Excerpt
CONTENTS
Acknowledgement
Abbreviations
I. INTRODUCTION
1. Brief Description of the Study
2. Objective of the Study
3. Scope of the Study
4. Research Questions
5. Hypothesis
6. Research Methods
7. Scheme of the Study
II. A FRAGMENTED INTERNATIONAL LAW
1. International Relations and International Law
2. Natural Law
3. Secular Law
4. European International Law
5. Universal International Law
5.1. Horizontal Expansion of States
5.2. Diversification of Courts and Tribunals
5.3. Growing Number of International/Transnational/ Supranational Organizations
5.4. Increasing Number of Subjects of International Law
5.5. Growing Density of International Law
5.6. Application of International Law in Municipal Sphere
5.7. Emergence of Globalization
6. Fragmented International Law
III. CONFLICT OF NORMS
1. Meaning of Norm
2. Definition of Conflict
2.1. Strict/Narrow Definition
2.2. Wider/Broader Definition
3. Reasons for the Conflict of Norms
3.1. Decentralized Global Law-Making
3.2. Law Changes over Time
3.3. Domestic Factors
3.4. Law of Co-existence to Co-operation
3.5. Diversified Global Problems
3.6. Emergence of jus cogens and Obligations erga omnes
3.7. Increased Reliance on Soft Law
3.8. Decentralized Global Decision-Making
4. Problems of Conflict of Norms
4.1. Institutional Conflicts
a. Conflict of Jurisdiction
b. Forum Shopping
c. Conflict of Jurisprudence
4.2. Substantial Conflict
a. Conflict within General Law
b. Conflict between General and Special Law
c. Conflict between Special Laws
i. Trade and Environment
ii. Trade and Human Rights
iii. Human Rights and Humanitarian Law
5. Different Levels in which Conflict of Norms Occur
5.1. Vertical Conflict between National and International Law
5.2. Vertical Conflict between Regional and International Law
5.3. Horizontal Conflict between Regimes of International Law
IV. RESOLVING CONFLICT OF NORMS
1. Integration of Regimes
1.1. Modes of Integration
1.2. Reasons of Integration
a. Pauwelyn’s Argument on Integration
b. Trachtman’s Argument on Integration
c. Chimni’s Argument on Integration
1.3. Different Levels in which Integration Occur
a. Integration by Unilateral/Domestic State Action
b. Integration by Bilateral/Regional Action
c. Integration by International Action
2. Hierarchy of Norms
2.1. There is a Hierarchy of Norms
a. Conflict Resolving Techniques
i. Lex superior derogate legi inferiori
ii. Lex posterior derogate legi priori
iii. Lex specialis derogate legi generali
iv. Hierarchy of Sources
v. Systemic Integration through Article
31(3)(c) VCLT
b. Conflict Avoidance Techniques
i. Conflict Clause
ii. Treaty Interpretation
iii. State Responsibility
2.2. There is no Hierarchy of Norms
3. ILC Study on Fragmentation
4. Theoretical Way for Conflict Resolution
5. Suggestions to Resolve Conflict Resolution
V. CONCLUSION
References
ABBREVIATIONS
Abbildung in dieser Leseprobe nicht enthalten
CHAPTER – I INTRODUCTION
1. Brief Description of the Study
From the beginning of the twenty-first century the international community started addressing the issue of fragmentation of international law. In 2000, the International Law Commission (ILC) decided to include the topic “[r]isks ensuing from the fragmentation of international law” into its long-term programme of work.[1] This initiative raises some basic questions: is international law a fragmented system? If it is so, what is the problem with the fragmentation? and how can the problem be resolved? This dissertation mainly revolves around these three major issues. It assumes that today’s fragmented international law is part of historical evolution or process.
In contemporary times, the term ‘fragmentation’ is commonly used to refer to the slicing up of international law ‘into regional or functional regimes that cater for special audiences with special interests and ethos’ (Koskenniemi 2007: 2).[2] The most notable functional regimes are international trade law, environmental law, human rights law, humanitarian law, law of the sea and so on – when there is a collision between these regimes – than the conflict of norms becomes an unavoidable consequence – because each regime seeks favorable treatment towards its own. The absence of normative and institutional hierarchy in international law means that the evolution of such regimes is perceived by some as posing a threat to the coherence, effectiveness and predictability of international law. Others see these regimes as contributing to the development of international law.[3]
To respond to the problem of fragmentation, the ILC examined the regimes in detail and tentatively concluded that these specialized legal regimes are merely informal labels with no normative value per se – hence, it viewed that they are all within or part of broader territorial domain of general international law – and codified some of existing conflict resolving techniques to solve the problem of conflict of norms (ILC Report on Fragmentation 2006: 17, para. 21; 129-130, paras. 253-254).[4] However, the proposed techniques solve the conflict of norms only within regimes but not across regimes. The question remains as to how to solve the norm conflict across regimes?
2. Objective of the Study
This study has several objectives:
First, the objective of the study is to identify the historical reasons for today’s fragmentation of international law.
Second, the objective of the study is to study the conflict between different international legal regimes, for instance: (i) liberalizing trade may jeopardize respect for the environment or human rights - equally enforcing respect for human rights or environmental standards may sometimes require the imposition of trade barriers; and (ii) the states can intervene in the domestic jurisdiction of any state to protect human rights in the name of humanitarian intervention – in such a case, there will be a clash not only between the human rights law and humanitarian law but also between humanitarian law and the general principles of international law (state sovereignty/non-intervention). Hence, the conflict of norms is a field of study of both systemic and practical importance in post-modern international law.
Third, the objective of the study is to identify the problems in the harmonization of international laws and its impact on the developing countries. Since it cannot be argued that there should not be any harmonization at all, since it is the key in resolving the conflict of norms, the study will look to what extent and on the basis of which approach/mechanism/theory should harmonization take place.
Thus the objectives of the study include: (i) to expose the historical reasons for the fragmentation of international law; (ii) to analyse the conflict of norms between the regimes; (iii) to highlight the harmonization of regimes and its possible effect upon the developing countries; and (iv) to find out a genuine, practically workable solution for the problem of conflict of norms between regimes.
3. Scope of the Study
In fact, the international law has been fragmented into private and public international law. Both the laws are further fragmented into different laws and regimes – for instance, private international law has different national laws and the public international law has different specialized legal regimes. Among the two systems of law, the study is concerned with only the fragmented nature of public international law. And the conflict of norms refers only to conflict of norms between public international law regimes. States often refuse to co-operate with one another to resolve such norm conflict on account of their fundamental policy and interest difference in the regimes. Hence, what is needed at present is a mechanism to facilitate co-operation among states.
In this respect, the ILC codified conflict resolving techniques, which include: (i) the lex superior derogate legi inferiori (peremptory norm/ jus cogens, obligation erga omnes, Article 103 of the UN Charter obligations); (ii) lex posterior derogate legi priori (Articles 30/59, Articles 41/58 of the VCLT); (iii) lex specialis derogate legi generali (Article 55 of the Draft Article on State Responsibility); (iv) hierarchy of sources (Article 38(1) of the ICJ Statute); (v) systemic integration (through Article 31(3)(c) of the VCLT); etc., to harmonize or integrate the regimes.
On the other hand, the scholars have proposed various other possible solutions to harmonize the regimes, which include: (i) make the ILC as a supervisory body to review the treaties of a regime by taking into consideration other regimes, whenever the states are engaged in a new treaty formation; (ii) make the ICJ as an appellate and also an advisory body in civil matters, whenever the conflict of norms occur before any court or tribunal; (iii) make the ICC as an appellate and also an advisory body in criminal matters, whenever the conflict of norms occur before any court or tribunal; and (iv) the courts or tribunals of each regime should take into consideration the interest of other regime(s), whenever the dispute involves the conflict of norms. The study will analyse the efficiency of these possible means at a practical level.
However, the study would not address the following issues as being beyond its scope: conflict of norms within regimes, conflict within or between regimes in regional forums, conflict with bilateral treaty arrangements, and vertical conflict between international law and municipal law.
4. Research Questions
The study addresses the following research questions:
1. Is the contemporary international legal system a fragmented system?
2. Is the fragmented international legal system a reason for norm conflicts?
3. How does the harmonization or integration of regimes take place and possibly affects the developing countries?
4. How does the fragmented international legal system deal with norm conflicts?
5. Is there any hierarchy of norms in the international legal system?
6. Do existing international legal instruments address norm conflicts sufficiently?
7. Do we need any unified system of procedure to solve such conflicts?
5. Hypotheses
The study is based on the following hypothesis:
1. A fragmented international legal system has emerged in the era of globalization.
2. A fragmented international legal system is an obstacle in realising the interests of developing countries.
3. A unified set of principles is needed to bring efficiency within a fragmented international legal system.
6. Research Methods
The study is based on primary and secondary sources of international trade law, environmental law, human rights law, humanitarian law, law of the sea and other related areas. The primary sources include various international conventions, legislative guides, legal principles, etc., that have been adopted by international and regional institutions (specifically, the ILC Report on Fragmentation of International Law 2006, the UN Charter 1945, the Vienna Convention on Law of Treaties 1969 and 1986, the ILC Draft Articles on State Responsibility 2001, WTO Final Act, Bill of Human Rights, UNCLOS, CITES, Montreal Protocol, CBD, UNFCC, and some case laws of the ICJ, ITLOS, WTO Panel and Appellate Body, ECJ, ICC, ICTY, etc.). The travaux preparatoires of these international and regional instruments have been used extensively. The secondary sources include books, journals, and internet sources.
7. Scheme of the Study
The study has four further chapters:
Chapter-2 traces the historical reason for the fragmentation of international law.
Chapter-3 identifies the meaning of norm, the definition of conflict, the reasons and the problems of norm conflict and the different levels in which the norm conflict occur.
Chapter-4 analyses the debate surrounding the integration of regimes, the conflict resolving and conflict avoidance techniques proposed by the ILC to solve norm conflict. It also reviews the alternative solutions proposed by the scholars to solve such conflict and to harmonize the regimes.
Chapter-5 contains the conclusions of the present study.
CHAPTER – II A FRAGMENTED INTERNATIONAL LEGAL SYSTEM
International law has been broadly fragmented into private and public international law. Both the laws are further fragmented into different laws and regimes – for instance, private international law has different laws and public international law has different specialized legal regimes. Among the two systems of law, the study is concerned with only the fragmented nature of public international law. Therefore, the focus of the study is: whether public international is a fragmented system?[5] Answering positively that ‘it is a fragmented international legal system’ ever since its evolution: the scholars contend that it was on ‘no occasion a unified system’.
First, even in early times, natural law was followed differently by different states, that is, in a fragmented way.
Second, when secular law emerged in the sixteenth century, it was fragmented on ideological grounds among the Europeans themselves (Friedman 1964).
Third, when the European international law emerged at the end of eighteenth century, since then the ‘mainstream’ has what Kennedy calls a ‘counterpoint’ (Martineau 2009: 3). ‘Say that a mainstream expressing confidence is accompanied by a counterpoint criticizing that confidence’ (ibid.) – that is, European international law had always fragmented view from different states.
Fourth, when the universality of international law started flourishing, some US and Soviet Scholars questioned the existence of a single unified system. For one skeptical American writer, the antagonism between the great powers cast doubt on the idea of international law as a ‘single, universally valid legal system’: being confronted with ‘Communist Soviets, the universal validity of international law appears no longer as an existing phenomenon…but as a debatable assumption’ (quoted in ibid.: 18). And a Soviet scholar argued that there were ‘three systems of international law [exist]: one for the capitalist system, one for the socialist system, and finally one for the relations between the two systems’ (quoted in ibid.).
Fifth, the twentieth century international law has been universalized by fragmenting the international law through regional subsystems or approaches (ILC Report on Fragmentation 2006: 102-114, paras. 195-219).[6] The regional approaches include European, American, Asian, African, and Latin-American approaches to international law (ibid.: 104, para. 200). And the regional subsystem varied on functional basis, which include trade, environment, human rights, security issues and so on (ibid.: 105, para. 204).
Sixth, the normative differentiation of peremptory norms and other ordinary norms was made by the ILC in its Draft Articles on State Responsibility in 1976 viewed by some scholars as “fragmentation of international law”. Weil (1983) in his much debated essay on the “relative normatively in international law” argued that ‘the theory of jus cogens, with its distinction between peremptory and merely binding norms, and the theory of international crimes and delicts, with its distinction between norms creating obligations essential for the preservation of fundamental interest [obligations erga omnes ] and norms creating obligations of a less essential kind are both leading to the fission of th[e] unity’ of international law (Weil 1983: 421).
