ООН: Интернационалното законодавство како јазик за Меѓународните односи

  

New Approaches to Research, Education and Training in the Field of International Law and its Wider Appreciation

 

UNIVERSAL APPROACH TO THE TEACHING OF INTERNATIONAL LAW

 

Wang Tieya

 

Fifty-five years of teaching lead me to a conclusion that the primary task of an international law teacher is to propagate a universal international law. Universal international law is not yet a reality, but it is a goal which is approaching realization and it has to be realized. Efforts have to be made in the teaching of international law to make international law really universal.

It is commonly admitted that modern international law has its origin in Western European Christian civilization during the XVI and XVII centuries. The Peace of Westphalia of 1648, when nation-states emerged, can be marked as the beginning of modern international law, though there were before it some teachings and practices which implied some ideas of international law. It is, however, after 1648 that the so-called family of Western Europe was formed and international law grew up among the old Christian States of Western Europe, a law sometimes called “European public law”.

The fact that Western Europe was the cradle of modern international law does not exclude, however, the possibilities of finding some traces of international law in other parts of the world. Even in antiquity, they have been recorded in history. In China, for instance, during the periods of Spring and Autumn (722-476 BC) and Warring States (476-221 BC), when the King became weak while vassal states (or principalities) became more and more independent, mutual relations among those vassal states flourished and practices and usages emerged in response to their need to conduct intercourse concerning establishment of diplomatic relations, interchange of embassies, conclusion of treaties, convening of conferences, waging of wars, and so forth.

These have been said to be analogous to international law.

It has been said that it is China, India, Egypt and other ancient Eastern States which should be considered the birthplace of international law. This view is too extreme. So far as China is concerned, it should be said that, as the periods of Spring and Autumn and Warring States came to an end in 221 BC, when the whole country was unified under the rule of Qin Emperor, there was no room for the former interstate practices and usages. There could be no connections between these practices and modern international law. Generally speaking, no legacy of international law was bequeathed to us from other parts in the ancient world. The international law we know today does not discernibly derive from any precepts that originated in those practices and usages.

This does not mean that the study of the so-called historical types of international law is of no significance. The study would bring a considerable body of knowledge which should tend to broaden intellectual horizons of international lawyers and, if a part of teaching could be devoted to, international lawyers would know how to accommodate international law in a multicultural setting and it would stimulate the spirit of universalism in the present-day teaching of international law.

From the XVI and XVII centuries, when modern international law came to existence, Eurocentrism dominated for nearly three centuries. However, international law was created in the soil of Western Europe, where an exclusive club of Christian States was formed. It is international only in that it governed the relations among the members of the club, which considered themselves “civilized”, whereas it did not apply to those States which were outside that club and which were stigmatized as “barbarous” and “uncivilized”. Practically, the law is designed simply for the use and benefits of its founders. It is international in a limited sense, but it is in no way universal.

Such international law did, however, make some progress during the three centuries after 1648. With the achievements in commerce, religion, communications and intellectual development, States in Western Europe had more contacts with States in other parts of the world. The extension of these contacts gave rise to the geographical expansion of the European system of international law to include former colonies of European States in America, Africa and Asia and also to include some non-Christian States. What it recognized and affirmed was a right of domination. It was rightly called a colonialist and imperialist law.

Turkey appeared to be an exception when the Treaty of Paris of 1856 expressly admitted it “to participate in the advances of the public law and system of Europe”. But Turkey remained under the regime of capitulations and was obliged to accept the restrictions of its sovereignty. Under the guise of treaties, a normal institution of international law, capitulations and other unequal treaties which sanctioned the right of conquest, and colonial rule constituted a legal order of subordination, forcing the victims of such rights to surrender and obey.

