Role of International Law in Third World Countries

As discussed earlier, due to many factors, the States in the Third World have great differences with respect of their thoughts and practice. While having different interests in different areas, their attitudes towards international law can hardly balance on all the points. This is evident that they choose whatever they think compatible and useful with their own views, but reject or modify the others. However, it is not to say that the role of International law is absolutely weak in Third World countries.

We will then discuss some sources of international law that the Third World Countries find relevancy. Customs is one of them. Customs generates rules binding on all States as portrayed in Article 38(1)(b) of the Statute of the International Court of Justice which states “international custom, as evidence of a general practice accepted as law.” There are two key elements evolved around customs, whose importance reflects the decentralized nature of the international system. They are the actual practice of states and the acceptance by states of that practice as law (opinio juris sive necessitatis). This can be seen in the judgement of International Court of Justice (ICJ) in the Continental Shelf case, we quote:

“In order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.”

As for the actual practice of the States, it comprises various elements which are relevant in determining whether a practice may form the basis of a binding international custom. All such elements include consistency, duration, repetition, and generality of a particular kind of behavior by states. For a practice to be considered binding, it is required by ICJ that the practice has to be amounted to a “constant and uniform usage” or be “extensive and virtually uniform”. After establishing a practice, a second element converts a mere usage into a binding custom, which is the practice must be accepted by states of that practice of law. This is affirmed again in the North Sea Continental Shelf (Libya v. Malta) case in which it was ruled that both these elements must be present in order for a new rule of customary international law be created. Practice alone is not enough. Likewise, a rule cannot be created by opinio juris without actual practice. On top of that, if the State has already acted in a particular consistent manner, then such States may find themselves legally obliged to be acting in such a manner.

Today, international custom is accepted over a long period of time as a particular pattern or rule of conduct as being binding. However, in deciding whether a particular practice has been upgraded to the level of international custom or not, it depends upon the circumstances of the case. Nevertheless, it must be noted that there are a number of very essential rules and principles which are well accepted by all nations as binding. For instance, there are a number of rules regarding the use of the high seas for peaceful navigation, or the rule that enemy property ought not to be devastated or prisoners-of-war be killed. Unlike treaties, these rules are rules of customary international law which being valid in their own right and have grown to be accepted.

Third World Countries normally favor treaties over customary international law. The application of customary international law can be seen if there is no treaty binding on the two parties to a dispute, or if one of the parties to the dispute is not a party to a treaty, then the court has to rely exclusively on customary international law for the determination of the dispute. Nevertheless, it is undeniable that the problem in identifying customary international laws has real consequences. Courts around the world must first determine for themselves if any customary laws apply to domestic cases in order to ensure their respective countries’ compliance with international law. This is because if identify customary international law without unanimity, what is considered international law in one State may be distinct from what is considered international law in another State.

It is apparent that many of the current issues shows the fact that customary law by definition is unwritten. The definition derived from the Statute of the International Court of Justice (ICJ), “international custom, as evidence of a general practice accepted as law” has often been said to be a result of “poor drafting.” This is because the fundamental terms in this definition have yet to be clarified though nearly seventy years have passed since the ICJ articulated this definition. The phrase of ‘general practice’ is considered vague as it was confused whether a practice is universal or it is simply practiced by a majority of the States. It is tempting to blame the inefficiency of the International Law Commission, the United Nations, or any other international body for failing to provide a clearer definition for such an important term as well as failing to address the inherent complications of customary law. It is perhaps the greatest weakness of the ICJ’s definition which it lacks of clarity and because of this it allows for its greatest strength which is its flexibility. With its unclear definition, customary law allows domestic courts to interpret the application of these laws for their own countries in a flexible manner. The flexibility to interpret at a domestic level is particularly vital for individual states regarding customary law.

As contrary to treaty law, custom is binding upon all States once it is determined to be part of the international law regardless of whether or not a country has consented to that specific law. A new established State would normally falls under Third World considering its stability in the indicators mentioned earlier. It is high likely that a new State will oppose the application of some pre-existing customary rules as in the present world, the economic and social systems of the newly independent States which have been established as a result of revolutions differs from those of older States.

