The Role of International Law by D.P. O’Connell — A Review
A cursory reading of history would suffice to learn that the contemporary fervour of global collaboration, the emphasis on resolution of such problems as transcend national boundaries and suchlike, may be owed to a sunburst of moral enlightenment that charged world leaders after the grotesquery of World War II. Some analysts such as the late Colonel Fletcher Prouty would hold a more bohemian view; that those for whom war was a profitable business regretted the invention of the atomic bomb so soon as it was used on Hiroshima and Nagasaki, realizing that nuclear deterrence did indeed deter such wars. Colonel Prouty opines in his book “The CIA, Vietnam, and the Plot to Assassinate John F. Kennedy” that mankind’s sudden post-World War II reticence in regard to such warfare as had prevailed until 1945, was owed not to a moral epiphany as might commonly be believed.
Regardless of which of the two views may commend itself to our predilections, that which is certain is the necessity felt by the victorious Allies to ensure an international commitment to reducing such conflicts; a basic agreement, so to say. To that end, there has been a bloom in international organizations, conventions, treaties and suchlike. We may not have entirely rendered all-out war an anachronism, but as archaeologist Ian Morris notes in his book “War: What is it Good For?”, almost all countries invariably prefer amicable resolutions today; that there is a conscious effort, stupefying advances in war matériel notwithstanding, to reduce the possibility of total war.
If international cooperation is to be ensured, however, it must be governed by a set of minimum fundamentals — an agreement on basic norms that are universal, and therefore not influenced by the cultures, or as analyst Abhijit Iyer-Mitra might term, the anthropological stages, of different countries around the world. As D.P. O’Connell notes in his article “The Role of International Law”, which is sought to be reviewed in this tract, “there must exist a common sense of values and a common goal to be achieved”.
The need for such a ‘common sense of values and common goal’ may well be questioned; it might be proposed that the countries should be left to their own liberty to build bilateral and other relationships without subjecting them to a universal, homiletical international law. O’Connell, however, proposes to root international law in a realist perspective. “The foundational assumption of international law must be that states would, by default, act as if independence implied untrammelled liberty” (O’Connell, D.P.). Once a ‘common sense of values and common goal’ is established, the state would be prepared to “restrict its will”.
It is insufficient, in his view, to premise rules of law on the ‘ephemeral’ and ‘vague’ factual circumstances of resistance to tendencies of disorder. For if it is to be effective, international law must have objective standards which in themselves would be conditions of world order. Lest the reader expend much time in interpreting the term ‘world order’, O’Connell notes at the outset that the word ‘order’ concerns itself with control over human behaviour. Cognizant that wielding power in this regard may be precarious, he emphasizes that a jurist’s conception of world order must not be divorced from normative considerations.
In his article, he regards the instance of a state withdrawing from the United Nations as an ‘extreme step’ and an ‘irrational tendency toward national suicide’. This notion appears deprived of sufficient supporting arguments, for it would not be particularly rigorous to advance a view with the assumption that the membership of the United Nations is an archetypal manifestation of reason. “By what metric may we insist that membership of the United Nations aids in the furtherance of national progress?” is a question that need be addressed, for, if international law is to govern world order, it must delineate the precise reach of its jurisdiction. “Could a country be said to be subject to international law if it elects not to be a member of the United Nations?” From which further questions may follow, such as, “If the said country does not offend the sovereignty of other countries, but, say, offends our sensibilities concerning human rights, must it be reproached or held accountable by means of international law?”
This quandary notwithstanding, O’Connell diligently lists developments that pose a grave challenge to countries around the world. Such challenges as passage of space vehicles and damage caused by them, disposal of nuclear and industrial waste, pollution of the seas and waterways, exhaustion of common resources in fisheries are mentioned by him as existing in transcendence of the regulatory confines of the state; to be settled only internationally.
