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    International Law

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    13 views23 pages

    Cassese Chapter 2

    Uploaded by

    Dha Goal
    International Law

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    © All Rights Reserved
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    2 THE HISTORICAL EVOLUTION OF THE INTERNATIONAL COMMUNITY 2.L INTRODUCTION \We should now ask how the internationat community acquired the unique features itcurrently shows. Asa result of what historical events did it evolve in such a wayas to appear so markedly different trom all domestic legal ystems? in tracing the hstorial evolution ofthe world community, iis aseful to divide it into various stages, Periodiation i, of course, always arbitrary; nevertheless, it may ‘prove helpful fora better understanding of some major turning points, The evolution of the international community can be roughly divided into four snajor stages: (1) from its gradual emergence (sixteenth-sarly seventeenth century) to the Fist World ‘War; (2) from the establishment of the League of Nations to the end of the Second ‘World War (1919-1943) (3) from the establisment ofthe United Nations tothe end ofthe cold war (1945-1989); (4) the present period 2.2 THE EMERGENCE OF THE PRESENT INTERNATIONAL COMMUNITY BEFORE THE PEACE OF WESTPHALIA “The origin of the international community in its present stracture and configuration is usualy traced back to the sixteenth century. It largely erystalized atthe time of the Peace of Westphali (1648), which concluded the ferocious and sanguinary Thirty ‘Years War. OF course, international intercourse between groups and nations had existed previously, From time immemorial there had been consular and diplomatic relations between different communities, as well as teeaties of alliance or of peace. Reprisals had been regulated for many years and during the Middle Ages a body of scan the var the Stat, oft info of iempe: jndgn subjec oman: insta the my volnt buren 1916 labour cof adem The respect the Bog Roman encom territor, Thus munity America to the fo of any 5 followed thes to] at 26. Jel Aurgenale HISTORICAL EVOLUTION 3 low on the conduct of belligerent hostilities had gradually evolved. And yet all these restions were radically different from current intersational dealings, for the fabric of the international community itself was different. Bven in the late Middle Ages. when international relations of a kind resulted from the splitting of communities into al community ‘atious groups headed by feudal lords, the intern: liffered from the present one, and this for two reasons, Pirs, fully fledged States—in the modern sense—did not yet exist, Centralized structuees, which had gradually come inte being in Europe between 1100 and 1300, did not assume the typical features of @.medern State until after 1450. Of various historical enguitis into the origin of the modern State, it may sieficeto quote hee the of R Strayer! In hit views what charseleries the moder State and diferentstes it rom both ‘the great, imperfectly integrated empires’ of the past and the small, but highly ‘obese unis such asthe Greek ‘city Stat’, are the fllowing characteristics 'the sppearance of pola! units persisting in time and fixed in space, the development of permanent, impetonal institutions, agreement on the need for an authority which can give final judgments, and acceptance of the idea that this authority should receive the basic loyalty of ts subjecs’- Underying thers are “a shift in loyalty from family, local community, oF religious orginiation to the State, and the acquisition by the State of a moral authority to bask up its inttutional structure and its theoretical legal supremacy’. In addition to these features, the modern State shows a very important distinguishing taf: the emergence of centralized oxausracics which gradually turn into ministerial depariments. [t was no doubt 3 slow ‘rolaion; nevertheless, in the seventcenth century the permanent core of the State was the boreucracy although, a8 Jelinek pointed out, one must walt until the adoption on 25 May 1091 of the French désret establishing the various ministries forthe ‘principle of division of Inbaur tobe completely carried though in publi administration, and foe esnlstrs in the sense ‘administrative law to side by the monarch’? ‘The period following the Peace of Westphalia inaugurated a new era in second respect. Previously there had been the overpawering presence oftwo polesof authority the Pope at the head ofthe Catholic Church, and the Emperor at the bead ofthe Holy Roman Empire (which had been set up as early as AD 800 by Charlemagne and had encompassed most of Europe but dwindled inthe seventeenth century tothe Geeman ‘evtory in central Europe). ‘has the necesary premise forthe development ofthe presen international com- smi is the rice of modem notional States between the fifteenth and seventeenth Under his schene, pace was ae enforced. Pura to Ari 123 ofthe Tent af Misc he victim fo thea to race o any serio violetion was ctw reson 0 war, but shoul! ett te aflender no 10 come to any hosting, sabiting the cease to a tienaly compecion ox tothe ordinary poseeiags of sce Arle 12 xnsiged cooing period ting ag. thee yar ite expiry 0 se been macho nue Sate was wo weg wa. and she other caning pares wre 0a Ii by using fee. In acne, Sates were day-botng to retain fom ving miltaryssstence tothe fender no could they allow is toaps to pass shrgugh or sey sm ther trois (Arte 3), Ths the lave secirity stem coviigen laa hinged onthe fadowirg cians) serepng bata he we fe ida pohdbition an inci e-deence, excel ae oe expiry of 609 peed il the ety ofl Siesother than the victim ofa ron stn elective sllefece This scheme which strongly tects hee tat wa et op 919 onde he League of Nations zen was neve pata eer. Thoug Weak scanty by to derm standards, Ivf far abeaco tine api hrs conc wih he teres {ad gredapasnone of Sister Mevahert of the intenatineal commit flloned ilerent peter of ‘ehivow, bred on both the ustrarmee ight of individual Sates to resort to wae Wheneee they Contre itapropate andthe lk fay eblgrion give wiltiryastace to the vats acs by the Stes 26 FOUNDATIONS OF Tite INTERNATIONAL COMMUNITY cee uniting them, Another szong unifying factor was the pattem of intern economic snd Pinict| evelopment ll Western Sats were the ougrowth of capitals and is equivalent Uenomanon nthe plc elésssoiaism Cone i tbsoqen!yeusbypuleneneny ernocracy Ja number of respects non-Christian States lived for many yeas on the margin of {he fternational community: they di not tke a very active prt, nor did they play any.nalor role, init. According to a number of scholars, fr 1oughly three hooey yews (from the beginning of the ssteenth tothe elghicenth century) 6 few Aston Powter (eamely all tte entities inthe East Indies aswell as Persia, Burma, and Siam) by the former oat any even fell under their dmnination 3 hat si may, three points are dificult to question: (I) since its inception the world community consisted not only of Eurepean States, but embraced other countries and nations a5 well, and there was some degrte of intercourse between al sections of the community; however, many factors including geographical deren and the slowness of communication and transport tendered transactions betes arepsan and other.countries particularly dlifcsl. (2) For varius veasoos the ‘rope Powers sethe tne fom the outset and payed a dominant role hroughoun (©) esteem jurists consistently dheovized about and buttesed