Abstract
The rule of law is constantly evolving. It grew from theological natural law doctrines after which international law acquired a more secular and positivist orientation due to European industrialization. However, European states’ unequal treaties with Asian Kingdoms and colonialism initially failed to establish a truly universal rule of law. In 1920, the Covenant of the League of Nations attempted to establish a legal community of the mankind. This experiment failed to prohibit the use of force nevertheless. The subsequent establishment of the UN gave rise to the hope of a universal rule of law again. Unfortunately, the ensuing Cold War and the post-Cold War trends so far have belied these hopes. The veto power at the Security Council seldom accords with the world’s common interests. However a true rule of law that promotes equality between states and equity between classes is still possible. This article examines and evaluates the possibility of a true rule of law.
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The idea of rule of law, it is noted, was first indicated as an ideal by Aristotle who it appeared to have remarked that ‘it is better for the law to rule than one of the citizens’ so that ‘even the guardians of laws are obeying the laws’. The phrase rule of law however was first coined by AV Dicey, An Introduction to the Study of the Law of the Constitution (Macmillan, London, 1885). See for an illuminating exposition on the concept of rule of law and its relevance to contemporary world beset with problems posed by terrorism and the need to protect the security of State as well as its citizens without undermining the human rights and civil liberties guaranteed by the rule of law, Tom Bingham, The Rule of Law (Penguin, London, 2011) 3. States generally work under a written or unwritten constitution. The main features of a constitutional form of government are: independent but interactive functioning of the three main branches of government composed of the Parliament or a body of elected representatives, the Executive manned by civil service, an apolitical body and an independent and impartial Judiciary. Most importantly, rule of law presumes and is based on centralization of force; and denying the right to individuals to take law into their hands. There are several other attributes of rule of law: equality before law; due process of law; penal law to not to have retrospective effect or application; rights of the accused including right to be silent, entitlement to a counsel, prohibition against self-incrimination and presumption of innocence. The same is true of the international society which is working towards establishing a full-fledged system of a universal rule of law.
Ian Brownlie, International Law at the Fiftieth Anniversary of the United Nations, 255 Receuil des cours (1995) 13–227, 213.
Christian Tomuschat, International Law as the Constitution of Mankind, in, International Law on the Eve of the Twenty-first Century: Views from the International Law Commission (United Nations, New York, 1997) 37–50.
For a very comprehensive account of history surrounding the development of international law and fro a very persuasive conclusion that ‘what most international lawyers have called international law during the sixteenth to the eighteenth century was just one of many normative systems which existed in various regions of the world’. See Onuma Yasuaki, When was the Law of International Society was Born?- An Inquiry of History of International Law from an Intercivilizational Perspective, 2 J History Intl L (2000) 1–66, 63.
According to one account, ‘The earliest imprints of human activities in India go back to the Paleolithic Age, roughly between 400,000 and 200,000 B.C. Stone implements and cave paintings from this period have been discovered in many parts of the South Asia’. See India: Harappan Culture, Library of Congress Country Studies, <http://ancienthistory.about.com/od/indusvalleyciv/a/harappanculture.htm>. Much is known about the Aryan and Dravidian cultures and the great Kingdoms that flourished in the Northern and Southern India. Indian history could be divided into three broad periods: the ancient India or the Vedic period, the Moghul Period and the British India period. Legends about the invasion of the Alexander the Great, the repeated attempts of the Persian kings to conquer the Northern parts of India and the eventual establishment of the Moghul Empire and the co-existence of the Hindu and Muslim rulers are given graphic accounts in the Indian history.
Myers S McDougal, Harold D Lasswell and W. Michael Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Virginia J Intl L (1968) 187–299.
The Maurya kingdom covered the entire Indian sub-continent except the southern India. The south Indian kingdoms, the Chera and the Chola, had friendly relations with the Maurya Empire. Beyond the Indian sub-continent, the Mauryan Empire also exercised its power over parts of Afghanistan. The Mauryan Empire had an extensive civil service that handled international trade and commerce. King Chandragupta Maurya introduced a single currency across his Kingdom. Trade with the Greeks through the Kybher Pass was extensive involving exports of goods such as silk, textiles, and spices. It also wielded large standing army of its time. Prior to the Mauryans, the region had a highly evolved civilization referred to as the Indus Valley civilization. See generally, R Thapar, The Penguin History of Early India: From the Origins to AD 1300, vol 1 (Penguin, New Delhi, 1999).
For an account, see Irie Keishiro, The Principles of International Law in the light of Confucian Doctrine 1967, 120 Recueil des cours (1967) 1–59, cited in Onuma Yasuaki, A Transcivilizational Perspective on International Law, Pocket Books of the Hague Academy of International Law (Martnus Nijohoff Publishers, Leiden/Boston, 2010) 353, fn 236.
The Mayan civilization, developed by the Maya peoples, had the only known fully developed writing system of the pre-Columbian Americas. It is also known for its art, architecture, and astronomical systems. The Maya civilization developed in an area that encompasses southeastern Mexico, all of Guatemala and Belize, and the western portions of Honduras and El Salvador. see <https://en.wikipedia.org/wiki/Maya_civilization>.
TO Elias, Africa and the Development of International Law (Dobbs Ferry, NY, 1972).
See, KRR Sastry, Hinduism and international law, 117 Recueil des cours (1966) 503–640; Nagendra Singh, International law problems of merchant shipping, 107 Recueil des cours (1962) 1–167.