International Law as an Autonomous Discipline
He proposes to address not the machinery of international law but the subject itself; divorced, to a certain extent, from its “enmeshing complexities”, and seeks to look at it “as a discipline”. This, he contends, is difficult owing to an unfortunate conjunction of two factors: the one, the rapid accumulation of details in intimidating quantities given the existence of over sixty international organizations; the other, the very integrity of the subject “for want of any consensus of views on its theoretical basis”. On one hand, it has been annexed by political scientists, by vice of which it has become a mere aspect of international relations; on the other hand, it has been “transformed by constitutional lawyers into an annex of their subject” by vice of which it has “lost its cosmopolitanism and hence its claim to be international”.
O’Connell presents a two-fold argument in support of the need to look at international law as an autonomous discipline. This argument refers to the disadvantages of such annexations as were listed in the foregoing paragraph. A political scientist, in O’Connell’s view, cannot bring to bear on his analysis of international relations, the ‘critical standards of the lawyer’. Simultaneously, a constitutional lawyer would invariably bring to bear on his analysis of international relations, the unique standards of his own legal system, “neglecting the universal horizon of the rules he is utilizing”. Such a two-fold argument is supported with two examples, and it is apt to quote him verbatim:
“The international relations expert will hardly do justice to a study of the relations of the United States or of France with Communist China if he does not take into account the recognition problem; but his investigation of the proposal of the “Two Chinas” as a solution of the problem is likely to be defective if he fails to analyze in a lawyerlike fashion the profound juristic impediments that exist to this solution — and have, though in an inarticulate fashion, operated in world politics to make the problem apparently quite intractable. At the same time, the domestic lawyer who seeks to resolve the problem of enforcement of the confiscatory legislation of a foreign state by applying to it the guillotine of the “act of State doctrine”, without appreciating that this prescinds from the problem of full faith and credit in the public law of the United States, and is therefore peculiar and local, is likely to betray the cause of international law by diminishing the horizon of the problem” (O’Connell, D.P.).
He contends, therefore, that political scientists have “emasculated international law by withdrawing from it its normative element, and reducing it to a system of logic giving form to international problems without influencing their content”, and the constitutional lawyers have “solved litigious issues with international elements by the importation into alien legal environments of technical solutions manufactured in domestic legal systems”; the latter, he instantiates, as having occurred when the American doctrine of “act of State” was imported to solve the problem of recognition of foreign confiscatory legislation, “though English law affords an inhospitable context for the doctrine”. Such is his wordage of the problem:
“There is now so much international law writing in the world — the number of journals and reports in the field is sufficient already to occupy fifty pages of bibliography, leaving aside books and monographs — that no one can digest it. But very little of it rises above the descriptive and the anecdotal; much of it is repetitious, most of it is ephemeral, and in its sum [sic] it adds to the systematic exposition of international law in only a fragmentary and disconnected fashion. It prescinds from the hypothesis that international law is the “practice of States”, but the practice which is examined is that of one, or at best, a few states, and when aggregated often discloses, not symmetry, but incongruity. By what philosophical trick such an aggregation of what is, after all, mere fact is transformed into a system of “oughtness”, is unclear; and the existence of this problem has probably never occurred to the vast majority of writers and researchers in the field of international law” (O’Connell, D.P.).
Objections to International Law
He includes a concise presentation on the history of international law; how, in the latter half of the eighteenth century, it came to be premised on positivist formulations. He observes that much of today’s international law is in fact ‘state practice’, which in international law parlance refers to the practices followed by a state’s sense of legal obligation, and such ‘state practice’ is derived from political decisions divorced from sound legal considerations. International law, in his assessment, is not premised on a sound theory.
Thereafter, he assesses the objections that are raised by a few countries with regard to international law. The objections take two forms. The first is that international law, being the product of imperialism and Western statecraft, “cannot bind new states that have been emancipated from this environment”. The second is the Communist thesis that “the content of international law derives from the principle of peaceful co-existence”. How the latter, seemingly not an objection at all, does indeed form the ground for an objection to international law as it has existed, is something on which O’Connell expatiates after having addressed the first objection.