the ies of Eocene superiority (b) ‘The capitulation system and colonialism & Feinted out above, non-European States bowed to Wesittn ‘superiority’ and Gentually submitted tthe rules elaborated by European countries and the USA Western States tended to develop two distinct cases of relations with the ‘mansat orld, depending on whether this “world consisted of States proper (the Ottoman Empire) China lan, etc.) or was instead made up of communities lacking any Siminieed central authority (bal communities or communities dominated by lac files in Africa and Asia). With the former, Europe and the USA to a Lage exert Based their relations on the ‘eapitulation’ system. They considered the bier nee sbjectt of conquest and appropriation, and consequently turned them into colonel tecritories. ‘Let us consider first the capitulation system, Capialatons wer agreements (probably 20 calle beaut they were cvided into auntered tle or bref chapters) conchudd by Western tates with Melem rules (later on ehh he atamaa Empire, with some Arab countries (Egypt, eq, Syria, Monoct, Plegine en ceri Sam China and japan eve ince the ster century, The cptlory epine ng corvotiuted in the seventtnth and cightenth centuries the tcay of 1740 bepress aren andthe Otoman Expires lly mentioned as being fea signifirnc she deta HISTORICAL EVOLUTION 9 of the main teats ofthis regime, Capitulstions served impote conditions forthe residence of Europeans (including US nationals) in the territory of non-Esropean countsss, They tended to inlude te falloring basic provisions (1) Europeans who were nationals of party tu the agreement could not he-expelled from the country without the cansent oftheir consul; (2) they had the ight to practise pablic worship of their Christan faith; to ths end they ould rect churches ad aye thelr cn praveyards; (3) they enjoyed fedom of trade and commerce and were exempted from cersain import anc export dates; (4. reprisals against them were prokitited especially incase of insolvency (5) juricistion over disputes between Europeans belonged tothe consul of the defendant ot, in criminal cases, ofthe victim (hence not tothe ‘eritorial court), while fe the case of disputes between a European and a national of the ‘ertaril State the jursdition devolved upon the judges ofthe later State. ‘The features of this legal regime are striking. First, Europeans came to make up a egal community completely teparae from the local one and setually subject to their own national sutbodtes (which thereby extended their control beyond their own territorial area, and to ¢ Foreign countey). Second, this rgime was not based en reciproity it consisted ofa numberof privileges granted to Europeans on nion:Buropean terrliory, with no. counterpart in frvour of nan-Eurapean nationals (the fw instances adduced by Alexandrowics of privileges granted in Turope to non-European partners aze exceptional and of scant relevance: see 123 HR {0968-125}, The overwhelming inequality on which captolations rested was cleanly indica tne ofthe exiting eations, Third, at lest in the eighteenth and carly nineteenth centuries, ceria. nncWNestern States did not see ep eteimental jo their eovereignty. Thus for iance, a Tapanes. author sated that "The Japanese authorities in those days, which had lie knatieige ofthe concept of extrteritorialiy, regarded national laws of Japan as some thing sacred forthe benefit of which foreigners were not worthy of enjoyment’ * And Alexan- rowice has pointed out (aid, at 151) that capitolatians tested on an ancient Asian tradition (ancient custom in Asia alowed foreign merchants to govern themselves by their own personal law instesd of submitting to che jurilction and the la of the host country and possibly to diferent way of ie) ‘Nonetheless, Western sights of ‘extraterrtoriaity’ constituted serious restraints om the soreteignty.of the ‘territorial Stat. Later on, towards the end af the nineteenth ceatury they rece deplyfltas an undue encroschinent even bythe Japaneve atevities and were gradually teeminated (see info, 24.8), Let us now tum to the relations of Buropean States with another class of ‘other’ countries, namely those lacking any State-like structure, or governed by a great umber of local authorities frequently feuding with one another, ‘These countries were gradually subjected to the colonia domination of Western Powers uropeuns fist colonized the Americas in the fifteenth century. As soom as the fist signs of rebel fest France and then Britain appropriated large portions of India, until in 1772 most of India ciually became ¢ British colony, In the ealy nineteenth century, when the successful revolt cf the USA was followed by the independence of South America, Buropeans turned 0 Aria, While atthe same time intensifying their interest in Asia. At the Berlin Congo Conference of ‘were apparent in America, Asia became a desirable area. In the eighteenth century 1 +4 Omuks Topa's Easy Encounter wih the Concept ofthe Law f Maton’ 1 FTL (296). a 5, 8 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY 1884-5, attended by such Earopean countries se Austria-Hungary, Belglum, Denmark, France, Germany, Britain, Tay, the Netherlands, Portugal, Russia, Spain, Sweders Norway plos the ‘Ouoman Empire and the USA, and reultng inthe General Act ofthe Berlin Congo Confer nce of 86 February 185 (tet in Parry, 165, a8 483). The interior ofthe continent was spit up acnong Britain, France, Portugal Belgium, Germany, and Italy, Meanwhile Britain, France, and the Netherlands either appropriated of comlidated their control over Asia. Even a State formerly under colonial domination, the USA, took part in the colonialist trend. i sized powcr ever the Philippines in 1896 axa reso of the war with Spain, concluded by the Pesce ‘Treaty of Pats in 1898 ‘We shall ste inf (24.1-3) whether catonial domination proved beneficial at least in some respects. The question which should be raised here as particularly germane to the present enquiry is that of the role of international law in the process of colonial conquest, 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 sender conguest smooth and easy. International law authorized States to ‘ucquite sovereignty. over those territories, both by downgrading the latter to terrae rullius, namely, territories belonging t@ ne one, and by. depriving the local com- ‘mubitigs or rulers of any international standing, Effective qccupation and de facto control over the territory (coupled with the intent of appropriation) were sufficient for the acquisition of sovereign rights. Furthermore, if local_ralers opposed the ‘eolonial conquest, international law offered two instruments either war (vcthout all the legal restraints applicable to wars between ‘civilized’ States), or the conclusion of treaties (indeed a great number of agreements with ‘local rulées' or chieftains were entered into by Furopeaa States, and they normally lacked any reciprocity}, ‘The same legal instruments were available in case of conflict between colonial Powers and other Westen countries wishing to appropriate the same territories: either the waging of a war or the conclusion of an agreement settled the matter. 