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 foresee