Challenges and opportunities for developing countries Changing nature of international law: December 3, 2013, 12:00 pm article_image The Ceylon Society of Australia presentation by Dr. Rohan Perera, Legal Adviser to External Affairs Ministry) I am extremely grateful to the Ceylon Society of Australia for the kind invitation extended to me to address the Society’s regular lecture series. The Society has as its objective, the fostering, promoting and developing the cultural heritage of Sri Lanka, which no doubt would contribute to the strengthening of the bonds of friendship that has existed between the two countries since the dawn of independence, and perhaps even earlier, if one takes into account the early migratory trends from Sri Lanka. It would not be out of place to recall this evening, briefly, my own contribution, even in a small way towards the enhancement of the bilateral relationship. This was by way of my association as the then Legal Adviser of the Ministry of Foreign Affairs in negotiating and concluding two important Bilateral Treaties between the two countries. One was on Promotion and Protection of Investment, designed to provide a stable legal environment to attract Australian Investment into Sri Lanka and vice versa. This was in the early part of 2000.Australia has been one of the key investor countries which made its presence felt, fairly early in Sri Lanka. Whether a direct link between the conclusion of the Investment Treaty and the flow of investment could be established or not, the fact remains that according to BOI figures, the total cumulative foreign direct investment from Australia during the period 2005-2009 stands at USD 60 million. The second was my association in the negotiation of a new Air Services Agreement between the two countries, around the same period. The Australia-Ceylon aviation relationship is an old one which provided an important transport and communication link to the people of the two countries. This unfortunately did not survive over the years. Although, consequent to the negotiation of the new Agreement, direct flights re-commenced between Colombo and Sydney, which greatly facilitated travel, in particular for the expatriates, it is unfortunate that this link again did not survive the challenges posed by hard commercial considerations. I would also like to recall on this occasion, the tremendous support I have had from my counterparts in the Australian Department of Trade and Foreign Affairs, successive Legal Advisers and distinguished diplomats, who over the years played a key role as Vice- Chairs of the UN Committee on Elimination of Terrorism, a body I have been privileged to chair, since the year 2000, as we collectively traversed a virtual minefield of complex legal and political issues in negotiating a series of International Conventions to enhance co-operation in combating terrorism. The theme of my presentation this evening seeks to underline the importance of injecting ‘Asian values’ into the on-going debate on the challenges posed to developing countries, consequent to the radical changes that International Law has undergone and is undergoing in contemporary international life. The logical starting point to make an assessment of the present and to make projections for the future, is by taking a brief look backwards, at the past. 1. HISTORICAL EVOLUTION OF PUBLIC INTERNATIONAL LAW The body of principles which we refer to in the present day as Public International Law emerged in the 16th and 17th centuries, to regulate the conduct of a limited community of States, and was then referred to as the Law of Nations. To appreciate the changing nature of this body of law in contemporary times, and the challenges and opportunities that it presents to the present day international community, in particular the developing countries, it is important to understand the historical context in which this body of law emerged. Classical international law played a comparatively limited role and its principal function was to provide a framework to govern the diplomatic, commercial, military and other aspects of inter- State conduct amongst the limited number of States which then constituted the international community and which shared common Christian values and traditions. In that sense the Law of Nations’ was nothing more than the Public Law of Europe. The international legal system which took shape in Europe at this time was in the backdrop of religious wars then raging across European frontiers. Accordingly, it had as its central objective the function of governing the relations between mutually antagonistic States. Classical International Law therefore sought to make it possible for these antagonistic States to co-exist by keeping them peacefully apart, rather than bringing States together to work towards common interests and objectives, in a spirit of active cooperation. Classical International Law could therefore be described as a law that was negative in character. Accordingly, the fundamental logic of this classical system was to respect the sovereignty of other States, imposing obligations of not trespassing on the sovereignty and territorial integrity of others. In order to maintain this situation the sovereign had to recognise each other as legally equal on the international level, irrespective of size, strength, ideology or the form of government. The Treaty of Westphaelia ushered in the Westphaelian concept of sovereignty, in its absolute sense, which empowered States which were deemed to be ‘sovereign equals’ to exercise exclusive and total jurisdiction within their respective territorial borders. Other States had the corresponding duty not to intervene in the internal affairs of a sovereign State. These Principles of Sovereign Equality and Non Intervention later entered the corpus of Customary International Law and came to be subsequently enshrined in the Charter of the United Nations in 1945. 2. CHANGING NATURE OF SCOPE AND CONTENT OF INTERNATIONAL LAW CONSEQUENT TO THE EXPANSION OF THE INTERNATIONAL COMMUNITY Certain far-reaching developments took place within the International Community of Nations commencing the early part of the 19th century and during the 20th century, which changed the very nature of that community as it hitherto existed. This had a profound impact on the nature and underlying objectives of international law. The emergence of non – European, non - Christian States, particularly China, India, Japan and Turkey, followed by the decolonisation process resulting in the emergence of newly independent Asian and African States, brought on to the world stage, major actors with different forms of civilisations and legal systems as distinct from the European values and civilisation which gave birth to and shaped classical International Law. This development made it necessary that International Law play a more proactive and interventionist role in responding to and addressing the needs and aspirations of those States which had now joined an expanded international community. The newly independent Asian and African States while politically independent, economically, continued to be in a state of under development and were classed as a group of either under developed or developing countries. These States viewed the traditional International Law developed in a European-Christian political and socio-cultural context, with deep suspicion .They viewed it as a legal regime that provided an element of legitimacy for colonialism-as best illustrated by the notion of ‘Mare Liberum’ propounded by Hugo Grotius to cater to the needs of the maritime powers