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Tuesday, 5 May 2020

Jorge E. Viñuales holds the Harold Samuel Chair at Cambridge and is a Fellow of the Lauterpacht Centre. He is also the Special Rapporteur of the Commission on Distributive Justice newly established by the Institut de Droit International. The analogy with Neruda’s writings is borrowed from the editorial ‘How We Forget’ (2018) 564 Nature 162.

This short piece draws upon a forthcoming volume edited by the author: J. E. Viñuales (ed.), The UN Friendly Relations Declaration at 50. An Assessment of the Fundamental Principles of International Law (Cambridge University Press, forthcoming in September 2020): https://www.cambridge.org/core/books/un-friendly-relations-declaration-at-50/68E3409244E53881A0AB2BA8FB154788

 


In the middle of a crisis, and of confinement, one is naturally drawn either to keep focussed on (very) short term events or to daydream about the very longue durée. Between these two extremes of the ‘micro’ and the ‘macro’, there is a sizeable ‘mesoscopic’ timescale, and within it a specific decade that we, international lawyers, have all but forgotten.

Yet, those who experienced first-hand the decade from 1960 to 1970 and the transformation that the international society and its law underwent during that decade, will often recall younger generations that such was the time when the foundational principles of international law were truly reconceptualised and re-appropriated by a genuinely global international society of States, including numerous developing and newly independent States emerging from decolonisation.

It was during this decade that the law of treaties was mainly crafted, introducing the possibility of a normative hierarchy (peremptory norms) in international law. It was also during this decade that the codification of the law of State responsibility fundamentally changed course from a narrow focus on the protection of aliens abroad to one admitting breaches of any ‘primary norm’, including fundamental principles. The 1960s also saw the consolidation of the international law of human rights, with the adoption of the two 1966 Covenants, and the beginnings of the international law of development as well as of environmental protection, among many other important achievements and impulsions. And last but absolutely not least, throughout this decade, what became the Friendly Relations Declaration (FRD) was negotiated and adopted by consensus, in a symbolically remarkable re-enactment of the principles and purposes of the UN Charter held at its 25th anniversary, in 1970.

This critical juncture in the development of the international legal order is rarely given much thought, or at least explicit attention, in the contemporary literature on international law. The FRD itself sounds as an exotic instrument to many today, despite its decisive and enduring role in both the foundations of the current system and the development of the case-law. There may be several reasons for such lacuna, including the tendency to take for granted such principles, the excessive focus on ‘branch-based’ specialisation, the now receding but once influential impression of fragmentation, or the way we, as keepers and transmitters of international law as a cultural object, have packed it into branches, which then provide the basis for academic positions, journals, practice areas, courses and teaching programmes. But what matters most is that the process underlying this lacuna is far from innocuous. I would like to venture a few of its possible implications.

One conspicuous implication is the fact that generalist international lawyers have become an endangered species. This observation is more than simple nostalgia of my teachers and my student days. The resulting inability to think systemically, to see the big picture, has paved the way for sometimes striking anomalies at the level of specialised ‘branches’ (e.g. certain expressions of State sovereignty, e.g. the policy powers doctrine, seen as ‘exceptions’; certain standards in commercial treaties being seen as human rights; certain primary norms in treaties in forces being treated as non-binding, etc.). But, of course, reasonable minds may disagree as to what constitutes an anomaly. Let me then mention another implication, which is particularly striking for someone who practices international law, namely the tendency to limit the ‘framing’ of a real-life problem to the artificial confines of a ‘branch’ rather than encompassing the wider body of rules (whatever the branch) which may be relevant to it. This could be called the inability to think out of the (branch) box. Yet another implication is (futile) competition between specialisations, with some deemed more ‘important’ or ‘desirable’ than others. I avoid examples to avoid distracting controversies, which I keep for my last consequence. Indeed, possibly the most controversial consequence is the erosion of the normative pull of the fundamental principles of international law.

