A Birthday Present for Emmanuel Yaw Benneh – International law; an appendix of western regional law? By Selikem Timothy Donkor

The issue of interest is paramount in any activity engaged in by any rational being. Thus, per the naturalistic theory of utility, a person acts so long as that act furthers his happiness or well-being. It then follows out rightly that per the utilitarian position, the birth and evolution of international law as an intentional scheme orchestrated and modelled by humans, is to that effect, in furtherance of the happiness and interest of the actors: humans. The word ‘international’ which qualifies the word ‘law’, in conglomeration, has a lexical meaning which translates as ‘law among nations as a whole’. Thus, from the above premises, it appears that international law, as an orchestration of all nations, must be to the benefit of the international community as a whole and to all nations who are part of this orchestration and process of formulation. On this presumption, this essay will attempt to evaluate the assertion that international law is international such that it is awards benefit to all nations and thus is a preserve of the interest and wellbeing of all nations found in its community and not only an appendix to the interests of a section of those nations; western states.

 

It is a trite position today, that the formative periods of modern international law were purely within the geographical confines of the west. In the thoughts of James Lorimer, non-western states were barbarous thus were not civilized to contribute to the legal framework of nations.The 16th to 19th century, which is the formative period of modern international law, was highly characterized by the dictates and deeds of western states. This effectuated in Grotius position on the law of the sea, which he said was a common heritage of humanity thus can be exploited by all states. Today, much academic ink has corroborated the position that, the law of the sea as propounded by Hugo Grotius was only to the benefit of the Dutch East India Company and not a position to effectuate the territorial and jurisdictional capacity of states over nature’s resources.  But recent developments in international law after 1945 has provided counterfactual evidence to the position that, only western states today are actors of international law. If we can assert that after colonialism, the birth of states in Africa and other non-western territories presented new creators and actors of international law, then can this fact by extension affirm the position that, international law today is international to the extent that it is a preserve of the interests of all nations and is towards the well-being and good of all of its actors as opposed to its Eurocentric characterization during its early formative years?

 

In order to effectively analyze the position above , there is the need for us to establish what international law is today , it source and mode of creation, whether its creation is by all actors in the international community and whether the enforcement of international law is to that effect a furtherance of the interest of all nations or only some nations and if indeed, it is only representative of the deeds and interest of the so called superior states-western states only.

 

States today use two central modes of creating international law even though there are other modes. Art 38(1) of the ICJ stature states that the court, the international court of justice, shall while settling disputes among states use conventions, customs as created through practice of states regarded as law, general principles and judicial decisions and writings of highly qualified publicists of various nations as a subsidiary source of law.  If through treaty and customs, international law is created, then international law, if is there is one, must encapsulate creations of all nations states that exist in the international community. But is international law today reflective of the generality of conducts of states as accepted as law and also the laws of states as created through treaties?

 

With regards to general customary law, Antony Anghie asserts that customary laws were in existence before the birth of half of nations we have today. And if international law, so called is international, why should there be laws created by less than half of nations in the international community yet those laws create obligations which bind conducts of state which did not consent nor created these laws. Antony Anghie together with other TWAIL theorists suggest that, this very nature of international law which allows for pre-1945 states to create obligations for post-1945 states undermines the principle of equality of states and sovereignty of states. Anthony Anghie describes international law in this manner as a living paradox. According to Obiora Chinedu Okafor, the existence of customary law as a creation of few states which creates legally binding obligation to states which were non-existent at the time of its creation, creates an international law which contains practices of states which were conducted for the interest of those states only and not the international community as a whole. An analysis of how customs are formed will display a clearer picture about what Okafor meant. In the Anglo Norwegian Fisheries case, the court noted that, general customary international law is not binding on a state if and only if the state effectively objected to its creation before its attainment of status of law. Thus, persistent objection is the only way a state can side step the binding force of a general customary law before it comes into force. But customs which create obligations for post 1945 states, had already attained the status of law before the creation of these states. Thus, these states never had an opportunity to object nor to acquiesce. Thus, this defies the basic cardinal principles of international, which are the principle of equality and sovereignty of states. These phenomena make it possible for customs to be in existence which are not in the interest of newly created states but are in furtherance of the interest of European states who created these customs.

 

Consider the famous Caroline case which established the principle of state necessity to act on grounds of self-defense upon being attacked. This principle was established about 200 years ago by conducts of few states yet it depicts customary international which today creates binding obligation for about 80% of states today which were not in existence during the formative periods of this custom. Even though the Caroline case today, has been regarded by most publicists as losing its force of depicting the true nature of customary international law on the law of use of force, it has not, nevertheless been rendered obsolete since the court still gives judicial notice to its existence.