See the valuable contributions of Alexandrowicz, Treaty and Diplomatic Relations between European and South Asian Powers during Seventeenth and Eighteenth Centuries, 100 Recueil des cours (1960) and other works of his cited in Onuma Yasuaki, supra note 8, 352, fn 235; and RP Anand (ed.) Asian States and the Development of Universal International Law (Vikas Publications, New Delhi, 1972); Nagendra Singh, India and International Law, in, Anand (ed) Ibid 25–43.
See, RP Anand, Review: Onuma Yasuaki, When was the Law of International Society Born?, 6 J History Intl L (2004) 1–15, 4. Antony Anghie, Comment, ibid 15–19, in particular G Maddux (ed) Conquest and Resistance in Colonial Africa (Garland Publishing, NY, 1993) cited at 16, fn 4.
Onuma Yasuaki, supra note 8, 304–305.
Reference here is to ‘the Islamo-centric theory and the economic-military power of the Muslim empires such as the Abbasid and the Ottoman empires, and the combination of Sinocentricism and the economic-military power of the Chinese dynasties such as the Tang and the Qing dynasties. Onuma, Ibid. See, Prabhakar Singh, Sino-Indian attitudes to International Law: of National, States and colonial Hangovers, 3 Chinese J Comp L (2015) 348–374.
It is submitted thus:
Whenever humans organize groups or societies such as clans, tribes, religious groups and nations, and are engaged in commercial or social intercourse or in armed conflicts, it is necessary to have some arrangements among such groups … However, we have to ask whether such agreements or arrangements can, and should be characterized as international law …. Today’s international law is perceived as a secular comprehensive legal order existing among nation States which are sovereign, independent, and equal, irrespective of their size, power and influence. It is a law valid in a global international society, which covers all humanity. It is different from domestic laws, which are valid within their respective States. Treaties exist as agreements among States and do not cease to exist even if the Governments or leaders that concluded them cease to exist. Gods are not expected to be the guarantors of these agreements. The pacta sunt servanda is a legal norm in the strict sense, whose breach entails an obligation of reparations … Relations among political or politico-religious entities in the pre-modern period were very different from those we assume between States today. There did not necessarily exist (among them) common cognitive and normative frameworks by which independent human groups could understand, interpret and arrange relations between them.
See Onuma Yasuaki, Ibid 354–357.
For example, Elias, supra note 10; Alexandrowicz, supra note 12; Nagendra Singh, supra note 11, and Anand, supra note 13.
See, Onuma, supra note 8, 357.
The term ‘international law’ was first used by J Bentham in 1870, see, MN Shaw, International Law, 5th edn (CUP, Cambridge, 2003) 1.
For a very forceful submission on this aspect, See Anand, supra note 13, 10–11 (Review of Yasuaki Onuma’s contribution).
On the natural law frame and its relationship to law proper; the influence of the notion of unity of nature on the development of the concept of unity of man or community of mankind and the development of international law, See McDougal, Lasswell & Reisman, supra note 6, 215–227. According to them, the essential feature of natural law frame is its ‘insistence that the positive law, by itself, provided an insufficient guide for decision’, Ibid 216.
For a recent study of the ‘substance and form of 20th century positivist international law’, by focusing on the concept of ‘common interests’ employed by L. Oppenheim and ‘conflict of interests’ used by Hans Kelsen which in effect propounded that pursuit of ‘economic interests’ was the basis of the development of modern/European international law of the European/‘civilized’ States, see Monica Garcia-Salmones Rovira, The Politics of Interest in International Law, 25 Euro J Intl L (2014) 765–793.
It is noted that the criterion of ‘effective occupation’ which was approved by the Berlin Conference which was convened to regulate “the development of commerce and of civilization” in Africa, considered African States not as potential partners, but as objects to be conquered and occupied”. See Abdulqawi A Yusuf, Pan-Africanism and International Law (Pocket Books of the Hague Academy of International Law, The Hague, 2014) 72.
Rovira, supra note 22, 776–777.
Yusuf, ibid 75.
See Ibid 75–76.
See, RP Anand, Development of Modern International Law and India (Indian Society of International Law/Nomos Verlagsgesselschaft, Baden-Baden, 2006) 70–74. Citing Oppenheim, Anand pointed out the non-European uncivilized people or rules were not entitled to be treated on the basis of international law but “at best” to be treated according to “principles of Christian morality”. Anand, Ibid, 72. See also, Rovira, supra note 22, 775. On this aspect see more generally, M Koskenneimi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP, Cambridge, 2002).
Ibid 73.
It is noted that Tsar Nicholas II invited 59 delegations to the 1899 Conference and only 26 finally attended. The vast majority were European, with 20 of Europe’s 23 powers attending and only the Holy See, Monaco, and San Marino absent. None of the six sovereign African nations and only two Latin American countries—Brazil and Mexico—were invited, and only Mexico chose to attend. Four Asian and two American powers sent delegations: China, Japan, Persia, and Siam; and Canada and the US. The US and those European powers that attended both the 1899 and 1907 Conferences all had overseas possessions or colonies whose territories were deemed subject to the agreements decided at each conference. Yet no colony or possession was represented at either Conference, except indirectly by one delegation—the Netherlands—including a representative of its Colonial Office for the 1907 Conference’. The Second Hague peace conference of 1907 was attended by 43 delegations, the number of States attending was almost double that in 1899, although the number of sovereign States had not changed dramatically in the eight years separating the two conferences. The 1907 Conference only partially improved representation of the world’s various regions, Africa again remaining unrepresented and thus reflecting the grip of the colonial powers on the African continent. All of the Latin American States received invitations and 19 attended: Honduras and Costa Rica responded to the invitation by appointing delegates and reserved seats, but neither country took the seats. Asia was represented by China, Japan, Persia, and Siam’. See Betsy Baker, Hague Peace Conferences (1899 and 1907) <http://opil.ouplaw.com/MaxPlanckEncyclopediaofPublicInternationalLaw>.