Seventh, when the globalization started at the end of the twentieth century, it has been realized that the international law has been fragmented by different perspectives, (which include, third world perspective, ‘legal positivism, the New Haven School, international legal process, critical legal studies, international law and international relations, feminist jurisprudence, and law and economics’) (Ratner and Slaughter 1999: 2). What Simma calls ‘post-modern’ challenges to the universality of international law stemming from ‘critical legal studies, Marxist theory, theory of Empire, and Feminist theory’ (Simma 2009: 269).
Eight, at the end of the twentieth and the beginning of the twenty-first century (as a result of globalization process), the international community views that the international law has been fragmented into various specialized legal regimes on functional basis which include international trade law, environmental law, human rights law, humanitarian law, law of the sea, and so on.[7] Such ‘‘global legal pluralism’ which sees the emergence of many autopoietic functional systems on a global scale to eventually substitute for the States’ (ibid.: 269-270).
In this chapter, the study contends that international law changes when there is a change in international relations; international law has been developed in different ways according to the needs of the international society. Therefore the contemporary international law seems fragmented system, because it has also been developed according to the “objective” necessity of the international society.
1. International Relations and International Law
International law and international relations are co-related, in which former regulates the latter, hence the former changes when there is a change in the latter. As Friedmann (1964) rightly observes, since ‘the purpose of law is the ordering of social relations, every legal system must reflect the principles of the social order that it seeks to regulate’. Hence, law cannot remain immune to all changes, in order to be effective, it must constantly justify and readjust itself according to the needs of the changing society. ‘Only a dynamic law can preserve the rule of law in a dynamic society’ (Anand 1972: 2-3). To satisfy the said view, the international law is constantly changing to accommodate the changes in international practice, attitudes of states, and the changing needs and requirements of the international community (Czaplinski and Danilenko 1990: 4; Elias 1980; Weil 1983). In this regard, the ICJ held that, ‘the possibility of law changing is ever present’.[8]
2. Natural Law
The early civilizations had begun in the valleys of the Nile, Tigris-Euphrates, Indus, and in Yellow rivers about 5000 BC (Huntington 1996: 49, 68). As a result, the Hindu, Chinese, Egyptian, Jewish, Greek, and Roman civilizations had evolved. No civilization had clear cut boundaries, precise beginnings and endings. They have defined ‘both by common objective elements, such as language, history, [culture], religion, customs, institutions, and by the subjective self-identification of people’ (ibid.: 43). Among the elements, the culture and religion were identified as central defining characteristics of civilizations. In ancient and even in medieval period, there was no nation-state exist, instead each civilization had one or many constituent political units (such as dynasties and kingdoms) and they were either ruled by the kings or by the religious leaders (ibid.).[9]
At some point of time, each civilization had realized the existence of law of nature and law of god. Later, the civilizations had formed their own system of laws and institutions to protect their cultural, religious, moral, and natural values. Huntington (1996) writes that the civilizations had their own system of ‘values, norms, institutions, modes of thinking to which successive generations in a given society have attached primary importance’. For instance, Hindu civilization had Manu’s code, Manava Dharmasastra, and Kautilya’s Arthasastra (350-283 BC); Islamic civilization had Koranic laws; the Greek civilization had formulated the idea of Natural law in third century BC; the Roman civilization had followed jus civile, then jus gentium, and finally jus naturale; the Chinese and Jewish civilization had also their own system of laws (Alexandrowicz 1967: 28-29; Anand 1972: 12; Shaw 2007: 13-18; Chimni 2010: 28-35). Those laws were used to regulate social conduct of all persons in an ethical way and they had universal relevance. Such laws regulated various issues ranging from drawing up of boundary line, modes of acquiring territory, diplomatic privileges and immunities, sanctity of treaties, rules of war and peace, criminal penalties, right of asylum, treatment of aliens and foreign nationals, environmental protection, and even glimpse of the law of the sea and maritime belt and so on (Anand 1972: 11).
Until the medieval period, there was no inter-civilizational contacts, and only intra-civilizational (i.e., contacts between the dynasties within a civilization) existed. Huntington (1996) says that ‘[f]or more than three thousand years after civilization first emerged, the contacts among [the civilizations] were, with some exceptions, either non-existent or limited or intermittent and intense’.[10] The historians used to describe the nature of these contact as “encounters” (Huntington 1996: 48). The most dramatic and significant contact between civilizations had happened only in the beginning of the seventh century AD, when the Islamic civilization had conquered, and eliminated or subjugated the people of the Western, Asian, and African civilizations (ibid.: 50).[11] Leben (1997) writes that ‘the traditional doctrine of Islam, which divides the world into dar al islam (the Muslim world) and dar al harb (all other countries), over which Muslim supremacy was to be exercised through Jihad’. On the other hand, there was also some commerce by sea in the Mediterranean and Indian ocean, ‘steppe-traversing horses, not ocean-traversing sailing ships, were the sovereign means of locomotion by which the separate civilizations of the world […] were linked together – to the slight extent to which they did maintain contact with each other’ (Huntington 1996: 49). Finally, the interaction between the western Christian civilization and the Hindu civilization has started at the end of the fifteenth century, when the Portuguese officer Vas-co-da-gama reached the Southern part of India in 1498.
During the pre-modern times (since early origin to fifteenth century), the law of nature and law of god has been well established and appreciated in every civilization of the world and it was based purely on religion and had universal relevance. The thirteenth century philosopher St. Thomas Acquinas said that ‘Natural law formed part of law of God, and, was the participation by rational creatures in the Eternal Law’ (Shaw 2007: 21). Maine (1861) wrote that ‘the birth of modern international law was the grandest function of the law of nature’ (ibid.: 22).
3. Secular Law
In the late medieval times, the divine law was gained primary importance and the pope exercised universal jurisdiction in Europe.[12] In 1514, the Pope Alexander VI made Papal Bull demarcation, which divided the world into Spanish and Portuguese spheres. Later, as a result of the declain of the authority of the Roman Catholic church and also due to ‘the long struggle between the Pope and the Emperor, Christendom disintegrated’ – ‘[o]ut of this chaos emerged nation-states’ (Anand 1986:23). However, the Treaty of Westphalia (1648), which terminated the thirty years of religious war (1618-1648), Catholics v. Protestants in Europe, brought a beginning for modern international law and paved a way for the establishment of the political and legal supremacy of the sovereign national state (Friedmann 1964: 6, fn. 2).[13] Since then there was no international relations on religious allegiance, diplomatic relations, and wars were essentially conducted between sovereigns (ibid.).
The concept of sovereignty has been analyzed in various ways by Machiavelli, Bodin, Hobbes, Locke, Rousseau, Austin, Hume, etc., they postulated the legal as well as the political omnipotence of the modern sovereign, as against the political, legal, and social power of groups, such as churches, guilds, merchants’ associations, as well as the “over-mighty subjects” within the King’s realm (Anand 1986: 22-51; Shaw 2007: 18-22).[14] The secular law can be found especially in the works of Vitoria, Gentli, Grotius, Suarez, Pufendorf, Wolf, are all based principles of international law on the law of nature, though some of them derived natural law from the law of God, and others from the law of reason (Friedmann 1964: 75; Shaw 2007: 22-26). Vitoria created a new system of international law to hold Spanish title, which essentially displaces divine law and its administrator (the Pope), and replaces it with natural law administrated by a secular sovereign (Anghie 2005: 17-18).[15] Grotius said that natural law would be valid even if there were no God (Shaw 2007: 23). He deeply influenced by the rationalist term of natural law, used principles of universal reason to establish basic principles of international law (Friedmann 1964: 75).[16]
Later in the eighteenth century, Vattel and Hegel, who analyzed and proposed the doctrine of the will of the state (Shaw 2007: 28-29; Friedmann 1964: 76-77; Koskenniemi 2004: 231-235). They said that ‘[a]ll real international law is derived from the will of the nations whose presumed consent express itself in treaties and customs’ (Friedmann 1964: 76). Hegal made a fundamental critique of religion and gave much importance to state and said that the individual was subordinate to the state, because the later enshrined the ‘wills’ of all citizens and had evolved into a higher will, and on the external scene the state was sovereign and supreme (Shaw 2007: 28-29).[17] Vattel introduced the doctrine of the equality of states into international law irrespective of their strength or weakness (Anand 1986: 53; Shaw 2007: 25-26).
After the entry of Portuguese, the Dutch and then English and French entered the East Indies in the sixteenth century.[18] The Crown of Portugal dealt with the East Indian Rulers directly through its officials, but the Dutch, English and French dealt through the East India companies with delegated sovereign power, started operating in the seventeenth century (Alexandrowicz 1967: 15).[19] When the mediate sovereigns (i.e., European officers and the companies) with their quasi-sovereign power entered into treaties, the East Indian Rulers reluctant to conclude the treaties with them (ibid.: 149).[20] Since sixteenth century to the end of the eighteenth century, the East Indian Rulers were treated as equal sovereigns and Europeans entered into equal treaties (ibid.: 149-184).[21]
When the European powers contacted with the East Indian sovereigns, they found many similarity of ideas and principles in their inter-state relations (ibid.: 1-2). ‘Failing similarity, they [European powers] tried to impose on them [East Indian sovereigns] their [Europeans’] own ideas and whenever they [East Indian sovereigns] were not able or ready to do so, they [European powers] accepted certain legal concepts from Eastern tradition’ (ibid.: 2). In this way, without their (Europeans and East Indians) knowledge the international law has been developed out of their international relations. Most of their trade and diplomatic relations were carried out through treaties, such treaty practice finally turned as a base for positive law.
4. European International Law
When the European powers spread all over the world with an increased military might, they started colonizing the non-European countries, by entering into unequal treaties. Said (1978) says that the “Orientalism” has started roughly in late eighteenth century and which connotes ‘the high-handed executive attitude of nineteenth and early twentieth century European colonialism’.[22] The term “orient” and “occident” are “man-made”, which is ‘an idea that has a history and a tradition of thought, imagery, and vocabulary that have given it reality and presence in and for the West’ (Said 1978: 5).[23]
The Congress of Vienna came into force in 1815 to end up the Napoleonic wars, and to create and maintain the balance of power among the European powers.[24] It formed the ‘family of nations’ with all states engaged in the war, the conditions to join in the family were: the state should be civilized and the constituent recognition must be made by the fellow member countries; and they also determined that the circle within which the law of nations will apply. As a result the international relations had been changed, the Europeans declared themselves as civilized and they considered the non-Europeans are uncivilized. Further, they said that civilized state can only be a sovereign; as a result there was an increasing number of unequal or capitulation treaties in the nineteenth centuries.[25] Anand writes that especially after the Congress of Vienna, sovereign states means only, the European states and the states from other regions ‘were considered not “subjects” but merely “objects” of international law, whatever might be their status under classical international law’. Hence they ‘were not admitted into the charmed circle of sovereign States’ (ibid.).[26] Further he writes that the ‘“civilization” required not only an effective government over a defined territory but willingness and ability to accept the obligations of European international law, particularly the obligations relating to protection of the life, liberty and property of foreigners’ (ibid.: 56). Apart from that, he says ‘the chief criterion or standard of civilization was power’ (ibid.). As a result, international law became geographically internatioanlised through the expansion of the European empires, it became less universalist in conception and more, theoretically as well as practically, a reflection of European values’ (Shaw 2007: 27).
On the other hand, ‘[t]he greater expansion of Europe overseas between the sixteenth and the eighteenth centuries had led to remarkable economic growth of Europe, which, in turn, enabled the great industrial revolution to take place there in the second half of the nineteenth century (Anand 1986: 58). As a result of industrial revolution in Europe led to increasing internationalization of industry, commerce and trade in the late nineteenth and early twentieth centuries.[27] Shaw (2007) says that ‘[t]he Industrial Revolution mechanized Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world’.[28] When the large scale migrants of industrialized European states’ citizens and capital moved into the countries of the underdeveloped world, then the institution of protection of citizens abroad as a principle of international law was developed (Anand 1972: 39). As a result, the Great powers intervened and used force in the underdeveloped states to protect their citizens’ properties and contend that it was their duty to extend such protection (ibid.: 39-41). Against such intervention, especially the Latin-American states used Calvo and Drago doctrines, according to which ‘the public dept cannot occasion armed intervention nor even the actual occupation’ of the territory of Latin-American nations by the European powers (Friedmann 1964: 22, fn. 2; Anand 1972: 41).[29] Consequently, Second Hague Peace Conference in 1907 adopted the Porter Convention which prohibited the use of armed force in the collection of any contract debts (Anand, ibid.).[30]
The techniques and technologies used for suppression was the concept of “civilizing mission” or what we call “the White Man’s Burden” (Anand 1986: 59; Anghie and Chimni 2003: 80; Anghie 2005: 37-38). ‘The Civilizing Mission operates by characterizing the non-European peoples as the “other” – the barbaric, the backward, the violent – who must be civilized, redeemed, developed, pacified’ (Anghie and Chimni, ibid.).[31] Race has played a crucially important role in constructing and defining the “other” (ibid.). Anand (1986) says that ‘[i]t was said to be the duty of the “superior races” to civilize the inferior races’.[32] Consequently Anghie and Chimni (2003) puts that ‘[t]his concept of the “civilizing mission” justified the continuous intervention by the West in the affairs of the third world societies and provided the moral basis for the economic exploitation of the third world that has been an essential part colonialism’.
