May 03, 2007

From my window….

From my window

From my window, I see children playing in the streets.
I hear fireworks manifesting November’s treat.
I glance at random people walking by.
From my window, I see a whole world fly.

This is my window.
An object made out of wood and glass.
Both are destructible yet they work as an impasse,
to intruders, at last.
An interesting concept – so vast.
Where to draw the line? How to define it?
Physically? Subjectively?

From my window I see nothing.
I see a reflection of my own window on the window of the house across the road.
It all looks the same.
Beyond that wooden and glassed structure, nothing remains.
To that we shall not inquire, for it may be an intrusion of my neighbour’s privacy.

I see nothing because it’s dark.
Yet I notice random shadows in the street.
I hear a plane fly by.
What does the pilot see?
Nothing, surely.
Its dark.
Maybe he too, sees random shadows below his feet.

Back to privacy.
Surely if I pop my head over my neighbour’s fence whilst she’s sunbathing would count as an intrusion of her proprietary privacy: that is, her right to enjoy
Her life privately
Within the vicinity of her own home.
But what about the pilot, flying the plane?
He can certainly glance down, and see different things,
And see many people sunbathing, even when it rains.
Yet people don’t seem too really mind about that.

What else can my window tell me?
It plays an interesting, vital trick.
It allows sunlight in the house – an invasion of privacy?
That would be to stretch one’s imagination beyond what needs be.

More importantly, from my window, I see freedom.
I see the world beyond this glassed structure.
I see doors in houses opposite.
Opportunities that can be opened.
Flowers that blossom.
People, random.
Then I understand the value of privacy,
And the pleasure of liberty.
For liberty is really, to look outside the window in a sunny or rainy day, and fear nothing – and open the door and step outside.
Fear nothing, for your window is not an impasse, not a veil protecting your own privacy – but a sign of freedom, of perspective, of ideas.
Stand up and re-visit the windows in your house.
You’d find more than just a wooden and glassed structure: you’ll find yourself.
Demolish the house, rebuild it if you like – but you’ll notice that if there is one thing that houses can’t do without: windows.

Look at your window and think of it as an opportunity.
A bridge, a possibility.
Look at it and think: this is my window, my child, my sexual fantasy.

There is usually one way in a house, that is, through the door.
That is precisely the purpose of a door:
A medium of providing access to someone’s property. And to privacy?
It serves no more.

But windows, oh windows, they’re different.
They’re transparent.
They cement darkness with light.
Sometimes you can even stare outside without being noticed by the outsiders.
They enhance the colours in your room and,
The light in your life.

From my window, I see you, a reflection of my sight.

Extraterrestrial Law: The Legal Implications of Alien Co–Existence (co–authored with Jay Jagaysia)

“I think what we feared were the possibilities, the truth we both know” (Fox Mulder, X-Files)

Extraterrestrial intelligence has fascinated human populations from ancient Greece to modern times. Beginning with Democritus and later supported by Copernican ideology, the concept of potential contact with alien life is certainly not a novel idea. Historical interest has manifested itself through modern mediums such as conspiracy propaganda, science fiction literature, television programming, and Hollywood movies. From Star Wars to my personal favourite the X-Files (my co-author is shockingly a Star Trek enthusiast), there is no escaping the reality that the possibility of extraterrestrial contact has shaped our modern psyche. The truth is certainly out there, and until discovered, precautionary principles dictate that the best way forward is to presume in the interim that alien life does exist and that contact will eventually be made. This article proceeds on the basis that extraterrestrial contact will be made, and that alien life will be accommodating to co-existence with human life. Simply put, we will be dealing here with the friendly green aliens, not the mean ones associated with such films like Predator and War of the Worlds. If harmonious co-existence is to ever be achieved, surely legal instruments will have to be used to regulate extraterrestrial affairs. Can existing legal principles be modified to meet the needs of extraterrestrial law?

