Year XXXVIII, Number 1, March 2025

Monique Chemillier-Gendreau
 Professor Emeritus of Public Law and Political Science (Université Paris-Cité). Specialized in international law,
she has taken part in various proceedings before arbitral tribunals and the International Court of Justice.

Today's world, which has become a village thanks to the power of communications and trade, still lacks a common law that can be applied effectively. International law developed in the 20^th century, and the institutions set up at that time, must today be considered a failure.

Neither the right to peace enshrined in the United Nations Charter, nor humanitarian law in the event of armed conflict enshrined in the Geneva Conventions of 1949 and many other complementary texts regulating the means of warfare, are respected. Similarly, the Universal Declaration, the International Covenants and the conventions against genocide, torture and apartheid are flouted in an increasingly open challenge to universalism.

I will analyze this disaffection with international law, distinguishing between the different forms it takes, and then show how this disaffection has its origins in an internal contradiction in the international system. Finally, I will consider possible ways out, and then return to federalist thinking, the subject of this meeting.

• Today, there is a general disaffection with international law.

But there is disaffection that is declared, and disaffection that operates clandestinely.

Declared disaffection comes from that part of the world that did not contribute to the development of the standards now being contested. In this respect, I refer to the work of Laurence Burgorgue-Larsen, in particular her 2023 conference in Aix-en-Provence, where she analyzes how the universalism of human rights is today being rejected in a growing number of societies.

These are mainly Asian societies, where community values are based on a profound deference to authority, with no regard for individual freedom. In other societies, in particular Muslim societies, rights and freedoms are dictated by religious precepts. Finally, in 2006, the Orthodox Church adopted a Declaration of Human Rights and Dignity as an alternative to the Universal Declaration.

But the universalism of international law is also being challenged by groups and movements in the West. This is particularly true of populations of Muslim origin who have arrived through post-colonial migratory flows. Deeply religious, these populations reject the secularization of the societies in which they find themselves. There are also European regimes, notably in Eastern Europe, that challenge the democratic systems and judicial controls that make up the rule of law. They cite Christianity as a justification for their authoritarian excesses, and claim a white Christian identity. And then there is the clandestine disaffection of Western governments themselves, who are the originators of this right and pride themselves on promoting it. Official discourse claims strict respect for this right, but practice belies it. Here are a few examples.

The founding texts of international law, the United Nations Charter in 1945 and the Universal Declaration of Human Rights in 1948, were created by Western states. Africa, under colonial domination, had no voice at the time, nor did a large part of Asia and Oceania. The drafters of these texts were determined to achieve universalism and freedom for all, but their conception of freedom was their own.

They had proclaimed the right of peoples to self-determination, but remained colonizers, opposing through bloody wars the will of peoples to benefit from this right. France led the Indochina war, the Algerian war and the bloody repression in Madagascar, with massive violations of the norms of humanitarian law, such as the use of napalm and torture. The Netherlands, Portugal and the United Kingdom also practiced abuses contrary to the principles to which they had solemnly subscribed. From 1955 to 1975, the United States waged a war of aggression against Vietnam, using Agent Orange, the deadly effects of which are still being felt 5 decades later. The two wars waged against Iraq were waged in flagrant violation of international law, including the prohibition of torture, which was practised in the infamous Abu Graib prison.

As for Israel, this country, closely allied with the group of Western countries, flouts international law by refusing to recognize the Palestinian people's right to self-determination, by disregarding the prohibition of the use of force, human rights and non-discrimination treaties, the prohibition on apartheid and all humanitarian law in the event of armed conflict. Its allies, notably the United States, are complicit through their military and financial cooperation. The paralysis of the Security Council is due to this complicity. The European Union could activate Article 2 of its agreement with Israel and consider that the human rights violations committed by this state justify the suspension of the cooperation agreement, but it does nothing of the sort. The two advisory opinions issued by the International Court of Justice in 2004, and most recently in February 2024, clearly qualify Israel's policies as illegal, but these opinions have gone unheeded.

In addition, the United States and France do not recognize the jurisdiction of the International Court of Justice, thus evading the application of international law, and France has not acceded to the United Nations Convention on the Law of Treaties. Their argument is that it does not accept the category of jus cogens or general imperative law. Yet to consider that there are intangible principles, precisely those of general imperative law, which cannot be derogated from, even by treaty, is a step in the direction of consolidating international law.