See RP Anand, New States and International Law <http://opil.ouplaw.com/MaxPlanckEncyclopediaofPublicInternationalLaw>.
The Wikipedia notes:
President Wilson proposed a Fourteen Point peace deal which would be based on a policy of free trade, open agreements, democracy and self-determination. It also called for a diplomatic end to the war, international disarmament, the withdrawal of the Central Powers from occupied territories, the creation of a Polish state, the redrawing of Europe's borders along ethnic lines and the formation of a League of Nations to afford ‘mutual guarantees of political independence and territorial integrity to great and small states alike.
<https://en.wikipedia.org/wiki/Treaty_of_Versailles#cite_note-10;note11>.
This treaty ended the war between Russia and the Central powers. The Central Powers, as a result of this Treaty, annexed 1,300,000 square miles (3,400,000 km2) of Russian territory along with 62 million people. This loss equated to one third of the Russian population (albeit of non-Russian ethnicity), 25 per cent of their territory, around a third of the country’s arable land, three-quarters of its coal and iron, a third of its factories (totaling 54 per cent of the nation's industrial capacity), and a quarter of its railroads. See <https://en.wikipedia.org/wiki/Treaty_of_Versailles#cite_note-Tucker2005a225-14 >; and Ibid, Truitt, 114–15.
On the League of Nations, see G Scott, The Rise and Fall of the League of Nations (London, 1973).
The Wikipedia says that:
Article 119 of the treaty required Germany to renounce sovereignty over former colonies and Article 22 converted the territories into League of Nations mandates under the control of Allied states. Togoland and German Kamerun (Cameroon) were transferred to France. Ruanda and Urundi were allocated to Belgium, whereas German South-West Africa went to South Africa and the United Kingdom obtained German East Africa. As compensation for the German invasion of Portuguese Africa, Portugal was granted the Kionga Triangle, a sliver of German East Africa in northern Mozambique. Article 156 of the treaty transferred German concessions in Shandong, China, to Japan, not to China. Japan was granted all German possessions in the Pacific north of the equator and those south of the equator went to Australia, except for German Samoa, which was taken by New Zealand. (Footnotes omitted).
See <https://en.wikipedia.org/wiki/League_of_Nations_mandate>.
See, W Schiffer, Legal Community of Mankind (Columbia Univ Press, NY, 1954).
One account cites three root causes of World War II:
(1). The Prussian Militarism-developed in 200 years of history, it was the force that made Germany so powerful, and made it possible for a man like Adolf Hitler to gain total control of it. (2). Adolf Hitler-a madman and political genius, Adolf Hitler re-ignited the Prussian militarism after the German defeat in World War 1, and with this great power under his total control, he started the greatest and cruelest war in history, in his planned attempt to vastly expand Germany and to dominate the entire world. (3). Appeasement - Britain and France could easily stop Hitler when Germany was still weak, but their war-traumatized pacifist desire to totally avoid violence just helped Hitler rebuild Germany's military strength more rapidly, until it was too late to stop him.
See <https://en.wikipedia.org/wiki/Causes_of_World_War_II >. According to another account, the causes of World War Two can be divided into long term causes and short term causes. There can be little doubt that one of the long-term causes of the war was the anger felt in Weimar Germany that was caused by the Treaty of Versailles. Another long-term cause was the obvious inability of the League of Nations to deal with major international issues. In the 1930’s these would have been in Manchuria and Abyssinia. In both conflicts the League showed that it was unable to control those powers that worked outside of accepted international law. In the case of Manchuria it was Japan and in Abyssinia it was Mussolini’s Italy. <http://www.historylearningsite.co.uk/modern-world-history-1918-to-1980/causes-of-world-war-two/>.
The Wikipedia reads as:
It is noted that among causes of World War II were Italian fascism in the 1920s, Japanese militarism and invasions of China in the 1930s, and especially the political takeover in 1933 of Germany by Hitler and his Nazi Party and its aggressive foreign policy. The immediate cause was Britain and France declaring war on Germany after it invaded Poland in September 1939. Problems arose in Weimar Germany that experienced strong currents of revanchism after the Treaty of Versailles that concluded its defeat in World War I in 1918. Dissatisfactions of treaty provisions included the demilitarizarion of the Rhineland, the prohibition of unification with Austria and the loss of German-speaking territories such as Danzig, Europen-Malmedy and Upper Silesia despite Wilson’s Fourteen Points, the limitations on the Reichswehr making it a token military force, the war-guilt clause, and last but not least the heavy tribute that Germany had to pay in the form of war reparations, and that become an unbearable burden after the Great Depression. The most serious internal cause in Germany was the instability of the political system, as large sectors of politically active Germans rejected the legitimacy of the Weimar Republic. The German aggression and the policy of ‘appeasement’ adopted by the war weary Britain and France, which helped Germany to re-arm itself, annex Rhineland, Austria and Czechoslovakia in violation of the terms imposed by the Treaty of Versailles of 1919 were also cited as reasons for World War II.