23.2 THE ALLOCATION OF POWER “Throughout the whole period under consideration power was spread out: ne single State became so strong a8 to subject all the other countries to its will Legally, all ‘miembers of the international community were on an equal footing, In practice, 4 ‘group of great powers (France, Britain, Spain, Portugal, the USA, Russia, Austria, Prussia, Sweden, the Netherlands) dominated the international scene, However, this ‘gcoup never presented a united front because there were constant rivalries, A balance fof power proved necessary and was in fact established It is against chic general background that an experiment in collective systems for restraining power and enforcing the law should be considered, It was made in 1818 aficr the defeat of Napoleon. The French revolution and the genius of Napoleon had Shattered deep-rooted principles and upset the existing order, The victors elt they had to protect the inerests of European monarchies against the seeds of revolution, Te this end they mit to devise system capable of puting »strstjcket on these new fore, which were of arstocratis prt jn ¢ number of agreements, eet (1) A declarasig and the Ontoman standards of beba the precepts of thy (2) A mititary 26 September If tceeded in 1818, of the big Powers in Frange or elt undertook to ag, ‘ranguilty’ ang agree upon the 1 Urs ofthe co ny threat to th, extended! 50 a5 | Buropean mone Protocol). The ‘measures in cas ceue tebe an froma revoluis ‘otherwise the F This spiern pros 121, when Aa bealfot he Hl thea ber canceed-—ma elegated by all) ConteenceofT 3) A new, ofl. the sove consider meg arempt to m Pounded: my Useful and we As-soon smocements | democracies HisToRicaL svoLUTION » forces, which were urging the abolition of inequitable practices and the dismantling of ariocratc privileges. The sew syste, called the Concert of Europe, was set up ‘na number of treaties worked out in 1815 and supplemented by subsequeat agreements. It rested on three principal elements: (1) A declaration of principles binding all tats eacept for Britain, the Papal States, and the Ottoman Empire. IK proclaimed tht the contacting parties woud adopt ae standards of behaviour, both in their internal orders and in international relations, the precepts ofthe Christan religion (2) A military alliance, The “Holy Alliance’ was instituted by the Tieaty of Pris of % September 1815, concluded by Austria, Prussia and Russia, to which France seceded in 1618. It envisage a sytem for collective secusity based on the agreement ofthe big Powers, designed 1 forestall or stifle any recurrence of Bonaparte, ether {a France or clewbere. Under Articles 2 to 4 of the treaty, the contacting States undertook to agree upon the messures to be taken agains those infringing upon the ‘ssnquillity” and the ‘established onde” in Europe; they also pledged themselves to gree. upon the number of iroops which each of them was bound to provide "for the Purwitof the common cause’ Whit at the onset the main object was that of averting 38y threat to the sabity of post-Napoleonic France, the system was subsequently tended s0 a5 to fanetion against any revolutionary movement likely to overthrow Earopean monarchies: see the treaty of 1818 and the protocol of 1820 (Troppau Protocol), The late, ratified by Austra, Rustia, and Prussia, provided Jor three measures in cases of revolution; (i) the State ia which a revolution broke out would tase tobe a member ofthe Concert of Furope; (i) the new government resting from a evolution would not be tecognizads nd (il) the States diectly concerned, or otherwise the Hely Alliance, would intervene to pot an end fo the revolution ‘This stem proved quite fective in pact Te watch resorted toon two occasions: in 1221 aie. Austrian troops. wee er to Naples and Tusin ta suppess Liberal insurgents on ‘ehal ofthe Holy Allies: and in 1823, when French troops were dispatched to Spain, tga to ‘heat ibral attempt a independence On bath decisis one State onthe one diety Giocered-—made 4 sitar intervention. But the right to take. action was coneidered 2 aepted by llth patnesof the Haly Alice anda asthoried by agence necting (Ike Conference of roppas and Laybsch inthe former case. the Conference of Veron in theater) (3) Awew procedure forthe setement of police! questions, consisting of meetings ofallshs sovereigns concerned where they might discuss ‘great interests in commons sewider ineasures conducive to the ‘tranquility and prosperity of peoples’ and atiempt to maintain peace ia Europe. In short, a new diplomatic method was pro- Decne: malilateral diplomacy based on perindical mma meetings It proved most seal and was indeed resorted toon a number ef occasions ia later years. As soon as European monarchies came under strong attack from nationalist ovements and were gradually overthrown of forced to tuen into parliamentary ‘emocracis, the system set up in 1815 wes replaced by the traditional policy of the 30 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY, balance of power: only the diplomatic method of summit meetings survived. Pro- ‘ected —at least in some respects—by this policy, the Great Powers revived their tendency to exercise hegemony, endeavouring not to trespass upon the respective spheres oF influence ‘Within this general framework, the emergence of the USA seta limit to Europes influence and power inthe Americas. The new trend was formally proclaimed by the “American president, Manto, in the doetrine propounded in the famous message to Congress of 2 December 1823. This message stated, frst that ‘the American continents wa are henceforth not to be considered as subjects for Future colorization by any European powers'-Second, while the USA would not intervene in European matters including Buropean Powers ‘colonies and dependencies’ by the same token it could not allow European powers to intervene in America: the USA ‘would not view any interposition forthe purpose of oppeesing them [.. independent Governments of the ‘American continents] o€ controlling in any other manner theie destiny by any Euro pean power in any other ight than as the manifestation of an unfiiendy disposition toward the United States (in Moore, Digest vi, at 368-72). Thus a check was placed on European expansionism and at the same time the basic principle was enunciated that the American continent was under the control of the mest powerful State ofthe area. ‘What is striking in tis period is the spread of forcible intervention by major Pawers {in the internal or external affuirs of other States? 2.33 THE MAIN FEATURES OF THE LAW ‘The very expression ‘international law’ dates back to this period.° The legal regulation created in this period possesses two salient features (2) International rules and principles were the product of Western civilization and bore the imprint of Eurocentrism, Christian ideology, and of a 'free market’ outlook 5 pp the Germann publics 1 Siuicheraply ernie in 1809 (Die Frade tiple vom Ducker und HombLt 199) at 29-31 this protic gsined momenta fier #820 as» cel of 0 Aevloprents Fishers vas x groin tendency among major Europenn counties © get tpstber aod pots itetionl lation sending Hcopeto toubleponyIistendency, vale dung the Napolese fas and itaed by tae neck af other Butopenn Powers to counteract Napoleon's eBoy at com ‘hued afer is dvetlla he form fa soog eli 0 dary ising veacorary monarchies and Ted to he fumation a the Holy Alans Second the grsore devastation enn bythe Napoli wart Frpeled Stes to sa beaming inal in wars prope The corbinadin of de wo end ed Bropenn Sines nerve ena snes 0 oasis bath in Europe and dsewbere without, HOME eA folly edge wars or dnt, afer te downfall of Napoleon, ax pointed Oat abate the Holy Alsince provided for miltaty nererasion in European coerics menaced by revolutions Lae, Great Eeropen Foner itevened apn fe Ontoran Ere and Egypt and iste otal eis of her State and the USA inerened in Latin American COUN. "yas fad 78th} Benny ited othe Pini af Moa aed Legion