By Graham Reynolds
Graham Reynolds is a student at Trinity College Dublin obtaining his Bachelor in Laws (L.L.B.).
On the September 27th, Indian prime minister Narendra Modi used his first speech to the United Nations to advocate an issue that has burdened the international legal order from the latter half of the 20th century to date: the institutionalized inequalities found at the heart of the UN.
The international legal system purports to be a scheme at the center of diplomatic relations, which acts as a mechanism to mediate conflicts, dissuade violence, and uphold the values of international peace and the rule of law. The adoption of the UN Charter in 1945 [1] heralded a very significant change in the international legal order, for the draftsmen laid in Articles 1 and 2 a set of fundamental principles by which all the members of the organization were to abide, attempting to crystallize these constructive principles into enforceable norms.
Graham Reynolds is a student at Trinity College Dublin obtaining his Bachelor in Laws (L.L.B.).
On the September 27th, Indian prime minister Narendra Modi used his first speech to the United Nations to advocate an issue that has burdened the international legal order from the latter half of the 20th century to date: the institutionalized inequalities found at the heart of the UN.
The international legal system purports to be a scheme at the center of diplomatic relations, which acts as a mechanism to mediate conflicts, dissuade violence, and uphold the values of international peace and the rule of law. The adoption of the UN Charter in 1945 [1] heralded a very significant change in the international legal order, for the draftsmen laid in Articles 1 and 2 a set of fundamental principles by which all the members of the organization were to abide, attempting to crystallize these constructive principles into enforceable norms.
Article 2, paragraph 1 notes “The Organization is based on the principle of sovereign equality of all its Members.” Thus, for the first time, an international treaty set forth the fundamental standards governing states’ actions and establishing the main goals of international institutions. This new state of affairs was the direct consequence of the reshuffling of the world community brought about by the World War II. In particular, it was a result of the keen desire of all states to lay down the foundations of an international system that was more conducive to peace and justice.
Legal equality implies that no member of the international community can be placed at a disadvantage and all must be treated on the same footing. As Swiss philosopher Erner de Vattel stated in as early as 1758, “A dwarf is as much as a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.” [2]
Whilst this is a conceptually meritorious claim, the operations and effects of international order over the last century highlight that it is merely aspirational. Being blind to the realities of the system, both the jurisprudence and texture of international order consider that sovereign equality constitutes the linchpin of the whole body of international legal standards and “the fundamental premise on which all international relations rests.” [3]
Cassis notes, “Of the various fundamental principles regulating international relations [equality] is unquestionably the one on which there is unqualified agreement and the support of all groups of states, irrespective of ideologies, political leanings and circumstances.” [4] One ought to really question whether these sweeping claims reflect the realities of the international scheme or whether they are simply assertions in defense of a quasi-legal order.
Aristotle once held “All hold that justice is some kind of equality.” [5] But what kind of equality is it? Given the obvious displacement of power in the international scheme, which is fixated by the United Nations Charter, it seems somewhat contradictory to claim that international order is based on equality. Whilst the normative foundations of Article 2 suggest a democratic system, respectful of the interests of all sovereignties, its substantive operation highlights that these claims are in name only. It is apparent from the preparatory work that this new crystallization was agreed upon “on the assumption and the understanding [that] states are juridically equal.” [6] This was not met without opposition as the Belgian delegate in Committee I/I pointed out that “the smaller states would regard it as somewhat ironic, in view of the striking inequalities evident in the organization, to find at the members.” [7] These comments are of course true, given that the UN is not based on the full equality of all its members, as article 27.3 grants the so-called right of veto to the permanent members of the Security Council only. In this sense Cassis suggests that Article 2.1 ought to be interpreted merely as a general guideline that is weakened by the exceptions specifically laid down in law. [8]
Similarly in response to these critiques of Article 2 and the egalitarian foundations of legal order, Sir Ian Brownlie has suggested that Article.2 was never intended to confer an equality of sovereignty, rather it was designed to ensure equality before the law [9]. However this view fails to grasp what it means to have real equality. Being equal before the law pre-assumes that there is equality in drafting the law. Equality before the law can’t rightfully be considered equal treatment if it entails that the weaker parties have to abide by the interests and policies of the more dominant party, which in most instances are more likely to be in their beneficial interest.
One ought to recall the statements of French writer Anatole France who in 1894 noted “The majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” [10] Charlesworth notes that “In the context of international law then, third worlds are obliged to communicate in the western rationalist language of the law, in addition to challenging the intensely patriarchal ‘different voice’ discourse of traditional non-European societies.” [11] Developing countries have to therefore speak with the instruments of the developed world’s ideology.
It will not come as a surprise that the developing world is the segment of the world community that presses most assertively and consistently for legal change as Modi choose to do. In September 1996, the report of the open-ended working group was submitted to the General Assembly. It presented a summary of the discussions and a recommendation to the General Assembly to extend the mandate of the Working Group into the 51st session of the Assembly. The proposals to limit the scope and the use of the veto of Security Council members were widely supported, viewing it as an anachronistic mechanism.