Property Law and Aliens – Space Easements, Universal Adverse Possession, and Intergalactic Nuisance:

The easement holds great promise as a legal tool to regulate rights of way in space. Convenient transportation routes take on a new meaning in space, where detours may take on a light years dimension. Black holes would no doubt represent a formidable transportation advantage to those who controlled them, allowing space ships to move quickly to distant galaxies. Assuming that express easements or easements of necessity will not be common because of obvious language differences and the vastness of space, and that the requirements of Re Ellenborough Park [1956] would remain applicable, what form would easements arising by prescription take on? What will constitute long use and acquiescence in space? Perhaps our earthly notion of years will have to be magnified to take into account the time delay in space travel. For example, instead of 12 years of continuous use being sufficient to satisfy a prescriptive easement, easements regulating humans and aliens will require the introduction of a new quantum of light years. Acquiescence requirements will also have to be modified. Space ships and planetary radar technology will surely be able to detect users across wide distances. It may be that acquiescence will be presumed on the basis that the user was not destroyed in space by the ballistic capabilities of the servient owner.

Adverse possession will certainly take on a new dimension in space. Since space represents such a vast area, there will be a strong utilitarian policy impetus to allow for legal regulation that seeks to maximise the use of property in space. If the principles of adverse possession will ever have a legal role to play in regulating alien and human behaviour in space, then the limitation period will have to be adjusted to reflect any necessary temporal enlargement. 12 years will certainly not be enough time to allow for space travel. The implications of the Land Registration Act 2002 will also have to be considered. Although at this time unclear, different languages surely must exist among alien populations, and the Register will have to be multi-lingual in order to accommodate the affected parties. With this said, if alien populations are as advanced as I personally know them to be, then they will presumably be able to speak many languages, including earthly ones. However, us primitive humans will find great difficulty in understanding alien dialect, and translations will have to be provided so that we can effectively assess our positions. A wider consideration is the potential scope of adverse possession. Can aliens and humans gain legal interests in planets or only parts of planets? This may not be very important if there is a proprietary dispute over useless Pluto, but may take on greater significance in more exciting planets, especially if they prove to be resource-rich.

The law of nuisance will probably take on a most exciting role in extraterrestrial law. Will the paradigmatic authority of Bernstein v Skyviews (1978) any longer hold any weight, or will we have to revert back to a strict interpretation of the cuius est solum maxim which holds that he who owns land owns everything reaching up to the very heavens and down to the depths of the Earth. Alien surveillance technology will no doubt be much more invasive, and there are legitimate concerns that surveillance from even long distances may infringe an owner’s right to private and home life. Extraterrestrial law may have to extend existing protections in the light of alien technology. Of perhaps greater significance will be whether the law of nuisance will be able to accommodate situations where aliens and humans live together as neighbours. The encroachment of alien life will likely bring new nuisances such as ‘green slime’ residue, foul smells, and unimaginable noise disturbances. Further, what we may describe as typical will have to be adjusted in the light of complaints brought by alien populations.

From International Law to Intergalactic Legal Principles:

We are limited, not by our abilities, but by our vision. Vision is, indeed, the art of seeing what is invisible to others. Our legal system tends to provide specific and limited responses to particular problems. Moreover, the law tends to be excessively anthropocentric. The product of these inevitabilities is two-fold. First, our legal vision is limited by our human experiences on earth. Second, and despite what natural lawyers may contend, the law is a creation of the human imagination, and is therefore utilised to govern the machinery our very own civilization.

This article invites the reader to contemplate beyond our foundations on Earth. Ask yourself this: what would happen if a human came into personal contact with an extraterrestrial being? One can only speculate the various answers to this question. However, in the US, The Extraterrestrial Expose Law 1969 makes it illegal for somebody to have contact with an extraterrestrial being. The Federal Statute states that “anyone guilty of such a contact automatically becomes a wanted criminal to be jailed for one year and fined $5,000. The N.A.S.A administrator is empowered to determine with or without a hearing that a person or object has been extraterrestrially exposed, and impose an indeterminate quarantine under armed guard, which could not be broken even by a court order”. Surely, this sounds odd. Is it in the best interest of humanity to confirm, or disconfirm, the existence of extraterrestrial life? Perhaps for the US, aliens will be the next personification of terrorism. However, remember that this article deals with friendly aliens. What will their rights be? Will we owe duties to them? How will contact with extraterrestrial life affect international/universal law?