However, when the whole continent of Asia proved insufficient for raw materials of European industries and their need of still larger markets, ‘Europeans penetrated into the vast continent of Africa’ (Anand 1986: 58). Led by Belgians, the French, Germans, Portuguese and the British went to the African continent at the end of the nineteenth century, and colonized them (ibid.: 58-59). Anand (1986) writes that ‘[i]n 1884-1885, an international conference was held in Berlin to provide for a European code for territorial aggrandizement in Africa.[33] Within less than two decades, the whole of Africa was partitioned by the European industrial powers to be fully exploited for their economic and political interests’ (ibid.: 59).
The modern international law of nineteenth century was fully dominated by the positivism which was based on the doctrine of sovereignty, equality of states, and they arose out of the distinction of civilized and uncivilized and the constituent recognition of state.[34] The major proponents of positivism were the Zouche, Bynkershoek, Vattel, Austin, etc., who ignored virtually traditional doctrines of natural law and they said positivism could be identified from the actual behavior of states and the institutions and laws which they created. Anghie (2005) puts that:
‘In the naturalist scheme, the sovereign administered a system of natural law by which it was bound. Positivism, by way of contrast, asserts not only that the sovereign administers and enforces the law, but that law itself is the creation of sovereign will’.
Further he says that:
‘The naturalist international law which had applied in the sixteenth and seventeenth centuries asserted that a universal international law deriving from human reason applied to all peoples, whether European or non-European. By contrast, positivist international law distinguished between civilized and non-civilized states and asserted further that international law applied only to the sovereign states which comprised the civilized ‘family of nations’’ Anghie 2005: 35).
Further, the ‘[n]nineteenth century international law…excluded non-European states from the realm of sovereignty, upheld the legality of unequal treaties between European powers and non-European powers, and ruled that it was completely legal to acquire sovereignty over non-European societies by conquest’ (Anghie and Chimni 2003: 80). Therefore, it is viewed often that the ‘colonialism is central to the formation of international law’ and international law achieved universality only through colonial expansion (ibid.: 84).
In brief, Bedjaoui puts that:
‘This classic international law thus consisted of a set of rules with a geographical basis (it was a European law), a religious-ethical inspiration (it was a Christian law), an economic motivation (it was a mercantilist law) and political aims (it was an imperialist law)’ (Bedjaoui 1979: 50).
On the other hand Alexandrowicz’s thesis that ‘colonization during the eighteenth and nineteenth centuries eclipsed rather than extinguished the international legal personality of the colonized countries’ (Anand 1986a: xvii). Anand says that ‘[i]n international law, the term “colonization” merely meant temporary legal incapacity of the once sovereign actors’ (ibid.). As a result of above changes both in relations and law, the international lawyers often considered the nineteenth century as a “period of anxiety”.
5. Universal International Law
Due to increasing civil wars and external aggression among the European powers led to the First World War.[35] As a result, the international relations has started changing from independence of sovereign state system to interdependence, consequently the international law has started changing from law of co-ordination to law of co-operation (Friedman 1964). The Treaty of Versailles 1919 paved a way for the establishment of the League of Nations, which represented the first important step in the direction of building an enduring structure of co-operation among states (Anand 1986: 33; Shaw 2007: 30).[36]
During the formation of the League of Nations, no country ready to limit the sovereign right towards an international institution, hence unanimity rule was adopted[37] and the war only restricted and not prohibited.[38] Than after in the Treaty of Paris (Kellogg-Briand), 1928 – ‘renunciation of war as an instrument of national policy’ was recognized by a group of states.[39] Due to inherent weakness in the League, it failed to prevent the Second World War.[40] Consequently, the United Nations Organization was established,[41] where the member states agreed to limit their sovereignty[42] and to prohibit the war.[43] Due to divesting effect of the two world wars, the European domination came to an end and the US domination started flourishing.[44]
The second half of the twentieth century brought a tremendous change both in the international relations and in the international law. The major changes are: (i) horizontal expansion of states, (ii) diversification of international tribunals and courts, (iii) growing number of international, transnational and supranational organizations, (iv). Increasing number of subjects of international law, (v) growing density of international law, (vi) application of international law in municipal sphere, and (vii) emergence of globalization.
5.1. Horizontal Expansion of States
One of the most important changes since the establishment of the UNO is: ‘the vast horizontal expansion of the international society’ (Anand 1972: 1). In the beginning of the twentieth century, there were only few states joined in the family of nations and after the First World War, some of the colonial countries were kept under the League’s mandate system,[45] which was later transferred to the UN trusteeship council.[46] Kay (1996) says ‘[a]t the beginning of the Second World War there were more than eighty separate colonial territory, including approximately one-third of the population and covering one-third of the land area of the world’[47] when the heated Cold War between the two super powers started on the ideological grounds, the colonial countries were influenced from either side.[48] Knowing the danger of either side, the colonial (especially the Asian and African) countries met at first time in Bandung Conference in 1955, and declared themselves as ‘Non-aligned’.[49] Later the movement was further strengthened by the Accra Conference of 1958 and the Addis Ababa Conference of 1960 in order to get independence from the colonial domination (Kay 1996: 150; Aanad 1972: 53, 57). However in 1960, the UN General Assembly passed a resolution – Declaration on Granting of Independence to Colonial Countries and Peoples.[50] Consequently colonialism has ended and there were mushrooming growth of “new states” in the international sphere.[51]
Shortly become independent, the new states realized that not only political – they need an economic freedom from the clutches of colonial powers. Hence the newly independent states started nationalization and expropriation of foreign property,[52] which raised anxiety from the European and Americans.[53] To solve this problem and to develop their economy, the UN General Assembly passed the resolutions: the Permanent Sovereignty over Natural Resources (1962),[54] the New International Economic Order (1974),[55] the Charter of Economic Rights and Duties of States (1974),[56] and some of the cardinal principles of international law was adopted in the Friendly Relations Declaration (1970).[57] Anand (1972) writes that:
‘With the decay and destruction of colonialism, scores of new nations…which had so far no voice and no status and had been considered as no more than “objects” of international law, have emerged as full-fledged members of the international society’.
5.2. Diversification of International Tribunals and Courts
On the one hand, since the beginning of the twentieth century, due to the emergence of new states and their reluctance to accept some of the international law rules,[58] made a strong base for the creation of new tribunals and courts. Wright said that ‘the Orient generally, there has been preference to settle disputes by negotiation, mediation or conciliation rather than by courts applying positive law’ (quoted in Anand 1972: 49). The reason for such preference was that ‘[a] vast majority of “new” countries ha[d] different cultural, social, religious, ethical, and legal traditions’ (Anand 1972).
On the other hand, ‘the rapidly growing complexity and intensity of international relations, international law has witnessed prodigious developments, not only in updating its traditional fields, but also in expanding into new and more specialized ones. This has been accompanied by a proliferation of specialized judicial organs, on both the universal and regional levels’ (Abi-Saab 1999: 923).
However, ‘the expansion of international law in the age of globalization through formal and informal sources, and the access being granted to non-State actors to the international legal procedures and tribunals, created a functional need to establish more than one international tribunal to administer the various legal regimes that it encompasses’ (Rao 2004: 944).
As a result, an almost explosive expansion of independent and globally active, yet sectorally limited, courts, quasi-courts, and other forms of conflict-resolving bodies did occur (ibid.; Fischer-Lescano and Teubner 2004: 1000; Guillaume 1995: 848-862; Burke-White 2004: 963-979). The Project on International Courts and Tribunals has identified, there are around 125 international institutions exists at present, in which independent authorities reach final legal decisions.[59] For instance, the International Court of Justice (1945)[60] and the International Criminal Court (1998) have general jurisdiction over civil and criminal matters, respectively; the International Tribunal for the Law of the Sea (1996) deals specifically the Law of the Sea issues; the International Chamber of Commerce (1919)[61] and the International Centre for Settlement of Investment Disputes (1965) concerned mainly commercial and investment disputes; the WTO Dispute Settlement System (1995) deal specifically the trade issues; the war crimes tribunals namely the Nuremberg Tribunal (1945) and Tokyo Tribunal (1945); the ad hoc tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (1993), and International Criminal Tribunal for Rwanda (1994); there are some hybrid panels and courts have constituted, which include Special Panels established by the United Nations Transitional Authority in East Timor (2000), Special Court for Sierra Leone (2001); there are some administrative tribunals have been established to deal with disputes arising between international organizations and their staff, which include the ILO Administrative Tribunal, the United Nations Administrative Tribunal, the World Bank Administrative Tribunal, etc.; other than this, there are various tribunals for reparations and committees on Terrorism were formed under the United Nations mandate.
Apart from this, the international human rights conventions have established a number of Committees for their implementation, which include: United Nations Committee on Human Rights, United Nations High Commissioner for Refugees, Committee against Torture, Committee on Rights of the Child, Committee against Racial Discrimination, Committee on Discrimination against Women, etc. However, the environmental treaties and conventions have their own compliance mechanism procedures.
The regional courts and tribunals include the European Court of Justice, American Court of Justice, European Court of Human Rights, Inter-American Court of Human Rights, African Court of Human and Peoples’ Rights, etc. and further various tribunals and committees created within NATO, OECD, or the Council of Europe. All the above said courts and tribunals decides and renders judgments in their own ways, which subsequently led to fragmentation of international law.
5.3. Growing Number of International/Transnational/Supranational Organizations
As a result of changed international situation on both European and non-European sides and growing interdependence among themselves in the twentieth century led to the establishment of various international, transnational, and supranational organizations. Amerasinghe (2005) said that ‘[w]hen bilateral relationships based on the existence of diplomatic embassies or missions were found to be inadequate to meet more complex situations arising from problems concerning not just two but many states, a means had to be found for representation in the same forum of the interest of all the states concerned’. As a result the international conferences and organizations have evolved.
In this regard, especially, the nineteenth century has been described as ‘the era of preparation for international organization’ (between 1815 and 1914), and the twentieth century has been regarded as ‘the era of establishment of international organization’ (especially the year of 1914 and after) (Amerasinghe 2005: 5). In fact, the present structure of international relations can be found in all the above said concepts, such as “international, transnational, and supranational” organizations, but these institutions are represented by the traditional system of interstate diplomatic relations.
The international conferences and organizations include apart from Congress of Vienna (1815), and Congress of Berlin (1885), the Hague Conferences came into force in 1899 and 1907. Followed by that the League of Nations was established in 1919 and the United Nations Organization was established in 1945. Apart from this there were many organizations has kept under the UN System as “specialized agencies” (which include, UNESCO, WMO, WHO, UNTAD, and so on).
The transnational society is primarily represented by the governments (i.e., the states) and the non-governmental international organizations (which includes individuals and corporate associations). However, these transnational relations is carried and promoted by semi-public and private groups dealing directly with each other. It covers wide spectrum of relations ranging from cultural, scientific, political, social and economic activities. Perhaps the first conference of a private nature was the World Anti-Slavery Convention of 1840. Since then there have been a number of private associations or unions established, which include the International Committee of the Red Cross (1863), the International Law Association (1873), the Inter-Parliamentary Union (1889), and the World Council of Churches, various rival international organizations of Labour, the International Chamber of Commerce, the International Rubber Research Board, the International Tea Committee, the International Air Transport Association, or the International Institute of Administrative Science, the World Economic Conference (1927) (Amerasinghe 2003: 3; Friedmann 1964: 37-38).[62]
Because of the proliferation of these private unions, in 1910 the Union of International Associations was formed to co-ordinate their activities, among other things (Amerasinghe, ibid.). The public international union was formed not on political but for technical activities, which include: the International Telegraphic Union (1865); the International Postal Union (1874); the International Union of Railway Freight Transportation (1890); the International Bureau of Industrial Property (1883); the International Bureau of Literary Property (1886); and the International Office of Public Health (1907) (Amerasinghe 2005: 4; Shaw 2007: 27-28).[63]
The “supranational society”, that is, a society in which the activities and functions of states or groups are merged in permanent international institutions. They drive their status from international treaties, and they carried by the agreement and the contributions of member states. The European Coal and Steel Community (1952), the European Economic Community and Euratom (1957), and further the IMF, WB and GATT (now WTO) are all considered to be a supranational organizations (Friedmann 1964: 35-39). There are various regional organizations have been established for many issues. They include, the Pan-American System of 1826, the Washington Conference of 1885, Organization of American States, European Community, the Organization on Security and Cooperation in Europe, North Atlantic Treaty of Arab States, Organization of the Islamic Conference, Organization of African Unity, North Atlantic Treaty Organization, Warsaw pact, and there were many regional trade organization was formed Council for Mutual Economic Assistance, NAFTA, SAFTA, ASEAN, CAFTA, OCED, OPEC, etc (Amerasinghe 2005: 3; Prost and Clark 2006: 344; Friedmann 1964: 35-37).