Let me explain this point by introducing a digression. ‘Love is so short, and forgetting is so long’, wrote Chilean poet Pablo Neruda in one of his most memorable works. This fact of life, however discomforting to those who face it, harbours some hope when applied to ideals and possibly to their expression through principles. An intriguing study of how the collective memory of ‘cultural objects’ – the continued and shared attention to events and people – evolves over time suggests that this process follows two different phases [see C Candia et al, ‘The Universal Decay of Collective Memory and Attention’ (2019) 3 Nature Human Behaviour 82–91]. Once attention to a cultural object has reached its peak, there is first a rapid and steep decline but, at some point, the slope becomes less and less steep and settles in a slow and gentle declining trajectory over a period of decades. This trajectory, which describes objects as diverse as academic papers (in physics), songs, films and even celebrity, is explained by the different nature of the phenomena driving attention. The surge in attention to a cultural object and the subsequent sudden decline is driven by ‘communicative memory’, namely contemporary human interactions (direct ‘word of mouth’ communication of information among contemporaneous actors). This driver of collective memory is powerful but short-lived. Instead, the slower and gentler decline in attention of the second phase is driven by ‘cultural memory’ – that is, the recording of information through a range of means or, in other words, the penetration of the cultural object in more stable written or physical supports and cultural strata. This trajectory of collective memory decay is largely but not universally applicable to all cultural objects.

Returning to my focus, a tentative parallel can be made between those cultural objects and ‘normative events’, such as a statement of principles. This parallel could provide an intuitive explanation of why certain subjects, topics or questions attract high levels of attention in international legal circles for a short period of time and then slowly fade away, their subsequent existence being dictated by the extent to which they have (or have not) been recorded in more stable supports, such as writings, textbooks, curricula, areas of practice in governmental, non-governmental and private institutions, and the like.

The parallel also suggests a curious and unexpected manner of bringing together historical, including critical, and positivistic accounts of international law as complementing accounts of collective memory decay, with the latter accounts focusing on the consolidation of the second phase (cultural memory) and the former ones revisiting the ‘genealogy’ of the first phase (communicative memory) to deconstruct the second.

The process leading to the adoption of the FRD attracted, quite understandably, substantial attention in the 1960s and the 1970s. In 1972, two sets of Hague Lectures were devoted to the principles of the Declaration in the same year and volume, which is highly exceptional. The works published during this period were, in most cases, authored by those who, in a senior or junior capacity, were involved in the Special Committee which drafted the FRD. This observation would render plausible the hypothesis of a rise in interest in the Declaration not only as result of the stakes underlying the process but also of the amplification provided by the interplay of communicative memory – that is, the very exchanges and debates within international law circles (academic and diplomatic) of those years. Thereafter, attention declined, first steeply and then following a slower and gentler declining trajectory, interrupted by some major restatements of the value of the FRD, mainly the reliance of the ICJ in its 1986 judgment in the Nicaragua case and, of course, the new dawn offered by end of the Cold War.

Since then, the FRD has largely dropped out of sight, almost gone missing, from the writings and teachings of international law scholars, even from textbooks, with the notable exception of the debate over the ‘constitutionalisation’ of international law. Most principles have received individually significant attention, and the FRD as such is referenced – often in passing – in major international law textbooks. Yet, interest in it as the synthesis instrument marking the re-appropriation of the fundamental principles of international law by the then much wider international society of States has all but waned.

From the perspective of how international law is studied, understood and taught, something more than the FRD has been lost: namely a general or ‘generalist’ perspective of international law, a ‘big picture’ of the interrelations across values and their legal expression in legal norms and processes. For someone sceptical about the trend towards extreme and narrow specialisation, who benefited from the teachings of generalists, the FRD is more than a mere resolution or codification statement. It is an attempt at agreeing on and synthesising the foundations of the rules-based international order. Thus, the decay of the collective memory of the FRD is, in many ways, the passive acceptance of a false impossibility, namely that in a context characterised by increasing specialisation, it is no longer possible or useful to be a generalist international lawyer.

A return to the study of the fundamental principles of international law is, in my mind, a tactical step to explore a more integrative view of a rules-based international order. It is integrative because it attempts to bring together, in an articulate manner, the main technical and intellectual traditions of international law as well as to provide a substantive common ground for the integration of specialised knowledge into a general account of international law. The goal, whether it may be qualified as intellectually- or policy-driven, is to bring the study of fundamental principles back to the centre stage of international legal education and, thereby, to refresh or restage our collective memory of why those principles emerged, why they were felt as pressing needs, why we attached so much value to their enactment and placed so much hope in them.

We are entering a phase where the common normative foundations of the international legal order are again contested. Our focus must therefore move away from our habits of specialisation and technical dexterity in narrow issues, comfortably sitting on the post-1990 normative consensus, and confront again the normative choices that serve as the foundations of the international legal order; not to thoughtlessly challenge every normative foundation, but to lucidly rebuild a more acceptable synthesis.


This blog was first published for EJIL-Talk! - 23 April 2020