The Universal Declaration of Human Rights (UDHR) emphasises that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world.” By undertaking a rather straightforward literal construction, it is clear that aliens are left out of the human rights equation. Will we detain them and conduct cruel experiments on their frail little green bodies? Surely Article V, which prohibits torture, cruel, inhuman or degrading treatment, will not be of any use to the little green creature. Article IV of the UDHR provides that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ Extraterrestrial beings, however, are not privileged enough to benefit from this provision: under international law, it is arguable that an alien would be considered ‘less than human.’ We all know that this form of overt discrimination, or even hierarchical categorisation, has been the cause of many catastrophes in the past. Just think about the potential for future conflict that such treatment may cause. We abuse their innocence and generosity, benefit from scientific experiments, dishonestly appropriate their futuristic space ships (would that count as theft?), only to later find out that those species are part of a wider civilization which has the ability to destroy planets and even galaxies. Thus, we ought to grant them rights – Alien Rights – so that human beings and aliens can co-exist peacefully. This may, however, cause juridical difficulties. If an alien decides to bring an ‘Alien Rights’ claim before a human court, we ought to have a judicial bench composed of a mixed panel: human and alien judges sitting alongside each other.

Once extraterrestrial contact becomes frequent, the creation of an ‘Intergalactic Court’ may prove to be the only judicial mechanism to govern disputes between civilizations in different galaxies. The court will be empowered to interpret future sources of law such as the Prevention on Inter-Galactic Genocide, The Treaty on the Protection of Space Minorities, and the Universal Intellectual Property Treaty. The formulation of such intergalactic laws will certainly pose drafting difficulties. Aliens may have a different interpretation of justice, or perhaps they don’t even strive for such a concept. An ultramodern legal profession could emerge, with intergalactic lawyers holding LL.BTs (Legum Baccalaureus Terra). Legal education will be transformed. Warwick may even have a campus on Mars.

The use of force provisions in Art 2 (4) of the UN Charter may have to be extended and modified to encompass the ‘territorial integrity or political independence of any Space State.’ Jus Cogens principles will have to adapt to the universal values of the day. Our understanding of self-defence in international law, and particularly the concept of pre-emptive strike, will have to reflect the respective technologies of the time.

How could trusts law become relevant in our relationships with aliens? Hopefully, the basic tenets of trusts law will change so that human beings will be able to hold planets on trust for the benefit of aliens, and vice versa. Furthermore, the inhabitants of a planet will be able to hold the planet on trust for the benefit of future generations. Most of the tidal effects seen on the Earth are caused by the Moon’s gravitational pull. Before somebody sells the Moon to an evil alien who plans to deprive us from our lunar benefits, there should be a general principle of international trusts law providing that our generation ought to hold the Moon on trust for the benefit of future generations.

Blaise Pascal once wrote “through space the universe encompasses and swallows me up like an atom; through thought I comprehend the world”. Although this article may seem, and quite rightly, a work of fiction, it nonetheless challenges our limited, anthropocentric vision of law. We ought to initiate a journey, beyond our planetary frontiers, to consider the extraterrestrial application and justiciability of our laws before it becomes too late.


The inspiration for this article came from a paper published by our own Gary Watt entitled “The Soul of Legal Education”, which called for greater imagination within the fabric of legal matriculation. From the student perspective, imagination can provide not only a useful tool to complement our legal studies but can also serve to breed some much needed life into law, which may help us to overcome the banality of revising legislation and memorising key decisions. In this sense, the article is intended to attempt to move in the direction intimated by Gary Watt, and to demonstrate that the scope for imagination in law, although latent, can be potentially wide reaching. Although our ideas were meant to be lightly received, there are some important material considerations resulting from our fictional analysis. It is clear that it will be extremely difficult to import existing legal principles to govern relationships in new jurisdictions between parties who share little in common. The better way forward may focus instead on Rawlsian first principles and mutual negotiation from an original position. In this way, prejudice can be removed from legal principle, and affected parties can instead work from a clean slate, so that everyone can leave the party with an equal slice of cake. Although this may always remain a pipe dream at the global level, the future prospects within Europe may be more promising. With enlargement into new areas with vastly different cultures and legal traditions, perhaps lessons can be learned from a fictional exercise which seeks to simulate the inherent difficulties of legal harmonisation across cultures, States and even space.

  • The authors would like to acknowledge Jabba the Hutt, Dana Scully and Spock for their helpful comments on earlier drafts. Any omissions or mistakes are of course our own.

January 04, 2007

Saddam's death: The Hypcocrisy of the United States Administration

All in the name of progress they claim. Capital Punishment. Isn’t that what they did in 15th century Europe?

