-scale attack, including sub launched missiles. Three days later it signalled that missiles had been fired from submarines lurking 1,000 miles off the US coast – missiles which would reach their targets in 10 minutes or less. The November scare lasted six minutes, and the June alarm lasted three – a considerable portion of the allotted decision time. It is terrifying to think of the consequences had the alert lasted only a few crucial minutes longer.”166 Against such a record one cannot discount the mounting dangers attendant on a proliferation of weapons. The role played by supercomputers also has a dramatic impact on the notion of the limited or contained nuclear war. Should the computer systems malfunction, there will be no way to control the extent of a nuclear war; malfunctions could easily lead to the indiscriminate and uncontrolled release of all the missiles. As we have just seen, computer error has occurred with missile systems under peaceful conditions. Under nuclear war conditions, malfunctioning is far more likely, especially if one takes into account the way electro magnetic pulse wreaks havoc with electronic devices. e)

The electro-magnetic pulse (EMP)

A nuclear blast in space sends out radioactivity in all directions. This has the effect of displacing electrons out of air molecules in the upper atmosphere, and the electrons are deflected by the earth’s magnetic field. As they spin down and around the lines of magnetic force, they transmit a sudden and very intensive burst of energy. This burst of energy, or electro-magnetic pulse, knocks out both computers and other electronic devices. It would paralyse all electronic communications, including the vital command and control systems on which the military depends. If those systems go haywire, the attempt to respond defensively will be thrown into chaos. A sinister aspect of this phenomenon is that it provides an incentive for a first strike. It is useless having vast forces at one’s disposal unless one can use them, and one can use them effectively if the communications network is intact. In situations of heightening tension, the pressure to use them before EMP knocks them out would be quite considerable.167

166 167

European Security: Nuclear or Conventional Defence, IV th International Colloquium, Groupe de Bellerive, Pergemon, 1984, p. 286. A detailed study in German is R. Bruer and H. Lechleitner, Der Lautlose Schlag (The Silent Strike), Meyster-Verlag, Munich, 1982, p.126. See the review of this work in 7 Disarmament, 1984, p. 172.

Nuclear Weapons Law

515

It is to be noted that it is not only the military control system that breaks down from EMP. All civilian communications would be disrupted too, adding immeasurably to the confusion and contributing to the breakdown of the political authority. f)

The absence of a limited war concept in Soviet nuclear strategy

For it to be practicable, limited war theory depends on mutuality. There is no means of achieving a limited war unless both participants are wedded to the doctrine. Thus even if the U.S. were committed to a limited nuclear exchange, the war would not be a limited one unless on their side the Soviets subscribe to this method of conducting it. When the U.S. talks of limited nuclear war, it is often forgotten that this has never been the Soviet policy position. It has never been part of the strategic thinking of the Warsaw Treaty States. On the contrary, the Soviet Union has expressly stated that if a nuclear conflict begins, the U.S.S.R will fight a fullscale nuclear war. According to the Soviet Targeting Doctrine, as soon as Russia confirms that a nuclear attack is under way, its bombers and ICBM’s will take off even before the U.S. bombs hit the Russian homeland and will retaliate with massive blows against U.S. military, economic, industrial, political, and administrative resources.168 This fact renders quite untenable all discussions of limited nuclear war based upon the resolve of one party only.169 g)

Incentives towards a first strike strategy.

With the progressive improvement of weaponry, the means of destroying enemy weaponry by first strike keeps increasing in potency. Whether first strike is intended or not, both superpowers are increasing their ability to deliver crippling attacks on their adversaries while the latter’s weaponry is still on the ground. Such increased power coupled with the disastrous consequence of being a victim of first strike leads to a temptation to use such first strike capability rather than face the possibility of an immobilization of a large section of one’s weaponry before it is used. If indeed Star Wars, as its proponents claim, can confer a substantial defence umbrella on the U.S., such a situation could also be a strong incentive for the Soviets to use their first strike capability before the stage is reached in which the U.S. is relatively invulnerable while still retaining its own first strike capability – a situation the Soviets could not contemplate with equanimity. If the U.S. should in fact achieve such invulnerability, the temptation would be strong to strike before the Soviets could achieve it also. A disabling first strike could thus become dangerously attractive as a way out of the MAD (Mutually Assured Destruction) stalemate. The development of 168 169

H. Caldicott, Nuclear Envy, Bantam Books, 1985, pp. 211-212. See the opening essay by Desmond Ball in J. Schear (ed.) Nuclear Weapons Proliferation and Nuclear Risk, St. Martins Press, N.Y. , 1984.

516

Universalising International Law

greater sophistication in weaponry is thus eroding the stability of deterrence and forcing a consideration of other military alternatives – of which first strike is one. In particular, the construction of weapons or weapons systems which are extremely powerful but also relatively vulnerable to others (such as submarines or cruise missiles) gravitates strategy towards first strike. As first strike capability grows on both sides, so will first strike likelihood. Robert C. Aldrige has predicted that this will be very much the case by 1988.170 h)

Scientific research as an impediment to de-escalation.

One of our fundamental theses has been that the major hope of averting a nuclear conflagration is de-escalation of the weapons race. As long as the race spirals uncontrollably upwards, the prospects for a peaceful resolution diminish accordingly. New scientific work on nuclear weapons is thus a powerful impediment to peace. The Gorbachev offers in 1985 and 1986 of a moratorium on nuclear testing highlight this aspect. If accepted, they could have been a first step towards that downward turn which is so essential. It is the pressure for new research that has stood in the way. One reason for the continued U.S. testing was to pursue the Xray laser and other directed energy systems that are part of the Strategic Defence Initiative. The last US test shot of 1985 was part of the X-ray laser system and the first test shot in 1986, carried out on March 22, was, according to government sources, for an early design of a warhead for the Midgetman mobile intercontinental missile, now in development. Such new research needs were no doubt among the reasons for the rejection of the Soviet offer, whatever the good or bad faith that may have lain behind the latter. In the U.S. statement issued on March 29, 1986, White House Deputy Press Secretary Peter Roussel rejected the Soviet moratorium offer and reiterated the U.S. position that a nuclear testing moratorium was “not in the security interests of the U.S., our friends and allies.” Participants in creating the pressures against de-escalation – the military establishment , weapons manufacturers and scientists – keep growing in strength and become more difficult to resist. In the U.S., over 240 firms had by June 1985 submitted bids for 10 or 12 contracts for designing initial strategy, technology and systems for the SDI program. SDI employed 4800 scientists in 1984 and is expected to employ over 18,000 in 1986. The scheme will be several times greater in magnitude than the Manhattan project. When testing components of Star Wars commences in 1988, these forces will be infinitely more powerful. By then the important Anti-Ballistic Missile Treaty will already have been clearly violated by several projected tests. By engaging similar activities, the Soviets would be guilty 170

“First Strike Breakout in 1988,” Ground Zero, Dec. 83/ Jan.’ 84, p.1.

