international law in a multicultural world

International Law in a Multicultural WorldAuthor(s): Werner LeviSource: International Studies Quarterly, Vol. 18, No. 4 (Dec., 1974), pp. 417-449Published by: Wiley on behalf of The International Studies AssociationStable URL: http://www.jstor.org/stable/2600103 .

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International Law in a Multicultural World

WERNER LEVI Department of Political Science

University of Hawaii

The effectiveness, even the possibility, of universal international law continues to be denied on the grounds of the international society's cultural heterogeneity. The argument dates back to the time when international law was developed in the Western world and applied only among "Christian" and "civilized" states. The Statute of the International Court of Justice still refers to general principles of law "recognized by civilized nations." The argument received a slight shift and a big boost from the ideological warfare in the 1930s, the Cold War in the 1940s and 1950s, and finally from the birth of new states in Asia and Africa.

Effective law, the argument runs, requires consensus on values. Yet the main consensus prevailing in the contemporary international society is that all states shall enjoy sovereign independence. They try to do so, with deleterious consequences for international law. Their ways of life, moral tenets, and legal systems differ. The shared value is divisive nationalism, leading to isolated national existence with international structures, institutions, and organizations geared to maintaining or at least not disturbing the separation of states. Even that value is said to be shared in some Asian and African countries only by elites. It is not representative of a generally internalized and accepted normative system. The seemingly unifying spread of modern technology and an international diplomatic language is written off as a surface phenomenon, unable to overcome the world's

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division into national societies functioning in their own psychic environment and devoted to their own inner order. These are not the conditions, the argument concludes,1 conducive to the rise of common legal norms voluntarily obeyed (Bozeman, 1971; Northrop, 1952: 80-81, 259-295; Wright, 1958, 1959; Castaneda, 1961: 40; Schwarzenberger, 1962: 294-296; Hass- ner, 1964).

Governments are not averse to such a doctrine. They can use it to rationalize or justify their expedient policies when these are in conflict with officially professed values. In each case, the doctrine allows its protagonist to pursue policies disadvantageous to their targets. The "Christian" states were free to colonize the "heathens." The racist basis postulated for international law by the Nazis and, later, the Fascists, permitted them to commit genocide to their own legal satisfaction. The class character ascribed to international law by the Communists permits the Soviets and Chinese to reject uncomfortable obligations of international law and to assume a hostile stance toward "imperialist" nations when it suits their political interests-for instance, when they joined, with qualifications, some new states in rejecting the binding force of old customary law upon new states.

The frequent legal actions of even these critical states- signing treaties, arguing conflicts in legal terms, basing claims on law-should have alerted observers to the obvious discrepancy between doctine and practice. But scholars continue to deny the possibility of effective universal international law or still give predominance to "civilized" and "Christian" principles. The 1947 edition of Oppenheim's International Law, then edited by Hersch Lauterpacht, asserts that the regulation of the treatment of states outside the circle of the Family of Nations

1. The position here described is forcefully defended by Professor Bozeman (1971). This paper is not intended as a detailed critique of Professor Bozeman's thesis, although its reasoning and findings are clearly in contrast to hers. The major objections here to Professor Bozeman's approach are that she relies heavily upon the philosophy and theory of various legal systems while paying scant attention to their reality; that she underestimates the impact of the international political system upon the behavior of states; and that culture is not as static as is implied in her argumentation. For a specific critique see Rubin (1973).



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must "obviously" be according to "the principles of Christian morality" (Oppenheim, 1947: 47-48). The anachronism of this approach has been castigated by an official from Togo, who pointed out-with much support from other newer states-that "the age of 'savage tribes' had gone," and by Judge Fouad Ammoun of the International Court, who insisted that such a distinction was neither ethical nor legal, and was responsible for the aloofness of many new states from the Court (United Nations, 1960; International Court of Justice, Reports 1969: 134; see also Schwarzenberger, 1962: 65-82). Such objections do not, however, alleviate the worry of many international lawyers about the difficulty of having international law in a multicultural world.

In an attempt to eliminate whatever cultural barriers there may be to the progress of international law, they hope to elaborate common denominators by excerpting from different cultures common elements-a la Julian Huxley's "scientific humanism" for UNESCO-upon which universal rules of law could be based. The implications of these attempts are, of course, that cultural differences are indeed very relevant to the possibility and validity of international law (Verdross, 1964: 12-13; Freeman, 1959; Henkin, 1965: 216-225 and the writings of Wilfred Jenks). At first sight the assumption seems justifi- able. It does not withstand closer examination. Such an examination has so far taken place only piecemeal, in spite of a very careful prescription by McDougal and Lasswell (1959) years ago for how to do it. The existence now for over two decades of many new states in the non-Western culture areas and of many Communist states provides a fair volume of empirical evidence which, added to the evidence resulting from a more theoretical consideration of the relationship between culture and law, demonstrates that cultural differences have a minor influence upon the existence of universal international law and, a fortiori, upon the existence of particular international law.

Before undertaking an examination of this influence, the concept "culture" in the context of this study should be



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clarified. Culture is the man-made environment in which a society functions. It includes the society's material conditions, social institutions, social structure and organization, values, beliefs, and thoughts, and its legal system and laws. Law as part of the total culture partakes of the particular character of its society. It thus possesses an individuality distinguishing it from other legal systems and laws. But this individuality does not a priori foreclose possible compatibilities and relationships between different legal systems and laws any more than it does other types of relationships between different societies. To argue that cultural differences inhibit the possibility or efficacy of international law would have to mean that nations create their environment so as to produce such inhibitions. There is no empirical or theoretical evidence for that. A culture is never isolated, immutable, or self-contained. Rather, it is dynamic, cumulative, and not exclusive. Law shares these qualities. Whenever new types of relationships appear or old ones transform, law moves along with change, whether this be within national societies or between them. Culture is, after all, a mental concept and an abstraction. Its substance and reality are the thoughts and actions of men. Culture is not a Procrustean bed. It merely has a momentum of its own that affects people's behavior, but not in a uni-directional sense. There is an interaction here. People also continually shape and reshape their environment. Neither is dominant over the other. And it is exactly one aspect of this relationship which is the object of this study, namely, how national cultures may influence the possibility of international law.

