Attitude of the Asian-African States toward Certain Problems of International Law

Author(s): R. P. Anand
Source: The International and Comparative Law Quarterly , Jan., 1966, Vol. 15, No. 1
(Jan., 1966), pp. 55-75
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

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 ATTITUDE OF THE ASIAN-AFRICAN STATES
TOWARD CERTAIN PROBLEMS OF
INTERNATIONAL LAW

By
R. P. ANAND *

ONE Of the most conspicuous features of the present internat

society is its extended nature. With the emergence and partici
tion of so many Asian and African States international society
become, for the first time in history, a true world society. Alth
most of these States are weak and underdeveloped, their import
to the maintenance of a world public order in the present ten
ridden bi-polarised world can hardly be exaggerated. In fac
" uncommitted " as most of these States are, they have bec
objects of strong competition and wooing among the big Powe
with the result that they have come to acquire an unusual
disproportionate weight in influencing the course of history. W
the threat of a limited use of force reduced, because of the da
of its developing into a devastating nuclear war, they can mai
their positions even against the might of the big Powers. This w
not have been possible before the Second World War. The exist
of an international forum, such as the United Nations, where
can make their voices heard and where they have some scope f
concerted action, enhances their power and helps them in pur
their purposes. They are further helped by the rivalry between
big Powers, since it has incapacitated the " potential direct
of the five permanent members of the Security Council " and
shifted the power to the General Assembly, the stronghold of
small countries, where they enjoy complete formal equality w
the big Powers and, of course, numerical superiority.
This horizontal extension of the international society has g
rise to some pertinent questions. For the establishment of
effective rule of law in the international society, which it is in
by several thinkers is the only way to save the world from
otherwise impending annihilation, the first most essential cond
is to have an acceptable body of law that is accessible and up to
date, and is in harmony with the growing aspirations of the over-
whelming numbers of the peoples of the world. For this purpose,

* World Rule of Law Center, Duke University School of Law.

55

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56 International and Comparative Law Quarterly [VOL. 15

there is little doubt, the views of these young, weak, under-

developed, but still " influential," members of the international
society can no longer be ignored. Is the present system of inter-
national law, developed as it was among the Western Christian
countries, adequate for the extended world-wide community of
States with different legal, social, cultural, ethical and religious
backgrounds? What has been the attitude of these newly-inde-
pendent States toward this supposedly " established international
law? " Do they accept the present law or do they follow a path
which deviates from the " established practice "? Do they reject
it in toto, since they did not or could not play any part in its
development, or is their resentment merely directed toward
particular parts of the system which are perhaps reminiscent of
the outmoded colonial age?

DIVERSITY AMONG ASIAN-AFRICAN COUNTRIES

Before examining these, or at least some of these, questions it must

be pointed out that due to geographical, political, social, cultural
and other factors, these countries exhibit great differences, not only
in their ways of life, but even in their thinking and practice. Having
widely different interests in different areas, their attitudes can hardly
be similar on all the points. In any attempt to understand the
attitudes of these countries, therefore, this diversity must not be
overlooked. No generalisation can be entirely accurate and it is
not easily possible to generalise.1 Even so, it is not difficult to
discern certain common tendencies and common attitudes and

resentments among most of these countries toward certain pro

of international law, resulting more or less from their com
experiences under the past colonial age, their struggle for inde
dence from the bonds of colonialism and their present un
developed nature. In order to appreciate the attitudes of t
countries toward most problems of international law, it is nec
to take a quick glance at the history of the development o
present system of international law, since most of these atti
are affected by the history of international relations during th
hundred years or so when the traditional law was consolidate
systematised in its present form.

1 See Oliver J. Lissitzyn, "International Law in a Divided World," Inter-

national Conciliation, No. 542 (March 1963) p. 37; R. P. Anand, "Role of
the 'New' Asian-African States in the Present International Legal Order "
(1962) 56 American Journal of International Law 395 [hereinafter referred to
as A.J.I.L.].

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JAN. 1966] Asian-African States and International Law 57

DEVELOPMENT OF INTERNATIONAL LAW

As is of course well known, the process of authoritative decision

called international law, inherited by the world-wide community
of States, owes its genesis and earlier growth to the interactions
among the Western European countries during the last four centuries
and is naturally coloured by their unmistakable influence. As
Professor Verzijl asserts with a due sense of pride:
Now there is one truth that is not open to denial or even
to doubt, namely, that the actual body of international law,
as it stands today, is not only the product of the conscious
activity of the European mind, but has also drawn its vital
essence from a common source of European beliefs, and in both
of these aspects it is mainly of Western European origin.2

Despite strong protests by some Asian scholars that European

countries cannot be regarded as the originators of international
law,3 and despite the fact that there were certain well-developed
principles of inter-State conduct in ancient countries, such as China,
India, Egypt and Assyria,4 countries which had attained quite
advanced forms of civilisation, it must be admitted that there is
no connection between those ancient principles and the present rules
of international law, even if there is found to be a large degree of
similarity in certain rules.5 Modern international law originated
during the sixteenth century and was consolidated only during the
last part of the nineteenth and the beginning of the present century.
For the sake of historical accuracy, however, it must be pointed
out that some of these " new " countries are not entirely new and,
contrary to the widespread belief, have had some important role
to play in the beginning of the modern history of international rela-
tions. Thus, " led on by the holy calling of the mission and
stimulated by the attractive prospect of booty," 6 when the Euro-
pean Christian Powers arrived in Asia, unlike the situations in

2 J. H. W. Verzijl, " Western European Influence on the Foundations of

International Law " (1955) 1 International Relations 137; see also Josef L.
Kunz, " Pluralism of Legal and Value Systems and International Law "
(1955) 49 A.J.I.L. 371; B. V. A. R6ling, International Law in an Expanded
World (Amsterdam, 1960), p. 10.
3 See P. Bandyopadhyay, International Law and Custom in Ancient India
(1920) p. 6; Muhammed Hamidullah, The Muslim Conduct of State (1945)
p. xiii; see these and other writers quoted in C. W. Jenks, The Common Law
of Mankind (London, 1958) p. 74 et seq.
4 See Bandyopadhyay, op. cit. supra, note 3. S. V. Viswanatha, International
Law and Custom in Ancient India (1925); K. A. Nilakantha Sastri, " Inter-
national Law and Relations in Ancient India " (1952) 1 Indian Yearbook of
International Affairs 97.
5 Se Verzijl, op. cit. supra, note 2 at 143-144; C. J. Chacko, " India's Contribu-
tion to the Field of International Law Concepts " (1958-I) 93 Recueil des
Cours 117, 142.
6 R51ing, op. cit. supra, note 2 at 17.