This is an important procedural standard as part of Rule of Law. For reference to the decision of the Permanent Court in its Advisory Opinion concerning Interpretation of Article 3, paragraph 2, of the Treaty of Lausanne (Frontier Between Turkey & Iraq) (Series B/12 (21 November 1925 ), in respect of an actual dispute laid before the Council of the League, that the vote of the interested parties did not count for the purpose of ascertaining unanimity in the context of Article 5 of the Covenant, and thus, upholding the principle that ‘no one can be a judge in his own suit’. see Brownlie, supra note 2, 215–216.
Simma noted that the ‘the competences exercised by the principal organs of the UN cannot simply be assessed according to the model of national constitutions. However, one does find at least some elements of a separation of powers. The lack of any effective judicial review does not distinguish the Charter from most domestic constitutions’. Bruno Simma, From Bilateralism to Community Interest, 255 Recueil des cours (1994) 256–284. See also, Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 36 Columbia J Transnatl L (1998) 529–619.
Article 37 of the ICJ Statute provides: ‘Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations or the Permanent Court of International Justice, the matter shall, as between the Parties to the present Statute, be referred to the International Court of Justice’.
Tomuschat, supra note 3, 41–42.
Ibid.
There is difference in the manner the rights and obligations under these two Covenants translate themselves on the operational side. The Covenant on Civil and Political Rights (first generation rights) couched in ‘negative’ terms and the Covenant on Economic Social and Cultural Rights (the second generation) is framed in ‘positive’ terms. See Burns H Weston & ors, infra note 54, 498–499. For an analysis of the policies concerning human rights from the perspective of developed, Marxian/Socialist and developing countries, See BS Murty, Human Rights and the Basic Perspective of Developing Countries, SK Agrawala, TS Rama Rao, and JN Saxena (eds), New Horizons of International Law (NM Tripathi, Bombay, 1983) 1–19. In general, Western, liberal democratic and market oriented economies prefer the ‘inalienable and imprescriptible rights’ of man mostly found in the Covenant on Civil and Political Rights. These rights are originally conceived as ‘God-given’ or derived from natural law and historically as an outcome of the struggle against ‘monarchical absolutism’ Ibid 4–5. The Marxian and Socialist doctrine lays emphasis on interests of the society and State, as opposed to individual, even as it is intensely concerned about human dignity affected by denial of material values. Ibid 5. The tendency of developing countries, preoccupied as they are with the problems of poverty, is to ‘assign priority to material values over non-material ones’. Ibid 9. Simma is very concerned about the gap between the ‘words and deeds’ in the field of human rights. According to him: ‘Human rights in the UN are not only a success story of legal activism, …but also a hotbed of hypocrisy, double standards, and double speak’. He bemoans the fact that the Economic, Social, and Cultural rights are not give the importance and promotion they deserved with some considering them “to be the ultimate toothless tiger’ and others treating them ‘a Marxist Trojan horse’. See B Simma, Human Rights, in C Tomuschat, The United Nations at Age Fifty: A Legal Perspective (Kluwer International, 1995) 264, 278.
See for a list of occasions on which veto was exercised from 1946 to May 2014, see table prepared by the Dag Hammarskjold library <http://research.un.org/en/docs/sc/quick>. The privilege given to and the purpose for which permanent members use veto was often criticized, particularly in the context of the proposals to reform the membership of the Security Council and its methods of working. See Report of the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council, UNGA Doc. Fifty-eighth Session, Supplement No. 47 (A/58/47) 21 [13]. Commenting on the veto, ‘some delegations stressed the importance of abolishing this privilege of the permanent members. They contended that resorting to veto power had undermined the authority and functioning of the Security Council. They also pointed out that the veto was exercised on the basis of national interest and not in the interest of the generality of the membership’. Ibid 23 [19]. See also on the question of reform of the Security Council, see UN GA Resolution A/RES/.55/2(2000) [30]; on policy objectives of such reform, the Report of the High Level Panel on Threats, Challenges, and Change, A More Secure World: Our Shared Responsibility, UN doc A/59/565(2004). The high level panel suggested two models of reform. Suggesting that the membership be raised from 15–24 and confining the veto power only to the present five permanent members, one model provided for increase in the number of permanent members from 5 to 11, and raising non-renewable two year term seats from 10 to 13, allocating 2 seats to Africa, 3 to Asia, 4 Europe, and 2 to Americas; the second model retaining the five permanent seats with veto power and provided for 8 four year renewable seats, allocating 2 seats to each of the four regions and one two year no-renewable seat to the present 10 such seats); and the Report of the UN SG, In larger freedom: towards development, security, and human rights for all, UN doc. A/59/2005(2005) [169] (which recommended adoption of one of the models or any variation of them by consensus by the end of 2005. No consensus was reached by then and so far.
See or an analysis of the problems associated with the authorization of the use offorce, see the Preliminary Report (June 2009) submitted by R.E. Vinuesa on Present Problems of the Use of Force in International Law. Sub-group: Authorization of the Use of Force by the United Nations’ to the 10th Commission of the Institut de Droit International, Sessions of Naples, 73 Annuaire (2009), 234–76. References to the case of Koreare at 244; those to the case of Iraq are at 245–52. See also G Gaja, Use of Force Made or Authorized by the United Nations, in C Tomuschat (ed) supra note 43, 39–58, O Schachter, United Nations Laws in the Gulf Conflict, 85 American J Intl L (1991) 452; B Simma, NATO, the UN and the Use of Force, 10 Euro J Intl L (1999) 1.
According to one US based think-tank, ‘the group’s territory had shrunk 12, 800 sq kms to 78,000 sq km between the start of the year and December 14’. See The Gulf Times, Doha (22 December 2015) 1.