The international organizations are mostly treaty based and sector specific (the UN is the only exception, which has general competence to deal with all matters through its specialized agencies). Prost and Clark (2006) says that ‘[n]ormally, IOs [International Organizations] are designed to deal with some specific class of issues, limited sometimes by region, sometimes by subject-matter, and sometimes by both’. At present, there are more than 500 International Organizations exist, which may possibly lead to the overlapping of activities (Prost and Clark 2006: 344). Friedmann (1964) rightly puts that ‘[i]t is the interplay and the tensions between these various levels of international activities that characterize the structures of contemporary international relations and determines the structure of international law’. Amerasighe (2005) says that:
‘The institutionalization…of inter-state relations [today] has led to international organizations influencing far more than in the past the shaping of international relations and the development of international law intended for their regulation’.
5.4. Increasing Number of Subjects of International Law
Modern international law suggested that the states alone are the subjects of international law, but in post-modern times, there are some new subjects had evolved – that is, the physical or legal persons to a limited extent become a subject of international law (Friedmann 1964: Chapters 13-15). Paust (2004) said that:
‘Some British positivists in early 1900s had preferred a “states alone” view, but such a conception was radically opposed to traditional eighteenth and nineteenth century Western – and American views and was also seriously and widely opposed even at the start of the twentieth century’.[64]
Today, the non-state actors (such as international organizations, non-governmental organizations, individuals and the corporations) ‘have unprecedented access to the international legal system, often without the traditional requirement of diplomatic protection whereby states would espouse the claims of their citizens in international courts’ (Berke-White 2004: 969). On the other hand, Friedmann says that the increasing preoccupation with position of the non-state actors (most notably, the individuals and the private corporations) have further widened the horizons of international law from still another perspective (Friedmann 1964: 67).
International organizations: the ICJ held in the Reparation case that the UNO as a legal entity, which can sue and be sued.[65] Since then the international organizations have gained the status as subject of international law, irrespective their nature.
Companies: Friedman’s analyses cover the whole problem of international investment and the development of agreements between states and private enterprises. He notes that private companies clearly do not have the same status vis-a-vis intergovernmental organizations, but that to the extent that their activities are subject to public international law and they acquire a limited status in the international legal order (Friedmann 1964: 375).[66] Usually the corporations had access to the international system through their states, because their claims can be espoused only by states not by themselves. But today the corporations ‘play an even more direct role in advising governments in WTO dispute settlement and can sometimes brings claims directly under NAFTA Chapter XI’ (Berke-White 2004: 969). Further:
‘In the post-war period, private corporations have become increasingly active participants in international transactions, mainly as investors concluding agreements on the exploitation of natural resources, or on industrial activities, with the governments of underdeveloped states, i.e., with sovereigns and, through their participation in certain international multilateral transactions, with governmental organizations or international public institutions such as the World Bank’ (Friedmann 1964: 67).
Individuals: the physical persons (i.e., individuals) are become a subject of international law, when the Nuremberg and Tokyo tribunals established for the prosecution of war criminals and those guilty of crimes against humanity and peace.[67] Later, the ICTY (1993), the ICTR (1994), special panels for East Timor (2000), special court for Sierra Leone (2001) were also established to punish the war criminals. Paust identifies that:
‘Today, the number of specific international crimes that can be committed by private individuals has increased from earlier categories to include, among others, the following: genocide; other crimes against humanity; apartheid; race discrimination; hostage-taking; torture; forced disappearance of persons; terrorism; terrorist bombings; financing of terrorism; aircraft hijacking; aircraft sabotage and certain other acts against civil aviation; certain acts against the safety of maritime navigation, including boat jacking; murder, kidnapping, or other attacks on the person or liberty of internationally protected persons; trafficking in certain drugs; slavery; and mercenarism’ (Paust 2004: 1239-1240).
The international criminal responsibility of the individual is for Friedmann the first expression of the constitution of an international status of the individual: if the individual can be directly prosecuted for infringements of international law, then the individual ought also to be able directly to benefit, he argues, from rights conferred by international law (Friedmann 1964: 245-249).[68] In this regard, Friedmann argues that, ‘the philosophy of international law is beginning to more away from poisonous Heglian and neo-Hegelian doctrines which postulate the state as the total integration of the individual and the necessary repository of both his freedom and his responsibility’ (ibid.: 247). Burke-White (2004) says that today the individuals ‘have unprecedented access to the international legal system, often without the traditional requirement of diplomatic protection whereby states would espouse the claims of their citizens in international courts’.
For example, the United Nations Declaration on Human Rights of 1948, and the two Covenants on Human rights (1966) and, perhaps more significantly the European Convention on Human Rights (1954), ‘which for the first time enables an individual to bring an action against his own state before an impartial supranational forum, give increasing substance to an international law of human rights’ (Friedmann 1964: 67). Citizens of European Union member states can bring claim against his own state before the European Court of Human Rights; citizens of the America can petition the Inter-American Human Rights Committee; similarly citizen of the African Union can sue directly before the African Court of Human and Peoples’ Rights; ‘[l]ikewise the US Alien Tort Claims Act opens the US legal system for individuals to bring international claims for money damages rooted in international law’ (Burke-White 2004: 969). Further, Slaughter (1995) has argued in contemporary times – ‘it is possible to imagine individuals as monitors of government compliance with agreed rules, whether arrived at through a domestic or an international legislative process’.
Non-governmental organizations: in post-modern times there were numerous NGOs have been established on wide range of issue, in which some of them are general and many of them are issue specific nature. They concern the issues ranging from human rights, environment, economic, humanitarian and so on, which have often direct and indirect access in the international courts and tribunals. For instance, NGOs make indirect communications to the International Criminal Court and mostly recently, they submitted the environmental brief and accepted by the WTO Appellate Body in the Shrimp-turtle case. Hence, often the NGOs are considered as subjects of international law.
These changes only mean that ‘the non-State actors can no longer be denied their due and direct role in shaping goals and value of the world public order. They, together with the customary process by which law continue to evolve, play a dominant role in the codification and progressive development of international law’ and contributes indirectly for the fragmentation of international law (Rao 2004: 944).
5.5. Growing Density of International Law
As a result of the horizontal expansion of states and their social and economic backwardness, led to the “objective” or “necessary” aspect of the development of international law: ‘states were, whether they liked it or not, drawn into a co-operation movement because in both economic and technical terms they had become objectively interdependent’ (Leben 1997: 401). To attain the object, the new states and also the older states (especially after decolonization) entered into many “technically” equal bilateral, multilateral, and international treaties on various issues ranging from investment, trade, environment, human rights, commerce, and so on, on regional and international level.[69]
The period between the end of the First World War and the mid-thirties – that is, during the period of Great Depression – there were many powerful international cartel arrangements – in such vital commodities oil, tin, copper, or rubber, or on a more limited geographical scale, steel and in such important manufactured products as electric lamps or various chemical products (Friedmann 1964: 25). On the other hand, the producer countries of primary commodities entered into many international commodity agreements – on the major commodities: tin, cocoa, natural rubber and coffee – for stabilization of price and income and long-term equalization of supply and demand (Chimni 1987: chapters I, and II; Gariepy 1976: 677-684). Than after, the General Agreement on Tariff and Trade was adopted in 1947. There were many Bilateral Investment Treaties (BITs) were adopted, especially in 1960-1980s.
The human rights and humanitarian issues gained importance under the United Nations: the Universal Declaration of Human Rights (1948) and its two Covenants (1966) and the International Conventions include the Convention on Rights of the Child, Discrimination against Women, Racial Discrimination, Torture, Enforced Disappearance, etc.; the four Geneva Conventions (1949) and the two Additional Protocols (1977) were adopted.
The concern over environment was also gradually arisen since 1970s and there were many Conferences and Conventions were adopted – particularly, the Stockholm Conference (1972), the Brandt Land Commission (1987), the Rio Declaration (1992), the Johannesburg Declaration 2002, etc. Indeed, the United Nations Environment Programme (UNEP) and the Commission on Sustainable Development (CSD) plays a major role in the international environmental rule formation. The major Conventions on environment are CITES, Montreal Convention and its Protocol, UNFCC and its Protocol, CBD and its Protocol, and so on.
Apart from this, the Law of the Sea negotiation was a major issue between the developed and developing countries, in this regard the UNCLOS I (1958), UCLOS II (1960) and UNCLOS (1982) and finally the United Nations Convention on the Law of the Sea entered into force in 1994.
On the other hand, the international criminal law was developed to make the criminals individually responsible, for instance, many terrorism conventions were adopted and the Rome Statute on ICC (1998) was the major development in that regard. To curtail and to regulate the nuclear weapons or the weapons of mass destruction, there were many conventions such as NPT, CTBT, etc., were adopted.
With regard to air regulations, there were many bilateral, multilateral and international instruments were adopted, which include Warsaw Convention, Chicago Convention 1944, etc. The outer space issues have been covered under the Outer Space Treaty, Liability Convention, Registration Convention, Moon Treaty, etc. And finally, the goods (GATT), services (GATS), investment measures (TRIMS) and intellectual property issues (TRIPS) dealt under the WTO (1995).
As a result, Anand (1986) puts that, ‘[n]o State could survive today without the benefit of treaties; for, without them, it would be almost impossible to have international trade, communication, diplomatic intercourse, travel, and all other normal features of life’. Further, Friedmann (1964) says that:
‘[T]he negotiation of treaties, not only those affecting war and peace or the acquisition or cession of territories, the adjustment of territorial waters and other matters immediately affecting sovereign integrity, but also such matters as prohibition of forced labour or genocide, the international regulations of labour standards or even the protection of migratory birds may be made impossible’.
However, the traditional status of the international legal system had been ‘the exclusive realm of states’ and that ‘the traditional view of international law’ had considered international law ‘as purely interaction of sovereign states’. Paust (2004) says, ‘[n]either claim is correct’. The reason is, in contemporary times, the international law development has been taking in two ways: (i) horizontally, out of interaction between two public entities (i.e., states); and (ii) vertically, out of interaction between the public entity (i.e., state) and the private entity (i.e., non-state actors, such as: individuals, multinational corporations, and NGOs).
Often the individuals play an effective role in various political, diplomatic, economic, juridical, and power-coercive sanction processes. Paust (2004) writes that the ‘individuals participation in normative formation and modification allows one to avoid myths that individuals are mere objects of international law or that international law is made by state elite practice and expectations’. Indeed, the multinational corporations enter into investment agreements with the states and often the MNCs advices the states in the WTO rule formation, thereby the corporations involve in the development of international law. Further, the NGOs by submitting brief in a case participate in the rule formation on various issues. Apart from this, the international organizations contribute many ways for the development of international law by convening conferences and creates as many as conventions. In this regard, Fischer-Lescano and Teubner (2004) says that ‘rapid growth in the numbers of non-statal private legal regimes…give birth to “global law without the state”, which is primarily responsible for the multi-dimensionality of global legal pluralism’. However:
‘“Transnational communities”, or “autonomous fragments of society”, such as, the globalized economy, science, technology, the mass media, medicine, education and transportation, are developing an enormous demand for regulating norms which cannot, however, be satisfied by national or international institutions. Instead, such autonomous societal fragments satisfy their own demands through a direct recourse law. Increasingly, global private regimes are creating their own substantive law. They have recourse to their own source of law, which lie outside spheres of national law-making and international treaties’ (Fischer-Lescano and Teubner 2004: 1010).
The most prominent contemporary legal regimes are ‘the lex mercatoria of the international economy and the lex digitalis of the internet’ (ibid.: 1010-1011).[70]
Apart from this, the International Law Commission (ILC) has also contributed for the development of international law by codifying the customary rules and the general principles.[71] The major contribution of the ILC include: the Vienna Convention on Consular Relations (1961), the Vienna Convention on Diplomatic Immunities and Privileges (1963), the Vienna Convention on Law of Treaties (1969), the Vienna Convention on Law of Treaties between States and International Organizations and between International Organizations (1986), the Draft Articles on State Responsibilities (2001), the Report on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (2006), and so on.