The Evidence From Experience

POLITICAL PRACTICE

Every state in the world, regardless of its culture, acknowl- edges the existence of international law by its actions, either expressly or implicitly. By joining the United Nations and other




international organizations, by entering into treaty relations, or by sending and receiving diplomats, all states subject themselves to international legal regulations. They formulate their demands, argue their disputes, and voice their grievances most often in legal terms. The annual speeches delivered during the opening phase of the United Nations' General Assembly or the debates in the Security Council are impressive testimony to the importance of international law in the relations of nations. To some extent, perhaps, this behavior is mere lip service to the law. In crucial situations for a state's existence few countries may willingly live up to the law-if the law does not release them from obligations in the name of "national interest" or "national honor." Nevertheless, the use of legal terminology is evidence of the great importance of law as a means of communication. The argumentation on all sides indicates that the language of international law is understood universally (but see Bozeman, 1971: 3-14, and a critique of Bozeman, Rubin, 1973). At the great international postwar conferences involving international law (e.g., on diplomats, consuls, treaties, oceans), delegates were able to convey quite clearly their nations' interests and to propose specific legal formulations for their protection.

The newer states of Asia and Africa are particularly strong supporters of international law. It is a commonplace to them that international law offers protection for their national existence and interests. Typically, a delegate to the Asian- African Legal Consultative Committee (1969: 310) stated that "any legal order which tends to reinforce the rule of law is to be encouraged and supported by the small States of Africa and Asia as this is their shield." In this conviction, widely shared by all small states, private and official representatives of states in all culture areas have eagerly participated in conferences concerned with the development and codification of international law. Wherever they appeared-and the same is true of representatives from Communist states-they participated without making revolutionary demands or proposals.




The Rapporteur of a Roundtable Conference on Interna- tional Law Problems in Asia, held in Hong Kong in 1967, summarized the discussions by stating

It was surprising to find that, whilst the content of many international law rules or even the rules themselves were doubted or suspect, no delegate advocated the changing or refurbishing of current ways and means of making or unmaking both international customary or treaty law. The constitutional structure of the world community, which in some ways at present, or so it is alleged, works in favour of the smaller nations was accepted almost without question. Regionalism, at least in terms of international law and practice, did not seem to affect those rules of truly universal legality [Shepherd, 1969: Introduction].

The recognition of international law in general and most of its fundamental principles is a matter of official record. The highest officials of the Soviet Union, even during the days of the Cold War, emphasized the need for all countries to defend the norms of international law for the sake of peace, according to the May 1962 Current Digest of the Soviet Press, pp. 8-9. As the era of detente dawned, Professor Grigori I. Tunkin wrote in the London Times (1963: 14) that the Soviet Union was merely advocating "new international law," not "a new international law" or a "revolution" in international law. Similarly, the Chinese People's Republic declared on the day of its foundation that "equality, mutual benefit, and mutual respect for territorial sovereignty" were the basis of its international relations. When, later, the Five Principles of Peaceful Coexistence were added, the Chinese very proudly claimed to have made a major contribution to the development of international law (though, in fact, these principles merely confirm long-established and fundamental principles of international law).

The newer states of Asia and Africa, not troubled by a need to reconcile their adherence to international law with any dogma about the class-character of that law, justify it by actually referring to the long standing of the rules they find useful. In the Asian-African Legal Consultative Committee




(1960: 101), for instance, India and Iraq defended their laws relating to aliens on the grounds that their principles accorded with "traditional views" going back to the days before the Reformation in Europe. The secretariat of this committee, in developing Asian and African positions, referred constantly to Western writers, Western practice, and "accepted rules of international law and practice." At the Roundtable Conference on International Law Problems in Asia there were frequent and approving citations of "traditional" international legal rules. During a United Nations debate the delegate from the United Arab Republic pointed approvingly to a state's right to nationalize and expropriate with proper compensation as being "in accordance with international law" (United Nations, Gen- eral Assembly, Seventeenth Session, 1194th Plenary Meeting, December 14, 1962: 1134). Finally, in the International Law Commission, the Iraqi delegate defended his position on the punishment of crimes against diplomats by reference to recognized international legal standards (Yearbook of the International Law Commission 1, 1972: 225).

These examples could be multiplied many times. They must suffice to indicate that in official and unofficial practice states from all cultural regions of the world, having the most diverse ideologies predominating at home, recognize the existence and binding force of international law, including rules developed by the Western world and older than many of these states (for the Soviet Union see, e.g., Friedmann, 1964; Lissitzyn, 1965; McWhinney, 1967; Hildebrand, 1968; Erickson, 1972; for China see, e.g., Hsiung, 1972; Cohen and Chiu, 1974; Chiu, 1966; for the newer states see, e.g., Anand, 1972; R6ling, 1960; Bokor- Szego, 1970; Schroder, 1970; Syatauw, 1961; Sinha, 1967).

INTERNATIONAL JUDGES

Additional evidence leads to the same conclusion. It is the behavior of judges at the International Court of Justice. It should be remembered that the elected judges speak as individuals, not as representatives of their states. They could be



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estranged from their own national culture and be very much "Westernized." Nevertheless, the patterns of their judgments also indicate support for general international law, devoid of special cultural influences, regardless of the judges' national origin. The interesting thing is that this conformity exists although the Statute of the Court (art. 9), in the apparent expectation that this would not happen, specified that "the main forms of civilization and of the principal legal systems of the world" should be represented among the judges. Kotaro Tanaka (1971: 15-17) has written: "Nine years of experience on the International Court of Justice have led me to conclude that a common basis of jurisprudence and a common language exist among the judges whereby they are able to make mutual assertions, discuss, reach agreements and disagree, in spite of their different religions, racial and cultural backgrounds." This common basis, he asserted, was the universal cultural heritage of Rome. Sir Zafrullah Khan, as president of the International Court, reached a very similar conclusion (1972: 78).