Since then tinretsngy replied the previous ems ew of tion’ and ii eg ye alo polit Penna thn A Buopean Waders Pater Al Arch logis walla (1976), 76-85, other Frcorabrvdesthe si Rng one moteated hichange.or were sscromenalin making widesprend the emotional appeal andthe growing empartance of the cance of ‘oxo! be spead of Unrate Inova eahiitond and the sting pin TB66, Us Lana. of the ‘rtrasinal Working Men's Asoc ihn commonly Known a he Fie aerator sigh Eur che the. the wot eine pase pent codis ™ of la, cessic inf, Th dema, uni trade, wenpo ‘Attest Dears in 1095 HISTORICAL EVOLUTION 3 (they weed on a lise faire philosophy, that i on the de tha all Sates should be legally equal an free to pursue their own interests, irrespective of any economic of social imbalance}, (2) International norms and principles were mainly framed by the Great Powers ‘oF middie-szed States, particularly by those States which built up extensive colonial “rpires by dint of conquest and expansion, They elaborated the rules to serve their ‘own interests. Among the norms of this category, particular emphasis should be 1bid on those concerning force: they placed no restraint on the theeat or use of beligezet violence. Other important rules were those on the diplomatic and jndicial protection of nationals abroad: whenever the citizen of a certain State ‘eimed that «foreign Government hd beaved unlawfully towaeds him, he could equest his national, Government to step jn and slaim reparation for the alleged finerational wrongful act, Clearly these rules constituted important legal tools in the hands of those Great Powers whose nationals went abroad to set up commercial nterprises ‘Anoiale contibution tothe elucidation and development af international castomery rles fat ofa led to the elaboration of international treaties, was made by 2 gJoup of eminent Exope and American scholars who were instrumental in the establishment, in 1873, in Ghent Bgium) of an astocsition of ditnguished academics, some of them involved in Snternional afl in diferent capacities the butitut de droit internationak Armong them “tome sod out the Dutch TM. C. Ate, the Swiss (teaching in Germany} FC. Blunts, th Arennian C. Cabo the British Lorimer, the lin PS, Mancini the Swiss. Moyer the Belin .Rolnsoequemyos. The ams ofthe Instn were: prommion ofthe progress of imrnetonl law’ by sang is principles ‘scoring to the judicial conscience of the cvied oid’ promotion of ‘rogresive codification’; and the “oficial acknowledgement of the Ditciples of internationale. Over the peas the Jeu discaeed important topics aad pase relusons tht have ben influential in the development of international lain ilar thoie onthe liberty of navigation and nesta within the Congo Basi, on res ‘neraingartitaton proceedings, on land and sen warfare, on international pre courts cr tediBcaton ee wo qualifications should be made tothe above remarks on the principal festures of aw inthis period, First, in some cases big Powers were impelled to make con- ‘sions narmiller Sats (se, for examples the cules on the freedom ofthe high seas inf §.1 and 5.3.7, and the rules on lawfal combatants, ee fnfra, 206,1). ‘Thesecond qualification isthata numberof yeaties were dictated by humanitarian ends, silt. ohers met the exigencies of all members ofthe international com. ‘uni whuthé powerful or weak. The former ince not only treaties on the slave trade, but alto some international agreements placing restraints on the use of ‘eapons using inhuman suffering (sce 20.6.2) Alea one of th rates banning weapons shouldbe mentioned at this juncture, namely the Decation_pohiitng.the wwe of expanding bullets adopted by the Hague Conference i 109, Sof nosed bullets which expanded on esatse, thus cousing gaping wounds and 32 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY spring sting, bad been developed by the British athe Dum-Dum arsenal in Caleta in the nnteench century. As EM Spiers eld. the British authorities juste hr prodction by sping ttt demands of sl colenialwsfare warranted this deviation fom the stand- ards of European armaments, The enemies whe Binin encouniered were not amis fom the Eoropean countries bo ad signed the St Petersburg Declaration [of 1868 prohibiting the set intime of war f explosive projectiles unde 409 grammes weit bat naa ater, “snes, and “barbarian”. The difference wat deemed substantia ‘elised man is mach sore suscepti to injury than sages. the stage, lke the tiger, is nots imprestinble, an wil goon fightingeven when desperately wounded” (shouldbe noted passing hat the vinstion beeen ced popes and barerims as fra the ue af weapons Was tow. ctmed, as not ew back in 1628 Grit hid writen that poioning eapons and waters wat tvm borders and to dicharge ts just obligations to foreigners, When this is done they [the inuspeacent nations of America) can rest assured that, strong or weak they have bathing to red ftom outside interference" {USER (1903), 35). Jn sum, the USA considered protection _sfforign propery to owcride the ned 1 keep Europe from intervening miliary on the Aegan continent. Is hardy suprising that the so-called Drago doctine was asad by | fsdingBuopen jurists s Beng at variance with international Ls proposition which as ole erst height of the rules obtaining a the time. No subsunial headway was mude in 1907, when Latin American countries fedesoured to pass atthe second Hague Peace Conference, a convention forbidding the ws of force fr the recovery of contract debts. The US delegate, General Horace u FOUNDATIONS OF THE INTERNATIONAL COMMUNITY Porter; took up, but also watered down, the ideas put forward by Drago in 1902, General Porter proposed to make resort to force conditional on the non-acceptance by the debtor State of international arbitration or its failure to carry out an arbitral award. The Conference largely accepted General Porter's proposals, and set up @ Convention on the matter. Significantly it was not raliied by any Baropean country, ‘thus showing again that even in an emasculated form, the efforts of Latin American ‘countries to restrain international legitimation of farce were to no avail. 24 STAGE 2! FROM THE FIRST TO THE SECOND WORLD WAR ‘Two major events mark the beginning of a new era: (1) the Fest World War which, although fought solely in Europe, involved the greater part ofthe international com- ‘munity and caused the members of such community to strive to rebuild it on better foundations (2) the Soviet revolution and the consequent rise ofthe frst Site openly to oppose the economic and ideslogieal roots of other States and of inteenational 24,1 THE TURNING POINT: THE FIRST WORLD WAR AND H's CONSEQUENCES The war had many important repercussions. It marked the passing of the “European. Age’? When the war was over it became apparent that Furope no longer played a crucial part in the world community: the gradual erosion ofits importance, initiated long before. culminated in Europe’s demotion to the rank of merely one of the areas of pomer. Among the chief factors affecting its position were: (1) the rise of the USA (2) the emergence in 1917 of the Soviet Union (as it was called since 30 December 1922); the falling to pieces ofthe substantial ideologieal and paltical unity ofthe ‘ld ‘community; (3) the_end of colonial expansion—a striking phenomenon which marked the beginning of cht long process that culminated inthe collapse of colonial ‘empires in the 19605. The decline of Europe made itself felt in the field of economic, military, and political power, but also in that of culture and ideology. Europe's pivatal role in the