His critique of the former objection suffers the demerit of appearing as an academic gaucherie, insofar as it appears unduly polemical in its characterization of that objection. But such foibles may be overlooked; it suffers the greater demerit of not having anticipated a few rejoinders that, certainly at first glance, are quite elementary. In order that such adjectivization of his critique may be vindicated, and that it may not suffer the problem of being a partial and therefore inept assessment, it is vital to quote him at length:
“The authors offer no better rationalization of this view than the argument that continued subjection to this alien imposition is inconsistent with accession to sovereignty. The argument is thus founded upon the philosophical abstraction of sovereignty, and thus upon a view of political organization which is antiquated and subversive of the order of modern society. If the argument were sound, one would expect it to be equally valid when applied to the emergence of new entities anywhere in the world, as a result of revolution, or as a result of political reconstruction. In fact [sic] the argument was not employed when Panama seceded from Colombia, Cuba from Spain, or Finland from Russia, although these events occurred at the time when the abstraction of sovereignty was most complete. Neither has it been employed in cases such as the formulation and dissolution of the United Arab Republic, though in form this involved the disappearance of one sovereignty and the substitution therefor with another.
The argument of emancipation is reserved, then, for the cases of emergence of dependent peoples; yet the only criterion of its validity, namely [sic] the absoluteness of sovereignty, is one not inherently so restricted. This makes the argument, in a dialectical sense, seriously suspect. However, that is not the point to emphasize when considering the issue raised by it for the effectiveness of a world rule of law. The real point is that the argument superimposes the sovereign state on the structure of international relations instead of integrating it in that structure. It repudiates by implication all metaphysical character in the human community, and reduces the latter to Hobbes’ state of nature, from which Vattel in the eighteenth century rescued it. It bases law on will, not on subjection to a rational order of behaviour, and is to this extent inherently anarchic. Furthermore, the argument is devoid of internal consistency. The sovereign state is an intellectual artifact; its character, its form, and its qualities derive from a theoretical exposition of political organization which is nothing if not Western, and has its roots in the Age of Reason as much as has international law. New states can hardly claim the privileges and faculties of states and yet repudiate the system from which these derive; yet [sic] this is precisely what the argument involves. It overlooks that the state, when it commences to exist as a state, does so in a structural context which gains its form from law, just as a child when born into a society becomes subjected to it by virtue of the order of being in which it is integrated.
Superficially [sic] the argument of emancipation is attractive to new states who are security conscious, jealous of new liberties, in peril of losing them, and hence fearful of unknown commitments. There is, in view of the plastic and uncertain content of international law, some justification for caution before conceding such commitments. Also, the new states, through their own influence on usage, can contribute to the change and adaptation of rules of law to suit their own environment. But these are arguments of a pragmatic character. They do not justify a thesis of universal emancipation, for the result of that thesis would be to precipitate the disintegration of the structure of international relations. In fact, law enhances the liberties, the security, and the dignity of new states, and it enables them to preserve the structure of trade, co-operation, and investment throughout the process of political change. Not surprisingly, it would be very difficult indeed to find any statement emanating from a government of a new state which would give comfort to the thesis of emancipation, which has been propounded by academics and remains academic. On the contrary, new states quickly become very conscious of the advantages to them of the existing legal order, and it would do less than justice to their intelligence and sense of responsibility to suppose that they are all bent on a libertarian course in their international behaviour” (O’Connell, D.P.).
To address these opinions is as vital as it was to quote them at length. In the first paragraph, he notes, “The argument is thus founded upon the philosophical abstraction of sovereignty, and thus upon a view of political organization which is antiquated and subversive of the order of modern society” (O’Connell, D.P.). This opinion is inconsistent with one of his previous contentions in the article, namely, that it was his purpose to demonstrate that “the concept of the national, sovereign state is more viable in the newer areas of the world than it has ever been, and that the optimism expressed with respect to its demise is unwarranted” (O’Connell, D.P.). If the concept of the national, sovereign state is more viable, it is definitionally neither ‘antiquated’ nor ‘subversive of the order of modern society’.