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58 International and Comparative Law Quarterly [VoL. 15

America and a large part of Africa, they had to deal with a well-
established family of nations extending all over Asia. They entered
into treaties with Asian rulers and established diplomatic relations
with them. It is a matter of history that these diplomatic exchanges
and treaty-making between European Powers and Asian rulers
extended all over South-East Asia, and, obviously, these mutual
dealings took place on the basis of reciprocal acknowledgment of
sovereignty. International law applied to relations between the
East and the West and there was a law of reciprocity between these
States. This position continued up to the beginning of the nine-
teenth century. Not only did the classical writers, Grotius,
Pufendorf, Bynkershoek, Wolff, Vattel and others, testify to this
state of affairs,7 but the International Court of Justice in a recent
case about the Right of Passage over Indian Territory recognised a
treaty, concluded in 1779 between the Maratha Empire and the
Portuguese, as a valid transaction in the law of nations.8 During
the nineteenth century, as the European countries came to develop
their power, however, under the influence of positivism, they began
to question the legal personality of the Asian States. At the
Congress of Vienna in 1815 a few great Powers established an
exclusive club in the Concert of Europe and appointed themselves
as guardians of the European community and executive directors
of its affairs. They assumed the authority to admit new member
States or to readmit old members who did not participate in the
foundations of this closed club. They claimed to " issue, or deny,
a certificate of birth to States or governments irrespective of their
existence." The result was, as Professor Alexandrowicz puts it,
that:

Asian States, who for centuries had been considered members

of the family of nations, found themselves in an ad hoc created
legal vacuum which reduced them from the status of inter-
national personality to the status of candidates competing for
such personality.9
Furthermore, their civilisation came to be considered, for the
first time, inadequate for full membership in the family of nations.
Although the seed of civilisation was sown in the East, Eastern

7 See C. H. Alexandrowicz-Alexander, " Grotius and India " (1954) 3 Indian

Yearbook of International Affairs 363-367; " The Discriminating Clause in
South-East Asian Treaties in Seventeenth and Eighteenth Centuries " (1957)
6 id. at 126; " Mogul Sovereignty and the Law of Nations " (1955) 4 id. at
317; " Treaty and Diplomatic Relations between European and South Asian
Powers in the Seventeenth and Eighteenth Centuries " (1960-II) 100 Recueil
des Cours 207.
8 (1960) I.C.J.Rep. 6.
9 Alexandrowicz, " Mogul Sovereignty and the Law of Nations," supra, note
7 at 318.

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JAN. 1966] Asian-African States and International Law 59

peoples came to be considered as " uncivilised " and " barbarous."

This led to the characterisation of the territories of these erstwhile
Asian States as terrae nullius, as America and most of Africa had
been treated earlier. This development of " provincial outlook " 10
in Europe led the leading writers of the nineteenth century and
the early part of the present century to assert that international
law was applicable only between " the civilised and Christian
people of Europe or to those of European origin." 11 Weakened by
strong jealousies, rivalries and divisions amongst themselves, Asian
States were unable to stand against the might of the European
Powers and lost all capacity to question or dispute such novel
assertions of the European writers. One by one they came under
the control and subjugation of their former European partners.
The acts of the colonising Powers came to be considered as valid
and legal after the establishment of colonial rule in Asia on the
basis of actual physical control and the rule of effectiveness.12
Might had indeed become right.
Be that as it may, having lost their international personality,
the Asian States could not play any active role in the development
of international law during the most creative period of its history
in the latter part of the nineteenth and the beginning of the present
century. Of course, even the smaller countries of Europe could
hardly play any effective role in this process during that age of the
balance of power superimposed by the recognised supremacy of the
States that formed the European Concert.
In the words of Professor Alexandrowicz: " The Concert of
Europe and the Family of Nations became identical terms and t
minor European Powers had to be content with the passive
assigned to them by the great Powers." 13
It is well known how this Christian European family of nati
was extended to include the peoples of the same kith and kin o
North and South America. It was in 1856 that Turkey, which f
centuries had been having diplomatic and treaty relations with
European countries, was admitted to this privileged closed grou
of the family of nations. The international society, having
outgrown the Christian nations, the common factor or qualifica
for participation in this club was sought in " civilisation." T

10 Philip C. Jessup, The Use of International Law (Thomas M. Cooley Lec

at the University of Michigan Law School, Ann Arbor, 1959) p. 20.
11 Wheaton, Elements of International Law (8th ed., London, 1866) pp. 1
see also Lord Phillimore, I Commentaries upon International Law (3rd ed
London, 1879) pp. 23-24; Jenks, op. cit. supra, note 3 at 69-74.
12 See D. P. O'Connell, " International Law and Boundary Disputes," Procee
of the American Society of International Law (1962) 81-82.
13 Alexandrowicz, " Some Problems of the History of the Law of Natio
Asia " (1963) 12 Indian Year Book of International Affairs 7.