On unilateral acts, Michael Reisman, Unilateral action and the transformation of the world constitutive Process: The Special Problem of Humanitarian Intervention, 11 Euro J Intl L (2000) 3; also WM Reisman & S Schuchart, Unilateral action in an imperfect World Order, 8 Austrian Rev Intl & Euro L (2003 163. Opposing unilateral acts as inimical to the establishment of just, equitable and durable world order, see PS Rao, International Organizations and Use of Force, in, N Ando & ors (eds) Liber amicorum Judge Shigeru Oda, vol 2 (2002) 1575–1608; and BS Chimni, The International Law of Humanitarian Law, in, State Sovereignty in the 21st Century: Proceedings of an International seminar held under the auspicious of the Indian Council for World Affairs July 23–24, 2001, New Delhi 103–131.
On Countermeasures under the law of State responsibility, see PS Rao, Countermeasures in International Law: The Contribution of the International Law Commission, in, Studi Di Diritto Internationale im Onore Di Gaetano Arangio-Ruiz, vol 2 (Editorial Scientifica, 2004) 853–880. On the adverse effects of repeated western interventions in the Middle East which ‘stoked repeated and now chronic wars’ and the creation of a ‘killing field that today stretches from Bamako to Kabul’ and the solution offered in terms of five principles, see Jeffrey D Sachs, A New Century for the Middle East, Gulf Times, Doha (27 December 2015) 22. The five principles suggested are: ending of covert operations by the USA; pursue valid foreign policy objectives through the UN Security Council; allow the Middle East to go through its own political maturation process, without intervening on behalf of the democratic forces if they did not gain power n short term; homegrown leaders of the Middle East should realize that ‘the most important challenging facing the Islamic world today is quality education’; and finally the region should ‘address its exceptional vulnerability to environmental degradation’. In the longer run the author says what matters to Middle East is not the Sunni-Shia divide or the future of Assad of Syria, but ‘the unmet need for quality education, job skills, advanced technologies, and sustainable development’.
A recent comment of Putin that the US and the NATO are a security threat to Russia is a highly disturbing feature and might further affect the ability of the UN to maintain international peace and security.
Tomuschat observed that ‘From a constitutional viewpoint, it is abundantly clear that the permanent seats held by the “Big Five” have not been granted to them as individual entitlements in recognition of their power, but as a competence to be exercised in the interest of the international community …. But if national interest is the only parameter of orientation, other nations would find it hard to recognize the resolutions of the Security Council as the legitimate exercise of a world order institution established by the international community’, supra note 3, 47.
For a more recent comment on Judicial review, see Vera Gowlland-Debbas, The Security Council and Issues of Responsibility Under International Law, 353 Recueil des cours (2011) Ch IV, 386–389. So far the Court proceeds on the presumption of prima facie validity of the Security Council and the General Assembly decisions; and only in one case it directly dealt with the constitutionality of act of an international organization, the Intergovernmental Maritime Consultative Organization (IMCO, now IMO), in 1960, when ‘it concluded that the Maritime Safety Committee of the Intergovernmental Maritime Consultative Organization which was elected on 15 January 1959 was not constituted in accordance with the constituent instrument’ (389, fn 425).
The UN Secretary General prefaced the introduction of the UN plan on Millennium Development Goals in 2000 pointed out that ‘globalization must mean more than creating bigger markets’. According to him, ‘The economic sphere cannot be separated from the more complex fabric of social and political life, and sent shooting off on a trajectory of its own. To survive and thrive, a global economy must have a more solid foundation in shared values and institutional practices-it must advance broaden and more inclusive, social purposes.’ See, Kofi Annan, UN Millennium Report, We the Peoples: The Role of the UN in the 21 Century, <http://wwwUn.org/millennium/sg/report/full.htm> reprinted in Weston, Falk, Charlesworth & Strauss, infra note 54, 1408–1419, 1412.
See for a presentation on international development law, the debate on new international economic order, and for listing some positive outcomes from the debate Mahiou Ahmed, International Law of Development, in, The Max Planck Encyclopedia of International Law <www.mpepil.com> [18].