Thereafter, he proceeds to note, “If the argument were sound, one would expect it to be equally valid when applied to the emergence of new entities anywhere in the world, as a result of revolution, or as a result of political reconstruction…” and adduces examples in that regard of such argument not being applied. Yet, the mere fact that such reasoning was not formerly employed, or that it is still not employed, does not necessarily preclude its employment in the future. Further still, the seceded entities in his examples could be said to enjoy broadly the same cultural milieu with the entities from which they seceded, for the predominant religion in all of them, save for the former United Arab Republic, is Christianity. This implies that notwithstanding geopolitical and denominational differences, these countries are inexorable elements of Christendom.
But such countries as India do not share this trait; a civilization whose cultural substratum is broadly referred to as Hindu, gained independence from Great Britain, a predominantly Christian nation. This is most unlike the instances of secession that O’Connell has adduced. The reference to culture and religion, much though it may affront the contemporary credendum of secularized assessment, and may invite allegations of prejudice, is quite essential. Contemporary decolonial scholarship is quite unequivocal with regard to the differing onto-epistemes of the colonized ‘heathen’ cultures, such as Latin American and Indian, when viewed in relationship to the European/Western onto-epistemes. In Latin America, such scholarship, seeking to contest the purported universality of European thought, has been efflorescing for some time. India is quite indigent in this regard; however, a nascent phase has commenced with J. Sai Deepak’s book “India that is Bharat: Coloniality, Civilisation and Constitution”. While there has been rigorous assessment also by such scholars as Dr. S.N. Balagangadhara and Dr. Jakob De Roover, J. Sai Deepak’s book is perhaps a more prominent expatiation, and his observations are quite germane to the precise addressal of O’Connell’s criticisms.
Concisely, J. Sai Deepak’s trenchant and almost devastating book, illustrates the Christian theological foundations of European colonialism, the Enlightenment and concomitantly, of such prominent words pertinent to the Indian political discourse as ‘secular’ and ‘liberal’. It illustrates also the apodictically Christian plinths of the Treaty of Westphalia. The central theme of the book is the unquestioning acceptance of the European onto-epistemological framework by India, incognizant of its own cultural ipseities; reflective, therefore, of ‘coloniality’, which pertains to the overarching state of mind that perpetuates colonial interpretations of native ipseities, and which differs from the phenomenon that is ‘colonialism’. That which is most relevant to this tract, however, is the Eurocentrism also of international law, which has also been addressed in the book. In order that the addressal be comprehensive, it is necessary to cite the necessary sections at length:
“The legacy of the Peace of Westphalia was not limited to the creation of nation-states but also extended to universalisation of the Westphalian or European experience through the instrumentality of ‘international law’ using the ‘standard of civilisation’ as a legal benchmark to judge societies. This is evident from Articles 9 and 38(1) of the Statute of the International Court of Justice which was established in 1945, that is, almost three centuries after the Peace of Westphalia. The said provisions read as under:
Article 9: At every election, the electors shall bear in mind not only that the persons to be elected should individually possess the qualifications required, but also that in the body as a whole the representation of the main forms of civilisation and of the principal legal systems of the world should be assured.
Article 38: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. International custom, as evidence of a general practice accepted as law;
c. The general principles of law recognized by civilized nations;
d. Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto [emphases added].
While Article 9 uses the words ‘main forms of civilization’, Article 38(1)(c) uses the term ‘civilized nations’. Given that these terms have been used in the context of an international legal instrument that applies to an international court set up under the aegis of the United Nations, these terms must be attributed [sic] specific meanings and cannot be used or interpreted loosely. Article 38 has been typically understood as enumerating the ‘sources’ of international law. However, scholars agree that these ‘sources’ themselves are the product of the Western civilisation. In fact, they believe that international law is a ‘living artifact’ of the Western civilisation, or more specifically the ‘Westphalian civilisation’, since this politico-theological framework of civilisation was universalised through its imposition on the rest of the world by Europe and the United States under the garb of ‘international law’. Therefore, it can be reasonably contended that international law itself is a denouement as well as a tool of coloniality since colonies were faced with no other option but to adopt Eurocentric/Western ideas, norms and institutions.
