Whither the International Community? Introduction Asking the question: `Whither the international community and where does it stand today?' in a symposium celebrating the intellectual legacy of Wolfgang Friedmann necessarily leads us to situate the question in relation to that legacy. In my view, the link is clear. It lies in the summa divisio that he proposes for international law - into the `law of coexistence' and `law of cooperation'. And the answer to the question consists in identifying more or less the exact position of international law at a given moment along the schedule linking these two poles, or rather these two contrasting types of legal regulation. This position in turn denotes the degree of intensity of the sense of community prevailing among the members of international society at that moment. Allow me to illustrate this proposition by comparing these two approaches to legal regulation, but not before I have explained what I mean by the concept of `international community'. In his masterly cours général of 1979, René-Jean Dupuy2 demonstrated wittily as well as convincingly the very variable geometry of the use of the term `International Community', in both formal legal instruments and doctrine. Indeed, this community could be, according to the case in point, that of the states of the world, that of the peoples of those states or of the world as such (thus merging into the concept of humanity) or, furthermore, of the active part of those peoples, in the form of international public opinion or international civil society. Personally, I will use the term here in the sense of community of states, but without ignoring the social forces which make those states act or which transcend them, sometimes by acting through alternative circuits of their own construction. Sociologically speaking, however, `community' is a relative concept and its existence is a question of degree. It can exist in one group with regard to one point, but not necessarily with regard to others, and may similarly exist in different degrees of intensity. Even taking the paradigm example of a natural group, the family, we find that in certain respects it constitutes an intense community, with spontaneous or unconditional solidarity among its members. In other respects, such a community is clearly refuted by ruptures and conflicts among its members as a result of those very family bonds, whilst in other cases membership or non-membership of the family group shows no sign of bearing an influence. The community is thus a fragmentary phenomenon and when a legal rule is said to be based on the presumption of the existence of a community, it does not mean that that community exists in the group concerned in the same way and with the same intensity on all subjects. Rather than referring to a group as a community in general, it is better, for the sake of precision, to speak of the degree of community existing within the group in relation to a given subject, at a given moment. In order to designate a group globally as a `community' it must first constitute a `society'; that is to say, it must first attain a certain degree or threshold of intensity and stability (or normality) in relations among its members, enabling them to be identified and distinguished from other subjects found in the same sphere. In other words, it must be possible to trace the boundary between the group and its environment. Only if this society is welded together by a sense of community, even to very different degrees, over a broad range of matters (that is to say of interests and values), can it be aggregately designated a `community'. Thus, the tenuous relationships entertained by Europe with the rest of the world up until the age of discoveries and the circumnavigation of the Cape of Good Hope by Vasco de Gama did not justify the existence of a community, nor even of an international society, in the sociological sense of the terms. It is true that these relations were placed by the founding fathers of classical international law (such as Vitoria, Suarez and Grotius) in the ideal framework of a societas gentium, an expression of the fundamental unity of the human race (and precursor of the civitas maxima of Wolff and Vattel in the eighteenth century), governed by natural law (jus humanae societatis, or quite simply the jus gentium). Yet this universal community, embracing all humanity, was only a theoretical construct or explanation, a mental image, perceived as a philosophical proposition or a distant horizon, rather than as an existent reality.3 If there was a `community' in that period, it was one represented by the idea that reigned in Europe at the end of the Middle Ages until the Reformation and the Wars of Religion. This was the idea of the existence `of a Christian empire, heir to Rome',4 the idea that Vinogradoff called `The World State of Mediaeval Christendom.'5 And it is the disintegration of this community that led to the birth of a new structure for the legal system which had previously governed it, namely, the system of classical international law, the archetype of the `law of coexistence'. And this brings us back to Wolfgang Friedmann's summa divisio. 2 `Communauté internationale et disparités de développement', 165 RdC (1979, IV) 21 et seq. 3 See Abi-Saab, `Humanité et Communauté internationale dans la dialectique du droit internationale', in Humanité et droit international, Mélanges René-Jean Dupuy (1991), at 3 et seq. 4 Guggenheim, `Droit international général et droit international européen', 18 Annuaire suisse de droit international (1961) 12. 5 Vinogradoff, `Historical Types of International Law', 1 Bibliotheca Vissenana (1923) 53.
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