And the USA has not signed up to the Convention on the Law of the Sea (1982), the Convention on the Rights of the Child (1989), the Mine Ban Treaty (1997) or the Rome Statute of the International Criminal Court (1998), to name but a few. Again, the United States refused to bow to the decision of the International Court of Justice condemning it against Nicaragua in 1986, or to the 2004 decision of the International Court of Justice (ICJ) requiring it to stop executing foreign nationals who had not been granted consular rights. Despite this injunction, executions have continued in defiance of international law.

States that had been colonizers and were obliged by the peoples under their domination to give them back their freedom in the great movement triggered in the 60s, nevertheless tried pathetically to maintain colonial domination over certain territories. Thus, when Mauritius was decolonized in 1968, the United Kingdom detached certain islands, the Chagos, which were dependent on it. It took an advisory opinion from the International Court of Justice in 2019 for this to be denounced. And today, 5 years after this opinion was delivered, the United Kingdom has finally agreed to apply its provisions, although not entirely, since one of the islets, Diego Garcia, remains under lease to the United States, which has made it its main military base in the Indian Ocean. And today, France is engaged in harsh repression against the Kanak people of New Caledonia, denying them the conditions for realizing thei right to self-determination in accordance with international law.

2 - These violations of international law are made possible by a contradiction inherent in the law itself.

The situation I have outlined is extremely worrying. Indeed, a society in which the law can be manipulated or contested, and where its implementation is not controlled by a judge, is a society left to the balance of power, which encourages the domination of the strongest. But it is pointless to denounce this situation if we don't take the analysis further. In fact, it has only been able to develop because there was a destructive element in international law that has enabled states to escape the norms they were ostensibly promoting. Today, this situation is turning against them, but at the expense of the entire system, whose foundations have been shaken.

What are we talking about? The fact that the United Nations Charter displayed an unprecedented determination to impose on States rules for living together, notably the prohibition on the use of force, the right of peoples to self-determination, and all the international law whose development the Charter encourages. At the same time, however, the Charter guaranteed States respect for their sovereignty. Sovereignty is an originary power, above which there is nothing. Sovereigns recognize only those rules to which they agree to subscribe, and not those that are imposed against their will. Guaranteeing sovereignty meant admitting that sovereign States could evade the application of international law. 

The project of an effective, enforced and if necessary sanctioned international law is not feasible without calling sovereignty into question. Right from the creation of the League of Nations in 1918, Georges Scelle, a professor of international law, devoted all his work to highlighting this contradiction. And today, I follow in this tradition, but in the same isolation^[1] . Following the evolution of this contradiction may shed some light on the reasons for this situation.

The Western states, the authors of the Charter, were anxious to ensure that there should be no possibility of domination in the circle of so-called advanced countries. This was a long-standing concern, as it had already been the subject of the Treaties of Westphalia that ended the Thirty Years' War in 1648, and of the Congress of Vienna after the Napoleonic Wars in 1815. Germany's hegemonic pretensions in the 19th and 20th centuries showed that political commitment was not enough, and that appropriate legal mechanisms were needed. Thus the prohibition of the use of force, a cardinal principle of the United Nations Charter.

But the states that took the initiative in this move towards building a world governed by law were not sincere. They used their sovereignty to consolidate positions of domination. The proof is that colonialism was not banned by the United Nations Charter. It was only later outlawed by the national liberation struggles of dominated peoples. And during the Algerian war, France objected to the United Nations' discussion of the war, claiming that it was a matter of exclusive national competence.

The enslaved peoples then seized on the Charter as a weapon of liberation, and based on the principle of the right of peoples to self-determination, they appealed to international law to free themselves. But the contradiction between international law and state sovereignty had not yet been overcome. For them, the only way to achieve the right of peoples was to become sovereign states, as the colonizers had been. Going a step further, they demanded full sovereignty in the form of economic sovereignty, which they saw as the basis for a new international economic order. But this was to get bogged down in a few speeches at the United Nations General Assembly.

From then on, the countries that had recently joined the community of states played the game of the global market, taking refuge behind sovereignty to exert domination over their own peoples and engage in a race for dominance in the international arena, as exemplified by China's policy. The peoples of these countries were liberated from colonialism, but subjected to authoritarian and sometimes bloody regimes.

In the current phase, these countries are pushing their economies towards accelerated productivism, particularly in Asia. But then, international law is an obstacle. It claims to impose political, social, environmental and technical rules, all of which are obstacles to the domination of those in power.