Scholars agree that the sources alluded to in Article 38(1) were the result of the application of the ‘Standard of Civilization’ (SOC) by the West to bestow upon societies the status of ‘civilised nations’, which were expected to observe and abide by the rules laid down as ‘international law’. Importantly, the more practical and less lofty reason for the growth of international law was Europe’s need to transact with non-European societies wherein the SOC was employed as an organising principle. It ensured that business was conducted within a Eurocentric framework in order to protect the citizens of the West and Western ideas of ‘universal rights/freedoms’. Those that agreed to comply with the framework by recognising the said rights and freedoms were deemed worthy of being accorded the status of ‘civilised nations’. Interestingly, the expectation was not limited to the application of the SOC framework to Westerners in the non-West; instead, non-Western societies were expected to re-order themselves on the same lines as European Westphalian States, which meant that the change was not merely external but also deeply internal to the non-West. The following were some of the specific changes expected of the non-West by the West:
(a) Those rights and freedoms that were guaranteed to citizens of the West in their nation-states were expected to be recognised and available to them in the non-West;
(b) Non-Western societies were expected to adopt the same forms of government as the West so as to protect the freedoms and property of Western nationals within their territories. This effectively meant the gradual universalisation of the idea of a constitutional form of government with three identified organs, namely [sic] the legislature, the executive and the judiciary, whose metes and bounds were determined by the doctrine of separation of powers. The theoretical foundations of the same were provided by Enlightenment thinkers, such as Baron de Montesquieu and John Locke, in the eighteenth century. As part of this expectation, codification of laws, which could be administered by courts set up on the same lines as courts in the West, was deemed mandatory so as to protect the property rights of Western nationals. This had the Lockean influence written all over it;
(c) Non-Western societies were expected to reorganise themselves in a manner beneficial to the individual freedoms of Western nationals, although such nationals were immune to the application of domestic civil and criminal laws, being answerable exclusively to the consulates of Western governments. The basis for this position was distinctly supremacist and racist, that is, non-Western nations were not ‘civilised’, and therefore Western nationals could not be subjected to the ‘uncivilised’ political and legal systems of the non-West;
(d) Non-Western societies were expected to have the capacity to defend their borders/territories against external aggression apart from subscribing to the Westphalian model of international diplomacy and State sovereignty, which included non-interference in the domestic affairs of other nation-states; and
(e) Not only were non-Western societies expected to abide by the principles of ‘international law’ and become ‘nation-states’ that subscribed to the ‘rule of law’ with regard to Western nationals, they were also expected to conform domestically to the norms, mores and customs recognised in and by Western societies.
Effectively, European imperial powers gained extraterritorial jurisdiction over non-Western societies through application of international law, which was nothing but the enforcement of Protestant Reformation-inspired Westphalian principles. In the third section of this book, which relates to Bharat’s constitutional journey, this subject is addressed in greater detail to demonstrate the application of the SOC as a legal requirement for membership to international bodies, such as the League of Nations. The point being made is that ‘harmonisation’ of both economic and legal systems as a consequence of the application of international law, that is, internationalized European/Western law, was inevitable. To anyone who follows contemporary discussions surrounding international trade relations or human rights, it must be fairly evident that the situation has not changed. If anything, post decolonisation, the normalisation of European coloniality through the use of international law has only been further entrenched, owing to the economic dependency of former colonies on the West.
To digress a bit, it is important to remember that in the middle of the twentieth century, when several colonised societies attained ‘independence’, the focus of the ‘civilised world’ suddenly fell on the ‘poverty’ of the ‘Third World’. It was conveniently forgotten that this impoverished situation of the Third World was a direct consequence of centuries of colonisation. Instead, decolonisation engendered a new talking point, namely [sic] that newly formed ‘nation-states’ must ‘catch up’ with the West by focusing on ‘development’ the European way. Viewed in this light, the impact of the ‘economic aid’ extended by the erstwhile colonisers to Third World countries on the shaping of the discourse surrounding ‘rights’ and ‘development’ warrants deeper examination by experts from the perspective of entrenchment of coloniality using the economic needs of the former colonies as a bargaining tool.