November 19, 2005

A Critique of Judicial Impartiality (published OD Law Journal Winter 2005)

In every civilised and developed jurisdictional system, adjudicators are expected to be both fair and impartial. These qualities are generally perceived as being inherent and fundamental to the art of adjudication. It’s surprising how theories sound overwhelmingly absolute and accurate. After spending a few weeks in the House of Lords, Court of Appeal and Asylum and Immigration Tribunal this summer, I have, however, come to the conclusion that judges aren’t as impartial as legal theory recommends or Practice Codes stipulate. Accordingly, this article will analyse, inter alia, the relationship between judicial bias and Article 6 of the European Convention on Human Rights. Article 10 of the Universal Declaration on Human Rights also provides a similar right to that of the Article 6 ECHR, but I will limit my observations to the latter as it holds a stronger legal status in English Law than the former due to the effect of Human Rights Act 1998. This analysis will demonstrate how judicial bias undermines the required impartiality of the Bench, thus drawing a controversial yet realistic conclusion that judges cannot conform to such a quality in real life.

Impartiality defined

There exist different philosophical conceptions of impartiality. According to Bernard Gert, “A is impartial in respect R with regard to group G if and only if A's actions in respect R are not influenced at all by which member(s) of G benefit or are harmed by these actions." (Gert 1995, p.104). Impartiality does not require, however, that individuals be treated equally under all circumstances. People or groups should be treated differently if they merit different treatment according to external and objective morality. For example, most legal systems seek to treat murderers differently than innocent persons. This is not a result of partiality, however, because it appeals to an external, objective standard – the law – rather than bias or prejudice. Thus, what impartiality requires is not that everyone receive equal treatment, but rather that everyone be treated as an equal (Dworkin 1977, p. 227). Rather than being put in terms of an impartial point of view, the relation between morality and impartiality is sometimes made out in terms of an impartial agent or observer -a person who makes moral judgments without being influenced by the sort of contaminating biases or prejudices that tend to arise from the occupation of some particular point of view. (Smith 1976 [1759]). However, it is inappropriate to inquire into moral objectivism when considering judicial impartiality as judges are only required to act as legal rather than moral agents.

The Law

One of the fundamental principles of justitia naturale and of the Rule of Law dictates nemo judex in causa sua, a canon of natural justice No judge should preside over a matter in which he has a personal interest or involvement. A judge with an interest related to the proceedings before him should declare it and then, as appropriate, may stand down of his own accord or if requested. If this is not done, a presumption of bias arises and any decision he makes may be challenged.

Article 6 ECHR provides that ‘in relation to civil rights and obligations, and the determination of any criminal charges against him there is a right to a fair trial in public before an independent and impartial tribunal established by law’. (see also Art.10 of the Universal Declaration of Human Rights 1948). Furthermore, Common law provides that adjudicators should not sit in matters in which they have an interest – as in Re Pinochet 1998 where Lord Hoffman, as a Director of Amnesty International, failed to disclose his private interest in the case; and Dimes v Grand Junction Canal Proprietors 1852 where Lord Cottenham gave judgment in favour of the canal company, in which he held shares. The consequences of these judicial ‘mistakes’ leave a stain on the British judiciary which the system is doing its best to explain away as unfortunate little accidents. It’s not little and it’s not an accident. In fact, these ‘mistakes’ happen everyday in court but those responsible for it just don’t get ‘caught’.

There are two preliminary conceptions worth observing when inquiring into judicial impartiality. The first is the conception of the general public. They expect, and indeed assume, judges to be impartial, fair and unbiased. People, whether or not involved in a trial, generally do not usually inquire beyond that typical stereotype or attempt to investigate the adjudicator’s political and religious beliefs, prejudices and personal bias.

The second concept contradicts the first, as judges are human beings and their judicial positions only constitute a partial slice of their lives. This line of argument is particularly pertinent to the theories propounded by American realism throughout the beginning of the 20th century. What some people fail to consider is that judges, too, have a background – not matter how elitist – a life – no matter how luxurious – and a political mind – no matter how conservative. By advancing on such grounds, it is arguable that factors such as a judge’s background, education, personal interests, religion, sexual orientation, political preferences, institutional memberships and general lifestyle can develop and mould views that may create an imbalance in the scales of impartiality. As a consequence, these factors may perturb and contaminate the method by which a judge reaches his decision.