 

On the issue of treaty law, the United Nation’s charter today is the most general international law in terms of treaty since it has about 195 signatory states. It is then prudent that if there is a need at all for any analysis of international law with respect to treaties, the United nations charter then is a more relevant treaty to consider. Does this treaty law, the United Nation’s charter(hereinafter , the charter), which is ratified by ‘all’ states, preserve and ensures the achievement of aims and interest of all those nations as whole? it appears from the very preambles of the Charter, that its essence is to ensure peace and security in the international community and it is presumed on the assumption that, human development and economic prosperity of states is only possible if wars, insecurity and conflict is absent from international conduct. It appears that, at least per the intent of the Charter, it is meant for the benefit of the international community as a whole. But according to Michael Zanderlaws themselves, no matter how good do not ensure the good unless there is an effective scheme of ensuring that. It is on this ground that I will assess whether there is an effective mechanism for ensuring the realization of the goals in the charter and whether these mechanisms have been used in a way in ensuring the achievement of these goals to the benefit of states as a whole or only to the benefit of some factions of the international community.

 

Art 7 of the UN charter establishes six main organs of the United Nations which are the security council, the General Assembly, the Trusteeship Council, The Economic and Social council, The International court of justice and The Secretariat. Among the listed organs, it is the security council which is the most effective mechanism of the United nations in ensuring the achievement of its most central goals and missions. Art 24 of the Charter, awards the security council the function to ensure the maintenance of international peace and security. Art 39-42, awards security council the authority to take actions even with the use of force to terminate all forms of aggression and threat to peace among nations. Art 23 of the charter creates a security council with five permanent members and 10 non-permanent members and accords veto power to the P-5, and also the power to pass resolutions upon being affirmed by seven out of the 15 members. It appears that prima facie, such a mechanism is sufficient to ensuring peace and security without bias but the reality of this is not the case. During the cold war periods, it was realized by the international community that decisions of the security council are infiltrated by national interest considerations and power politics. Thus, the very crucial organ of the United Nations which is to ensure the enforcement of law to ensure the interest of the international community as a whole is infiltrated by consideration of self-interest and national politics and thus, its resolutions do not reflect what necessarily is in the interest of the international community but what is in the interest of individual states in the security council. The United states has acted on numerous occasions in ways which directly breach provisions of the United Nations charter through the use of force and through acts of direct interference in national politics of other states, yet due to the veto the United State enjoys in the security council, no resolution has ever been passed to limit the untrammeled power and derogation by the United States.

 

From the above analysis , it has been demonstrated that international customary law and international conventions have not in all width and breadth lived up to ensuring the achievement of global interest of all states and it has been shown that in many occasions international law is but an adjunct to the interest and practice of ‘ some’ states and even in those few setups where the law is made for achieving the global interest , it’s enforcement is tilted towards satisfying the interest of ‘certain states’. This perusal corroborates the conclusions drawn by TWAIL theorist today that international law is for the benefit of powerful and western states. In the candid opinion of the author , this analysis should not be an encouragement for African states to adopt a more isolationist character as a means of curtailing its international association just to avoid working against its own interest , rather this should serve as a point of notice to African states and all states alike, that they should ensure that they gain a center stage in the making and formulation of international law , which should accommodate values , systems and procedures that serves justice for all and not just for few states. Instructive in Robert Mugabe’s campaign towards centralizing Africa’s interest in global politics and international law was the call for the representation of African nations in the Security council of the United Nations. It is quite strange that the second largest continent, with the second highest population, and about 23% of the total of states in the world, does not have a representation in the security council. A section of society reacted quite negatively to Mugabe’s suggestion on grounds that, it is paradoxical for African states to call for representation in the United Nations security council since African nations are not able to maintain internal security within their own nation, not to talk of having the military and security power to enforce and ensure the mandates of the security council. It is in the author’s own view, that even though African nations do not have a military force to effectuate and ensure the maintenance of world security should there be such a need, being made part of the security council will be an encouraging step for such nations to build a more effective security and military power. China had improved its military power by 45% since 1945. This affirms the position that, being assigned the mandate could be a good enough ground to building capacity in ensuring the achievement of the mandate of ensuring peace and security. Also, adjunct to the need of the United Nations to ensure peace and security, there is a need for the incorporation of just and equitable principles especially, the need for reparatory justice for countries who were colonized, suppressed and whose people were exploited and used for the development of so-called Superior Nations to be compensated through monetary and other means to ensure that some sense of restitution is achieved.

 

 

 

 

 

 

REFERENCES

Ademola, Abass, Complete International Law: Text, Cases, and Materials (2nd edn)

Antony, Anghie ‘Imperialism, Sovereignty and the Making of International Law (2004)- Cambridge New York

Grotius, Hugo, De Jure Belli ac Pacis Libri Tres, Francis W. Kelsey, ed. (Oxford: Clarendon Press, 1925)

John, Stuart, Mill ‘On liberty’ – Routledge Publication – 1994

Lorimer, James, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate Political Communities (Edinburgh: Blackwood & Sons, 1883)

Okafor, Chinedu, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa (Boston: Martinus Nijhoff Publishers, (2000)

Okafor, Chinedu, ‘Critical Third world Approaches to international law: Theory, Methodology, Both? (2008)

Thomas, Franck, ‘Recourse to Force’ – State Action Against Threats and Armed Attacks (2004) – Cambridge (UK)

United Nations charter and the Statute of the International Court of Justice – 1945