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60 International and Comparative Law Quarterly [VoL. 15

chief criterion of " civilisation " was, of course, power. Thus,

Japan was introduced to the " civilised group " after it had shown
its mettle in its wars against China and Russia. As a Japanese
diplomat bluntly remarked: " We show ourselves at least your
equals in scientific butchery, and at once we are admitted to your
council tables as civilised men." 14
Although five Asian States participated in the Hague Peace
Conferences, which number increased to twelve Asian-African
countries during the League of Nations period, except for Japan
none of these countries had any effective voice in international
affairs and Europe continued to remain the world's stage. It was
only after the Second World War, in fact only since 1955, that under
a strong current of the principle of self-determination, aided by
the unusual conditions of " cold war," most of these countries
acquired independence and became full-fledged members of the
international society.15 More important, as we have explained
above, because of their numerical superiority in the United Nations,
they have come to acquire an exceptional influence in international
affairs. Needless to say, the criterion of " civilised nation " as a
basis for participation in the community of nations has been
abandoned. Or it might be more accurate to say that the meaning
of " civilisation " as synonymous with the " Christian-Western
civilisation," and the notion of " civilised nation " as corresponding
to " advanced, industrial, commercial nation," have definitely been
rejected. Thus, the terms " civilisation " or " civilised nations,"
still used in Articles 9 and 38 (1) (c) of the Statute of the World
Court or in Article 8 of the Statute of the International Law Com-
mission, do not correspond to the above-mentioned connotations.
After leaving the eras of " Christian nations " and " civilised
nations," as Professor R*ling has acutely remarked, we have entered
the " era of the peace-loving nations." 16 The organisation of the
United Nations has practically become universal, open to every
" peace-loving " State, " able and willing " to carry out the
Charter obligations. (UN Charter, Art. 4). Thus, while the
democratisation of the international society has become almost
complete, grown as it has from the European community to world
community, its composition has been entirely changed and Europe
now forms a small minority of this group.

A1 Quoted in RSling, op. cit. supra, note 2 at 27.

15 Thus, of the 51 original Members of the United Nations, there were only 13
Afro-Asians. At present, of its 117 Members, there are 65 Afro-Asian (28
Asian and 38 African) States.
16 R1ling, op. cit. supra, note 2 at 50-51.

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JAN. 1966] Asian-African States and International Law 61

LAW AND SOCIETY

Law being a process of authoritative decision-making in a society

it can hardly be denied that the contents of every legal system ar
determined by social and power processes of the community i
which it functions. In other words, sociological factors of a society
determine the content of law. As we have seen above, in the past
it was a small group of " Christian " and later " civilised " nation
which created international law. With a few negligible exceptions
it was a homogeneous group, with a common culture, and commo
civilisation based on the tenets of Christianity. These were prosper
ous and powerful States " which could take care of themselves an
therefore agreed to a mutual law of liberty among themselves, a
law . . . that had to reconcile the freedom of the one with
the freedom of the other." Furthermore-and this is most i
tant-they created what has been called a " ruler's law " for
relations with the extra-European " barbarous " world. "
law," as the above history clearly indicates, " the non-Eu
colonised peoples were the object rather than the subject."
If it is true of individuals it is certainly more true of Stat
possession of extraordinary power and authority leads t
and selfish exploitation. This is reflected in several rules of
national law and many treaties concluded by the colonial Po
with their dependencies or the small and weak independent
Thus, in the vast body of law relating to the responsibility o
the rules now supposed to be in force were, in the word
Mexican jurist: " . . . established, not merely without refer
small States but against them, and were based almost entir
the unequal relations between great Powers and small States." Is
Until the early years of the twentieth century, as it is well
known, the law relating to State responsibility was often used or
abused as an excuse for armed intervention against the weaker
States. Judge Jessup has very well summarised this part of the
history:
The States of the investor seemed to hold most of the cards.
Bankers could and did deduct from the proceeds of a foreign
loan not only a commission to cover their own possible losses
but reserves for interest and sinking funds, and bonds could
be put on the market at a fraction of their face value. Thus

17 Id. at 47.
18 Luis Padilla Nervo [1957] I Yearbook of the International Law Commissi
155. See also similar views expressed by other members of the Commiss
such as R. B. Pal, id. at 157-158; Matine-Daftary, id. at 160; El-Erian, id.
at 161; Tunkin, id. at 165; and El Khouri, id. at 169. See also Jorge
Castaneda, "International Organizations and Legal Progress-A Com-
mentary " (1962) 8 Howard Law Journal 153.

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62 International and Comparative Law Quarterly [VOL. 15

Mexico in its first foreign loan realised only six million pesos
in cash by assuming a bonded debt of sixteen million pesos.
If the debtor government failed to pay on maturity, the navy
of the State of the investors might take over a port and collect
revenues, or the defaulting State might even be annexed.19
" Such inequality of strength," as Mr. Nervo put it, " was
reflected in an inequality of rights, the vital principle of international
law, par in parem non habet imperium, being completely
disregarded." 20
Similarly, it does not need much proof to show that in a large
number of cases in the past:
. . . treaties have been used to sanctify subjugation and
exploitation of the smaller and weaker States. They have,
moreover, been used to impose protection and exploit economic
privileges. Many newly independent States had to sign unequal
treaties or to adhere to military alliances under strong pressures.
Sometimes, independence is granted only after such a treaty is
signed, granting the colonial Power economic and military
concessions. The newly independent States have little choice
in such a situation.21

Although the above tendency might not be apparent in those

areas where mutual jealousies and competition amongst the Western
Powers tended to limit the misuse of power, such as in the case of
a large part of the law of the sea, or diplomatic immunities, it must
be admitted that " much of Western law, including international
law, has developed in response to the requirements of the Western
business civilisation," 22 and several of its principles are, therefore,
biased in their favour.

EXPANSION OF THE INTERNATIONAL SOCIETY AND ITS EFFECTS

The sudden expansion of the international society has, however,

upset the whole equilibrium. In the first instance, what has been
called the " geography " of international law has radically changed.
International law is " no longer the almost exclusive preserve of
the peoples of European blood " by whose consent, it used to be
said, " it exists and for the settlement of whose differences it is

19 Jessup, op. cit. supra, note 10 at 18. See also Jessup, A Modern Law of
Nations (New York, 1948) pp. 112-114.
20 Nervo, supra, note 18, at 155.
21 George M. Abi-Saab, "The Newly Independent States and the Rules of
International Law " (1962) 8 Howard Law Journal 168. See also statement
by Mr. Jusuf, Indonesian delegate in the Sixth Committee of the United
Nations, Official Records of the General Assembly, Sixteenth Session, Sixth
Committee, 726th Meeting, at 191.
22 Lissitzyn, op. cit. supra, note 1 at 58.