of the 16th and 17th centuries, -the unequal treaties with China and the Victor’s Justice rendered by the post-war criminal trials in Japan. Accordingly, these countries sought a break with the past. They sought a law that was positive in character, providing for active international cooperation for their political and economic advancement. They sought a law that took into account, not merely their formal sovereignty, but the real conditions of States, their political, economic and social imperatives that were determined according to the specific situations these countries were placed in the prevailing global order. The call for a New International Economic Order and the call for the recognition of the ‘global commons’ the oceans, the environment and outer space, as the ‘common heritage of mankind’ were the major planks to re-formulate the traditional International Law. The changing dynamics have presented both challenges and opportunities for the developing countries. In the course of this presentation, I wish to identify some important landmarks that characterise the changing nature of contemporary International Law, in order to dwell on the challenges that lay ahead. (A) In the aftermath of the Second World War, one sees the emergence of the International Organisation as key actor alongside the State, to provide the forum for sovereign States to engage in the international norm-creating process. The multilateral treaty - making process within the United Nations and other Inter-Governmental fora begins to assume the important role of a virtual international law - making function, displacing the prime position held by customary International Law, in the classical legal order. The treaty thus became the instrument of change, through which all kinds of international transactions were conducted. It was the best medium available for imposing binding rules of precision and detail in the new frontiers into which international law was expanding such as the oceans, the outer space, and the environment, which came to be known as the ‘global commons’. This post war legal order witnessed what could best be described as a process of laying the building blocks for the conduct of international relations amongst the expanded community of States. In particular the adoption of the Vienna Convention on Diplomatic Relations (1961) containing the principles of diplomatic immunities and privileges to be accorded to representatives of sovereign States and the Vienna Convention on the Law of Treaties (1969) on the rules of international treaty-making, set the parameters within which post war international relations were to be conducted. This phase was followed by the convening of major law- making conferences, foremost among them, the Third United Nations Conference on the Law of the Sea (UNCLOS III ). It was within such global negotiating fora such as the law of the sea that international law transformed itself into a body of principles sensitive to the political and economic needs and aspirations of newly independent States, by providing a legal framework for the conservation, management and exploitation of resources through international cooperation. Principles of traditional International Law formulated by the classical jurists of the 16 th century, such as Hugo Grotius to cater to the military interests of major naval powers of the day ( such as the Doctrine of Mare Liberum) were displaced by the Law of the Sea Convention, described as a ‘new Constitution for the Oceans’ premised on the principle that the ocean and its resources are the common heritage of mankind. It created a structure for governance and protection of marine areas beyond national jurisdiction, and their resources for the benefit of the international community as a whole and in particular for the developing countries. The role that Sri Lanka and Australia played in this process of a new legal order for the oceans which gave rise to innovative concepts such as the 200 mile Exclusive Economic Zone and the extended Continental Shelf and their close collaboration despite differences in size and strength is a matter of historical record. (B) Secondly I wish to refer to one of the most far- reaching changes which occurred in the post - world war order with regard to the scope of application of International Law. Traditionally, International Law was regarded as primarily a law for international conduct of States and States only. The Oppenheim Doctrine that States solely and exclusively are the subjects of international law has however undergone radical change with the growth and development, consequent to the horrors of the Second World War, of the international movement for the protection and promotion of human rights. Consequent to this development contemporary international law is concerned not only with the regulation of inter -State relations, its traditional function, but also with the relations between the individual and the State, generally regarded under the Westphaelian Concept of Sovereignty as falling eminently within the sovereign domain of the State. The growth of the human rights movement marked by the adoption of the Universal Declaration of Human Rights (UDHR) followed by the two Covenants on civil and political rights and on economic social and cultural rights respectively, together with many resolutions of the UN General Assembly, collectively resulted in human rights, the protection of a State’s own nationals within its borders, becoming a matter of international concern. As the human rights movement developed, there emerged what could be described as poles of tension with the established concept of State sovereignty. A philosophical debate emerged between those who advocated what were termed universal values and those advocating what were termed cultural relativism. Those advocating universal values, particularly from the Western hemisphere, based on what were viewed as universal norms reflected in key human rights instruments, argued that international human rights, such as the right to equal protection, free speech, freedom of conscience, and religion etc., must cut across the cultural divide and be of equal application universally. On the other hand, proponents of cultural relativism approach from the developing Eastern hemisphere, led by China Malaysia, Singapore and others, viewed the broad range of rights enjoyed by the individual, being directly linked to the specific socio-cultural context of the particular society in which an individual is a member. They stressed the fact that the human person does not function outside the society which that person forms an integral part .Hence according to their view, there was a need to take full account of the individual as a member of a wider social group and the cultural context of that society. It is noteworthy in this context that even at the time of the negotiations of the UDHR in the Commission of Human Rights, it was stated that if the essence of the declaration is to be, as it must, a statement in which the right of the individual to develop his personality to the fullest is to be stressed, then this must be based on a recognition of the fact that the personality of the individual can develop only in the culture of his society. The fundamental concern of those advocating cultural relativism centres around what is perceived as an external imposition of values and principles developed in a different socio-cultural context and hence considered an unwarranted interference into the sovereign domain.
Posted on: Wed, 04 Dec 2013 12:56:13 +0000
Trending Topics
Recently Viewed Topics
© 2015