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The Changing Structure of International Law Revisited: By Way of Introduction 1
Charles Leben2
Full text available: PDF format *
In the academic year 1968-9, the University of Paris II hosted Wolfgang Friedmann, on sabbatical from Columbia University, as Associate Professor. A number of young French students thus had the opportunity to follow a seminar in international economic law which was to influence deeply the careers of several of them, among them myself. Quite apart from the topic dealt with - international economic law was not yet commonly taught in French universities - it was Friedmann's personality as such that exercised undeniable charm. His Mozartian first name expressed his character, but only in part. Indeed, Friedmann had two forenames, which clashed rather brusquely to our Parisian student ears: alongside Wolfgang was Gaston, the first pointing to his German father, and the second to his French mother.
This combination was symbolic in itself, for Friedmann combined multiple cultural worlds (Kultur is a word that often recurs in The Changing Structure) and civilizations: German and French cultures, but also, since his home country had sunk into barbarism, British culture (as far as I know, Friedmann remained a British citizen until the end of his life), American culture and still other non-Western ones, in which he was to display an interest during his many teaching periods abroad.3
It was perhaps, indeed certainly, this man of culture that primarily interested the students we were: opening his General Theory of Law, translated into French in 1965,4 and discovering an author equally at ease in the French school of exegesis, the German school of public law, or in British and American legal scholarship, exercised great fascination over the students. Similarly, his The Changing Structure of International Law,5 where George Scelle is cited and discussed just as much as Jessup, Lauterpacht as well as Kelsen, Brierly and Geny, and where judgments of the Conseil d'Etat are referred to as often as those of the United States Supreme Court or the House of Lords, offered a model of an internationalist who, to paraphrase Dworkin, took the adjective `international' in the expression `international law' seriously.
It was from a feeling that this international legal culture had become less `plural', less diversified, less truly `international' than in Friedmann's time that the idea arose to invite a group of `trans-Atlantic' authors to participate in a Symposium on the current state of international law, with the aim of strengthening the still too loose links between people and schools of thought on both sides of the ocean.
Hence the idea of setting out from a reconsideration of the themes of Friedmann's undoubtedly best-known work, The Changing Structure of International Law. We felt this book typified one current of thought in international law (which might be called a current of institutionalist thought) that marked the 1960s. Other names one might mention in this connection are Jessup, Jenks, and certainly Lauterpacht, on the side of English-language scholarship, and on the French side authors influenced by Scelle, including R.-J. Dupuy, Colliard or, equally, Virally.6 It would undoubtedly be easy to find representatives of this school in other European countries.
Four themes were selected for discussion in this Symposium. For each of these, two authors, one on either side of the Atlantic, were asked to contribute papers. A third writer was invited to comment on the two texts. This issue of the Journal features the contributions on the first theme: The State between Fragmentation and Globalization. Articles on the other three themes will be presented in forthcoming issues.
In this introduction, we shall briefly review some of the most typical themes developed by Friedmann in his work, as being representative of the 1960s scholarship that was to influence many authors of the next generation, namely our own. Looking backward will provide a starting point for the forward-looking considerations of the authors contributing to this Symposium.
I. The Distinction between the International Law of Coexistence and the International Law of Cooperation
The most widely known theme in Friedmann's thought concerns the distinction between the international law of coexistence and the international law of cooperation. At the same time as Friedmann was working on this topic, R.-J. Dupuy in France was developing an equivalent distinction between the international law of the `relational society' and the international law of the `institutional society'.7 It is hardly surprising that it was Dupuy who prefaced Friedmann's De l'efficacité des institutions internationales, published in France in 1970, which gathered together his main analyses.
For Friedmann, contemporary international law was experiencing a twofold extension: a horizontal movement, following the great decolonization movement of the 1950s and 1960s, and a vertical one, bringing within the sphere of international law questions hitherto dealt with only nationally.8 What attracted me personally at the time about his explanations was the `objective', `necessary' aspect of the development of international law: states were, whether they liked it or not, drawn into a cooperation movement because in both economic and technical terms they had become objectively interdependent. Governments needed to ensure this cooperation not only by concluding bilateral or multilateral treaties in ever-growing numbers, but especially by creating international organizations to carry out the functions essential to the welfare of all states. Friedmann was undoubtedly influenced here by the so-called functionalist doctrine, as presented by David Mitrany in his brief 1943 work,9 though his name is not, it would appear, cited in The Changing Structure.