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JAN. 1966] Asian-African States and International Law 63

applied or at least invoked." 23 As it must now be assumed to

embrace other peoples, it clearly requires their consent no less.
Secondly, at least part of this law, created by, and for, a few
prosperous, industrial nations, with a common cultural background
and strong liberal, individualistic features, is hardly suitable for
the present heterogeneous world society. The majority in this
expanded world community consists of small, weak, poor, vulner-
able, technologically and industrially underdeveloped, former
colonies filled with resentment against their colonial rulers, and
needing and demanding the protection of the international society.
This new majority has new needs and new demands and they want
to mould the law according to their needs. More important, while
the earlier international society was extremely nationalistic and indi-
vidualistic, and put the greatest stress on sovereignty and national
independence, the present society, in spite of its vast horizontal
expansion, has become extremely interdependent. The fantastic
scientific and technological developments have already made the
world too small. Not only peace but prosperity has become indi-
visible. The mutual interdependence of States has become the most
important and all-embracing concept of the present society of
nations.

NEED FOR CHANGE

The alteration in the sociological structure of the international

society must, of course, be accompanied by an alteration in law.
Law, it has been well said, is not a constant in a society, but is a
function. In order that it may be effective, it ought to change with
changes in views, powers and interests in the community. The
conditions under which the classical, traditional law of nations
developed, the views which it contained and the interests which it
protected, have all greatly changed. It is also no reproach to law
to say that by its very nature it tends to be conservative and
is " a bulwark of the existing order." The present crisis in inter-
national law, as we shall see presently, is merely a reflection of
the struggle between the conservative forces which are trying to
maintain the status quo and the strong demands and actions of a
vast majority of States to reshape and renovate some of the old
concepts of international law according to changed circumstances.

PROTESTS OF ASIAN-AFRICAN STATES AGAINST CERTAIN PARTS

OF INTERNATIONAL LAW

Having been victims of an unequal position and passive objects of

the present system of international law, it is not surprising to find
23 See Pal, quoting Westlake, supra, note 18 at 158.

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64 International and Comparative Law Quarterly [VOL. 15

Asian-African countries protesting against some of the old treaties

and several so-called " established principles of international law."
Finding several treaties signed during the colonial period, when they
had no choice, and some of the established rights of the colonial
Powers as obstacles in their way, and the traditional law unsuitable
to ameliorate their positions, they challenge them and demand their
modification. They want to change the status quo in order to be
able to share the blessings of modern civilisation on an equal footing.
This movement, it has rightly been pointed out, is characterised not
by a contest of ideologies, but-
. . . by the demand by two-thirds of the world's population,
the poor, for a share of the world's wealth; a share which will
allow them subsistence, if not abundance, emancipation from
bonds of illiteracy, and relief from disease and early death. ...
The poor now realise that the revolution in science and techno-
logy has not only created the risk of " universal death," but
has created as well the possibility of a " new paradise." They
intend to clear the path to that paradise and at least attempt
the journey.24

Making it clear that they do not regard their present hard lot
to be the result of " racial inferiority, inherent backwardness, or
the bad fortune of fate," they are trying to exert as much influence
in modifying the present law as possible. Protected by the unusual
" cold war " conditions, which have furthermore given them a
disproportionate weight, as we have explained above, and supported
by the twenty Latin American Powers, which, in spite of their
different cultural backgrounds and earlier achievement of indepen-
dence, share the same psychological conditions, they are attempting
to shape international law according to their own interests. They
have launched an " anti-colonialist, anti-racist crusade " which has
put colonial Powers on the defensive. Placing a measure of respon-
sibility for their retarded development on those nations whose
" overdevelopment " was accomplished, at least in part, by collect-
ing a vast amount of wealth from their territories and by preventing
their industrialisation, they not only now demand restitution, but
reformation of the relationship between themselves and their erst-
while superiors.25 They not only demand full freedom to restructure
their societies, but unconditional help for their economic and
industrial development.
Motivated by a strong desire to improve their lot, these countries

24 Newton Pacht, Introduction to Howard Symposium on "International Law

Standards in an Era of Rapid Historical Change " (1962) 8 Howard Law
Journal 76.
25 Id. at 77.

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JAN. 1966] Asian-African States and International Law 65

want at least fourfold development in the present system of inter-

national law.26 In the first instance, they want to annul the former
law of domination as expressed in the colonial system and the
" unequal " treaties. At the first Asian-African Conference at
Bandung in 1955 they declared that " colonialism in all its mani-
festations is an evil which should speedily be brought to an end." 27
This determination has been reiterated by these countries time and
again at every opportune moment. In 1960, they got a declaration
made by the General Assembly of the United Nations, without a
dissenting vote, which recognised that " all peoples have an inalien-
able right to complete freedom " and solemnly proclaimed " the
necessity of bringing to a speedy and unconditional end colonialism
in all its forms and manifestations." 28 Considering the colonial
rule as a sort of " permanent aggression " against their territories,
they seek to throw off the yoke of colonialism.29 In their view the
European domination and occupation of their territories was effected
in contravention of international law, and the duration of a few
centuries could not legalise the illegality of the European rule. In
other words, they contend that the rule of prescription is not appli-
cable in the case of colonialism.30 Howsoever shocking therefore it
might sound to the Western jurists, they believe that to throw off
the colonial rule, even by force if other means fail, is more or less
an act of " self-defence " and, being certainly in accordance with
the declared objectives of the United Nations, is not prohibited
under the United Nations Charter."l
The newly independent States also rebel against some of the
economic and political rights acquired by their former colonial
masters during the period of their subservience which they have
felt and still feel are unreasonable and, although accepted by the
present international legal order, inequitable. They sometimes