Nuclear Weapons Law

517

of similar violations. Thus as the pressures for escalation grow stronger, the legal obstacles to it would grow weaker, resulting in a two-fold slide towards uncontrollability. In this fashion, continued manufacture and testing would progressively obstruct such pathways as now exist towards global peace.171 i)

The increase in the likelihood of war

At several points in this book we have argued that an increase in the number of nuclear weapons and in their locations and support sites means an increase in the risk of nuclear war. Possibilities of accident are increased and so also are the tensions that lead to war. Operation Dismantle et al. v The Queen,172 a Canadian case, raised interesting constitutional issues following from such a contention. The case challenged the decision of the Government of Canada, made pursuant to an agreement with the United States, to permit the testing of the air-launched cruise missile in Canada. The principal allegation was that the testing of the missile in Canada posed a threat to the lives and security of Canadians by increasing the risk of nuclear conflict and thus violated the right to life and security of the person guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms. In view of the court, the plaintiff failed to prove that there would be an increase in the risk of nuclear war as a result of the test. In the language of Dickson J., “What can be concluded from this analysis of the statement of claim is that all of its allegations, including the ultimate assertion of the increased likelihood of nuclear war, are premised on assumptions and hypotheses about how independent and sovereign nations, operating in an international arena of radical uncertainty, and continually changing circumstances, will react to the Canadian Government’s decision to permit the testing of a cruise missile.”173 The case is remarkable as taking further than probably any previous case the question of the linkage between missile testing and human rights. In regard to the matter of whether the risk of nuclear war was increased by missile testing, the court’s decision did not mean that such increased risk was disproved. On the contrary, the possibility of such increased risk was acknowledged; it was just that the reactions of other powers to the specific decision of the Canadian government could not be predicted with any degree of certainty. The problem we are addressing is a different one not; the particular consequences to a particular State of a particular decision to test a particular weapon, but the overall consequences to mankind of the increase in the global number of nuclear weapons which results from their continued manufacture. It is my contention that the answer to this ques171 172 173

For these and related items of information, see Helen Caldicott, Missile Envoy, Bantam Books, 1986. 4 D.L.R. (4th) 481 (1985). At p. 490.

518

Universalising International Law

tion is beyond reasonable doubt; if this be so, the Canadian case is important for the linkage it establishes between such a danger and the basic human right to life. It is not only through the testing of weapons that the right to life is affected of persons who are not citizens of combatant countries. The location of satellite early warning stations also poses hazards. Australia provides cases in point. The Nurrungar Satellite Early Warning Station in remote South Australian desert country doubles from 15-30 minutes the warning time the U.S. has of a Soviet attack. The other ground station for American satellite early warning systems is in Colorado, and the Nurrungar facility thus exposes Australia to attack in a U.S.Soviet confrontation. Mr Bob Hawke, the Australian Prime Minister, has acknowledged that the presence of West U.S bases at North West Cape, Pine Gap and Nurrungar increases the risk of nuclear attack on Australia.174 The Prime Minister has contended, however, that the bases help to maintain and enhance the stability of the superpower deterrence relationship. This issue resurfaced in Australian politics with the approach of the biennial Labor Party Conference in July 1986. Though the pro-base view seems certain to prevail, the issue is likely to generate a spirited discussion. Through the bases and otherwise, Australian research involvement in the U.S. global nuclear defence and offence system is increasing. The Star Wars project is drawing it in even closer. New Zealand’s stance under the Lange government in relation to nuclear vessels is well known. It stems from the same fear of the increase of risk to New Zealand through such linkages, in the event of a nuclear war between the super powers. Though no question of scientific research or activity is involved in the case of New Zealand, that country’s response is indicative of the wide spread concern about increased nuclear risk. Violation of Human Rights The Operation Dismantle Case highlights an aspect of the illegality of manufacture which is not often considered. While the use of nuclear weapons is clearly a violation of human rights and therefore illegal, the testing and manufacture of weapons can also violate human rights. If this is so, testing and manufacture is also illegal under international law, since basic human rights are part of the universally accepted body of international law. The case deals with the violation of the human right to life and the increase in the likelihood of war. In addition, there is a whole series of other basic human rights which are violated by the manufacturer of nuclear weapons. Among these are the following; 174

Geoffrey Bar ker, “Thirty Minutes Warning of Armageddon,” The Age, Melbourne, 18 Mar ch 1986.

Nuclear Weapons Law

519

1. The right to a pure environment. This is violated with every nuclear test and is potentially violated with every manufacture 2. The right to space as a common heritage of mankind. Every fresh act of miniaturization of space is a violation of this right and constitutes the use of the property of all mankind as a fresh means of domination. As President Kennedy observed as long ago as 1960, those who control space can control the earth “ as in past centuries the nation that controlled the seas dominated the continents” 3. The right to health. This is violated with every nuclear test and nuclear waste. 4. The right to development. The channelling of earth’s resources into armaments at the rate of over two billion dollars a day represents a diversion of resources from development. The interconnection between the arms race and development is now a well-established tenet of international law. 5. The right to self-determination. The gross disparities in power and the compulsive spheres of military influence generated by the escalation of the arms race all but negate the right to self-determination by the numerous smaller members of the family of nations. Though legally and nominally entitled to self-determination, their practical options are being steadily curtailed. 6. The right to a social and international order in which the rights and freedoms set forth in the Universal Declaration can be fully realized. This right, spelled out in Article 28 of the Declaration, is violated inter alia by the consideration in (5) above. 7. The curtailment of human rights (e.g., freedom of expression, freedom of association) in the ranks of employees in the growing nuclear armaments industry. 8. The International Covenant on Economic, Social and Cultural Rights (1966) recognises the fundamental human right of everyone to freedom from hunger and commits States to take, individually and through international cooperation, the measures which are needed to achieve this. It can be argued that the vast diversion of State resources into nuclear weapons manufacture constitutes a violation of this human right. 9. The link between human rights and peace is spelled out in numerous international documents, commencing with the Preamble and Article 1 of the Charter of the United Nations. Any act that damages the prospects for peace that affects human rights. Finally, reference must be made to the U.N. Human Rights Committee’s consideration of the question of illegality of nuclear weapons manufacture. At an earlier meeting in 1982, the Committee had observed that the right to life enunciated in Article 6 of the International Covenant on Civil and Political Rights is the

520

Universalising International Law

supreme right from which no derogation is permitted even in time of public emergency. This right, the Committee observed, is basic to all human rights and is also enshrined in Article 3 of the Universal Declaration. At its 563rd meeting on November 2, 1984, the Committee noted that nuclear weapons not only threaten human life but also absorb resources that could otherwise be used for vital economic and social purposes, particularly for the benefit of developing countries, and thereby for promoting and securing the enjoyment of human rights for all. The designing, testing, manufacture, possession and deployment of nuclear weapons were held to be among the greatest threats to the right to life, and the Committee accordingly made the comment that “the production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.” *

*

*

In summary, the manufacture of nuclear weapons must always be with a knowledge of their possible use and with real or reasonably imputable knowledge that, once used, an all-out nuclear war is extremely probable. It must also be with real or reasonably imputable knowledge of those various other considerations, only too well-known today, which render manufacture a source of increased risk and which make manufacture inherently illegal and destructive of human rights. Intention and knowledge of consequences are key factors in determining legal responsibility for the consequences of one’s action. Concerning nuclear weapons, it is submitted that there can be no justification for placing responsibility for manufacture in a different legal category from responsibility for use. The only difference is the difference between commission of a crime and preparation to commit a crime. If a particular article is considered damaging to society, its manufacture is banned as well as its use. This is the case, for instance, with explosives and narcotics. It is an offence to manufacture the first, and it is an offence to grow the plants that yield the latter. Can the most damaging articles in human historynuclear weapons – attract a different principle? For all these reasons there seems to be little doubt that principles already available in international law are more than sufficient to point unequivocally to the total illegality of nuclear weapons in every aspect – whether in regard to use, threat of use, manufacture or stockpiling. It is indeed a paradox that a system dedicated to the highest principles of human conduct and the achievement of global harmony should have shown such tardiness in marshalling its resources to outlaw weapons which are a total negation of human dignity and humanitarianism, principles of jus cogens and state responsibility, environmental protection and species preservation, cooperation among nations and peace on earth.