See, Richard A Falk, Human Rights Horizon: The Pursuit of Justice in a Globalizing World (2000), excerpts presented in Burns H Weston & ors (eds) International Law and World Order: A Problem Oriented Course Book, 4th edn (West Academic Publishing, 2006) 5005–513, 508. The adverse effect of globalization on the rights and interests of poor and underprivileged people is of concern to scholars from the third world. Some scholars who subscribe to the ‘critical third world approach (TWAIL)’, however consider the institution of ‘State’ and rise of the transnational capital class (TCC), stated as another form of ‘colonialism’ endemic to international system, as negative forces and inimical to the realization of a ‘new rule of law’. They also consider themselves as the second generation of ‘third world’ scholars different from the ‘first generation’ of scholars from developing countries. Further for the TWAIL II, the conflict between goals of growth and social justice is not mere matter of reconciling conflicting interests but one of a veritable struggle between two opposing classes, the rich and powerful class and the poor and weak communities within a society. On the critical Third World Approach to International Law or TWAIL, see A Anghie and BS Chimni, The Third World Approaches to International Law and Individual Responsibility in Internal Conflicts, in, S Ratner & Ann-Marie Slaughter (eds) The Methods of International Law (The American Society Intl L, Washington DC, 2004), excerpts reproduced in Burns H Weston, Richard A Falk, H Charlesworth & Andrew L Strauss, Ibid, 40-45. See for a good account of some engaging theories about international law, see Chapter One on The Concept of Law, 21–78. See also BS Chimni, International Relations and Rule of Law, in, NR Madhava Menon, Rule of Law in a Free Society (OUP, New Delhi, 2008) 174–197. For all its methodology and ideology, which has its own merits, Chimni points out that the ‘critical third world approach’ is significantly flexible in its approach to contemporary development of international law. He explains, that: “the ‘third world’ is not to be viewed as an all-or-nothing category, which impels inflexible coalitions that yield few gains in diplomatic practice, especially in the post-Cold War period. It is amenable to ‘new forms of collective action’ that can play an effective role in shaping ongoing policy debates and effectively intervening in international negotiations”. “This flexibility”, he adds, has been successfully deployed, for example, in the ongoing Doha Round of trade negotiations. There has been ‘cognitive and institutional adaptation’ as a result of reflection upon past failures, particularly the failure of the intractable positions in the pursuit of a new international economic order”. See BS Chimni, The Past, Present, and Future of International Law: A Critical Third World Approach, 8 Melbourne J Intl L (2007) 499–515, fn 1. If we put together the two propositions of the TWAIL as noted above, we may arrive at the conclusion that even though the TWAIL II adopts a different approach, given its methodology and ideology, than the approach followed by the other third world scholars, referred to as the TWAIL I, the outcomes they seek are the same. Both groups consider achievement of social equality and justice as the ultimate justification or true test for economic growth. For a similar view expressed by Anghie and Chimni, themselves, see their “Third World Approaches…” cited above at 43, where after they noted the contribution made by TWAIL I ‘that had an important impact on all subsequent TWAIL scholarship’, it is suggested that TWAIL II has sought to further the analysis developed by TWAIL I. Their approach is different in that they focused on the more alarming proposition: ‘that colonialism is central to the formation of international law’; and not as envisaged by TWAIL I, one as ‘external and incidental to international law’. It is fair also to recall that the effort of the first generation third world scholars, in the ultimate analysis, was to promote human dignity and ensure social justice. See, Murty, supra note 44. See also, TS Rama Rao, Human Rights and Developing Countries, Ibid 20–30. P. S. Sangal, Multinational Corporations and Developing Countries, Ibid 417–425. This volume also contains valuable assessment of trends in 1960–83 concerning the NIEO, Law of the Sea, apart from human rights. Accordingly the observation that the contemporary international lawyers fail ‘to address the issue of exploitation and objectification of individuals and groups in the same way that colonial international lawyers failed to address the destruction and objectification of entire societies, Chimni, ibid 507, is essentially a feature of the ideological perception and methodological approach adopted by TWAIL II; and is not attributable to all those international law scholars of past and present who opposed and continue to oppose unbridled profit mongering business policies and practices and associated mindless materialism and excessive consumerism.
For details, see The road to dignity by 2030: ending poverty, transforming all lives and protecting the planet, Synthesis report of the Secretary-General on the post-2015 sustainable development agenda, UNGA doc. A/69/700 (4 December 2014) prepared following the RIO+20.
See, John Vidal, Climate Deal: reasons to be glad and gloomy, The Gulf Times, Doha (17 December 2015) 34.
See, Ann-Marie Slaughter, The Paris approach to global governance, The Gulf Times (30 December 2015) 22.
The international investment protection through the bilateral treaty mechanism (BIT) is originally like any other treaty between States sets out obligations to be assumed by them in respect of investments made by investors from one country in the other. It generally provides for the most favored nation (MFN) treatment, fair and equal treatment (as between different foreign investors), national treatment (i.e., to treat foreign investors on par with the national investors without any discrimination) and settlement of disputes. The BIT regime raised many thorny issues, even if it is agreed that it is aimed at protection of investments: definition of ‘investment’ (should it include even investments made in the open stock market?); the scope and meaning of the MFN (can it be the basis for providing jurisdiction to tribunals over and above those grounds expressly provided for in the treaty?) and FET clauses, and the competence of the host State to regulate investments both foreign and domestic on a non-discriminatory basis in the interest of its public policy priorities. As it turned out, the BIT regime is liberally interpreted by a majority of arbitrations to allow investors to sue host States directly giving rise to what is now well-established as investor-State arbitrations. These arbitrations provide greater protection to investors than to public policy goals of the host States, even if they are admittedly not discriminatory or disguised means of expropriation. In the process, interests of protection of environment, indigenous population, small entrepreneurs and other persons affected by loss of their natural habitats or displacement due to forced relocation on account of creation of special economic zones and allocation of scarce water and energy resources to investor. The host States are rethinking their strategies to give greater paly to their public policy priorities within the scheme of protection of FDIs. On the need to balance regulation and protection of investments, see P Ranjan, Comparing Investment Provisions in India’s FTAs with India’s Stand-Alone BITs: Contributing to the Evolution of New Indian BIT Practice, 16 J World Investment & Trade (2015) 899–930. It is also important to make the entire process of development through investments more transparent and accountable to address and meet the urgent needs of the poor and the disadvantaged.
The Permanent Court of International Justice held in the Lotus Case, a dispute between Turkey and France in 1930 concerning the assumption of extra-territorial jurisdiction by Turkey over a French vessel and its captain, that States were free to act in the absence of any specific obligations or prohibitions under international law against such acts. SS Lotus (Fr v Tur) PCIJ (ser. A) No. 10 (7 Sept 1927).
