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

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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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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

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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.

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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

• • • • • • • • • • • • • • •

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• • • • • • • • • • • • • •

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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• • • • • • • • • • • •

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.

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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.

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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.

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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.

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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-

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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.

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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

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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.

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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

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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.

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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-

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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

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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.

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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.

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(i)

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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.

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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

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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

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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.

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(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.

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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.

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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.

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(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.

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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

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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.

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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-

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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-

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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-

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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.

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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.

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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.

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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-

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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.

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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.

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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

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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.

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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

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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-

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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

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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.

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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:

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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-

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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

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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.

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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.

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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

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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.

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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

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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

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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.

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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

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7.

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

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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.

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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-

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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

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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.

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(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.

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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

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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-

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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.

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(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

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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

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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

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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.

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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.

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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.

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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

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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.

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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,

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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

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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-

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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-

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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.

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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.

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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

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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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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 fathe