What is a Fair International Society?: International Law Between Development and Recognition

253 Pages·2013·1.69 MB·English

by  Emmanuelle Tourme-Jouannet

What is a Fair International Society?
Today’s world is postcolonial and post-Cold War. These twin characteristics
explain why international society is also riddled with the two major forms of
injustice that Nancy Fraser identified as afflicting national societies. First, the
economic and social disparities between states caused outcry in the 1950s
when the first steps were taken towards decolonisation. These inequalities,
to which a number of emerging states now contribute, are still glaring and
still pose the problem of the gap between formal equality and true equality.
Second, international society is increasingly confronted with culture- and
identity-related claims, stretching the dividing line between equality and dif-
ference. The less-favoured states, those that feel stigmatised, but also native
peoples, ethnic groups, minorities and women, now aspire to both legal rec-
ognition of their equal dignity and the protection of their identities and cul-
tures. Some even seek reparation for injustices arising from the past violation
of their identities and the confiscation of their property or land.
In response to these two forms of claim, the subjects of international society
have come up with two types of remedy encapsulated in legal rules: the law of
development and the law of recognition. These two sets of rights are neither
wholly autonomous and individualised branches of law nor formalised sets of
rules. They are imperfect and have their dark sides. Yet, they can be seen as
the first milestones towards what might become a fairer international society;
one that is both equitable (as an answer to socio-economic injustice) and
decent (as an answer to cultural injustice).
This book explores this evolution in international society, setting it in a
historical perspective and critically examining its presuppositions and impli-
cations.
Volume 5 in the series French Studies in International Law
French Studies in International Law
General Editor: Emmanuelle Tourme-Jouannet (Sorbonne Law School)
French Studies in International Law is a unique new series which aims to bring
to the attention of an English-speaking audience the most important mod-
ern works by leading French and French-speaking scholars of international
law. The books which appear in this series have been selected by Professor
Emmanuelle Tourme-Jouannet of the University of Paris 1 (Sorbonne
Law School). French Studies in International Law is a book collection of
the IREDIES Paris 1 Sorbonne Law School (The Centre for Studies and
Research in International Law). The IREDIES is the largest French research
centre for international law comprising 11 professors, 3 lecturers, 21 research
professors and researchers, and 188 PhD students. IREDIES follows an
active policy of collective work in several key fields of research, including
general international law, law of the United Nations, international disputes,
international economic and finance law (in particular WTO), international
human rights law, theory, philosophy and history of international law and
foreign doctrines, international air space law, and the law of the sea.
Volume 1: Ordering Pluralism: A Conceptual Framework for Understanding
the Transnational Legal World Mireille Delmas-Marty translated by Naomi
Norberg
Volume 2: International Law, Power, Security and Justice: Essays on
International Law and Relations Serge Sur
Volume 3: The Advancement of International Law Charles Leben
Volume 4: The Law against War: The Prohibition on the Use of Force in
Contemporary International Law Olivier Corten
What is a Fair
International Society?
International Law Between Development
and Recognition
Emmanuelle Tourme-Jouannet
OXFORD AND PORTLAND, OREGON
2013
Published in the United Kingdom by Hart Publishing Ltd
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© Emmanuelle Tourme-Jouannet 2013
Emmanuelle Tourme-Jouannet has asserted her right under the Copyright, Designs and
Patents Act 1988, to be identified as the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
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ISBN: 978-1-84113-430-7
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For Stéphane, Vincent, Marion and Suzanne

Series Editor’s Preface
This Series aims to contribute to the dissemination in English of the works of
the most eminent international law scholars writing in French. Because these
works have not yet been published in English, this scholarship is inaccessi-
ble to a great number of potential readers who, due to the language barrier,
cannot become acquainted with or discuss it. This is highly regrettable, as it
limits the debate on international law to works in English – the lingua franca
of our contemporary world – and thus primarily to Anglophone scholars.
The publication of these works in English therefore seeks to create the condi-
tions for genuine debate among Francophone and Anglophone international
law scholars across the globe, a debate that should ideally be based on the work
of both. Learning of the others’ theories through translation is in fact the first
essential step towards acknowledging the contributions and differences of each.
Knowledge and acknowledgement lead to understanding the core of irreduc-
ibility, as well as truth, in each legal culture’s intern ational law doctrine, its
traditions and distinct ideas, as well as each author’s way of thinking. They
should make it possible to avoid the all-too-frequent misunderstanding of each
other’s position on international law that results from simple ignorance of each
other’s work. Between the Francophone and Anglophone worlds, the rule is
still too often mutual, even courteous indifference or ignorance, dialogue the
exception.
Emmanuelle Tourme-Jouannet
Professor, University of Paris I (Sorbonne Law School)

A Cautionary Note About This Edition
This is a translation of a French book first written in 2010 and published in
2011 by Editions Pedone.1 It is based on international reports of the time. I
have updated references to those reports that provide new insights, notably
the 2012 UN report on the Millennium Objectives, but in other instances
this was not necessary because the more recent reports merely confirm, alas,
the initial diagnosis.
Moreover, this book is based on a French understanding of ‘development
law’ and so on an understanding that is not widely shared in the English-
speaking world. The expression ‘international law of development’ is often
thought of as a creation of the French-speaking world, although it has been
used elsewhere.2 In the years following the first United Nations Conference
on Trade and Development, under the impetus of André Philip and Michel
Virally,3 several French international lawyers grouped together and system-
atised rules pertaining to this concept which was new at the time. They
attempted to show that a new form of law had emerged for the benefit of
developing countries and to separate it from the usual frameworks of analysis
to which legal rules were attached such as the law of cooperation, economic
and commercial law, or the law of international organisations.4 The aim
was also to show that two sets of standards had emerged, corresponding to
the concrete differences between states: some pertaining to relations among
developed countries and others to relations between developed and develop-
ing countries. It was this specific law of development that arose in the 1960s
1 Emmanuelle Jouannet, Qu’est-ce qu’une société internationale juste ? Le droit international entre
développement et reconnaissance (Paris, Pedone, 2011).
2 See Guy Feuer, ‘Le droit international du développement. Une création de la pensée franco-
phone’; www.gemdev.org/publications/publications_en_ligne/etatdessavoirsdev/IV_feuer.PDF.
3 It seems that the principle of international development law was introduced in France by
André Philip at a Conference in Nice, 27–29 May 1965: L’adaptation de l’ONU au monde
d’aujourd’hui (Paris, Pedone, 1965) 129 ff. It was taken up in Michel Virally, ‘Vers un droit
international du développement’ (1965) Annuaire Francais de Droit International 3–12.
4 For French scholarship, see especially Mohamed Bennouna, Droit international du dével-
oppement (Paris, Berger-Levrault, 1983); Mario Bettati, Le nouvel ordre économique international
(Paris, Presses Universitaires de France, Que sais-je?, 1985); Maurice Flory, Droit international
du développement (Paris, Thémis, 1977); Edmond Jouve, Le tiers-monde dans la vie internationale
(Paris, Berger-Levrault, 1986); Alain Pellet, Droit international du développement (Paris, Presses
Universitaires de France, Que sais-je?, 1987); Guy Feuer and Hervé Cassan, Droit international
du développement (Paris, Dalloz, 1990); Guy Ladreit de Lacharrière, Commerce extérieur et sous-
développement (Paris, PUF, 1964).