Judge Tanaka's findings are more or less confirmed in several studies that have been made of the decisions of the Interna- tional Court. They show, for instance, that judges of the most diverse cultural backgrounds can be found in shifting majorities deciding contentious cases. They also show that Soviet judges, while clearly affected by national considerations when a case involves Soviet interests in some way, have made impartial decisions in all other cases. Yet another study found-in some contrast to the other studies-that all judges, regardless of their cultural background, tended to be influenced by the national interests of their states. The most important point in all these cases is that the interest influencing these judges was not culture-bound but related to political considerations of a universal nature (Gunther, 1966: 139-148; Grieves, 1969: 110-112; Padelford, 1968: 246-247; Jarvad, 1968; Hensley, 1968; Suh, 1969).




INTERNA TIONAL JUDICIAL PRACTICE

The irrelevance of cultural differences is further evidenced by the willingness of culturally diverse states to accept the jurisdiction of the International Court of Justice. By 1972, eighteen of 46 states that had signed the Optional Clause of the Court's Statute (art. 36) were in the non-Western culture area, and over 100 treaties to which non-Western states were signatories stipulated the jurisdiction of the Court for contentious cases. States from all culture areas had actually been parties to contentious cases before the Court (International Court of Justice Yearbook 26: 12-13, 55-85; Syatauw, 1969; Coplin and Rochester, 1972). Such sensitive matters as international conflicts were included among the subjects governments were willing to have adjudicated by the Court. Some treaties calling for adjudication were signed among exclusively non-Western states, obviously on a purely voluntary basis.

In spite of these widespread references to the International Court, many newer and Communist states have had reservations about the Court and were prominently among those states rejecting the so-called compulsory jurisdiction of the Court in certain disputes. They supply a variety of reasons for their coolness toward the Court. However, few of those reasons have to do with cultural differences. Virtually all of them are founded on the fear that inequality in power among states would cause either the law or the judicial decisions to be disadvantageous to weaker nations. For instance, the Thai government explained its "retrenchment" from the Court's jurisdiction by preferring to wait for the day when the bigger nations were "prepared to participate more on the grounds of equal footing" (Shepherd, 1969: 128). A Cuban government official explained that "in an atmosphere where power prevailed over justice it could not reasonably be expected that the decisions of a body consisting of third parties would be fair and effective." And a Mexican official felt that "the difficulty of finding a system that would be free from political pressure" was largely responsible for the refusal of smaller and newer states to use the Court (United Nations, 1969c: 261, 274).




Dissatisfaction with a faulty power distribution and greater convenience, rather than any influence of cultural differences, occasionally led to suggestions for the creation of regional courts. With the exception of Western Europe (which of course applies mostly "Western" international law), these'suggestions have always aborted so far. Discussions have invariably led to the conclusion that the regional states were not yet ready for such a court. Usually political differences and disagreements upon the applicable "regional" international law prevented the creation of a court. The situation highlights the deficiency of the argument in favor of such regional courts that they would command greater trust among the regional states and that their judgment would be more adapted to regional needs (see, e.g., Shepherd, 1969: Introduction, par. 3, pp. 115, 117, 120, 128, 133; Foda, 1957; also Jessup, 1959: 106-107). It also highlights the lack of substance behind the call for "regional" law. For, in contrast to the difficulties all these states have experienced in attempts to rely upon their own culture-bound law, they have had no such difficulties in subjecting themselves to more universal general international law. Indeed, they often hasten to assure the world that plans for a regional court do "not imply any hostile attitudes toward Western European International Law or a weakening of the authority of the International Court of Justice" (Foda, 1957: 162). Their treaty commitments to the jurisdiction of the International Court show that even in relations among themselves, universal, general international law forms the basis upon which they choose to regulate their interactions.

In the face of this empirical evidence that states of the non-West or of the Communist world take the existence of international law for granted, recognize the bulk of its basic principles, and are willing to acknowledge its binding force, what is the meaning of their demands for new international law, apparently voiced more by the older than by the newer and Communist states (Shihata, 1965: 213-214; Anand, 1972: 52)?




THE NEW LA W

Their demands can hardly mean the abolition of international law in toto and its replacement by a new system of international law (Schroder, 1970: 44; Sinha, 1965; Fatouros, 1964; Bokor-Szego, 1970: 52-59; Anand, 1972: 62). Nor can they merely mean the addition of new rules to the existing body of international legal rules. They could easily achieve this by the creation of so-called particular (treaty) law. Besides, the demand for new law is not peculiar to new states. It can be heard everywhere as society changes (e.g., the demand for law regulating space, oceans, the biosphere, and so on). When the answer is sought in the content of their demands, it turns out that in most cases these states do not really ask for new law as much as new interpretations and applications of existing law (although they sometimes give them such high-sounding titles as "democratized" and "socialized" law). Even that demand usually refers rather modestly to existing principles of universal validity. In essence the demand for new law is a demand for realizing the equality of states, already guaranteed in principle in the existing legal system through an appropriate interpretation and application of existing international law. In the case of Communist states, this is expressed by condemning prevailing international law as class-law or, more precisely (because they themselves recognize the basic principles of international law), by condemning the use of international law as an instrument of "imperialist" nations. In the case of the new states the demand for equality is expressed by condemnation of colonialism, request for amends, and insistence upon equality in international relations. The leitmotif of their complaints is the "disparity in power between some of the older nations and the new," "the imbalance between the interests of the developed and the developing states," and the favoring of "the bigger and stronger powers" (Shepherd, 1969: 127, 132, 133; Asian- African Legal Consultative Committee, 1969: 287, 289, 302, 305). They propose to rectify these imbalances by working "with the principle of distributive justice" and by emphasizing



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wherever opportune an obligation to take into "particular consideration the interests and needs of the developing countries" (United Nations 196 lb: 8; Conference on the Law of the Sea, 1973, Declaration 7).