Thus, owing to the heterogeneous character of the community of nations, the customary rules created by the older States can hardly be corresponded to the interests of the new ones since some of the customary norms of traditional international law reflect the interests of the imperialist and colonial powers. However, this does not provides the Third World countries to reject the entire body of customary international law. This can be seen when one of the representative of India in the U.N. Security Council while debating the question of emancipation of Goa from Portugal stated that:

“We accept many tenets of international law. They are certainly regulating international life today. But the tenet which says, and which is quoted in support of colonial Powers having sovereign rights over territories which they won by conquest in Asia and Africa is no longer acceptable. It is the European concept and it must die. It is time, in the twentieth century that it died.' He further added that “International law is not a static institution. It is developing constantly. If international law would be static, it would be dead driftwood, if it did not respond to the public opinion of the world. And it is responding every day, General Assembly resolution 1514(XV) is the embodiment of that great leap forward in the public opinion of the world on these matters.”

Due to the same reason, treaty law is said to be favored by the Third World countries much more than custom as a source of international law because treaties allow them to participate in the formulation of the law. Treaties which are based on universally accepted values, including their own, or those which provide an effective basis of reciprocity would only be accepted by the Third World States. Moreover, the Third World countries tend to introduce restrictions on the freedom of States to conclude treaties. They consider that treaties which are in conflict with peremptory norms of general international law do not create rights and obligations on parties, hence they are considered null and void. Relying on the maxim of pacta tertiis nec nocent nec prosunt (means a treaty only binds its parties), they believe that a treaty shall not create any obligations or rights for a third State without its consent.

Moreover, as regards to ‘general principles of law’, the Third World countries was of the opinion that it may be of some importance to them in the sense that their legal systems may be able to make a contribution to the development of international law. This is because they opined that the most important principle of international law is that of good faith. It is the foundation of treaty law which governs the creation and performance of legal obligations. Another important general principle is that of equity, which permits international law to have a degree of flexibility in its application and enforcement in upholding justice.

Next, territorial inviolability provides the greatest importance to the Third World. This is apparent when territorial integrity and sovereignty are regarded as legal shields against outside incursions and aggression. Furthermore, they deny the territorial encumbrances which if any, imposed on them during colonial period. It can be seen when they refuse to accept 'servitude' as a principle of international law. The newly independent States take into account the geography, history, culture and local opinion in determining title to territory rather than accepting the traditional doctrine of international law which confers a valid title to territory by discovery, and occupation. They criticize and not accept the theory of 'terra nullius' according to which the territories not in possession of a Christian prince were regarded as 'No Man's lands' and were subject to acquisition by Papal grant or by discovery and occupation.

For self-determination and racial equality, when United Nations Convention on Racial Discrimination was adopted in 1965, and again in 1966, when the two UN Covenants on Human Rights included Article 1 which laid down the principle of self-determination are the result of the Third World countries keep insisting and demanding them into legal principles. This can be seen as the Third World countries accepting these concepts with big hand. Following that, in order for the emancipation of colonies from Western rule, the Third World countries have used the concept of self-determination as an instrument of political pressure. According to them, decolonization must further lead to political, social and most importantly economic development.The actions can be seen when the anti-colonial resolutions adopted in 1955 at the AfroAsian Conferences at Bandung, at Accra in 1958, and at Addis Ababa in 1960 and at the United Nations General Assembly in 1960 without a dissenting vote called for acceleration of the decolonization process.

Next, the importance of recognition of States and Governments cannot be over-emphasized in this contemporary interdependent world where mutual cooperation between States is an unavoidably necessity. This raises great concern upon the Governments, international organizations, tribunals, private citizens as well as their legal advisers. Nevertheless, the subject has also been suffered from political overtones and flippant political judgement. One of the writer elaborates that, “Recognition has been the football of diplomats who have made it mean anything that suited their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and intervention.” A liberal approach was taken by the newly independent States towards the recognition of States and Government and this kind of approach is considered standing out. Furthermore, they have shown a very unusual attitude as to the recognition of insurgents fighting a liberation war. This is evident as before the insurgents acquiring complete control of the territory in question, the newly independent States have accorded such groups recognition.