This included limiting the scope of the veto to a smaller number of issues considered of vital interest to the great powers, such as the approval of enforcement measures under Chapter VII or other decisions involving the use of military force, thereby discontinuing the right to veto for a number of issues, such as the admission of new members or the election of the Secretary-General. However, the developed world strongly opposed modifying the veto arrangement, arguing that the veto was not subject to the scope of the negotiations and did not fall within the mandate of the Working Group. In particular, the Soviet Union made it clear that efforts at revising Article 27 of the Charter stood no chance, as in its view, the present system already protects developing countries. As it was put by the Soviet delegate to the General Assembly in 1980:
Any attempt to amend the rule of unanimity [of the permanent members of the Security Council] could undermine the very foundations of the United Nations. The principle did not represent a privilege but a historical necessity and it reflected the need for consensus in the Council’s decision making on matters relating to the maintenance of peace and security. [12]
This blatant disproportionality is entirely contrary to the principles of equality. It is, however, submitted that the disproportionate powers in the international sphere are a reality that has been shaped by both conflict and development and therefore to suggest that the solution entails the surrendering of power is somewhat too idealistic. The primary concern is that the theorists and actors of this disproportionality have been blindsided having casted themselves into hollow values.
It is submitted that the interests of developing nations would be better served through a scheme that explicitly recognizes these imbalances rather than blinding itself in “value-talk” [13] in the defense of the quasi-legal order that is international law. Antony Anghie’s seminal work Imperialism, Sovereignty and International Law demonstrates how international law continuously reproduces the structure of the “civilizing mission” that informed the colonial project and raises the crucial issue as to whether it is possible to create an international law that is not imperial. [14]
Modern international law has been structured to legitimize and sustain domination. Only if we distinguish the different products of imperialism will we avoid reaching the pessimistic conclusion that it is impossible to create a just world under law. As legal scholar B.S. Chimini once noted:
The great philosopher of language, Ludwig Wittgenstein wrote that “To imagine a language means to imagine a form of life,” conversely to imagine a new form of life, in this case a democratic and just global community and state, requires inventing a new vocabulary.” [15]
The calls of Prime Minister Modi are welcomed tones that shouldn’t fall upon deaf ears.
[1] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.unwebsite.com/charter
[2] E.de Vattel, Le Droit des gens, ou principes de la loi naturelle (Paris, 1830) .p.47
[3] Cassis, International Relations, p.130
[4] ibid
[5] Politics 1282 b18
[6] See Brownlie “Principles of Public International Law” 8th ed, 2012.head of the statement of principles a bold reference to the “sovereign equality of all
[7] ibid
[8] Cassis “International Law “ 2002
[9] Brownlie “Principles of Public International Law” 8th ed, 2012.
[10] Le Lys Rouge [The Red Lily] (1894), ch. 7
[11] H.Charlesworth, C.Chinkin and S.Wright “ Feminist Approaches to International Law” (1991) 85 AJIL 613
[12] UN document A/C.6/35/SR.68,at 10 (para.37)
[13] Schlag, Symposium: Human Values in a Postmodern World,Yale Journal of Law & the Humanities, 1995 at 219
[14] Antony Anghie, Imperialism , Sovereignty and International Law 313 (2005)
[15 J Charney “Universal International Law” (1993) 87 AJIL 529
Photo Credit: Wikimedia Commons
Legal equality implies that no member of the international community can be placed at a disadvantage and all must be treated on the same footing. As Swiss philosopher Erner de Vattel stated in as early as 1758, “A dwarf is as much as a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.” [2]
Whilst this is a conceptually meritorious claim, the operations and effects of international order over the last century highlight that it is merely aspirational. Being blind to the realities of the system, both the jurisprudence and texture of international order consider that sovereign equality constitutes the linchpin of the whole body of international legal standards and “the fundamental premise on which all international relations rests.” [3]
Cassis notes, “Of the various fundamental principles regulating international relations [equality] is unquestionably the one on which there is unqualified agreement and the support of all groups of states, irrespective of ideologies, political leanings and circumstances.” [4] One ought to really question whether these sweeping claims reflect the realities of the international scheme or whether they are simply assertions in defense of a quasi-legal order.
