The debate concerning the international community has evolved in much the same way as the debate concerning globalization; that is, toward integration, but with the terms of the international community becoming increasingly imprecise. For instance, according to Article 53 of the Vienna Convention of the Law of Treaties, "a peremptory norm of general international law is (inter alia) a norm accepted and recognised by the international community of States as a whole". On the other hand, the international community is also understood to include other entities beyond the state, such as the EU, the Red Cross, or the United Nations itself.586 Although most authors recognize the international community as a whole, it is still not clear what should or should not be included within the concept of the international community of states (that is, the international community as an entity beyond the state). Tomuschat, for example, is of
585 Oeter, above note 580, p. 599.
586 Fourth Report on State Responsibility, James Crawford (Special Rapporteur) ILC 53rd Session, UNGA 2 April 2001, A/CN.4/517, para. 36. For a short description of other views See also Anne-Laure Vaurs-Chaumette, “The international Community as a whole” in The Law of International Responsibility J Crawford, A Pellet, S Olleston (eds.), 2010, pp. 1023-1024. See also McCorquodale, above note, 579, p.
252.
the opinion that Article 53 of the VCLT is not really a definition but rather a
"proposition" about the existence of an international community.587 We agree. The international community does include a unity beyond the classical subjects of public international law, that is, the state. This suggests two things. Firstly, the existence of an international community as an entity beyond the state, as has already been identified by the ICJ in its famous dicta in the Barcelona Traction case, regarding the existence of an obligation erga omnes owed to the international community as a whole588, and through which the existence of collective interests was recognized.589 Secondly, due to the fact that human rights, social justice, and respect for human dignity are essential features of the international legal order, they are therefore also interests to this community that goes beyond the community of states, in that this international community also encompasses the interests of individuals. According to the developments of international law, the most accepted notion of international community is that of the international community as a whole, as in the Barcelona Traction case. However, the new transformations operating in the international arena take account of the existence of some public goods towards which not only the interest of the international community as a whole, but also the interest of the international community of individuals, is at stake, namely, for example, the environment, human rights, humanitarian law, dignity, international trade, and the raising of living standards. These common concerns contain an aspect relative to the realization of the individual and not only relative to the realization of the state. It is in these areas, too, that the normativity of the concept of international community meets a descriptive idea of world community, as proposed by McDougal and Reisman, thus placing the human being at the centre of international law. According to them, "It is individual human beings, whatever the group form and modality, who shape and share the interdetermination and interdependence that characterise community".590 This is also reminiscent of the idea of Lauterpacht when referring to international law as an
587 Christian Tomuschat, “Obligations Arising For States Without Or Against Their Will” Académie de Droit International, Recueil des Cours/ Collected Papers of the Hague Academy of International Law 1993 Vol. 241 No. 4, p. 195.
588 Barcelona Traction, Light and Power Company, Second Phase (Belgium v Spain) Judgment of 5 February 1970, ICJ Reports 1970 p. 3, para. 33 “In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”
589 Vaurs-Chaumette, above note 586, p. 1024.
590 McDougal, Myres S. Reisman, W. Michael Willard, Andrew R. “The World Community: A Planetary Social Process” Yale Law School Legal Scholarship Repository. Faculty Scholarship Series. Paper 753
expression of the existence of an international community of States and of individuals.591
Today, international relations show how international players are increasingly worried about the need to protect certain common goods and values. The most prominent values are peace, humanity, and social justice.592 Some common goods that are considered to need protection by the international community, to the extent that every state has to safeguard them, are inter alia human rights, the environment, and space. The concept of the international community has also been used in different branches of international law. In international environmental law, the idea of international community is enshrined in the concept of inter-generational equity, which it recognizes the idea of humanity's endurance through time, so securing the claims of future generations. 593 In the case of the Law of the Sea, it is reflected in the concept of the "common heritage of mankind". In the field of human rights, the Vienna Declaration on Human Rights of 1993, paragraph 4, states that the promotion and protection of all human rights is a legitimate concern of the international community. The international community thereby referred to trespasses the limits of the states so as to include also the individual.
These examples show that one of the essential changes that the international community undergoes is reflected in such familiar notions as the common concerns of humanity, the common heritage of mankind, and the elementary considerations of humanity.594
Decision-makers must take account of three co-existing levels: the international, the transnational and the universal. Such values have already been considered by scholars as constitutive of the international legal order.595 In order to protect such constitutional values, several international players and legal scholars advocate positive recognition by decision-makers of already existing transformed structures in the current extra-positive
591 See Part II Chapter 2 Definition of International Law by H Lauterpacht.
592 Santiago Villalpando, “The Legal Dimension of the International Community: How Community Interests Are Protected in International Law” European Journal f International Law 2010 Vol. 21 No. 2, p.
393.
593 McCorquodale, above note, 579, p. 251.
594 The Corfu Chanel Case, Merits Judgment of 9 April 1949, ICJ Reports 1949, p. 4 p. 22 “The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VTII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war.”