Most of the theories of international law, whether current or old, do not convey the proper nature and role of international law. Further, theories of international law are essentially, as noted by Koskenniemi, “a legal blueprint for change”. See Martti Koskenniemi, Methodology of International Law, Max Planck Encyclopedia of Public International Law (OUP 2007)[4]. According to Brownlie, ‘with one exception, theory provides no real benefits and frequently obscures the more interesting questions… The exception is produced by the fact that it is often practically useful to understand the theories which have influenced a particular individual or group of decision-makers’. See, Brownlie, supra note 2, 30. Theories about international law, as Falk explained, ‘confirm the importance of international law for progressive politics’. ‘Without a normatively self-aware perspective', there is a danger he warns that international law would again certainly become an instrument for legitimizing the oppressive features of the current world order, a role historically played to fullest extent during the period of colonial rule and capitalist expansion beyond Europe”. Richard Falk, Foreword, in, BS Chimni, International Law and World Order: A Critique of Contemporary Approaches (Sage Publications, New Delhi, 1993) 9–13, 11. Schachter who worked closely with policy-oriented approach of McDougal and Lasswell, felt that variables and assumptions that theories in general are based on ‘are sometimes verifiable and sometimes not’. See Oscar Schachter, Towards a Theory of International Obligation, 8 Virginia J Intl L (1968) 300–322, 306.
The Austinian school of thought laid undue emphasis on a higher source or authority and formal and centralized structures of control for enforcement to find a valid legal system. There are other variations of thought or theories which do not accord international law the status of a proper legal system. Mention may be made of those that require common perspectives shared by people within a territory, belonging to the same family or extended kinship for law to develop; those that treat international law at best as a ‘non-law’; the ‘non-law’ view that was part of history, exhibited by different groups which denied application of international law to groups other than their own, treating them the others as ‘natives’, hence part of fauna and flora, which did not merit the same rights as humans ; the school of thought in the mode of Machiavelli, Kautilya, Confucius or Hobbes, for example, that treated men as ‘naturally evil’ incapable of respecting ‘law’ except when it suited them; and others who placed emphasis on ‘perspectives’ alone, like HLA Hart, as opposed to those that focused only on ‘operations’ like the ‘power school’. These theories do not satisfactorily explain custom as a source of law; and does not take into consideration reciprocal and consensual relationships, like treaties and agreements as well as common patterns of social behavior accepted as mandatory in a community. They do not place a balanced emphasis on perspectives and operations and structures of authority and control. As such, their focus of inquiry is too limited to offer evaluation of the nature of international law. See McDougal, Lasswell & Reisman, Theories About International Law: Prologue to a Configurative Jurisprudence, 8 Virginia J Intl L (1968) 187–299, 208–215.
As Judge Xue Hanqin declared ‘[T]here are no such things as China’s international law, American international law, or France’s international law’; and observed that “Law, as it is, should be interpreted and applied across the board without any distinction as who is applying it or to whom it is applied. In other words, international law is of universal character’. See Chinese Contemporary Perspectives on International Law, 355 Recueil des cours (2011) 47–233, 52–53. See also Chimni, for a criticism of Tunkin’s approach dividing international law into ‘general’ and the ‘particular’ or socialist internationalism governing the particular relations between socialist bloc of States, see BS Chimni, Marxism, in, Max Planck Encyclopedia of Public International law (2010) <www.mpepil.com> [9]; Also Rein A Muellerson, Human Rights and the Individual as a Subject of International Law: A Soviet View, 1 Euro J Intl L (1990) 33–44, cited Ibid [10].
Russia, formerly the Soviet Union, and China, two most powerful States espousing Marxism and socialist economy as opposed to capitalist and liberal open market economy are no exception to this. On the general attitude of China towards international law, Xue Hanqin, Ibid 57–69; and in particular in the initial period after the successful Chinese socialist revolution, to the methodology of Marxist theory of class struggle and proletarian internationalism, p. 59; on its insistence on the principle of sovereign equality in international affairs, it is noted that this “firm position was demonstrated even in its relations with the Soviet Union, during the early days when relations between the two countries were still at their heyday, where internationalism and ideological bonds would supposedly prevail over national interests’, 61; on its effort to weed out unequal treaties, fn 2, 51–52, 60, fn 25; conduct of foreign policy and diplomatic relations on the basis of ‘equality, mutual benefit and mutual respect for sovereignty and territorial integrity”, p. 63; and support to the struggle of Asian and African countries against colonialism, racialism, and imperialism, pp. 67–69.; and its more vigorous engagement with the work of the UN, WTO and other international organizations as well as on settling various territorial issues, 78–87. Cf. Chimni’s analysis of Chinese attitude towards international law, Chimni, supra note 61 [11–13]. On the Soviet approach to international law, Chimni noted that it ‘was shaped by the tenets of Marxism-Leninism and the need to justify the foreign policy of the Union of Soviet Socialist Republics’. A common feature of the writings of the Soviet international law scholars, he noted citing Cassese, was that ‘they accepted the necessity of international law to regulate the relationship of the USSR with other States in the international system’. See Ibid [5]. During the period 1917–57, it concluded, as indicated by Lissitzyn, 2,516 treaties. Ibid [6].
See for the comments of Anne Marie-Slaughter and William Burke, cited in BS Chimni, Past, Present and Future, supra note 54. Chimni considers it necessary to resist the emergence of a “global community of empire”, or a global State as a possible consequence of globalization which may involve certain centralized structures. In his view emergence of such a ‘global State’ is inimical to State sovereignty and legal pluralism. These fears are partially well-founded, not because the emergence or existence of ‘a global community of empire’ is a necessary consequence of globalization, given the multiplicity of nation States and diversity of their interests, but because of the lack of enlightened self-interest on the part of nation States to promote common interests of the international community at the international level and the lack of stress on balanced economic growth ad good governance, in the sense of transparency and accountability of government policies and actions at the national or domestic level.