These complaints are not a monopoly of Communist or non-Western states. They could and can be heard from many smaller and weaker states everywhere. The demands for new law are basically and mainly demands for the adjustment, interpretation, and application of legal principles of old standing: sovereignty, equality, territorial and political integrity, pacta sunt servanda, and so forth, to the needs and requirements of states to whom they were not applied or applied disadvantage- ously. The roots of these complaints and demands are not in cultural or ideological differences. They are in a desire to satisfy primary national interests (such as security, status, or integrity) which are amazingly similar across the globe (Friedmann, 1964: 297; Wilk, 1951: 667; Stone, 1960: 430-431; Rubin, 1973: 321; Chiu, 1966: 266).

Upon closer inspection, it turns out that many of the specific demands emanating from the newer states originated long before in the Western world and that some of them were-at least formally-actually fulfilled before the birth of most of these states. Ideas of human rights, equality among men, anti-racism, anti-colonialism, and fair distribution of wealth, to name a few prominent demands, are older even than international law. Many nations everywhere and of any age regret that these high principles have not yet become "living" international law. The almost universal commitment to these principles in the abstract is one of the promising prospects for the future development of international law. It indicates unity on values and consensus on principles.

The frustration of these demands in applied law is hardly due to cultural differences. It is due to politics denying the fulfillment of these principles, including, and sometimes foremost, the internal and external politics of the very states making the loudest demands for the "new law." The Com- munist demand for an international law based upon true state




equality, the protection of national individuality, and their recently discovered devotion to international cooperation rather than mere coexistence, is also not so new. The Five Principles of Peaceful Coexistence are old wine in new bottles. That the nature of international law was changing from a guarantor of the state in isolated, sovereign existence, to a sponsor of states in solidary cooperation was discovered at least as early as 1910 by Max Huber. Here again the Communists were merely giving legal expression to an empirical, historical development of international relations which is there for all to see. Its half-fake conceptualization in ideological terms is in any case thoroughly belied by the behavior of Communist states, which is no more nor less in line with that of most other states regarding international law. It was also belied by Grigori Tunkin, acting as a delegate for the Soviet Union to a United Nations meeting, when he branded as "false" the charge that the Soviet Union and the African and Asian states were "destroying the 'homo- geneity' of the international society and thereby undermining the foundations of international law." Rather, he argued, these nations support international law as the "best means of preserving both their independence and world peace." He also declared "entirely mistaken" the proposition that international law had to be founded upon "common ideology or cultural unity" (United Nations 196 la: 137-138).

The suspicions of many new states of Asia and Africa about much substance of present international law are understandable. They find that the law enables the more developed states to satisfy many material and political interests which they share with these states (regardless of cultural differences), whereas this same law does not achieve this result for them or actually frustrates the satisfaction of their interests. They dislike much of present international law because, as a Mexican official stated, many of its rules "would not correspond to their needs, since those rules originated in the past and were based on the practice of States whose interests were different and indeed almost opposite to those of the newer countries" (United Nations 1969b: 274). Much of international law, these states




complain, has been a law in whose creation they played no part; under whose regime colonialism was legitimized; which allowed its formal equality of states to be undermined by the actual denial of substantive equality; and which relied upon a past "practice of states" in which they did not participate (United Nations 1964a: 94-95; 1964b: 11-12; 1964c: 5-6; 1966: 11; 1968: 3; 1969a: 344). The contradictory approach of the Communist states to international law, with their ideological preachings denying what they practice, is explainable by their obsession and political need to interpret behavior in ideological terms. They are thereby obliged to justify, usually ex post facto, what they want to and will do in any case in the terminology of their dogma or what parades as dogma at any given moment.

These critical approaches to international law notwithstanding, all states are eager to shape and use it to serve interests pursued by all states. The bulk of these interests are economic, relating to improved standards of living, and political, relating to national security, power, and other objectives originating in a nation-state system cherished and supported everywhere.

THE STYLE OF LEGAL PRACTICE

There is, finally, the possibility that Communist states or, it is claimed, more often the states of Africa and Asia, may prefer not to use rather than reject international law. They are said to prefer the less formal processes of negotiation or other methods for reaching consensus (Wright, 1958: 38; Derrett, 1966-1967).2 It is a reference to the old idea of rights versus rites.3 Their legal practice no longer bears out the existence of such preferences, at least not sufficiently to distinguish them

2. Anand (1962: 121) maintains that to assume a Hindu rejection of adjudication is historically wrong. Georges Scelle (1957: 177), in presenting a draft convention on arbitral procedure tending toward juridical and jurisdictional concepts, argued, against much opposition, that the draft was favored by states "that have newly acquired sovereignty or ... those deeply imbued with the dogma of 'State sovereignty' particularly of the group of Soviet States." Pakistan favored the draft.

3. I am indebted to my colleague Daniel W. Y. Kwok for this expression.




notably from Western states either in internal or international legal practice. Statistics from various Asian countries indicate that abundant use is made of courts to settle contentious cases.4

Informal processes of conflict settlement were probably more in use during precolonial than postcolonial times. Centuries of Western domination, the introduction of Western technology, methods, and ways, and the Westernization especially of the legal elites have superimposed Western processes. They have partly wiped out significant differences in the internal legal systems or international legal practice. It may well be true, as Adda Bozeman argues, that this Westernization is superficial- though what superficiality means in the context of a culture may be difficult to define. It would make most sense on the assumption-not made here-that a given culture is an abstract firm entity, with precise borderlines, stagnant, and impervious to innovations and progress. As long as innovations are accepted and remain, the law that inevitably goes with them will have to be and is accepted and remains. To put it very simply: as long as, say, India has an airline and flies planes, it must also have legal regulations adapted to air traffic, no matter what ancient Hindu codes say.