previous centuries asthe world’s store room of values, institutions, political ‘concepts and standards of behaviour came to an end, ‘The war united the whole world —albeit in a forced and somewhat sinister way. For the first time a conifict assumed such magnitude as to involve all major members ‘of the international community. The war proved that some major events were crucial rothe world community at large. It became difficult for States to keep aloof Feom what ‘vas happening in other areas ofthe world, 9 AlbrechsCani, The Maat Fs! World Wir Engle Clif. NL Ponti HISTORICAL EVOLUTION 35 242 THE SOVIET UNION’S PRESENCE SPLITS THE INTERNATIONAL COMMUNITY 11 fas already been pointed out that although some meibets of the international ‘community (the Otoman Empire, China, Japan, Persia, Siam) had a different eco- ‘omic and ideological outlook to that of European States, they had actually yielded tw the Christian majority geared to a market economy, which indeed set the tone ‘heovghaut the development of the international community. In 1987 one Govern: ‘ment cde into being with an ideology and a political philosophy radically at odds With those upheld by al other‘States. In the international Field, the USSR advocated the fllowing principles: 1) Sef-determination of peoples, to be applied both to national groups in Europe (for exatiple, the nationalities in Austria-Hungery) and to peoples under colonial domination (sce 37.1) of States (in contradistnction to their legal equality). ein 6 ofthe proposals forming the bass for negotiations submitted by Adolf Joe the head of the Ratsian delegation to the Brest Litovsk Peace Conference (wich opened on 22 December 1917), proposed that the contescting parties should condenia the attempt of strong nations to ‘eset the fresdom of the weaker nations by such indtect methods a8 eeanomic boycotts, ‘e0eamic subjection by-means of compulsory. commercial agrecments, sepaeate customs ‘grecments. restricting the freedom of trade with third countsles,naval blockade without direct ality porpose, ec. Thus for the frst time, there was autright condemnation of economic stein sa cant. of subduing weaker Sates and unequal treaties, (9) Sosialst internationalism, whereby the USSR pledged itelf to assist the work. ing dss and the political parties struggling for socialism in any State. Thus, again for the frat time, a member State of the international community proclaimed a policy ‘timed at disrupting the fabric of other States and their colonial possessions (and the USSR oficially pursued such a policy until at least 1927), This new state of affairs was 008 fly appreciated by the American Secretary of State, Robert Lansing. fn. memorandum of? December 1917, speaking of Lenin and Trotsky, Lansing, among other thins rote the falling: "Howe can anyone deal with such people? They are wanting in Uitersational virtue: Ievernational obligations and comity mean nothing to them. The one thing the arestrivingo bring bouts the "Social Revaltion”, which wil sweep away national ‘Sounders, racial distinctions and modees political religious and socal institutions, snd make ‘He fnorant and incapable mass of humanity dominant in the earth, They indeed plan to estoy vation by mob violence... the Bolshevik program is io make way with the military nd politcal authority in Russia and to incite similar elestoction in other countries" (a) The partial rejection of international Jaw, The USSR proctaimed that since all the existing legal norms and institutions of the international community wece the "A Lansing Wir Mamciry (Indanepoic The Bobb-Mersll Cou 1938, rep Wieser, Con rec Pes 197 at, 36 FOUNDATIONS OF THE INTERNATIONAL ComMUNITY ‘upshot of ‘bourgeois? and ‘capitalist tendencies, they were by definition contrary to socialist interests, and would be endorsed by the new regime only to the extent that they proved useful to it. Consequently, many existing treaties were denounced, [In fic, the Soviet Government did not tejectinterational law wholesale, Indeed it could not have done so without becoming an outcast in the world community. One cannot be a member off social group and atthe same time dismiss alls rules. One must comply with at least sonse Of them since otherwise international relations become imposible, with the group as a whole ‘steacising the eecletrant member by condernning is to complete isolation, TheXSSR rejected numberof bilateral and even multlsteral testis, but it tacily ar expresly bowed toa gest ‘many international standards. ys, for example n addition to emphasizing the importance of the customary rules protecting State sovereignty, it iavoked 2 general norm (the rule rus sc stantibus see 9:7) 0 justify its nepudiaton of unacceptable treaties Similar the USSR upheld ‘many customary rules on reoty making (wines its entering into « great number of bilateral ‘snd voultilteral teatics), and on diplomatic and consular immunities and privileges. In ‘daition it tacdy acepted the bulk of customary aules on the treatment of Foreigners a i Broved by Articles 8 and 9 af the Sovit-German ‘Treaty of 6 May 1921, which sated that Germany. guaranteed to Soviet citizens ‘the prescriptions of international law and of the German comms nw’ ‘Nevertheless, the basic Soviet attitude towards the legal instruments of the Intemational community inevitably undermined some of the community's basic doctrines, The USSR ezoded—to-a greater ot lester extent—many sacred principles (such as that on protection of investments abroad), while it resolutely opposed others, such as those concerning the rights of colonial powers 24.3 AN EXPERIMENT IN COLLECTIVE CO-ORDINATION OF FORCE: THE LEAGUE OF NATIONS Following the First World War the victors decided to set up an international institu tion designed to prevent the recurrence of worldwide armed conflict. The League of Nations was created, with a relatively small membership (42 States including five British dominions: India, New Zesland, Canada, Australia, and South ftica) For domestic reasons the USA held aloof. Its absence undisputedly weakened the institution from the outset. The system set up in 1919 greatly resembles that devised in 1648 inthe form ofthe Settlement of Westphalia (supra, n. 3). Recourse to force was not generally prohibited, xcept for aimited numberof cases, Articles 12,13, and 15 of the Covenant subjected resort to war toa cooling.off period of thee months. Ifa dispute was submitted to the league Council or to the Permanent Court of Intertidnal Justice (PCT) or an asbitral tribunal, war could only be resorted to three months after the arbitral or judicial decision or the Council report, Consequently there was a general probitition ‘on wars initiated before that delay or vaged against a State which was complying with an arbitral aware! ora judgment ofthe PCT}. o with a report adopted unanimously by the League Council E | HISTORICAL EVOLUTION 7 ‘Tet Leegut spstem had major flaws. There was no ban on resort. to force short of war: This Stir manifety indeed Stats to engage in war operations wehbe aiming that they ‘tat mercy using corrsion short of war and were therefore not bresking any provision of {he Covenant. An instance is the eate of Manchuria, when Japan attacked China (1992). fe skin, war was nt benned altogether was only subjected t.asooling-affpetiod, in eave hope that States would calm down and ge lest excited after a certain delay ad that ‘he poeedures for the settlement of disputes provided for in the Covenant would ereapwhile tote them to refiain from using force. This proved illusory, as is shown by the