On regime change in the East Europe, billed as ‘color revolutions’, and for an insightful inquiry into contemporary efforts to political reform in other parts of the world, reforms in China, the Arab uprisings known as the Arab Spring, attempts at regime changes in Iraq, Libya, and now Syria, the desirability of achieving a more durable and gradual change to gain “global justice, freedom, democracy and prosperity”; the ill-effects of regime changes through violent revolutions partaking the character more of coup d’etat, see Rein Muellerson, Regime Change: From Democratic Peace Theories to Forcible Regime Change (Martinus Nijhoff, Leiden, 2013) 7.
We may also note that in its initial stages, the view was expressed by Engel, for example, that while Marxist considered the Soviet State as a transitional institution to be used in the revolutionary struggle to crush their “enemies by force”; and that ‘when it becomes possible really to speak of freedom, the State as such will cease to exist’. As Chimni explains, ‘Marxism does not … accept the view that the State represents the society as a whole” as its very emergence in history was due to the “division of society into classes’; and that ‘State’ which “represents the interests of economically and politically dominant classes in any society”, he asserts, works in its external relations to serve the interests of the dominant class and not that of the interests. Chimni, supra note 61 [15]. The communist/socialist experiment however suffered a setback with the collapse of the Soviet Union in 1989. For an analysis of the ‘collapse of the Soviet union as the manifestation of communist ideology and totalitarian practices’, see Muellerson, supra note 64, chap 4. See for a critical study of Marxist/communist ideology from the Western/liberal democracy perspective, Walter Lippmann, The Good Society (Grosset & Dunlop, New York, 1943) 50, fn 6.
On subaltern studies, see, David Ludden, A Brief History of Subalternity, < http://www.sas.upenn.edu/~dludden/ReadingSS_INTRO.pdf>.
Judge Xue Hanqin makes the point that promotion of human rights is both a “cause and a process”. She notes that both” human rights and law are products of historical development”. In the case of China, “human rights cause …has been a gradual, progressive and evolving process, concomitant with legal construction and socio-economic development of the country.” See Xue Hanqin, supra note 61, 125, 142.
See, Muellerson, supra note 62, 7 where he notes the dangers associated with attempts to hoist a ‘system’ as the best system for all; as, for example, the idea that ‘[N]on-western societies have to become similar to Western societies, i.e., they have to become politically liberal democracies with a society-dominant free market economy.’
While it is common to refer to North-South attitudes in relation to most international issues concerning climate change, international trade, intellectual property rights, political and civil rights as opposed to economic and social rights, role and the need for a code of conduct to promote corporate responsibility for social good, it is well-established that the developing countries cannot be characterized as one single or homogeneous group. There are at least three or more categories of developing countries: least developing, developing, and developing countries with large economies, otherwise referred to as the emerging economies. China is second largest economy, surpassing Japan; and India is now the fourth largest economy in the world. For an analysis of the different and common characteristics of the developing countries, see Pemmaraju Sreenivasa Rao, The concept of International Community in International Law and the Developing Countries, in Ulrich Fastenrath & ors (eds) From Bilateralism to Community Interest: Essays in Honor of Bruno Simma (OUP, Oxford, 2011) chap 22.
In this connection, reference may be made to ‘alternative approaches to international law such as critical legal studies, third world, world order model project, feminist, post-colonial post-modern approaches to international law’ which highlight the problems and possible approaches to remedy the ills of the contemporary world order. See, Chimni, supra note 61 [34].
By adopting a non-aligned and ideologically neutral position, the third world scholars avoided being part of any one of the two opposing blocs, that is, the USA and the West European States on one side and the East European (socialist) States on the other side which were engaged in the ‘cold war’, nuclear armament race and military blocs and maintenance of ‘spheres of influence’. The main function of the approach of the third world scholarship was and still is to promote (i) international rule of law on universal foundations; (ii) to strengthen the United Nations, bring coherence and consensus and legitimacy to the work of the General Assembly as the quasi legislative authority on behalf of the international community; and (iii) to promote reform and strengthening its collective security system to maintain international peace and security with a view to establish a new world order based on equity and justice for all the “peoples of the world” in whose name and on whose behalf the United Nations is constituted.
Chimni captures this well when he notes that rule of law which ‘ensures order in international society is a welcome state of affairs’. He warns that an international society ‘without order would be a difficult for developing states to prosper in; the law of the jungle would always be to the disadvantage of the less powerful states in the international system’. Chimni, International Relations and the Rule of Law, in, Menon, supra note 54, 174–197,194.
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President (2015–2017) and Member, Institut De Droit International, Former Member (1987–2006) and Chairman (1995–96) of the International Law Commission; Judge ad hoc of the International Court of Justice (2004–2008); arbitrator of the Permanent Court of Arbitration (2010–2014).
The views expressed in this article are solely those of the author and do not in any way represent or engage the responsibility of any of the governments, institutions, organizations, or associations with which he is or was associated.
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Pemmaraju, S.R. The nature and function of international law: an evolving international rule of law. Indian Journal of International Law 55, 459–491 (2015). https://doi.org/10.1007/s40901-016-0026-3
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DOI: https://doi.org/10.1007/s40901-016-0026-3