STUDIES IN INTERNATIONAL LAW AND HISTORY AN ASIAN PERSPECTIVE

Developments in International Law

VOLUME49

R.P. ANAND

Studies in International Law and History

An Asian Perspective

SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.

A C.I.P. Catalogue record for this book is available from the Library ofCongress.

Pnnted on acid-frec paper.

ISBN 978-90-04-13859-9 ISBN 978-94-017-5600-6 (eBook) DOI 10.1007/978-94-017-5600-6 © 2004 R.P. Anand Originally published by Martinus NijhoffPublishers in 2004 Softcover reprint ofthe hardcover 1st edition 2004

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To

My Students

For

Their Love and Affection

R.P. Anand

Professor Emeritus at present in the Division of International Legal Studies of the Jawaharlal Nehru University in New Delhi, India, Professor Anand retired from the University in 1998 after serving there for nearly 33 years as Professor and Head of that Division. Anand is a well-known scholar in the field of International Law and widely recognized as a spokesman of the Third World views on the subject. Member of the prestigious lnstiut de Droit International, Professor Anand has been recipient of a number of awards and honours m the field, Visiting Professor or Scholar in several universittes and institutes of higher learning in the United States and Europe, Lecturer at the Hague Academy of International Law, U.G.C. National Lecturer in Law in India, and has served as Legal Consultant to the UN Secretary-General on Law of the Sea. Author or Editor of 18 books, Professor Anand has published more than one hundred articles in professional journals in Canada, Europe, India, Japan, and the United States.

By the Same Author

BOOKS

New Law of the Sea: Emergent Norms and Institutions, Lectures delivered at the Institute of International Public Law and International relations, Aristotle University, Thessaloniki, Greece 1996;

The United Nations and the Gu(f Crisis (Published under the auspices of the International Legal Studies Division of the Jawaharlal Nehru University) (New Delhi, 1994);

South Asia: In Search of a Regional Identity (Banyan Publications, New Delhi, 1991).

Col!fimitation or Co-operation: International Law and the Developing Countries (Banyan Publications, New Delhi; Martinus Nijhoff. The Hague, 1987), pp. 267.

Sovereign Equality of States in International Law, Lectures at the Hague Academy of International Law (Extract from Recueil des Cours, vol. 197, 1986-III 9 Martin us N ijhoft~ The Hague, 1986.

Origin and Development of the Law of the Sea: History of International Law Revisited (Martinus Nijhoff, The Hague, 1983), pp. 287,

International Courts and Contemporary Conflicts (Published under the auspices of the Indian School of International Studies) (Asia Publishing House, New York, London, Bombay 1974), pp. 479.

Ne-w States and International Law, Lectures delivered under the University Grants Commission's National Lecturership scheme) (Vikas Publications, Delhi, 1972), pp. 119.

Studies in International AdJudication (Vikas Publications, Delhi: Oceana Publications, Dobbs Ferry, N.Y. 1969), pp. 298.

Compulsm:v Jurisdiction (~f the International Court of Justice (Published under the auspices of the Indian School of International Studies) (Asia Publishii1g House, New York, London, Bombay, 1961) pp. 342.

Salient Documents in International Law (Editor), (New Delhi, 1994).

Recent Developments in Civil Aviation in India (Co-editor) (Lacers Books, New Delhi, 1987).

viii By the Same Au

Lall'. Science and Environment (Co-editor) (Lancers Books, New D1 1987).

ASEAN; Identity, Development and Change (Co-editor) (Published u the auspices of the University of Philippines Law Center and East-1

Center Culture Learning Institute, Honolulu, Hawaii) (Quezon City, IS pp.411.

Cultural .fclctors in International Relations (Editor) (Published unde1 auspices of the East-West Center Culture Learning Institute. Hono Hawaii) (Abhinav Publications, New Delhi, 1981), pp. 291.

Law of the Sea: Caracas and Beyond (Editor) (Radiant Publishers, Dellu, 1978 ), pp. 380.

Asian States and the Development of a Universal International Law (E1 (Vikas Publications, New Delhi, 1972), pp. 245.