INDEX

This page intentionally left blank

Index

523

INDEX Aboriginal wisdom, Australian Absolute equity Absolutism see also positivism Abu Bakr, Caliph Abus de droit Achaean League Acid rain Acquiescence Action Aid Adjudication of international disputes Adversarial litigation Advertisement, right to Affirmative action Africa

439 260-261 186 24 30 354 131 202 165 43-44,188 136 63 29 395,477

cultural traditions 14,15,61,91,127 135,136,189,378,435, 467,469 customary law 230,304,306,307,442 debt 143-144,196 economic exploitation 93 ideology 9 legal education 183 patent rights in 165-166 Unity, Organization of 69,265 Aggression, instinct of 343-344,346 wars of 41,397 AIDS 131,198,401 Air law 79 A’kempis, Thomas 379 Albright, Madeline 205,416 Alexander, the Great 340,350,351,353 Alfonso X, King of Castile 14 Alsace-Lorraine 313 Alsatia 14 Al-Shaybani 14, 23,127 Alternative problem solving frameworks 146-147 Alvarez, Judge 82 Amerasinghe HS 272 America 444 see also United States America, discovery of 154 American Bar Association 208 Civil War 42,471 Revolution 333 tradition 16,91 Amerindian customary law 306,307,440 Ammoun, Judge 263,266,304, 305 Amnesty International 10,54,176

Amphyctionic League 353 Analytical jurisprudence 123 Anglo-French Arbitration 298 Anglo-Norwegian Fisheries case 203,288 Animals, harmony with man 369 protection of 443 rights of 442 treatment of 195-197 Antarctica 62,477 Antigone 305 Antwerp 154 Apartheid 49-50, 55,56,167 Apathy, countering of 345 Appropriate technology 64,161,195 Aquinas, Thomas 7,14,27,153.470 Arab civilization 157,195 Arabic language 145 Arbitration 42-43 Archaeological interests 202 Argentine crisis 149 Arias, Oscar 206,416 Aristotle 6,14,33,87,269,273,279 280,281,285,311,351,352,386 Armaments industry 10,65-66,96,100,114 128-129,167,172, 176-177,195,205-206, 401-402,414-416,424 Arms fairs 205,416,424 lobbies 60 Sales, Code of Conduct 206,416 trade 60, 65-66,172, 205-206,414-416 see also armaments industry Asia 127,183,189 Asian Development Bank 12,161,433 Asoka, Emperor 370,379,383 Asphyxiating gases, prohibition of 51,454.474,495 Assisi, St.Francis of 375 Asylum, right of 19,232 Attitudinal barriers, to concept of world authority 104-114 Augustine 7, 27 Aurobindo, Sri 22, 23 Austinian theory 22, 69,129,130,441 Austin, John 34, 87,124,125 Australia 44, 85,162,189,395, 479,518 Australian Aboriginal customary law 306,439 Austro-Hungarian Empire 313

524 Averroes Aviation Avicenna

Universalising International Law 6, 7, 14 107 6, 7

Bacon, Francis 157, 195 Bacteriological Warfare 51,454,485,495 Baha’i Faith 368,410 Balance of power 421 Balance of trade 117 Baltic Sea Convention 459 Bangladesh 175 Banjul Charter 378 Barcelona Traction case 172,197 Bargaining power, inequality of 97,116,117,129,152,158159,193-194,206,235,414 abuse of 234 Belarus 222 Bentham, Jeremy 43, 87,187,340 Berolzheimer, Fritz 305 Bergen Ministerial Declaration 458 Bhagavad Gita 305,377,381,382,383,384 Bhopal 134,175 Bhutan 175 Bible 345 Bidding unto good, principle of 201 Bin Cheng, Professor 266,277 Bioethics 79, 95-96 Biological diversity 199,434 Convention on 433 weapons 128,199 Biomedical engineering 67 Bio-piracy 165 Birch, Charles 135,148-149 Bismarck 34,103 Bloch, J 363 Bodin, Jean 105 Bosnia and Herzegovina 310 Boundaries, redrawing of 418 Boutros Boutros – Ghali 271 British Empire 332 Brundtland Commission 432 Brussels Conference,1874 472 Buddhaghosha 17 Buddhism 9, 14, 17-19,61,67,87,88,91,127, 152,153,188, 238,305,351,370373,374373,377,378,379, 380,381,382, 383, 384,385,386,387,388,410,442,467,470-471 animals, rights of 442 dualism, absence of, in 18 economic causes of war 385 equality, teachings regarding 18,377,381 human rights and 18,377,381

forgiveness in 384 ideology of compassion in 9 justice as pre-requisite to peace 379 loving kindness, teachings regarding 385 nature, attitude towards 196 non-aggression, teachings regarding 382 non-violence, teachings regarding 383 peaceful resolution of disputes in 387 peace mindedness, analysis of 75 psychological insights of 17,343,375, 379,385-386 righteousness, concept of 376 tolerance 383 Bulgaria 223 Burke, Edmund 435 Burma 160 Bush, President George 504 Calabrian language 145 Caldicott, Helen 364 Calvinism 155-156,157 Canada 299,517 Canadian Charter of Rights and Freedoms 517 Capitalism 5 Cardozo, Benjamin 79,100 Caribbean 477 Cartagena Protocol on Bio-safety 199 Carter, President 358, 506 Catastrophic disasters 134 Categorical imperative, in state relations 124,339 See also Kant “Censors of Piety” 379 Chad 44 Chakravarti 111,351,353 Chancellors, English 305 Chandragupta Maurya 23 Channel Islands 278,298 Charles II 157 Chemical weapons 67,128,199, 454 Chernobyl 134, 456, 513 Child abduction 174 abuse 407 exploitation 58-59 labour 393 slavery 393 soldiers 393 victimization 393 China 351, 423 Chinese civilization 8,157,195 cultural tradition 14, 61, 62,136,467 language 410 law 304

Index Christianity

7, 8, 9, 27-30, 153,188, 351,373, 410, 467,469-470 assistance to neighbors 373 attitudes towards trade 153-157 equality as taught in 381 forgiveness in 343,384 higher law, concept of 376 human life, sacrosanct nature of 380 just war doctrine 382 non-violence and non-aggression 382 peace and 369-370, 375 peaceful settlement of disputes 387 tolerance 383 transcendent value of 336 wealth, accumulation of 388 Christian nations, privileged position of 27-28 tradition of justice in 305 wars 342 Church, authority of 4 teachings, regarding war 41 Churchill, Winston 98,358, 501 Cicero 6,351 Civil and Political Rights 11, 39, 48-49, 55, 70, 127,172,191, 479,494,318,319,323 “Civilized nations” 8, 30 Clausewitz 34,332.479,510,511 Clausewitzean century 332 Clarke, Sir Arthur 136,137,139 140,443-444 “Clean slate” principle 312-314,317 Climate change 208,363,365,414,434 Closed sea, concept of 46 Code Napoleon 350 Codification 220 Co-existence 222,223,436 Cold War 5, 9, 11,12,311, 333,415,464,465 “Collateral damage” 83,480 Collective approach 222,409,420-421,447 punishment 19 responsibility, principle of 81 Colonial constitutions 49 treaties 313 Colonialism 4, 8, 12, 29, 35, 84-85 109,143-144,160,186, 187-188,223,228,313, 340,397,409,417-418 Commercial power, checks on Common amenities