Article 2(1)(b) Vienna Convention on Succession of States in respect of Treaties, 1978 defines state succession as 'the replacement of one state by another in the responsibility for the international relations of territory. The replacing state is called a 'successor State' defined under Article 2(1)(d) means a State which has replaced another State on the occurrence of a succession of State. The replaced state is called a 'predecessor State' means the State which has been replaced by another State on the occurrence of a succession of States. The option of simply denying State succession to treaties, known as the tabula rasa or clean slate doctrine. The new States under Third World countries prefer to start with a clean slate without inheriting the burdens of the colonial era in the past. They seek for a discretion to decide which treaties are binding upon them, and which treaties are not.

In other words, they want an opportunity to reject, to modify or to accept the colonial treaties. This is in line with the implementation of the principle of self-determination and to the consolidation of their sovereignty. However, reality speaking, they will not declare themselves not bound by the treaties which were concluded when they were colonized, but they will express that they reserve the right to repudiate them, or the treaty remain in force for a specific period of time until a new arrangement is made.

In international law, all States are deemed equal regardless of the class they belongs to. Thus, all States enjoys equal sovereignty which shields them from foreign incursions or threats, empowers them rights over the wealth and natural resources in their territory so as to develop their economic position to the level of the developed countries. This is surfaced in the United Nations General Assembly, Economic and Social Council, in the deliberations of specialized UN agencies such as the United Nations Conference on Trade and Development and in other general and regional organizations. The Third World countries feel that the right of people to self-determination must be deduced not only from politics, but also in the economic point of view. Since political independence depends closely on economic independence, it is argued that the States’ right to freely dispose their own natural resources has to be recognized as an essential element of economic independence. At the same time, it signifies that the territorial State will always remained with the power to alter the status or the way they exploit the resources, regardless of any prior arrangements.

The Third World countries rely on Article 2(2)(c) Charter of Economic Rights and Duties of States saying each State has the right to nationalize, expropriate or transfer ownership of foreign property, in which appropriate compensation should be paid by the State adopting such measures, considering its relevant laws and regulations and all circumstances that the State considers pertinent. If the question of compensation raises controversy, it shall be settled under the domestic law of the nationalizing State and by its tribunals, unless it is freely and mutually agreed by all States otherwise. 'The new international economic order', as pointed out by the Chinese delegate in the U.N. General Assembly in 1980, “would thus be called upon to uphold the developing countries' right to development, to do away with the old structure of formal equality and to establish international economic relations on the basis of the equal and sovereign rights of States and such principles as equality and mutual benefit.”

Nevertheless, Third World Countries in setting their law of the sea, were motivated by the aim to protect the State from any possible economic incursions from big maritime powers. It is a fact that most of the newly independent States often claim themselves a larger territorial of the sea; exclusive rights of fishing and no-others right of exploitation and managements of the natural resources in the Exclusive Economic Zone and in the Continental Shelf. They opined that the traditional freedom of the sea would only benefit the powerful States who have advanced and sophisticated technology capabilities. Further, they hold the view, that the resources of the seabed and ocean floor beyond national jurisdiction should be the common heritage of mankind.

Last but not least, in settling inter-State dispute, Third World Countries prefer the diplomatic mean of solution, instead of the adjudicative mean. They prefer to negotiate, inquire, reconcile and mediate to settle international disputes, over arbitration and judicial settlement (court process). The reason may be that the Third World Countries is hesitant to adopt an adversarial way in solving dispute. They rather make good use of their diplomatic ties with others to come into a consensus of solution. Meanwhile, the matters of trade and evasion of crime or any other matters often requires the coordination and cooperation of other States, thus Third World Countries in this sphere of consideration often resort to the diplomatic means for a win-win situation.

To wrap up, the Third World Countries requires more participation and cooperation of other sovereign States and a change in the discipline themselves to improve the situation of “victimization” for the practices of international law to bring forward a real change and justice.