The International Society and the International Community
1 M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (Cambridge, Cambridge University Press, 2002) 515.
2 W Friedmann, The Changing Structure of International Law (London, Stevens & Sons, 1964).
3 P-M Dupuy, ‘The Place and Role of Unilateralism in International Law’ (2004) 11 European Journal of International Law 19, 22–25.
4 It is important here to distinguish my definition of the international society from the definition accorded to the concept of ‘international society’ by English School theorists. The English School employs the concept of international society to describe ‘a group of states (or, more generally, a group of independent political communities) which not merely form a system, in the sense that the behaviour of each is a necessary factor in the calculations of the others, but also have established by dialogue and consent common rules and institutions for the conduct of their relations, and recognise their common interest in maintaining these arrangements’: H Bull and A Watson, ‘Introduction’ in H Bull and A Watson (eds), Expansion of International Society (Oxford, Clarendon Press, 1989) 1. English School theorists therefore use the concept of international society generally to describe instances where two or more states have created legal rules in order to secure a common interest. Importantly, in this chapter I use the concept of the international society to describe a specific regulatory framework that emerged in the years following the end of the Second World War in order to secure the common objective of maintaining international peace and security.
5 My distinction between a (international) society and (international) community largely corresponds to Tönnies’s understanding of these terms, whereby a community (gemeinschaft) represents a grouping of individuals (here states) within the wider pluralistic society (gesells-chaft) on the basis of shared values/ideology: F Tönnies, Community and Association (East Lansing MI, Michigan State University Press 1957).
6 As Bodansky explains, in the post-Cold War era liberal democracy has become ‘the touchstone of legitimacy’ for states: D Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’ (1999) 93 American Journal of International Law 596, 599.
7 For discussion of the liberal peace thesis see chapter 3 of this volume.
8 R Jackson, The Global Covenant: Human Conduct in a World of States (Oxford, Oxford University Press, 2000) 128.
9 R Buchan, ‘A Clash of Normativities: International Society and International Community’ (2008) 10 International Community Law Review 3.
10 P Kooijmans, Internationaal Publiekrecht in Vogelvucht (trans M Brus) (Deventer, Kluwer, 2000) 359; see M Brus, ‘Bridging the Gap between State Sovereignty and International Governance: The Authority of Law’ in G Kreijin (ed), State, Sovereignty and International Governance (Oxford, Oxford University Press, 2002) 3).
11 These criteria can be found in Article I of the Montevideo Convention on the Rights and Duties of States (signed 26 December 1933, in force 26 December 1934). See generally J Crawford, The Creation of States in International Law (Oxford, Clarendon Press, 2006).
12 In arguing against a request for an Advisory Opinion of the International Court of Justice on the status of Palestine in 1948, the Israeli Foreign Minister explained that ‘the existence of a State is a question of fact and not of law. The criterion of statehood is not legitimacy but effectiveness’: A Eban, SCOR 340th Meeting (27 July 1948) 29–30.
13 As the UN General Assembly has explained, a government will possess effective control ‘if that government exercises effective control and authority over all or nearly all of the national territory, and has the obedience of the bulk of the population of that territory in such a way that this control, authority, and obedience appears to be of a permanent character’: UN Doc A/AC.38/L.21 (1950).
14 As Henkin explains, ‘sovereignty means “leave us alone”’: L Henkin, ‘That “S” Word: Sovereignty, and Globalization, and Human Rights, Et Cetera’ (1999) 68 Fordham Law Review 1, 5. The exact scope of the non-intervention principle will be discussed in detail in chapter 2 of this volume.
15 ‘Each state, according to international law, has a duty of non-intervention into the affairs of other states . . . At the basis of this duty lies the concept of state sovereignty, of which in fact the duty of non-intervention is considered a “corollary”’: D Luban, ‘Just War and Human Rights’ (1980) 9 Philosophy and Public Affairs 160, 164.
