The Thought of Georges Scelle

II. The Current Relevance of Georges Scelle's Legal Thought

As already noted, numerous lawyers, although influenced by Scelle's thought, have moved closer to the thought of Anzilotti than to that of the author of the Précis du droit des gens. This reaction was directly brought about by the course of international relations and the apparent evolution of international law after the Second World War. But other aspects of international relations and of the law governing them, clearly demonstrate the element of truth which Scelle's thought contains.

A. Scelle's Thought in Question

Scelle's thought has been harshly challenged. Over the last forty years, conflicting sides of international relations have made an impression on the minds of political scientists, lawyers and of people much more than has the progress of solidarities.

The Cold War, arising from the division of the world into hostile and, it seemed, irreconcilable blocks; the Middle East conflict; the wars of decolonization; the pressure exercised by Third World states in the General Assembly of the United Nations; and the fear, no doubt exaggerated, of the dangers threatening the interests and values of the West have all lent credibility to a view of international relations based on the concept of "power relations." It is this view which, in the tradition of Hobbes and Machiavelli, has been given coherence by Hans Morgenthau in the United States and by Raymond Aron in France. The views of these authors seem to have imposed themselves with the force of evidence and have formed a dominant theory which has hardly any opposition.

Most of the strands of this dominant theory are directly opposed to Scelle's concepts. For example, "the heterogeneity of international society", which means that nations are foreign to each other and are not brought closer by common interests based on similarity or division of work is at complete odds with Scellism. Similarly, the "anarchic character" of international society, and the "juxtaposition of states" contradict the place given in Scelle's writings to institutional and normative federalism. In the same vein, commonplaces which make up the bulk of political thought, such as states' "sacred egoism" or their being "cold monsters" hardly sit comfortably with Scelle's ideas of the "ecumenical community" and his theory that governments, by virtue of "role splitting" act on behalf of this community. In works written from the "power relations" perspective, the use of armed force is given a predominant role. In fact, according to Aron, discretionary use of force is the distinguishing feature of international relations. This notion and other elements of the power relations theory also conflict with the Scellian denial of the specificity of the international legal order. Finally, all international relations theories based on the concept of power relations tend to minimize the role of international law - a law that Raymond Aron held in very low esteem. At best, when its legality is not challenged, international law appears as a means, a tool of power politics. This is far from the sovereignty of law put forward by Scelle!

The realist view of international relations has rejected Scelle's ideas as has, it appears, the evolution of international law. The role played by sovereignty has been the decisive factor in this process. Far from fading or withering away, the concept of sovereignty has enjoyed the highest favour since the Second World War. Positive law has attached great importance to it. The United Nations Organization was founded on the sovereign equality of its members, and this is one of the fundamental principles proclaimed by Resolution 2625 (XXV) on Friendly Relations. Sovereignty is present in every major convention on the law of treaties, on the law of diplomatic and consular relations, and on the law of the sea wrought out by the United Nations, and by other organizations working under its auspices, during the last forty years. Contrary to the hopes of Georges Scelle, colonial countries, far from integrating themselves in federal structures with the former home country, have chosen sovereignty which, even though illusory, symbolizes a break in the domination that, in their eyes, colonialism entailed.

As for "legal policies" or governmental doctrines, most have been more or less based on the concept of sovereignty, the major principle behind the system of coexistence according to socialist countries, as well as the weapon of new states against neocolonialism. The western powers also invoke the principle of sovereignty in order to contain the power of the United Nations General Assembly to interpret its Charter, or to limit the authority of resolutions. At that level, the French record is especially noteworthy.

Thus the Scellian trial of sovereignty and, even more, the Scellian denial of the legal personality of the state, appear at odds with the trend in the evolution of international law. It can be argued in this respect that Scelle failed to recognize the strength of similarity of common interests ("solidarité par similitude"), which is the basis of national and collective exclusivity, and that he exaggerated the strength of solidarity based on the "division of labour" (solidarité par "division du travail").

Moreover, Scelle put too much emphasis on solidarity in social reality. These two concepts, as has been said already, are identical in Scelle's thought; social reality ("le fait social") is nothing other than common interest ("solidarité"). Social reality, however, has more than one dimension; it also involves conflict and hostility. Indeed, at certain times the predominant feature of social reality is conflict. This was the case immediately after the Second World War, when the international community was both wider and fiercely divided. This is why it was natural, even in the Scellian perspective where law proceeds from social reality, for sovereignty to win so much favour assuming that conflicts are regarded as a part of social reality.

Thus Scellism lost its appeal during the Cold War, when conspicuous hostility masked the reality of solidarity and legal practice was essentially in agreement with a voluntarist view of law. Machiavellian and voluntarist thought are, however, no less unidimensional than Scellian universalism.

B. The Accuracy of Scelle's Vision

As Professor René-Jean Dupuy shows in convincing fashion, the strategist (Machiavellian) view of international relations is no less limited than the harmonist view. "The harmonists", he writes, "look forward to a brotherly community which possibly will never exist. The strategists, on the other hand, err in thinking that a community generally implies an absence of conflict. They are unable to see that conflict and community are not wholly incompatible. In fact, rather, they go together. Not only is it possible for there to be community and conflict, one might say that one implies the other."³¹

This dialectical and reasonable view is fully supported by history. Apart from the extreme cases of all-out war, in most situations involving conflict the antagonists share some common interests. For example, during the Cold War, the United States and the Soviet Union were able to agree on partial nuclear test bans and on a non-proliferation treaty. Similarly, solidarity relations in the European Community and the Western World could not subsist without incessant negotiations. Even if there are spells when law regresses, as Scelle noted in 1933, there are others when law progresses, and it might be thought that, with the changes in the Soviet Union and, it may be hoped, the end of the Cold War, we are now living in one of these.