It is easy for them to follow in the footsteps of those who founded international law, but reserved the right not to apply it. But the essential difference is that this rejection of international law is no longer clandestine, it has been formalised. And international law is discredited to its very foundations. The idea of universalism is being challenged. As a result, the West finds itself in a very weak position. Faced with stiff competition on the technological, industrial and commercial fronts, its values have been discredited because it has so often betrayed them.

3 - What are the paths that would enable us to return to a law that is common to global society as a whole?

To try to answer this difficult question, we must first ask ourselves what common values such a right could be built on. We can then examine the institutional and social conditions under which this project could be implemented.

Without going into detail here on the question of values that could be common to humanity as a whole, I will simply point out that the values promoted by the West to promote universal international law are not in themselves to be rejected. On the face of it, they embodied what all human beings aspire to: freedom from the domination of either foreign powers or domestic regimes that enslave their populations. And the regimes that challenge them, such as China, in the name of a respect for authority that would prohibit criticism of state policies, or theocratic regimes, such as the Iranian or Saudi Arabian regimes, that seek to impose religiously-based norms on society as a whole, experience internal opposition that is more or less muzzled, but which testifies to their peoples' aspirations to freedom.

We can conclude from this that aspirations to respect for individuals and their dignity, and to freedom of conscience, thought and association are shared by all human beings. This should make it possible to build a common foundation of standards protecting these aspirations. And all peoples, like all individuals, when the realization of their rights is challenged, wish to have at their disposal a judicial body capable of resolving the dispute objectively.

But if they are to regain their strength and universal scope, the values enshrined in the great texts of international law need to be challenged, debated and adopted anew in appropriate forums. Unfortunately, today, this seems a long way off. Two conditions are lacking at the moment: a driving force that is prepared not to represent vested interests, and that necessarily comes from outside existing international organizations; and a world public opinion that supports the idea.

This renewal of universal rights cannot come from within the current system through a simple reform, because the system no longer has any international legitimacy. The principle of domination validated by the Charter, with the exceptional status granted to 5 member states, is guaranteed in perpetuity. Under Articles 108 and 109 of the Charter, any reform of the system can only take place with the agreement of the 5 permanent members. Yet it is they who are primarily responsible for the loss of credibility of international law, through their incessant violations.

So we have to face up to the difficulty, and if we are to try to build something else, we must necessarily look outside the current system, which is untenable. To do this, civil society movements the world over need to set up working groups to reflect together on how to equip the world with international laws and institutions to counter domination. To counter domination, we need to imagine an international society based on a non-hierarchical principle.

And the quest for a non-hierarchical society lies at the heart of federalist thinking. Federalist thinking must therefore be broadened, so that not only are national societies seen as associations of free men, but that world society is organized and guaranteed as an association of free peoples. And the institutions with which this world society will have to equip itself will have to be devised in such a way as to impede any attempt by one of these peoples, or a group of them, to confiscate the place of the universal for the benefit of particular interests.

This presupposes, and this is undoubtedly the most difficult aspect, that world public opinion is convinced of the need for a new anti-hegemonic political project, both as a new conception of democracy and as the basis for a new universalism. To speak of this in the current context would appear to be out of touch with reality, given the fragmentation of public opinion and its preoccupation with particular interests. It is already difficult to construct objectives of national interest, so will we be able to develop movements of ideas that endorse the principle of a global society subject to law? Today, this seems utopian. But utopia is not what we dream of as inaccessible. Utopia means envisaging another world that has not yet arrived. It is up to us to make it a reality. And that means first of all evoking it.

Events will serve as an accelerator. Ongoing wars with no prospect of peace and no procedures to bring it about, the multiplication of human disturbances, violence, illicit trafficking, exploitation of the weakest, climate change and its dramatic consequences in terms of drought, cyclones, heatwaves and floods, are ahead of us. Are we going to allow all this to develop within a global system that has run out of steam? Or will we be able to convince ourselves that we need to get down to work and prepare a truly universal alternative to what has been tried and failed? Not to do so would be to allow the catastrophe to unfold with indifference.

* Union of European Federalists (UEF France) - October 12, 2024 symposium

[1] See Monique Chemillier-Gendreau, "En finir avec la souveraineté", Dalloz, Tiré à part, Paris, 2024.