Contents

Preface

1. Jawaharlal Nehru and Intemational Law and Relations

2. Family of "Civilized" States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation

3. The Status of Tibet in Intemational Law

4. Enhancing the Acceptability of Compulsory Procedures of International Dispute Settlement

5. The World Court on Trial

6. Conm10n Heritage of Mankind: Mutilation of an Ideal

7. Navigation through Territorial Sea and Straits-Revisited

8. South Asia and the Law of the Sea: Problems and Prospects

9. A New International Economic Order for Sustainable Development?

Index

Preface

International law is understood to be a law applicable among all the states in equal measure in their relations with each other. It is generally defined "as the body of rules which are legally binding on states in their intercourse with each other."' It is "composed for its greater part of the principles and rules of conduct which states feel bound to observe, and therefore, do observe in their relations with each other. "2 It is defined and described by scholars and statesmen alike as a l~w which makes no distinction between nations, large or small, east or west, north or south. As Oppenheim, in its latest edition, declares: "International law does not recognize any distinctions in the membership of the international community based on religious, geographical or cultural differences. "3 Moreover, sovereign equality of states is a well-recognized and fundamental principle of international law which is said to be "absolute" and "unquestionable".4 Proclaiming its faith "in the equal rights of men and women and nations large and small", the Charter of the United Nations clearly and boldly declares in Article 2, paragrah 1, that "the Organization is based on tr.e principle of sovereign equality of all its Members."

But although modem international law is now recognized as universally applicable to all the states and all new entities, as soon as they emerge as independent states, whether members of the United Nations or not, are accepted as members of the ever-expanding international society and are bound by its rules and seek its protection, this is only a recent phenomenon not older than the United Nations itself. Before that modem international law was supposed to be merely a product of the Western European Christian states, or states of European origin, and applicable only between them. As Oppenheim points out:

"The old Christian states of Western Europe constituted the original international community within which international law grew up gradually through custom and treaty. Whenever a new Christ1an state made its appearance in Europe, it was

1 Oppenheim:\· International Law, vol. I, Peace (Edited by Sir Robert Jennings and Sir Arthur Watts), 9th editon (London, 1997), p. 4.

2 Starke.\· International Law. Eleventh Edition by I. A. Shearer (London, 1994), pp. I 04-105 .

.. Oppenheim, note I, p. 87. 4 See R.P. Anand, "Sovereign Equalt1y of States in International Law", Recueil

des Cours, Vol. 197 ( 1986-11), p. 53.

xii Preface

received into the existing European community of states. But, during its formative penod. th1s international law was confined to those states. In former times European states had only very limited intercourse with states outside Europe, and even that was not always regarded as being governed· by the same rules of international conduct as prevailed between European states."5

Gradually, as Oppenheim goes on to explain, the international community expanded by the inclusion of Christian states outside Europe, such as the United States, which became independent in 1776, and later by inclusion of non-Christian states, like Turkey, which was admitted as a member of the international community by the Peace Treaty of Paris in 1856. But "there were numerous states outside the international community" and "international law was not as such regarded as containing rules concerning relations with such states, although it was accepted that those relations should be regulated by the principles of morality."6 As late as the First World War, we are told, "the .position of such states as Persia, Siam, China, Abyssinia, and the like was to some extent anomalous". Although there was considerable international intercourse between these states and states of Western civilization - treaties had been concluded, full diplomatic relations had been established, China, Japan, Persia and Siam, had even taken part in the Hague Peace Conferences-, since they belonged to "ancient but different civilizations there was a question how far relations with their governments could usefully be based upon the rules of international society. "7

As we study and look at international law from historical perspective, especially in the context of the role of Asian and even African countries in its origin and development, there are several questions which have been raised but not satisfactorily answered. After the fifteenth century, Europeans went to Asian countries for their own needs and developed not only active trade and commercial relations, but intimate political relations as well with these independent Asian communities, especially in India and the East Indies. What rules of inter-state conduct applied between these European countries and Asian states? Without some common rules of international law, Europeans could not have survived in Asian countries. And if some rules of international law and comity did apply between them and their relations, a question may be raised if these rules had no influence whatsoever on the emerging mternational law among European countries during this period?