Coming back to the use of the SOC, it clearly served as a litmus test for ‘civilisation’ and international interactions, which led to the elimination of ‘pluriversalism’ and civilisational diversity, only to be replaced by Western-normative universalism and a ‘liberal’ globalised Westphalian civilisation. While on the one hand the Westphalian system emphasised State sovereignty and non-interference in the domestic affairs of nation-states, it hypocritically interfered with the domestic affairs and the fundamental consciousness of non-Western societies. Simply put, the concept of State sovereignty was selectively applied to Christian European nation-states while the rest of the world was fair game for undue interference. This completely eviscerates the claim of the Peace of Westphalia being a secular, liberal and egalitarian milestone that ushered in an era of respect among nations as equals. Members of the Christian civilisation that subscribed to Westphalian principles were equals, but those outside of it, namely, the non-Christian indigenous societies of the New World, were lesser and unevolved, who needed to be ‘civilised’ and ‘reformed’ through the instrumentality of international law.
Scholars believe that the ‘liberal’ globalised civilisation is, in fact, merely a secularised version of the Westphalian civilisation whose secularisation is largely attributed to the nature of the Enlightenment itself. Therefore, it is important to examine the Christian secular nature of the Enlightenment and its coloniality. On this subject, the work of Dr. S.N. Balagangadhara and Dr. De Roover is incisive and critical” (Deepak, J. Sai).
It would appear, after so comprehensive an illustration of relevant literature, that such nations as insist on international law being a product of Western colonialism have their contentions, at least historically, rooted in objectivity. O’Connell writes, “The argument of emancipation is reserved, then, for the cases of emergence of dependent peoples; yet the only criterion of its validity, namely [sic] the absoluteness of sovereignty, is one not inherently so restricted. This makes the argument, in a dialectical sense, seriously suspect”. This sentence is susceptible to misinterpretation; is it his contention that because the ‘dependent peoples’ do not wish to subject themselves to international law which they view as an extension of Western colonialism, they must not be sovereign entities? Or does it mean something else? The implication is unclear.
He then notes how the argument advanced by the former colonies is devoid of intellectual consistency, inasmuch as the sovereign state is itself an artifact that derives its form and qualities from a theoretical exposition of political organization which is “nothing if not Western”, and “has its roots in the Age of Reason as much as has international law”. It is dialectically sound that should the former colonies organize themselves in the mould of the nation-state — a Western construct — they must also subscribe to the legal rudiments thereof. By extension, perhaps, he implies that they should cease to be nation-states, and therefore, sovereign, if they wish to exempt themselves from the fetters of international law.
However, he subscribes to a different view. He notes, “The new states, through their own influence on usage, can contribute to the change and adaptation of rules of law to suit their own environment”. In other words, he is prepared to grant the ‘new states’ the liberty to influence such changes to the rules of law as may be congenial to their ipseities. He does not, however, address whether the Western powers, demonstrably the beneficiaries of international law as it stands, would be willing to accept those changes. What if such nations were to propose a new edifice altogether? O’Connell appears reticent, for he writes, “They do not justify a thesis of universal emancipation, for the result of that thesis would be to precipitate the disintegration of the structure of international relations”.
Supposing that by ‘universal emancipation’, he refers only to the dialectically inconsistent argument that he had critiqued, and not to the liberty of new nations to propose if not call to enact a new edifice, he certainly appears, nonetheless, to hold inviolable the structure of international relations. This, as has earlier been noted, is borne out of a realist weltanschauung which is distrustful of the ability of nation-states to ensure ‘world order’ in the prevailing state of anarchy. Those of a ‘liberal’ persuasion might well differ. This debate is best resolved, if it ever could, by seasoned theorists. However, there is much to suggest that the former colonies would not usher in a dystopian anarchy were they to defy the edifice. For one, O’Connell himself notes, “new states quickly become very conscious of the advantages to them of the existing legal order, and it would do less than justice to their intelligence and sense of responsibility to suppose that they are all bent on a libertarian course in their international behaviour”. The perspicacity of the new states having been granted, it is reasonable to infer that the new states would be responsible in their proposals, were any indeed forthcoming, so long, of course, it is not assumed that such the ‘existing legal order’ is perfect.