168 203

525

currency 110 heritage, concept of 16,46,71-72,231,441 resources regimes 200 Commonwealth, British 157 Communications revolution 115,139,225 technology 203 Communism 5 Comparative law 30,212 Compartmentalization, of international law 1-2 Computerization 67,139,140,438 Conciliation 188,343,412 Conflict causes of 17 psychology of 17 resolution of 17 Confucianism 19-21, 26,91,127,188 Confucius 363,375,381,410,420 Congenital defects, caused by nuclear weapons 467,478 Constantinople, capture of 154 Constituency of the unborn 115 Constitutional law, influence of human rights upon 49 Constitutions, Eastern European 222-223 Contained nuclear war 504-505 Continental Shelf cases 226,277,287,293,294, 295,296,297,301 Contract, freedom of 120-121 Contract law 158-159 Contractual fairness 93-94 inequality 129 see also bargaining inequality Conventional weapons, restrictions on use of 474 Conversion, concept of 66,414 Co-operation, international 17, 28,6263,138,142,202 222,223,348 Copernican revolution 114 Corfu Channel case 450 Corporate personality, piercing the veil of 172,176 Corruption, problem of 161 Cosmic issues, of human survival 38-39 Crimean War,1855 471 Crimes, against humanity 128,520 economic 128 environmental 128 Crops, destruction of 23 Cross-cultural understanding 17, 395, 399 Crusades 14, 24,343,369 Cuban missile crisis 507

526

Universalising International Law

Cultural base of international law 126 concerns of minorities 144-145 heritage 211 interests 202,203 rights, see Economic, social and cultural rights Culture, conditioning influence of 126 distortions of 368 transnational 140 Cultures, interpenetration of 345 Customary international law 98,210,219235,397,422,433 Customary law system 127 Czechoslavakia 313 Czech Republic 223 Dalai Lama 346,375 Dante 111,351,353 Danube 44 Dar-al-Harb 351 Dar-al-Islam 351 De Arechaga, Jimenez 275,276,278,286,293 Deforestation 190 Deformalization, trend towards 68-69 Delian League 108 Delimitation 226 Delphic League 354 Delors, Jacques 110 Denmark 44,297 Desertification 365,433,434 Convention to Combat 433 Deterrence 500-503 Devanampiyatissa, King 442,443 Developing countries 422 special responsibilities of international lawyers in 74 legal education in 182-184 Development, Declaration on the Right to 432 law of 63-64 problems of 129 right to 432,433 de Vitoria 27,470 de Visscher,Charles 265,279,286 Dhammapada 345, 370, 384 Dharma 21-23,305,371,379 Dharmasastra 305 “Dictates of public conscience” 476-480 Dillard, Judge 266 Diplomatic immunity protection

176 13, 25

representation 17 Disarmament 397, 423 Disclosure, of potentially harmful technology 135 Discrimination, principle of 487 Dispute resolution 343,409,419-420 DNAexperimentation 138 Domestic law, dependence on international norms 39-40 reference to ICJ of questions regarding 181 Donne, John 56 Double truth, doctrine of 7 Douglas, Justice 196 Drug running 60,66 trafficking 177 see also narcotics Dualism 125 Dualism, absence of, in Buddhism 18 in Islam 23 Dublin Declaration, on Environmental Imperatives of European Community 433 Duguit, Leon 21, 92,124,125 “Dum dum” bullets 474 Dumbarton Oaks 107 Dumping of goods 166 waste 190 Dunant, Henry 50,356-357,395,401,407 Dutch Civil Code 235 Dutch East India Company 155,156 Dutch jurists 126 Duties, human 2,21,91-92,127 towards humanity 128,409,414 Early warning systems 409,419-420 Earth bound vision 113 Earth resources, exploitation of 188,199,416-417 Earth Summit 64,198 Eastern Europe 222-223 “Ecocide” 128 Ecological aggression 490 Ecological balance 133 standards 134 Economic Development and Action Program 119 disparities 115 force 64-65, 100 justice 120 nationalism 156 power 152 Rights & Duties of States 265 Economics, and international harmony 142

Index Economic, Social & Cultural Rights

2, 11, 21,39,48-49,55, 63, 101,127,172,191, 194,264,452,479,519 Economic Commission for Europe 458 interests 202,203 well being 133 Edict of Toleration, Asokan 383 Education 20,21,113,141 international law, on 32-33, 72-73 peace, on 341-343,348,399,407,409 420-421 regulation of 105 world citizenship, for 20,21 world order, on 420-421 Egypt 423 Eisenhower, General 96,358,401 Electro magnetic pulse (EMP) 514-515 Electronic funds transfers 170,177 “colonialism” 170-171 communication 228 media 170-171 Elimination of Intolerance and Discrimination, Declaration on 383 Empire Chinese 351 Holy Roman 4,351 Roman 350,351 Empires, disbanding of 160 Enforcement mechanisms, lack of 3,130 England 156,157 ENMOD Convention 491 Environmental concerns 189 considerations 64 crimes 128 damage 59,60,174,436,489-493 degradation 63,190,194 hazards 198,366 impact assessment 231,460-461 injustice 340 interdependence situations 133 interests 168,202 modification techniques, hostile use of 490 pollution 307,414,421 see also pollution problems 64, 70, 71,136,175,223,396 protection 16, 19, 28,62,81,203,210, 345,363-365, 422 refugees 53, 59 studies 397 Environmental law 8,59-60,61,62,79,84

527

179,196,224,437,448-463, 490,491 see also sustainable development as new branch of international law 133-134 codification of 490 individual state’s inability to handle 113,172 Equality, Buddhist analysis of 18, 29 considerations of 202 facade of, in legal systems 208 Islamic view of 23 national 41-42 religions, as taught by 380-381 states, of 409, 418-419 Equidistance rule 280,284,292,293-296,303 Equitable decision making 283-284 distribution of world food 264 economic order 18 interpretation 279 methods 251-252 prices 265 principles 249-250, 288 procedures 250-251 results 252-253 sharing 265 terms of trade 265 Equity 189,202,205,231,240-309 absolute 260-261 contra legem 231,260,263,283 ex aequo et bono 231,248,259,260 inadequate use of 89 intra legem 260,262,283 methods of operation of 277 praeter legem 260,261-262 routes of entry into international law 264-271 treaties, applied by 264-265 uncertainties in 284-286 uses of 275-288 Erasmus, Desiderius 334, 336, 342, 360,365,370,395 400,437 Erga omnes obligations 16, 71-72, 81,200,231,409,425 437,445,449,451,453 Estoppel 276 Eternal law 7 Ethical codes, need for, in commerce 166-167 Eurocentrism 374 Europe 111,154 European Bureau for Lesser Used Languages 144,145 Community 69, 109, 110, 111,144,145, 433,458

528

Universalising International Law

Convention, for Protection of Human Rights and Fundamental Freedoms 49,494 Court of Justice 141,142 Monetary System 142 Union 366,433 Union Directive on Unfair Terms 235 Exceptionalism policies of 419 Exclusion clauses 236 Exclusive Economic Zone 290 Exploitation of labour 60 economic 64 Extinction of species 436 “Failed nation states” Fair dealing Fairness Fairness in contract

149 15,154,158-159, 237, 409,413-414 202, 269 93-94, 97,118 158-159, 193-194, 225,233-236,413 413-414