After a few centuries of trade, conunercial and political relations, European countries defeated Asian rulers and became dominant. Most of the European mternational lawyers talk about the development of international law without any reference to Asian states or their role in its development. There are a few further questiOns which need answers. When did European international

'Oppenheim, note I. pp. 87-88. '' Oppenhem1, 1bid, p. 88. 'Oppenheim, ib1d, p. 89.

Preface xiii

law become universally binding? Can states which did not, could not, were not permitted to, participate in its origin and development question some of its rules which are inimical to their interests or very survival? How can and does this law change, or be modified, in the absence of any supra-national legislature or other authority? Has the present system of international law, which was nothing but European law writ large until the Second World War, changed or is changing from the European law of nations to a common law of mankind?

We have tried to deal with, though not satisfactorily an~wer, some of these questions in the following nine papers published at different times. As we shall see, despite the Eurocentric nature of contemporary international law, which was developed largely by and for the benefit of the rich, industrial and powerful states of Western Europe and the United States, newly­independent states and new members of the international society have never questioned or denied the binding force of international law and they accept a large part of it without any question. Certain differences with the Western Powers in regard to codification and progressive development of international law should not be understood as rejection of the present system. They only indicate conflicts of interests between the developed and the developing states and attempts on the part of the latter to exert their influence in refonnulation of international law. We shall see that their attitude towards international law has been respectful rather than disdainful. They have used principles of international law for or against their international claims, with an underlying assumption that these principles are binding. They have submitted their disputes to international arbitration or the International Court of Justice which are bound to apply international legal rules. Far from rejecting the tenets of international law, most of the new states of Asia and Africa claim to be scrupulous adherents of those principles and are quite conservative and traditionalist in their approach.

I am grateful to the editors and publishers of the following journals and books for pem1ission to include them in this book:

I. "Jawaharlat Nehru and International Law", Indian Journal of International Law, Vol. 42, No. 1 (January-March, 2002), pp. 5-29.

2. "Family of 'Civilized' States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation", Journal of the History of International Law (Kluwer Law International), Vol. 5 (2003), pp. 1-75.

3. "Status of Tibet in International Law", International Studies (New Delhi) (April, 1969), pp. 401-445.

4. "Enhancing the Effectiveness of Compulsory Procedures of International Dispute Settlement" , Paper presented at the Inauguration of the Law of the Sea Tribunal at Hamburg, Germany, September 14, 2000. Max Planck Yearbook of" United Nations Law, Volume 5 (200 1 ), pp. 1-20.( Kluwer Law International The Hague, The Netherlands.)

xiv Preface

5. "The World Court on Trial" in R.S. Pathak and R.P. Dhokalia, International Law in Transition: Essays in Honour ofJudge Nagendra Singh) Lancers Books New De(hi in Cooperation with Martinus Nijhoff, Dordrecht, 1992), pp. :!45-66.

6. "Common Heritage of Mankind: Mutilation of an Ideal", Indian Journal of'!ntemational Law, Vol. 37, No. 1., (January -March 1997), pp. 1-18.

7. "Navigation through Territorial Sea and Straits" Indian Journal of international Law, Vol. 36, no. 4 (October- December, 1996), pp. 13-38.

8. "South Asia and the Law of the Sea: Problems and Prospects" in Thomas A. Mensah (editor), Ocean Governance: Strategies and Approaches for the 21'1 Century (Law of the Sea Institute, Honolulu, Hawaii, 1996), pp. 331-353.

9. "'A New International Economic Order for Sustainable Development?, Najeeb Al-Nauimi and R. Meese (Editors) Proceedings of the International Conference on Sustainable Development held under the auspices of the Asian African Legal Consultative Committee in Doha (Qatar) (1995) pp.l209-1247

Though one of the papers is rather old, we feel that it has not lost its relevance. Some papers overlap each other, but we have left them as they were published originally to maintain their integrity.

I am grateful to Mr. S. Kumar of Lancers Books for taking the onerous responsibility of publishing the book.

Last, but not least, I must thank my wife for her confidence, continued support and encouragement.

R.P. ANAND