When juxtaposing these two conceptions one encounters a clash between expectations and accomplishments, a rift between theory and practice. On the one hand there’s a firm understanding of how judge’s ought to adjudicate. The need for judges to be impartial therefore becomes a requirement. On the other side of the coin we realise that partiality is inherent to human nature and that being ‘fence-sitting’ can only equate to a fanciful desideratum rather a necessary precondition.

The roots of the bench

In order to fully understand the truth about the judiciary it is crucial to investigate their background. As the American law professor Alan Dershowitz has remarked of our senior judiciary, ‘the small legal clique who select your wigged Platonic guardians seem to believe there is a white, male gene for intellect, integrity, and professionalism’. In her research Paths to Justice (1999), Hazel Genn showed that the public still feel the judiciary does not mirror society. A typical response was,

‘I don’t know what the mix of judges is but most of them seem to be, you know, white middle aged, middle classed and minded men’.

Furthermore, the results suggest that two out of three people think that judges are out of touch with ordinary people’s lives, but more worryingly, only 53% thought that they would get a fair hearing if they ever went to court. Indeed, when you have someone like Judge Gabriel Hutton in Gloucester Crown court falling asleep in the trial of a 21-year old accused of rape, there’s not much one can do to bring public confidence back into the judiciary. When questioned, the 69-year-old judge told the jury, "I am not aware that I did. I think I was well aware of what he [defence counsel] was saying to you. But if in fact I gave the impression of not listening to what he said, it would be unfair to the defendant to allow the case to go on." In other words, he fell asleep.

Just because judges are old, white, rich, upper middle class, educated at public school and Oxbridge does not mean that they all necessarily think the same way. Or maybe they do. The limited class background of the judiciary was confirmed in figures by the Lord Chancellor’s office on 17 May 1995, which revealed that 80% of Lords of Appeal, Heads of Division, Lord Justices of Appeal and High Court Justices were educated at Oxford and Cambridge. The continuing social imbalance amongst the senior judiciary was further scrutinised and confirmed in a report on judicial appointments by the Commons Home Affairs Committee (June 1996). It revealed that four-fifths of judges went to both public schools and Oxbridge colleges, that only seven out of 96 High Court Judges were women, and that only five out of the 517 circuit judges were black or Asian. Nevertheless, the Committee rejected proposals for positive discrimination or even for the establishment of a judicial appointments committee to replace the informal system under the control of the Lord Chancellor. However, new provisions have been implemented and the system is now being reformed.

Is the judiciary ethnocentric? The Department of Constitutional Affairs has collated statistics on ethnic origin of the judiciary. Using the statistics provided, it is apparent that if one restricts analysis to the black and Asian ethnic communities, for which groups statistics are available, then there are no members of those groups above the level of circuit judge and at that level, the ethnic minority representation is 1%. At the level of recorder, the percentage is 3%, at District Judge level, it is 3%, and at Deputy District Judge level, it is 2%. In the magistrates’ courts, black and Asian people make up 3% of the complement of full time District Judges, as the old stipendiary magistrates are now called. Overall picture: a monochromatic judicial bench.

Judicial bias

According to Professor Griffith, bias can occur in two forms: personally and corporately (Griffith, The politics of the judiciary 1998). The former is fairly straightforward, occurring where individual judges permit their own personal prejudices to influence their judgment and thus the effective application of the law. The latter form, however, deserves more careful consideration. Corporate bias involves the assertion that the judges as a corpus decide certain types of cases in a biased way. This accusation is more inflammatory than the former type as it asserts that the problem is systemic rather than merely being particular to maverick judges. Consequently, if such a claim is justified, it has to be concluded that the problem if not susceptible to treatment at the individual level, but requires a complete alteration and reform of the whole judicial system.

Griffith claims that, as a consequence of their shared educational experience, their shared training and practical experience at the Bar and their shared social situation as members of the Establishment, judges have developed a common outlook. However, Griffith maintains that they share homogeneous values, attitudes and beliefs as to how the law should operate and be administered. He further suggests that this shared outlook is inherently conservative, if not Conservative in a party political sense. Griffith’s eloquently substantiates his argument by contending that the highest judges in the judicial hierarchy are frequently called upon to decide cases on the basis of a determination of what constitutes the public interest and that, in making that determination, they express their own corporate values which are in turn a product of their position in society as part of the ruling Establishment (Kelly, 2004).