595 Tomuschat, above note 589, p. 195 See also Susan C Breau, “The constitutionalization of the International Legal Order” Leiden Journal of International Law 2008 Vol. 21 No. 2, pp. 547 et seq.
legal order.596 They particularly advocate a novel approach to the structure of international law. This transformation touches upon all branches and manifestations of power. Consequently, rules are required to take account of the different co-existing orders, namely, that of the international society, that of the transnational society, and that of the universal society. The rules should therefore reflect the concerns of the international society597, and those of the international community as an independent body, and those of the international community as regarding the universal equal individual. Further on, because the international community is no longer considered as co-existing states understood uti singulis, newer principles of international law, such as the principle of co-operation, and598 the principle of solidarity599 (even if they are currently developed within an horizontal structure), may hint at a vertical structural development within global law, the main implication of which being perhaps a more
"human" approach to international law, especially through the realization of human rights.600 Therefore, we can restate here that the main transformation taking place within our understanding of international law is the shift from states understood uti singulis to the state understood as a link in the universal public milieu. The international community poses significant challenges to positive law601, for such entities are not yet well defined.
596 Villalpando, above note 592, p. 393.
597 See Rusell Buchan, “A Clash of Normativities: International Society and International Community”
International Community Law Review 2008 Vol. 10 No. 1, p. 3.
598 Robert Kolb, “Interprétation et création du droit international: Esquisses d’une herméutique juridique modern pour le droit international public”, 2006, p. 888.
599 Rüdiger Wolfrum, “Solidarity among states: An Emerging Structural Principle of International Law”
in Völkerrecht als Wertordnung. Common Values in International Law: Festschrift für Christian Tomuschat. P-M Dupuy, B Fassbender, M N Shaw, Karl P Sommermann (eds), 2006, p. 1088 Explaining that certain areas of international law are governed by the principle of solidarity; e.g. as a structural principle in international environmental law; as a structural principle in the WTO law as far as it concern developing countries; solidarity as a principle in humanitarian assistance/intervention i.e, grave and widespread violation of human rights may be used as justification for unilateral military humanitarian intervention See also Dupuy, above note 577, pp. 258-268. The author here do not refers to solidarity as a principle but as the guiding feeling that move the community/society of the states to act together in their own benefit for the purposes of achieving peace.
600 Villalpando, Ibid., footnote 25 Referring to Wolfgang .Friedman in “The Changing Structure of International Law” (1964) who sees the change of international law from a law of coexistence into a law of cooperation – linking the law of cooperation with labour and health matters, economic development, human rights collective security etc...; furthermore, he also refers to Jenk’s idea of universal law in “the Common Law of Mankind.” (1958), See also above Part II Chapter 2 Definition of P-M Dupuy of International Law.
601 Kolb above note 598, p. 3.
1 Normativism
The lack of definition of the international community as a legal concept makes more flexible the inclusion of normative ideas about the international community. The reality today shows that other international members of an international community are involved in the process of law-making by means of their participation in the treaty process itself, and the use of authoritative sources.602 The notion that the international community responds to the dominant approach, namely that which considers the international community as an independent collective ignores, essentially any kind of enrolment or relationship in the international community other than that which takes place among states, and is a legal fiction. This conclusion only reflects the dogmas of state sovereignty, and the notion that state sovereignty remains the main principle governing the juridical concept of international community. However, international law is dynamic. If only for this reason, the notion that the international community includes interests other than those of the sovereign state and "sovereign collective" remains an open possibility. The limitation of the term international community to consent-related matters discussed among sovereign states no longer reflects the real needs of the world order.603 The individual as a member of the international community has reached some juridical attention especially through the regime established by human rights law, one of the major and fundamental areas of international law. The individual is held accountable for their violations of international law, be they in the area of piracy, slavery, or crimes against humanity. Furthermore, the individual plays an important role in the creation and interpretation of law. They do so not only in their personal capacity and not only as representative of states; indeed, it is often in their personal capacity that they sit in international courts, tribunals, and dispute settlement bodies.604 In addition, the imperative quality of certain values is reflected in the status quo of global matters within a hierarchical order that in many cases responds to the interests of the human being. Therefore, we can affirm that this verticality of human rights concerns is reflected in the concept of the international community. The human being should normatively be at the top and at the end of all universal rules, and although there is still a long way to go, there is no other alternative than to start using effectively the
602 McCorquodale, above note 579, p. 241.
603 Ibid., p. 252. The author refers here to James Crawford, “Responsibility to the International Community as a whole” Indiana Journal of Global Legal Studies 2001 Vol. 8. pp. 303, 314.
604 Ibid., pp. 260-261.
precarious means of international decision-making, such as the judiciary and the executive.
2 WTO jurisprudence
WTO jurisprudence acknowledges the concerns of the community of nations.
According to the WTO preamble's explanation of the Max Planck Commentaries on World Trade Law, none of the aims established in the first recital, e.g. raising standards of living, constitute common interests, common international goods or international values.605 However, the AB does not share this view of the commentary. The following was already acknowledged by the Appellate Body in the US-Shrimp606 case regarding the interpretation of the term "exhaustible natural resource":
“The words of Article XX(g), "exhaustible natural resources", were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of the contemporary concerns of the community of nations about the protection and conservation of the environment".
605 Armin von Bogdandy, “Preamble” in Max Planck Commentaries on World Trade Law WTO:
Institutions and Disputes Settlement R Wolfrum, P-T Stoll, K Kaiser (eds.), 2006 Vol. 2, p. 9.
606 United States- Import Prohibition of Certain Shrimp and Shrimp Products, Appellate Body WT/DS58/AB/R 12 October 1998 , para. 129 Emphasis added
CHAPTER 4 SOVEREIGNTY