case ofthe fatin aggesion against Abyssinia, i 1935-, Furthermore, na collective sytem was setup {or tforcing lw agains «State that broke the procedural prohibitions af the Covenant, If imenber State made war contravening the Covenant’ stipulations all the ther member States ‘evs cuty-hound tosssist the victim against the aggresor—as long as they considered the use ‘offre inthe cae tissue to be a breach ofthe Covent The League of Nations Assembly or ‘Counc had op power tosend in woop aguinst the aggiesors they could only recommend te te oEfore te member States. In short, the Covenant. merely envisiged joi! jalutory action the prt of Satet.There was no provision for an institutinalized enforeemneat procedure thes wat ae ronopuy of force granted to the League organs, much lis was an international Eat Or the rietenance of peace and order setup. Plainly, the League stem wat afr cry fam the enforctnent machinery that exited within cach State system Incend n the only Cee nhen ere wat resort o sanctions (namely against Italy, 1935-8) they proved a failure oy felts reson. farther defceney was that the Covenant’ prescriptions remained treaty ‘Gviconsequenly.they.lld nptbiad Stics outside the League (the USA, as well aya number eg ‘aspen snd Asan counties, incfoding a certain stage Germany, the USSR, and fan). As 4 esl the customary international rues authorizing war remained unaffected as fee tina ‘Ses were concerned. Diferences between. member States the lack of en-operation, the fact that the {spt staually became a politic] instrument of Britain snd France only, along with ‘Inherent institutional deficiencies—all these account for its false. A number of States resorted to force without being the subject of military sanctions or at any rate without the League bringing about a satisfactory settlement, ‘The USA and France endeavoured to obviate the most conspicuous deficiencies ofthe League by promoting the Paris Pact of 27 August 1928 on the Banning of War, he Fact however did not make much headway, for ence egain it was.only war that was prohibited (although the ban was now mote sweeping), and in addition thet wis no. provision for an enforcement mechanism. Furthermore, the corre. spondence between the parties before the signing of the Pact made it clear that che ehtaf elf-defence was unaleced, and that avery liberal construction wis placed n that sight. Thus, Britain stated thet it-ineluded its right to defend "certain ‘epions ofthe world, the welfare and integrity of which constitute a special and vital Inters for our pence and security”. And the USA contended that self-defence febraced any action decided on by the US Government to prevent an in Of the Monroe doctrine. The conspicuous merits of the Pact were that down. more general prohibition of war, and that it was binding on States not parties {e the Covenant such as the USA. However the Pact itself was unable to upplant #8 SOUNDATIONS OP THE INTERNATIONAL COMMUNITY. the customary rule authorizing wa, in that it did not turn Sato ¢ customary role albrogating the previous ane. reer, even in the period between the two workd wars, States gradually endesmorad ip resieve dei traditionally unfettered right. wse misary forse in endcantivaleelations. The League served to slow down the process and reduce the aerree of recourse to Tore, Is, however, unable to introduce a radical change = doe particular structural element of the old international community 244 LEGAL OUTPUT Dring this perind there was no conspicuous svoces i elaborating new rules, 1m if dani thc gover Union remained a eat extent onthe defensiv ona numberof aaions i attacked exiting international institutions but was unable to affect he sew rules, ‘The principal area in which judicial settement of disputes. full bloom. marked progeese wnt made was that of the arbitral nd In the inter-war period international arbitration was it ‘The PCI set pn 1901, deleted 32 judgunenttand27 Advisory Opinions. The partes fo be veut proceedings were mostly Europes. Simi, the members of te Cours wee aorly from Burmpesn countries fom the USA (fom 1922 101930 four of 16 judas es Fae ce, wile rom 1931 to 1942 the proportion changed to seven out of 21). Nameroas sdhoc arbitral tribunals were alo set wp Indeed, more Boropean. States strongly belived that arbitation was the best sncina of setting disputes and preventing the outbreak of wart, This, however, wat disory view, both becaase on a number of occasions arbitral wands were not heeded, und because arbitration was inherently unable to restrain power politics, Panne equant recourse to arbitration made $t possible for intemationl cour, pariculaly the PCD, t0 pronounce on many Yntemational issues. The case Paesyneh evolved was instrumental in fling many.gaps jn international egls~ wo Prneilen and rules were specified, elucidated, and elaborated wpoa. TH BF ri wns © remarkable contribution to the improvement of the technicalities of imernational la, Th addition, a-new wind began to blow through the international communi, caeag oth ia dee ovals ng neqslie between Stes, and rex once for the demands of individuals, ae tendncy odo ay with he mast sing forms afar cn be see in he de Fn the any coun whee ths epme ba aes bee dsr sa el War wear anf 193). Capito with oer counris wet podalyabiogste stale in concern wh the gis of indium el wet hed bees probed lng before, Sats now begs row fn ee granted the ight 0 08 tow forms Fest while the slaw ts ‘the institution of slavery a such, Seco, comps is poems designed 10 ‘Cotton ¢ ody These? tion whe intcnatinal the sovereign srt the ous ‘hove bars ig Bits Men vil fey and 25 151 THT 919450 on 26 jm ‘into force Hitoshint liza) aed iliaey T (thefts sere pot) unitary afoul f Ingy the fits beticen enhance powers and aa wver-ine Peace Pa aN mah a HISTORICAL EVOLUTION 38 ‘ungialuts Wih international boss, Religious, ethnic, and linguistic minorities protected by sta eaties were authorized to submit tothe Council of the League of Nations ‘petitions! designed to inform it of alleged violations of minority rights. Under Article 24 of the ILO Constitution ride anton asiociations were entitled co file complaints with ke [LO Governing, Body. These normative innovations were indicative of the new tendency to pay greater ater sion tg_the imtersyts of human beings, who until thea had had no ssy whatsoever im the ‘international comunity. As the Greek international wyer Politi stated in 1927: “Beforehand, the soreregn State wa fr its subjects an iron cage whence they could communicate legally ith the euiside woeld only rheough narcow bars. Under the pressare of the necetitis of life, those ars hane progresively loosened. The cage is starting to wobble. It will eventually fll bi. en wil then be able to communicate heyond the frontiers of their eespecive counties fey and withoue any hindrance’! 