Aristotle once held “All hold that justice is some kind of equality.” [5] But what kind of equality is it? Given the obvious displacement of power in the international scheme, which is fixated by the United Nations Charter, it seems somewhat contradictory to claim that international order is based on equality. Whilst the normative foundations of Article 2 suggest a democratic system, respectful of the interests of all sovereignties, its substantive operation highlights that these claims are in name only. It is apparent from the preparatory work that this new crystallization was agreed upon “on the assumption and the understanding [that] states are juridically equal.” [6] This was not met without opposition as the Belgian delegate in Committee I/I pointed out that “the smaller states would regard it as somewhat ironic, in view of the striking inequalities evident in the organization, to find at the members.” [7] These comments are of course true, given that the UN is not based on the full equality of all its members, as article 27.3 grants the so-called right of veto to the permanent members of the Security Council only. In this sense Cassis suggests that Article 2.1 ought to be interpreted merely as a general guideline that is weakened by the exceptions specifically laid down in law. [8]
Similarly in response to these critiques of Article 2 and the egalitarian foundations of legal order, Sir Ian Brownlie has suggested that Article.2 was never intended to confer an equality of sovereignty, rather it was designed to ensure equality before the law [9]. However this view fails to grasp what it means to have real equality. Being equal before the law pre-assumes that there is equality in drafting the law. Equality before the law can’t rightfully be considered equal treatment if it entails that the weaker parties have to abide by the interests and policies of the more dominant party, which in most instances are more likely to be in their beneficial interest.
One ought to recall the statements of French writer Anatole France who in 1894 noted “The majestic egalitarianism of the law, which forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal bread.” [10] Charlesworth notes that “In the context of international law then, third worlds are obliged to communicate in the western rationalist language of the law, in addition to challenging the intensely patriarchal ‘different voice’ discourse of traditional non-European societies.” [11] Developing countries have to therefore speak with the instruments of the developed world’s ideology.
It will not come as a surprise that the developing world is the segment of the world community that presses most assertively and consistently for legal change as Modi choose to do. In September 1996, the report of the open-ended working group was submitted to the General Assembly. It presented a summary of the discussions and a recommendation to the General Assembly to extend the mandate of the Working Group into the 51st session of the Assembly. The proposals to limit the scope and the use of the veto of Security Council members were widely supported, viewing it as an anachronistic mechanism.
This included limiting the scope of the veto to a smaller number of issues considered of vital interest to the great powers, such as the approval of enforcement measures under Chapter VII or other decisions involving the use of military force, thereby discontinuing the right to veto for a number of issues, such as the admission of new members or the election of the Secretary-General. However, the developed world strongly opposed modifying the veto arrangement, arguing that the veto was not subject to the scope of the negotiations and did not fall within the mandate of the Working Group. In particular, the Soviet Union made it clear that efforts at revising Article 27 of the Charter stood no chance, as in its view, the present system already protects developing countries. As it was put by the Soviet delegate to the General Assembly in 1980:
Any attempt to amend the rule of unanimity [of the permanent members of the Security Council] could undermine the very foundations of the United Nations. The principle did not represent a privilege but a historical necessity and it reflected the need for consensus in the Council’s decision making on matters relating to the maintenance of peace and security. [12]
This blatant disproportionality is entirely contrary to the principles of equality. It is, however, submitted that the disproportionate powers in the international sphere are a reality that has been shaped by both conflict and development and therefore to suggest that the solution entails the surrendering of power is somewhat too idealistic. The primary concern is that the theorists and actors of this disproportionality have been blindsided having casted themselves into hollow values.
It is submitted that the interests of developing nations would be better served through a scheme that explicitly recognizes these imbalances rather than blinding itself in “value-talk” [13] in the defense of the quasi-legal order that is international law. Antony Anghie’s seminal work Imperialism, Sovereignty and International Law demonstrates how international law continuously reproduces the structure of the “civilizing mission” that informed the colonial project and raises the crucial issue as to whether it is possible to create an international law that is not imperial. [14]
Modern international law has been structured to legitimize and sustain domination. Only if we distinguish the different products of imperialism will we avoid reaching the pessimistic conclusion that it is impossible to create a just world under law. As legal scholar B.S. Chimini once noted:
The great philosopher of language, Ludwig Wittgenstein wrote that “To imagine a language means to imagine a form of life,” conversely to imagine a new form of life, in this case a democratic and just global community and state, requires inventing a new vocabulary.” [15]
The calls of Prime Minister Modi are welcomed tones that shouldn’t fall upon deaf ears.
[1] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.unwebsite.com/charter
[2] E.de Vattel, Le Droit des gens, ou principes de la loi naturelle (Paris, 1830) .p.47
[3] Cassis, International Relations, p.130
[4] ibid
[5] Politics 1282 b18
[6] See Brownlie “Principles of Public International Law” 8th ed, 2012.head of the statement of principles a bold reference to the “sovereign equality of all
[7] ibid
[8] Cassis “International Law “ 2002
[9] Brownlie “Principles of Public International Law” 8th ed, 2012.
[10] Le Lys Rouge [The Red Lily] (1894), ch. 7
[11] H.Charlesworth, C.Chinkin and S.Wright “ Feminist Approaches to International Law” (1991) 85 AJIL 613
[12] UN document A/C.6/35/SR.68,at 10 (para.37)
[13] Schlag, Symposium: Human Values in a Postmodern World,Yale Journal of Law & the Humanities, 1995 at 219
[14] Antony Anghie, Imperialism , Sovereignty and International Law 313 (2005)
[15 J Charney “Universal International Law” (1993) 87 AJIL 529
Photo Credit: Wikimedia Commons