Fair trade practices see also unjust contracts Falk, Richard 147 Farewell Sermon of Prophet Mohamed 377 “Federation of the World” 112 Fitzmaurice, Judge 270 Food and Agricultural Organization 398 Food chain, destruction of 363,434 Food crops and patent rights 165-166 Food supplies, poisoning of 478 Forced labour 29 Foreign investment 60 Forests, cutting of 23 Formalism see also positivism 129,130,188, 193-194,279 Fortress mentality 109 France 175,277,456,459,461,462 France, Anatole 347 Francis I 24 Francis Joseph, Emperor of Austria 50 Franco-Prussian War 313,332 Free bargaining 154 see also inequality of bargaining enterprise 10 trade 12 Freedom from want 409,421-422 Freedom of contract 120-121, 153154,207,414,436 French revolution 421,435 Freud, Sigmund 343,346 Friendly relations among States 11,16, 28 Friesian language 145

Froude, J.A. Fuller, Lon Future generations, rights of see also intergenerational rights

37 78,185,282 307,422

Gabchikovo – Nagymoros case 422 Gaelic 145 Gandhi, Mahatma 22, 23,100,189,379,382, 383,384,395,407,435 General Assembly 41,55,146,202,227 383,411,450,453,464,476, 477,479,494 “General principles of law” 30,433 Genetic deformities 363 engineering 83 manipulation 96 Geneva Convention on the Continental Shelf 1958 287, 288, 289, 294, 311,318,319 Geneva Conventions 51,57,127,237,318,320, 473,487,492 Geneva Gas Protocol 495,496,497,498 Genocide 15, 28,197,318,321,489 Genocide Convention 1948 310,311,312,315, 316,317,320,489 Genome, mapping of 96 Gentili 26 Geographic factors, in delimitation 292 German basic law 197 trading companies 162-163 Germany 146,483 Global commons 195,203 concerns, multiplicity of 225 Global Environment Facility 64 government 137,352,367 harmony, Chinese concept of 19-21 marketplace 60,97, 151- 168, 158-159,168,225 peace 115,367,368 poverty 434 resources regime 115,135 society, creation of 140 stability 115 TVcoverage 115 village, concept of 63, 116, 223 warming 53,59, 68,436 Globalization 5,12,110,119,208,225,366 Good faith 29,202,230,237,277 Good Samaritan, parable 28, 29,378,385 Gorbachev, Mikhail 516 Graeco–Judaeo–Christian tradition 2 Gratian 153 Greal Belt 44

Index Greek city states culture philosophy Greenland “Grotian moment” Grotius, Hugo

42,353 14 305,338 273,297 88 4, 7,13,16,25,26,33,34,46 68,87,88,89,90,99,127,186, 269,374,471 Group duties 16 orientation 421 rights 15,16,188 Grundnorm theory 124 Guardianship Convention 173 Guinea/Bissau case 287,296 Gulf of Maine case 294,295,299,301 Gulf War, 1991 54 Hadiths

13, 23, 24, 25,371,379,380,381 384,385,411 Hague Conventions 51,127,176, 180-181,472, 473,475,483,485,496, 497,498,499 Hague Peace Conferences 473 Hammarskjold, Dag 358 Haroun al Raschid 25 Harvard Multinational Enterprise Project 207 Harvests, destruction of 23 Helsinki Rules, on International Rivers 200-201,277,278,292 Higher law 6-7, 16, 28 Hillel 26

Hinduism

15, 21-23, 61, 87, 88 127,152,153,237,304,305,351 371,373,375,410,424,467-469,471 equality in 381 human family, unity of 377-378 hyper destructive weapons, teaching on 424 international law, as world sovereign 376 justice as basis of peace 379 non-aggression 383 non-violence 383-384 peaceful resolution of disputes 387 righteousness, duty of 379 tolerance 383 Historical interests 202,203 Hobbes, Thomas 22, 87, 99,117,122,158 Hohfeldian analyses 123 Holland 156,157 Holmes, Justice 91,281

529

Holy Roman Empire 4,351 Holy See 313 Homer 335 Hudson, Manley 265,266,285 Human dignity 16, 38, 83, 96 Humanism 23 Humanitarianism in trade 158-159 Humanitarian intervention 21, 115,147-148,410 law 13,17, 21-24, 28,50,211,212, 227,237-238,362,366,465-466, 472-474,484,487 treaties, succession to 310-323 Human rights 10,11,14,29,47-49 65,66,79,83,96,100 105,111,112,133, 137,167,168,171,174 blind spot, regarding armaments 10, 65 Christian teaching regarding 28-30 constitutional law, influence upon 49 cross cultural origins of 14 duty related view of 29 economic substratum of 151-152 integration into domestic law 40 Islamic concepts of 25 Judaeic insights on 26 peace as a human right 227,231 Human Rights Commission 57,322 Human Rights Committee 70,322,494,519 Human survival 352,362,363-365 Hungary 44 Huxley, Aldous 334,337-338,410 Iceland 300 Imperial Germany 103 Imperialism 84, 186-187 theological 338 Indentured labour 59 Independence, American war of 42 India 42,157,175,195,351,423, 468,487,506 see also Hinduism Indian Constitution 435-436 Indian Ocean 132 Individual freedom 120 liberty, philosophy of 14 Individualism 421-422,435,436,441,.447 Individualist orientation 16,71,99-100,200, 201,202,222, 421-422 Individuals, as subjects of international law 171-172,178-179 as units of peace 374 Indo-Pakistan theatre 506 Industrialization, 154

530

Universalising International Law

Industrial relations 17, 19 revolution 190,421,444 Inequality of bargaining power 97,116,117,129,152 Information power 141,167 technology 178,349 Injustice, sense of 231,303,386 Institute of International Law 495 Integrated Program for Commodities (IPC) 118 Integrity in trade 19 Intellectual property 164-166, 172,203 Interdependence situations 132-133 Intergenerational equity 490 rights 14,16, 28,71-72,81,88, 96,101,192193,194,197,200, 210,211,230,231,307,409,416,417,445 damage 341 International Atomic Energy Agency 398 International Chamber of Commerce 236 International Civil Aviation Organization 398 International Committee of the Red Cross 227,237,318 See also Red Cross Movement International communications technology 203 International contract law 158-159,193-194 International Court of Arbitration 236 International Court of Justice 3, 8, 30, 43, 44, 49,57,61,77,97,175,180, 181,182,192,202,228,233, 235,271,303-304,334,410,423,464 International Criminal Court 102,171 Criminal law 226-227 Criminal tribunals 212,238 debt 116 economic crime 193 humanitarian law See humanitarian law Labour Organization 44-45, 59, 108,138,141,398 International law, access to 207-208 achievements of 40-52 compartmentalisation of 1-2 conceptual framework of 185-213 contracts, regarding 158-159 crimes under 449 cultural base of 126-127 custodian of planetary resources, as 92 enforcement mechanisms, lack of 76 Eurocentric nature of 210 expanding the reach of 139 fertilizer of domestic law, as 100

idealistic basis of 76-77,78,80 instrument of peace, as 408-428 monocultural structure of 88,409 moral authority of 76 multicultural nature of 81-82,88,210,409 multidisciplinary nature of 81-82 privileged, supporter of 207-208 progressive development of 202 public and private 169-184 recent transformations of 372 shortcomings of 102 temporal dimensions of 191-192 universalist background of 81 International Law Association 200-201,277 Law Commission 180,479,490 Law Institute 488 International lawyers ethical code of 211-212 “invisible college of” 79-80,115,149-150 power of 76-77 responsibility of, at turn of century 75-80 responsibility of, in developing world 74 International Liability for Damage Caused by Space Objects 264-265 International marketplace 93-94 trade 15, 24,117,158-159 International Monetary Fund 12,116,208 International Red Cross 50 International Rivers 292 See also Helsinki Rules International Sale of Goods Convention 234 International Telecommunications Union, Convention of 276-277 International trusteeship 200 International Working Group on Slavery 393 Internet 171 Inter-temporal principle 456 Iran 411 Iran-Iraq War 506 Iraq 491 Islam 7, 9, 13, 14, 23-25,42,61,67, 88, 91,152,153,188,201, 237,304,306,308,351,370-371 373,376,410,424,467,470,471 aggression, prohibition of, in 382 “bidding unto good” 385 charitable trust, notion of 388 force, limitation on uses of 382 forgiveness, teaching on 384 human equality 380-381 human life, infinite value of 380 justice as pre-requisite to peace 379-380 peaceful settlement of dispute 387