Briefly, Burke-White rightly puts that:
‘For most of the past four hundred years, international law provided a very thin set of rules, regulating, for example, the conduct diplomats, the law of the seas, or the territorial integrity of States. While the number of such rules expanded slowly throughout the twentieth century, since the end of the WWII [World War II] and particularly in the last two decades, the number of international legal rules has increased sharply. A wealth of new bilateral and multilateral treaties, often in very specific substantive areas ranging from the environment and trade to human rights and international crime, places States under an ever-larger number of obligations. In effect, the international legal system is “thicker” than it has ever been before’ (Burke-White 2004: 967-968).
Bourquin (1947) pointed that on the one hand, the ‘rapidly expanding number of fields affected by international regulation, such as labour, human rights, education, science, refugee assistance, civil aviation, communications, agriculture, international money and banking matters’; and on the other hand, the ‘increasing participation of technical, scientific and other experts in the process of international law and diplomacy’ shows ‘one of both quantitative and qualitative renovation of international law’.
5.6. Application of International Law in Municipal Sphere
Since the twentieth century beginning, the democratization of political system has happened increasingly both in European and non-European world – which means that ‘the conduct of international relations is no longer the unimpeded preserve of monarchs or small group of aristocrats but becomes linked with the internal constitutional and political process of the participating states’ (Friedmann 1964: 7).[72] Consequently, the relation of international law to internal law becomes, in every post-modern state, a major political and legal problem (ibid.). As a result, the theory of transformation and adoption on the one hand, and monoism and dualism debate on the other, gained much importance in 1950s. Often the constitution of every state lays down the bases on which the state’s foreign policy should be constructed and its international obligations respected. At the same time, it is universally admitted that in case of conflict between municipal laws and international law, the later prevails over the former.[73]
5.7. Emergence of Globalization
Indeed the actual globalization has been taking place since the end of the Cold War. At the end of the Cold War, on the one hand, due to the acceleration of the decolonization process, the break up of the former Soviet Union[74] and the former Yugoslavia[75] and the admission of several European microstates,[76] the membership of the United Nations has reached 192 and gained universality.[77] On the other hand, the nature of war has been changed from inter-state to intra-state, due to poverty; infectious disease; environmental degradation; developmental problems; and the spread and possible use of nuclear, radiological, chemical and biological weapons (Mani 2005: 489-490; Murphy 2007: 6).[78] It led to huge number of war crimes such as mass murder (i.e., genocide); raps; ethnic cleansing by forcible expulsion and ill-treatment against war prisoners; more number of displaced persons and refugees (Harroff-Tavel 1999: 339-340).[79] They can quickly become international because of arms flow, terrorism, drug trafficking, illicit trade and money laundering, refugee flows, and so on (UN Basic Facts 2004: 73).
Especially, at the end of the twentieth and the beginning of twenty-first century, there were number of cultural, ethnic and political tensions have taken place mostly in Africa and also in rest of the world. For example, the major human rights violations were in: Liberia (1990), Somalia (1992), Yugoslavia (1993), Bosnia-Herzegovina (1993), Rwanda (1994), Haiti (1994), Albania (1997), Central African Republic (1997), East Timor (1999), Kosovo (1999), Sierra Leone (1997 and 2000), Democratic Republic of Congo (1998 and 2003), Darfur (2003), Burundi (2004), Sudan (2005), Lebanon (2006), etc. Huntington (1996) writes that there is a clash of civilization on cultural grounds in the post-Cold War era.
Indeed, the object and purpose of the UN is to maintain peace and security, and in this regard the primary responsibility is rest with the Security Council. In the beginning, due to misuse of veto power, the Council turned as an ineffective and impartial organ under the UN System. As a result, the power of the General Assembly was strengthened by the Uniting for Peace Resolution in 1950;[80] and the regional security systems or alliances outside the United Nations, such as NATO, Warsaw Treaty Organization, etc were emerged. At the end of the Cold War, due to inefficient financial and military contribution for collective enforcement action from the member states, the Security Council often fails to secure its mandate against the new threats.[81] It led to the development of UN peace operations under either Chapter VI or Chapter VII of the Charter, using limited military forces, voluntarily contributed by the member states.[82] The peace operations include: conflict prevention, conflict mitigation, peacemaking, peacekeeping, peace enforcement, and post-conflict peace building. The major peace operations are: UNTSO (1948), UNEF (1956-1967), ONUC (1960-1964), UNFICYP (1964), UNPROFOR (1992-1995), UNAMIR (1993-1996), UNMIK (1999), UNMEE (2000), ONUB (2004) and so on (Pearson Peacekeeping Centre Website; UN Basic Facts 2004: 307-312).[83]
Most of the occasion, the Security Council, has authorized the coalitions of member states to use “all necessary means” including military action under Chapter VII to deal with a conflict and most of the time their actions were partial.[84] Further, it is apparent that, in case of humanitarian intervention, the principle of non-intervention has been undermined in the era of globalization. However, the principle of pre-emptive self-defence by the developed Western world also increased in the post-cold war period.
In the post-Cold War era, the WTO was established with an expanded trade activities, which include trade in goods, services, property rights and also investment measures – which often considered to be a globalization era. But in reality, the globalization has been started emerging since when the co-existence of inter-state relations to co-operation of states or else when the interdependence on various fields, such as economic, social, cultural, political, etc. were emerged. Sassen views that the ‘globalization’ may happen in two ways:
‘One of these involves, such as the World Trade Organization, global financial markets, the new cosmopolitanism, the war crimes tribunals’; ‘Other instances are cross-border networks of activities engaged in specific localized struggles with an explicit or implicit global agenda, as is the case with many human rights and environmental organizations’ – in this regard she illustrates that ‘particular aspects of the work of states, e.g., certain monetary and fiscal policies critical to the constitution of global markets that are hence being implemented in a growing number of countries; the use of international human rights instruments in national courts; non-cosmopolitan forms of global politics and imaginaries that remain deeply attached to or focused on localized issues and struggles yet are part of global lateral networks containing multiple other such localized efforts’ (Sassen 2004: 1143).
In brief, as result of dramatic changes in the international relations in the twentieth century, especially since end of the second World War, the inadequacy of old terms prompted Jessup to use the expression “transnational law” in 1956 to refer to all laws which regulate acts and events which take place across frontiers. Both aspects of civil and criminal law and parts of national public and private law and also private international law were included (Sorensen 1983: 561; Friedmann 1964: 37). Thereby, he convincingly demonstrated that the customary concepts of international law were no longer sufficient theoretically to cover all new phenomena in international legal relations. Further, Pescatore used the term “law of integration” to indicate the characteristic features of the law of the European Communities. It is a ‘legal system in which new organizational structures, independent of the individual States, make it possible to viewed real powers and in which the common legal power is autonomous, that is to say, outside the power of sovereignty of the Member States’ (Sorensen 1983: 561-562).
However, the scholars argue that the post-modern international is no more Eurocentric but universal in nature because it secures the interest and aspirations of all the states in almost all the sphere ranging from trade, economic, human rights, environment, and so on.[85] Pahuja writes that ‘after decolonization took place, international law become truly universal and a real community of states came into being’ (Pahuja 2005: 461). An-na’im observes that:
‘Although there have been several parallel systems for regulating inter-state relations throughout human history until the mid-20th century, there can now be only one system of international law in the present globally integrated, and interdependent, world. But international law cannot be limited to European system of inter-state relations that has evolved since the 18th century, and which was simply a regional system, like the Chinese, Hindu, Roman and Islamic system that preceded it’ (An-na’im 2006: 787).
Though it could be argued that ‘international law had already become universally applicable [even] during the period of colonization’ itself, and ‘this shift was not a shift toward universality as such, but instead from one universalism to another’ (Pahuja 2005: 462).
Though the Third world scholars like Chimni, Anghie, etc., while agreeing with the emergence of universal international law have criticized the Western developed countries’ influence in such law’s creation and policing making – for example, the IMF conditionality, WB policies and their voting procedures and the increasing influence of TNCs in the policy formation especially in the IPR issues, services, under the WTO, etc. According to them, such policies are the major reason for the poverty, civil wars, and other atrocities within third world states and consequently affect the third world peoples. Hence, they viewed that neo-colonialism or neo-imperialism or re-colonization of Western world taking place even today in the name of universalism.
On the other hand, there are some general critiques over post-modern universal international law is that, whether it is ruled by states or by international organizations. Because most of the organizations are treaty based, by which the state sovereignty has been waived towards international organizations. And even some of them raises the issues that whether international law theory exist even today – because there is no state interaction only organizational interaction exist.[86]
Therefore, the law in the era of globalization is not limited to ordering the coexistence of different states but relates also to economic, social, cultural, scientific and technological co-operation of states (Anand 1972: 62). Further, most nations passing through different phases of political, economic, and social developments, hence, they modify ‘their attitudes towards various rules of international law not as a matter of basic values but according to the national interest prevailing at a particular period’ (Friedmann 1964: 322).
Due to these changes, the international lawyers declared that emergence of “international legal community” (Rao 2004: 939-944); and considered the “twentieth century” as “post-modern anxiety” (Prost and Clark 2006: 342-343); or what Koskenniemi and Leino (2002) calls “post-modernity”.
6. Fragmented International Law
Though the twentieth century international law secured the universal value, but its fragmented nature has been debated since from the beginning and concern over it, has flourished finally in the twenty-first century. The issue arose: whether the post-modern universal international law unified or fragmented system?
Half a century ago, in 1953, Jenks has talked about the conflict between treaty regimes, thereby, at first time, showed the fragmented nature of international law. For this, he founds two reasons: First, the international world lacked a general legislative body, as a result, ‘…law making treaties are tending to develop in a number of historical, functional and regional groups which are separate from each other and whose mutual relationships are in some respects analogous to those of separate systems of municipal law’ (Jenks 1953: 403); Second reason he found with the law itself, ‘[o]ne of the most serious sources of conflict between law-making treaties is the important development of the law governing the revision of multilateral instruments and defining the legal effects of revision’ (ibid.).
In 1971, while theorizing on the concept of world society, Luhmann gave ‘a “speculative hypothesis” that global law would experience a radical fragmentation, not along territorial, but along social sectoral lines’ (Fischer-Lescano and Tuebner 2004: 1000). The reason for this would be ‘a transformation from normative (politics, morality, law) to cognitive expectations (economy, science, technology); a transformation that would be effected during the transition from nationally organized societies to a global society’ (ibid.). Therefore, as per his view, ‘[l]egal fragmentation is mere an ephemeral reflection of a more fundamental, multidimensional fragmentation of global society itself’ (ibid.: 1004).
In 1983, Weil also gave an early warning about the fragmentation in his much-debated essay on the “relative normativity in international law”. He noted that the normative differentiation made by the ILC in its Draft Articles on State Responsibility (1976) shattered the unity of international law. In his words the ‘unity of the normative regime is shattered by the jus cogens theory and the distinction between international crimes and international delicts’ (Weil 1983: 423).[87] Further:
‘[T]he unity of jus cogens, with its distinction between peremptory and merely binding norms, and the theory of international crimes and delicts, with its distinction between norms creating obligations essential for the preservation of fundamental interest [obligation erga omnes ] and norms creating obligations of a less essential kind, are both leading to the fission this unity’ (ibid.: 421)
He says that the ‘peremptory norms may originate in any of the formal sources of international law: conventions, custom, general principles of law – some even say, resolutions of international organizations (which, by some alchemy, would magically transmute non-normative acts into supernormative acts)’ (ibid.: 425). Such norms should be recognized and accepted by ‘all the essential components of the international community’ (quoted in ibid.: 426-427). As a result, ‘some norms are now held to be of greater specific gravity than others, to be more binding than others’ (ibid.: 421). Here, he finds ‘the replacement of the monolithically conceived normativity of the past by graduated normativity’ (ibid.). And he compares, traditionally there exists “norms and non-norms”, but now along with such distinction, even within the “normative domain itself” – there are “norms and norms” (ibid.). Such “norms and norms” distinction made by the ILC, he considered as “fragmentation of normativity in international law”.
On the other hand, he says the ‘normativity is also tending towards dilution’. Because ‘[t]raditionally, every international norm has had clearly specifiable passive and active subjects: it creates obligations incumbent upon certain subjects of international law, and rights for the benefit of others’ (ibid.: 422). But in contemporary times, international law has been diluted into two categories: ‘the few [norms] that create obligations “the observance of which is of fundamental importance to the international community as a whole”’ – ‘their violation should be sanctioned as an international crime’; ‘then, below them, the great mass of norms that create obligations “of less and less general importance”’ – ‘whose violation merely constitute an international delict’ (ibid.: 424). Weil views such distinction as “the pathology of the international normative system”.