26 See R6ling, op. cit. supra, note 2 at 73-86.

27 Selected Documents of the Bandung Conference (Institute of Pacific Relations.
New York, 1955) p. 34.
28 See United Nations Review (January 1961) 6 et seq.
2) See R6ling, op. cit. supra, note 2 at 48; see also statement by V. K. Krishna
Menon, former Defence Minister of India, Times of India, January 1.
1962, p. 1.
30 See J. S. Bains, " The Liberation of Goa," Ch. 8 of his book India's Inter-
national Disputes at 197 et seq.; J. J. G. Syatauw, Some Newly Established
Asian States and the Development of International Law (The Hague, 1961)
p. 18.
31 See statement on Goa by the Indian delegate, Mr. C. S. Jha, before the
Security Council on December 18, 1961, and views of other Afro-Asian
countries before the Security Council and the General Assembly, Sixteenth
Session. See also K. Narayan Rao, " The Goa Liberation and the United
Nations Charter," Supreme Court Journal (February 1962) 12-14; Bains,
op. cit. supra, note 30 at 195-208. For opposite views see Quincy Wright,
" The Goa Incident " (1962) 56 A.J.I.L. 617-632; Kunz, " The Changing
Science of International Law," id. at 488-498.
I .c.L.Q.-1-15 3

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66 International and Comparative Law Quarterly [VOL. 15

refuse to submit to these inequitable legal rights which they feel

are not in accord with the changed international conditions. Thus,
an Asian writer, after reviewing the " glorious " European history
of the establishment and consolidation of empires overseas and of
the acquisition therein of vast economic interests by their nationals,
finds it (what is obvious) full of instances of a total disregard of all
ethical considerations. He then bitterly remarks:
A strange irony of fate now compels those very members of
the community of nations on the ebb tide of their imperial
power to hold up principles of morality as shields against the
liquidation of interests acquired and held by an abuse of
international intercourse. . . . To the extent to which the law
. . . favours such rights and interests, it protects an unjustified
status quo, or to put it more bluntly, makes itself a handmaid
of power in the preservation of spoils.82
Defence of these legal rights, in their view, is a defence of the
political system it consecrates. That seems, at least in part, to be
the reason for the hesitation or refusal of these newly independent
States to accept the jurisdiction of the International Court of
Justice for the settlement of their disputes with some of the colonial
Powers, such as in the Anglo-Iranian Oil Company case, or the
nationalisation of the Suez Canal, or expropriation of Dutch proper-
ties in Indonesia, or right of passage of the Portuguese authorities
over independent Indian territory. As the International Court of
Justice was expected only to enforce the " established legal rights "
they did not want to go before the Court. They insisted that
unjustified and inequitable political conditions should be eliminated
through negotiations and agreements and law should be modified
according to changed circumstances.3"

PROTESTS NOT CONFINED TO ASIAN-AFRICAN STATES

It must be mentioned here, however, that these protests against

some parts of international law are neither confined to the Asian-
African States, nor are they the first to demand the modification
of their legal rights. A perusal of the debates in the United Nations
organs, and even outside of it, makes it clear that most of th
underdeveloped States of Asia, Africa, Latin America and even
those of Europe, have joined in demanding that international law
should be responsive to the needs of the factual situations to which
it is being applied. The Calvo and Drago doctrines, that emerge
32 S. N. Guha Roy, " Is the Law of Responsibility of States for Injuries to
Aliens a Part of Universal International Law ? " (1961) 55 A.J.I.L. 866.
33 See Anand, supra, note 1 at 402-403; " Attitude of the 'New' Asian-African
Countries toward the International Court of Justice," 4 International Studies
(New Delhi, July 1962) pp. 119-132.

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JAN. 1966] Asian-African States and International Law 67

from the Latin American countries, are challenges to the traditional

international law which is against the interests of the debtor States.
So also, some of these countries are trying hard to modify old
treaties and change international law to make them more equitable.
Thus, the Foreign Minister of Panama attacked the treaty by which
the United States obtained the Canal Zone " as humiliating,
injurious, unjust and inequitable," and declared that it " does not
conform to the principles, precepts and norms of international law,
justice and international morality universally accepted today," and
strongly demanded its modification.34 This has also been the
experience in a long-standing dispute between Great Britain and
Guatemala over the territory of Belize,35 and a dispute recently
settled between Great Britain and Iceland about fisheries off the
coast of Iceland."6 The debates in the two conferences relating t
the law of the sea in 1958 and 1960 clearly demonstrate the comm
interests of all the underdeveloped States to modify the present
international law.
Nor should it be imagined that the problem is a new one which
has arisen only with the entry of these " heretics " into the fold o
international law. A little probe into history reveals another story.
Professor Percy E. Corbett tells us that States tend to disregar
treaties which no longer serve their interests:
Philosophers like Pufendorf and statesmen like Frederick
the Great and Bismarck have agreed with such brigand-dicta-
tors as Hitler and Mussolini that only fools attach any validity
to treaties once the balance of interests and of power that fixed
their terms has altered.3"

And he adds that, " the files of diplomacy are stuffed with
disregarded treaties." There is no scarcity of examples, says
Professor Corbett, to prove that " governments reared on the
strongest legal traditions can be led by notions of national interest
to turn a blind eye upon international obligations." 38
Professor E. H. Carr gives several such examples where the
Western Powers disregarded the treaties when they felt that their
interests were adversely affected by them. Thus, France in 1848
announced that " the treaties of 1815 are no longer valid in the
eyes of the French Republic." Russia in 1871 repudiated the Straits

34 Quoted in Lissitzyn, op. cit. supra, note 1 at 56.

35 See Castaneda, "The Underdeveloped Nations and the Development of
International Law " (1961) 15 International Organisation 41-42.
36 See Anand, supra, note 1 at 390.
37 Percy E. Corbett, The Study of International Law (Garden City, 1955) p. 26.
38 Corbett, Law in Diplomacy (Princeton, 1959) p. 37; for a similar view see
Lissitzyn, " Western and Soviet Perspectives on International Law-A
Comparison," Proceedings of the American Society of International Law
(1959) 21-23.