Index self-defence unity of humanity Islands, regime of Istihsan Italy

382 377 291 304 108,483

Ius cogens, see jus cogens Jan Mayen case 203,273,297 Japan 379,483,489 Jay Treaty, 1794 42,265,278 Jellinek 124,125 Jenghiz Khan 343 Jenks, Wilfred 47, 53,182,313,317,323 Jerusalem capture of 443 Jessup, Judge 266 Jewish culture 14,338 Jones, Sir William 87 Josephus, Flavius 26 Judaeic Philosophy 26,305 Judaeo Christian tradition 2, 7,196,380 Judaism 25-27,61,368,382,410 international law, influence upon 25-27 juristic literature, richness of 25-26 life, infinite value of 380 love for humanity 26 peace, connotations of 369 peace, pursuit of 26 swords into ploughshares, 26-27,382 Talmuds 25 Judgments, Convention on 181 Judicial decisions 397 as source of international law 433 Judiciary, role of 444-446 Jural postulates 125-126 Jurisdiction, Recognition and Enforcement of Juristic opinion 495 Juristic writings, as source of international law 397,433 Jurisprudential perspectives 120-126 Jus ad bellum 127,356,470 Jus civile 256 Jus cogens, 114-115,126, 131,198,226,247,449,451,484,520 Jus gentium 304 Jus honorarium 255-256 Jus in bello 127,356,470,471,487,503 Justice, as fairness 339 as necessary condition of peace 369 Just price, principle of 152,153 see also bargaining power “Just war” concept 41,382 Just world order 119

531

Kant, Immanuel

43, 50,100,123124,339,341,353,355,367 Kellogg – Briand Pact 40 Kelsen, Hans 124,270,273 Kennedy, Edward 502 Kennedy, John F 358,507 Kingdom of God, concept of 337,379,388 “Kingless authority of the law” 21,37 King, Martin Luther Jr 331,378,390 Kirgizstan 223 Kiribati 132 Korean War 464 Krabbe 124-125 Kuwait 491 Lac Lanoux Arbitration 277 Lachs, Judge Manfred 57-58 Land attitude towards 190 community’s interests in 190 mines 205,407 ownership, narrow concepts of 189-190 unsaleability of 85, 94-95 sanctity of 16, 189-190 trusteeship of 16 Language, as barrier to global integration 140 “Language culture” 144-145 Language, in European Community 144-145 Lateran Council,1139 67, 237,469,470 Latin America 108, 143,183,395,477 Latin League 354 Launch on warning capability (LOWC) 512-514 Lauterpacht, Judge 182, 229,265 Law of the Sea 203,240-309 Law of the Sea Conference, Geneva 296 Law of the Sea Convention 45-46,264,265,299 Lay public, opening of international law to 72 League of Nations 36,42,107,108,112, 113, 146,333,355,356,398 Legal education in developing world 182-184 in Western law schools 185-186 Legalism 19, 29 Legitimate interests, concept of 202-203 Libya 44 Libya/Malta Case 291,294,295 Lieber, Franz 472,486 Lieber Code ,1863 485 Limited Nuclear War 506-507 Lincoln, President 472 Linguistics 82,83, 362-363 Literal interpretation 29 Littoral States 277

532

Universalising International Law

Lobby groups Locke, John Lord’s Prayer Lorenz, Konrad Lorimer, James Lotus decision Lotus doctrine Luther, Martin

60,168 14, 15, 87, 122,146 30 344 27 482-484 102, 201 155, 334

Maastricht Treaty, 1992 459 MacArthur, General Douglas 358 Machiavelli 41, 347 Mahabharatha 22-23,424,442,468,469 Mahawamsa 443 Mahinda, Arahat 442 Maimonides 14, 25, 26 Malaysia 130 Maldives 132 Malinowski, Bronislaw 130, 230,441 Malnutrition 417-418 Malvinas 149 mandate system 146, 230 Mandela, Nelson 395,407 Manu, code of 22, 87,387,468,469 Mare clausum 46 Marine Environment, Convention for the Protection of 459,461-462 Maritime demilitation 240, 309 Martens Clause 472,473,475476,482,483,484,485 Marx, Karl 340 McCarthyism 464 McDougal, Myres S 130 Mc Namara , Robert 500 Media ethics 345 growth of 225 imbalance in coverage by 44,85,9293,99,141,345 law relating to 79 power, without responsibility 100 Mediation, 412 OAU Commission on 265, 343 Megasthenes 468 Melanesian custom and tradition 14, 91, 136, 189, 196 Mercantile ethic 5 Mercantilism 170 Middle East 506 Migrants 38,171 Migrant workers 53-54 Militarism 369,397 Military industrial complex 10,96 Military law 366

Military personnel, advice to 211 Milton, John 114 Minorities, cultural concerns of 144-145 Minority cultures, protection of 144-145 Montenegro 310 Montessori, Maria 394 Moghul emperors 24 Monetarism, 84-85,99,101,441 Money laundering 66,172,177 Mongols 343 Monism/dualism debate 125 Monocultural perspectives 150 Montego Bay Convention 45, 265, 287, 290 Montesquieu 32, 33, 87 Moon, rights in respect of 47, 53, 68, 139 Moon Treaty 276 Moral restraints freedom of commerce from 157 freedom of science from 157-158 Morocco 122 Multicultural background, to humanitarian Law 467-474 Multiculturalism 61-62, 150 Multilateral forums 227 Multilateral treaties 62 Multinational actors, new 167-168, 192-193 Multinationals, see transnational corporations Muslim law, see Islam Mutually assured destruction 506,515 Napoleon I 34, 112, 313, 332, 350 Napoleon III 50 Napoleonic wars 43 Narada 22-23 Narcotics 105,128, 129,424-425 Narcotics Trade 409,415,424-425 Nation state concept 102 Native American traditions 190, 196 NATO 497 Natural law 4, 6, 9, 19, 68, 113, 186-187, 210, 225 Nature, domination over 195 downgrading of 190 harmony with 188, 196 Nauru 44,146-147, 162-163,438,440 Nazis 343 Nazi war leaders 51 Nepal 175,483 Nervo, Padilla 296 Netherlands 175 New International Economic Order 119

Index Information Order New Testament New Zealand Nicaragua case Nicephorus, Emperor Nicholas II, Czar Nicomachean ethics Nigeria Non-aggression Non-Aligned Summits Non-alignment Non-Governmental Organizations (NGO’s)

141 25, 29 448,456,458,459, 461,463,518 233 25 112, 336 273,279 313 17,19,374,382 119 19, 118