2.5 STAGE 3: FROM THE UN CHARTER TO THE END OF THE COLD WAR 151 THE MAIN CONSEQUENCES OF THE SECOND WORLD WAR In 1945, over a period of fess than two months, three momentous events occured: 1 26 June the Charter of the United Nations vas signed in San Francisco (it came into fore an 24 October 1945); on 6 August the atomic bomb was dropped on Hiroshima (two days ater Albert Canis commented in France that the mechanical éirlization has jast reached is last degree of savagery’! on 9 Augusta second born was dropped on Nagasaki): and on 8 August the Agreement on the International Military Tibunel (EMT) for the Punishment of Wir Criminals was signed in London (she first session ofthe Tibunal was bed in Berlin on 18 October} These three events were not formally Finked to one another, Arguably they did, however, result from a unitary design: to put_an_end to the wae, punish those reeponsible for jt, and set the ‘wound fora new international community. Ina way, these seemingly disparate events were destined to have a radical effect on the fone of the inteenational community. They ineressed the existing tension between the opposite poles of law and force. This tension was now dramatically enhanced: on the one hand, States came to possess potentially unrestricted physical Dower: on the other, new rules and principles were proclaimed and acted upon and 2 new international organization was established with a view to placing an | ever-increasing number of legal restranis on State sovereignty. | Peace became the principal goal of the international community at Tange. n the past, vars had never been of worldwide magnitude; in addition, States had never | "WW Pls Le Newel Tonto du drt inserts (Paris Ue Hach 1927, st 9-2, "WN acinison mecanigue et de purer aon demir dep Se age’ Cama 8 Ago 3945; fereved nA. Carus, Esa (Paris Galliard 1986), 229 40 OUNDATIONS OF THE INTERNATIONAL COMMUNETY possened she tone of destruction capable of anihiating mankind, Theo appa sD advances n man’s ability to wreak havoc made it necesary o feman} pS A the rae yal parpose ofall State, a purpose to which all others—inclucling resp daeearmatiowal ie and promotion of justice—ought to be subordinated, How to arma he framers of the UN Charter upgraded peace to such high rami the? Sea not navely pursue the goal of permanent and universal peace The) wer svt chat international fiction and inte-State armed conflict would at disappear by leginlative at. They mose realistically set abowt building. wpa. 9/10 designed (0 sete By clashes exceptional events, be controlled and terminated Dy meas of ‘Reermational institutionalized €0-operation a short, States simed a achieving ybtate affairs where the absence af war was tobe fatty normal condition aan wns of pursuing this new purpose was to render the unleashing of warp nore onerous than before, Waging 3ar in becich of ternational law (that ip 4 2 tagetession), was made an ternational crime’ enteilingthe ‘personal responsibilty ot teuthors {in addition, ofcourse to that ofthe State for which they acted) a aed Wortd Wat had yet another remarkable consequence it precipitated ene al of colonial empires, It aceerated a process which had started exis ‘gradual economic and political decline ‘and whose principal components were the ar European Powers the disaptive presence ofthe Soviet Uaion on the ‘world seme, the growing pobiiel and eeonortic power of the USA which (despite 1S colonial cre ern ofthe Philippines and th de facto director indirect explotation of Oe {Late American countries) propounded an aati-colonialist ideology. These wet: the rae oral facors that contributed 10 the demise of colonialism. There were, hw daly domestic reasons which various authors hav rightly stressed Aft: the Bs eer ae tena east some Westein Bwoptan countries had witnessed both gradu pening fo democricy and ako » deve toward the ‘welfare State lee motivated he underprivileged. Thus, when the cost by greater sensitivity to and concern for U Oy eae re colonial rule over distant teritorie increased (among othe things Ki because of rising unrest there), the metropolitan masses were able 10 transmit a clear = aap be ruler snc he principal prs from colonial exploitation went an ee un of peoplewherexthernlitarycaxe and ase some welfare cats "wee ot aa end more and moe bscoming corte onthe Dodge ofthe merepoling tos Country it-was no longer in the interest of the population to persis with colonial 78 amination. 4 thes ia THE ESTABLISHMENT OF THE UNITED NATIONS ‘One of the major reactions to the devastations of the Second World War and te oeered recourse a viekence marking those dark years wos the keen desire tse! WE aor repnizaion that would be expable of preventing “ihe scourge of war and peneefilly eng all major disputes beeen States. Ths the UN wae crate’ re arpanenion is anaaed in Chapter 16, suffices bere to uti riya features Sease abies HISTORICAL EVOLUTION a ‘The politcal premise to this major turning point was the rapprochement between ‘wo former political opponents, the USA and the USSR, which had gradually come ‘out during the war and had led to some foren of politcal co-operation. The major ‘elorious Powers conceived of the UN as.a sort of prolongation of their war-time aliance. The Charter banned the use or threat of force (Article 2.) and at the same time fanted to the Security Council the power to take sanctions and measures involving the ise of force against any State breaking that ban. Italo regulated the gradual demise ofthe colonial empires, by providing for the trusteeship system with a viéw to fnsuring «slow passage of colonéal counteis to self-government or independence, tn addition the Charter endearoured to strengthen international co-opetation in various Belds, Nodoubt the UN was afar better and more advanced experiment in world security than the previous ones (that of 1648, which to a large extent remained on paper; the ‘Concert of Europe of 1815; and the League of Nations of 1919). Suffice it to mettion ‘ist one element forthe fest ime the Charter prohibited not just war, but any threat ‘for iort to these of military force. Ths, by iself, marked an enormous advance fn international institutions. More specifically, the system for collective secarity cre- sted in 1945 bears a stong resemblance to the Concert of Europe of 1815 (see 23,2), Asin the post Napoleonic era, in 1945 the big Powers considered it necessary to assume contrel of international affazs and to decide themselves on joint action to be taken in cae of serious threats or breaches of peace. They therefore set up a“director- as consisting of the two superpowers (the USA and the USSR) plus a few other Sates which, although already on the wane, could still be regarded as indispensable to any effetve dizecion of international affairs (Britain, France, and China, the latter ‘ring at that time formally represented by the ‘nationalist’ Government of Chiang alshek). The superiority ofa ew powerful countries was formally acknowledged in Uwe Avice 273 of the UN Charter lays down that the SC cannot adopt any deliber- ation on matters of substance unless all five permanent members agree (cither by Yeting in favour or according to the practice evolved later by abstaining). This isthe Je-alled vero by any of the Big Five. By the same token, the Charter envisaged lective security: the SC, with the concurring vote ofthe Big Five, agreed ee was atheeat to peace, a breach of the peace, or am act of aggression, it could She take sanctions or dispatch UN armed forces against the offending State However, two events undermined from the outset the whole edifice built at Sen Francisco, First, Jess than two months after the adoption of the Charter, the USA Ateaged atomic bombs on Hiroshima and Nagasaki this immediately posed new and Gramstic problems. Second, nearly a year after June 1945 the cold war st in, breaking Up he political and miltary alliance born during the war and practically dividing the ‘world into wo conflicting camps. The disagreement between the Western Powers and ‘the Soviet Union, which surfaced in 1946, with the cold war spreading everywhere in ‘ost cases prevented the collective security system from working. As a consequence, the iterational community had to fall bckon the traditional devices for preventing e FOUNDATIONS OF THE INTERNATIONAL COMMUNITY sar of enforcing international law, Once again, an attempt at centrafizing the use of force ended in failure, and the old institution of self-help acquired new importance, albeit with a number of qualifications. 