It may therefore be argued that Scellism reflects the whole of one side of international law, the sunny side. Hence, some branches of international law are more Scellian than others. This is the case with the law of international development, which cannot be conceived without a degree of solidarity between developed and developing countries. It is also true of environmental law and of the protection of human rights, where legal rules cannot be founded on reciprocity and there is therefore no room for the clause "non adimpleti", as can be seen in Article 60 para. 5 of the Vienna Convention on the Law of Treaties.

But the division between laws which translate power relations and those which correspond to common interests in reality affects all branches of international law. In this respect, the evolution of the law of the sea is remarkable. If the extension of sovereignty, or of sovereign rights of states bordering on large expanses of sea, sanctioned in the main provisions of the 1982 Convention, bears witness to the progress of anti-Scellian, sea-faring nationalism, other provisions, by contrast, correspond to common interests. The measures related to the safety of navigation, to the preservation of the sea's natural resources, and to the protection of the environment are more significant than those which deal with the sea bed and with the implementation of the concept of the "common heritage of mankind." Without doubt, this principle invoked to prohibit the exercise of sovereignty over the sea bed is a Scellian concept; but Section XI of the 1982 Convention, which governs its application, illustrates well how a concept can be ill-used. The common heritage, in effect, serves a bureaucratic project dedicated to inefficiency, one which may not be of any help to the interests of developing countries, nor to those of industrial countries. Nevertheless, the accuracy of Scelle's vision appears when exploring two areas of development. First, it is worthwhile trying to identify the role of social reality and thus of common interests in recent developments in international law. Second, it is worthwhile identifying the role of truly universal rules in present-day international law.

In order to discover the role social reality plays in the development of law it should be possible, by studying history, to identify social developments which precede and determine judicial constructs. Two fields seem ripe for study. The first is that of European Community law. It appears that the development of common interests between France and West Germany, pursued through commercial exchanges and investments, preceded the major stages of progress in Community law. It may also be suggested that the reluctance of certain governments, those anxious to preserve sovereignty, and thus unanimous voting in the Council of Ministers, was overcome, in the final analysis, by the dynamic of European social reality. In any event, the European Community would not have been possible without the radical changes in the relations between the Western European nations which came after the Second World War. In fact, the power relationships and the hostility among European nations, which gave rise to the two world wars, gave way to relations based on solidarity, not only between these nations as such, but between national and state societies. Thus the Community's positive law appears to be the "translation", in Scelle's terms, of objective law based on social reality ("un droit objectif fondé sur le fait social"). It also may be pointed out that the Community quite clearly displays a federalist tendency, to which it brings a new and original development. It is in effect an economic federalism, whose future extension is liable to be increasingly political.

In the field of human rights, too, social reality's influence on the development of law can be shown with precision. The growth of international concern for this subject has been accompanied by a noticeable decline of non-interference in the legal practice of states, evidenced by the measures taken by governments in response to human rights violations in Poland, Iran, and South Africa. This development does not spring from unforeseen changes in legal policies dictated by national interest. On the contrary, since the end of the Sixties, it has been the initiatives of NGOs (and especially Amnesty International's campaigns calling attention to the fate of political prisoners and the use of torture), the actions of Soviet dissidents, among whom Solzhenitsyn has been featured prominently, and above all the role of the media, that has created the political and psychological conditions leading to the shift in governments' practices. Thus in this field, positive law is certainly the work of governments, but it corresponds to an objective law based on social reality.

Scellism is also sustained by the fact that the concept of international community has acquired a place in positive law. The references to this concept which, in Scelle's time, had more to do with objective law than with positive law, do not only feature in resolutions such as Resolution 2625 (XXV) on Friendly Relations, but also in treaties (the Vienna Convention on the Law of Treaties) and in the case law of the International Court of Justice, which, in the Barcelona Traction case, insisted on the obligations of states "towards the international community." Thus, at this point in time, any denial of the Scellian concept of international community goes against positive law.

The role of universal rules in international law has now become considerable: they include not only the norms of general international law, but also the rules arising from universal or quasi-universal conventions, such as the United Nations Charter, the Geneva Conventions of 1949, to which more than 160 states are party, or the Vienna Convention on diplomatic relations.

Finally, if it is eventually admitted that despite the rearguard actions which they have generated, the concepts of jus cogens and of obligations erga omnes are pushing their way through positive law, it is possible to see in their acceptance the recognition of the idea of an international constitutional law advocated by Scelle. In this respect, the concept of jus cogens would be fully Scellian if it conferred a peremptory (impératif) character only on provisions protecting individual freedoms, as in the declarations of rights incorporated in national constitutions. The adage "ubi societas, ubi ius" is reversible: the existence of universal international law demonstrates the actual existence of an ecumenical community, the members of which, despite their "heterogeneity", are bound by the same legal standards.

What then are the key features of international law? Are they those which proceed from power relations and are geared to sovereignty, or those which stem from solidarities, and revolve around the concept of community? Let us leave the answer to Michel Virally, who, summarizing the essence of his general course to The Hague Academy of International Law, wrote: "The author of these lectures must recognize without circumlocution that he adheres to the ideals of peace, justice and progress for all, ideals from which the idea of international law is, in his view, inseparable. The author believes in the advancement of international law along these lines, which will inevitably stamp his way of presenting it. The elements of reconciliation are, in his view, more important than the elements of division and disintegration and are therefore especially worthy of being emphasized."³² This statement echoes the thought of Georges Scelle, who, in a period of darkness, struggled with the weapon of law against the forces of division and disintegration.

31 R.-J. Dupuy, `Communauté internationale et disparités de développement', 165 RCDI (1979) 41.

32 M. Virally, `Panorama du droit international contemporain', RCDI, 35.

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