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International Law as a Cultural Excrescence
Published online by Cambridge University Press: 28 March 2017
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- Copyright © American Society of International Law 1973
References
1 Bozeman, , the Future of Law in a Multicultural World (1971)Google Scholar, reviewed in this Journal, 66 AJIL 422 (1972).
2 Cf. Mossner, , Die Völkerrechtspersönlichkeit und die Völkerhechtspraxis der Barbareskenstaaten (1968)CrossRefGoogle Scholar, reviewed in this Journal, 63 AJIL 669 (1969).
3 The expansion of the purview of “European” international law from the “community” of Christendom to the “society” of the world in modern times was incisively analyzed in Schwarzenberger, G., The Rule of Law and the Disintegration of the International Society, 33 AJIL 56 (1938)Google Scholar, where it is pointed out that the rise of positivist theory made it impossible to deny the benefits of equality before the law to an ally in the balance of power game (at 70). Difficulties in communicating a concept of minimum standards of justice that were perceived (rightly or wrongly) by Professor Schwarzenberger did not, in his opinion, halt the spread of a universal international law. To carry the argument one step further, Baty, Thomas, The Trend of International Law, 33 AJIL 653 (1938)Google Scholar, pointed out (at 659) that various ideological concepts, particularly communism and the adherence to “transcendental values” in the non-Communist world of 1938 (including many people in Japan and China) had blurred the legal concepts of territorial inviolability. His perception of transnational movements extending beyond “culture” areas, while perhaps rather quaintly expressed from the retrospect of 35 years, has been, if anything, confirmed. See Sumida, G. A., Transnational Movements and Economic Structures in 4 The Future of the International Legal Order: The Structure of the International Environment 524 (Black, & Falk, eds. 1972)Google Scholar. Baty was himself attached for some years to the Japanese Foreign Service as an expert adviser in international law.
4 Sapir, E., Language, Race and Culture in The Making of man 142 (Calverton, V. F. ed. 1931)Google Scholar. Erikson, Erik, Childhood and Society (2d. ed. 1953)Google Scholar, finds the essential approaches to the world determined by childhood experiences having nothing at all to do with language as verbalization. Indeed, although again I disclaim expert knowledge and, for that matter, confidence in the conclusions of those active in the controversy, the popular press seems to regard the researches of Noam Chomsky as indicating an essential identity at the deepest levels binding all human languages.
5 Cf. Lissitzyn, , International Law Today and Tomorrow 94 et seq. (1965)Google Scholar; Asian States and the Development of International Law, Part Four (R. P. Anand ed. 1972).
6 This is usually expressed as resentment against a colonial history and in legal terms normally involves accusations that the law was not applied reciprocally to non-European political societies as it was to European states. Cf. Syatauw, , Some Newly Established Asian States and the Development of International Law, 29 et seq. (1961)Google Scholar. The claim of historical unfairness in the application by Europeans of nonreciprocal rules of law to non-European political societies is in many cases clearly documented. Cf. Rubin, , The Use of Piracy in Malayan Waters in Gbotian Soc. Papers 1968 at 111 (Alexandrowicz, C. H. ed. 1970)Google Scholar. Cf. O’Connell, D. P., International Law and Boundary Disputes, Proc. Ameh. Soc. of Int. Law 1960 esp. at 80–81.Google Scholar
7 Two outstanding secondary works, among many, are Immanuel Hsü, C. Y., China’s Entrance into the Family of Nations (1959)Google Scholar and Hsiung, James Chieh, Law & Policy in China’s Foreign Relations (1972)Google Scholar. Anybody perusing the diplomatic correspondence of Communist China must conclude that Chinese international lawyers are as able as any other legal spokesmen for governments.
8 Rubin, , The Position of Tibet in International Law, 35 The China Quarterly 110 at 110–19 (1968)CrossRefGoogle Scholar.
9 Cf. Kelke, W. H. H., Feudal Suzerains and Modern Suzerainty, 17 L. Q. Rev. 215 (1896)Google Scholar. Indeed, the word “suzerain” is not of Asiatic origin, but European.
10 Primary sources dealing with Thailand, for example, include such published English language compilations as The Burney Papers (1910–1914) and Crawfurd, John, Journal of an Embassy from the Governor-General of India to the Courts of Siam and Cochin China (1828)Google Scholar. The Journal of the Indian Archipelago (J. R. Logan, ed. 1847–1859) contains reprints of many of the archives of the British settlement in Penang and the interactions with the Thai resulting from contacts in the eighteenth and early nineteenth century. Secondary sources indicating the sophistication of Thai officials and their familiarity with Western governmental organization and concepts of international law as early as the 1680’s would include such standard works as Anderson, John, English Intercourse with Siam in the Seventeenth Century (1890)Google Scholar and Collis, Maurice, Siamese White (1936)Google Scholar. But a listing of the works in English dealing with Thailand alone that negative the book’s thesis about lack of meaningful communication would run to pages. What is true of Thailand is also true of all other areas familiar to me with which the book deals. A complete listing of primary and more or less standard secondary sources lacking in the book’s bibliography and essential for an understanding of relationships between Europe and at least China and “India and Indianized Asia” would be very long indeed.
11 Cf. Radical Perceptions of International Law and Practice in Proc Amer. Soc. of Int. Law 66 AJIL (No. 4) 162 (1972).
12 Bozeman, he. cit. 20–23, 42–43.
13 Cf. Mann, Thomas, Neitzche’s Philosophy in the Light of Contemporary Events, address given in the Library of Congress April 29, 1947, reprinted in Thomas Mann’s Addresses... 69 (1963)Google Scholar.
14 Bozeman, he. cit., 130, 131.
15 Hall, D. G. E., A Histoby of South-East Asia (1955)Google Scholar passim. See dynastic tables at 733.
16 Ibid. See dynastic tables at 750–51.
17 The evidence is too diffused to summarize here; the practice of the different Indonesian and Malayan Sultanates differed. Some evidence concerning the course of a dynastic squabble in the Sumatran Sultanate of Atjeh is analyzed in Rubin, The Use of Piracy in Malayan Waters, cited supra note 6, at 127–30 and the works cited there. A fuller and more comprehensive analysis in the context of the struggle between the Dutch and British for control in Singapore Island is in Rubin, The International Personality of the Malay Peninsula (in process of publication). Some further inkling of the subordinate role played by royal regalia in Indonesia can be inferred from accounts of the Perak succession struggle of 1874. See Cowan, C. D., Nineteenth Century Malaya 218 et seq. (1961)Google Scholar; Parkinson, , British Intervention in Malaya 1867–1877 120 et seq , esp. at 157–58 (1964)Google Scholar.
18 One example which is particularly easy to refute is the citation to China’s border battle with India in 1962 as an outgrowth of Chinese duplicity rooted in “culture” (at 7). For the facts, see Maxwell, India’s China War (1971) reviewed in this Journal at 65 AJIL 859 (1971). It would serve no useful purpose to recite the author’s many misconceptions regarding international behaviour as perceived by non-Westerners.