Final commentary

The proviso of impartiality under Article 6 ECHR is absolute and unconditional. It is unfortunately under attack on a daily basis. From the very moment that parties enter the courtroom, to the advocates’ final submission, impartiality becomes an aim rather than a requirement. However, it is erroneous to conclude that judicial bias per se is a threat to the system. In fact, judges believe, inter alia, in the principles of the rule of law, supremacy of parliament, justice, democracy, human rights and constitutional values. When they deliver their judgments they are complying with these principles and values, and thus, one may argue, by doing so they are making a political statement.

Judges will always have personal preferences, prejudices and opinions. Every effort should be made, however, to widen the ethnic and social nature – and culture – of the bench so that it becomes more representative of society. It is important to point out that there is no constitutional requirement for the bench to be representative. Apparently, appointments are solely based on merit. In a profession where advocacy and public speaking is vital, silence often becomes an asset, if not an art. If judges are caught expressing their personal opinions in court, they will subsequently be criticised ostracised. However, if they remain silent, they’ll survive. As Plato questioned ‘who will guard the guards?’, who will, in practice, judge the judges? The judges, of course.

For oscillations to exist and to propagate there must be a returning force that brings equilibrium. The rule of law, reason, impartiality, human rights, the principles of natural justice and, to a certain extent, morality, are such forces in the law. Without these, the legal system would be precluded from achieving justice. Such a view is resonated in the common law, international conventions and doctrinal principles. The right to be tried and judged impartially is a fundamental one. However, if this right is undermined, the scales of justice shall be tipped, losing their equilibrium and becoming the antithesis of their original purpose.

June 24, 2005

Respect the Law – not the 'hood' !

Writing about web page

Article published in the Warwick Boar, please click link above to view article.

The ghost of international law (published in Obiter Dicta, Law Journal)

Shortly after the Second World War, international law has been developing in many directions. International legal rules have been subject to extensive and even radical criticisms throughout its evolving childhood. However, it was not until this generation that the debate of whether international exists gained momentum. There is a continuing tension between those rules already established and the constantly evolving forces that seek changes within the international system. One of the major problems of international law is to determine when and how to incorporate new standards of behaviour and new realities of life into the already existing framework, so that, on the one hand, the law remains relevant and, on the other, the system itself is not too vigorously disrupted. This is indeed what any legal system endeavours. However, international law (and bearing in mind its international character) poses many unanswered questions. Is international law just a set of documented treaties and agreements? Does it have any binding force? How should it be enforced? Or ultimately, who should enforce it? Virtually everybody who starts reading about international law today does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without mentioning a legislature, judiciary and executive, it would seem that one does possess the right vocabulary to start talking about a legal order. Indeed, international law does not fit this model. International law has no legislature. For instance, the General Assembly of the United Nations comprising delegates from 191 member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. Moreover, there is no adjudication system. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with! Above all, there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members. Thus if there is no identifiable institution either to establish rules, or to clarify them or see that those who do no comply with them are punished accordingly, how can what is called international be in any way or form, law? However begging for elaboration and further discussion, this question we will leave to omit, inasmuch as it is foreign to the present inquiry. The principal purpose of this article is to inquire into the historical development of ‘international law’, because it is by understanding its history that perhaps the reader may contemplate about its present and eventually wonder into its uncertain and promising future.

It is generally accepted that the foundations of international law as it is perceived today lie firmly in the development of Western culture and political thought. While the modern international system can be traced back some 500 years in the writings of Francisco Vitoria, Alberico Gentili and Hugo Grotius, certain of the basic concepts of international law can be discerned in political relationship thousands of years ago, around 2100 BC. At that specific point in time a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area commonly known as Mesopotamia. It was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumeria gods. Next on the agenda was an international treaty concluded between Ramses II of Egypt and the Kink of the Hitties for the establishment of eternal peace and brotherhood. Since then, many agreements between the rival Middle Eastern powers were concluded, usually aimed at embodying in a ritual form a state of subservience between the parties or attempting to create a political alliance to contain the influence of an over-powerful empire.

Following the chronological bar, the next main achievements worth noting were materialised by the Greek and the Romans. The era of classical Greece, from about 6th century BC and onwards for a couple of hundred years has been of overwhelming significance for European thought, with the writings of Socrates, Aristotle and Plato. However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies partly in the philosophical, scientific and political analyses bequeathed to mankind and partly in the fascinating state of inter-relationship built up within the Hellenistic world. Numerous treaties linked the city-states together in a network of commercial and political associations. Rights were often granted to the citizens of the states in each other’s territories and rules regarding the sanctity and protection of diplomatic envoys developed. Certain practices were essential before the declaration of war, and the horrors of war were somewhat ameliorated by the exercise, for example, of religious customs regarding sanctuaries. The Greeks, however, had no sense of world community in spite of the growth Greek colonies throughout the Mediterranean area. However, this Greek handicap was not associated to the able administrators of the Roman Empire.