Traditional procedures can still be found in some Asian and African states, in villages, among some sections of the public fairly untouched by modernization, and in a very few states trying to close themselves off from the outside. But peasants do not run the foreign affairs of states either in Asia or anywhere else. In the major urban centers, in the courts of these countries and among their lawyers, modern, usually Western legal processes and terminology are well understood and employed. Variations in style can be found within and between all legal systems without interfering with the basic efficacy of the system. The alleged Asian preference for consensus and in-

4. In 1965 India had 2,166,716 contentious civil law cases in its courts; Japan had 2,846,727 in 1971; the United States had 189,827 in U.S. District Courts in 1972 (Statistical Abstracts India, 1970: 588; Japan Statistical Yearbook, 1972: 608; Statistical Abstracts of the United States, 1973: 160, see also China Handbook, 1947: 254-257).




formality over litigation in courts on the basis of formal law is matched by the widely practiced methods of arbitration and settlement out of court in the Western world.5 Anglo-Saxon common law is characterized by a lack of rigidity which Asians and Africans are said to like. Continental European codified law finds its parallel in Hindu and Moslem codes. Judicial procedures of a secularized, modernized legal world can readily be found in most of the newer states.

The empirical evidence provided by the behavior of states in relation to international law should assuage the fear that cultural differences prevent the existence or further development of international law. The use states make of law in their relations, the culturally neutral behavior of international judges, the practice of international courts, the substance of the "new law" demanded by many states, and the style of judicial behavior everywhere show remarkable similarities rather than cultural idiosyncracies. The unquestioned weakness and in- adequacy of international law are likely to be found in the nature of international politics and the political system, but at any rate not in the diversity of culture across the globe. This conclusion from the evidence will be reinforced by the findings of a more theoretical examination of the international society, international law, and the relation between the two.

The Evidence From The Nature Of Things

SYSTEMIC INFL UENCES

In analyzing the nature of law and its relation to culture in the international society, a clear distinction must be made between textbook law, produced by international lawyers, and the "living" law, the rules actually acknowledged, applied, and obeyed by states. Textbook law is often not limited to reality. It frequently expresses what law the writer would like to see

5. A majority of suits filed in U.S. courts are settled voluntarily before trial. In part this may be due, however, not to an original inclination of the parties but to their unwillingness to accept undue delays in obtaining judgments (Anand, 1969: 57).




prevail. Christian, European, Communist, Islamic and Hindu ideas may indeed find expression in these writings. The same, however, can hardly be said of the "living" law. It corresponds much more closely to the actual character of national and international societies and in particular to the international behavior of states.

In the "living" world of the international society, the cardinal condition is that international law is an integral part of international politics. Law is always the end product of a political process in which social interests are defined, evaluated, and judged. As such, law reflects the prevailing power constella- tion. It is inextricably mixed with the struggle for power which affects its creation, content, interpretation, application, and effectiveness. The conditions dominating the political system have therefore also an effect upon the international legal system. These conditions are only tenuously connected with national cultures, including ideologies (except, as will be seen, universal nationalism).

Political alignments and voting patterns in international organizations, conflicts and cooperation in international politics, international economic and cultural transactions show no consistent dependence upon cultural, including ideological, similarities or dissimilarities. There is a direct correlation between politics, power, and especially wealth with both the degree of a state's participation in international relations and the substance of these relations. A nation's culture and- contrary to popular belief and official propaganda-its prevailing ideology are faily independent of its international relations (Rummel, 1972: 108, and forthcoming; Sullivan, 1972: 135; Levi, 1974; 46-56; see also the summaries in Jones and Singer, 1972: 273-395).

The fundamental character of international relations is, instead, determined by the overpowering wish of all states- Christian, Jewish, Hindu, Moslem, Communist, or whatever-to exist in sovereign equality. This goal still provides the drive behind international politics. It permeates and politicizes all international behavior (Levi, 1974: 28-31, 196-198). Law, in its



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dependence upon politics, necessarily shares this character. This also becomes clear in reading the discussions during international conferences dealing with international law, in which safeguarding sovereignty is a central theme. It is clearer yet in the many ways states have found to have their freedom of political action prevail over legal obligation. Among these ways is the isolation of much subject matter from international discussion and action in the name of "domestic jurisdiction." Another is to release states from a commitment to arbitrating disputes when the issues involve "national interests" or "national honor." And a more modern version of this release is to separate "political" from "legal" or nonjusticiable from justici- able disputes-a distinction of doubtful theoretical validity but much used in practice nevertheless. What it amounts to is that states can expediently define their disputes as "political" or nonjusticiable and then solve them by a trial of strength. They demonstrate thereby once again their extreme concern with sovereignty and the crucial role of power (Tucker, 1966: 525-530; Lauterpacht, 1933: 153-165; Schwarzenberger, 1967: 245, 257-259).

The insistence of all states upon sovereign and equal independence leads to behavioral consequences from which no state can escape and which directly inform the substance of international law. International law is shaped to permit states to pursue power first and foremost as the main guarantee of their supreme interest in survival. Because all states share that interest and because the most important elements of power are only secondarily related to any state's culture, the law produced by and for the international society is little related to any one member state's culture. Or, another version of the same idea, the nature of the international society is shaped by a universal nationalism. Its character as a cluster of sentiments devoted to the state and its goal of maintaining the state as the highest social value are identical across the globe. Although the content of individual national demands upon the international society may vary, the belhavior patterns following from these universal elements are sufficiently comprehensive and fundamental to



Levi / INTERNATIONAL LAW [4351

affect all international behavior decisively. Since this is the behavior which the law is called upon to regulate, the law too is basically unaffected by a nation's culture.