Again, take China as an example: the translation of Wheaton’s Elements of International Law by an American missionary, A. P. Martin, and its publication under the auspices of Tsungly Yamen, the foreign minister in early 1960s, marked the beginning of the formal and systematic introduction of modern international law into China after China was opened by the Western Powers. China was forced to engage in five disastrous wars, and hundreds of unequal treaties have been concluded by means of actual force or the threat of the use of force. Thus, the traditional Chinese world order was not displaced by the establishment of an international legal order of equality, but by an unequal treaty regime. The regime, which has been the object of resentment and protest, was only fatally wrecked during the Second World War, when new treaties were concluded, abolishing all special rights and privileges that Western Powers had enjoyed in the past. It is understandable that in China, in spite of the fact that international law is adapted as a whole in both theory and practice, distrust of Western elements still lingers on. As Professor Jerome Cohen, an eminent expert of Chinese law has mentioned: “We are still living with the consequences of the unequal treaties”.

The Second World War brought radical changes in international relations which affect modern international law. Though changes already began to appear even before Second World War, the geographical scope of international law being gradually expanded and the influence of non-European States being increasingly felt, the most significant changes occurred when the United Nations was established in 1945. A large number of former dependent peoples and States attained independence and became members of this world Organization. The rapid progress of science and technology, making the present world one of intensive transnational communication, business cooperation and cultural exchange, has a great impact on contemporary international law. In a world of interdependence, an international law is evolving which trends to be universal, the exclusive centric systems of law being gradually eradicated. Problems like environment, terrorism and international trade, to mention only a few, are global problems which cannot be solved by any State or group of States, but only by the participation of all States.

In this world, the difference of historical and cultural heritage and of social and political systems, do challenge the universality of international law. But, both in theory and in practice, such differences do not necessarily produce an unbridgeable gap between the Western and non-Western attitudes towards the international law. On the contrary, I believe that the differences, well accommodated, can yield even more fruitful results. International law is developing from subordination to coordination, and then to cooperation.

Article 9 of the Statute of the International Court of Justice provides that “in the body as a whole, the representation of the main forms of civilization and of the principal legal systems of the world should be assured”. A similar provision appears in the statute of the International Law Commission. The implementation of the aforementioned provision, makes the Court a real world court. In the same sense, when international law itself represents the main forms of civilization, and of the principal legal systems of the world, it becomes universal. Thus, the work of the Court and of the International Law Commission should be one of main parts of the teaching of international law.

The late Judge Manfred Lachs wrote an excellent book, The Teacher in International Law (1982), a work of great distinction. We are most grateful to him for giving us, with a wealth of materials and deep analysis, a brilliant survey of what we called “the world of thought” in international law. Apparently, he tried to convey the picture to us as comprehensively as possible. But, as he himself pointed out, the survey is entirely dependent on his personal experience, so that the picture cannot be complete and universal. Thus it can be seen that the universal approach to the teaching of international law is not an easy task.

More significant is Judge Mohammed Bedjaoui’s work. He tried to tackle the problem of universality from the different angle, by editing a textbook entitled International Law: Achievements and Prospects (1991), written by some 50 authors “selected on the basis of broad geographical coverage”. It is a truly impressive work, which could facilitate the universal approach to the teaching of international law. It has, as the general editor professes, an international thrust and one its distinctive feature is its international, multicultural and “polyphonic’ nature. The national approach is to be discarded and ethnocentrism in the teaching of international law, as Professor Jerome Cohen mentioned in his very ably argued article, is to be countered. Judge Bedjaoui is to be congratulated and this work can certainly be considered one of the main contributions of the United Nations Educational, Scientific and Cultural Organization (UNESCO) to the United Nations Decade of International Law.

For furthering the purpose of the book, I would make two suggestions: first, use of the book as a textbook or main reference book should be encouraged and it should, in particular, be translated into languages other than English and French, so that it can be widely used in all parts of the world, especially in developing countries; and second, teachers’ groups should be organized in different parts of the world, especially in developing countries, to asses the use of the book in the teaching of international law. If experience gained from teaching warrants it, a new edition could be considered. These suggestions, if implemented, would certainly, in years to come, promote an universal approach to the teaching of international law.

In conclusion, I should like to repeat what I said in my lecture at The Hague Academy of International Law in 1990:

“The goal is to establish an effective international law. The process may be hard and long. For the present, the task of international lawyers is to take account of different histories and cultures of various countries and to find out principles of law and justice which are common to all”.

 

(изд. United Nations Publications; published by Kluwer Law International, Хаг Холандија – 1996 год.)