The twentieth century was a period of rapid and momentous global change when compared to the earlier pace of social, political and technological innovations. At its incipience, there was no airplanes or global organizations. The First World War which spanned the periods 1914-1919 undermined the foundation of European civilization. Law reflects the conditions and cultural traditions of the society within which it operates. Since nation states constitute the society of which law (albeit International Law) must operate, it then means that International Law must reflect the ethics and values of that era. Against the background that the old
39 Ibid.
33 anarchic system had failed, it was felt that a new system and new institutions to preserve and secure world peace based on multi-lateral peace treaty was necessary. Thus, entered the 1919 Peace Treaty which established the League of Nations. However, the absence of U.S.A. and U.S.S.R. made the League of Nations an essentially European institution. Its impact in maintaining international peace was tasked when Japan invaded China in 1931 and Italy attacked Ethiopia in 1933. However, it recorded successes in certain aspects of International Law like the creation of the P.C.I.J. which became the forerunner to the present I.C.J. and other international institutions whose work have greatly impacted on the development of International Law. The minority protection guaranteed by the League it has been opined40 paved the way for later concern to secure human rights.
The failure of the League to avert the Second World War (1939-1945) eventually led to the establishment of the United Nations in 1946 and with it the vibrancy of International Law in inter-state relations. This was an era where principles and ideologies seemingly clashed thus leaving International Law with the arduous task of distilling the appropriate legal approach to the various states ideological posturing. Thus, on one hand, we have states of the communists bent whose view of law (albeit International Law) differed from the Western concept. On the other hand, we have the Third World Countries which was made up of the colonized countries and who on gaining independence found out that they have to play by rules already set by their colonizers. Leveraging on these cleavages became the forte of International Law during this century. Against the backdrop of the foregone, it might be necessary to briefly discuss the impact or otherwise of these groups to the International Law of the twentieth century.
40 Ibid. pp. 30-31.
34 (A) The Communist Approaches to International Law
The discussion on the communist approach to International Law during the twentieth century is basically a discussion on the defunct Soviet Union‘s attitude as exemplified by Soviet Writers. The underlying principle of the Soviet Union was the Marxist philosophy.
A major theme of the Marxist philosophy is that economics is the determining force in society whilst law and political institutions are merely the superstructure, reflecting the will of the ruling class.41 If this thesis is followed to its logical conclusion, the imagination that readily comes to mind becomes that there could be no International Law of universal validity since there are different ruling classes in different states. Moreover, it was envisaged that law and the state would wither away in the ensuing revolution to usher in a new, non-exploitative form of society. A’priori, classical International Law, being founded upon the state would also wither.42
However, the realities of power and the existence of the capitalist countries led to the suggestion that there exist two systems of International Law, to wit: one applying to the capitalist states and the other applying between capitalist states and socialist states. However, as from the 1920s, this view was discarded in favour of only one system of International Law which reflects the coincidence or compromise of interests between different ruling classes in different states. This shift was also to affect Soviet view of International Law as the aggregate of norms which are created by agreement between states of different social systems, reflect the concordance wills of states and have a generally democratic character, regulate relations between them in the process of struggle and co-operation in the direction of ensuring peace and peaceful co-existence and freedom and independence of peoples and are secured when
41 M Akehurst, op. cit. p. 28.
42 M N Shaw, op. cit. p. 31.
35 necessary by coercion effectuated by states individually or collectively.‖43 A striking characteristic of communist thinking about International Law is the stress on sovereignty and the pre-eminence of the state. The reliance on state sovereignty is a natural defensive reaction to protect the communist states in a predominantly capitalist environment. However, as Shaw opined, this concept together with that of territorial integrity became attractive to the developing nations of the third world, anxious to establish their own national identities and counteract Western financial and cultural influences.44
The decline of the cold war and the onset of perestroika in the Soviet Union led to a re-evaluation in the field of international legal theory.45 Global interdependence and the necessity of international co-operation were emphasized. Ascendancy was given to the priority of universal human values and the resolution of global problems which was ineluctably linked to the growing importance of International Law.
(B) The Third World
Since after the Second World War, one of the major events that has impacted much on the evolution of international affairs has been the dismemberment of the colonial empires and the emergence of scores of new states in the so-called third world. They do not form a bloc in the real sense and is not bound by any common ideology.
During the cold war era, their governments vary from the far right to the extreme left of the political divide.46 They carry with them a legacy of bitterness over their past status as well as a host of problems relating to their social, economic and political development.47 Given the
43 G I Tunkin, Theory of International Law, p. 251 cited by Shaw, Ibid at p. 33.
44 M N Shaw, Ibid. p. 35.
45 Ibid.
46 M Akehurst, op. cit.. p.32.
47 Shaw, op. cit. p. 38; R P Anand, ―Attitude of the Afro-Asian states Towards Certain Problems of International Law,‖ 15 ICLQ, 1966. P. 35.
36 aforementioned circumstances, it becomes inevitable that they will resent certain structures and doctrines of International Law.
International Law of the nineteenth century was basically Eurocentric and thus did not reflect the needs and interests of the newly independent states of the mid and late twentieth century.
There was the general feeling that the International Law rules of the nineteenth century encouraged and also reflected their subjugation. It needs emphasizing at this juncture that it was not all rules of International Law existing before independence that is the subject of attack. It is only those rules that go against their interests. Thus certain underlying concepts of International Law like sovereignty and equality of states; the principles of non-aggression and non-intervention have not been done away with. To do so would mean rejecting many rules which operate to their advantage in their quest for security within the bounds of a commonly accepted legal framework. Against the backdrop of the rules relating to the composition of the International Court of Justice,48 the security council,49 the voting pattern at the U.N. General Assembly,50 we cannot but agree with Shaw when he posits that ―while this new internationalization of International Law that has occurred in the last fifty years has destroyed its European-based homogeneity, it has emphasized its universalist scope.‖51 The impact of these groups of states in shaping the content of International Law of the twentieth century can be gleaned from the scope and contents of the various resolutions and declarations emanating from the U.N. General Assembly wherein they constitute the vast majority of the 198 member states.
48 Article 9 of the Statutes of the ICJ provides that the main forms of civilization and the principal legal systems of the world must be represented within the court.
49 In furtherance of Article 23 of the U.N. Charter which deals with the composition of the membership of the Security Council, there is an arrangement that of the ten non-permanent seats in the council, five should go to the Afro-Asian states and two to the Latin American states while the remaining goes to Europe and other states..
50 Article 18(1) of the U.N. Charter provides that each member is entitled to one vote while Article 18(2) provides that decisions of the General Assembly on important questions shall be made by two thirds majority of members present and voting.
51 Shaw, op. cit. at p.39.
37 For example, the 1960 General Assembly Resolution 1514 (xv) titled ―The Declaration On The Granting Of Independence To Colonial Countries And Peoples‖ which was adopted by eighty-nine votes to none, with nine abstentions, enshrined the right of colonies to obtain their independence with the least possible delay as well as calling for the recognition of the principle of self-determination is generally regarded as a settled rule of International Law.52 Resolutions such as 1514 (xv) above symbolizes the rise of the post-colonial states and the continuing effect they have been having on the development of International Law since the second half of the twentieth century to the present.53