The Romans had a profound respect for organisation and the law. The law knitted together their empire and constituted a vital source of reference for every inhabitant of the far-flung domain. The early Roman law, the jus civile, applied only to Roman citizens. It was formalistic and reflected the status of a tiny, unsophisticated society rooted in a unfertile soil. It was unable to provide a relevant background for an expanding, developing nation. This need was served by the creation and progressive augmentation of the jus gentium. The jus gentium was the common universal law based on the doctrine of the universal law of nature (otherwise referred to as the Natural Law) and thus overrode the narrow jus civile until the latter system ceased to exist. It provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. One of the most influential of Greek concepts taken by the Romans was the idea of Natural Law. This was formulated by the Stoic philosophers of the 3rd century BC and their theory was that it constituted a body of rules of universal relevance. Such rules were rational and logical, and because the ideas and precepts of the ‘law of nature’ were rooted in human intelligence and discoverable by reason, it followed that such rules could not be restricted to any nation or any group but were of international relevance and application. In addition to being a fundamental concept in legal theory, Natural Law is vital to an understanding of international law, as well as being an indispensable precursor to contemporary concern with human rights. The classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of legal material by a series of Byzantine philosophers completed in AD 534. Such a collection was to be invaluable when the darkness of the Middle Ages, following the collapse of the Roman Empire, began gradually to evaporate.

At this period in time, Islam also played an important role in the international legal system. Its approach to international relations and law was predicated upon a state of hostility towards the non-Moslem world and the concept of unity, Dar al –Islam, as between Moslem countries. Once the period of conquest was over and power was consolidated, norms governing conduct with non-Moslem states began to develop. The law dealing with diplomats was founded upon notions of hospitality and safety (aman), while rules governing international agreements grew out of the concept of respecting promises made.

The Middle Ages were characterised by the authority of the organised Church and the comprehensive structure of power that it commanded. All Europe was of one religion, and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the period, there were struggle between the religious authorities and the rulers of the Holy Roman Empire. These conflicts were eventually resolved in favour of the Papacy, but the victory over secularism proved of relatively short duration. Of particular importance during this era were the authority of the Holy Roman Empire and the supranational character of canon law. Nevertheless, commercial and maritime law developed apace. English law established the Law Merchant, a code of rules covering foreign traders, and this was declared to be of universal application. Throughout Europe, mercantile courts were set up to settle disputes between tradesmen at the various fairs, and while it is not possible to state that a Continental Law Merchant came into being, a network of common regulations and practices weaved its way across the commercial fabric of Europe and constituted an embryonic international trade law. Similarly, maritime customs began to be accepted throughout the Continent. Founded upon the Rhodian Sea Law, a series of commonly applied customs relating to the sea permeated the naval powers of the Atlantic and Mediterranean coasts. Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of international law because they were created and nurtured against a backcloth of cross-national contacts and reflected the need for rules that would cover international situations.

During the Renaissance period, we could observe that the rise of nation-sates of Enlgand, Spain and France in particular characterised the process of the creation of territorially consolidated independent units, in theory and doctrine, as well as in fact. This led to a higher degree of interaction between sovereign entities and thus the need to regulate such activities in a generally accepted manner. It was the evolution of the concept of an international community of separate, sovereign, if competing, states, that marks the beginning of what is understood by international law. The Reformation and the European religious wars marked the decline of a continental system founded on religion and the birth of a continental system founded on the supremacy of the state. Natural Law continued to have a profound effect on the creation of international legal rules but the subject was somehow distinct and underived from any other, and it was with such an intellectual background that Renaissance scholars approached the question of the basis and justification of a system of international law. The British historical lawyer Maine characterised the birth of modern international law as the ‘grandest function of the law of nature’.
Following a number of Spanish and Italian scholars in the 16th century, such as Vitoria and Gentili, it was Hugo Grotius, a Dutch scholar born in 1583, who towered over this period and has been celebrated as the father of international law. His primary work De Jure Belli ac Pacis, excised theology from international law and emphasises the irrelevance in such a study of any conception of a divine law. Grotius conceived of a comprehensive system of international law and his work rapidly became a university textbook. However, in many spheres he followed well-trodden paths. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from the treaties on international law, but which in some way underpins modern approaches to aggression, self-defence and liberation. One of his most enduring opinions consists in his proclamation of the freedom of the seas. Grotius opposed the ‘closed seas’ concept of the Portuguese that was later elucidated by the English writer John Selden and emphasised instead the principle that the nations could not appropriate to themselves the high seas: ‘they belong to all’.