16 The discussion that follows intends to trace the development of the legal principle of sovereignty from its creation (which I will identify as the Peace of Westphalia (1648)) through to the end of the Second World War (1945), and assess the different features that a state has had to exhibit historically in order to be regarded as sovereign. It is important to note that my approach is an episodic account which only takes into account the major normative changes in the understanding of sovereignty that have occurred between 1648 and 1945. I accept that between these dates other understandings of what characteristics a state has had to exhibit in order to qualify as sovereign may have existed. However, space precludes a more comprehensive historical analysis. For such an analysis see J Donnelly, ‘Human Rights: a New Standard of Civilization?’ (1998) 74 International Affairs 1.
17 As Simpson explains, ‘[a]t first, Christianity was the test for “good breeding”’: G Simpson, ‘Two Liberalisms’ (2001) 12 European Journal of International Law 537, 545.
18 For Bobbit, Westphalia inaugurated ‘a new society of states characterized by their sovereign equality’: P Bobbit, The Shield of Achilles: War, Peace and the Course of History (London, Allen Lane, 2002) 508. Although the Treaty of Westphalia did not explicitly refer to these newly created states as sovereign (indeed the concept of sovereignty does not appear at all within this treaty), the substance of its provisions nevertheless had the practical effect of conferring this status: see generally I Clark, Legitimacy in International Society (Oxford, Oxford University Press, 2005).
19 ‘In a number of respects, non-Christian states lived for many years on the margin of the international [society], in the sense that they did not take a very active part, nor did they play any major role, in it’: A Cassese, International Law in a Divided World (Oxford, Clarendon Press, 1986) 39.
20 ‘In short, it can be argued that this body of law greatly facilitated the task of European powers, offering them, as it did, a large number of legal instruments designed to render conquest smooth and easy. First of all, international law authorized States to acquire sovereignty over those territories, both by downgrading the latter to terrae nullius, namely, territories belonging to no one, and by depriving the local communities or rulers [of] any international standing’: ibid at 42.
21 As Buzan notes, ‘the projection of European power brought previously isolated peoples and political communities into regular contact with each other’: B Buzan, ‘From International System to International Society; Structural Realism and Regime Theory meet the English School’ (1993) 47 International Organization 327, 331.
22 Clark, Legitimacy in International Society (n 18) at 45.
23 Buzan, ‘From International System to International Society’ (n 21) at 334.
24 Clark (n 18) at 45.
25 J Lorimer, Institutes of International Law: A Treatise of the Jural Relations of Separate Political Communities (Edinburgh/London, W Blackwood & Sons, 1883) 101.
26 G Gong, The Standard of ‘Civilization’ in International Society (Oxford, Clarendon Press, 1984) 14–15.
27 L Oppenheim (ed), The Collected Papers of John Westlake on Public International Law (Cambridge, Cambridge University Press, 1914) 138, 145. See further J Westlake, Chapters on the Principles of International Law, L Oppenheim (ed) (Cambridge, Cambridge University Press, 1894) 141–43.
28 Article VI of the General Act of the Conference of Berlin (1885). Also see Lorimer, who advocated the forcible domination of uncivilised (‘barbarous’) states: ‘Colonisation, and the reclamation of barbarians and savages, if possible in point of fact, are duties morally and jurally inevitable; and where circumstances demand the application of physical force, they fall within necessary objects of war. On this ground, the wars against China and Japan, to compel these countries to open their ports, may be defended’: Lorimer, Institutes of International Law (n 25) at 28.
29 Simpson, ‘Two Liberalisms’ (n 17) at 546.
30 W Goulding, cited in E Hobsbawm, Age of Extremes: The History of the Short Twentieth Century 1914-1991 (London, Abacus, 1995) I.
31 Article 10 Covenant of the League of Nations (Paris, 28 June 1919).
32 A Duxbury, The Participation of States in International Organisations: The Role of Human Rights and Democracy (Cambridge, Cambridge University Press, 2011) 64.