Because all states subscribe to the basic features of the international political system-inevitably so because they all are nationalistic-the systemic influences upon their behavior are inescapable and cannot be greatly affected by cultural pecular- ities. The individual culture of a state or its ideology may affect a state's interpretation of its national interest. But the evidence that it does so is very slim and, more important, it can never affect the primary features of that interest as long as nationalism endures. Universal nationalism and system membership shape the behavior of states toward basic uniformity. The forms of this behavior-and that is what law is primarily concerned with-on the international scene and the law that regulates them are rather narrowly confined within the needs of social coexistence in a "shrinking" world; the requirements of the international system; the interweaving interests of some 150 states; and the human tendency of taking the path of least resistance rather than an expensive ideological one to reach a goal.

These social necessities can explain why the revolutionary or reformist demands for changes in the international legal system and law by some of the self-styled revolutionary or newer states rather quickly gave way to a fairly customary and traditional adherence to the main precepts or more of international law. Their rhetoric to the contrary, the Communists, the Nazis, the Fascists, and everyone else used international law in their international relations, mainly because there is no alternative. Where there is a society, there is law. As long as no one member controls all the others, there are bound to be rules for their coexistence-peaceful or otherwise and regardless of any member's culture. This inevitable condition can be illustrated by some simple and obvious examples. Parliamentary procedure is followed in international conferences by states which never apply it internally; legal formalities are accepted and practiced between states among which are many who despise them at home; cases are argued by states internationally in legal terms




which they reject at home; legal principles are advocated internationally (e.g., human rights) most vociferously by states which deny them to their own citizens.

INTERNATIONAL LA WAS A MEANS OF COMMUNICATION

The argument that the legal terminology in these interactions among states is not very meaningful because each state has its own culture-bound ideas about the terms contradicts the evidence. This evidence can most readily be found in international conferences, especially those dealing with international law, where in often interminable and repetitive discussions and argumentations, legal ideas, concepts, and terms are refined in great detail, and where misunderstandings seem to be minimal. It can be found also in international forums where disputes, claims, and counter-claims, demands and counter-demands are fought out in legal language that quite accurately represents the political issues and controversies involved. In such situations-and others-even when the law is a poor regulator of behavior for political reasons, it remains an excellent means of communication (McDougal, 1960: 337-354; Gould and Barkun, 1970: 136-149; Coplin, 1968: 317-331). Law can be such a means because it reveals the conventional values of a society and orders them in a hierarchy. It becomes a measure of the compromises, adjustments, and agreements the society has achieved, and presumably for this reason states are cautious and circumspect in committing themselves to laws. Law becomes indispensible to the international society exactly because it can be understood regardless of cultural differences. It enables states to formulate their differences not of culture but of interests in fairly clear and precise legal language.

To China in 1932 and after, the Japanese were illegal aggressors in Manchuria. To Japan, the invasion was a legitimate defense of its citizens' rights. To many third states the action was an "incident." Cultural differences were not responsible for these varying legal defenses, nor were differences in perception of facts or interpretations of law. These defenses were legal




formulations of different interests: the Chinese wanted the Japanese expelled from Manchuria, and third states did not want to get involved in the case as a result of their obligations under the League of Nations Convenant, which did not call for any action in the case of mere "incidents." Each party understood every other party's position. Their legal language was an unequivocal message. The historical record now available makes that clear. The example illustrates either the use of legal rules by states to justify their clashing interests and consequent actions, or differences in the definition of a situation based on differing interests, or both. The important points are that all parties involved in the issue introduced legal concepts and terminology to clarify what each considered to be its interests, and that this behavior was understood by all.

THE FUNCTIONAL BASIS OF INTERNATIONAL RELATIONS

The argument that national cultures significantly influence international law assumes not only that culture is a closed entity, but that in relations between states the entire legal system and the entire state, both as total entities, are mutually relevant. This is not yet so. Just as people are less relevant to each other as human beings than as specific role players, so states, or through them cultures, rarely confront each other as total entities. A "Christian," a "Hindu" state is an abstraction, as is the "French" or "German" national character, or, indeed, a "human being." Any common denominator that may permit such generalizations is bound to be a homogenized concept in any case. It is most certainly not applicable to any ascribed or acquired quality of all human beings or every Frenchman and German. In every Christian and Hindu state characteristics can be found quite unrelated to such denominations. This situation undermines the cogency of the argument that the national culture determines the legal system. Moreover, with rare exceptions every interaction between states (as between groups and individuals) is on specific issues. Any one of these could be devoid of a particular cultural coloration if it does not happen to be outside the generalization altogether or culturally neutral.




War is the major situation in which states confront each other as total entities when their whole being becomes relevant. If such a war is to be fought to the bitter end until one or the other contestant is destroyed, there can be no agreement on law. Rome's determination to raze Carthage was beyond legal agreement. So were the conquest of countries by imperialist nations and their conversion into colonies. But when war or neocolonialism does not aim at annihilation or territorial domination, legal rules immediately come into existence, regardless of the antagonists' cultures-for example, rules of war, treatment of prisoners, fate of civilians, treaty of peace.

With total physical destruction and possibly even physical conquest going out of fashion in international relations, while at the same time interaction and mutual sensitivities are on the increase, there is not likely to be much confrontation of states as total entities. Coexistence is becoming the only viable alternative. This calls for regulation of behavior in which for two main reasons a people's culture is fairly insignificant.