25.3 CHANGES IN THE COMPOSITION OF THE INTERNATIONAL COMMUNITY Following the Second World War, the make-up of the swotld community changed radically. First, handfil of Eastern European countries, aeady under the influence of the Soviet Union (which had freed them from the Nazis}, besame socalist‘em craces’ (the German Demosratic Republic, Poland, Bulgaria, Hungary, Romania, and Czechoslovakia, to which Yugoslavia should be added). As a consequence, the Soviet Union no longer felt isolated in itsideological and political fight against capital ist States, Second, a number of countres.subjected_to_calgnial domination gained politieal independence as a result ofthe erosion of the colonial empires of Franc, Britain, Belgium, the Netherlands, Portugal, Spain and Italy, fyria and Lebanon were granted independence in 1945 and 1946 eespectivelys India aod Pakistan becere formally independent in 1947; in 1948 the State of Israel was Sounded, and Bouma beeue independent; independent status was granted to Libya in 1991, to Tons, Morocco, Sadaa, and Ghana in 1956 to the Federation of Malayan 1957, and to Guines ia 1958, Many othe colonial countries gained independence i the 1960s After 1960 the bulk of the international sommunty.consisted of Third World countries. Together with socialist Stats they could easiy muster a two-thirds majority in any international guhering ‘The new make-up of the world community differs radically Foe that represented in ite ist phase, While in the seventeenth and eighteenth centuries a number of European counteies dominated the word scene, and non-Western States were (less humerous and of marginal importance, now non-Western States constituted the Overwhelming majority. However one should refrain fom jumping tothe conesion that the new position wasthe exact reverse of the Former I fact the Western minerity Sell wielded enormous economic and military power, while the majority was chiehy endowed with politcal nd rhetorical authority Hence, th situation was now more complex and contradictory than its predecessor ‘Along with newly independent States, 3 new category of inte becarnt active tm the international arena: intergovernmental organizations, They sushaomed in a short petiod of time, covering several fields (political, economic “oval, technical, etc) with a brood variety of activities, which had considerable impact on international afsrs. Their existence had many consequences, It may suffice to emphasize one, which relates ta the political field. Previowsly, some States, particulstly middle-sined and sinall Powers, were to some extent able to refrain from Secoming involved in international afar which weee not directly relevant to them nce the started participating inthe activities of international organizations wher all major world events were discussed, often forming the subject of resolutions ot ational subjects leading to the ta them to remain ¢ sides, to join in network of ity of slidacty at) ‘being concerne: cach State fel organizations | certain eccurte pursuit of a po relations bet international ¢ 254 LEGAL ‘nce develo} established th feces Tevel), except ‘Kepinsistin’ turned into” carts UN Covent aed ety So2-4 eat ile god accoumtof UNGAad that is, the beets ‘fer loa inited th States ferard impose, tries Th il 44 FOUNDATIONS OF THE INTERNATIONAL COMMUNITY establishment of the ILC, which is charged with the task of contributing tothe codification and progresive development of international law, as well as the increasing adoption, by the GA of solutions of Declarations concering important issues of internation Lvs. 2.6 STAGE 4: FROM THE END OF THE GOLD WAR TO THE PRESENT ‘The collapse, in 1989, ofthe Soviet Union and the subsequent break-up of the group of soctlst States led to the demise of tne whole of this group. The newly born Russian Federation did not inherit the Soviet Union's position asa superpower, “At present there no longer exist in the world community thre distinct groupings. Essentially, there is ane superpower, the USA, politically and ideologically leading the Western States. This superpower tends to act as a world policeman, that it endeavours to settle political disputes or to promote settlements, as well § con- teibuting to the maintenance of peace and enforcing international law, This role, however, is played selectively, that is, only to the extent that it proves consonant ‘with, and favours, the superpower’ strategic and geopolitical interests. Thus, in many cases where these interests were at stake, the superpower forcibly acted through the UN (Iraq, 1990-1, Somalia, 1992, Bosnia-Herzegovina, 1992-5); im other instances, where the UN support was not forthcoming, it acted through NATO; in clear dis- regard of the UN Charter (Kosovo, 1999). In yet other instances, it sither refrained from taking. military action, for its interests were aot involved (eg. Rwanda, 1994, Sierra Leone, 2000, et.) or engaged in military operations without any UN authoriza~ tion (lraq, 2003-8). The USA also exercises its political role as a global mediator in many troublespots (for instance, in the Middle East, Northern Ireland, ec.) ‘The former socialist countries, no longer united, tend to lean on Western counties, Developing States are ne and another siding with the West, They seem to be no longer iseologically oriented. They are instead united by their demands for more international economic and Financial assistance and greater aceess to world markets. In the UN these countrics form both the ‘Group of 77" (see supra, 2.54), when discussing economic matter, land the Nen-Aligned Movement (NAM), when they discuss political matters and ‘endeavour to harmonize their international strategies. ‘What also seems to characterize the present period are: the relative decline ofthe 'UN as an international agency for the maintenance of peace and stability; the ten- dency of States to strengthen and broaden the role of military alliances such a8 NATO: the growing trendl towards regionalization (a trend that appears more conspicuously. 4 in Europe, wit the European Union) and the devastating importance of terrorism, “The impact of terrorism on the life of the international community since the 11 September 2001 attacks on the USA signals in fact a dramatic turning point in the ‘evolution of the world community: as a result of those attacks, the increasing spread of terrarism and the consequent forcible reaction of many States,a number of inte ger divided into one group siding with socialist States | cost ratio) (eed was Tu ucla roup ‘ssian sings. ding at is, con snant many hithe 1 dis ained 1934, sriza- aries. States, nted. 2 and STORICAL BVOLUTION 5 ‘ational legal categories and instrumentaltis are undergoing a gradual modification (eg. inthe area of self-defence, see 22.5.2 (b) and (d)), which in the long run maylead Jo. significant change in imternational legal standards and institutions. ‘Taming to groups of States, it would seem that a present the industrialized coun- tie ee a the main international problems: the fight against terrorism, free trade, ces disarmament, protection of the environment, and the need to prevent ethnic, ‘ara and religious conflicts increasingly rife in so many parts of the world —from spreading acrass the borders ofthe countries where they break out. No fully fledged

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