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68 International and Comparative Law Quarterly [VOL. 15

Convention placing restriction upon the passage of her warships

which had been imposed upon her by the Crimean War. President
Theodore Roosevelt declared: " The nation has as a matter of
course a right to abrogate a treaty in a solemn and official m
for what she regards as a sufficient cause." "9
Even after the First World War, in December 1932, the F
Chamber of Deputies refused to carry out the French war de
the United States on the ground that " the determining cir
stances " had changed since the conclusion of the agreem
years ago. In 1934, Great Britain ceased to pay its regular in
ment dues under its war agreement with the United Stat
agreement was declared to be " unreasonable " and " inequita
and the British Chancellor of the Exchequer, Chamberlain, ju
this breach of treaty on the grounds which can very well be
the " new " and underdeveloped countries in repudiating
treaties today:
When we are told that contracts must be kept sacred,
that we must on no account depart from the obligations w
we have undertaken, it must not be forgotten that w
other obligations and responsibilities, obligations not onl
our own countrymen, but to many millions of human b
throughout the world, whose happiness or misery may d
upon how far the fulfilment of these obligations is in
upon on the one side and met on the other.40
As a general rule, Professor Carr remarks:
Stronger States will insist on the sanctity of the trea
concluded by them with weaker States. Weaker State
renounce treaties concluded by them with stronger Stat
soon as the power position alters and the weaker State
itself strong enough to reject or modify the obligation.
Thus, he points out, Germany, Italy and Japan concluded
largest number of treaties with stronger countries, an
strengthened their position. And these are the countries
repudiated or violated the largest number of treaties. There
doubt, he goes on to say, that these latter countries would
the sanctity of treaties favourable to them and made with
States than themselves.41
This is precisely the position of the underdeveloped countries
today. The former colonial Powers are little inclined to relinquish
their legal positions. The victims of former exploitations are not
prepared to tolerate it any more. Although the courts can to some
39 See E. HI. Carr, The Twenty Years' Crisis, 1919-1939 (2nd ed., London,
1946) pp. 182-183.
40 Id. at 186.
41 Id. at 190.

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JAN. 1966] Asian-African States and International Law 69

extent be helpful in readjusting the law, it has rightly been pointed

out that the issues are too grave to admit of so easy, so optimistic
and so unscientific a solution. Apart from the fact that the law-
creating function of the courts is a limited function, it might be
inadvisable and inappropriate to submit to an ordinary court proce-
dure differences with regard to change in the law in force.42 The
legal machinery which has become essential to bring about rapid
peaceful change has not yet been invented. The result is the
emergence of unilateral acts by these smaller and weaker countries,
protected from the might of big Powers by " cold-war " tensions,
as means for changing legal positions. These unilateral and, in
European eyes, inadmissible acts are always accompanied by an
appeal to justice and principles of natural law.43
Apart from thus trying to remove the old colonial rights or their
lingering remnants, the " new " States demand the general applica-
tion of those sections of international law that formerly obtained
only between the " civilised nations." It is on this basis that they
claim the recognition of the right of self-determination, the accept-
ance of the equality of races without any regard to colour or creed,
and want equal representation on the international bodies, such as
the International Law Commission, the International Court of
Justice, Security Council and other organs of the United Nations.44
Furthermore, these weak and underdeveloped States desire the
development of international law so as to become a law of protec-
tion, a law which may protect the weaker States, especially
economically, against the overwhelming might of the stronger ones.
This is particularly apparent in their strong apprehensions in regard
to the law relating to the responsibility of States, which has often
been abused in the past, and their insistent demands for its modi-
fication.45 This latter desire is also sometimes depicted in their
great stress on the otherwise dwindling concept of national sove-
reignty, and their particular reliance on the domestic jurisdiction
clause of the United Nations Charter.4" Thus, it has been rightly

42 See Anand, Compulsory Jurisdiction of the International Court of Justice

(Bombay, 1961) pp. 77-79; Lincoln P. Bloomfield, " Toward a More Lawful
World," Proceedings of the American Society of International Law (1960)
71; M. O. Hudson, International Tribunals (Washington, 1944) pp. 247-248;
Julius Stone, " Non-Liquet and the Function of Law in the International
Community " (1959) 35 British Year Book of International Law 149.
43 See R6ling, op. cit. supra, note 2 at 95-96.
44 See id. at 74-76.
45 See G.A.O.R. Resolution 1803 (XVII), December 14, 1962, relating to the
" Permanent Sovereignty over Natural Wealth and Resources," and debates
in the UN General Assembly, November 12 to December 7, 1962, and
December 14, 1962. See also R61ing, op. cit. at 80-83.
4G See Abi-Saab, " The Newly Independent States and the Scope of Domestic
Jurisdiction," Proceedings of the American Society of International Law
(1960) 84.

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70 International and Comparative Law Quarterly [ VoL. 15

pointed out that the great upsurge of nationalism and the idolisation
of sovereignty among these countries are not merely reactions to
the period of dependence, but " means of clearing away the last
traces of bondage and of preventing any further bondage," as well
as " means of firmly anchoring national consciousness " in the
younger States themselves.4'
Finally, not satisfied merely with a negative law of peace, the
new majority of States demands an international law of welfare
which may promote their economies and help them in raising their
standards of living.48

INTERNATIONAL LAW NOT WHOLLY REJECTED

All these protests against certain aspects of international law,

demands for the modification of some old colonial rights or econo-
mically pressing treaties, and desires for the development of inter-
national law so as to make it a law of protection and welfare, do
not indicate any wholesale rejection of the present system of inter-
national law. Far from it. None of these States has ever denied
the binding force of international law and they in fact accept
large part of it without any question. Thus, Dr. J. J. G. Syatauw,
after an exhaustive study of the subject, reaches the conclusion that
although " there are indeed good reasons for Asian States to resen
traditional international law " as "' it has often been an obstacle
rather than a help for their national aspirations," they have not
arbitrarily rejected it and they, in fact, always plead their cases
according to its principles,49 with an underlying assumption, we
may add, that these principles are binding. Certain differences with
the Western Powers in regard to the codification and progressive
development of some parts of international law do not indicate any
rejection of the present system.50 They merely reflect the conflicts
of interests and their attempts to exert their influence in redrawing
the map of international law. The occasional outbursts against the
present system of international law, and wide assertions that the
newly independent nations are not bound by the old norms in
the making of which they had no part,51 indicate merely the protests