The first reason is that coexistence represents a social situation with inherent elements totally independent of culture. These elements are fundamental to the social situation, wherever, whenever, and in whatever culture it exists. When groups want to live side by side, they must have certain understandings about their mutually relevant behavior. The regulation of this minimally necessary behavior represents the essence of the mninimally necessary law. It can be found in every legal system. Its most fundamental rule is that agreements must be kept. Beyond this rule laws can differ somewhat depending upon the nature of the political system of the society which they are to regulate. In modem international relations and on the assumption of a desire to coexist, the so-called universal rules of international law and some of its general principles are virtually inevitable and devoid of specific cultural content. Examples are the exchange and protection of diplomats; the safeguard of a state's existence; and the maintenance of communications. As states agree to an expansion of coexistence beyond the narrowest limits (such as a cold war), generally



Levi / INTERNATIONAL LAW [4391

recognized rules are added to the minimum regulations, such as freedom of the seas and non-intervention in internal affairs. As coexistence changes into cooperation and even interdependence, the range of agreed-upon rules is bound to expand to cover a multitude of relationships for a great variety of purposes. Insofar as states find the pursuit of these purposes useful and enter into their relationships with at least a modicum of voluntarism, their differing cultures obviously do not interfere with agreement on law regulating their behavior. Mutually complementary self-interests lead states to create and adhere to international law. The important thing is the creation and adherence, not the cultural origin and character of the self-interest (Wilk, 195 1: 667). This brings up the second reason for the insignificance of cultural influence.

States usually enter into relations for some specific purpose: an exchange of goods, the reception of visitors and tourists, or landing fights. They can agree on the conditions of these relations-and they do-without any reference to the cultural basis of this purpose. This agreement then establishes what is right between the parties- a much less culture-bound concept than what is just! The matters in which states interact, always selective and limited matters, do not necessarily involve any one state's entire culture. Their interests tell them to agree on the rules of interaction. Whatever compromise and adjustments this agreement requires regarding behavior and its regulation are not equivalent to a compromise of the state's entire culture or even any essential part of it. Such agreements are unaffected by cultural differences. In the case of collective goods and complementary interests, such as clean air, safety of navigation on the oceans and in the air, preservation of resources, and stability of exchange rates, legal agreements are eagerly sought though not always found, mainly because of clashing interests rather than clashing cultures. Even when goods are "collective" only on a higher level of abstraction but are culture bound in their eventual use (the same resource is sought by one state to make forks, by another to make chopsticks), legal agreements are achieved by culturally different nations. In postwar Europe




(1945) agreement was reached on the distribution of scarce building materials, although England wanted them to construct workers' housing, and Italy to build outdoor cafes.

The specific interests states develop and the methods they use to satisfy them are very much alike. Unfortunately they are not often in common. Conflicts rarely have different cultural roots. They arise from like but mutually exclusive interests and goals. The weakness of international law stems less from different outlooks and much more from similar but clashing interests antagonistically pursued. In any given situation of conflicting interests the overall cultural systems of the con- testants are much less decisive for their behavior than a calculation of costs and benefits regarding alternative actions (Henkin, 1965: 191-200) whereby it cannot be entirely excluded that cultural influences may affect the result of this calculation. Against this possibility must be held that in the international society more than in most others, reciprocity is the basis of international law and appears to affect the balance sheet decisively (Hassner, 1964: 53-56). The crucial factor for the existence and efficacy of international law is the comple- mentarity, mutuality, interdependence, disharmony, or exclu- siveness of the interests states pursue. In short, the relationship between specific interests held by different states at different times, the most promising way of satisfying them, and the interrelations between these factors determine the fate of international law. The international context in which these interests exist and the conditions upon which the success of their satisfaction depends may be very little influenced by individual national cultures. Respectively, national cultures need not be a hindrance when states wish to agree on the regulation of their interests and behaviors on the international scene.6 This situation permits the existence of a large body of

6. Evgeni Korovin, the Soviet international lawyer, wrote (Erickson, 1972: 11) that the incompatibility of socialist and capitalist international law notwithstanding, "each of them, carrying out its own line and directed by its own motives, might be interested in supporting and preserving a certain amount of generally binding legal norms in international relations." Chinese Communist international lawyers have, or perhaps better, had to argue similarly that there can be common norms in socialist and capitalist international law.




international law covering activities in many international organizations, commerce, investments, services, population movements, and even politics.

The point has been made that the internationalization of an increasing volume of subject matter formerly "domestic" does indeed mean that states meet more and more as entities, enhancing the importance of cultural differences. There is cogency in the argument that the greater the number of contacts or the denser the network of interactions between states, the more relevant will be the influence of their respective cultures. There is, however, a countervailing argument, equally cogent. The rise of the welfare state, the greater participation of states in social processes, and the growing interaction and pluralism among states tend to produce a greater community of interests, which is fertile ground for the growth of international law.

THE INTERNATIONAL CULTURE

More important is the part of this argument maintaining that the development producing multiplication of contacts also produces acculturation (which, expressed negatively, means national deculturization). Growing cultural neutrality or growing similarity benefits the growth of international law independent of national cultures in a number of ways. First, it creates uniformity in peoples' lives: supermarkets from Afghan- istan to Zanzibar; the "coca-colonization" of the world. Second, the adoption of modernization inevitably enforces the adoption of modem institutions, including modern legal systems. Everywhere, from China and Japan in the nineteenth century to the Third World in the twentieth, attempts to combine traditional institutions or cultural values with modern ways of doing things have failed miserably. To the extent that Asian and African countries have opted for entering into relations with the Western world, whether these be political, economic, cultural, or whatever, these relations carry tlhe imprint developed initially by the Western world, mainly




because the nature of the relations dictated the imprint. Third, the growing interaction is accompanied by a growing international culture among officials concerned with international affairs and to a lesser extent among publics interested in international affairs. They move in an international environment somewhat removed from their own national culture (Modelski, 1970).

