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Intergenerational Reflections on International Law: An Essay from Pierre Marie Dupuy

Published on January 31, 2020        Author: 

 

The international legal system established in 1945 can be seen, in its very design, as an incarnation of western rationalism.  Like that rationalism, it implicitly embodies a certain ideology of progress. In terms of its philosophical underpinnings, it would seem to be heir to the philosophy of the Enlightenment and the Aufkärung despite the fact that a number of its most influential advocates came from countries closer to Anglo-Saxon utilitarianism than to Kantian constitutionalism. This immediately poses a question therefore: could this set of norms claim in the long term to be truly universal in scope ?

Despite the ideological neutrality traditionally professed by the proponents of legal positivism, contemporary international law is founded on a particular western tradition. That tradition is itself based on the belief that subordinating the conduct of States to a common law of nations, recognised by all as valid and legitimate, will progressively bring about a gradual move away from if not ultimately a renunciation of any recourse to force.  Kant seems to be its most inspired prophet in that regard, in particular in his essay Perpetual Peace which seeks precisely to lay the foundations of a true legal cosmopolitanism, propounded in the name of all peoples. Kant remains moreover one of the crucial inspirations behind a shift away from metaphysics, in particular in terms of his philosophy of knowledge. Nevertheless, the project for perpetual peace he inspires, itself has a prophetic dimension found again in the Charter of the United Nations: that instrument, proclaimed in the name of “the peoples of the United Nations determined to save succeeding generations from the scourge of war … and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person …,” presents itself as a Promise.  It is an ideal purpose assigned to the community of peoples, implicitly founded on the sediments laid down in the collective conscience by a particular tradition, one which is primarily Christian but also discernible in other monotheistic systems.

At the same time, the text adopted in San Francisco in 1945 took the risk of claiming to be valid here and now, that is to say, from entry into force of the law which the Charter of the United Nations represents, ideally affirmed as a universal constitution in the Kantian sense updated in that regard by Habermas. There is therefore in any event a tension and a temporal contradiction between the law and the promise or, to put it another way, between the time needed to bring the project to fruition and the immediacy it claims.

The rationale behind this wish not to stop but to stabilise history by subjecting it permanently to the reign of reason has much to do with the horror, albeit in the beginning partly underestimated, of the Holocaust. Never again! We cannot go backwards without the risk that the unthinkable which nevertheless came true will happen again. This Promise is therefore also founded on a turning back, turning back Barbarism, which the Second World War had just shown could reach previously unparalleled dimensions, even in one of the countries which had contributed most to western humanist philosophy.

A “directional predication”, to borrow an expression from Alain Badiou, the Charter not only announced a new era but affirmed a rupture, a new departure in the history of peoples and their States at the same time as it enshrined a universal dimension of the human person (prefiguring the emergence of humanity as a subject of international law, which appeared gradually from the 1970s). It is in that aspect that we must look for its constructive value which would lead Habermas to conclude that it is constitutional, a term admissible in particular admissible when used metaphorically.

There were many who from the outset have thought that the project enshrined in the Charter was merely an unattainable ideal. Nevertheless, in the first decades, the myth of progress applied to the law if not always to international relations could more or less give the impression that it was working. Admittedly, the Cold War brought back tensions, but at the same time it kept out of direct conflicts, at least among the permanent members of the Security Council. The Security Council, it must be said, remained paralysed for most of its life, but it was in certain, especially normative, respects, beneficially replaced by the dramatic rise of the General Assembly taken as a World Forum, at least until the mid-1980s. The “outlawry of war” movement  had crumbled, but official recognition by all parties of the fundamental legitimacy of the principle of the renunciation of force in international relations, enshrined in Article 2.4 of the Charter, nevertheless remained in place. The right of the “international community as a whole” took over from claims for the “right to development”, the new incarnation of the right of peoples. There was a growing impression, then, at least after the Cuban missile crisis (1963), that albeit not ruling out all danger of war, the Charter, supplemented by the United Nations Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), gave all parties a renewed basis for “peaceful coexistence” and even more “cardinal” and “intransgressible” principles, as the International Court of Justice would call them in 1986 and ten years later.

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