In 1985, Simma in his famous article “self-contained regimes” talked about the existence of sub-systems with the international legal domain. He draws the concept of “self-contained regime” from the Riphagen report on the Draft Articles on State Responsibility.[88] According to Riphagan, international law is not modeled on one system but on a variety of interrelated “sub-systems” within each of which primary rules and secondary rules are closely intertwined and are inseparable.[89]
Further he says that ‘the concept of a “self-contained regime” should not be used as a synonym of “subsystem”’ and it should be ‘be reserved to designate a certain category of subsystems, namely those embracing, in principle, full (exhaustive and definite) set of secondary rules’. According to him:
‘A “self-contained regime” would then be a subsystem which is intended to exclude more or less totally the application of the general legal consequences of wrongful acts, in particular the application of the countermeasures normally at the disposal of an injured party’ (Simma 1985: 117).
On the other, Roa says that:
‘Associated with the concept of self-contained regimes is the operation of lex specialis. These are legal regimes more specific in content and thus seen as differing from the more general category of law on the subject. Lex specialis may provide their own set of rights and obligations, and even the consequences for failure to perform them. In that sense these regimes could exclude the application of the general international law and state responsibility for wrongful acts as provided there under. Diplomatic law, international human rights law, international humanitarian law, international environmental law, and international trade law…are some of the examples of lex specialis or self-contained regimes’ (Rao 2004: 933-934).
There could be some difference between lex specialis and self-contained regimes, hare the latter is perhaps to be seen as a more developed and complete form of the former. On the other hand,
‘“Objective regimes” similarly designate a particularized set of rules for an area but not necessarily fully disconnecting that regime from the general or other such regimes. For example, proposals for nuclear free zones or peace zones fall into this category’ (ibid. 934).
[...]
[1] In 2002, the Commission renamed “[f]ragmentation of international law: difficulties arising from the diversification and expansion of international law” and established a Study Group under the Chairmanship of Bruno Simma. In 2003, the Commission appointed Martti Koskenniemi as Chairman of the Study Group and finally, the Study Group submitted the Report in 2006 (ILC Report on Fragmentation 2006: 8, para. 1).
[2] ‘The notion of functional differentiation has been developed notably by Niklas Luhmann to explain the evolution of late modern societies… Fischer-Lescano and Teubner were among the first to transpose this conceptual framework to international law’ (Martineau 2009: 4, fn. 8).
[3] ‘A contestant of the (old) unity will tend to work for fragmentation, whereas a supporter of the (old) unity will work against fragmentation’ (ibid.: 4).
[4] The ILC’s codified conflict resolving techniques are: (i) the lex superior derogate legi inferiori (peremptory (jus cogens) norms, obligations erga omnes, Article 103 of the UN Charter obligations), (ii) lex posterior derogate legi priori (Articles 30/59, Articles 41/58 of the VCLT), (iii) lex specialis derogate legi generali (Article 55 of the Draft Article on State Responsibility), (iv) hierarchy of sources (Article 38(1) of the ICJ Statute), (v) systemic integration (through Article 31(3)(c) of the VCLT), etc.
[5] Classic understanding of ‘universality of international law means that there exists on the global scale an international law which is valid for and binding on all states. Universality thus understood as global validity and applicability excludes the possibility neither of regional (customary) international law nor of treaty regimes which create particular legal sub-systems, nor does it rule out the dense web of bilateral legal ties between states… But all of these particular rules remain ‘embedded’, as it were, in a fundamental universal body, or core, of international law. In this sense, international law is all-inclusive’ (Simma 2009: 267).
[6] For Kelsen, ‘norms of general international law are inferior in terms of number and importance as compared to local norms [including] norms of particular international law’ (quoted in Martineau 2009: 14, fn. 48). Scelle acknowledged the existence of ‘particular international legal orders’, since these orders were ‘conditioned and absorbed by larger international legal orders (international regionalism), these larger orders being themselves part of the global international legal order’ (quoted in ibid.). The international law has been fragmented on geographical (regional) basis, for instance Article 8 of the ILC Statute requires ‘that in the Commission as a whole representation of the main forms of civilization and of the principal legal systems of the world should be assured’. Article 23(1) of the UN Charter requires the UN General Assembly to elect ten non-permanent members of the Security Council on the basis of “equitable geographical distribution”. The UN General Assembly also highlighted the importance of this principle through one of its resolution in 2002 – which ‘encourage[d] States parties to the United Nations human rights instruments to establish quota distribution systems by geographical region for the election of the members of the treaty bodies’ (GA Res. A/RES/56/146 (2002)).
[7] But it has been contended that the international law has been developed on various functional basis ever since mid-nineteenth century itself, that is, when the Universal Telegraph Union (1865), Universal Postal Union (1874), the International Bureau of Industrial Property (1883), the International Bureau of Literary Property (1886), the International Union of Freight Transportation (1890) and so on (Martineau 2009: 11).
[8] Fisheries Jurisdiction case (United Kingdom v. Iceland), Merits, (1974), ICJ Reports, 19.
[9] The ancient period (since early origin to seventh century AD), and the medieval period (from seventh century to fifteenth century AD).
[10] Even ‘the early civilizations in the valleys of the Nile, Tigris-Euphrates, Indus, and Yellow rivers also did not interact’ (Huntington 1996: 49). In the same way, ‘the Andean and Mesoamerican civilization had no contact with other civilizations or with each other’ (ibid.: 48-49).
[11] In the medieval period (approximately between seventh century AD to fifteenth century AD), the Islamic countries dominated or subjugated and ruled the non-Islamic countries.
[12] The medieval period was between the seventh century to fifteenth century AD (in which the early medieval was approximately between seventh to thirteenth century AD, and the late medieval between thirteenth to fifteenth century AD).
[13] With the end of the religious war in Europe, both the concept of sovereignty and equality of states emerged (Anand 1986: 23, 52).
[14] Though Machiavelli did not expound the theory of sovereignty, but he dealt with the theory of state (Shaw 2007: 20).
[15] ‘Vitoria focuses on the social and cultural practices of the two parties, the Spanish and the Indians’ (Anghie 2005: 15). For him, ‘sovereignty doctrine emerges through…the problem of cultural difference’ (ibid.: 16). ‘[T]he rule of the sovereign was legitimate only if sanctioned by religious authority’ (ibid.: 17). He argues that ‘what natural reason has established among all nations is called jus gentium’ (ibid.: 20). ‘The universal system of divine law administered by Pope is replaced by the universal natural law system of jus gentium whose rules maybe ascertained by the use of reason’ (ibid.). Here, the ‘ jus gentium, naturalizes and legitimates a system of commerce and Spanish penetration’ (ibid.: 21). For him, opposing the work of the missionaries in the territories was a just reason for war (ibid.). Hence, Vitoria’s concept of sovereignty is developed primarily in terms of the sovereign right to wage war (ibid.: 23). He bases his conclusion that the ‘Indians are not sovereign on the simple assertion that they are pagans’ – ‘Indians lack rights under divine law because they are heathens’ (ibid.: 29). Anghie (2005) presumes that ‘an idealized form of particular Spanish practices become universally binding, Indians are excluded from the realm of sovereignty, and Indian resistance to Spanish incursions becomes aggression which justifies the waging of a limitless war by a sovereign Spain against non-sovereign Indians’ ((ibid.: 30). Therefore, we can say, Vitoria ‘reintroduces Christian norms within this secular system; proselytizing is authorised now, not by divine law, but the law of nations’ (ibid.: 23)
[16] Hugo Grotius was considered as founding father of modern international law. He introduced the concept ‘freedom of the sea’ in his work Mare Liberum, which means ‘sea is open for all and belong to none’. And he opposed the closed sea concept which was introduced by the Portuguese (which was later dealt by John Seldon). The most fundamental of his principle is “pacta sunt servanda”, the respect for promises given and treaties signed (Friedmann 1964: 75).
[17] Hegel, who was often considered as the father of an ideology that was ultimately lead to Fascism, Nazism, Capitalism, Liberalism, and state Communism. Friedmann said that ‘the unmitigated nationalism of Hegelian philosophy contrasted with the internationalist and humanitarian conception of Kant. It fount its logical culmination in modern fascism, national socialism and, combined with certain aspects of Marxism, in modern state Communism’ (Friedman 1964: 42, fn. 3)
[18] The term ‘East Indies’ covers India as well as ‘Further India’ including Ceylon, Burma, Siam, Indonesian Islands, Persia, China, Japan, etc.
[19] ‘The Portuguese in Asia were primarily servants of the Crown of Portugal and not merchants’ (Alexandrowicz 1967: 26). The Dutch, English, and French entered into East Indies as a merchant and established commercial organizations – ‘for the purpose of giving support and lending security to trading activities that the companies received in their charters quasi-sovereign powers’ from the Crown – ‘which comprised the active and passive right of legation, the right to conclude treaties, to acquire territory and if necessary to wage war’ (ibid.: 27). Westlake (1914) calls them as ‘mediate Sovereigns’ (ibid.: 15).
[20] ‘[C]ertain Asian Sovereigns such as the Moghul Emperor (prior to the eighteenth century) and the King of Burma (Ava) were reluctant to deal with the Company as not being a full sovereign entity’ (ibid.: 165).
[21] Alexandrowicz (1967) quotes many equal treaties between European and East Indian rulers from the Grotius and Freitas works. In the beginning itself, Alexandrowicz proves the East Indian sovereign power to make treaties, through ICJ judgment on Right of Passage over Indian Territory case.
[22] The term “Orientalism” has two elements, namely “Orient” (Easterners and Bible lands), and “Occident” (Westerners). ‘[T]he Orient is an integral part of European material civilization and culture’ (Said 1978: 2). The French and the British – less so the Germans, Russians, Spanish, Portuguese, Italians, and Swiss – have had a long tradition of “Orientalism” (ibid.: 1). Said (1978) says that ‘ Orientalism derives from a particular closeness experienced between Britain and France and the Orient, which until the early nineteenth century had really meant only India and the Bible lands’.
[23] “Orientalism” as a Western style for dominating, restructuring, and having authority over the “Orient”. ‘In brief, because of Orientalism the orient was not (and is not a free subject of thought or action’ (ibid.: 3).
[24] The principal allied powers were Austria, Great Britain, Prussia and Russia – recognized themselves as the only parties qualified to make and keep the peace and assumed the responsibility for European security (Anand 1986: 60)
[25] Even the powerful Asian nation China was forced by Great Britain to accept the illegal opium trade by a war in 1839 (ibid.: 58). In the Treaty of Nanking 1842 that followed the “Opium War”, not only was Hong Kong annexed, but four other Chinese ports were opened to foreign commerce (ibid.). Several other Asian countries were similarly humbled and even annexed in the name of free trade (ibid.)
[26] It was only in the Treaty of Paris 1856 that a non-Christian oriental country, Turkey, was formally admitted to the family of nations to participate in the public law and concert of Europe (ibid.: 56). And Japan was admitted to the group of “civilized nations” in 1906, only after it defeated China (1894) and Russia in war (1904) (ibid.). In the same way, even the powerful countries of Africa such as Egypt, Ethiopia, etc. were not included in the “family of nations” – they all joined in the charmed circle of sovereign states only in the League of Nations (Anand 1972: 18). In fact, seven Asian-African countries were included among the fourty-five original members of the League, which included Ethiopia, Turkey, Iraq, Afghanistan, Egypt, India, etc. (ibid.: 24). Though the League gave the first opportunity to these countries to represent in the “family of nations”, but the centre of gravity throughout its existence continued to remain with Western Europe (ibid.).
[27] The internationalization of economic interest occurred both in the financial and in the industrial sphere. In the course of the nineteenth and early twentieth centuries, some of the major Western (especially British, French, or later German capitalist) lent money, on short, medium and long-term conditions, through international banking houses, all over the world (Friedman 1964: 21-22). The Western investment in major sectors were: ‘the controlling interest of the US-owned American and Foreign Power and Mexican Light and Power Corporations in the development and ownership of electric power in a number of Latin American countries; the predominant control of the Canadian-owned Brazilian Traction Company in Brazilian Transport and Power; the controlling influence enjoyed by the United Fruit Company in the banana and agricultural production of the Central American Republics; British railway interest in South America; and the oil concessions owned by American, British, French, and Dutch interest in the oil producing countries of the Middle East’ (ibid.: 23, fn. 5). Many of these investments have also been made in the former colonies, such as India, Indonesia, French Indo-China, the Belgian Congo, etc. (ibid.: 23, fn. 4).
[28] As a result of the industrial revolution and the expansion of international trade and commerce, the term “civilized nation” began to mean ‘advanced nation’ or ‘industrial and commercial nation’ or a state which ‘was able and willing to protect adequately the life, liberty, and property of foreigners’ (Anand 1972: 23).