These officials and publics are in the process of forming an international elite sharing behavior and understandings, at least in their respective spheres of interest (politics, business, tourism, study and research, arts, and the like), whose roots are not longer exclusively or even mainly in their national cultures. The influences affecting their socialization originate in many different cultures and countries. Very often these individuals act as transmission belts between the international culture and their respective national cultures. This role is most evident in "internationalists" coming from non-Western cultures mainly because in many respects modernization is interpreted as tantamount to Westernization. Gandhi, Nehru, Sukarno, Sihanouk are individuals equally at home in the international and their national cultures, and so are many lesser-known members of the Asian and African elites. They are all causing changes in their home institutions, including laws and judicial processes, to assimilate them to "modernization," usually meaning Western-type laws and processes. The process of acculturation is moving toward Western cultures. Only lately has there been some reversal, with Oriental influences affecting the West. Or perhaps better, with the broadening of people's horizons in the "shrinking" world, parochial adherence to one's traditional way of life is becoming increasingly difficult.

This acculturation extends to the basic aspects of the international political system, including its legal part. These are accepted by all, occasionally even cherished by all. No state has yet proposed fundamental changes, and some, especially among the newer states, insist upon their preservation in the most orthodox form (especially sovereignty). Dissatisfactions refer to details, criticisms to performance. The revolutionary enthusiasm




of the Communist and many newer states quickly gave way to support and exploitation of the existing system. Tortuous disputations and bitter struggles, especially in the Soviet Union, to reconcile the obvious practice of adhering to long-established principles of international law with its condemnation in theory, and little practical effect. On the international scene the behaviors of the actors resemble each other to an astonishing degree.

IDEOLOGY

This is all the more noteworthy as probably pronounced ideological differences are often made responsible for pre- venting peaceful international politics and effective international law. But ideology, defined as a set of beliefs and nonmaterial values, is a part of culture. And what has previously been said about culture and its influence on international law applies to ideology. Yet there are some peculiarities to ideology, making it actually even less influential upon international law than a national culture in general (Levi, 1970). The exception is nationalism, which must be excluded from any consideration here because it is universally prevalent, canceling out, so to speak, and disallowing the measurement of any influence or non-influence of ideology in general.

First, values and beliefs are always stated in broad, general, abstract terms. Everybody is against sin. Ideology as a guide to actual behavior, as a determinant for what may or may not be done, is subject to much interpretation of the relevant value and belief, of the prevailing acute situation, and of any given legal rule. No specific legal rule or specific behavior can be predicted from so much needed interpretation. For this reason states can agree on so many legal principles and rules in general and yet act so differently and incompatibly.

Second, the values and beliefs of an ideology may be internally consistent as a system when stated in the abstract. But the consistency may easily break down in concrete




situations. Depending upon which particular value or belief is applied to create a rule, mutually exclusive action can result. There is, for instance, no contradiction within an American ideology calling for help for humanity and opposition to territorial colonialism. But President William McKinley could have either annexed the Philippines in order to "help our little brown brethren" (humanitarianism) or rejected annexation (anti-colonialism).

Third, an ideology is a composite of a vast range of values and beliefs. Some are held with greater intensity than others, so that an actor may ignore or suppress some more easily than others. Some may be so strongly held ("you shall not kill") that a good deal of rationalization would be needed to act counter to them.

This character of an ideology turns it into an extremely flexible thing. The same ideology allows for many kinds of, or even diametrically opposed, behaviors. It follows that different ideologies allow nevertheless for compatible behavior. This possibility led the Chinese Communists to argue that capitalist and communist lawyers can sleep in the same bed, though they dream different dreams. The important thing is that in every concrete case, how an ideology is interpreted, which values and beliefs are selectively applied, and what rationalization is employed to pick one and suppress another value, are determined by the interests producing the desire to act in the first place. They are decisive. In international relations or probably in any relations, there are no more powerful interests than those qualified as "national." Ideology is virtually always subordi- nated to them as their handmaiden. Whatever creation, application, or interpretation of international law is required to serve these interests, ideology can and will be used to justify it.

The history of international law abounds with illustrations of this practice. No state is exempt. A striking recent example is offered by the Soviet Union and the People's Republic of China. It is a particularly instructive example because both states pride themselves on the ideological foundation of their behavior, though, it inust be admitted, both also confess more




frankly than most states that international law is an instrument of international politics. China, not involved in the occupation or direct domination of any state and eager to undermine the Soviet Union's leadership of the Communist camp, plays the role of champion of national independence. It emphasizes sovereignty and interprets the concept in its most traditional, orthodox form. The Soviet Union, interested in retaining control of the camp and protecting its frontiers by obedient satellite buffer states, limits the meaning of sovereignty. According to the Brezhnev doctrine, sovereignty cannot protect a state against outside "help" whose government and activities threaten socialism in Eastern Europe. In both cases ideology is used to interpret international law so that each state can do in its name what its interests tell it to do.

Conclusion

In the international society there is a premium upon the use of power to achieve goals. The methods states choose, whether legal, diplomatic, violent, or peaceful, depend very much upon a cost-benefit analysis, influenced more by the dictates of the international system than by cultural differences. It should be evident after this analysis that empirically-and for theoretical reasons-cultural differences have a minor influence at most upon the formulation, application, and interpretation of international law. Insofar as culture-when broadly defined-is relevant at all, international culture has more relevance than any national culture. The conditions under which men everywhere have chosen to coexist in the world make the pursuit of the most basic national interests both alike and decisive. They are almost totally devoid of particular national cultural content. The same is nearly as true of the methods used to pursue these interests. The systemic influences exercised by the international society upon the behavior of states and on the law regulating that behavior are far greater than the influence of any national culture. They very largely define the extent to whiclh and the methods by which states can pursue any national-culturally




determined goals in the international society. Altogether, the growth of international law in recent years is testimony to the openness and flexibility of cultures. Or perhaps more correctly, to the openness and flexibility of man in shaping his environment to satisfv his needs and wants.

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