47 RSling, op. cit supra, note 2 at 78; see also Syatauw, op. cit. supra, note 30
at 34, 222.
48 See R6ling, op. cit. at 83-86.
49 See Syatauw, op. cit. at 230-231; but cf. S. Prakash Sinha, " Perspectives of
the Newly Independent States on the Binding Quality of International Law "
(1965) 14 I.C.L.Q. 121-131.
50 See, for instance, differences of opinion between Western Powers and Japan
on the one hand, and newly independent Asian-African and Latin American
countries, supported by the Communist bloc, on the other, at the two Sea
Conferences in 1958 and 1960.
51 See statement by Mr. Jha, op. cit. supra, note 31.

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JAN. 1966] Asian-African States and International Law 71

against the past inequities or their continued acceptance in their

territories. Such assertions, as Professor Lissitzyn rightly observes,
" must be regarded as an expression of the resentment the newly
independent nations still feel over their colonial past and as an
assertion of their sovereignty and equality." They also serve " as
a reminder to the older States that the views of the newcomers are
not to be disregarded in the formulation and the further
development of the law of nations." 52
Far from rejecting the tenets of international law on attaining
independence, the " new " States claim to be " scrupulous " adher-
ents to those principles. Thus, it is interesting to note that, on
becoming independent, the Asian-African countries generally accept
the old treaties concluded on their behalf by the former colonial
Powers until they are modified, renegotiated or replaced with the
consent of the other parties. After achieving its independence in
1947, India, for instance, considered itself bound by all the treaties
concluded by the British Indian Government, except those which
became inapplicable because of the partition of the sub-continent.
A list of 627 such treaties and agreements was made binding on
the successor independent India, some of which had been concluded
by the East India Company as early as 1815.53 Similar is the case
of other newly independent countries who accept the old treaties
and assume all the rights and obligations stipulated under them.54

CULTURAL INFLUENCE

Opinions are sometimes expressed that because of their different

cultural, religious, ethical, social and legal backgrounds, Asian-
African countries are unable to understand and appreciate the prin-
ciples of international law which are the product of an entirely
different Western Christian civilisation, and that this is one of the
chief reasons for their objections against the present system of
international law.55 It is thought that the policies and attitudes of
these newly independent States about international law and relations
are affected by their religious and cultural traditions and that these

52 Lissitzyn, op. cit. supra, note 1 at 54-55.

53 See M. K. Nawaz. " International Law in the Contemporary Practice of
India: Some Perspectives," Proceedings of the American Society of Inter-
national Law (1963) 279 et seq.
54 Ibid. See also Robert O. Tilman and R. T. Cole, The Nigerian Political Scene
(Duke University Press, 1962) pp. 63-88; statement by the Prime Minister
of Tanganyika in (1962) 11 I.C.L.Q. 211-214.
55 Thus, as late as 1956 Prof. Gerbrandy, a former Dutch Prime Minister,
seriously doubted if a Mohammedan, or a Hindu, could understand the essence
of aggression and maintained that this could only be possible for States with
a Christian culture. Quoted in RSling, op. cit. supra, note 2 at 21-22.

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72 International and Comparative Law Quarterly [VOL. 15

explain their intransigent behaviour and their attitude, for instance,

toward judicial settlement of their international disputes.56
Although it is difficult to give a conclusive opinion in this matter,
in the absence of any exhaustive research about the comparative
principles of different systems of law, there is little doubt that
such views, as Professor Lissitzyn correctly points out, not only
tend to " overlook the diversity of approaches to law that exist
both in the Western as well as non-Western part of the world," but
ignore the fact that even " the Western cultural tradition is no
guarantee of adherence to the ' rule of law ' in either domestic or
international affairs." In fact, as he reminds, the greatest challenge
to the traditional principles of law and morality in this century
came from a highly developed and educated typically Western
nation, right in the heart of Europe, viz., Nazi Germany.57 We
must also note that, in spite of the strong criticism against the
Asian-African countries for disregard of the traditional principles of
law, recent events in international relations have clearly demon-
strated that Western countries cannot claim to be innocent of that

charge.58 In fact the attitudes of the Western countries, as well

as those of the Asian and African nations, whether toward the
traditional principles of customary law, international organisations,
or newly developing areas of international law are determined, as
always, by their views of their interests."5 It is this conflict of
interests of the newly independent States and the Western Powers,
rather than differences in their cultures and religions, which has
affected the course of international law at the present juncture.
Thus, for example, at the two conferences on the law of the sea, no
agreement could be reached about the breadth of the territorial
waters, not because of different cultural traditions of Asian-African
countries, but due to the conflicting interests of the maritime
Powers and the weak and underdeveloped States, not only of Asia
and Africa, but of Latin America and Europe as well. It is not,
therefore, without a lot of reason that Professor Friedmann
remarks:

56 See Q. Wright, "The Strengthening of International Law" (1959-III) 98

Recueil des Cours 74-80; " The Influence of the New Nations of Asia and
Africa upon International Law " (1958) 7 Foreign Affairs Reports 38; " Asian
Experience and International Law " (1959-60) 1 International Studies 84-86;
F. S. C. Northrop, Taming of the Nations (New York, 1952) Chap. 7; Philo-
sophical Anthropology and Practical Politics (1960) pp. 160-168; Syatauw,
op. cit. supra, note 30 at 23-24, 25-26. But for a contrary view see Anand,
op. cit. supra, note 1 at 393 et seq. and note 33 at 119-132.
57 Lissitzyn, op. cit. supra, note 1 at 59-60.
58 See id. at 55, referring to the invasion of Suez in 1956 and of Cuba in 1961.
59 See Stanley D. Metzger, " Nations and the Rules of International Law-A
Commentary " (1962) 8 Howard Law Journal 124.