Moving along the chronological bar, it appears that the eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist and positivist era. The Congress of Vienna, which marked the conclusion of the Napoleonic wars, enshrined the new international order which was to be based upon the European balance of power. International law became Eurocentric, the preserve of the civilised, Christian states, into which overseas and foreign nations could enter only with the consent of and on the conditions laid down by the Western powers. The Industrial Revolution mechanised Europe, created the economic dichotomy of capital and labour and propelled Western influence throughout the world. All these factors created an enormous increase in the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them. The development of trade and communications necessitated greater international co-operation as a matter of practical need. In 1815, the Final Act of the Congress of Vienna established the principle of freedom of navigation with regard to international waterways and set up a Central Commission of the Rhine to regulate its use. European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conference of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law.

In the twentieth century, the First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the Great War undermined the foundations of European civilisation. The most important legacy of the 1919 Peace Treaty from the point of view of international relations was the creation of the League of Nations. The League consisted of an Assembly and an executive Council, but was crippled from the start by the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on in 1946. The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice. The International Labour Organisation was established soon after the end of the First World War and still exists today, and many other international institutions were inaugurated or increased their work during this ‘institutionalist’ period.

In 1946 the League was succeeded by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site in New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The advent of decolonisation fulfilled this expectation and the General Assembly of the UN currently holds 191 member states.
Many trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today.

What is next for the international law? This question we will leave open to interpretation. However, it is difficult to plan an answer. This is because international law has developed an ambiguous, and to a certain extent, ‘ghostly’, character. On the one hand it is perceived and acknowledged as ‘law’, reflecting a body of rules governing certain types of behaviour or activities. On the other hand, closer analysis demonstrates how ‘international law’ does not encompass a legal definition, let alone a legal character. As we have explored at the very beginning of this article, international law has no legislature and no adjudication system. The modern international system necessitates powerful changes if greater respect for international law is to materialise. As George Bernard Shaw put it ‘we learn from history that we learn nothing from history’. History is, in fact, the only laboratory we have in which to test the consequences of thought. By analysing the historical development of international law, we learn that international law is, to a certain extent, merely an embodiment of the strong’s policies to rule the world and enforce their ‘rights’ by disregarding their duties. We learn that modern international law will not survive the rebellious future if changes do not materialise. The world as we see it today lacks the strength of a truly representative and respectable governing body which would enforce decisions in order to secure and promote peace, justice and global prosperity. Until this concretises, the world will remain a dynamic arena where the rich rule the poor while the weak serve the strong.

June 11, 2005

Halfe–Caste by John Agard

Excuse me
standing on one leg
I'm half-caste

Explain yuself
wha yu mean
when yu say half-caste
yu mean when picasso
mix red an green
is a half-caste canvas/
explain yuself
wha u mean
when yu say half-caste
yu mean when light an shadow
mix in de sky
is a half-caste weather/
well in dat case
england weather
nearly always half-caste
in fact some o dem cloud
half-caste till dem overcast
so spiteful dem dont want de sun pass
ah rass/
explain yuself
wha yu mean
when yu say half-caste
yu mean tchaikovsky
sit down at dah piano
an mix a black key
wid a white key
is a half-caste symphony/

Explain yuself
wha yu mean
Ah listening to yu wid de keen
half of mih ear
Ah looking at u wid de keen
half of mih eye
and when I'm introduced to yu
I'm sure you'll understand
why I offer yu half-a-hand
an when I sleep at night
I close half-a-eye
consequently when I dream
I dream half-a-dream
an when moon begin to glow
I half-caste human being
cast half-a-shadow
but yu come back tomorrow
wid de whole of yu eye
an de whole of yu ear
and de whole of yu mind

an I will tell yu
de other half
of my story

John Agard

May 18, 2005

Respect the Law – not the 'hood' !

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