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The Changing Structure of International Law Revisited: By Way of Introduction
IV. The International Community
Finally, Friedmann devotes considerable attention to the theme of humanity (`mankind'). In looking into the question of the divisions of mankind and the universality of international law (Chapters 18-21), he once again shows the need to distinguish between international law of coexistence and international law of cooperation.
Concerning the international law of coexistence, Friedmann considers whether there are any major differences of approach between the Western and other civilizations in relation to this law's three essential points, namely:
i. relations between national sovereignty and international law;
ii. the assertion that one is bound by promises at least as long as there has been no fundamental change of circumstances (a combination, therefore, of pacta sunt servanda and rebus sic stantibus);
iii. and finally, the ruling out of aggressive war.30
To this end, he reviews the doctrines of Islam, India (where he had taught), traditional China and other Asiatic countries, as well as Soviet doctrine of international law.31 It is certainly worth underlining here Friedmann's concern to detach himself from the purely `Eurocentrist' viewpoint that Western authors are often accused of.
In this examination, Friedmann came up against doctrines which at first sight proved difficult to reconcile with the great rules of what he called the international law of coexistence. This was the case for the traditional doctrine of Islam, which divides the world into dar al islam (the Muslim world) and dar al harb (all other countries), over which Muslim supremacy was to be exercised through Jihad. But he notes that an equivalent doctrine had indeed existed in Christian Europe, and that just as Europe had abandoned the crusades against heretics, modern Muslim countries were no longer strictly held to the traditional doctrine and proclaimed the same principles of international law of coexistence as other states. It remains to be seen to what extent this analysis remains valid in our time, for countries which, following the Iranian revolution, have adopted a more fundamentalist attitude towards traditional precepts.
Friedmann goes on to show that the communist revolutionary doctrine is incompatible with the principles of the law of coexistence. But the defence of the interests of communist states had turned them into tenacious defenders of that very law, in their strict views on respect for state sovereignty.32
Ultimately, for Friedmann the real rift is to be found in the international law of cooperation: the gap between developed and developing countries, between market-economy and state-trading countries. It is here that the heterogeneity of interests, values and philosophies is strongest, contributing to the division of mankind. Friedmann naturally raises the question of the rules of international law on nationalization through the claim for permanent sovereignty of states over their natural resources, or the question of the rules of economic liberalism on which the international institutions set up after the Second World War, such as the IMF or GATT, were based.33 It should be noted that 1964, the year that Friedmann's work was published, was also the year of the creation of UNCTAD, which was set up with the aim of promoting a different economic logic.
But how do things stand today, at a time when the ideological division between capitalist and communist countries - which for Friedmann was one of the essential faultlines in international society - has practically disappeared, when the ground rules of international liberalism are now adopted by all, including China (one wonders whether it ought still to be called communist), and when the unity of the grouping of developing countries has disintegrated? At the same time, the division between the developed countries and the so-called developing countries, many of which are instead heading for even greater underdevelopment, is stronger than ever. These themes will be taken up in the fourth part of this Symposium, devoted to the international community.
32 Ibid, at 333-340. On the evolution of Soviet conceptions
of international law, see I. Lapenna, Conceptions soviétiques du
droit international public (1954); K. Grzybowski, Soviet Public
International Law. Doctrines and Diplomatic Practice (1970).
33 The Changing Structure, ch. 21, at 341-361.
© 1990-2004 European Journal of International Law
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