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JAN. 1966] Asian-African States and International Law 73

To confuse policies born of changing positions of interest

with religious, cultural, or other values inherent in the national
character or the culture pattern of a people, can only lead to a
grave distortion of the real problems of contemporary inter-
national politics and law. Just as in the Western world, the
relative positions of Britain, France, the United States, and
other countries have changed, with the change in their political
and economic status, so the positions of the presently under-
developed countries will be affected by their development.60

CONCLUSION

The above analysis, meagre as it is, leads us to the conclusion

that the Asian-African countries do not arbitrarily reject the present
system of international law. They accept a large part of it. In
fact they accept everything that does not smell of " colonialism and
imperialism." They are great champions of a new international
order based upon the principles of the United Nations Charter.
They are supporters of a strong United Nations because it acts as a
shield for them against the might of the big Powers, and helps them
in the promotion of their interests. Taking advantage of their
numerical superiority in the United Nations, they are trying to wipe
off the old colonial rights, and to modify the present law according
to their interests. The two conferences on the law of the sea, the
debates in the Sixth Committee, International Law Commission,
and other organs of the United Nations, the recent declaration on
the " granting of independence to colonial countries and peoples "
(of 1960), and the General Assembly resolutions concerning
" Permanent sovereignty over natural wealth and resources "
adopted in 1952, and reiterated in 1962 by another and stronger
resolution, are only a few of the recent examples of their influence
on the changing concept of international law.6' Although these
resolutions are not formally binding and no more than " recom-
mendations," their effect on the course of the development of
international law must not be underestimated.62

60 Wolfgang Friedmann, " The Position of Underdeveloped Countries and the

Universality of International Law " (1963) 2 International Law Bulletin 9-10
(Columbia Society of International Law, Spring 1963); see also Friedmann,
" The Changing Dimensions of International Law " (1962) 62 Columbia Law
Review 1151 et seq. For similar views see Lissitzyn, op. cit. supra, note 1
at 57-58; Stone, "A Common Law for Mankind? " (1959-60) 1 International
Studies 430.
61 See, for an analysis of these resolutions, Lissitzyn, op. cit. at 95 et seq.
62 See id. at 46; F. B. Sloan, " The Binding Force of a Recommendation of the
General Assembly of the United Nations " (1948) 25 British Year Book of
International Law 1-33; Johnson, " The Effect of Resolutions of the General
Assembly of the United Nations " (1955-56) 32 B.Y.B.I.L. 97 et seq.; F. A.
Vallat, " The Competence of the U.N. General Assembly " (1958-II) 94 Recueir
des Cours 207-292.

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74 International and Comparative Law Quarterly [VOL. 15

It may be said, on the one hand, that it is in the interest of

the newly independent countries to support the law and legal
methods, as they are the weaker members of the international
society and have most to gain from it. More important, they need
scientific, economic and technological help from the industrialised
Western Powers for the development of their as yet unexploited,
underdeveloped economies. They must assure the Western coun-
tries of their good faith and best intentions. There is, of course, every
reason to hope that they do understand the importance of this. Thus,
during the debates in the General Assembly on the 1962 resolution
relating to natural wealth and resources, they tried to allay all fears
and doubts in the minds of the capital-exporting States about their
adherence to international law and their future behaviour. While
they were unwilling to limit their freedom with respect to property
acquired by foreigners during the colonial period, that did not pre-
clude their willingness to guarantee new investments and new
agreements accepted by them on an equal basis.6"
It cannot be denied, however, that it has become essential to
re-appraise and adjust certain aspects of the present system of
international law in the light of the new conditions and new demands
of the present international society. Professor Carr rightly pointed
out that

respect for international law and for the sanctity of treaties will
not be increased by the sermons of those who, having most to
gain from the maintenance of the existing order, insist most
firmly on the morally binding character of the law.64
It is the task of diplomacy, now as ever, to arrive at international
agreements whose observance rests on the continuing self-interest
of the parties and not merely on coercion.
It is, of course, not a new problem. International law faces
today with somewhat greater intensity the ever-present problem of
a need for stability and the demand for change. As the old saying
goes: "' All things move, nothing abides." No political institutions,
or international arrangements--no sacred Troy or Capitol of Rome-
are exempt from this eternal law.65 In order that peace be enduring
" in this epoch of threatened catastrophe," 66 we must have a

G3 See debates in UN General Assembly, November 12 to December 7, 1962,

Doc. A/C.2/SRs at 831, 841-842, 845-846, 848, 850-859; 14 December 1962
at 1193-1194.
64 Carr, op. cit. supra, note 39 at 191-192; see also Jenks, op. cit. supra, not
3 at 85.
65 See John Fischer Williams, International Change and International Peac
(London, 1932) p. 2.
6, McDougal and Lasswell, " Identification and Appraisal of Diverse Systems o
Public Order," Studies in World Public Order (New Haven, 1960) p. 39.

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JAN. 1966] Asian-African States and International Law 75

peaceful and orderly process of change. Armed force in inter-

national relations can no longer be tolerated, nor can defunct
" rules " be thrust upon the new community. The rising aspirations
for a better life on the part of millions of human beings, hitherto
devoid of any expectation of receiving serious consideration, cannot
be suppressed. As it has been well said, " law must become more
political if politics are to become lawful." 67 The prohibition of
force can, therefore, only be based on a dynamic law of nations
establishing the conditions under which peace can be maintained.
Fundamentally, the interests of all States, Eastern or Western,
small or big, Communist or non-Communist, are tied up together.
It has been very well suggested that in order to have an effective
international legal order " we must inquire not so much what
potential conflicts divide them, but what principles and what pur-
poses they can develop in common." 68 An international legal
order built on common interests, and which seeks to promote the
well-being and fulfil the aspirations of the world-wide community
of peoples, will naturally become the focus of wider loyalties.

67 Pal, " The International Law in a Changing World" (1961) 48 All India
Reporter 102 (Journal Section, November 1961).
68 Carr, Nationalism and After (London, 1945) p. 62.

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