[29] Although Latin-American countries were generally protected by the US from European political subjugation through the Monroe doctrine, but since the last quarter of the nineteenth century intervention in their internal affairs and invasion of their territories have been common features of the history of Latin-American countries – because, they increasingly subject to almost exclusive exploitation by the United States (ibid.: 34)
[30] Convention on the Employment of Force for the Recovery of Claims (Porter Convention) was adopted in the Second Hague Peace Conference in 1907.
[31] ‘French and Germans devoutly believed in their civilizing mission in Africa, even if this had to be achieved by force’ (Anand 1986: 59).
[32] The French statesman Jules Ferry wrote that ‘the superior races have a right as regards inferior races. They have a duty of civilizing the inferior races’ (ibid.)
[33] In 1885, fifteen European states assembled at Berlin and acted as “quasi-world-legislators” in the matter of Africa. They laid down ‘rules of the game amongst themselves for the grab of Africa’ (Anand 1972: 21).
[34] Koskenniemi (2004) considers nineteenth century is a period of progressivism, because from which international law and the major ideologies of Liberalism and Marxism arose.
[35] The First World War started in 1914 and ended in 1918. In the war, the ‘Allied powers’ (the United States of America, the British Empire, France, Italy and Japan) defeated the ‘Central powers’ led by Austro-Hungarian, German, and Ottoman Empires.
[36] As a result of the First World War, the US President Woodrow Wilson prepared 14 points to form an international organization, which led to the formation of the League of Nations and the adoption of the League Covenant. The League of Nations came into existence on 10 January 1920 with 42 founding members and was dissolved on 18 April 1946.
[37] Article 5(1) of the League Covenant.
[38] Article 12(1) of the League Covenant.
[39] Originally the Treaty of Paris (Kellogg-Briand), 1928 was adopted by Germany, the United States, Belgium, France, the United Kingdom, the Dominion of Canada, the Commonwealth of Australia, and the Dominion of New Zealand.
[40] League of Nations failed because it had weak executive organ (i.e., the League council). As a result, Japan invaded China in 1931; German often made internal and external aggressions; the Soviet Union invaded Finland in 1939. Finally, the Second World War broke out in 1939 and ended in 1945. In the war, the ‘Allied powers’ led by the United States of America, the United Kingdom, the Union of Soviet Socialist Republic, China and France defeated the ‘Axis powers’ led by Japan, Germany and Italy.
[41] During the Second World War itself, the ‘Great powers’ (initially the UK and the US had started making efforts to establish a new ‘International Organization’. Their efforts led to the formation of several international conferences, such as London Declaration 1941, Atlantic Charter 1941, United Nations Declaration 1942, Moscow Declaration 1943, Tehran Conference 1943, Dumbarton Oaks Conference 1944, Yalta Conference 1945, and San Francisco Conference 1945. Consequently, the United Nations Organization was established on 24 October 1945 and the UN Charter was adopted. It established with 51 original members and presently it has 192 member states.
[42] As per Article 24(1) of the UN Charter, the members of the UN have limited their sovereignty towards the Security Council, and the Council acts on their behalf, and as per Article 25, the decisions of the Security Council binding upon the members of the UN.
[43] Article 2(4) of the UN Charter prohibits the threat or use of force, but it is subject to certain exception – that is, in case of self-defence (Article 51), collective enforcement action (Chapter VII) and regional agencies may take enforcement action with the authorization of the Security Council (Article 53(1)) – in such cases the states can use force under the United Nations system.
[44] Since the end of the eighteenth century to the early part of the twentieth century the Europeans (especially the Britain, France, and Spain) colonized and dominated the world in all respects.
[45] The League mandate system applied only to the former colonies of Germany and Turkey and completely failed to touch more numerous colonial territories of the victorious Allied powers. The League Covenant divided the mandated territories into three categories (namely class A mandates, class B mandates and class C mandates) and imposed different obligations on the mandatory powers according to the category of its mandate (For more discussion, see Kay 1996: 143-145).
[46] Chapters XII and XIII of the UN Charter says that the trusteeship system is the direct successor of the League’s mandate system. As per Article 77(1), the trusteeship system covers: ‘(a) territories now held under mandate; (b) territories which may be detached from enemy states as a result of the Second World War; and (c) territories voluntarily placed under the system by states responsible for their administration’. In only eleven territories were the provisions of Chapters XII and XIII ever applied. There were more than eight times as many non-self-governing territories, containing over ten times as many people, outside the trusteeship system (For more discussion, see ibid: 145-148).
[47] In 1939, there were seven countries – Great Britain, the Netherlands, France, Belgium, Portugal, Italy, and Spain – with a combined population of only 200 million people controlled almost 700 people in their colonial possessions (ibid: 143).
[48] The Cold War between the USA and the USSR started in 1945 and ended in 1989. It was a war of two ideologies, namely democracy and socialism.
[49] “Non-aligned” in the sense, the colonial countries aligned neither with the “First World” (i.e., Western European countries) nor with the “Second World” (i.e., Eastern European countries) and represented separately as “Third World” countries. North American countries started nationalist struggle and gained independence and they joined in the family of nations even in the nineteenth century itself. Some of the Latin-American and even some of the European countries gained independence only in 1950s and 1960s and they follows the policy of “Non-aligned” along with the Afro-Asian states (Anand 1972: 4).
[50] GA Res. (1960), 1514 (XV), 14 December 1960 (the resolution recognized that ‘all peoples have an inalienable right to complete freedom’ and solemnly proclaimed ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’). In the fifteenth session, there were seventeen colonial territories were scheduled to gain their independence and to join the organization – in which only Cyprus was a non-African country.
In fact, the USSR made a request in the UN General Assembly to include an additional item for the – fifteenth session of 1960 – a ‘declaration on granting of independence to colonial countries and peoples’. The Afro-Asian states decided not to go with the USSR and prepared a separate draft based upon the resolution previously approved in the Asian-African conferences at Bandung in 1955, Accra in 1958, and Addis Ababa in 1960. The Afro-Asian draft differed from the Soviet draft in both tone and substance. The Soviet draft was both anti-colonial and anti-western, whereas the Afro-Asian draft was only anti-colonial and strenuously avoided attacks on specific Western countries. While the Soviet text had demanded that all colonial countries ‘must be granted forthwith complete independence and freedom’, but the Afro-Asian draft spoke of ‘immediate steps’ to be taken to transfer power, implying that the transfer could proceeded according to an orderly timetable. In contrast to the Soviet draft, no mention is to be found in the Afro-Asian draft of any prohibition upon foreign bases (For more discussion, see Kay 1996: 148-154)
[51] Anand (1972) says that ‘[b]y “new” states all we mean is newly independent states. Several of these states are quiet ancient and existed long before the so-called “older” states of Europe or America were ever founded’. Kay (1996) says that ‘twenty seven of the fifty-one founding members of the United Nations had won their independence after some form of colonial rule’.
[52] The Mexican expropriation of the United States oil and land properties shortly before the Second World War, the confiscation of the Anglo-Iranian oil properties in Iran (1951), the take-over of the United Fruit Company in Guatemala (1953), the Suez Canal nationalization by Egypt in 1956, the expropriation of Dutch properties by Indonesia (1958), the take-over of Chilean copper industry (1972), and the Libyan oil industry (1971-74). These events marked unprecedented political process, such as the struggle of colonial peoples for political self-determination and the efforts of developing states to pursue economic self-determination and to establish a New International Economic Order (For more detail, see Schrijver 1997: 3-4: Friedmann 1964: 22, fn.3).
[53] The Great Britain and France took military action against Egypt after the Suez Canal nationalization in 1956. In some of the cases, such as ‘the Mexican oil expropriation leading to a settlement between Mexico and the US in the early forties, and the Iranian Oil Agreement of 1954, a partial satisfaction was eventually reached as a result of prolonged international negotiations’ (For more discussion, see Friedmann 1964: 22-23, fn. 3). Further, the European and American states put forth the “Cordell Hull” formula, which urges that any expropriation of foreign property requires “prompt, adequate and effective” compensation. Against which, the newly independent states argued for “just, faire and equitable” compensation, based on the principle of “appropriate compensation”.
The Calvo doctrine – under one version: ‘international liability with respect to contracts entered into with alien private contractors by the State party is excluded’; another formulation describes, ‘it as a stipulation in a contract in which “an alien agrees not to call upon his State of nationality in any issues arising out of the contract”’. ‘This used to be inserted (or suggested) as a clause in investment contracts but has also been argued as a specific rule of South American regional law’. ‘The Drago doctrine sought to exempt State loans from general rules of State responsibility’. ‘The Tobar doctrine, again, has to do with the alleged duty of non-recognition of governments that have arisen to power by non-constitutional means’ (for reference to all these doctrines, see ILC Report on Fragmentation 2006: 110, fn. 275).
[54] GA Res. (1962), 1803 (XVII), 14 December 1962 (Declaration on the Permanent Sovereignty over Natural Resources (PSNR)). The PSNR evolved as a new principle of international economic law in the post-Second World War period. Schrijver (1997) writes that ‘[s]ince the early 1950s this principle was advocated by developing countries in an effort to secure, for those peoples still living under colonial rule, the benefits arising form the exploitation of natural resources within their territories and to provide newly independent States with a legal shield against infringement of their economic sovereignty as a result of property rights or contractual rights claimed by other States or foreign companies’. Further, he says the PSNR gets importance, because it ‘touches on such controversial topics as expropriation of foreign property and compensation of such acts, standards of treatment of foreign investors (the national standard versus the international minimum standard) and State succession’ (Schrijver 1997: 3-4).
[55] GA Res. (1974), 3201 (S-IV), 1 May 1974 (Declaration on the Establishment of a New International Economic Order (NIEO)). The NIEO gives a ‘[f]ull permanent sovereignty of every State over its natural resources and all economic activities’, which include ‘the right to nationalization or transfer of ownership to its nationals’. Further it says ‘[t]he right of all States, territories and peoples under foreign occupation, alien and colonial domination or apartheid to restitution and full compensation for the exploitation and depletion of, and damages to the natural resources and all other resources of those States, territories and peoples’.
[56] GA Res. (1974), 3281 (XXIX) (Charter of Economic Rights and Duties of States (CERDS)). The CERDS stresses that ‘[e]very State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities’. Further it says that ‘[e]ach State has the right: (a) to…exercise authority over foreign investment within its national jurisdiction… No State shall be compelled to grant preferential treatment to foreign investment’. However, ‘[e]ach State has the right: (c) to nationalize, expropriate, or transfer ownership of foreign property, in which case appropriate compensation should be paid’, if any controversy arise over the compensation than ‘it shall be settled under the domestic law of nationalizing State and by its tribunals’, unless otherwise freely and mutually agreed by the concerned parties.
[57] GA Res. (1970), 2625 (XXV), 24 October 1970 (Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (Friendly Relations Declaration)). The Friendly Relations Declaration has dealt with seven basic/cardinal principles of international law, namely, prohibition of force, peaceful settlement of international disputes, non intervention, international co-operation, equal rights and self-determination of peoples, sovereign equality of States, good faith (Mani 1993).
[58] Anand writes that ‘[n]one of these [new] States has in fact ever denied the binding force of international law and they accept a large part of it without any question. They are in favour of all those rules and principles which do not put them in a position of subordination and which give them equality in law. They whole-heartedly accept principles concerning sovereignty, recognition, territorial integrity, non-aggression, non-intervention, sovereign-equality, reciprocity, peaceful settlement of disputes, and diplomatic and consular relations. There is also no need for them to reject principles on state succession and several other branches of international which are vague and flexible enough to give them wide latitude’. And the new states opposed ‘the traditional and much abused law relating to responsibility of states and hesitation in accepting the old concept of the right to compensation for expropriation of alien property’ (Anand 1972: 60). Finally, he says that the ‘[t]raditional international law has been concerned only with the question of how to protect foreign capital. They [new States] want new law which would not only take into account the interest of the lenders, but also the rights, and needs of the borrowers’ (ibid.: 61).
[59] The “Project on International Courts and Tribunals” (PICT) was founded in 1997 by the Center on International Co-operation (CIC), New York University. From 2002 onwards, PICT has been a common project of the CIC and of the Centre for International Courts and Tribunals, University College London.
[60] The ICJ was established under the United Nations Organization in 1945 and started functioning in 1946 and it succeeded the Permanent Court of International Justice (PCIJ), which was established under the League of Nations in 1920 and started functioning in 1921. Before the establishment of PCIJ, the Permanent Court of Arbitration (PCA) was established under the Hague Peace Conference of 1899 and subsequently strengthen by the Hague Peace Conference of 1907; and even today the PCA exists and functions in Hague.
[61] Infact, the history of arbitration has started ever since the Jay Treaty was first formed in 1794, following the American War of Independence, which introduced binding decisions by joint mixed commissions; then again in the Alabama Arbitration of 1872 after the American Civil War, which can be considered the real beginning of modern international arbitration, in the technical sense (Abi-Saab 1999: 922). Further, in the twentieth century, the Trial Smelter Arbitration (1941) and Lake Lanoux Arbitration (1957) was formed and become considered as major arbitrations in the environmental field.