The point of the illustration of the Christian theological foundations of what is celebrated as a universal Enlightenment, as opposed to a more accurately European or Western Enlightenment, is not to advance the angst-ridden view that indigenous cultures cannot coexist with Christian nations, or that there must be perpetual enmity between the former colonies and those who once used to be colonizers. J. Sai Deepak’s own words may impugn the notion that this inquiry into the theological foundations of the colonial experience is vitriolic in nature:
“One might ask, so what if the political edifice of the European coloniser was informed by a non-secular and patently religious framework if ultimately it has been secularised? Why obsess over the coloniser’s religion? Such a question misses the entire point of the analysis, namely [sic] to identify the theological foundations of the colonial infrastructure since it has no legs to stand on independent of them, and therefore, their identification is necessary to outline and define a decolonial approach. In this regard, based on my reading of Dr. Jakob De Roover’s work on the history of secularism, it needs to be underscored that the secularisation of the Christian onto-episteme is the consequence of obscuring the source of a certain thought and focusing exclusively on its outward expression. This outward expression must be examined for its undergirding because those who do not subscribe to that OET which is the fount of that particular thought, have the right to know of its origins and reject its imposition. This would be consistent with the right of every society to wish to be governed by its own values which are derived from its own culture. Only after being apprised of its source, it is for the society to decide whether to embrace a thought, notwithstanding its foreign theological inspiration.
In other words, every society has the right to prior informed consent before the imposition of an alien principle. To pixelate and deny the origins of a thought, in my view, is plain deception. This argument acquires greater validity and legitimacy in the context of imposition of the coloniser’s politico-economic worldview on dominated societies, where the power balance was obviously skewed in favour of the coloniser and remained so for centuries. Therefore, an examination of such worldview through the prism of coloniality necessarily requires us to question whether a specific foreign theological framework was at play, notwithstanding all the attempts at secularising and universalising it because universalisation of a particular way was the very object of coloniality. Simply put, despite the discomfort such examination is bound to cause, which too is attributable to ingrained coloniality, it is indispensable and inevitable if indigenous societies are to reclaim their right to agency at the most fundamental level” (Deepak, J. Sai).
As O’Connell later notes, “There is little evidence that new states want to scrap existing rules and manufacture their own; they have gone to immense lengths to maintain continuity in their internal legal system, and they are only too aware of the implications of tearing up the traditional fabric of international law.” Such states, therefore, are very likely to continue with the system even after the awareness, as the decolonial school would note, of pervasive ‘coloniality’. However, it is reasonable to say that these states must be as much at liberty to propose radical changes to the edifice, as to continue with the existing edifice.
Having thus addressed O’Connell’s arguments concerning the objections raised by the ‘new states’, it is apt to address his arguments concerning the Communist objections with regard to international law. The Communist doctrine, he notes, “conceives of no means of forming rules of law save through the consent of states, and of each and every state.” He notes that there exists a logical inconsistency in the doctrine to the extent that it is rooted in the ‘state of nature’ thesis which regards states as isolated beings, akin to individuals, who enter into social contract by an act of continuous consent — the inconsistency being that this is quite redolent of individualism, notwithstanding the collectivist plinths of Marxism. He then sums up his assessment of the Communist position as follows:
“The economic structure of society is the basis on which all other social phenomena develop, and international law as a social phenomenon derives its content from the conjunction of wills of the ruling classes in contradictory systems. The principles of peaceful coexistence reflect this unstable juxtaposition of rival systems, and their content is modified by the pressures which tend to tilt the construction one way or another. But, [sic] since the historical pressure is consistently in the direction of tilt towards socialism, these principles are constantly being modified as the class expression of the socialist countries begins to predominate” (O’Connell, D.P.).