This development of an international law expressing the need for states to cooperate in order to attain objectives beneficial to all enabled Friedmann to furnish a new answer to the old question of the sanction in international law: to the extent that states need to participate in institutions of international cooperation, the threat of being deprived of the benefits of that participation creates a type of institutional sanction that should assure the international law of cooperation of greater effectiveness than the international law of coexistence, which had no real sanction if, with Friedmann and against Kelsen, one rejects the notion that reprisals and war are the sanctions under this law.10 It would not, however, seem that this assessment of the effectiveness of the `sanction of non-participation', as he called it, proved true in practice, since if states need organizations, organizations have still more need of states.11
Playing devil's advocate, one might add that the emphasis laid by Friedmann and other writers who shared - and still do - his sensitivity to the qualitative change brought by the international law of cooperation not only made them somewhat overestimate the break between the international law of coexistence and the international law of cooperation, but also meant that they did not seek a thorough understanding of the specific modus operandi of the international law of coexistence, as being the prototype of a decentralized, i.e. anarchic, law. By contrast, part of the French school of international law in recent years has sought to show what Combacau calls `the specific genius' of international law. Where Friedmann saw only the effects of a `rhetorical international law' that expressed states' bad faith, authors like Combacau or Alland demonstrated the presence of a logic specific to a model of a decentralized legal order constructed on the unilateral assessments of states with equal sovereignty.12 Still more, it would seem that this unilateralist logic of international law has not disappeared with the setting up of international organizations but, on the contrary, in a good number of cases has tended to perpetuate itself even within these organizations.
Friedmann did not, however, cherish too many illusions as to the resistance that might arise along the road towards more effective international law. It is no coincidence that his work in French cited above starts with a section entitled `Undeceived Thoughts on the Role of International Law'. Those resistances were the ones that nationalism and the defence of national sovereignty raised against the advance of international law. According to Friedmann, this obsession with national sovereignty would be completely anachronistic in an interdependent world. He did not, however, fail to recognize the attraction of nationalism; but he saw its ravages arising more in the non-Western world despite, he wrote, `... the utter inadequacy of nationalism as an effective expression of the military, political, and economic realities of our time ...'13 What might he say today in a world where nationalist passions no longer spare any continent, flaring up even in Europe itself as we have recently and dramatically witnessed?
In the last analysis, if the course of history has not exactly followed Friedmann's expectations, the contradiction he noted between national fervour and international, transnational and even supranational realities certainly exists and has deepened still further. This topic will be explored by the authors in these pages. Their task is to examine the present situation of the state, caught as it is between mounting internal divisions and the globalization of economic and technical phenomena which have experienced unceasing growth since the time that Friedmann wrote his major work.
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1 The articles published in these pages were first presented at `The
Changing Structure of Law Revisited', a symposium held in Paris in March 1997
and co-sponsored by the Institut des hautes études
internationales and the European Journal of International Law. Each
of the next three issues of the journal will feature articles on the other
major themes of the symposium.
2 Professor, Université Panthéon-Assas (Paris II),
Co-director, Institut des Hautes Etudes Internationales, 12, Place du
Panthéon, 75231 Paris CEDEX, France. Article translated by Iain
Fraser.
3 For a note on W. Friedmann's life and work, see the Special Issue
of the Columbia Journal of Transnational Law on him, 10 CJTL
(1971) 1, for the tenth anniversary of that journal, which he had helped to
create and inspire. A year later the recipient of that homage was to die
prematurely and tragically. See the articles by O. Lissitzyn and the Editors
opening the journal for 1972 (11 CJTL (1972) 3).
4 W. Friedmann, Théorie générale du droit
(1965).
5 W. Friedmann, The Changing Structure of International Law
(1964) (hereinafter The Changing Structure).
6 For R.-J. Dupuy, sadly recently deceased, the closeness is
particularly striking, with his distinction between the international law of
the relational society and international law of the institutional society. See
Le droit international, first published in 1963 in the Que
sais-je? series and continually reissued since. See also of course his
Cours général at the Hague, `Communauté
internationale et disparités de développement', RdC 165
(1979, IV) 9. For M. Virally one might cite this significant passage from the
Foreword to his L'Organisation mondiale (1972), at 5, in connection with
the setting up of the `United Nations family': `Very few are prepared to admit
that what we have here is a new form of political organization of human
societies, in no way less novel or important than those the modern state
presented at its time ...' Again, in the 1996 Cours (forthcoming) by
J.A. Carillo Salcedo, the stress is placed on the transformation in the
structure of international law wrought by the development of international
organization.
8 A summary of the theses defended by Friedmann in his work can be
found in Chapter 22, at 365-381.
9 D. Mitrany, A Working Peace System (1943).
10 The question of sanctions is discussed in Chapter 8 of The
Changing Structure. Friedmann's thesis on `the sanctions of
non-participation' is set out at 88-95.
11 See C. Leben, Les sanctions privatives de droit ou de
qualité dans les organisations internationales
spécialisées (1979). This book derived from a doctoral thesis
aimed at assessing the accuracy of Friedmann's intuitions. The findings showed
that his enthusiasm over `sanctions of non-participation' ought at the very
least to be moderated.
12 See Combacau, `Le droit international: bric-à-brac ou
système?', Archives de philosophie du droit (1986) 85. By the
same author, Le droit des traités (1991), where the argument on
treaty law is entirely conducted on the basis of the logic of an anarchical
system. Similarly, J. Combacau and S. Sur, Droit international public
(2nd ed., 1995), at 23-29; and D. Alland, Justice privée
et ordre juridique international. Etude théorique des contre-mesures en
droit international public (1994).
13 The Changing Structure, 35-37, at 36.
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