[62] At present, there are more than 3000 NGOs have been registered under the UN Secretariat.
[63] The Congress of Vienna (1815) established the principle of freedom of navigation with regard to international waterways and set up a Rhine Commission to regulate its use; European Danube Commission was created in 1856 and a number of other European rivers such as Elbe, Po, etc were also become the subject of international agreements and arrangements.
[64] ‘The very purpose of the Alien Tort Claims Act (ATCA), first adopted in 1789, was to assure that aliens had a right of access to federal courts for their claims concerning violations of customary international law or treaties of the United States’ (Paust 2004: 1232-1233).
[65] Reparation for Damages suffered in the Services of the United Nations, Order, (1949), ICJ Reports.
[66] ‘…it does mean that they participate in the international legal process and that they acquire a limited status in public international law, to the extent that their activities are controlled by public rather than private international law’ (Friedmann 1964: 375).
[67] The responsibility of individual actors was stressed by the International Military Tribunal at Nuremberg in opposition to defense claims ‘that international law is concerned [merely] with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible… That international law imposes duties and liability upon individuals as well as States’, the Tribunal affirmed, “has long been recognized”. The Tribunal also recognized that ‘crimes against international law are committed by men, not by abstract entities….[and] individuals have international duties which transcend the national obligations of obedience imposed by the individual State….’ Apart from this, the Tribunal also imposed individual responsibility against the customary international law principle of state authority or sovereign immunity, it rightly declared that: ‘the principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position… He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law’ (quoted in Paust 2004: 1234-1235).
[68] ‘Although there has been no organic connection between the movement for an international recognition of human rights, mainly through the United Nations Declaration of Human Rights and the subsequent draft Covenants of the United Nations, and the imposition of individual criminal responsibility on prominent individuals of the German and Japanese nationalities, in the Nuremberg and Tokyo trials of war criminals, there should be a general correlation between rights and duties. To the extent that the individual is held entitled to assert certain claims to human dignity and the protection of vital human interest on an international level, he can also be fairly held to assume a corresponding degree of responsibility for actions that directly interfere with such values’ (Friedmann 1964: 234).
[69] ‘In the twentieth century, about 6,000 multilateral treaties were concluded of which around 30 per cent were general treaties, open for all States to participate’ (ILC Report on Fragmentation 2006: 10, fn. 10). ‘Over 50,000 treaties are registered in the United Nations system’ (ibid.).
[70] There are numerous other private or private-public instances of regulation, which are making autonomous law with a claim to global validity. For example, ‘the Apparel Industry Partnership, a joint undertaking of non-governmental organizations, international clothing manufacturers, and American universities, has established its own quasi-governmental (but non-state regulatory regime to help safeguard public values concerning international labor standards. The partnership has adopted a code of conduct on issues such as child labor, hours of work, and health and safety conditions, along with a detailed structure for monitoring compliance (including a third-party complaint procedure). In internet context, the “TRUSTe” coalition of service providers, software companies, privacy advocates, and other actors has developed (and monitors) widely adopted privacy standards for websites. Similarly, the Global Business Dialogue on Electronic Commerce has formed a series of working groups to develop uniform policies and standards regarding a variety of e-commerce issues. And, of course, the Internet Corporations for Assigned Names and Numbers…is a non-state governmental body administering the domain name system’ (Fischer-Lescano and Tuebner 2004: 1011).
[71] As per Article 13(1) of the UN Charter, ‘[t]he General Assembly shall initiate studies and make recommendations for the purpose of: (a) promoting international co-operation in the political field and encouraging the progressive development of international law and its codification’. To carry out such an obligation, the General Assembly established the ILC in 1946, which is represented by the states on “equitable geographical” basis and its major function is to codify the existing rules and principles on a particular issue and to contribute for the development of international law.
[72] ‘The conduct of foreign affairs becomes part of the politics of a country and, in democracies, part of the process of political debate, in parliament, in the press, and in other media of public opinion’ (Friedmann 1964: 7).
[73] As the Permanent Court of International Justice stated in the Greco-Bulgarian Communities case: ‘It is a generally accepted principle of international law that in the relations between powers who are contracting parties to a treaty, the provisions of municipal law cannot prevail over those of the treaty’ (quoted in Anand 1986: 34-35). Again, in the Treatment of Polish Nationals in Danzing case, the court observed: ‘According to generally accepted principles, a State cannot rely, as against another State, on the provisions of the latter’s constitution, but only on international law and international obligations duly accepted…and, conversely, a State cannot adduce, as against another State, its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force’ (quoted in ibid.: 35).
[74] On 24 December 1991, the Russian Federation, with the consent of the other Republic of the Former Soviet Union, took over the Soviet seat at the United Nations, including the permanent seat on the Security Council. The three republics (Estonia, Latvia, and Lithuania) had already been admitted to the United Nations on 17 September 1991 upon their secession from the Soviet Union. The Ukraine and Byelorussia (now Belarus) – two founding members of the Organization – were later admitted to the United Nations in 1991. The other Former Soviet Union Republics: Armenia, Azerbaijan, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan were admitted on 2 March 1992. Georgia was admitted on 31 July 1992 (see generally Blum 1992: 354; UN Basic Facts 2004: 297-303).
[75] Bosnia-Herzegovina, Croatia, and Slovenia were admitted to the United Nations on 22 May 1992 and Macedonia (admitted as “the Former Yugoslavia Republic of Macedonia”) on 8 April 1993. The Federal Republic of Yugoslavia was readmitted on 1 November 2000, following the downfall of Yugoslavia President Slobodan Milosevic, and changed its name to Serbia and Montenegro on 4 February 2003. Since the declaration of independence by Montenegro on 3 June 2006, the membership of Serbia and Montenegro in the UN has been continued by Serbia on the basis of Article 60 of the Constitutional Charter of Serbia and Montenegro. Montenegro was admitted to the UN on 28 June 2006 (Blum 1992: 830; UN Basic Facts, ibid.).
[76] Liechtenstein was admitted to the Organization on 18 September 1990, San Marino on 2 March 1992, Monaco on 28 May 1993, and Andorra on 28 July 1993. Further, a large number of newly independent microstates (mostly Island states) of the Caribbean as well as of the Indian and Pacific Oceans, some of which displayed lesser qualification of statehood than the above mentioned European microstates (Blum 2005: 638).
[77] Montenegro was admitted to the Organization on 28 June 2006, which brought the membership of the UN General Assembly to 192.
[78] After the post-war period 1945, the nature of the war has been considerably changed, especially in Middle East problem (1956) and in Congo crisis (1960) the inter-state disputes become intra-state (i.e., internal) disputes. Hence, the UNO, at first time, in Congo crisis 1960-1964, the functions of the Security Council has been expanded to use force even against the “intra-state disputes” because it was also considered as a threat to the maintenance of international peace and security (Mani 2005: 489-490; Murphy 2004: 6).
[79] Such conflicts of today are a complex mix. ‘Their roots may be essentially internal, but they are complicated by cross-border involvement, either by states or by economic interests and other non-state actors. Recent conflicts in Africa have shown the deadly mix of civil strife and illegal export of natural resources – primarily diamonds – to fuel arms purchases’ (UN Basic Facts 2004: 73).
[80] In the special circumstance of the Korean conflict, with the absence of the USSR, the Uniting for Peace Resolution, 1950 was adopted by the UN General Assembly. The Resolution provides that, if, because of the lack of unanimity of the permanent members of the Security Council (i.e., China, France, the USSR, the UK, and the USA), the Council fail to maintain international peace and security where there is a ‘threat to the peace, breach of peace or act of aggression’, the General Assembly ‘shall consider the matter immediately’ and ‘recommend action by Members including the use of armed forces’
[81] Because of the lack of financial and military contribution, the UN and the international system seemed unprepared and ill-prepared for the potential consequences of the ‘new world order’. Subsequent events have highlighted the deficiencies in the UN system, in particular the controversy over the UN action and policy in Somalia (1992), and Rwanda (1994), and the failure to secure peace and protect Bosnia in the former Yugoslavia (1993), and Kosovo in the Serbia (1999).
[82] Usually, the Peacekeeping Operations are conducted under Chapter VI of the UN Charter, which deals with the ‘Pacific Settlement of Disputes’. The Secretary-General plays a vital role in the conduct of Peacekeeping Operations but the exact nature and extent of this role has not been defined in the UN Charter (Murphy 2007: 6). Normally, the UN Peacekeeping Operations are established by the Security Council and directed by the Secretary General, often through a special representative. The UN has no military force of its own, and member states provide, on a voluntary basis, the personnel, equipment and logistics required for an Operation (For general discussion, see UN Basic Facts 2004: 73).
And these Operations fell short of enforcement action since they could not apply military force, the UN Personal were allowed to use force only in self-defence. Hence, the UN Secretary-General Dag Hammarskjold famously referred to them as belonging to “Chapter Six and a Half”. Further, the legality of a “peacekeeping force” on any country’s territory should be guaranteed in a legal instrument known as the “Status of Forces Agreement (SOFA)” (Murphy 2007: 7). However, the role of Peacekeeping Forces received the “Nobel Peace Price” (UN Basic Facts 2004: 72). Operations are financed through the Peacekeeping budget and include troops from many countries. But the expanses of Peacekeeping Operations was contested in the Certain Expenses case (1962), the ICJ held that Article 17, Paragraph 2 of the UN Charter include the expenses incurred for Peacekeeping Operations.
[83] Since 1948 there are 63 UN Peacekeeping Operations have been created under the UN mandate. And in which 13 were established in the forty years between 1948-1988, and remaining 50 have all been set up since 1988 to 2007 (For details UN website; Pearson Peacekeeping Centre website; UN Basic Facts 2004: 307-312).
[84] The coalitions of member states has used force to restore the sovereignty of Kuwait after its invasion by Iraq (1991); to establish a secure environment for humanitarian relief operations in Somalia (1992); to contribute to the protection of civilians at risk in Rwanda (1994); to restore the democratically elected government in Haiti (1994); to protect humanitarian operations in Albania (1997); to restore peace and security in East Timor (1999); and to address the cross-border conflict between the state (Israel) and a non-state militia (Hezbollah) (2006). Other than this the NATO-led Force (IFOR) in the former Yugoslavia (1992) and the recently deployed Kosovo Force (KFOR) in Kosovo (1999).
[85] ‘The extent of the universality of this new co-operative international law is of course related to the nature of the subject matter’ (Friedmann 1964: 68). ‘Almost all of it is found in international conventions, i.e., in articulate law-making, rather than in the slow growth of custom or judicial interpretation’ (ibid.). Friedmann says that, ‘[m]uch of this new, and constantly expanding body of international law is less than universal in dimension and character’. ‘In certain fields there is a universal community of interest; in others, agreement on the formulation of common standards depends upon a community of interest, values, and institutions confined to a more closely knit and limited community’ (ibid.).
For example, ‘[i]n the field of international communications and transportations,…there is generally a universal interest in common standards and a corresponding universality of international conventions. In matters of labour, differences of political organization as well as of economic and social standards make universality far more difficult to attain. Effective international co-operation in cultural and educational matters or in the protection of human rights against arbitrary interference depends on a correspondence of values unattainable at this time in the world community but realizable within more limited groups of nations. The acceptance of bilateral, multilateral, regional and other international conventions of less than universal scope as sources of modern international law is therefore no longer a matter of doubt’ (ibid.: 68-69).
It is universal in a sense, in the post UN phase, all states represents as sovereign equal under the General Assembly and having one vote equally.
[86] But this argument is refuted by saying that state is playing a central role in all most all the international relations even in the era of globalization.
[87] ‘The international normative system has traditionally been characterized by its unity: whatever their formal (custom or conventions, for example), whatever their object or importance, all norms are placed on the same plane, their interrelations ungoverned by any hierarchy, their breach giving rise to an international responsibility subject to one uniform regime’ (Weil 1983: 423).
[88] Riphagen introduced the concept of “self-contained regime” ‘for the first time in connection with the Tehran case to prove the necessity of the proposed saving clause’ (Simma 1985: 117). He further uses the terms “special regimes”, “objective regimes”, “peremptory subsystems” or “peremptory objective regimes”. “Regime” is apparently intended to have the same meaning as “subsystem” (ibid.: 115).
[89] According to the Special Rapporteur, ‘[a] theoretical answer might be that a system was an ordered set of conduct rules procedural rules and status provisions, which formed a closed legal circuit for a particular field of factual relationships. A subsystem, then, was the same as a system, but not closed in as much as it had an interrelationship with other subsystems’ (quoted in ibid.: 115).