It is not clear why O’Connell regards such principles of peaceful coexistence as respecting state sovereignty, deeming intervention illegal, and outlawing aggression, as inherently ‘grandiloquent moral propositions.’ Perplexingly still, he seems disapproving of the notion that a stable basis of world order lies in the shared convictions of the East and the West. He adduces no explanation in that regard. His critique of what emanates as a consequence of such principles of peaceful coexistence, strictly in the view of the Communists, seems justified. For he cites a quotation from a declaration of representatives of Communist and workers’ parties in Berlin in November 1960 which notes, “With peaceful coexistence [sic] favourable conditions are created for the extension of the class war in capitalist countries and the national freedom movements of peoples in colonial and dependent lands”.
In other words, he perceives the Communist goal as subversive in its essence, for the Communists seek to use peaceful coexistence as a means of furthering their doctrine of class war. Why O’Connell, however, does not view those principles of peaceful coexistence, divorced from Communist interpretations, as eminently desirable governing principles, is unclear. Considering that his article was written in 1966, it may have been the case that he viewed the newly independent countries as inexorable, even if inadvertent, elements of the Communist camp, for many of them were allured by socialism, and to him it was but a natural journey from socialism to Communism. Had the article been written after the end of the Cold War and the advent of globalization, his opinion might have been radically different, given the liberalization of the economies of these countries, India and China perhaps most prominent amongst them.
Further, there appear to exist endeavours to make Marxist theories of international law less subversive. In an article for the European Journal of International Law, author Akbar Rasulov cites the Marxist perspectives on International Law as developed by author B.S. Chimni, in accordance with which it may be necessary for Marxist theorists to so strive as to ‘temporarily suspend’ the language of ‘socialism’ (for Chimni prefers to term his vision of the world as ‘socialist’, although opining that the labels might not ultimately matter), owing to its incendiary overtones against capitalism, in favour of “some other, less toxic vocabulary”. In addition, Chimni also opines that such a perspective must not insist on the complete termination of such capitalism as has existed. Rasulov, however, notes that it may consequently be questioned how much of such a perspective, notwithstanding its core opposition to ‘imperialism’ and ‘subjugation of Nature’, does in fact remain theoretically Marxist.
Amongst the final points that O’Connell makes is that man as man “ultimately transcends political divisions, and participates in community by virtue of human and not class coexistence”. Thus, law has its starting point in man, and this must be “no less true of international law than it is of the law of the state.” He holds that international law must not be contingent on the notion that the will of the state is a pre-eminent source of law; it must have sound legal theory, driven by normative considerations.
In view of the increasing significance of the former colonies in the twenty-first century, there appears to be a shift towards a more inclusive emphasis on international law; however, the West in general and the United States in particular continues to command great influence and potency. While this may be a natural consequence of its economic, technological and overall military might, it would well be agreed that much as state law must not be manipulated to the exclusive benefit of the powerful (although it invariably is), so must international law not be manipulated to the exclusive benefit of powerful states. It is possible for the ‘new states’ to propose their own edifice of international law, and even work with the West to ensure sweeping reforms in the existing edifice, without taking recourse to a phlogistonic, subversive Communist view.
Akbar Rasulov, A Marxism for International Law: A New Agenda, European Journal of International Law, Volume 29, Issue 2, May 2018, Pages 631–655, Marxism for International Law: A New Agenda
Deepak, J. Sai. India That Is Bharat: Coloniality, Civilisation, Constitution. Bloomsbury, 2021.
Morris, Ian. War! What Is It Good For?: The Role of Conflict in Civilisation, from Primates to Robots. Profile Books, 2015.
O’Connell, D. P. “The Role of International Law.” Daedalus, vol. 95, no. 2, The MIT Press, 1966, pp. 627–43, The Role of International Law on JSTOR.
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