86, 165,168,172, 192, 227,417,421 195-197

Non-human life, status of Non-Proliferation Review Conference 1995 476 Non-state actors 85-87,100-101, 172,225 Non-violence 16,19,29,374,383-384 Nordic contract law 235 Normativist school 239 North American Free Trade Agreement 433 North Sea Continental Shelf cases 260,269,278, 291, 294, 295 North South divide 6-97, 118,178, 225, 233, 236, 340, 365,412,434,446 Norway 293,297,300 Noumea Convention 462 Noxious materials, transport of 175 Nuclear, accidents 364 armaments 59 disarmament 423 experimentation 199 holocaust 364 know how 364 Non Proliferation Treaty 95,503 pollution 131 reactors 59,138 war 15 waste 59, 83 weapons 67, 95,102,128, 145146,202,224,228397,407, 409,410,423,424,464-520 winter 363,364 Nuremberg Charter 485 principles 127 tribunals 51,114,489,503 Nyerere, doctrine 313 Nyerere, Julius 117 OECD

178

533

Oil pollution 62 resources, Middle Eastern 148 Old Testament 25 Olympic Games 345 Omni-competent state, myth of 105-106 Opinio juris 115, 145-146, 227,238 Oppenheim 28 Organization of African Unity 265,343 OSPAR Commission 459 OSPAR Convention, 1992 461 Ottoman Empire 24 Outer space 115, 132 Overseas aid 10 Ozone layer, depletion of 59, 131,434,436 Pacific

9, 61, 127, 132,135, 162-163,230,306, 307,395,440,477 Pacta sunt servanda 17, 19, 23, 28, 30, 183, 230, 239 Pakistan 506 Pali 410 Palme, Olof 500,501 Papacy 42,156, 351 Papinian 256 Papua New Gunea 163-164,440 Parakramabahu, King 443,444 Paris, University of 154 “Parliament of Man” 112 Patenting, of living organisms 96 Pax Christiana 351 Pax Romana 350,351 Peace 16,19, 26, 28, 43, 61, 63, 66, 116, 120, 130,133, 227, 231 Peace, centrality to all religions 369 connotations of 331-332,369,372 declaration on the right to 411 education 390-407 human right to 409, 411-412 individual as unit of, 374-376 of Westphalia 395 philosophical perspectives on 400 religious perspectives on 368-389 studies, 348 see also education Peace Conference, 1899 112, 336, 355,395,401,472 Peace Congresses 332,395 Peace movements 43 Peaceful co-existence 17, 19 resolution of disputes 19, 28, 42, 61 Pearce, President Franklin 190 Pentateuch 25

534

Universalising International Law

Peoples, will of 226 Perelman, Chaim 260 Peremptory norms 197-199 see also Jus cogens Perennial philosophy 338 Permanent Court of Arbitration 42, 43, 336 Court of International Justice 43, 77, 97, 98, 108, 181,201,221,257, 267, 336, 356, 483-484 sovereignty over natural resources 135,177 Phillimore, Robert 27 Philosopher kings 367 Philosophy, linkage with international law 209-211, 226 Ping 19-20 Piracy 171-172, 231 Planetary danger 71 Plato 87, 341, 367 Plautus 343 Poisonous weapons 23 Poland 313 Pollution 59,62,175,179-180, 307,436 Pollution of Rivers and Lakes, Resolution on 277 Polynesian custom and tradition 14,15,61, 91,189,196 Population as factor in delimitation 298-299 Positivism 9, 20, 22, 35, 69, 71, 78,113,129,186-187 221,225,333,408,414,441 Pound, Roscoe 125,130,208 Power without responsibility 100-101,161-162 Praetor 255 Precautionary principle 198,200,231, 445,458-460 Prisoners, treatment of 23-24 Privacy, right of 25 Private international law 169-184, 235 Products liability 174 Promises, sanctity of 19 Proportionality, as factor in coastline demarcation 302,303 Proportionality, principle of, in war 487 Protestant ethic 156-157 Proudhon 340 Prussian militarism 332 Psendo-scientism 90-91 Psychological insights Buddhist 17,343,375,379,385-386 legal studies, importance to 186 Psychology of conflict 17,374,385-387

Public interest litigation Publicists Punitive expeditions Puritans Quakers

179-180 269 21 156 401

Radhakrishnan, S 23,382 Radioactive waste 461-462 Rainforests, destruction of 59, 92 Ramayana 22, 67,424,442,468 Rawls, John 339 Reagan, Ronald, President 467,500,507 Realist school of jurisprudence 120,123,130, 193,208,414 Reconciliation 17 Red Cross movement 50, 51, 227 See also International Committee of the Red Cross Reformation 155 Refugees 38, 53, 173, 220 Regional groupings 69 interests 203 Religions 40 Religions, inspirational value of 89-90 common core of 345,369,420 Religious perspectives on peace 368-389 discrimination 383 Renaissance 334,370 Res nullius Res inter alios acta 314 resource shortages 135 Respublica Christiana 351 Reves, Emery 126 Revolution, right to 21 Rhine 175 Rights, concentration on 91-92 Rio Conference 461 Rio Declaration on Environment and Development 198,433,450,459,462,492 Rio, Earth Summit 64,198 Riparian States 277 Roman Empire 350,351 Roman law 6, 22, 88, 257, 304, 305, 311 Rome 6, 351 Roosevelt. Franklin D. 412 Root, Elihu 267,451 Rosenne, Shabtai 26, 182,411 Rousseau 346,350,353,354,355 Russell, Bertrand 352,353,362 Russia 222,223,336,444 Russian Federation 465 Rwanda War Crimes Tribunal 52

Index Sociological jurisprudence

SAARC region Sagan, Carl Saint Pierre Sampson, Anthony Sanctuary, right of San Francisco Sanskrit Satyagraha Scandinavian realists Schachter, Oscar

179-180,438 364 354 138 237 76,355,395 87,305 383 123 224,226,267,275,285, 287,311 Schell, Jonathan 363,364 Scholars, responsibilities of 6 Scholasticus, Oliverus 24 schoolmen, mediaeval 153 Schwarzenberger, Professor 268,279 Schweitzer, Albert 190 Science, see technology science, emulation of, by international law 187 powers of 190 Scientific empires of power 83-84, 225 ethics 129 “Scientific” legal mind 34, 35 Sea, Law of 45-46, 79 Seattle, Chief 190 Secrecy, in time of war 348 Secretary-General, UN 453 Secret reservations, in treaties 355 Security Council 41, 43, 107,491,492 Seeds, patenting of 96 Self-determination 314 Self-defence 415,479 Semantics 363 Serbia 310 Sermon on the Mount 384,387 Shafi’i 23 Shari’a 304,374,376 See also Islam Sherman, General 358 Shotoku Taishi 379 Siete Partidas 14 Sikhism 348 Slavery 14,15,29,56,57-58, 187, 231-232,393,407 Slavery Convention 57 Slovakia 44,223 Social contract theory Development, World Summit on justice solidarity theory, see Duguit

22,156 433 133

535

120,130,193, 208,230 Sociology 82 Solferino, battle of 50, 356-357,401 Solomon Islands 440,492 Somalia 53 Sophocles 305 South Africa 49, 56, 167 Sovereign autonomy 206 dignity 106-107 equality 118 Sovereignty 16, 28, 36, 38, 65, 69-71, 82, 104, 111, 112, 113, 114,118, 205,317,366,367 anachronisms regarding 137 curtailments in, for tomorrow’s world 125 economic dimensions of 115 emerging dimensions of 114-150 impenetrability of 111-112,134 internal and international 122-123 in the books and in the field 120 jurisprudential perspectives on 114,120-126 lack of precision in concepts of 121-122 multiple meanings of 122 obligations attendant on 137 new states, of 104,105-106 natural resources, over 135 penetration by trading corporations 138 psychological elements in 123 species survival imperatives as limiting factors 129-132 untrammelled 109 Soviet fire power 505 Soviet Law 304 Soviet Union 12,108,318,344,465,512 Space 115,132, 203 age 136 colonization of 137 exploration 62, 136 law 46-47, 79, 227, 264,276 objects, damage by 264 physics 349 stations 136 travel 366 weapons in 137 Spain 85, 235, 277 Spanish colonization 122 jurists 126 “Special circumstances principle” 296-297 Specialist organizations 44-45 Species, extinction of 92 preservation 520