33 President Woodrow Wilson, ‘Address to a Joint Session of Congress Calling for a Declaration of War’ (2 April 1917).
34 The British representative also lobbied the Commission for membership to be based on respect for democratic principles: see Duxbury, The Participation of States (n 32) at 69
35 G Schwarzenberger, The League of Nations and World Order (London, Constable & Co, 1936) 44.
36 And this is conceded by Schwarzenberger: ‘the practice of the League tended away from the principle of homogenous university . . . as it was envisaged by the authors of the Covenant, towards that of heterogeneous universality’: ibid at 94.
37 Second Assembly, Plenary Meetings (Geneva, 1921), League of Nations Records, 317– 20.
38 Fourth Assembly, Seventeenth Plenary Meeting (Geneva, 1923), League of Nations Records, 4.
39 Duxbury (n 32) at 83.
40 Although distinguish the claims of the Canadian representative: ‘While believing firmly in the long run, [that] the League can succeed only by the application in the international sphere of these ideals of liberty and democracy, we recognise that, for the present we must agree to differ and that we cannot require other States to conform to such principles, or reject their collaboration in the league, so long as they share in the one indispensable condition of readiness to work together for the peace of the world’: Records of the Fifteenth Assembly, Sixth Committee (Geneva, 1934) League of Nations Official Journal, Supplement 130, 25.
41 Records of the Fourth Assembly, Meetings of the Committees, Minutes of the Sixth Committee (Geneva, 1923) League of Nations Official Journal, Supplement 19, 15.
42 B Simma, The Charter of the United Nations: a Commentary (Oxford, Oxford University Press, 2002) 208.
43 Jackson, Global Covenant (n 8) at 120.
44 H Bull, The Anarchical Society: A Study of Order in World Politics (Basingstoke, Palgrave, 2002) 16–17. In a similar vein, Wight explains that ‘it would be impossible to have a society of sovereign states unless each state, while claiming sovereignty for itself, recognised that every other state had the right to claim and enjoy its own sovereignty as well’: M Wight, Systems of States (Leicester, Leicester University Press, 1977) 135.
45 As Duxbury notes, ‘it was better to admit a state to the ‘peace-club’, whatever its internal policies, than leave it on the outside, free to engage in war-like activities’: Duxbury (n 32) at 83.
46 Jackson (n 8) at 15.
47 According to the ICJ, the institution of sovereign equality has proved to be ‘an instrument for effective co-operation . . . enabling States, irrespective of their differing constitutional and social systems, to achieve mutual understanding’: United States Diplomatic and Consular Staff in Tehran (1979) ICJ Rep 7, 19 (Order of 15 December).
48 ‘Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State’: GA Res 2625 (24 October 1970).
49 A Fellmeth, ‘Feminism and International Law: Theory, Methodology and Substantive Reform’ (2000) 2 Human Rights Quarterly 658, 703.
50 Although I identify the end of the Second War as the moment when sovereignty was redefined and conferred to all states qua states (and thus the international society became universal in scope), I recognise that this transformation was not instantaneous. It took many years for all states to be finally regarded as sovereign. Indeed, the international society would not be universal in scope until the end of the process of decolonisation. I therefore use the end of the Second World War for heuristic purposes, representing a point in time when the legal structure of the world order started to undergo profound change. Thus, it is at the end of the Second World War that I suggest the notion of all states being sovereign equals was born.
51 Duxbury (n 32) at 82.
52 As McCorquodale notes, with the creation of the UN by the international society ‘[t]he dominant legal doctrine became institutionalized’: R McCorquodale, ‘International Community and State Sovereignty: An Uneasy Symbiotic Relationship’ in C Warbrick and S Tierney (eds), Towards an International Legal Community? (London, British Institute of International and Comparative Law, 2006) 242.
53 ‘[T]he UN has been called upon to play the role of implementation mechanism . . . the UN ultimately acts in the interest and on behalf of the whole world community, of which it is the legitimate representative’: Cassese, International Law in a Divided World (n 19) at 159.