536

Universalising International Law

survival desiderata 132 imperatives 120,129-132 Sri Lanka 160,173,175,179,391,405,443 Star Wars 505, 507-509,515,518 States, equality of 120-121 State conduct, scope of legitimacy of 201 practice 300 succession 310-323 St Augustine 7, 27,470 Stockholm Declaration on the Environment 59,449,450,451, 458,462,492 Stone, Julius 6, 280, 281, 285, 313 St. Petersburg Declaration,1868 472,485 Strategic Defence Initiative (S.D.I) 513,516 Students, role of 101 Suarez, Francisco 27 Sub-Saharan Africa 417 Sukra 22-23 Suleiman the Magnificent 24 Super sovereign 111 Suquamish tribe 190 Surveillance technology 68 Sustainable development 16,61,64,71-72, 194, 195, 196, 231, 341,409,410, 422-423,431-447,458 Small Island States, of 433 Swedish Contract Act 235 Switzerland 344 Tagore, Rabindranath 23 Talmuds 25 Tamerlane 343 Taoism 127 Tax shelters 195 Technology, 83-84,135,152,222 assessment 134,364 choice of 161 harmful 135 power of 83-84,152,221,225 transfer 64 Teleological theories 124 Ten Commandments 380 Tennyson, Alfred 315,390 Terrorism 60-61, 62,115,231,393,424 Terrorist Organizations 364 Thatcher, Margaret 110 Theatre Nuclear War 505-506 Theological Imperialism 338 Theresa Mother 395,407 Third World, debt 143-144 development 144 Thirty Years War 112,121

Thoreau 444 Tlatelolco, Treaty of 449 Tolerance 19 Tolstoy, Leo 334,336,337,342,395,400,444,510 Torah 25 Torture 10, 15, 29, 54-55, 176,226,345,407 Convention against 315,479 Trafficking in women and children 129 Transborder air pollution 134 data flow 178 Transnational adoptions 174 corporations 85-87, 104, 128, 134, 138,158-159,161-164 166-168,172,175,178, 195, 206-207,208,233 employment 173 Treaties, colonial 313 equity, application of, required by 264-265 interpretation of 23, 30,180-181,182 sanctity of 17, 23, 28, 30, 127,397,410 secret reservations in 355 succession to 310-323 Treaty law, compared with customary international law 223-225, 232259 Treaty practice 24-25 Triage, doctrine of 149 Trobriand Islands 230,442 Trueblood, Elton 90 Truman Proclamation 288 Trumbo, Dalton 359 Trusteeship earth resources, of 422,445 land, of 16, 25, 61, 81,440,442 principles 200 system 146,230 Trusts 176 Tunisia / Libya 292, 301 Turkey 16, 54 Turkish language 145 Turkmenistan 22 Tutu, Archbishop Desmond 435 Tuvalu 132 Ukraine 222 Unborn, constituency of the 135-136,445 generations 136 UN Charter 11, 41, 42, 77, 97-98, 99, 100, 109, 112,113, 114,148,203-204,226, 271,314,318,323,332 398,423,476,477,478-480

Index 492,494 Preamble to 204,226,271 UNCLOS III 272,289,308 UN Conference on State Succession 313 UN Conference on The Human Environment 59,449-450,451 UN Convention on Contracts for the International Sale of Goods 234 UNCTAD 118, 194 Underdevelopment 63 UNEP 460 Unequal contracts 60 UNESCO 391,393,398,405-406 Unfair Contracts 233-235 see also fairness Unfair Contract Terms Act 234 Unfair trade practices 118 UN High Commissioner for Refugees 53 UNICEF 58 UNIDROIT 236 Unilateral resort to force 366 United Kingdom 32, 42, 149, 298, 459,461,466 United Nations 16,27,36,42,43,52, 53,70,77,107-108, 112,146,177,226, 333, 353, 365,366,411,415,489 Charter see UN Charter Purposes and Principles of 204, 318, 323 United Nations University 161 United States 32, 42, 108, 139,231, 333.349,356, 465,466,472,476,500,505,507,511 See also US Constitution Unity of human family 17, 18, 20, 23, 28 Universal Declaration of Human Rights 2, 11, 21, 48, 49, 113,127,172,191,332,333, 396,398,411,414,415,432, 452,478-480,493,494,519,520 Universalism 28,102, 127,402 Universalism of Buddhism 18 Universal norms 226 Universal peace 43, 127 Universal Postal Union 398 Unjust contracts 235,412 UN monitoring programmes 364 UN Register of Conventional Arms 206 UN sanctions 366 UN World Food Program 144 Upanishads 345,371 Urdu 145 US Congress 206

537

US Constitution US oil interests U.S.S.R Usury Uzbekistan

33, 113,504,512 506 505 153 222

Vatican Council Vedas Versailles

352 88 76, 97, 112, 332, 333, 355,395 57, 77

Vienna, Congress of Vienna Convention on Succession of States Vienna Convention on the Law of Treaties Vietnam Vietnam War Violence, Buddhist analyses of varieties of Voluntarist school

313,320 180-181 53 464,511 19 394 221

Waldock, Sir Humphrey 266 wants, artificial creation of 162-164 War, abolition of 26-27 causes of 396,407 crimes affecting children 58-59 illegality of 40-41, 203-204 prohibition of 40-41, 203-204 realities of 399 War Crimes Tribunal 51-52 Washington, Treaty of 42 Waste, dumping of 190,436 Waste, of earth resources 65,135,195 Weapons lobby 349 Weapons of mass destruction 60-67,366 Weapons trade See armaments Weber, Max 156-157 Welfare state 11 Wellington, Duke of 358 Wells, H.G. 20, 39,139,140,143 Welsh language 145 Western attitudinal systems 189-197 Western economic thought 190 Western juristic traditions 136 Western Sahara case 122 Western structural framework 185-186 Western value systems 188-189 Westphalia, Treaty of 77, 88, 101, 105,121,156-157 Wheaton, Henry 8 Wilberforce, William 395,407 Wilson, President Woodrow 112, 333,421,467

538

Universalising International Law

Women’s rights 220 Wordsworth, William 444 Working Group on Contemporary Forms of Slavery 58 World authority, concept of 104-114 World Bank 12, 116,161,171,178, 208,422,433 World confederation 353 World Federation 365 World government 45, 365 World Health Assembly 453 World Health Organization 45, 63, 111, 131,141,398,423, 448,449,452,453, 455,464,488,489,493 Constitution of 454,455 World heritage 132 World hunger 417-418 World Information Order 92-93 World Meteorological Organization 398 World order 17 World Order Models Project 133 World Summit on Sustainable Development 71-72, 194,423

World Trade Organization World Wars

World Watch Institute Wright, Quincy

12, 166 5, 11, 36, 41, 43, 44, 47, 51,76,78,98,112, 113,183, 204,222,225, 331, 332, 333, 356,372, 436,478,485 147 359

Xenotransplantation

Youth, idealism of Yugoslavia Yugoslavia War Crimes Tribunal Zakat

83, 96, 198

73 53, 310 52 388